Am. Indep. Ins. Co. v. Nova Acupuncture, P.C.

• Decision Date: 30 March 2016
• Citation: 137 A.D.3d 1270,28 N.Y.S.3d 704
• Parties: In the Matter of AMERICAN INDEPENDENT INSURANCE CO., appellant, v. NOVA ACUPUNCTURE, P.C., et al., respondents.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1270
28 N.Y.S.3d 704

In the Matter of AMERICAN INDEPENDENT INSURANCE CO., appellant,
v.
NOVA ACUPUNCTURE, P.C., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

March 30, 2016.

28 N.Y.S.3d 705

Freiberg, Peck & Kang, LLP, Armonk, N.Y. (Yilo J. Kang of counsel), for appellant.

Amos Weinberg, Great Neck, N.Y., for respondents.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, COLLEEN D. DUFFY, JJ.

In a proceeding pursuant to CPLR article 75 to stay arbitration of claims for no-fault benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated April 6, 2015, which denied the petition.

ORDERED that the order is reversed, on the law, without costs or disbursements, the matter is remitted to the Supreme Court, Kings County, for a hearing on the issue of whether the petitioner controls, is controlled by, or is under common control by or with an insurer authorized to transact business in New York and, thereafter, for a new determination of the petition, and the arbitration is stayed pending a new determination of the petition.

The petitioner, American Independent Insurance Co. (hereinafter AIIC), is a Pennsylvania corporation not licensed to do business in the State of New York. In 2011, AIIC commenced a proceeding in the Supreme Court, Queens County, to permanently stay arbitration of three claims for no-fault benefits on the ground that it was not subject to personal jurisdiction in New York. The Supreme Court, Queens County, inter alia, granted the petition in that proceeding. On appeal, this Court, inter alia, modified the order and denied the petition (see American Ind. Ins. Co. v. Art of Healing Medicine, P.C., 104 A.D.3d 761, 961 N.Y.S.2d 240 ). In July 2014, AIIC commenced this proceeding in the Supreme Court, Kings County, to permanently stay arbitration of the same claims for no-fault benefits that were the subject of the first proceeding, as well as to permanently stay arbitration of two additional claims. AIIC alleged, inter alia, that arbitration should be stayed because the subject policies did not contain an agreement

28 N.Y.S.3d 706

to arbitrate. The Supreme Court denied the petition.

The Supreme Court determined that AIIC was estopped from raising its current arguments because it should have raised them in the first proceeding. We disagree. In the first proceeding, AIIC argued only that it was not subject to personal jurisdiction in New York. Had AIIC argued the merits, it would have indicated an intention to submit to the court's jurisdiction (see Taveras v. City of New York, 108 A.D.3d 614, 617, 969 N.Y.S.2d 481 ; Rubino v. City of New York, 145 A.D.2d 285, 288, 538 N.Y.S.2d 547 ). Furthermore, this proceeding is not barred by the doctrines of res judicata and/or collateral estoppel (see Matter of AutoOne Ins. Co. v. Valentine, 72 A.D.3d 953, 899 N.Y.S.2d...