Autoone Ins. Co. v. E. Island Med. Care, P.C.

• Decision Date: 06 July 2016
• Citation: 35 N.Y.S.3d 230,2016 N.Y. Slip Op. 05354,141 A.D.3d 499
• Parties: AUTOONE INSURANCE COMPANY, appellant, v. EASTERN ISLAND MEDICAL CARE, P.C., as assignee of Jaime Benitez, respondent.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 499

35 N.Y.S.3d 230

2016 N.Y. Slip Op. 05354

AUTOONE INSURANCE COMPANY, appellant,

v.EASTERN ISLAND MEDICAL CARE, P.C., as assignee of Jaime Benitez, respondent.

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

July 6, 2016.

The Law Office of Jason Tenenbaum, P.C., Garden City, N.Y., for appellant.

Don L. Hochler, P.C., Woodbury, N.Y., for respondent.

LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.

In an action pursuant to Insurance Law § 5106(c) for a de novo determination of a claim for no-fault insurance benefits, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Marber, J.), entered October 20, 2014, which, upon an order of the same court entered October 1, 2014, denying that branch of its motion which was pursuant to CPLR 3211(b) to dismiss the third affirmative defense, granting the defendant's cross motion to confirm the award of a master arbitrator dated January 24, 2014, and, in effect, denying, as academic, those branches of the plaintiff's motion which were for summary judgment on the complaint and pursuant to CPLR 3211(b) to dismiss the first, second, fourth, fifth, seventh, and eleventh affirmative defenses, and pursuant to CPLR 3211(a)(7) to dismiss the second counterclaim and stated portions of the first counterclaim, is in favor of the defendant and against the plaintiff in the principal sum of $6,406.82.

ORDERED that the judgment is reversed, on the law, with costs, those branches of the plaintiff's motion which were pursuant to CPLR 3211(b) to dismiss the first, second, third, and fourth affirmative defenses are granted, the defendant's cross motion to confirm the award of the master arbitrator is denied as academic, the order entered October 1, 2014, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for a determination on the merits of those branches of the plaintiff's motion which were (a) for summary judgment on the complaint, (b) pursuant to CPLR 3211(b) to dismiss the fifth, seventh, and eleventh affirmative defenses, and (c) pursuant to CPLR 3211(a)(7) to dismiss the second counterclaim and stated portions of the first counterclaim.

The plaintiff, AutoOne Insurance Company, a no-fault insurance carrier, was entitled to commence this action to compel the de novo adjudication of the insurance dispute at issue since a master arbitrator's award in favor of the defendant, Eastern Island Medical Care, P.C., as assignee of Jaime Benitez, exceeded the statutory threshold sum of $5,000 (see Insurance Law § 5106 [c]; Allstate Ins. Co. v. Nalbandian, 89 A.D.3d 648, 649, 931 N.Y.S.2d 698 ; Matter of Capauno v. Allstate Ins. Co., 122 A.D.2d 138, 139, 504 N.Y.S.2d 523 ).

The Supreme Court erred in denying that branch of the plaintiff's motion which was for summary judgment on the complaint on the ground that the demand for a trial de novo was untimely filed (see Insurance Law § 5106 [c]; CPLR 7511 ; 11 NYCRR 65–4.10 [h][2]; see also Matter of Slater v. Eagle Ins. Co., 294 A.D.2d 368, 369, 741 N.Y.S.2d 723 ). As this arbitration dispute was originally submitted to the American Arbitration Association (hereinafter AAA) and was not court-ordered, the 35–day timetable applied by the court pursuant to 28 NYCRR 28.12 was not applicable (see 22 NYCRR 28.2 ). Instead, the plaintiff had 90 days from the date the master arbitrator's award was mailed to it to commence this action (see Insurance Law § 5106[c] ; CPLR 7511 ; 11 NYCRR 65–4.10 [h][2]; see also Matter of Slater v. Eagle Ins. Co., 294 A.D.2d at 369, 741 N.Y.S.2d 723 ), and the plaintiff did so. Thus, the court erred in granting the defendant's cross motion to confirm the award of the master arbitrator on the ground that this action was not timely commenced and in denying that branch of the plaintiff's motion which was pursuant to CPLR 3211(b) to dismiss the third affirmative defense, which alleged that the action was not timely commenced. As the plaintiff timely invoked its right to a de novo review by the Supreme Court, the defendant's cross motion to confirm the award of the master arbitrator was rendered academic (see Allstate Ins. Co. v. Nalbandian, 89 A.D.3d at 649, 931 N.Y.S.2d 698 ) and the defense of untimeliness was without merit (see Matter of Slater v. Eagle Ins. Co., 294 A.D.2d at 369, 741 N.Y.S.2d 723 ; Matter of Abadinsky v. Aetna Cas. & Sur. Co., 250 A.D.2d 673, 673–674, 672 N.Y.S.2d 424 ; Matter of Capuano v. Allstate Ins. Co., 122 A.D.2d at 138, 504 N.Y.S.2d 523 ).

The defendant's contention that the plaintiff failed to exhaust its administrative remedies or satisfy a condition precedent because the plaintiff defaulted before the master arbitrator is without merit. There is no dispute that the plaintiff timely demanded review by a master arbitrator within 21 calendar days of the mailing of the award by the AAA no-fault arbitrator (see 11 NYCRR 65–4.10 [d][2] ). Further, the insurance regulations specifically provide that a master arbitration will proceed even if a party...