Cure v. Mian

• Decision Date: 29 June 2021
• Docket Number: Case No. 2020-02021,14139,Index No. 652816/18
• Citation: Cure v. Mian, 195 A.D.3d 564, 146 N.Y.S.3d 490(Mem) (N.Y. App. Div. 2021)
• Parties: CURE (CITIZENS UNITED RECIPROCAL EXCHANGE), Plaintiff–Appellant, v. Shahid MIAN MD as assignee of Phillip Lambert, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 564

146 N.Y.S.3d 490 (Mem)

CURE (CITIZENS UNITED RECIPROCAL EXCHANGE), Plaintiff–Appellant, v. Shahid MIAN MD as assignee of Phillip Lambert, Defendant–Respondent.

14139

Index No. 652816/18

Case No. 2020-02021

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

ENTERED June 29, 2021

Law Offices of Peter C. Merani, P.C., New York (Adam Waknine of counsel), for appellant.

Manzanet–Daniels, J.P., Kern, Mazzarelli, Shulman, JJ.

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered on or about March 4, 2020, which, to the extent appealable, denied plaintiff's motion for leave to renew its motion for summary judgment on its claims asserting that there was no jurisdiction over it in the underlying arbitration proceedings, unanimously affirmed, with costs.

Rather than moving to vacate the varied arbitration awards pursuant to CPLR Article 75, plaintiff seeks de novo adjudication of defendant's entitlement to assigned no-fault insurance benefits of more than $5,000, following review by a master arbitrator ( Insurance Law § 5106[c] ). Plaintiff's initial motion for summary judgment made reference to certain AAA arbitration award decisions finding New York lacked personal jurisdiction over plaintiff, an out-of-state insurer, but plaintiff did not attach them to its motion. With its motion to "renew," plaintiff submitted these favorable decisions sustaining its jurisdictional defense. Nonetheless, this evidence "failed to meet the standard of presenting new evidence that would have changed the prior determination" ( Borges v. Rose, 187 A.D.3d 594, 595, 131 N.Y.S.3d 123 [1st Dept. 2020] ; see CPLR 2221[e][2] ). As with the evidence proffered with plaintiff's initial motion, such as the supporting affidavit, the new evidence did not eliminate an issue of fact as to whether plaintiff is...