Queens Arthroscopy & Sports Medicine v Unitrin Direct Ins. Co (2013 NY Slip Op 52021(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered May 3, 2012, deemed from a judgment of the same court entered May 29, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 3, 2012 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion to dismiss the complaint, awarded plaintiff the principal sum of $5,486.66

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the record indicates that, subsequent to the assignment of benefits from plaintiff’s assignor to plaintiff and the provision of services by plaintiff to its assignor, plaintiff commenced this action in the Civil Court, and plaintiff’s assignor commenced an arbitration proceeding for a determination of whether defendant Unitrin Direct Insurance Company or Arch Insurance Company should provide no-fault coverage to him. On March 23, 2011, plaintiff moved in this action for summary judgment, and the following day, the arbitrator issued a decision, which stated that, based upon the credible evidence before him, either defendant or Arch Insurance Company [*2]would be the source of first-party no-fault benefits. The arbitrator directed Arch Insurance Company to commence processing plaintiff’s claims, because that insurer had received notice of the claims first. Defendant opposed plaintiff’s motion and, based on the arbitrator’s decision, cross-moved to dismiss the complaint pursuant to CPLR 3212 and CPLR 3211 (a) (5). Plaintiff submitted opposition. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, we find that plaintiff established its prima facie entitlement to summary judgment by proof of the submission to defendant of the claim forms, proof of the fact and the amount of the loss sustained, and proof that defendant had failed to pay or deny the claims within the requisite 30-day period (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the burden shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion and in support of its own cross motion, defendant submitted the affirmation of its counsel, who argued, among other things, that plaintiff’s action is barred by the decision in the arbitration proceeding. However, plaintiff was not named in the arbitration and was not in privity with its assignor, who was a named party in that proceeding, as the assignment of benefits had been executed before the arbitration proceeding had been commenced, and plaintiff otherwise had no full and fair opportunity to appear and defend its interests in that proceeding. Consequently, the instant action is not subject to dismissal by virtue of the decision in the arbitration hearing (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co., 37 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2012]). As a result, defendant’s cross motion to dismiss the complaint was properly denied and plaintiffs motion for summary judgment was properly granted.

Accordingly, the judgment is affirmed.

Rios, J.P., Pesce and Solomon, JJ., concur.
Decision Date: November 29, 2013