July 15, 2015

Avenue C Med., P.C. v Encompass Ins. of MA (2015 NY Slip Op 06101)

Headnote

The court considered whether it had subject matter jurisdiction to adjudicate a no-fault claim pursuant to Insurance Law § 5106 (c) for a de novo determination of a claim for no-fault insurance benefits. The main issue decided was whether the master arbitrator's award, which vacated the arbitrator's award in its entirety, effectively made no monetary award and therefore neither party was entitled to maintain a court action to adjudicate the dispute de novo. The court held that the Supreme Court properly granted the defendant's motion to dismiss the complaint for lack of subject matter jurisdiction, as the master arbitrator's award was less than $5,000, and therefore neither party was entitled to maintain a court action to adjudicate the dispute de novo.

Reported in New York Official Reports at Avenue C Med., P.C. v Encompass Ins. of MA (2015 NY Slip Op 06101)

Avenue C Med., P.C. v Encompass Ins. of MA

2015 NY Slip Op 06101 [130 AD3d 764]

July 15, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 2, 2015

[*1]

Avenue C Medical, P.C., as Assignee of Alejandro Romero-Garcia, Appellant,
v
Encompass Insurance of MA, Respondent.

Khavinson & Associates, P.C., Brooklyn, N.Y. (Thomas T. Kranidas of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for respondent.

In an action, in effect, pursuant to Insurance Law § 5106 (c) for a de novo determination of a claim for no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated October 30, 2013, which granted the defendant’s motion pursuant to CPLR 3211 (a) (2) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction. The complaint, in effect, sought a de novo determination of the plaintiff’s no-fault claim pursuant to Insurance Law § 5106 (c). “The statute permits an insurer or a claimant to institute a court action to adjudicate the dispute de novo where the master arbitrator’s award is $5,000 or greater” (Green v Liberty Mut. Ins. Co. Trust, 16 AD3d 457, 457 [2005]). Here, the master arbitrator, by vacating the arbitrator’s award in its entirety, effectively made no monetary award, and, because the master arbitrator’s award was less than $5,000, neither party is entitled to maintain a court action to adjudicate the dispute de novo (see id.; General Acc. Fire & Life Ins. Co. v Avlonitis, 156 AD2d 424, 424 [1989]; Matter of Sansiviero v Royal Globe Ins. Co., 109 AD2d 840, 842 [1985]). Skelos, J.P., Balkin, Chambers and Miller, JJ., concur.