Opinion
Index No. 452229/2020 MOTION SEQ. No. 001
07-26-2023
Unpublished Opinion
MOTION DATE 07/26/2023
PRESENT: HON. DEBRA A. JAMES Justice
DECISION+ ORDER ON MOTION
Debra A. James Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2,12, 13, 14,15, 16, 17, 18, 19, 20, 21,22, 23, 25 were read on this motion to/for VACATE - DECISION/AWARD.
ORDER
Upon the foregoing documents, it is
ORDERED that on the petition to vacate and the cross petition to confirm the master arbitrator's awards dated February 5, 2020 and February 10, 2020, a trial is directed on the issues of policy exhaustion and priority of payment; and it is further
ORDERED that the Clerk of the General Clerk's Office is directed to assign this matter to an appropriate Part for trial upon receipt of a copy of this order with notice of entry and the filing of a note of issue and a certificate of readiness and the payment of appropriate fees; and it is further
ORDERED that petitioner shall serve a copy of this order with notice of entry within thirty (30) days of entry upon the attorneys for the respondent, and upon the Clerk of the Court and the Clerk of the General Clerk's Office; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website); and it is further
ORDERED that the determination on the petition and cross petition are held in abeyance and shall be made after the hearing on whether the subject policy had been exhausted prior to the underlying arbitration.
DECISION
In Nyack Hosp v General Motors Acceptance Corp, 8 N.Y.3d 294 (2007), the Court of Appeals stated that:
the priority-of-payment regulation came into play on October 20, 2003 when the insurer received the requested hospital records, which established verified claims aggregating more than $50,000. At that point, the insurer should have paid the hospital ahead of any other unpaid verified claims for services rendered or expenses incurred later than the services billed by the hospital, up to the policy limits.See Matter of Ameriprise Ins Co v Kensington Radiology Group, PC, 179 A.D.3d 563 (First Department, 2020), affirming the decision of the Appellate Term, First Department, that affirmed the decision of the Civil Court denying petitioner's motion to vacate the master arbitrator's award and confirming the award, having set the matter down for a framed hearing on "whether the policy limit was exhausted before petitioner became obligated to pay respondent's claims".
See also Allstate Fire & Casualty Insurance Company v Branch Medical, P.C., 74 Misc.3d 134(A), *1 (App Term, First Department, 2022), wherein the Appellate Term, First Department, affirmed the vacatur and denied confirmation of the master arbitrator's award, based upon the frame hearing
on the issue of policy exhaustion. . . [and whether] the policy had been exhausted on [the date of respondent's verified claims] by payments of nofault benefits to other health care providers. . . before petitioner was obligated to pay the claim at issue here.
Furthermore, as argued by respondent at bar, in a recent decision, the Appellate Division, First Department pronounced:
Country-Wide was not precluded from raising the issue of policy exhaustion before the court, even if it was not before the arbitrators in the underlying arbitration.
Country-Wide submitted an affidavit from its NoFault Litigation/Arbitration supervisor, attesting that the instant claims file of Refill's assignor, Ms. Rosas, reflects that the policy has been exhausted beyond its $50,000 limit. The affidavit also contains a ledger reflecting the dates that claims by various medical providers were paid, which exhausted Ms. Rosas' policy. Thus, Countrywide's submissions showed that the policy was properly exhausted prior to the underlying arbitration (see 11 NYCRR 65-3.15).In the Matter of DTR Country-Wide Insurance Company v Refill Rx Pharmacy, Inc., 212 A.D.3d 481 (1st Dept 2023) (citation omitted; emphasis supplied).