563 Grand Med., PC v Prudential Prop. & Cas. Ins. Co.

[*1] 563 Grand Med., PC v Prudential Prop. & Cas. Ins. Co. 2006 NY Slip Op 51872(U) [13 Misc 3d 131(A)] Decided on October 2, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 2, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and BELEN, JJ
2005-512 K C.

563 Grand Medical, PC A/A/O MARK LEBRON, Appellant,

against

Prudential Property & Casualty Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered February 28, 2005. The order granted defendant's motion to dismiss the complaint and denied plaintiff's application to convert the action to a special proceeding to vacate the master arbitrator's award.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits for medical services provided by plaintiff, the court below granted defendant's motion to dismiss the complaint. The court properly determined that plaintiff was not entitled to commence the instant action to adjudicate the dispute de novo, pursuant to Insurance Law § 5106 (c), since the master arbitrator's award was less than $5,000. Contrary to plaintiff's contention, Insurance Law § 5106 (c) is unambiguous and must be construed by a court so as to give effect to the plain and ordinary meaning of the words used, without limiting or extending its plain language (see Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 106-107 [1997]; McKinney's Cons Laws of NY, Book 1, Statutes § 94). Insurance Law § 5106 (c) clearly indicates that the amount of the master arbitrator's award must be at least $5,000 before an insurer or claimant may institute an [*2]action to adjudicate the dispute de novo. As the Court of Appeals noted in Matter of Greenberg (Ryder Truck Rental) (70 NY2d 573, 577 [1987]), "[t]he $5,000 award provision is simply a threshold to acquiring the de novo court adjudication." Since the master arbitrator's award herein was $2,024.50, the claimant may not commence an action to adjudicate the dispute de novo pursuant to Insurance Law 5106 (c).

In the event that the court disagreed with its trial de novo arguments, plaintiff made an application to convert the action, pursuant to CPLR 103 (c), to a special proceeding to vacate the master arbitrator's award. It is well settled that "courts are empowered and indeed directed to convert a civil judicial proceeding not brought in the proper form into one which would be in proper form, rather than to grant a dismissal, making whatever order is necessary for its prosecution" (Matter of First Nat. City Bank v City of New York Finance Admin., 36 NY2d 87, 94 [1975]). We find, however, that conversion is inappropriate under the particular circumstances of this case (see Colonial Penn Ins. Co. v D'Aguilar, 151 AD2d 716 [1989]). The language of the complaint demonstrates that plaintiff elected to commence the instant action for a trial de novo on the erroneous ground that the master arbitrator's award was $5,000 or more. Neither in the complaint nor in plaintiff's moving papers in support of its motion does plaintiff assert any CPLR 7511 (b) or 11 NYCRR 65-4.10 ground for vacating the master arbitrator's award. Accordingly, the court below properly denied plaintiff's CPLR 103 (c) application.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: October 02, 2006