Linden Med., P.C. v MVAIC

[*1] Linden Med., P.C. v MVAIC 2008 NY Slip Op 52188(U) [21 Misc 3d 134(A)] Decided on November 5, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-1191 K C.

Linden Medical, P.C. a/a/o TAJI FISHBURNE, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 7, 2007. The order granted a petition to confirm a master arbitrator's award and denied MVAIC's motion to vacate the master arbitrator's award and the arbitrator's award.

Order reversed without costs, petition to confirm the master arbitrator's award denied and MVAIC's motion to vacate the master arbitrator's award and the arbitrator's award granted.

In this proceeding to confirm a master arbitrator's award, respondent Motor
Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved to vacate said award as well as the arbitrator's award. The court below granted the petition and denied MVAIC's motion. The instant appeal by MVAIC ensued.

The standard applicable to judicial review of a compulsory arbitration proceeding is whether the award was "supported by a reasonable hypothesis' and was not contrary to what could be fairly described as settled law" (Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005], citing Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]; see Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533, 534 [1996]; Matter of Adams v Allstate Ins. Co., 210 AD2d 319, 320 [1994]). Applying this standard to the instant proceeding, we find that the [*2]master arbitrator's award and the arbitrator's award should be set aside because they were contrary to settled law (see Matter of State Farm Mut. Auto. Ins. Co., 18 AD3d at 763; Matter of Hanover Ins. Co., 226 AD2d at 534).

A review of the record reveals that petitioner submitted the subject claim form on December 1, 2000. Neither party has shown the existence of a verification request that would have tolled the payment due date (see Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69, 70 [App Term, 2d & 11th Jud Dists 2008]). Furthermore, contrary to petitioner's contention, MVAIC's denial of claim form, dated April 9, 2002, did not postpone the payment due date (see id.). We therefore find that petitioner's cause of action accrued in January 2000 (see Aetna Life & Cas. Co. v Nelson, 67 NY2d 169 [1986]; Kings Highway Diagnostic Imaging, P.C., 19 Misc 3d 69), regardless of whether petitioner's assignor had been determined to be a qualified person at that time (see Englinton Med., P.C. v MVAIC, 14 Misc 3d 135[A], 2007 NY Slip Op 50164[U] [App Term, 2d & 11th Jud Dists 2007]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists 2005]).

Because petitioner did not commence arbitration proceedings until February 12, 2004, it was barred by the three-year statute of limitations set forth in CPLR 214 (2) (see Matter of Motor Veh. Acc. Indem. Corp., 89 NY2d 214). The arbitrator's determination that the six-year statute of limitations was applicable is contrary to settled law (see id.; Kings Highway Diagnostic Imaging, P.C., 19 Misc 3d 69).

Accordingly, the court below should have denied the petition and granted MVAIC's motion to vacate the master arbitrator's award as well as the arbitrator's award
(see e.g. Matter of Pradip Das/N.Y. Med. Rehab v Allstate Ins. Co., 297 AD2d 321 [2002]; Matter of Nyack Hosp. v Government Empls. Ins. Co., 139 AD2d 515 [1988]).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: November 05, 2008