WJ Acupuncture, P.C. v Nationwide Mut. Ins.

[*1] WJ Acupuncture, P.C. v Nationwide Mut. Ins. 2012 NY Slip Op 51648(U) Decided on August 23, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2010-2894 Q C.

WJ Acupuncture, P.C. and QUEENS-BROOKLYN MEDICAL REHAB, P.C. as Assignees of RAFAEL YUNAYEV, Appellants,

against

Nationwide Mutual Insurance, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered March 29, 2010, deemed from a judgment of the same court entered October 8, 2010 (see CPLR 5520 [c]). The judgment, entered pursuant to the March 29, 2010 order granting defendant's motion to dismiss the complaints in consolidated actions, dismissed the complaints.

ORDERED that the judgment is reversed, without costs, the order granting defendant's motion to dismiss the complaints is vacated, defendant's motion is denied, and the matter is remitted to the Civil Court for all further proceedings.

Plaintiffs, who had provided health care services to the same assignor for injuries arising out of the same accident, commenced separate actions to recover assigned first-party no-fault benefits. The actions were consolidated. At the commencement of a nonjury trial, defendant moved to dismiss the complaints based on the doctrine of collateral estoppel, arguing that, at a prior arbitration proceeding involving defendant and a third provider who had provided health care services to the same assignor for injuries arising out of the same accident, the arbitrator had [*2]found that the third provider had failed to establish a timely notice of claim within 90 days of the loss, as required under former Insurance Department Regulations (11 NYCRR) § 65.11 (m) (2) (now 30 days, see Insurance Department Regulations [11 NYCRR] § 65-1.1). This determination, defendant argued, barred relitigation of the issue in the Civil Court, requiring the complaints' dismissal. The Civil Court granted the motion. We reverse.

The doctrine of collateral estoppel applies only against those who were either a party, or in privity with a party, to a prior proceeding (Russell v New York Cent. Mut. Fire Ins. Co., 11 AD3d 668 [2004]). As it has not been demonstrated that plaintiff was either a party, or in privity with a party, to the prior arbitration proceeding, the doctrine of collateral estoppel is inapplicable (see Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 36 Misc 3d 132[A], 2012 NY Slip Op 51294[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2010]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, the judgment is reversed, the order granting defendant's motion to dismiss the complaints is vacated, defendant's motion is denied, and the matter is remitted to the Civil Court for all further proceedings.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: August 23, 2012