Government Empls. Ins. Co. v Adorno
2012 NY Slip Op 30949(U)
April 10, 2012
Supreme Court, New York County
Docket Number: 110698/11
Judge: Doris Ling-Cohan
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D ON411 112012
SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
PRESENT: Hon. Doris Ling-Cohan, Justice
GOVIERNMENT EMPLOYEES INSURANCE
INDEX NO. 1 10698/11
The following papers, numbered
were considered on
Notice of MotiodOrder to Show Cause,
Answering Affidavits -Exhibits
[ ] Yes
[ XI No
Upon the foregoing papers, it is ordered that this motion is decided as indicated below.
Petitioner Government Employees Insurance Company (GEICO) commenced this special
proceeding against respondent Javier Adorno (Adorno) to stay an arbitration. Respondent Adorno filed
a Demand for Arbitration dated September 1,201 1 (Arbitration Demand), based on injuries allegedly
sustained by him in an accident on February 10,2010 (Subject Accident) involving an allegedly
uninsuredunderinsured motorist. The Arbitration Demand was based on an insurance policy issued by
GEICO providing uninsuredunderinsured motorist benefits (GEICO Policy).
Petitioner moves: (i) to permanently stay arbitration until respondent Adorno has complied wt
all conditions precedent under the GEICO Policy; or alternatively, (ii) to direct respondent Adorno to
produce all relevant medical records and authorizations, including a no-fault authorization, and submit to
an examination under oath and physical examinations.
The Subject Accident involved a 2001 Cadillac (2001 Cadillac), operated by non-party Tyease
Clark and a 2008 Honda (2008 Honda), operated by respondent Adorno. Respondent Adorno was
stopped at a red light when she was rear-ended by the 2008 Honda. A police accident report (Police
Report) w s filled out on the date of the Subject Accident.
Thereafter, respondent Adorno filed the Arbitration Demand referring to an insurance policy,
issued by GEICO, providing uninsured motorist benefits. By letter dated September 9,201 1,GEICO
requested that respondent Adorno agree to discovery. GEICO, alleging that respondent Adorno has
failed to comply with the conditions precedent to arbitration, then commenced this proceeding arguing
that a permanent stay of the arbitration is necessary given that respondent Adorno failed to provide
written notice as soon as practicable. Alternatively, GEICO contends that a temporary stay of the
arbitration is necessary for discovery.
GEICO claims that respondent Adorno has failed to fully comply with the necessary conditions
precedent to arbitration as required by the GEICO Policy. Specifically, GEICO contends that a person
seeking Supplementary UninsuredAJnderinsured Motorists (SUM) coverage must provide written notice
as soon as practicable, the insured and every person making a claim must submit to examinations under
oath, and the insured must submit to physical examinations by physicians selected by GEICO as often as
reasonably required. See Petition, Exhibit B, p. 14.
In opposition, respondent Adorno argues that the arbitration should not be permanently stayed as
GEICO was placed on notice of his mimuredunderinsured motorist claims by letter dated March 8,
20 10. The March 8,2010 letter states that Kramer & Pollack, LLP âis filing a claim for all applicable
no-fault, uninsured and underinsured motorist benefits on behalf of Javier Adorno for injuries sustained
in an automobile accident which occurred on February 10,2010.â Affirmation in Opposition, Exhibit A.
Respondent Adorno also contends that GEICOâs petition to stay arbitration is untimely, as are GEICOâs
As a preliminary matter, the within petition is timely in that it was filed within 20 days after
service of the Arbitration Demand as required by CPLR 0 7503. âThe law is well settled that the 20-day
period provided in CPLR 7503(c) is to be computed from the time the demand for arbitration is received,
not from the time it is mailed.â Allstate Ins. Co. v Metayer, 137 AD2d 454,455 (lstDepât 1988).
Furthermore, â[iln calculating the time in which a stay application is to be made, the day on which the
demand is received is not included.â Id Here, the Arbitration Demand, dated September 1 201 1, was
received on September 2,201 1 and the petition filed on September 20,201 1. Accordingly, the petition
was filed within the requisite 20 day period, and thus, denial on such basis is not warranted.
Respondent Adorno further objects to GEICOâs petition in that the request for discovery is
untimely. Respondent Adorno contends that GECIO was provided with notice on March 8,2010 but
failed to seek discovery until September 9,201 1. However, GEICO argues that the purported notice
dated March 8,2010 was too overbroad and speculative to constitute notice of respondent Adornoâs
claim for no-fault, uninsured and underinsured motorist benefits. Further, GEICO argues that the
GEICO Policy unequivocally requires respondent Adorno to submit to discovery prior to arbitration.
CPLR 6 3 102(c) states that âdisclosure to aid in bringing an action, to preserve information or to
aid in arbitration, may be obtained, but only by court order,â The Court of Appeals has found that
â[wlhile a court may order disclosure to aid in arbitration...courts will not order disclosure except under
extraordinary circumstances.â De Supio v Kohlmeyer, 35 NY2d 402, 406 (1 974)(intemal quotations
omitted). Moreover, â[c]ourt-ordered disclosure is not justified except where it is absolutely necessary
for the protection of the rights of a party.â International Components Corp. v Klaiber, 54 AD2d 550,
551 (1â Depât 1976).
Relying on the Appellate Division, Second Department, petitioner argues that âlpletitions to stay
arbitration are properly denied when ...the carrier had ample time to obtain the discovery sought and
unjustifiably failed to utilize that opportunity.â Affirmation in Opposition, 7 9 (internal quotations
omitted). See Matter ofAllstate Ins. Co. v Urena, 208 AD2d 623 (2âd
Depât 1994). However, the
Appellate Division, Second Departrslent also held that where â[tlhe claimant has alleged physical
injuries...[, i]f he is not compelled to submit to a physical examination, petitioner will be severely
prejudiced ...[and i]n contradistinction, the claimant will suffer no prejudice if compelled to submit to the
examination. [The court found] no indication in the record that petitioner intended to waive its right to
compel the claimant to submit to a physical examination, or that its delay in seeking the examination
constituted a dilatory ploy.â Matter o State Farm Mutual Automobile Inns. Co. v Wernick,90 AD2d 5 19,
5 19-520 (2nd
Here, respondent Adomo is alleging serious injuries resulting from the Subject Accident. Based
on the submissions before the court, GEICOâs alleged delay in seeking discovery was not a âdilatory
ployâ. Id. C3EICO argues that it did not receive notice until the Arbitration Demand, dated September 1,
201 1. By September 9,201 1, GEICO requested discovery from respondent Adorno, a mere 8 days
following receipt of the Arbitration Demand. Further, â[tlhe strong policy of this State requires the
courts to enforce arbitration agreements as writtenâ. CSP Technologies, Inc. v Hekul, 57 AD3d 372,373
Depât 2008). In support of its petition, GEICO proffers the Conditions section of the GEICO Policy,
77 2 and 3, which states, in relevant part:
2. Notice and Proof of Claim: ...The insured ...shall...submit to examinations under oath
by any person we name and subscribe the same. ...
3. Medical Reports: The insured shall submit to physical examinations by physicians we
select when and as often as we may reasonably require. The insured ...shall upon each request
from us authorize us to obtain relevant medical reports and copies of relevant records.
Petition, Exhibit B, p. 14. While respondent Adorno alleges that GEICO failed to submit a copy of the
GEICO policy, and instead submits copies of portions of UM/UIM insurance forms, it is undisputed that
the GEICO Policy required discovery prior to arbitration. Parties are permitted to contract and agree to
rules and conditions to arbitration. CSP Technologies, Inc. v Hekal, 57 AD3d at 372. As such, the
portion of petitionerâs motion seeking a stay of the arbitration for discovery is granted.
Accordingly, it is
ORDERED that the petition to stay arbitration is granted to the extent that respondent
Javier Adorno is ordered to provide all relevant medical records and authorizations, and to submit to an
examination under oath and an independent medical examination, to be scheduled wt petitioner
Government Employees Insurance Company within 60 days of service hereof; and it is W h e r
ORDERED that arbitration is stayed pending such examination under oath and
independent medical examination as ordered above; and it is further
ORDERED that petitioner shall serve a copy of this order, with notice of entry, upon
respondent and the arbitrator within 30 days of entry hereof.
This constitutes the decision and order of this Court.
DORIS LING-COHAN, J.S.C.
[ X ] FINAL DISPOSITION
[ ] NON-FINAL DISPOSITION
Check if Appropriate: [ ] DO NOT POST
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