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AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff, v. SURGICORE OF JERSEY CITY LLC A/A/O Jose Velasquez, Defendant.
Plaintiff, American Transit Insurance Company, brought this action under Insurance Law § 5106 (c) to obtain a de novo adjudication of the entitlement to no-fault insurance benefits of defendant, Surgicore of Jersey City LLC. Surgicore moves to dismiss part of American Transit's claim for benefits under CPLR 3211 (a) (2), arguing that this court lacks subject-matter jurisdiction over that aspect of the claim. The motion is denied.
In July 2017, Surgicore's assignor, Jose Velazquez, was allegedly involved in a motor-vehicle collision. In October 2017, a Surgicore physician performed surgery on Velazquez's right shoulder and right knee, allegedly to treat injuries suffered in the July 2017 collision. In preparation for the surgery, another Surgicore physician administered a nerve block to nerves in Velazquez's right shoulder and arm.
Surgicore sought insurance reimbursement for the nerve block and the surgery. American Transit, concluding that these procedures were not medically necessary, denied reimbursement. Surgicore then brought two no-fault arbitration proceedings (one for the nerve block, one for the surgery) to challenge the denial of its reimbursement claim.
An arbitrator held a hearing at which Surgicore's claims in the two proceedings were considered together. The arbitrator concluded, in very similar decisions issued the same day, that Surgicore failed to support adequately its lack-of-medical necessity defense as to either the nerve block or the surgery. The arbitrator therefore awarded the amounts claimed by Surgicore at the hearing—$517.89 for the nerve block and $25,962.93 for the surgery—plus interest and attorney fees. American Transit sought review of these decisions before a master arbitrator. The master arbitrator, in very similar decisions issued the same day, affirmed the arbitration awards in their entirety.
American Transit then brought this action, seeking a de novo adjudication under Insurance Law 5106 (c) of the award to Surgicore of $517.89 and $25,962.93 for the procedures performed on Velazquez. Surgicore moves to dismiss under CPLR 3211 (a) (2) and (a) (7).
Insurance Law § 5106 (c) provides that the award of a master arbitrator in a no-fault arbitration proceeding “shall be binding ․ provided ․ that where the amount of such master arbitrator's award is five thousand dollars or greater, exclusive of interest and attorney's fees, the insurer or the claimant may institute a court action to adjudicate the dispute de novo.”
Here, as a formal matter, there are two awards issued by the master arbitrator—one, for the pre-operative nerve block, plainly under the $5,000 threshold; and one, for the operation itself, plainly over the $5,000 threshold. Surgicore argues that this court lacks subject-matter jurisdiction over American Transit's de novo challenge to the master arbitrator's award of $517.89 (plus interest and fees) for the nerve block,1 and therefore that this aspect of American Transit's action must be dismissed.2 This court is not persuaded by Surgicore's argument.
To be sure, this court agrees with Surgicore that § 5106 (c)'s reference to a “master arbitrator's award,” singular, must be given effect. A plaintiff may not, therefore, “aggregate[e] various [arbitral] awards in order to meet the statutory minimum” of $5,000.3 (Repwest Ins. Co. v. Advantage Radiology, P.C., Index No. 156431/2012, 2013 WL 5924820, at *1 [Sup Ct, NY County Oct. 29, 2013].) That principle, though, is not sufficient to resolve this case.
It is undisputed that the two claims for reimbursement at issue here arose from treatments performed on one day on one patient-assignor by staff of one medical-provider assignee in connection with one operation. It is also undisputed that after American Transit denied the claims, Surgicore's arbitral challenges to those denials were considered at the same hearing by one arbitrator and decided by that arbitrator on the same day for the same reasons; and that American Transit's requests for review of those decisions were decided on the same day for the same reasons by one master arbitrator.
This court concludes that in these circumstances, the master arbitrator's award of $517.89 for the pre-operation nerve block and of $25,962.93 for the operation itself are properly considered a single, unified “award” for purposes of the de-novo-challenge provision of Insurance Law § 5106 (c). Separating these two monetary awards for § 5106 purposes, merely because Surgicore chose to assert its two claims for reimbursement in separate arbitrations, would exalt form over substance to no purpose. And Surgicore provides no reason why they should be separated—instead simply taking it as given that they are separate.
Surgicore argues that several prior decisions issued by justices of this court demonstrate that Surgicore's claims for reimbursement must be considered separately for purposes of § 5106 (c)'s $5,000 threshold. Those decisions, however, present a materially different factual scenario: they each involve multiple patients, multiple providers, or both.4 Those decisions are thus distinguishable because, unlike here, they do, in substance, involve multiple benefits awards rather than a single, unitary award.
Finally, Surgicore argues that this court should defer to the view expressed via email by a senior attorney at the Department of Financial Services that the language of § 5106 (c) “precludes the stacking or linking of awards in the first instance.” (NYSCEF No. 9 at 2, quoting NYSCEF No. 10, at 1.) Setting aside whether this email, standing alone, warrants deference, the email's conclusion does not resolve the issue presented by this motion. The question posed to the DFS attorney was whether “an insurer is permitted to ‘consolidate’ arbitration awards” to meet the $5,000 statutory threshold. (NYSCEF No. 10 at 2.) Unsurprisingly, the DFS attorney's response was that “stacking or linking of awards” to meet the statutory threshold is not permitted. (Id. at 1.) But that response does not address the key issue on this motion—whether the master arbitrator's decisions here should be deemed to have made separate awards in the first place.
This court concludes that the master arbitrator's decisions, properly understood, constituted a single arbitral award for purposes of the $5,000 threshold of Insurance Law § 5106 (c). The amount of that award, $26,480.52, exceeds the statutory threshold. American Transit's de novo challenge to the award under § 5106 (c) therefore states a cause of action.
Accordingly, it is hereby
ORDERED that Surgicore's motion to dismiss under CPLR 3211 is denied.
1. The $5,000 threshold imposed by Insurance Law § 5106 (c) is phrased in terms of when an insurer or claimant “may institute a court action” seeking de novo adjudication, rather than when Supreme Court or Civil Court may hear a de novo challenge. This threshold is thus perhaps better understood as a limit on the § 5106 cause of action rather than on the scope of the court's subject-matter jurisdiction over § 5106 actions. The Appellate Division, First Department, has not had occasion to address this issue, however; and the Second Department has referenced it only in passing dicta. (See Avenue C. Med., P.C. v. Encompass Ins. of MA, 130 AD3d 764, 764 [2d Dept 2015].) Although this distinction is not necessarily academic—a cause-of-action defense is waivable, for example, whereas a jurisdictional defense is not—it does not affect the resolution of the motion to dismiss in the current case.
2. Surgicore's motion papers are ambiguous as to whether it seeks dismissal only of American Transit's de novo challenge to the $517.89 nerve-block award, or dismissal of the entire action. Since American Transit's de novo challenge to the $25,962.93 surgery award plainly may be maintained in this court, this court construes Surgicore's motion as addressed only to the challenge to the nerve-block award.
3. American Transit argues, citing the Court of Appeals' decision in Matter of Greenberg v Ryder Truck Rental, Inc. (70 NY2d 573 ), that multiple awards can be challenged de novo in the same action as long as they are part of the same dispute between insurer and claimant (and the aggregate amount of those awards is over $5,000). (See NYSCEF No. 18 at 5-6.) But in Matter of Greenberg, the issue was limited to whether a de novo challenge asserted after the award of damages in a single, bifurcated arbitration proceeding also brought up for review the arbitrator's liability determination made at the first stage of the bifurcated proceeding. The Court held that if the $5,000 threshold is satisfied, a de novo challenge encompasses both the arbitral award and the prior, predicate liability determination in the arbitration proceeding. (See 70 NY2d at 576-577.) That holding, though, did not resolve whether a de novo challenge to an award over $5,000 in one arbitral proceeding can also bring up for review awards made in other, related arbitral proceedings—as opposed to determinations made at an earlier stage of the same proceeding.
4. See NYSCEF No. 9 at 3, citing Imperium Ins. Co. v Innovative Chiropractic Servs., P.C. (2014 NY Slip Op 50697[U] [App Term 2014]); Decision & Order, Hereford Ins. Co. v Iconic Wellness Surgical Servs., LLC, Index No. 157166/2018, NYSCEF No. 35 (Jan. 29, 2019). See also NYSCEF No. 22 at 1, citing Decision & Order, American Transit Ins. Co v. Health Plus Surgery Ctr., LLC, Index No. 156988/2019, NYSCEF No. 18 (Feb. 7, 2020). Accord Decision & Order, American Transit Ins. Co. v HealthPlus Surgery Ctr., LLC, Index No. 155561/2019, NYSCEF Nos. 21, 24 (Mar. 2, 2020) (multiple providers); Repwest, 2013 WL 5924820, at *1 (addressing claims for benefits assigned by “nine parties injured in three separate automobile accidents”).
Gerald Lebovits, J.
Response sent, thank you
Docket No: 156859/2019
Decided: November 19, 2020
Court: Supreme Court, New York County, New York.
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