Preview
FILED: NASSAU COUNTY CLERK 11/02/2020 11:42 AM INDEX NO. 607524/2020
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 11/02/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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In the Matter of the Application of
GEICO, Index No.: 607524/20
Petitioner,
-against-
NOTICE OF ENTRY
For a Judgement Staying the Arbitration
Commenced by CHETANABEN PATEL,
Respondent.
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COUNSEL:
PLEASE TAKE NOTICE that annexed is a true copy of an Order duly entered in the
office of the Clerk of the within named Court on November 2, 2020.
Dated: Garden City, New York
November 2, 2020
SCHWARTZAPFEL LAWYERS P.C.
_________________________________
By: John F. Campbell, III, Esq.
Attorneys for Plaintiff
CHETANABEN A. PATEL
600 Old Country RoadSuite 450
Garden City, NY 11530
(516) 342-2200
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FILED:
FILED : NASSAU
NASSAU COUNTY
COUNTY CLERK
CLERK 11/02/2020
11/02/2020 11:42
11:36 AM
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INDEX
INDEX NO.
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607524/2020
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 24
21 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 11/02/2020
11/02/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
PRESENT: HON. JEFFREY S. BROWN, J.S.C.
-------------------------------------------------------------------------X TRIAL/IAS PART 9
In the Matter of the Application of
GEICO, INDEX NO. 607524-20
Petitioner, MOT. SEQ. 01
-against- SUBMIT DATE:10.8.2020
For a Judgement Staying the Arbitration XXX
Commenced by CHETANABEN PATEL,
Respondent.
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The following papers were read on this motion DOCS NUMBERED
Notice of Motion, Petition, Exhibits.................................................. 2
Opposition Papers........................................................................ 16
Reply Papers.............................................................................. 20
Petitioner brings this petition pursuant to CPLR Sections 3102 and 7505 to temporarily
stay arbitration demanded by respondent insured Chetanaben Patel and directing respondent to
provide discovery including medical authorizations, an examination under oath, and to submit to
a medical examination.
The accident giving rise to this matter occurred on April 30, 2019. A demand for
supplemental underinsured motorist arbitration (SUM) was sent to the petitioner on or about
December 24, 2019. Itis undisputed that between January 30, 2020 and February 6, 2020, counsel
for petitioner requested discovery from respondent, through communication with counsel, and
followed up on a number of occasions. To date, no discovery has been exchanged despite
petitioner's attempts to secure the same. The instant petition was filed on July 24, 2020.
In opposition, respondent contends that this matter must be dismissed because the
petitioner failed to move to stay arbitration within 20 days of receiving the notice of intention to
arbitrate.
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arbitrate"
Indeed, CPLR 7503 (c) entitled "notice of intention to states:
A party may serve upon another party a demand for arbitration or a notice of
intention to arbitrate, specifying the agreement pursuant to which arbitration is
sought and the name and address of the party serving the notice, or of an officer or
agent thereof if such party is an association or corporation, and stating that unless
the party served applies to stay the arbitration within twenty days after such service
he shall thereafter be precluded from objecting that a valid agreement was not
made or has not been complied with and from asserting in court the bar of a
limitation of time. Such notice or demand shall be served in the same manner as a
summons or by registered or certified mail, return receipt requested. An application
to stay arbitration must be made by the party served within twenty days after service
upon him of the notice or demand, or he shall be so precluded.
[emphasis added].
As a general matter, "[a]n insurer that failsto seek a stay of arbitration within 20 days after
being served with a [statutorily compliant notice] generally is precluded from thereafter objecting
arbitration."
to the (MetLife Auto & Home v. Zampino, 65 AD3d 1151, 1152 [2d Dept 2009]).
The Appellate Division, Second Department recently held that even where the petition to stay
discovery,"
sought only to "temporarily stay . .. arbitration pending completion of pre-arbitration
the petition failed to comply with the time limitations of CPLR 7503. (State Farm Ins. Co. v. Reid,
184 AD3d 840 [2d Dept 2020] ["This limitation is strictly enforced and a court has no jurisdiction
application"
to entertain an untimely [citations omitted]]). In this case, the petitioner was required
to make the instant application within 20 days of receipt of the respondent's December 24, 2019
demand.1
In response, petitioner argues that itis not seeking to stay arbitration relevant to a denial of
coverage, denial of validity of the SUM claim, or denial of a valid agreement to arbitrate.
Petitioner asserts that the time limit of CPLR 7503(c) does not apply because it isnot "objecting
made."
that a valid agreement was not Petitioner attempts to distinguish Reid on the grounds that
7503(c)."
in that case, State Farm made a motion to stay arbitration "under the pretenses of CPLR
Petitioner, however, disregards the language of the statute precluding an untimely objection that
with."
the agreement "has not been complied (See GEICO v. Glazer, 173 AD3d 499 [1st Dept
2019] ["Respondent's refusal to submit to an independent medical examination or examination
under oath involves a condition precedent to coverage as opposed to an issue of arbitrability."]).
There is no indication that the petition in Reid implicated the issues of coverage or arbitrability.
Nor does the Reid court's alternative ground for affirmance relating to service of the petition
change the result herein.
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The statewide shutdown caused by the COVID-19 public health emergency does not impact
the timelines in this case as the action was already barred when Governor Cuomo declared a state
of emergency on March 13, 2020.
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FILED:
FILED : NASSAU
NASSAU COUNTY
COUNTY CLERK
CLERK 11/02/2020
11/02/2020 11:42
11:36 AM
AMI
INDEX
INDEX NO.
NO. 607524/2020
607524/2020
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 24
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RECEIVED NYSCEF:
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For the foregoing reasons, itis hereby
ORDERED, that the petition is denied.
The foregoing constitutes the decision and order of this court. All applications not
specifically addressed are denied.
Dated: Mineola, NY E N T E R:
October 30, 2020
/s/ Jeffrey S. Brown
Jeffrey S. Brown, J.S.C.
ENTERED
Nov 02 2020
NASSAU COUNTY
COUNTY CLERK'S OFFICE
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FILED: NASSAU COUNTY CLERK 11/02/2020 11:42 AM INDEX NO. 607524/2020
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 11/02/2020
Index No. 607524/20
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
______________________________________________________________________________
In the Matter of the Application of GEICO,
Petitioner,
-against-
For a Judgement Staying the Arbitration
Commenced by CHETANABEN PATEL,
Respondent.
______________________________________________________________________________
NOTICE OF ENTRY
______________________________________________________________________________
SCHWARTZAPFEL LAWYERS P.C.
Attorneys for Plaintiff
600 Old Country Road, Suite 450
Garden City, NY 11530
(516) 342-2200
______________________________________________________________________________
Dated: November 2, 2020
SCHWARTZAPFEL LAWYERS P.C.
Attorneys for Plaintiff
600 Old Country Road, Suite 450
Garden City, NY 11530
5 of 5
Preview
FILED: NASSAU COUNTY CLERK 11/02/2020 11:42 AM INDEX NO. 607524/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 11/02/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------------------------------------------------X In the Matter of the Application of GEICO, Index No.: 607524/20 Petitioner, -against- NOTICE OF ENTRY For a Judgement Staying the Arbitration Commenced by CHETANABEN PATEL, Respondent. -------------------------------------------------------------------X COUNSEL: PLEASE TAKE NOTICE that annexed is a true copy of an Order duly entered in the office of the Clerk of the within named Court on November 2, 2020. Dated: Garden City, New York November 2, 2020 SCHWARTZAPFEL LAWYERS P.C. _________________________________ By: John F. Campbell, III, Esq. Attorneys for Plaintiff CHETANABEN A. PATEL 600 Old Country RoadSuite 450 Garden City, NY 11530 (516) 342-2200 1 of 5 FILED: FILED : NASSAU NASSAU COUNTY COUNTY CLERK CLERK 11/02/2020 11/02/2020 11:42 11:36 AM AM| INDEX INDEX NO. NO. 607524/2020 607524/2020 NYSCEF NYSCEF DOC. DOC. NO. NO. 24 21 RECEIVED RECEIVED NYSCEF: NYSCEF: 11/02/2020 11/02/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. JEFFREY S. BROWN, J.S.C. -------------------------------------------------------------------------X TRIAL/IAS PART 9 In the Matter of the Application of GEICO, INDEX NO. 607524-20 Petitioner, MOT. SEQ. 01 -against- SUBMIT DATE:10.8.2020 For a Judgement Staying the Arbitration XXX Commenced by CHETANABEN PATEL, Respondent. -------------------------------------------------------------------------X The following papers were read on this motion DOCS NUMBERED Notice of Motion, Petition, Exhibits.................................................. 2 Opposition Papers........................................................................ 16 Reply Papers.............................................................................. 20 Petitioner brings this petition pursuant to CPLR Sections 3102 and 7505 to temporarily stay arbitration demanded by respondent insured Chetanaben Patel and directing respondent to provide discovery including medical authorizations, an examination under oath, and to submit to a medical examination. The accident giving rise to this matter occurred on April 30, 2019. A demand for supplemental underinsured motorist arbitration (SUM) was sent to the petitioner on or about December 24, 2019. Itis undisputed that between January 30, 2020 and February 6, 2020, counsel for petitioner requested discovery from respondent, through communication with counsel, and followed up on a number of occasions. To date, no discovery has been exchanged despite petitioner's attempts to secure the same. The instant petition was filed on July 24, 2020. In opposition, respondent contends that this matter must be dismissed because the petitioner failed to move to stay arbitration within 20 days of receiving the notice of intention to arbitrate. 1 1 2 of of 5 3 FILED: FILED : NASSAU NASSAU COUNTY COUNTY CLERK CLERK 11/02/2020 11/02/2020 11:42 11:36 AM AM| INDEX INDEX NO. NO. 607524/2020 607524/2020 NYSCEF NYSCEF DOC. DOC. NO. NO. 24 21 RECEIVED RECEIVED NYSCEF: NYSCEF: 11/02/2020 11/02/2020 arbitrate" Indeed, CPLR 7503 (c) entitled "notice of intention to states: A party may serve upon another party a demand for arbitration or a notice of intention to arbitrate, specifying the agreement pursuant to which arbitration is sought and the name and address of the party serving the notice, or of an officer or agent thereof if such party is an association or corporation, and stating that unless the party served applies to stay the arbitration within twenty days after such service he shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time. Such notice or demand shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. An application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be so precluded. [emphasis added]. As a general matter, "[a]n insurer that failsto seek a stay of arbitration within 20 days after being served with a [statutorily compliant notice] generally is precluded from thereafter objecting arbitration." to the (MetLife Auto & Home v. Zampino, 65 AD3d 1151, 1152 [2d Dept 2009]). The Appellate Division, Second Department recently held that even where the petition to stay discovery," sought only to "temporarily stay . .. arbitration pending completion of pre-arbitration the petition failed to comply with the time limitations of CPLR 7503. (State Farm Ins. Co. v. Reid, 184 AD3d 840 [2d Dept 2020] ["This limitation is strictly enforced and a court has no jurisdiction application" to entertain an untimely [citations omitted]]). In this case, the petitioner was required to make the instant application within 20 days of receipt of the respondent's December 24, 2019 demand.1 In response, petitioner argues that itis not seeking to stay arbitration relevant to a denial of coverage, denial of validity of the SUM claim, or denial of a valid agreement to arbitrate. Petitioner asserts that the time limit of CPLR 7503(c) does not apply because it isnot "objecting made." that a valid agreement was not Petitioner attempts to distinguish Reid on the grounds that 7503(c)." in that case, State Farm made a motion to stay arbitration "under the pretenses of CPLR Petitioner, however, disregards the language of the statute precluding an untimely objection that with." the agreement "has not been complied (See GEICO v. Glazer, 173 AD3d 499 [1st Dept 2019] ["Respondent's refusal to submit to an independent medical examination or examination under oath involves a condition precedent to coverage as opposed to an issue of arbitrability."]). There is no indication that the petition in Reid implicated the issues of coverage or arbitrability. Nor does the Reid court's alternative ground for affirmance relating to service of the petition change the result herein. 11 The statewide shutdown caused by the COVID-19 public health emergency does not impact the timelines in this case as the action was already barred when Governor Cuomo declared a state of emergency on March 13, 2020. 2 2 3 of of 5 3 FILED: FILED : NASSAU NASSAU COUNTY COUNTY CLERK CLERK 11/02/2020 11/02/2020 11:42 11:36 AM AMI INDEX INDEX NO. NO. 607524/2020 607524/2020 NYSCEF NYSCEF DOC. DOC. NO. NO. 24 21 RECEIVED RECEIVED NYSCEF: NYSCEF: 11/02/2020 11/02/2020 For the foregoing reasons, itis hereby ORDERED, that the petition is denied. The foregoing constitutes the decision and order of this court. All applications not specifically addressed are denied. Dated: Mineola, NY E N T E R: October 30, 2020 /s/ Jeffrey S. Brown Jeffrey S. Brown, J.S.C. ENTERED Nov 02 2020 NASSAU COUNTY COUNTY CLERK'S OFFICE 3 4 3 of of 5 3 FILED: NASSAU COUNTY CLERK 11/02/2020 11:42 AM INDEX NO. 607524/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 11/02/2020 Index No. 607524/20 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ______________________________________________________________________________ In the Matter of the Application of GEICO, Petitioner, -against- For a Judgement Staying the Arbitration Commenced by CHETANABEN PATEL, Respondent. ______________________________________________________________________________ NOTICE OF ENTRY ______________________________________________________________________________ SCHWARTZAPFEL LAWYERS P.C. Attorneys for Plaintiff 600 Old Country Road, Suite 450 Garden City, NY 11530 (516) 342-2200 ______________________________________________________________________________ Dated: November 2, 2020 SCHWARTZAPFEL LAWYERS P.C. Attorneys for Plaintiff 600 Old Country Road, Suite 450 Garden City, NY 11530 5 of 5