Preview
FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22
p.2
09:31aNO. 48Hon. Bert A. Bunyan (347)
Jan 18 13DOC.
NYSCEF RECEIVED NYSCEF: 03/17/2023
At an IASTerm,Part8oftheSuprerneCourtof
the State of New York, held in and for the
County of Kings. at theCourthouse, at Civic
Center,Brooklyn,NewYork,anthe17thdayof
January,2013.
PR E S E N T:
HON. BERTA.BUNYAN,
Justice.
------ ----- -----_____--------____ _-X
ALLSTATEASO,INC.,HCSHOME CARE, HOME
HEALTH SERVICES OFNEWYoRK INC.,NEW
CARLTONREHAB&NURSING CENTER,EDISON
HOMEHEALTH CARE,ADVANCEDMEDICAL
STAFFING CORP.,NORWICHREHABILITATION AND
NURSING CENTER, CARING COMPANION SERVICES,
INC.,HARRY'sNURSESREGISTRY, INC.,PREFERRED
HOME CARE OFNY,ASSISTCAREHOMEHEALTH
SERVICES,LLC,LACONIANURSINGHOME, INC.,
SUNHARBORACQUISITION,LLC,MRS.MARY'S
PLACEHCS.INC.,BEVERLY'SHoMEHEALTH CARE
INC.,AVALON GARDENSREHABILITATION&HEALTH
C.BAYPARK CENTERNURSING&REHABILITATION,
BAYVIEWNURSTNG&REHABILITATION CENT.ER,
BROOKHAVENREHABILITATION&HEALTH CARE,
CARINGPROFESSIONALS, INC., CARING COMPANION INDEXNO.10608/12
SERVICES, INC.,DIAMONDHILLNURSING AND
REHABILITATION,EASTCHESTERREHABILITATION &
HEALTH CARE,GkACEPLAZANURSING AND
REHABILITATIONC,LITTLENECK CARE CENTER,LLC,
NASSAUEXTENDED CAREFACILITY,NEW SURFSIDE
NURSINGHOME,ELC,PARKAVENUEEXTENDED CARE
FACILITY, PARKVÈW CARE ANDREHABILITATION INC.,
PATHWAYSNURSING&REHABILITATION CENTER.
ROSEWOODREHABILITATION ANDNURSING CENT,
SENTOSA CARE, ILLC, SPRING CREEKREHABILITAHON
&NURSING CA, THEHAMPTONS CENTER FOR
REHABILITATION A,THROGSNECKEXTENDED CARE
FACILITY,TOWNHOUSE CENTER FORREHABILITATION
&NU,WESTLAWRENCE CARE CENTER,LLC,WHrrE
PLAINS CENTER FORNURSING,LLC,WOODMERE
REHABIUTATION & HEALTH CARE CE,EDISONHOME
HEALTH CARE,NEW CARLTONREHAB&NURSING
CENTER,HCSHOME CARE,
Plaintiffs,
-against-
ORISKA INSURANCE COMPANY,
Defendant.
---- _ ___--- _____.. ____Ç
I
.. .- . . ..
FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22
p.3
09:31aNO. 48Hon. Bert A. Bunyan (347)
Jan 18 13DOC.
NYSCEF RECEIVED NYSCEF: 03/17/2023
The followina papers munbered 1 to 37 read herein:
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and I-2, 3-4, 5-6, 7-8, 9-10
Affidavits (Affirmations) Annexed 11-12, 13-14, 15-16
17, 18, 19-20,
Opposing Affidavits (Affirrnations) 21-22, 23, 24. 25-27
Reply Affidavits (Affirmations) . 28-30, 31-32, 33, 34-35.36..37
Affidavit (Affirmation)
Other Papers
Upon the foregoing papers, the parties in this action have brought various motions
Workers'
arising out of their Compensation insurance premium dispute. Plaintiffs are
Allstate ASO, Inc., (Allstate), an entity that represents various entities that provide
Workers'
healthcare services in their obtaining and managing their Compensation insurance
coverage, and the individual healthcare entitiesrepresented by Allstate. Defendantis Oriska
Workers'
Insurance Company (Oriska), an insurer with which Allstate arranged to provide
Compensation pelicies to the various healthcare providers.
plaintiffs'
At issue here are motions for: (1) an Order, pursuant to CPLR 6301,
Workers'
preliminarily enjoining Oriska from cancelling the Compensation insurance
policies issued to the plaintiff healthcare service providers (Order to Show Cause dated
May 21, 2012); (2) an Order, (a) pursuant to CPLR 6301, enjoining the law firm of Kernan
& Kernan, P.C., Oriska's Counsel, from contacting or communicating with any of the
plaintiffs, and (b), directing defendant to furnish all of the loss runs for the years 2009, 2010,
and 2011 in an expedited manner (Order to Show Cause dated August 21, 2012); (3) an
Order, (a) pursuant to CPLR 602, removing 12 actions commenced by defendant against
some of the plaintiff healthcare providers from Supreme Court, Oneida County, to Supreme
Court, Kings County and consolidating them with the instant action, (b) Oriska from
staying
2
FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22
p.4
09:32aNO. 48 Hon. Bert A. Bunyan (347)
Jan 18 13
NYSCEF DOC. RECEIVED NYSCEF: 03/17/2023
prosecuting any action to recover premiums from plaintiffs, and (c) directing Oriska and
plaintiffs to deposit with the New York City Department of Finance the sums of
$782,535.27 and S178,840.37, respectively, pending further order of the court (Order to
Show Cause dated August 28, 2012 and Order to Show Cause dated September 21, 2012);
(4) an Order, pursuant to CPLR 305 and 2001, amending the caption of the action to change
the name ofplaintiff Allstate ASO, Inc., to Allstate Administrators LLC d/b/a Allstate ASO
(notice of cross-motion dated October 19, 2012); (5) an Order, pursuant to CPLR 5004 and
Judiciary Law § 756 holding Oriska in contempt for failing to comply with the terms of the
May 21, 2012 temporary restraining order (notice of motion dated November 16, 2012).
Oriska cross-moves for an order: (a) dissolving the temporary restraining order
preventing Oriska from terminating its insurance issued to plaintiffs and dissolving the
temporary restraining order staying Oriska from prosecuting the actions to recover
insurance premiums commenced in Supreme Court, Oneida County and, in the alternative
Workers'
(b) if Oriska continues to be restrained from canceling Compensation coverage,
requiring plaintiffs to post a bond or undertaking sufficient to secure the payment of
premiums as required by the policies in force issued by Oriska. By way of a separate order
to show cause, Oriska moves for an order placing venue of any consolidated action in
Supreme Court, Oneida County, in the event that this court consolidates this action with the
non-payment actions commenced by Oriska in Supreme Court, Oneida County against some
of the plaintiffs.
Plaintiffs'
motion for a preliminary injunction is denied. However, the effective date
of this order is stayed for 15 days from this date in order to allow plaintiffs an opportunity
to make the overdue premium payments.
3
FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22
p.5
Bert A. Bunyan (347)
NYSCEF 09:32a NO. 48Hon.
Jan 18 13DOC. RECEIVED NYSCEF: 03/17/2023
Plaintiffs'
motion to bar Oriska's counsel from directly contacting the plaintiffs is
granted to the extent that Oriska's counsel is barred from directly communicating with
plaintiffs'
plaintiffs (other than through counsel) with respect to any of the pending actions
involving the parties. However, this bar does not extend to any notices or statements that are
required to be sent to plaintiffs by the terms of the insurance policies at issue or that are
required by any relevant law or regulation. Further, the bar on direct contact does not extend
to the service of any initiatory papers required to be served directly on plaintiffs with respect
to any court or administrative proceeding. The portion of the motion requesting that Oriska
"loss-runs"
provide certain is denied as the request has been rendered moot by Oriska's
provision of the relevant loss runs.
plaintiffs'
The portion of motion requesting consolidation of this action with the
non-payment aceions commencedin Supreme Court, Oneida County is denied, but with leave
to renew upon a showing that the premium audits or other issues with respect to the
calculation of p emiums at issue in this action bear on the payments due in the individual
non-payment actions in Oneida County.
Plaintiffs'
motion to amend the caption to correct the name of Allstate is granted and
the amended caption shall appear as shown in the sample caption shown at the end of this
Plaintiffs'
decision. remaining motions or portions of motions are denied and any
temporary restraining orders or other provisional relief contained in the various orders to
show cause that have not been expressly addressed in this order are discontinued.
The portion of Oriska's cross-motion to vacate the May 21, 2012 temporary
restraining orde barring cancellation of the policies is granted. but, as noted above, the
effective date of this portion of the order is stayed for 15 days from this date in order to
allow plaintiffs to make the Oriskas' cross-
required premium payments. The portion of
4
FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22
p.6
A. Bunyan (347)
NYSCEF
Jan 18 13DOC. Hon.
09:33a NO. 48 Bert RECEIVED NYSCEF: 03/17/2023
motion to vacate the restraining order Oriska from prosecuting the
temporary staying
actions to recover insurance premiums commenced in Supreme Court, Oneida County is
granted and the stay of the actions in Oneida County is lifted. Oriska's motion to place
venue ofthe consolidated actions is denied as academic in light of this court's denial of the
motion to consolidate.
BACKGROUND
As noted above, Allstate is an entity that represents various healthcare providers in
Workers'
their obtaining and managing Compensation insurance coverage. The remaining
plaintiffs are the various healthcare providers who Allstate represents with respect to
Workers'
obtaining and managing their Compensation insurance. Oriska is an insurer with
Workers'
which Allstate arranged to provide Compensation policies to the various
healthcare providers.
Workers'
It is undisputed that Oriska first provided Compensation coverage to most
of the plaintiffs by way of policies whose coverage conunenced in June 2010. These
policies were renewed at the end of June 2011 for an additional year. In an affidavit
submitted in support of the motion for a preliminary injunction, Jon Halpern, an Allstate's
plaintiffs'
Vice-President, asserts that an audit of the payroll and claims history by Oriska led
to a dispute relating to the premiums plaintiffs owed. In an affidavit submitted in support of
Oriska's motion to vacate the temporary restraining order, Kevin Misiaszek, an Oriska
Vice-President, asserts that Oriska entered into discussions with Alistate regarding the
plaintiffs'
premiums in February 2012, at or around when stopped premium
making
payments. These discussions did notresolve the dispute, and Oriska thereafter sent Allstate
plaintiffs'
notices dated May 9, 2012 stating that that it was policies based on
cancelling
plaintiffs non-payment of the premiums.
. 5
FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22
p.7
Hon.
09:33a NO. 48 Bert A. Bunyan (347)
Jan 18 13DOC.
NYSCEF RECEIVED NYSCEF: 03/17/2023
Plaintiffs commenced this action on May 21, 2012, by filing a summons with notice
court.1
with the At the same time, plaintiffs requested a temporary restraining order and
plaintiffs' Workers'
preliminary injunction barring Oriska from cancelling Compensation
insurance policies on the ground that the notices failed to comply with the requirements of
Workers'
Compensation Law § 54(5) because the notices were only sent to Allstate, not the
individual insureds. On May 21, 2012, the court (Ash, J.) signed the order to show cause
containing the temporary restraining order barring Oriska from cancelling the policies
pending a hearing on the matter. No immediate hearing was held, however, as the parties
emered into negotiations to resolve their dispute relating to the premiums. During these
negotiations, the policies issued to most of the plaintiffs automatically renewed with a term
of July 1, 2012 through June 20, 2013.
The settlement negotiations, however, apparently fell apart at sorne point in late July
or early August in early August Oriska began premium non-
2012, and, 2012, commencing
payment actions against some ofthe plaintiffs in Supreme Court, Oneida County. The orders
to show cause (dated August 28, 2012 and September 21, 2012, respectively) that plaintiffs
obtained when they moved to consolidate these Oneida County actions with this action each
contain a provision staying Oriska from prosecuting these actions in Oneida county,
Plaintiffs'
motion for a preliminary injunction and the parties other motions now before the
court were ultimately submitted for determination on December 19, 2012.
PRELIMINARY INJUNCTION
IIn their complaint, filed with the court in August 2012, plaintiffs alleged two causes of
action, the first premised on defendants alleged failure to comply with the notice provisions of
Workers'
Compensation Law § 54(5) in attempting to cancel the policies, and the second based
on various credits in excess of $1,800,000 Oriska owed plaintiffs,
presumably hased on the
policy audits. .
6
FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM INDEX NO. 908063-22
(347) 401-9111 p.8
NYSCEF Hon.
09:33a NO. 48
Jan 18 13DOC. Bert A. Bunyan RECEIVED NYSCEF: 03/17/2023
.
The court may grant a preliminary injunction when the moving party demonstrates:
(1) likelihood of ultimate success on the rnerits; (2) irreparable injury if the court withholds
provisional relief; and (3) a balance of the equities tipping in the moving parties favor (Doe
v Axelrod, 73 NY2d 748, 750 [1998]). Preliminary injunctions are a drastic remedy and
therefore as a g^neral rule, the court issues them cautiously (Un formed Firefighters Assn.
of Greater New York v City of New York, 79 NY2d 236, 241 (1992]). In evaluating these
factors, this court finds that plaintiffs have failed to demonstrate their entitlement to a
preliminary injunction.
plaintiffs'
There are two primary claims for relief raised by papers that must be
addressed in cbnsidering plaintiffs likelihood of success on the merits. The first is
plaintiffs' Workers'
assertion that Oriska failed to comply with the notice provisions of
Compensation Law § 54(5) when it only mailed the May 9, 2012 cancellation notices to
Allstate and did not send them directly to any of the other plaintiffs. Plaintiffs, however,
obtained full relief from Oriska relating to this claim when Oriska reinstated the policies
Workers'
upon the issuance of the temporary restraining order on May 21, 2012. Nothing in
Compensation Law § 54(5) would preclude Oriska from cancelling the policies after issuing
notices to plaintiffs that comply with section 54(5). Indeed, the only demand for relief made
in the complaint with respect to the alleged improper notices was "a judgment and order of
Workers'
the Court declaring and enjoining Oriska from cancelling the Compensation
Insurance coverage naming the Plaintiffs as the insured parties without properly notifying
statute."
Plaintiffs ten days in advance of such cancellation pursuant to the
Plaintiffs other claim is that they are due credits in excess ofSI,800,000 from Oriska
7
FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22
p.9
09:34aNO. 48Hon. Bert A. Bunyan (347)
Jan 18 13
NYSCEF DOC. RECEIVED NYSCEF: 03/17/2023
ofplaintiffs' claims'
based on audits payroll and histories. Plaintiffs, however, do not break
down the credits by plaintiff or even by policy year, and nowhere detail how they arrived at
the figure in excess of $1,800,000. While plaintiffs have submitted an affidavit from
Sharonnie Peny, an auditor, Perry's affidavit was only submitted for the first time in reply.
Even if Perry's affidavit should be considered, Perry only addresses the alleged
overpayments by three of the plaintiffs for a total amount of $349,181.63 with respect to
the July 2010 to.July 2011 policy year. Perry does not address the appropriateness of the
premiums for the remainder of the plaintiffs or the appropriateness of the premiums for the
July 2011 to July 2012 and July 2012 to July 2013 policy years. Her affidavit further
provides no grounds for inferring that an audit of the policies of the other plaintiffs would
demonstrate similar overpayments by the other plaintiffs. While plaintiffs also complain
that the
Preview
FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22 p.2 09:31aNO. 48Hon. Bert A. Bunyan (347) Jan 18 13DOC. NYSCEF RECEIVED NYSCEF: 03/17/2023 At an IASTerm,Part8oftheSuprerneCourtof the State of New York, held in and for the County of Kings. at theCourthouse, at Civic Center,Brooklyn,NewYork,anthe17thdayof January,2013. PR E S E N T: HON. BERTA.BUNYAN, Justice. ------ ----- -----_____--------____ _-X ALLSTATEASO,INC.,HCSHOME CARE, HOME HEALTH SERVICES OFNEWYoRK INC.,NEW CARLTONREHAB&NURSING CENTER,EDISON HOMEHEALTH CARE,ADVANCEDMEDICAL STAFFING CORP.,NORWICHREHABILITATION AND NURSING CENTER, CARING COMPANION SERVICES, INC.,HARRY'sNURSESREGISTRY, INC.,PREFERRED HOME CARE OFNY,ASSISTCAREHOMEHEALTH SERVICES,LLC,LACONIANURSINGHOME, INC., SUNHARBORACQUISITION,LLC,MRS.MARY'S PLACEHCS.INC.,BEVERLY'SHoMEHEALTH CARE INC.,AVALON GARDENSREHABILITATION&HEALTH C.BAYPARK CENTERNURSING&REHABILITATION, BAYVIEWNURSTNG&REHABILITATION CENT.ER, BROOKHAVENREHABILITATION&HEALTH CARE, CARINGPROFESSIONALS, INC., CARING COMPANION INDEXNO.10608/12 SERVICES, INC.,DIAMONDHILLNURSING AND REHABILITATION,EASTCHESTERREHABILITATION & HEALTH CARE,GkACEPLAZANURSING AND REHABILITATIONC,LITTLENECK CARE CENTER,LLC, NASSAUEXTENDED CAREFACILITY,NEW SURFSIDE NURSINGHOME,ELC,PARKAVENUEEXTENDED CARE FACILITY, PARKVÈW CARE ANDREHABILITATION INC., PATHWAYSNURSING&REHABILITATION CENTER. ROSEWOODREHABILITATION ANDNURSING CENT, SENTOSA CARE, ILLC, SPRING CREEKREHABILITAHON &NURSING CA, THEHAMPTONS CENTER FOR REHABILITATION A,THROGSNECKEXTENDED CARE FACILITY,TOWNHOUSE CENTER FORREHABILITATION &NU,WESTLAWRENCE CARE CENTER,LLC,WHrrE PLAINS CENTER FORNURSING,LLC,WOODMERE REHABIUTATION & HEALTH CARE CE,EDISONHOME HEALTH CARE,NEW CARLTONREHAB&NURSING CENTER,HCSHOME CARE, Plaintiffs, -against- ORISKA INSURANCE COMPANY, Defendant. ---- _ ___--- _____.. ____Ç I .. .- . . .. FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22 p.3 09:31aNO. 48Hon. Bert A. Bunyan (347) Jan 18 13DOC. NYSCEF RECEIVED NYSCEF: 03/17/2023 The followina papers munbered 1 to 37 read herein: Papers Numbered Notice of Motion/Order to Show Cause/ Petition/Cross Motion and I-2, 3-4, 5-6, 7-8, 9-10 Affidavits (Affirmations) Annexed 11-12, 13-14, 15-16 17, 18, 19-20, Opposing Affidavits (Affirrnations) 21-22, 23, 24. 25-27 Reply Affidavits (Affirmations) . 28-30, 31-32, 33, 34-35.36..37 Affidavit (Affirmation) Other Papers Upon the foregoing papers, the parties in this action have brought various motions Workers' arising out of their Compensation insurance premium dispute. Plaintiffs are Allstate ASO, Inc., (Allstate), an entity that represents various entities that provide Workers' healthcare services in their obtaining and managing their Compensation insurance coverage, and the individual healthcare entitiesrepresented by Allstate. Defendantis Oriska Workers' Insurance Company (Oriska), an insurer with which Allstate arranged to provide Compensation pelicies to the various healthcare providers. plaintiffs' At issue here are motions for: (1) an Order, pursuant to CPLR 6301, Workers' preliminarily enjoining Oriska from cancelling the Compensation insurance policies issued to the plaintiff healthcare service providers (Order to Show Cause dated May 21, 2012); (2) an Order, (a) pursuant to CPLR 6301, enjoining the law firm of Kernan & Kernan, P.C., Oriska's Counsel, from contacting or communicating with any of the plaintiffs, and (b), directing defendant to furnish all of the loss runs for the years 2009, 2010, and 2011 in an expedited manner (Order to Show Cause dated August 21, 2012); (3) an Order, (a) pursuant to CPLR 602, removing 12 actions commenced by defendant against some of the plaintiff healthcare providers from Supreme Court, Oneida County, to Supreme Court, Kings County and consolidating them with the instant action, (b) Oriska from staying 2 FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22 p.4 09:32aNO. 48 Hon. Bert A. Bunyan (347) Jan 18 13 NYSCEF DOC. RECEIVED NYSCEF: 03/17/2023 prosecuting any action to recover premiums from plaintiffs, and (c) directing Oriska and plaintiffs to deposit with the New York City Department of Finance the sums of $782,535.27 and S178,840.37, respectively, pending further order of the court (Order to Show Cause dated August 28, 2012 and Order to Show Cause dated September 21, 2012); (4) an Order, pursuant to CPLR 305 and 2001, amending the caption of the action to change the name ofplaintiff Allstate ASO, Inc., to Allstate Administrators LLC d/b/a Allstate ASO (notice of cross-motion dated October 19, 2012); (5) an Order, pursuant to CPLR 5004 and Judiciary Law § 756 holding Oriska in contempt for failing to comply with the terms of the May 21, 2012 temporary restraining order (notice of motion dated November 16, 2012). Oriska cross-moves for an order: (a) dissolving the temporary restraining order preventing Oriska from terminating its insurance issued to plaintiffs and dissolving the temporary restraining order staying Oriska from prosecuting the actions to recover insurance premiums commenced in Supreme Court, Oneida County and, in the alternative Workers' (b) if Oriska continues to be restrained from canceling Compensation coverage, requiring plaintiffs to post a bond or undertaking sufficient to secure the payment of premiums as required by the policies in force issued by Oriska. By way of a separate order to show cause, Oriska moves for an order placing venue of any consolidated action in Supreme Court, Oneida County, in the event that this court consolidates this action with the non-payment actions commenced by Oriska in Supreme Court, Oneida County against some of the plaintiffs. Plaintiffs' motion for a preliminary injunction is denied. However, the effective date of this order is stayed for 15 days from this date in order to allow plaintiffs an opportunity to make the overdue premium payments. 3 FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22 p.5 Bert A. Bunyan (347) NYSCEF 09:32a NO. 48Hon. Jan 18 13DOC. RECEIVED NYSCEF: 03/17/2023 Plaintiffs' motion to bar Oriska's counsel from directly contacting the plaintiffs is granted to the extent that Oriska's counsel is barred from directly communicating with plaintiffs' plaintiffs (other than through counsel) with respect to any of the pending actions involving the parties. However, this bar does not extend to any notices or statements that are required to be sent to plaintiffs by the terms of the insurance policies at issue or that are required by any relevant law or regulation. Further, the bar on direct contact does not extend to the service of any initiatory papers required to be served directly on plaintiffs with respect to any court or administrative proceeding. The portion of the motion requesting that Oriska "loss-runs" provide certain is denied as the request has been rendered moot by Oriska's provision of the relevant loss runs. plaintiffs' The portion of motion requesting consolidation of this action with the non-payment aceions commencedin Supreme Court, Oneida County is denied, but with leave to renew upon a showing that the premium audits or other issues with respect to the calculation of p emiums at issue in this action bear on the payments due in the individual non-payment actions in Oneida County. Plaintiffs' motion to amend the caption to correct the name of Allstate is granted and the amended caption shall appear as shown in the sample caption shown at the end of this Plaintiffs' decision. remaining motions or portions of motions are denied and any temporary restraining orders or other provisional relief contained in the various orders to show cause that have not been expressly addressed in this order are discontinued. The portion of Oriska's cross-motion to vacate the May 21, 2012 temporary restraining orde barring cancellation of the policies is granted. but, as noted above, the effective date of this portion of the order is stayed for 15 days from this date in order to allow plaintiffs to make the Oriskas' cross- required premium payments. The portion of 4 FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22 p.6 A. Bunyan (347) NYSCEF Jan 18 13DOC. Hon. 09:33a NO. 48 Bert RECEIVED NYSCEF: 03/17/2023 motion to vacate the restraining order Oriska from prosecuting the temporary staying actions to recover insurance premiums commenced in Supreme Court, Oneida County is granted and the stay of the actions in Oneida County is lifted. Oriska's motion to place venue ofthe consolidated actions is denied as academic in light of this court's denial of the motion to consolidate. BACKGROUND As noted above, Allstate is an entity that represents various healthcare providers in Workers' their obtaining and managing Compensation insurance coverage. The remaining plaintiffs are the various healthcare providers who Allstate represents with respect to Workers' obtaining and managing their Compensation insurance. Oriska is an insurer with Workers' which Allstate arranged to provide Compensation policies to the various healthcare providers. Workers' It is undisputed that Oriska first provided Compensation coverage to most of the plaintiffs by way of policies whose coverage conunenced in June 2010. These policies were renewed at the end of June 2011 for an additional year. In an affidavit submitted in support of the motion for a preliminary injunction, Jon Halpern, an Allstate's plaintiffs' Vice-President, asserts that an audit of the payroll and claims history by Oriska led to a dispute relating to the premiums plaintiffs owed. In an affidavit submitted in support of Oriska's motion to vacate the temporary restraining order, Kevin Misiaszek, an Oriska Vice-President, asserts that Oriska entered into discussions with Alistate regarding the plaintiffs' premiums in February 2012, at or around when stopped premium making payments. These discussions did notresolve the dispute, and Oriska thereafter sent Allstate plaintiffs' notices dated May 9, 2012 stating that that it was policies based on cancelling plaintiffs non-payment of the premiums. . 5 FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22 p.7 Hon. 09:33a NO. 48 Bert A. Bunyan (347) Jan 18 13DOC. NYSCEF RECEIVED NYSCEF: 03/17/2023 Plaintiffs commenced this action on May 21, 2012, by filing a summons with notice court.1 with the At the same time, plaintiffs requested a temporary restraining order and plaintiffs' Workers' preliminary injunction barring Oriska from cancelling Compensation insurance policies on the ground that the notices failed to comply with the requirements of Workers' Compensation Law § 54(5) because the notices were only sent to Allstate, not the individual insureds. On May 21, 2012, the court (Ash, J.) signed the order to show cause containing the temporary restraining order barring Oriska from cancelling the policies pending a hearing on the matter. No immediate hearing was held, however, as the parties emered into negotiations to resolve their dispute relating to the premiums. During these negotiations, the policies issued to most of the plaintiffs automatically renewed with a term of July 1, 2012 through June 20, 2013. The settlement negotiations, however, apparently fell apart at sorne point in late July or early August in early August Oriska began premium non- 2012, and, 2012, commencing payment actions against some ofthe plaintiffs in Supreme Court, Oneida County. The orders to show cause (dated August 28, 2012 and September 21, 2012, respectively) that plaintiffs obtained when they moved to consolidate these Oneida County actions with this action each contain a provision staying Oriska from prosecuting these actions in Oneida county, Plaintiffs' motion for a preliminary injunction and the parties other motions now before the court were ultimately submitted for determination on December 19, 2012. PRELIMINARY INJUNCTION IIn their complaint, filed with the court in August 2012, plaintiffs alleged two causes of action, the first premised on defendants alleged failure to comply with the notice provisions of Workers' Compensation Law § 54(5) in attempting to cancel the policies, and the second based on various credits in excess of $1,800,000 Oriska owed plaintiffs, presumably hased on the policy audits. . 6 FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM INDEX NO. 908063-22 (347) 401-9111 p.8 NYSCEF Hon. 09:33a NO. 48 Jan 18 13DOC. Bert A. Bunyan RECEIVED NYSCEF: 03/17/2023 . The court may grant a preliminary injunction when the moving party demonstrates: (1) likelihood of ultimate success on the rnerits; (2) irreparable injury if the court withholds provisional relief; and (3) a balance of the equities tipping in the moving parties favor (Doe v Axelrod, 73 NY2d 748, 750 [1998]). Preliminary injunctions are a drastic remedy and therefore as a g^neral rule, the court issues them cautiously (Un formed Firefighters Assn. of Greater New York v City of New York, 79 NY2d 236, 241 (1992]). In evaluating these factors, this court finds that plaintiffs have failed to demonstrate their entitlement to a preliminary injunction. plaintiffs' There are two primary claims for relief raised by papers that must be addressed in cbnsidering plaintiffs likelihood of success on the merits. The first is plaintiffs' Workers' assertion that Oriska failed to comply with the notice provisions of Compensation Law § 54(5) when it only mailed the May 9, 2012 cancellation notices to Allstate and did not send them directly to any of the other plaintiffs. Plaintiffs, however, obtained full relief from Oriska relating to this claim when Oriska reinstated the policies Workers' upon the issuance of the temporary restraining order on May 21, 2012. Nothing in Compensation Law § 54(5) would preclude Oriska from cancelling the policies after issuing notices to plaintiffs that comply with section 54(5). Indeed, the only demand for relief made in the complaint with respect to the alleged improper notices was "a judgment and order of Workers' the Court declaring and enjoining Oriska from cancelling the Compensation Insurance coverage naming the Plaintiffs as the insured parties without properly notifying statute." Plaintiffs ten days in advance of such cancellation pursuant to the Plaintiffs other claim is that they are due credits in excess ofSI,800,000 from Oriska 7 FILED: ALBANY COUNTY CLERK 03/17/2023 10:26 AM401-9111 INDEX NO. 908063-22 p.9 09:34aNO. 48Hon. Bert A. Bunyan (347) Jan 18 13 NYSCEF DOC. RECEIVED NYSCEF: 03/17/2023 ofplaintiffs' claims' based on audits payroll and histories. Plaintiffs, however, do not break down the credits by plaintiff or even by policy year, and nowhere detail how they arrived at the figure in excess of $1,800,000. While plaintiffs have submitted an affidavit from Sharonnie Peny, an auditor, Perry's affidavit was only submitted for the first time in reply. Even if Perry's affidavit should be considered, Perry only addresses the alleged overpayments by three of the plaintiffs for a total amount of $349,181.63 with respect to the July 2010 to.July 2011 policy year. Perry does not address the appropriateness of the premiums for the remainder of the plaintiffs or the appropriateness of the premiums for the July 2011 to July 2012 and July 2012 to July 2013 policy years. Her affidavit further provides no grounds for inferring that an audit of the policies of the other plaintiffs would demonstrate similar overpayments by the other plaintiffs. While plaintiffs also complain that the