Preview
FILED: WAYNE COUNTY CLERK 12/17/2019 02:30 PM INDEX NO. CV085268
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/17/2019
STATE OF NEW YORK
SUPREME COURT : COUNTY OF WAYNE
___________________________________ -------------------X
In the Matter of the Application of Index No.:
MAPFRE INSURANCE COMPANY OF NEW YORK
-vs- PETITION TO
Petitioner,
STAY ARBITRATION
CONRAD E.J. RODVIK
Respondent.
----- ¬---------------- - --¬-------------------X
To: The Supreme Court, State of New York, County of Wayne
Petitioner, MAPFRE INSURANCE COMPANY OF NEW YORK, by its attorneys,
McCABE, COLLINS, McGEOUGH, FOWLER, LEVINE & NOGAN, LLP, alleges upon
information and belief as follows:
1. Petitioner is a foreign corporation and an insurance company licensed to do
business in the State of New York.
2. Upon information and belief, Respondent resides at 5207 Steelpoint Road, Marion
New York, Wayne County (although the Police Accident Report, a copy of which is annexed
hereto at Exhibit "A", notes an address of 85 Barry Street, Brockport, New York).
"B"
3. Annexed hereto as Exhibit is a copy of Respondent's Demand for
Arbitration dated December 5, 2019.
4. Petitioner received the Demand for Arbitration filed by the attorneys for
Respondent on December 2019. this Petition is as it is made within a 20-
9, Accordingly, timely
day time period set forth in CPLR §7503(b), from receipt of the Demand for Arbitration. Matter
(13'
of Allstate Insurance Company and Metaver, 137 A.D.2d 454, 525 N.Y.S.2d 32 Dept. 1988).
5. The Demand for Arbitration seeks arbitration pursuant to an insurance policy
issued by Petitioner to Respondent, providing for Supplementary Uninsured/Underinsured
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NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/17/2019
Motorist (SUM) Benefits in the amount of $250,000 per person and $500,000 per accident under
policy number NYPA001140321. A copy of the Policy is attached hereto as Exhibit "C".
"D"
6. Annexed as Exhibit is a copy of the Supplementary Uninsured/Underinsured
Motorists Endorsement - New York.
7. The Demand for Arbitration indicates that the Respondent, pursuant to the
aforementioned endorsement contained in the policy, seeks arbitration on the grounds that on
November 25, 2017 Respondent was involved in an accident with an allegedly underinsured
motor vehicle in Rochester, New York and sustained personal injuries as a result thereof.
8. Integon National Insurance Company, on behalf of the underlying tortfeasor, paid
its'
$10,000 to Respondent as part of a global settlement of $50,000, policy limits, with no party
receiving more that $25,000, which is a condition precedent under the SUM Endorsement for
Respondent to pursue an underinsured motorist claim.
PRE-ARBITRATION DISCOVERY
9. As part of the terms and conditions of the insurance policy issued by Petitioner,
under which Respondent seeks underinsured motorist benefits, the Respondent must submit to an
examination under oath as well as independent medical examinations and furnish all
authorizations to enable Petitioner to obtain all hospital and medical records and reports, and
other pertinent records; all of which have not yet been done. Exhibit "D".
10. By correspondence dated December 17, 2019, a copy of which is annexed hereto
as Exhibit "E", Petitioner, by counsel, requested Pre-Arbitration discovery from Respondent.
11. A Notice of Examination Under Oath, also dated December 17, 2019, a copy of
which is annexed hereto as Exhibit "F", was served on Respondent's counsel scheduling an
Examination Under Oath of the Respondent for January 6, 2020.
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12. Respondent is required to comply with the discovery requests sought in this
matter as a condition precedent under the insurance policy issued by Petitioner under which
Respondent seeks benefits prior to proceeding to arbitration for the underinsured motorist claim.
13. In the event this matter proceeds to arbitration, Petitioner wishes to conduct
physical examinations of the Respondent as well as conducting an Examination Under Oath and
obtain authorizations for all hospital and medical records and all pertinent reports and records,
copies of all diagnostic tests and/or films concerning Respondent's claims, but is unable to
compel same without the court's intervention. Petitioner will be unable to disprove
Respondent's serious medical claims without examinations and medical records. Petitioner will
be at a serious disadvantage if any arbitration results in this claim and will be severely prejudiced
therein, without this essential discovery.
14. CPLR §3102(c) permits the Court to order discovery "in aid of arbitration". It is
submitted that since Petitioner has no means to compel and examination under oath, and compel
Respondents to submit to independent medical examinations and furnish authorizations for all
circumstances"
medical records and pertinent reports, this constitutes, "extraordinary as required
in the case law, as this sought after discovery is necessary to protect Petitioner's rights.
International Components Corp. v. Klaiber, 54 A.D.2d 550, 387 N.Y.S.2d 253.
15. The Courts have held that the Petitioner was entitled to have physical
examinations in a situation similar to the case at bar. State Farm Automobile Insurance
Company v. Wernick, 90 A.D.2d 519, 455 N.Y.S.2d 30 (1982); Allstate Insurance Company v.
Baez, 269 A.D.2d 392, 702 N.Y.S.2d 878 (2000).
16. The Second Department held that in a Petition to Stay Arbitration, the lower
Court did not improvidently exercise its discretion in ordering a deposition and physical
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examination in aid of arbitration. State Farm Insurance Company v. McManus, 249 A.D.2d 311,
(2nd
670 N.Y.S.2d 599 Dept. 1998); State Farm Mutual Automobile Insurance Company v.
(2nd
Bastista, 11 A.D.3rd 471, 782 N.Y.S.2d 372 Dept. 2004); Allstate Insurance Company v.
(2nd
Mova, 288 A.D.2d 309, 732 N.Y.S.2d 890 Dept. 2001).
17. The Third Department, in an action concerning a Petition to Permanently Stay
Arbitration of an underinsured motorist claim, held that a temporary stay of arbitration was
warranted entitling the Petitioner to conduct an Examination Under Oath and physical
examination of the claimant. Farm Family Casualty Company v. Trapami, 301 A.D.2d 740, 753
N.Y.S.2d 198 (3rd Dept., 2003).
18. The case presently before this court is similar to the cases cited above, and
therefore, the Petitioner will be severely prejudiced if Petitioner cannot conduct pre-arbitration
discovery, whereas the Respondent will suffer no prejudice if compelled to submit to an
Examination Under Oath and physical examinations.
WHEREFORE, Petitioner requests that this Court issue an Order (1) Granting a
temporary Stay of Arbitration of the Respondent, CONRAD E.J. RODVIK, from proceeding to
Arbitration at the American Arbitration Association against the Petitioner, MAPFRE Insurance
of New pursuant to CPLR and the completion of Pre-
Company York, §§7503(C) 3402, pending
Arbitration discovery including (1) an Examination Under Oath and physical examinations of the
Respondent; (2) requiring Respondent to furnish all hospital records, medical records and all
diagnostic tests, films and/or scans including records pertaining to Respondent's prion Worker's
Compensation claim and prior No-Fault claim; (3) authorizations to obtain all original records
regarding any and all injuries Respondent will present to the Arbitrator; (4) Authorizations to
obtain all original records and diagnostic studies pertaining to Respondent's prion Worker's
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Compelisation claim and prior No-Fault claim; (5) staying any Arbitration hearing scheduled
until completion of all the Pre-arbitration discovery requested herein by Petitioner; (6) and for
such other and further relief as this Court may deem just and proper.
Dated: Hamburg, New York
December 17, 2018
Yours, etc.
TAMARA M. HARBOLD, ESQ.
McCABE, COLLINS, McGEOUGH, FOWLER,
LEVINE & NOGAN, LLP.
Attorneys for Petitioner
MAPFRE INSURANCE COMPANY OF NEW YORK
4250 Southwestern Boulevard, Suite 2
Hamburg, New York 14075
(716) 995-7344
TO:
DUANE D. SCHOONMAKER, ESQ.
WILLIAM, MATTAR, PC
Attorneys for Respondent
6720 Main Street
Suite 100
Williamsville, New York 14221
(716) 633-3535
Certified Mail, Return Receipt Requested
AMERICAN ARBITRATION ASSOCIATION
11"'
120 Broadway, Floor
New York, NY 10271
Certified Mail, Return Receipt Requested
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Preview
FILED: WAYNE COUNTY CLERK 12/17/2019 02:30 PM INDEX NO. CV085268 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/17/2019 STATE OF NEW YORK SUPREME COURT : COUNTY OF WAYNE ___________________________________ -------------------X In the Matter of the Application of Index No.: MAPFRE INSURANCE COMPANY OF NEW YORK -vs- PETITION TO Petitioner, STAY ARBITRATION CONRAD E.J. RODVIK Respondent. ----- ¬---------------- - --¬-------------------X To: The Supreme Court, State of New York, County of Wayne Petitioner, MAPFRE INSURANCE COMPANY OF NEW YORK, by its attorneys, McCABE, COLLINS, McGEOUGH, FOWLER, LEVINE & NOGAN, LLP, alleges upon information and belief as follows: 1. Petitioner is a foreign corporation and an insurance company licensed to do business in the State of New York. 2. Upon information and belief, Respondent resides at 5207 Steelpoint Road, Marion New York, Wayne County (although the Police Accident Report, a copy of which is annexed hereto at Exhibit "A", notes an address of 85 Barry Street, Brockport, New York). "B" 3. Annexed hereto as Exhibit is a copy of Respondent's Demand for Arbitration dated December 5, 2019. 4. Petitioner received the Demand for Arbitration filed by the attorneys for Respondent on December 2019. this Petition is as it is made within a 20- 9, Accordingly, timely day time period set forth in CPLR §7503(b), from receipt of the Demand for Arbitration. Matter (13' of Allstate Insurance Company and Metaver, 137 A.D.2d 454, 525 N.Y.S.2d 32 Dept. 1988). 5. The Demand for Arbitration seeks arbitration pursuant to an insurance policy issued by Petitioner to Respondent, providing for Supplementary Uninsured/Underinsured 1 of 5 FILED: WAYNE COUNTY CLERK 12/17/2019 02:30 PM INDEX NO. CV085268 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/17/2019 Motorist (SUM) Benefits in the amount of $250,000 per person and $500,000 per accident under policy number NYPA001140321. A copy of the Policy is attached hereto as Exhibit "C". "D" 6. Annexed as Exhibit is a copy of the Supplementary Uninsured/Underinsured Motorists Endorsement - New York. 7. The Demand for Arbitration indicates that the Respondent, pursuant to the aforementioned endorsement contained in the policy, seeks arbitration on the grounds that on November 25, 2017 Respondent was involved in an accident with an allegedly underinsured motor vehicle in Rochester, New York and sustained personal injuries as a result thereof. 8. Integon National Insurance Company, on behalf of the underlying tortfeasor, paid its' $10,000 to Respondent as part of a global settlement of $50,000, policy limits, with no party receiving more that $25,000, which is a condition precedent under the SUM Endorsement for Respondent to pursue an underinsured motorist claim. PRE-ARBITRATION DISCOVERY 9. As part of the terms and conditions of the insurance policy issued by Petitioner, under which Respondent seeks underinsured motorist benefits, the Respondent must submit to an examination under oath as well as independent medical examinations and furnish all authorizations to enable Petitioner to obtain all hospital and medical records and reports, and other pertinent records; all of which have not yet been done. Exhibit "D". 10. By correspondence dated December 17, 2019, a copy of which is annexed hereto as Exhibit "E", Petitioner, by counsel, requested Pre-Arbitration discovery from Respondent. 11. A Notice of Examination Under Oath, also dated December 17, 2019, a copy of which is annexed hereto as Exhibit "F", was served on Respondent's counsel scheduling an Examination Under Oath of the Respondent for January 6, 2020. 2 of 5 FILED: WAYNE COUNTY CLERK 12/17/2019 02:30 PM INDEX NO. CV085268 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/17/2019 12. Respondent is required to comply with the discovery requests sought in this matter as a condition precedent under the insurance policy issued by Petitioner under which Respondent seeks benefits prior to proceeding to arbitration for the underinsured motorist claim. 13. In the event this matter proceeds to arbitration, Petitioner wishes to conduct physical examinations of the Respondent as well as conducting an Examination Under Oath and obtain authorizations for all hospital and medical records and all pertinent reports and records, copies of all diagnostic tests and/or films concerning Respondent's claims, but is unable to compel same without the court's intervention. Petitioner will be unable to disprove Respondent's serious medical claims without examinations and medical records. Petitioner will be at a serious disadvantage if any arbitration results in this claim and will be severely prejudiced therein, without this essential discovery. 14. CPLR §3102(c) permits the Court to order discovery "in aid of arbitration". It is submitted that since Petitioner has no means to compel and examination under oath, and compel Respondents to submit to independent medical examinations and furnish authorizations for all circumstances" medical records and pertinent reports, this constitutes, "extraordinary as required in the case law, as this sought after discovery is necessary to protect Petitioner's rights. International Components Corp. v. Klaiber, 54 A.D.2d 550, 387 N.Y.S.2d 253. 15. The Courts have held that the Petitioner was entitled to have physical examinations in a situation similar to the case at bar. State Farm Automobile Insurance Company v. Wernick, 90 A.D.2d 519, 455 N.Y.S.2d 30 (1982); Allstate Insurance Company v. Baez, 269 A.D.2d 392, 702 N.Y.S.2d 878 (2000). 16. The Second Department held that in a Petition to Stay Arbitration, the lower Court did not improvidently exercise its discretion in ordering a deposition and physical 3 of 5 FILED: WAYNE COUNTY CLERK 12/17/2019 02:30 PM INDEX NO. CV085268 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/17/2019 examination in aid of arbitration. State Farm Insurance Company v. McManus, 249 A.D.2d 311, (2nd 670 N.Y.S.2d 599 Dept. 1998); State Farm Mutual Automobile Insurance Company v. (2nd Bastista, 11 A.D.3rd 471, 782 N.Y.S.2d 372 Dept. 2004); Allstate Insurance Company v. (2nd Mova, 288 A.D.2d 309, 732 N.Y.S.2d 890 Dept. 2001). 17. The Third Department, in an action concerning a Petition to Permanently Stay Arbitration of an underinsured motorist claim, held that a temporary stay of arbitration was warranted entitling the Petitioner to conduct an Examination Under Oath and physical examination of the claimant. Farm Family Casualty Company v. Trapami, 301 A.D.2d 740, 753 N.Y.S.2d 198 (3rd Dept., 2003). 18. The case presently before this court is similar to the cases cited above, and therefore, the Petitioner will be severely prejudiced if Petitioner cannot conduct pre-arbitration discovery, whereas the Respondent will suffer no prejudice if compelled to submit to an Examination Under Oath and physical examinations. WHEREFORE, Petitioner requests that this Court issue an Order (1) Granting a temporary Stay of Arbitration of the Respondent, CONRAD E.J. RODVIK, from proceeding to Arbitration at the American Arbitration Association against the Petitioner, MAPFRE Insurance of New pursuant to CPLR and the completion of Pre- Company York, §§7503(C) 3402, pending Arbitration discovery including (1) an Examination Under Oath and physical examinations of the Respondent; (2) requiring Respondent to furnish all hospital records, medical records and all diagnostic tests, films and/or scans including records pertaining to Respondent's prion Worker's Compensation claim and prior No-Fault claim; (3) authorizations to obtain all original records regarding any and all injuries Respondent will present to the Arbitrator; (4) Authorizations to obtain all original records and diagnostic studies pertaining to Respondent's prion Worker's 4 of 5 FILED: WAYNE COUNTY CLERK 12/17/2019 02:30 PM INDEX NO. CV085268 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/17/2019 Compelisation claim and prior No-Fault claim; (5) staying any Arbitration hearing scheduled until completion of all the Pre-arbitration discovery requested herein by Petitioner; (6) and for such other and further relief as this Court may deem just and proper. Dated: Hamburg, New York December 17, 2018 Yours, etc. TAMARA M. HARBOLD, ESQ. McCABE, COLLINS, McGEOUGH, FOWLER, LEVINE & NOGAN, LLP. Attorneys for Petitioner MAPFRE INSURANCE COMPANY OF NEW YORK 4250 Southwestern Boulevard, Suite 2 Hamburg, New York 14075 (716) 995-7344 TO: DUANE D. SCHOONMAKER, ESQ. WILLIAM, MATTAR, PC Attorneys for Respondent 6720 Main Street Suite 100 Williamsville, New York 14221 (716) 633-3535 Certified Mail, Return Receipt Requested AMERICAN ARBITRATION ASSOCIATION 11"' 120 Broadway, Floor New York, NY 10271 Certified Mail, Return Receipt Requested 5 of 5