Preview
FILED: SUFFOLK COUNTY CLERK 10/22/2020 12:29 PM INDEX NO. 615929/2020
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/22/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
------------------------------------------------------------------------X
LIBERTY MUTUAL INSURANCE COMPANY,
PETITION
Petitioner, TO STAY ARBITRATION
-against-
SAMANTHA ZELLER,
Respondent.
------------------------------------------------------------------------X
Petitioner, LIBERTY MUTUAL INSURANCE COMPANY (hereinafter referred to as
“LIBERTY”), by its attorneys, the LAW OFFICES OF MARTYN, MARTYN, SMITH & MURRAY,
alleges the following:
1. At all times relevant hereto, Petitioner LIBERTY was and still is a foreign corporation
duly authorized to transact insurance business within the State of New York.
2. As per the Respondent’s Demand for Arbitration dated October 4, 2020 and received on
October 10, 2020, the Respondent, SAMANTHA ZELLER (hereinafter referred to as “Respondent”) is
insured with Petitioner LIBERTY pursuant to a personal automobile policy issued to the Respondent
pursuant to the laws of the State of New York and approved by the Superintendent of Insurance under
which this Respondent brings her claim. The Demand for Arbitration is annexed hereto as Exhibit A.
Since Petitioner LIBERTY received the aforementioned Demand for Arbitration on October 10, 2020, the
instant application for a stay is timely.
3. Upon information and belief, Respondent is alleging personal injuries sustained as a
result of a motor vehicle accident which occurred on December 1, 2019 on at the intersection of Route
109 and Wellwood Avenue in the Town of Babylon, County of Suffolk, State of New York. Respondent
was allegedly travelling southbound on Wellwood Avenue attempting to make a left turn onto Route 109
when she was struck by the tortfeasor’s vehicle which was travelling westbound on Route 109. The
tortfeasor’s vehicle allegedly ran the red light at the intersection. Of note, the police report incorrectly
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states that the operator of Respondent’s vehicle at the time of the subject accident was Brian Zeller when
it should state that Samantha Zeller was the vehicle operator. A copy of the police report is annexed
hereto as Exhibit B.
4. Petitioner LIBERTY has been advised that the tortfeasor vehicle was insured by
Progressive via a $25,000 bodily injury policy which was tendered by Progressive. A copy of the tender
letter from Progressive dated September 9, 2020 is annexed hereto as Exhibit C.
5. Respondent’s demand for arbitration is pursuant to the terms of the Supplemental
Uninsured/Underinsured Motorists Endorsement with Petitioner LIBERTY. Petitioner LIBERTY
acknowledges that the limits of this Supplemental Underinsured Motorist (SUM) policy are
$100,000/$300,000. However, Petitioner LIBERTY is entitled to an offset to these limits by the
payments received by the Respondent from or on behalf of all persons that may be legally liable for the
bodily injury sustained by the insured. Therefore, Respondent is required to submit proof of the full
amounts received from the tortfeasor in the underlying action as well as any other source of benefits
payable or paid. A copy of the Respondent’s Supplementary Uninsured/Underinsured Motorists (SUM)
Endorsement is annexed hereto as Exhibit D.
6. Pursuant to Section 11 of the aforementioned endorsement, Petitioner LIBERTY’s
Supplemental Underinsured Motorist (SUM) shall not duplicate any of the benefits enumerated in Section
11. Accordingly, Petitioner LIBERTY is entitled to pre-arbitration discovery on the issues of whether
Respondent received any other sums from other tortfeasor(s) in this accident or from any other source of
benefits.
7. It is respectfully submitted that Respondent must disclose all payments received as well
as all claims pending for any other benefits relative to this accident before arbitration can go forward.
8. Furthermore, the Respondent has failed to satisfy numerous other conditions precedent to
initiation of arbitration proceedings such as to provide authorizations to obtain medical records, prior
medical history records and other pertinent records relative to employment, wages, No-Fault claims,
underlying tort claim, Worker’s Compensation, Social Security and any pension benefits claims. An
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Examination under Oath of the claimant, physical examinations and review of objective diagnostic test
results of tests performed upon claimant before and after the subject accident are needed.
9. Petitioner LIBERTY respectfully submits that, pursuant to the policy under which
Respondent claims benefits, the Petitioner is entitled to and desires the following information prior to any
arbitration proceedings:
a. Written statement as to the full particulars of the nature and extent of the injuries,
treatment, and other necessary details, and the factual basis for alleging the other vehicle was
underinsured.
b. Examination under Oath.
c. Duly executed and acknowledged authorizations permitting this office to obtain
copies of the reports and records of all treating physicians, hospitals, medical care providers, and
diagnostic tests and films, who provided medical treatment to Respondent.
d. Copies of all pleadings, deposition transcripts and expert reports of all medical
and non-medical experts which were exchanged in the underlying lawsuit.
e. Duly executed HIPAA compliant authorizations for release of copies of any all
collateral source claim file(s).
f. Independent medical examination(s) of the Respondent.
g. Duly executed HIPAA compliant authorizations permitting this office to obtain
copies of the reports and records of all treating physicians, hospitals, medical care providers, and
diagnostic tests and films, who provided medical treatment to Respondent for her left shoulder prior to
12/1/2019.
10. Until the above items have been complied with, Petitioner LIBERTY submits that a
temporary stay of arbitration is necessary. It is respectfully submitted that Petitioner LIBERTY is entitled
to a stay of arbitration until this Court shall have heard and determined the aforementioned preliminary
issues. No prejudice of any kind can inure to the Respondent by the granting of such requested stay.
Conversely, substantial prejudice can and will result to Petitioner LIBERTY if such stay is not granted.
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11. These discovery demands are a good faith effort on the part of Petitioner LIBERTY to
obtain necessary, essential and material items regarding the underlying facts and circumstances of the
motor vehicle accident in which the Respondent was involved. Furthermore, Respondent is required to
comply with these demands pursuant to the existing policy of insurance.
12. Regulation 35-D expressly authorizes discovery prior to arbitration. All demands made
upon Respondent are material and relevant in order for the Petitioner LIBERTY to be properly apprised
of the actual injuries sustained by Respondent, as well as the liability regarding the underlying motor
vehicle accident, and to ascertain whether there are collateral source offsets for benefits received in
connection with other claims made. Petitioner LIBERTY seeks to question Respondent under oath after
receipt of the requested discovery items. Petitioner LIBERTY also needs to the opportunity to seek an
expert opinion of Petitioner’s choosing prior to arbitration.
13. Petitioner LIBERTY would be greatly prejudiced if such discovery rights were denied
because it would be unable to ascertain the nature and extent of the damages allegedly sustained by the
Respondent and, therefore, would be unfairly and inadequately represented at such an arbitration without
such information. In addition, Respondent's failure to comply with said demands will nullify her
entitlement to underinsured motorist benefits.
14. Since the discovery sought by the Petitioner LIBERTY is reasonable and both material
and necessary for Petitioner LIBERTY to present a case to the arbitrator, and because the applicable
statute and underlying policy of insurance require Respondent to comply with Petitioner's Demands, it is
requested that the Court issue a temporary stay of the underlying underinsured arbitration pending
completion of discovery and direct Respondent to comply with Petitioner's demands.
WHEREFORE, it is respectfully requested that this Court grant Petitioner, LIBERTY
MUTUAL INSURANCE COMPANY, a temporary stay of the arbitration of this matter as the
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Respondent, SAMANTHA ZELLER, has failed to comply with various conditions precedent, and issue
an Order compelling the Respondent to submit to the discovery and disclosure as outlined
above prior to any arbitration of this claim, and for such other and further relief which this Court deems
just and proper.
Dated: Hauppauge, New York
October 22, 2020
LAW OFFICES OF MARTYN,
MARTYN, SMITH & MURRAY
Attorneys for Petitioner
102 Motor Parkway – Suite 230
Hauppauge, NY 11788-5108
(631) 300-4960
by: Marie Holbrook, Esq.
Direct Dial: (631) 300-4976
MMSMLaw@LibertyMutual.com
TO: American Arbitration Association
32 Old Slip – 33rd Floor
New York, NY 10005
CERTIFIED MAIL RETURN - RECEIPT REQUESTED
BRIAN J. LEVY & ASSOCIATES, PLLC
Attorney for Respondent
SAMANTHA ZELLER
303 Jackson Avenue
Syosset, NY 11791
(631) 487-6524
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ATTORNEY VERIFICATION
MARIE HOLBROOK, ESQ., pursuant to the CPLR, affirms that she is an attorney associated
with the LAW OFFICES OF MARTYN, MARTYN, SMITH & MURRAY, attorneys for the Petitioner in
the within action. The foregoing Notice of Petition to Stay Arbitration and Petition to Stay Arbitration
are true to her own knowledge as to the matters therein stated to be alleged upon information and belief
that as to those matters she believes it to be true.
That this Notice of Petition to Stay Arbitration and Petition to Stay Arbitration is verified by your
affirmant and not by the Petitioner because upon information and belief the Petitioner
___X___ is a foreign corporation;
______ is a corporation, none of whose officers are within the County wherein associated LAW
OFFICES OF MARTYN, MARTYN, SMITH & MURRAY have their offices
_______ is a corporation whose main office is not within the County wherein associated LAW
OFFICES OF MARTYN, MARTYN, SMITH & MURRAY have their offices
_______ is an individual not within the County wherein associated LAW OFFICES OF
MARTYN, MARTYN, SMITH & MURRAY have their offices.
The sources of affirmant's information and the grounds for her belief as to all matters not stated
upon her knowledge are the record and reports of investigation kept in the office of the said attorneys for
the Petitioner and in connection with this action and the accident out of which said action arises.
Dated: Hauppauge, New York
October 22, 2020
Marie Holbrook
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THE FOLLOWING PAPERS ARE HEREBY CERTIFIED:
NOTICE OF PETITION
PETITION
ATTORNEY VERIFICATION
Dated: Hauppauge, New York
October 22, 2020
LAW OFFICES OF MARTYN,
MARTYN, SMITH & MURRAY
Attorneys for Petitioner
102 Motor Parkway – Suite 230
Hauppauge, NY 11788-5108
(631) 300-4960
by: Marie Holbrook, Esq.
Direct Dial: (631) 300-4976
MMSMLaw@LibertyMutual.com
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Preview
FILED: SUFFOLK COUNTY CLERK 10/22/2020 12:29 PM INDEX NO. 615929/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/22/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ------------------------------------------------------------------------X LIBERTY MUTUAL INSURANCE COMPANY, PETITION Petitioner, TO STAY ARBITRATION -against- SAMANTHA ZELLER, Respondent. ------------------------------------------------------------------------X Petitioner, LIBERTY MUTUAL INSURANCE COMPANY (hereinafter referred to as “LIBERTY”), by its attorneys, the LAW OFFICES OF MARTYN, MARTYN, SMITH & MURRAY, alleges the following: 1. At all times relevant hereto, Petitioner LIBERTY was and still is a foreign corporation duly authorized to transact insurance business within the State of New York. 2. As per the Respondent’s Demand for Arbitration dated October 4, 2020 and received on October 10, 2020, the Respondent, SAMANTHA ZELLER (hereinafter referred to as “Respondent”) is insured with Petitioner LIBERTY pursuant to a personal automobile policy issued to the Respondent pursuant to the laws of the State of New York and approved by the Superintendent of Insurance under which this Respondent brings her claim. The Demand for Arbitration is annexed hereto as Exhibit A. Since Petitioner LIBERTY received the aforementioned Demand for Arbitration on October 10, 2020, the instant application for a stay is timely. 3. Upon information and belief, Respondent is alleging personal injuries sustained as a result of a motor vehicle accident which occurred on December 1, 2019 on at the intersection of Route 109 and Wellwood Avenue in the Town of Babylon, County of Suffolk, State of New York. Respondent was allegedly travelling southbound on Wellwood Avenue attempting to make a left turn onto Route 109 when she was struck by the tortfeasor’s vehicle which was travelling westbound on Route 109. The tortfeasor’s vehicle allegedly ran the red light at the intersection. Of note, the police report incorrectly 1 of 7 FILED: SUFFOLK COUNTY CLERK 10/22/2020 12:29 PM INDEX NO. 615929/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/22/2020 states that the operator of Respondent’s vehicle at the time of the subject accident was Brian Zeller when it should state that Samantha Zeller was the vehicle operator. A copy of the police report is annexed hereto as Exhibit B. 4. Petitioner LIBERTY has been advised that the tortfeasor vehicle was insured by Progressive via a $25,000 bodily injury policy which was tendered by Progressive. A copy of the tender letter from Progressive dated September 9, 2020 is annexed hereto as Exhibit C. 5. Respondent’s demand for arbitration is pursuant to the terms of the Supplemental Uninsured/Underinsured Motorists Endorsement with Petitioner LIBERTY. Petitioner LIBERTY acknowledges that the limits of this Supplemental Underinsured Motorist (SUM) policy are $100,000/$300,000. However, Petitioner LIBERTY is entitled to an offset to these limits by the payments received by the Respondent from or on behalf of all persons that may be legally liable for the bodily injury sustained by the insured. Therefore, Respondent is required to submit proof of the full amounts received from the tortfeasor in the underlying action as well as any other source of benefits payable or paid. A copy of the Respondent’s Supplementary Uninsured/Underinsured Motorists (SUM) Endorsement is annexed hereto as Exhibit D. 6. Pursuant to Section 11 of the aforementioned endorsement, Petitioner LIBERTY’s Supplemental Underinsured Motorist (SUM) shall not duplicate any of the benefits enumerated in Section 11. Accordingly, Petitioner LIBERTY is entitled to pre-arbitration discovery on the issues of whether Respondent received any other sums from other tortfeasor(s) in this accident or from any other source of benefits. 7. It is respectfully submitted that Respondent must disclose all payments received as well as all claims pending for any other benefits relative to this accident before arbitration can go forward. 8. Furthermore, the Respondent has failed to satisfy numerous other conditions precedent to initiation of arbitration proceedings such as to provide authorizations to obtain medical records, prior medical history records and other pertinent records relative to employment, wages, No-Fault claims, underlying tort claim, Worker’s Compensation, Social Security and any pension benefits claims. An 2 of 7 FILED: SUFFOLK COUNTY CLERK 10/22/2020 12:29 PM INDEX NO. 615929/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/22/2020 Examination under Oath of the claimant, physical examinations and review of objective diagnostic test results of tests performed upon claimant before and after the subject accident are needed. 9. Petitioner LIBERTY respectfully submits that, pursuant to the policy under which Respondent claims benefits, the Petitioner is entitled to and desires the following information prior to any arbitration proceedings: a. Written statement as to the full particulars of the nature and extent of the injuries, treatment, and other necessary details, and the factual basis for alleging the other vehicle was underinsured. b. Examination under Oath. c. Duly executed and acknowledged authorizations permitting this office to obtain copies of the reports and records of all treating physicians, hospitals, medical care providers, and diagnostic tests and films, who provided medical treatment to Respondent. d. Copies of all pleadings, deposition transcripts and expert reports of all medical and non-medical experts which were exchanged in the underlying lawsuit. e. Duly executed HIPAA compliant authorizations for release of copies of any all collateral source claim file(s). f. Independent medical examination(s) of the Respondent. g. Duly executed HIPAA compliant authorizations permitting this office to obtain copies of the reports and records of all treating physicians, hospitals, medical care providers, and diagnostic tests and films, who provided medical treatment to Respondent for her left shoulder prior to 12/1/2019. 10. Until the above items have been complied with, Petitioner LIBERTY submits that a temporary stay of arbitration is necessary. It is respectfully submitted that Petitioner LIBERTY is entitled to a stay of arbitration until this Court shall have heard and determined the aforementioned preliminary issues. No prejudice of any kind can inure to the Respondent by the granting of such requested stay. Conversely, substantial prejudice can and will result to Petitioner LIBERTY if such stay is not granted. 3 of 7 FILED: SUFFOLK COUNTY CLERK 10/22/2020 12:29 PM INDEX NO. 615929/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/22/2020 11. These discovery demands are a good faith effort on the part of Petitioner LIBERTY to obtain necessary, essential and material items regarding the underlying facts and circumstances of the motor vehicle accident in which the Respondent was involved. Furthermore, Respondent is required to comply with these demands pursuant to the existing policy of insurance. 12. Regulation 35-D expressly authorizes discovery prior to arbitration. All demands made upon Respondent are material and relevant in order for the Petitioner LIBERTY to be properly apprised of the actual injuries sustained by Respondent, as well as the liability regarding the underlying motor vehicle accident, and to ascertain whether there are collateral source offsets for benefits received in connection with other claims made. Petitioner LIBERTY seeks to question Respondent under oath after receipt of the requested discovery items. Petitioner LIBERTY also needs to the opportunity to seek an expert opinion of Petitioner’s choosing prior to arbitration. 13. Petitioner LIBERTY would be greatly prejudiced if such discovery rights were denied because it would be unable to ascertain the nature and extent of the damages allegedly sustained by the Respondent and, therefore, would be unfairly and inadequately represented at such an arbitration without such information. In addition, Respondent's failure to comply with said demands will nullify her entitlement to underinsured motorist benefits. 14. Since the discovery sought by the Petitioner LIBERTY is reasonable and both material and necessary for Petitioner LIBERTY to present a case to the arbitrator, and because the applicable statute and underlying policy of insurance require Respondent to comply with Petitioner's Demands, it is requested that the Court issue a temporary stay of the underlying underinsured arbitration pending completion of discovery and direct Respondent to comply with Petitioner's demands. WHEREFORE, it is respectfully requested that this Court grant Petitioner, LIBERTY MUTUAL INSURANCE COMPANY, a temporary stay of the arbitration of this matter as the 4 of 7 FILED: SUFFOLK COUNTY CLERK 10/22/2020 12:29 PM INDEX NO. 615929/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/22/2020 Respondent, SAMANTHA ZELLER, has failed to comply with various conditions precedent, and issue an Order compelling the Respondent to submit to the discovery and disclosure as outlined above prior to any arbitration of this claim, and for such other and further relief which this Court deems just and proper. Dated: Hauppauge, New York October 22, 2020 LAW OFFICES OF MARTYN, MARTYN, SMITH & MURRAY Attorneys for Petitioner 102 Motor Parkway – Suite 230 Hauppauge, NY 11788-5108 (631) 300-4960 by: Marie Holbrook, Esq. Direct Dial: (631) 300-4976 MMSMLaw@LibertyMutual.com TO: American Arbitration Association 32 Old Slip – 33rd Floor New York, NY 10005 CERTIFIED MAIL RETURN - RECEIPT REQUESTED BRIAN J. LEVY & ASSOCIATES, PLLC Attorney for Respondent SAMANTHA ZELLER 303 Jackson Avenue Syosset, NY 11791 (631) 487-6524 5 of 7 FILED: SUFFOLK COUNTY CLERK 10/22/2020 12:29 PM INDEX NO. 615929/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/22/2020 ATTORNEY VERIFICATION MARIE HOLBROOK, ESQ., pursuant to the CPLR, affirms that she is an attorney associated with the LAW OFFICES OF MARTYN, MARTYN, SMITH & MURRAY, attorneys for the Petitioner in the within action. The foregoing Notice of Petition to Stay Arbitration and Petition to Stay Arbitration are true to her own knowledge as to the matters therein stated to be alleged upon information and belief that as to those matters she believes it to be true. That this Notice of Petition to Stay Arbitration and Petition to Stay Arbitration is verified by your affirmant and not by the Petitioner because upon information and belief the Petitioner ___X___ is a foreign corporation; ______ is a corporation, none of whose officers are within the County wherein associated LAW OFFICES OF MARTYN, MARTYN, SMITH & MURRAY have their offices _______ is a corporation whose main office is not within the County wherein associated LAW OFFICES OF MARTYN, MARTYN, SMITH & MURRAY have their offices _______ is an individual not within the County wherein associated LAW OFFICES OF MARTYN, MARTYN, SMITH & MURRAY have their offices. The sources of affirmant's information and the grounds for her belief as to all matters not stated upon her knowledge are the record and reports of investigation kept in the office of the said attorneys for the Petitioner and in connection with this action and the accident out of which said action arises. Dated: Hauppauge, New York October 22, 2020 Marie Holbrook 6 of 7 FILED: SUFFOLK COUNTY CLERK 10/22/2020 12:29 PM INDEX NO. 615929/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 10/22/2020 THE FOLLOWING PAPERS ARE HEREBY CERTIFIED: NOTICE OF PETITION PETITION ATTORNEY VERIFICATION Dated: Hauppauge, New York October 22, 2020 LAW OFFICES OF MARTYN, MARTYN, SMITH & MURRAY Attorneys for Petitioner 102 Motor Parkway – Suite 230 Hauppauge, NY 11788-5108 (631) 300-4960 by: Marie Holbrook, Esq. Direct Dial: (631) 300-4976 MMSMLaw@LibertyMutual.com 7 of 7