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The Rogak Report: 01 Oct 2007 ** No-Fault - Election of Remedies **

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  • Lawrence Rogak
    WE MAKE NEW LAW IN QUEENS: PRIOR, WITHDRAWN ARBITRATION BARS LITIGATION OF MEDICAL BILLS Argo Medical PC a/a/o Johanny Stengle v. New York Central Mutual Fire
    Message 1 of 1 , Oct 1, 2007
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      WE MAKE NEW LAW IN QUEENS: PRIOR, WITHDRAWN ARBITRATION BARS
      LITIGATION OF MEDICAL BILLS

      Argo Medical PC a/a/o Johanny Stengle v. New York Central Mutual Fire
      Insurance Company (Civil Court, Queens County) (Lebedeff, j) (Index
      no. 135607/2006)

      If a medical provider places a bill into arbitration against a no-
      fault insurer, then withdraws the arbitration "without prejudice,"
      may it then bring suit on that bill? Other courts have said "no,"
      but the issue had never been decided in Queens County, until today.

      Granting our Motion To Dismiss, the Court held, "Plaintiff previously
      placed this claim into arbitration and withdrew it without
      prejudice. Generally, once a claimant places a bill into arbitration
      he has elected his remedy and may not litigate any future bill on the
      same claim or occurrence. Roggio v. Nationwide Ins. Co., 66 N.Y.2d
      260. This is true even if the prior arbitration claim was withdrawn
      without prejudice. Pueblo Med. Treatment a/s/o Garcia v. State Farm
      Ins. Co., 2006 NY Slip Op 51553(U) (App. Term, 1st Dept); A.B.
      Medical a/s/o Samuel Charles v. New York Central Mutual Fire Ins.
      Co., 12 Misc. 3d 500 (Civil Court, Kings Co.). As it is undisputed
      that this plaintiff placed this bill into arbitration previously, it
      has elected its remedy and this suit is dismissed without prejudice
      to re-file in arbitration."

      Larry Rogak
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