SUM – SPECIAL PROCEEDING TO STAY ARBITRATION – BREACH OF IME CONDITION – FALSE TESTIMONY BY CLAIMANT DURING EUO
Matter of New York Central Mut. Fire Ins. Co. v. Quadrino
(Sup. Ct., Nassau Co., decided 4/29/2008)
In response to its insured's demand for arbitration of his SUM claim, New York Central Mutual timely commenced this special proceeding to stay arbitration and compel discovery. By earlier order, the court temporarily stayed the arbitration and directed Quadrino "to provide pre-arbitration discovery as provided for in the parties ' automobile insurance policy", noting that the policy at issue provided that a person seeking SUM coverage must submit to physical exams as reasonably required, an examination under oath, and provide authorizations for medical and other pertinent records.
Quadrino provided some discovery and moved to dismiss the petition and compel arbitration. New York Central Mutual cross-moved to stay arbitration permanently on two grounds: (1) that Quadrino failed to appear for two, scheduled IMEs; and (2) that he made fraudulent statements at his EUO in having denied injuring his neck and/or back in a subsequent accident.
In granting a permanent stay of the SUM arbitration based on Quadrino's "chronic failure to provide discovery", Nassau County Supreme Court Justice Karen Murphy found that Quadrino failed to appear for or cancel two IMEs, and offered no explanation for his non-appearance. Justice Murphy also found that in breach of the policy's EUO and fraud conditions, Quadrino repeatedly denied injuring his neck and back in a subsequent motor vehicle accident despite stating in his applications for no-fault benefits that he had in fact sustained such injuries. New York Central Mutual procured and submitted a treating chiropractor's report indicating that Quadrino had received treatment for injuries to his neck and back as a result of that subsequent accident.
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