        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

41
CA 13-01105
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


KALEIDA HEALTH, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

UNIVERA HEALTHCARE, DEFENDANT-RESPONDENT,
AND UTICA MUTUAL INSURANCE COMPANY,
DEFENDANT-APPELLANT.


GOLDBERG SEGALLA LLP, BUFFALO (PAUL D. MCCORMICK OF COUNSEL), FOR
DEFENDANT-APPELLANT.

HODGSON RUSS LLP, BUFFALO (MICHELLE L. MEROLA OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.

HINMAN STRAUB P.C., ALBANY (JAMES T. POTTER OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County   (Gerald
J. Whalen, J.), entered August 22, 2012. The judgment, among    other
things, denied the motion of defendant Utica Mutual Insurance   Company
for summary judgment dismissing the complaint and cross claim   against
it.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendant Utica Mutual Insurance Company (Utica)
appeals from a judgment denying its motion for summary judgment
seeking dismissal of the complaint and the cross claim against it,
granting the motions for summary judgment of plaintiff and defendant
Univera Healthcare (Univera), and declaring that Utica is obligated to
pay an outstanding hospital bill to plaintiff pursuant to Public
Health Law § 2807-c (1) (b-2) for care that plaintiff provided to a
certain patient who is now deceased. We reject Utica’s contention
that plaintiff and Univera are barred by collateral estoppel from
asserting that Utica was obligated to pay the outstanding hospital
bill as the result of a determination of the Workers’ Compensation
Board. While collateral estoppel is applicable to determinations of
quasi-judicial administrative agencies, such as the Workers’
Compensation Board (see Auqui v Seven Thirty One Ltd. Partnership, 22
NY3d 246, 255), plaintiff and Univera were not parties to and did not
participate in the subject administrative proceeding. Although
plaintiff and Univera received notice of the administrative
proceeding, as a health care provider and private health insurer,
                                 -2-                            41
                                                         CA 13-01105

respectively, they could not by virtue of such notice be compelled to
participate in the proceeding (see Liss v Trans Auto Sys., 68 NY2d 15,
21; see also Workers’ Compensation Law § 25 [3] [a]). Utica’s further
contention that this action is barred because plaintiff was required
to arbitrate this dispute is without merit because “[a]n agreement to
arbitrate is not a defense to an action” (Allied Bldg. Inspectors
Intl. Union of Operating Engrs., Local Union No. 211, AFL–CIO v Office
of Labor Relations of City of N.Y., 45 NY2d 735, 738), and arbitration
is not compulsory here inasmuch as the value of the medical services
provided are not in dispute (see § 13-g [1] - [3]; 12 NYCRR 325-1.24
[d]). Finally, contrary to Utica’s contention, we conclude that
Supreme Court properly determined that Utica was responsible for the
outstanding hospital bill pursuant to Public Health Law § 2807-c (1)
(b-2) inasmuch as the subject patient’s admission to one of
plaintiff’s hospitals was not a separate or new hospital admission,
but was a continuation of that patient’s earlier admission to another
hospital, which was for treatment of a long-standing work-related
injury.




Entered:   February 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
