February 6, 2024
Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)
https://www.beynensonlaw.com/case-law/matter-of-new-millennium-pain-spine-medicine-p-c-v-garrison-prop-cas-ins-co-2024-ny-slip-op-00599/
- Decided
- February 6, 2024
- Citation
- 2024 NY Slip Op 00599
- Posture
- Article 75 petition
- Outcome
- Insurer prevailed
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)
| Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. |
| 2024 NY Slip Op 00599 |
| Decided on February 06, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: February 06, 2024
Before: Singh, J.P., Moulton, Gesmer, Mendez, Rodriguez, JJ.
Index No. 651264/23, 650919/23 Appeal No. 1590-1591 Case No. 2023-03313, 2023-03164
v
Garrison Property & Casualty Insurance Company, Respondent-Respondent.
In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Tracey Simpson, Petitioner-Appellant,
v
GEICO Casualty Company, Respondent-Respondent.
Roman Kravchenko, Melville, for appellant.
Marshall, Dennehey, Warner, Coleman & Goggin, P.C., New York (Richard Lane of counsel), for Garrison Property & Casualty Insurance Company, respondent.
Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for GEICO Casualty Company, respondent.
Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered July 3, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated January 12, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs. Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about May 12, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated February 1, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.
Supreme Court correctly denied the petitions to vacate the master arbitration awards. “Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (see New Millenium Pain & Spine Medicine, P.C. v Progressive Casualty Insurance Company (220 AD3d 578, 578 [1st Dept 2023], quoting Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]), “The fact that the arbitrator[s] followed First Department precedent in (Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]) rather than Second Department precedent in (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy (see Matter of DTR Country—Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], lv denied 40 NY3d 904 [2023])” (id).
New Millennium was not precluded from arguing for the first time in its petitions that respondent insurer took the 20% wage offset twice, first, when issuing payment against gross wages, and second, when taken against the no-fault personal injury protection limit of liability (Insurance Law§ 5102[b]; 11 NYCRR 65-1.1; Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d at 481). However, the argument is unavailing because Insurance Law § 5102(b) allows an insurer to deduct from first-party benefits to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, 20% of lost earnings plus any other setoffs, such as amounts recovered or recoverable for Social Security disability or Worker Compensation benefits, or disability benefits under article 9 of the Workers Compensation Law (Matter of Lam Quam, MD, PC v GEICO, — AD3d —, 2024 NY Slip Op 00174 [1st Dept 2024]; Normile v Allstate [*2]Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).
New Millennium is not the prevailing party, therefore it is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: February 6, 2024
Legal questions (3)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
When does a court vacate, modify or confirm a no-fault arbitrator’s or master arbitrator’s award under CPLR article 75?
This decision: No ground for vacatur or modification shown: the award is confirmed or left in place
Affirmed denial of vacatur because the arbitrators' choice of Harmonic over Alleviation was not irrational, and the insurer's 20% wage offset against the limit was allowed by statute.
Of the 55 decisions on this question in the First Department courts and the Court of Appeals, 34 (this one included) are in the same category.
Did the insurer prove the policy’s no-fault limits were properly exhausted before it became obligated to pay the claim?
This decision: Insurer proved the limits were used up before it had to pay this claim; claim fails or is reduced
Upheld master awards denying the claims on exhaustion because following Harmonic rather than Alleviation was not irrational, an award after exhaustion would exceed the arbitrator's power, and the 20% wage offset against the limit was statutorily allowed.
Of the 16 decisions on this question in the First Department courts and the Court of Appeals, 7 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.
How is the applicant’s attorney’s fee fixed for no-fault article 75 proceedings, de novo actions and appeals?
This decision: Applicant may not recover a fee for the court proceeding or appeal (rules on the question, but another ground decided the case)
Held the provider was not the prevailing party and so was not entitled to attorney's fees under 65-4.10 (j) (4).
Of the 18 decisions on this question in the First Department courts and the Court of Appeals, 6 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50525(U))An insurer need not defer payment of other legitimate claims pending resolution of a claim it timely denied for lack of medical necessity.
- Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2017 NY Slip Op 27097)An insurer cannot establish policy exhaustion through payments made after it denied a fully verified claim.
- Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2021 NY Slip Op 08159)The insurer failed to support its policy-exhaustion defense with admissible evidence concerning the provider's claim.
- Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc. (2023 NY Slip Op 00179)A no-fault award directing payment beyond the policy's monetary limit exceeds the arbitrator's power.
- Matter of Lam Quan, MD, PC v GEICO Gen. Ins. Co. (2024 NY Slip Op 00174) FollowedAn arbitrator exceeds the scope of authority by awarding no-fault benefits after payment of the contractual policy limit.
- Matter of Country-Wide Ins. Co. v TC Acupuncture P.C. (2020 NY Slip Op 00048) FollowedA prevailing provider is entitled to court-fixed attorney fees for article 75 proceedings reviewing a master arbitration award and further appeals.
Cited by
- Quick v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 06268)Workers' compensation remains primary to no-fault benefits even when the employer lacks workers' compensation insurance.
Similar decisions
- Matter of New Millennium Pain & Spine Medicine, P.C. v Progressive Cas. Ins. Co. (2023 NY Slip Op 05369)An insurer's duties cease upon payment of the contractual limit of its no-fault policy.
- Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C. (2025 NY Slip Op 07297)A master arbitrator's legal error does not warrant vacatur unless the determination is irrational.
- Matter of American Tr. Ins. Co. v Integrated Medicine of S.I., P.C. (2025 NY Slip Op 06703)The provider's $220 attorney's fee award was upheld because it supplied no sworn work or time statement and requested no hearing.
- Wellness Diagnostic Imaging, P.C. v American Tr. Ins. Co. (2025 NY Slip Op 50628(U))The master arbitrator's award had a rational basis because the parties' stipulation limited the dispute to the assignor's IME appearance.
- Allstate Fire & Cas. Ins. Co. v Branch Med., P.C. (2022 NY Slip Op 50277(U))An arbitration award directing payment beyond exhausted no-fault policy limits exceeds the arbitrator's power.