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February 29, 2024

Matter of Floral Park Drugs, Inc. v Nationwide Gen. Ins. Co. (2024 NY Slip Op 01114)

https://www.beynensonlaw.com/case-law/matter-of-floral-park-drugs-inc-v-nationwide-gen-ins-co-2024-ny-slip-op-01114/

Court
Appellate Division, First Department
Decided
February 29, 2024
Citation
2024 NY Slip Op 01114
Posture
Article 75 petition
Outcome
Insurer prevailed
Issues
CPLR article 75 (arbitration awards) Jurisdiction and service Defaults and vacatur
Legal questions
Court review of arbitration awards · Service and jurisdiction over the insurer (see the maps)
Cite as
Matter of Floral Park Drugs, Inc. v Nationwide Gen. Ins. Co., 2024 NY Slip Op 01114 (1st Dept 2024)

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.

The pharmacy's arbitration loss was upheld because non-electronic prescriptions failed to satisfy statutory requirements. The Appellate Division, First Department, affirmed denial of the pharmacy's petition to vacate the master arbitrator's award favoring the insurer. Evidence supported noncompliance with Public Health Law § 281 (3) and Education Law § 6810; the award was neither irrational nor contrary to settled law. Under Mallela, omission of a defense from the mandatory endorsement in 11 NYCRR 65-1.1 (d) did not itself invalidate it. The pharmacy's oral-prescription arguments were rejected, with no indication they had been presented to either arbitrator. Default relief was also rejected because it had not been sought and the service affidavit failed to recite service of the documents required by CPLR 312-a (a).

Reported in New York Official Reports at Matter of Floral Park Drugs, Inc. v Nationwide Gen. Ins. Co. (2024 NY Slip Op 01114)

Matter of Floral Park Drugs, Inc. v Nationwide Gen. Ins. Co.
2024 NY Slip Op 01114
Decided on February 29, 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 29, 2024
Before: Manzanet-Daniels, J.P., Moulton, Scarpulla, Mendez, O’Neill Levy, JJ.

Index No. 654950/22 Appeal No. 1778 Case No. 2023-02403

[*1]In the Matter of Floral Park Drugs, Inc., Petitioner-Appellant,

v

Nationwide General Ins. Co., Respondent-Respondent.




Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for appellant.

Hollander Legal Group, P.C., Melville (Brian Kaufman of counsel), for respondent.



Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about March 13, 2023, which denied the petition to vacate the award of a master arbitrator dated October 30, 2022, unanimously affirmed, without costs.

Petitioner, a pharmacy and the assignee of a person injured in a motor vehicle accident, sought coverage from respondent, an insurance company, for prescription drug services (see 11 NYCRR 65-1.1[d]). Respondent denied no-fault coverage based on evidence that petitioner filled prescriptions that were not electronic, thus failing to comply with Public Health Law § 281, which provides that electronic prescriptions are required. On that basis, respondent concluded that there was no valid prescription, and accordingly, that it was not obliged to provide the requested coverage. The arbitrator issued an award ruling in favor of respondent and denying petitioner’s claim, and the master arbitrator upheld that award.

The arbitrators’ conclusions in denying petitioner’s claim were neither irrational nor contrary to settled law (see Matter of Kane v Fiduciary Ins. Co. of Am., 114 AD3d 405 [1st Dept 2014]), nor did they violate a strong public policy or clearly exceed a specifically enumerated limitation on the arbitrators’ powers (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]). On the contrary, the evidence submitted at the arbitration supports the conclusion that the prescriptions filled by petitioner were not electronic and therefore did not comply with the Public Health Law requirements for prescriptions (Public Health Law § 281[3]; Education Law § 6810). Furthermore, that an exclusion or defense is not listed as such in the mandatory endorsement set forth in 11 NYCRR 65-1.1(d) does not, by itself, render respondent’s defense to payment in this matter illegitimate (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 319 [2005]).

We reject petitioner’s arguments that it was entitled to fill an oral prescription based on Education Law § 6810(4) and that applicable regulations do not require the pharmacy to verify the reason for an oral prescription. A plain reading of Public Health Law § 281, which by its terms applies “[n]otwithstanding . . . any other law to the contrary.” In addition, there is no indication that petitioner made these arguments before either arbitrator or cited the regulations adopted in connection with Public Health Law § 281; thus, there is no evidence that the master arbitrator irrationally rejected those arguments (see Matter of Falzone 15 NY3d at 534).

We also reject petitioner’s argument that Supreme Court should have entered a default judgment, as petitioner did not seek to hold respondent in default. The sole affidavit of service in the record states that respondent was served with the notice of petition, the petition, and the affirmation in support, along with a request for judicial intervention and notice of electronic filing, by mail. Insofar as petitioner [*2]attempted service under CPLR 312-a, the affidavit was facially defective, as it did not state that respondent was served with two copies of the statement of service by mail and acknowledgment of receipt (CPLR 312-a [a]; see Carney v Metropolitan Transp. Auth., 221 AD3d 447, 449 [1st Dept 2023]).

We have considered petitioner’s remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 29, 2024

Legal questions (2)

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.

Court review of arbitration awards

Open the full map

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

Held the arbitrators' denial of the pharmacy's claim neither irrational nor contrary to settled law, since evidence showed the prescriptions were not electronic as Public Health Law § 281 requires, and unraised arguments could not show irrational rejection.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 34
  • Appellate TermApp Term 9
  • Trial courtsTrial 11
2010, Court of Appeals: 1 decision (1 Award stands)2023, Appellate Division: 3 decisions (1 Award stands, 1 Vacated: irrational/arbitrary, 1 Vacated: exceeded power)2021, Appellate Division: 1 decision (1 Award stands)2020, Appellate Division: 4 decisions (2 Award stands, 1 Vacated: irrational/arbitrary, 1 Remanded, undecided)2019, Appellate Division: 5 decisions (2 Award stands, 3 Vacated: irrational/arbitrary)2018, Appellate Division: 3 decisions (3 Award stands)2017, Appellate Division: 3 decisions (1 Award stands, 2 Vacated: irrational/arbitrary)2016, Appellate Division: 4 decisions (2 Award stands, 2 Vacated: irrational/arbitrary)2015, Appellate Division: 2 decisions (1 Award stands, 1 Vacated: irrational/arbitrary)2014, Appellate Division: 1 decision (1 Award stands)2024, Appellate Division: 3 decisions (3 Award stands)2026, Appellate Division: 2 decisions (2 Award stands)2009, Appellate Division: 1 decision (1 Award stands)2010, Appellate Division: 2 decisions (1 Award stands, 1 Vacated: irrational/arbitrary)2022, Appellate Term: 1 decision (1 Vacated: exceeded power)2019, Appellate Term: 3 decisions (3 Award stands)2018, Appellate Term: 1 decision (1 Award stands)2017, Appellate Term: 1 decision (1 Remanded, undecided)2016, Appellate Term: 1 decision (1 Remanded, undecided)2011, Appellate Term: 1 decision (1 Remanded, undecided)2009, Appellate Term: 1 decision (1 Vacated: irrational/arbitrary)2022, Trial courts: 1 decision (1 Award stands)2021, Trial courts: 1 decision (1 Vacated: irrational/arbitrary)2018, Trial courts: 1 decision (1 Award stands)2015, Trial courts: 2 decisions (1 Award stands, 1 Vacated: exceeded power)2008, Trial courts: 1 decision (1 Award stands)2006, Trial courts: 2 decisions (1 Award stands, 1 Vacated: exceeded power)2005, Trial courts: 1 decision (1 Award stands)2024, Trial courts: 1 decision (1 Award stands)2025, Trial courts: 1 decision (1 Award stands)This decision
20052010201520202025
Award standsVacated: irrational/arbitraryVacated: exceeded powerRemanded, undecidedThis decisionCites it or cited by itCited or followed

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.

Service and jurisdiction over the insurer

Open the full map

Was the insurer validly served with process, and does the court have personal jurisdiction over it?

This decision: Method, place, timing or proof of service on the insurer failed, so no jurisdiction was obtained (rules on the question, but another ground decided the case)

Held the affidavit of mail service of the petition on the insurer facially defective under CPLR 312-a because it did not state that two copies of the statement and acknowledgment of receipt were served.

  • Appellate DivisionApp Div 2
  • Appellate TermApp Term 1
  • Trial courtsTrial 3
2024, Appellate Division: 1 decision (1 Service defective)2021, Appellate Division: 1 decision (1 Hearing or discovery needed)2010, Appellate Term: 1 decision (1 Objection waived/not required)2008, Trial courts: 1 decision (1 Jurisdiction upheld)2006, Trial courts: 1 decision (1 No jurisdiction over insurer)2005, Trial courts: 1 decision (1 Objection waived/not required)This decision
2005201020152020
Jurisdiction upheldService defectiveNo jurisdiction over insurerHearing or discovery neededObjection waived/not requiredThis decision

Of the 6 decisions on this question in the First Department courts and the Court of Appeals, 1 (this one included) is in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • Matter of Kane v Fiduciary Ins. Co. of Am. (2014 NY Slip Op 00593)The insurer's coverage-priority disclaimer did not repudiate the policy or excuse the claimant's untimely proof of claim.
  • Matter of Falzone (New York Cent. Mut. Fire Ins. Co.) (2010 NY Slip Op 07417)An arbitrator's failure to apply collateral estoppel does not alone permit vacatur of an award under CPLR 7511 (b) (1) (iii).
  • State Farm Mut. Auto. Ins. Co. v Mallela (2005 NY Slip Op 02416) FollowedFraudulently incorporated medical providers are ineligible for no-fault reimbursement under 11 NYCRR 65-3.16 (a) (12).

Similar decisions

  • Matter of Nostrand Drugs Rx, Inc. v Church Mut. Ins. Co. (2026 NY Slip Op 05400)The provider's petition to vacate a master arbitration award was denied because it showed no statutory ground for vacatur.
  • Matter of Fill Rx NY, Inc. v LM Gen. Ins. Co. (2025 NY Slip Op 04785)The provider's petition to vacate a master arbitration award upholding the insurer's policy-exhaustion defense was denied.
  • Matter of American Tr. Ins. Co. v Midland Pharm. Yonkers Corp. (2026 NY Slip Op 06193)A master arbitration award must be affirmatively confirmed when a petition to vacate it is denied under CPLR 7511 (e).
  • 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.
  • 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.
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