Matter of Global Liberty Ins. Co. v Professional Chiropractic Care P.C. (2015 NY Slip Op 50936(U))

261079/2014

Attorney for Petitioner

Jason Tenenbaum, Esq.

The Law Office of Jason Tenenbaum, P.C.

595 Stewart Avenue, Suite 400

Garden City, New York 11530

Ralph C. Caio, Esq.

The Law Offices of Sukhbir Singh

95-18 130 Street

South Richmond Hill, New York 11419

The following papers numbered 1 to 3 read on this motion to vacate

NoOn Calendar of April 30, 2015PAPERS NUMBER

Notice of Motion-Order to Show Cause – Exhibits and Affidavits Annexed————————& mdash;____1___

Answering Affidavit and Exhibits———— —————————&mdas h;—————————&md ash;—————————___ 2___

Replying Affidavit and Exhibits————————&m dash;—————————& mdash;————————— ——————-____3___

Affidavit—————————— ;——————————— 51;———————————& #151;—————————______

Pleadings — Exhibit————————&md ash;—————————& mdash;————————— —————————&mdas h;————_______

Memorandum of Law——————————— ——————————— 51;———————————& #151;—————- ______ Stipulation — Referee’s Report —Minutes———————&mdash ;—————————&mda sh;—————————&m dash;—________Filed papers————————— —————————&mdas h;—————————&md ash;—————————& mdash;———-_______________

Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:

Petitioner seeks judgment pursuant to CPLR 7511(b), vacating the master arbitration

award dated November 18, 2014, that granted respondent, Professional Chiropractic Care, P.C.,

(Care), an award of $9,221.79, and reinstating the decision of the no-fault arbitrator who

dismissed the no-fault claims.

As a result of a motor vehicle accident, respondent/assignor, Thomas Yanick, (Yanick),

underwent three days of manipulation under anesthesia. Yanick applied for no-fault

benefits, and failed to appear for scheduled IMEs. The arbitrator, in a decision dated August 16,

2014, denied Care’s claim for no-fault benefits. Care appealed to a master arbitrator, and the

master arbitrator reversed the arbitrator’s award and in its place, awarded Care, $9,221.79, on

the grounds that petitioner did not inform Care with sufficient specificity that the denial of

Care’s claim was the result of Yanick’s failure to appear for IMEs.

The award of an arbitrator shall be vacated pursuant to CPLR 7511(b) under the

following circumstances:

1. The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

CPLR 7511(b).

“In addition, article 75 review questions whether the decision was rational or had a

plausible basis. (Caso v Coffey, 41 NY2d 153, 158, supra.).” (Matter of Petrofsky (Allstate Ins.

Co.), 54 NY2d 207, 211 [1981]). In reply papers, petitioner limits the petition to “whether the

master arbitrator’s basis in reversing the findings of the lower arbitrator was irrational.” (reply,

par. 17). Petitioner then cites to Unitrin Advantage Ins. Co. v Bayshore Physical Therapy,

PLLC, 82 AD3d 559, [1st Dept 2011], to support its argument that Unitrin dictates a different

result from the master arbitrator’s award in this case.

In his award the master arbitrator cited to General Acc. Ins. Group v Cirucci, 46 NY2d

862 [1979], for the following: “although an insurer may disclaim coverage for a valid reason

(Insurance Law, § 167, subd 8) the notice of disclaimer must promptly apprise the claimant with

a high degree of specificity of the ground or grounds on which the disclaimer is predicated.” Id.

at 864. There is no dispute and the arbitrator acknowledged that the denial of coverage

referenced an incorrect date for an allegedly missed IME and EUO providing a rational basis for

the master arbitrator’s award.

While petitioner states that the master arbitrator’s award is irrational, petitioner’s

arguments center on the master arbitrator having made an error of law in failing to apply Unitrin

to the facts of this case. “The master arbitrator’s determination of the law need not be correct;

mere errors of law are insufficient to warrant setting aside the master arbitrator’s award, and on

questions of substantive law, the determination should be upheld if there is a rational basis for it

(see Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 576-577 [2002]).”

(101 Acupuncture, P.C. v Utica Mut. Ins. Co., 16 Misc 3d 132(A), (App. Term 2d Dept 2007]).

Finally, petitioner cites to 11NYCRR 65-4.10 (a) (4) for the proposition that the Codes

Rules and Regulation of the State of New York allow this court to vacate the master arbitrator’s

award as “incorrect as a matter of law.” However, 11 NYCRR 65-4.10 (a) (4) only permits a

master arbitrator to vacate or modify an arbitrator. 11NYCRR 65-4.10 (a). A court may not

vacate or modify a master arbitrator’s or an arbitrator’s award on grounds that the award is

incorrect as a matter of law.

Accordingly, the petition is denied, and judgment is rendered in favor of respondent.

The foregoing shall constitute the decision and order of the Court.

Dated: _____________________________________________KENNETH L. THOMPSON JR. J.S.C.