State Farm Mut. Auto. Ins. Co. v Amtrust N. Am., Inc. (2024 NY Slip Op 00646)

Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Amtrust N. Am., Inc. (2024 NY Slip Op 00646)

State Farm Mut. Auto. Ins. Co. v Amtrust N. Am., Inc.
2024 NY Slip Op 00646
Decided on February 7, 2024
Appellate Division, Second 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 on February 7, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
JOSEPH J. MALTESE
PAUL WOOTEN
DEBORAH A. DOWLING, JJ.

2022-03088
(Index No. 705856/21)

[*1]State Farm Mutual Automobile Insurance Company, etc., appellant,

v

Amtrust North America, Inc., respondent.




Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola, NY (Neil Khiani and Joseph T. Darr of counsel), for appellant.

Marschhausen & Fitzpatrick, P.C., Hicksville, NY (Kevin P. Fitzpatrick of counsel), for respondent.



DECISION & ORDER

In a subrogation action to recover damages for unjust enrichment, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), dated March 17, 2022. The order granted the defendant’s motion pursuant to CPLR 3211(a)(2) to dismiss the complaint.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new determination of the defendant’s motion pursuant to CPLR 3211(a)(2) to dismiss the complaint after final resolution of a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

In July 2018, the subrogors of the plaintiff no-fault insurer, State Farm Mutual Automobile Insurance Company, allegedly were injured in a motor vehicle accident while traveling in a vehicle insured by the plaintiff. After the plaintiff provided payments for medical services on behalf of the subrogors, it learned that the subrogors had applied for workers’ compensation benefits and that the Workers’ Compensation Board had directed the defendant workers’ compensation insurer, Amtrust North America, Inc., to pay for necessary medical treatments for the subrogors. Thereafter, the plaintiff demanded that the defendant reimburse it for the full amount of no-fault benefits the plaintiff had provided on behalf of its subrogors.

In March 2021, the plaintiff commenced this action against the defendant to recover the benefits paid, alleging causes of action sounding in unjust enrichment. Thereafter, the defendant moved pursuant to CPLR 3211(a)(2) to dismiss the complaint on the ground that the Workers’ Compensation Board had jurisdiction over the coverage dispute. In an order dated March 17, 2022, the Supreme Court granted the defendant’s motion. The plaintiff appeals.

“[W]here the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions” (O’Rourke v Long, 41 NY2d 219, 228; see Liss v Trans Auto Sys., 68 NY2d 15, 20-21). “Since ‘primary jurisdiction with respect to determinations [*2]as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board'” (Chin v Doherty Enters., 207 AD3d 514, 516, quoting Botwinick v Ogden, 59 NY2d 909, 911).

Here, the Workers’ Compensation Board has primary jurisdiction over the coverage issues raised, including the extent to which the medical expenses incurred by the plaintiff’s subrogors are causally related to the subject accident and compensable under the Workers’ Compensation Law (see Matter of Brennan v Village of Johnson City, 213 AD3d 1058, 1059; Matter of Bland v Gellman, Brydges & Schroff, 151 AD3d 1484, 1487). Contrary to the plaintiff’s contention, having not sought review or reopening of the workers’ compensation hearing, the plaintiff has not established that it lacks recourse before the Workers’ Compensation Board (see Workers’ Compensation Law § 142(7); 12 NYCRR 300.13[a][4], [b][2][iv]; 300.14[a]; Matter of Lutheran Med. Ctr. v Hereford Ins. Co., 43 AD3d 1064, 1065). Therefore, the Supreme Court should have referred the matter to the Workers’ Compensation Board (see Lall v Harnick, 212 AD3d 606, 607; Chin v Doherty Enters., 207 AD3d at 516).

The defendant’s remaining contention is not properly before this Court.

Accordingly, we remit the matter to the Supreme Court, Queens County, for a new determination of the defendant’s motion after final resolution of a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

CONNOLLY, J.P., MALTESE, WOOTEN and DOWLING, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

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

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

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



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

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

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

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



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

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

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

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



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

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

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

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



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

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

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

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



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

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

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

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



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

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

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

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



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

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

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

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



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

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

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

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