Decided on December 7, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered March 26, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

Plaintiff commenced this action on November 1, 2013 to recover assigned first-party no-fault benefits for medical services provided to its assignor for injuries she had allegedly sustained in a motor vehicle accident on June 12, 2011. Plaintiff moved for summary judgment, and defendant opposed the motion on the ground that plaintiff failed to establish its prima facie case. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is barred by the doctrine of res judicata. In support of its cross motion, defendant proffered an order, entered May 31, 2013, in a declaratory judgment action in the Supreme Court, New York County, that had been commenced against, among other parties, plaintiff herein and its assignor. The Supreme Court declared that the insurer is not required to pay any claims for no-fault benefits under the policy at issue with respect to an alleged accident on June 12, 2011. By order entered March 26, 2015, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion on the basis of the order in the declaratory judgment action. On appeal, plaintiff argues that it established its prima facie entitlement to summary judgment and that defendant failed to demonstrate that the causes of action in the present matter arose out of the same transaction as the causes of action in the Supreme Court action.

Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior action (see Abraham v Hermitage Ins. Co., 47 AD3d 855 [2008]).

“The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again” (Matter of Hunter, 4 NY3d 260, 269 [2005]). In the case at bar, the determination as to whether defendant was obligated to pay plaintiff’s claims “arises out of the same transaction, i.e., the subject accident” of June 12, 2011 (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), and involves the same insurer, medical [*2]provider and injured party as were involved in the Supreme Court declaratory judgment action. Thus, in light of the May 31, 2013 order of the Supreme Court, the instant action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). A different result in the instant action would destroy or impair rights or interests established by the Supreme Court order (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Consequently, the Civil Court properly granted defendant’s cross motion and denied plaintiff’s motion. In view of the foregoing, we do not reach plaintiff’s remaining contention.

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Decided on December 7, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 7, 2016

APPEARANCES OF COUNSEL

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville (Mitchell L. Kaufman of counsel), for respondent.

Ordered that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

Plaintiff commenced this action on May 6, 2013 to recover assigned first-party no-fault benefits for medical services that it had provided as a result of a motor vehicle accident that had occurred on May 5, 2011. The injured party, Latoya Payne, signed an assignment of benefits to plaintiff on May 6, 2011. Defendant purported to schedule an examination under oath (EUO) of the assignor to be held on July 29, 2011, and, upon the assignor’s alleged nonappearance, a follow-up EUO on September 12, 2011. Subsequent to the assignment of benefits and the scheduling of the EUOs, defendant commenced a proceeding against Latoya Payne, Tevin Jackson and two other individuals in the Supreme Court, Kings County, to compel them to appear at EUOs, asserting in the petition that they had failed to appear for two scheduled examinations. Defendant’s petition also sought declaratory relief in the event of their nonappearances at a future EUO. Plaintiff was not named as a respondent in the proceeding. The Supreme Court granted defendant’s motion, and defendant then purported to schedule a third EUO to be held on April 27, 2012. Thereafter, defendant moved in the Supreme Court, pursuant to CPLR 3215 (a), for a default judgment against Latoya Payne, Tevin Jackson and the two other individuals, and argued that they had failed to appear for the third EUO. By order dated December 5, 2012, the Supreme Court granted defendant’s motion and declared that all first-party coverage for no-fault benefits was disclaimed as to Latoya Payne and the three other individuals, or any assignee under the subject policy with respect to the motor vehicle collision at issue.{**54 Misc 3d at 56}

On August 21, 2013, defendant moved in the Civil Court for summary judgment dismissing the complaint on the grounds that defendant is not obligated to pay assigned first-party no-fault benefits to plaintiff in light of the Supreme Court order and that the assignor had failed to appear for scheduled EUOs. Plaintiff opposed the motion, arguing, among other things, that it is not bound by the declaratory judgment rendered in the Supreme Court proceeding and that defendant failed to establish that it had timely and properly scheduled EUOs. By order entered May 1, 2014, the Civil Court granted defendant’s motion. We reverse.

Plaintiff herein was neither named nor served in the Supreme Court proceeding, nor, at the time, was plaintiff in privity with its assignor, who was a named party in that proceeding, as the assignment of benefits had been executed before defendant had commenced the Supreme Court proceeding to compel the assignor’s appearance at an EUO or for declaratory relief upon the assignor’s failure to appear. As plaintiff had no full and fair opportunity to appear and defend its interests in the Supreme Court proceeding, the present action in the Civil Court is not subject to summary judgment dismissing the complaint by virtue of the Supreme Court declaration (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co., 37 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Defendant argues that, even in the absence of a judicial declaration, the order granting defendant’s motion for summary judgment dismissing the complaint should be affirmed on the alternative ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs. However, contrary to defendant’s assertion, defendant failed to establish that it had timely and properly mailed its EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, plaintiff properly argues that the scheduling letters failed to advise the assignor, in accordance with 11 NYCRR 65-3.5 (e), that she would be reimbursed for any loss of earnings and reasonable transportation costs incurred in complying with the request for an EUO. Thus, defendant failed to demonstrate entitlement to summary judgment dismissing the complaint on either ground.{**54 Misc 3d at 57}

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Solomon, J.P., Weston and Elliot, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, November 30, 2016

APPEARANCES OF COUNSEL

Law Offices of Emilia I. Rutigliano, P.C., Brooklyn, for plaintiff.

Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

Plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment are decided as follows:

Plaintiff brought this action against defendant to recover assigned first-party no-fault benefits. Plaintiff sufficiently established its prima facie entitlement to summary judgment through the affidavit of its owner, Irina Kazanskaya, who states that plaintiff mailed three claims for benefits to defendant’s Arizona location. The first claim is dated December 8, 2014, in{**55 Misc 3d at 189} the amount of $1,114.84 (claim 1); the second claim is dated January 6, 2015, in the amount of $1,087.39 (claim 2); and the third claim is dated February 5, 2015, in the amount of $384.23 (claim 3). Ms. Kazanskaya states that none of the claims were paid within 30 days of defendant’s receipt of the claim (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507 [2015]). Ms. Kazanskaya further established plaintiff’s procedures for generating and mailing the claims (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1123 [2d Dept 2008]).

Following submission of each of the claims, defendant had 30 days from receipt to pay or deny the claim for any defense, other than a non-precludable defense (Viviane Etienne Med. Care, 25 NY3d at 506). According to the affidavit of Travis Miller, a no-fault litigation supervisor with defendant, defendant received claim 1 on December 17, 2014, and generated a denial of that claim on June 3, 2015. Defendant received claim 3 on February 20, 2015, and generated a denial of that claim on June 8, 2015. As to claim 2, defendant never denied it, and defendant alleges that it did not receive this claim. As Mr. Miller explains, defendant mailed the denials within one day of generating them.

Mr. Miller further states in his affidavit that defendant denied plaintiff’s claims because of plaintiff’s purported failure to appear for an examination under oath (EUO). Failure to attend an EUO is a precludable defense that must be preserved through a timely denial (Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 145[A], 2015 NY Slip Op 51667[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Because defendant denied claim 1 and claim 3 more than 30 days after receipt, defendant’s EUO no-show defense is waived unless defendant’s time to pay or deny the claim was tolled such that its June 2015 denials were timely.

In this case, defendant contends that it timely requested recorded statements, verification requests, and EUOs from plaintiff and Venton Carmichael, the assignor, which effectively tolled the time by which defendant had to either pay or deny claims 1 and 3. First, Mr. Miller states in his affidavit that defendant sought to obtain a “recorded statement” from the assignor. To that end, Mr. Miller states that defendant sent letters to plaintiff and the assignor requesting the recorded statement. These letters are dated December 24, 2014, January 8, 2015, and February 4, 2015. Mr. Miller states that defendant{**55 Misc 3d at 190} obtained the recorded statement from the assignor on March 12, 2015.

[1] The question arises as to whether a request for a recorded statement effectively tolls the time by which an insurer must pay or deny a claim. First, we must be clear about what a “recorded statement” is. Defendant’s letters identified the event as a “statement” and, subsequently, as a “recorded statement,” but did not specify what a recorded statement entailed. It merely stated that defendant wanted a statement from the assignor discussing the accident and the injuries sustained. In addition, defendant did not treat the request for a recorded statement as an EUO. In fact, the defendant’s letters state that asking for a recorded statement does not preclude defendant from requiring EUOs or medical examinations. Thus, defendant implies, if not explicitly states, that a recorded statement is distinct from an EUO.

Furthermore, in an apparent matter of first impression, cases in this state have not yet specified what a “recorded statement” is or how it should be treated. Certain cases used the terms “recorded statement” and “EUO” interchangeably, but did not state whether the event in question was a formal examination in which testimony was given under oath (see Westchester Med. Ctr. v Government Empls. Ins. Co., 2009 NY Slip Op 30914[U] [Sup Ct, Nassau County 2009]; see also American Commerce Ins. Co. v Sanford, 2014 NY Slip Op 31108[U] [Sup Ct, NY County 2014]). The term “recorded statement” also has been used in the context of notice of a claim (see Matter of New York Cent. Mut. Fire Ins. Co. [Bett], 12 AD3d 1024, 1024 [4th Dept 2004] [holding that a recorded statement was not enough notice of claim to the insurance company]).

Additionally, the relevant regulation does not explicitly state that recorded statements, however they are defined, toll the time to pay or deny a claim (see 11 NYCRR 65-3.5 [b]). Cases construing 11 NYCRR 65-3.5 (b) do not suggest that the regulation should be read so broadly as to include recorded statements (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 280, 285 [1997] [suggesting in dicta that interrogatories, a “distinct request for information,” would not be a sufficient mode of verification]; but see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2d Dept 2002] [holding that the statutory period in which insurer was required to pay or deny the hospital’s claim was tolled by a request for patient records that was made by letter rather{**55 Misc 3d at 191} than by prescribed forms]). As a result, there appears to be no basis to hold that a request for a recorded statement should toll the time by which defendant must pay or deny a claim.

[2] Defendant also suggests that the “verification requests/delay letters” it mailed in response to claims 1 and 3 tolled the time to deny the claims. Mr. Miller states that the first verification requests were mailed on December 31, 2014 for claim 1 and on March 3, 2015 for claim 3. Although a verification request may be made in letter form,

“an insurer may not rely on a letter, even if denominated a verification request, that merely informs a claimant that a decision on the claim is delayed pending an investigation, and without specifying a particular form of verification and the person or entity from whom the verification is sought, to toll the 30-day claim determination period” (Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc., 8 Misc 3d 138[A], 2005 NY Slip Op 51314[U], *1 [App Term, 2d & 11th Jud Dists 2005], quoting Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th Jud Dists 2004]; New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 49 Misc 3d 148[A], 2015 NY Slip Op 51706[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Here, defendant’s request for “verification” generally seeks “the circumstances surrounding the accident; the causal relationship of the claimed injuries sustained in this accident; and whether there is coverage for this claim.” The defendant fails to state with specificity what part of the claim concerned it and the exact information it needs to conduct an investigation. Furthermore, the verification request itself is included at the end of certain explanations of benefits, which are congested with other information, in minuscule font. Defendant’s requests for additional information are mere delay letters, which did not effectively toll defendant’s time to pay or deny plaintiff’s claims.

Mr. Miller states that, following the request for the assignor’s recorded statement, defendant decided it needed an EUO of plaintiff, and retained the law firm of Bruno, Gerbino & Soriano, LLP to conduct that EUO. According to the affidavit of Shawn Kelleher, Esq., a partner with the Bruno firm, the firm sent a letter to plaintiff, dated March 24, 2015 (97 and 32 days after defendant received claims 1 and 3, respectively),{**55 Misc 3d at 192} asking plaintiff to appear for an EUO on April 17, 2015. When plaintiff did not appear for the EUO, the firm sent a letter to plaintiff, dated April 20, 2015, asking plaintiff to appear for an EUO on May 18, 2015. Mr. Kelleher states that plaintiff did not appear for that EUO, either.

Defendant was required to pay or deny claims 1 and 3 within 30 days of receipt (Compas Med., 2015 NY Slip Op 51667[U], *1). Defendant did not do so. Further, defendant did not toll its time to pay or deny claims 1 or 3, since it requested the EUO more than 30 days after receipt of those claims (Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Therefore, defendant’s denials of claim 1 and claim 3 were untimely.

[3] As to claim 2, defendant alleges that the bill was never received. Furthermore, defendant purports that plaintiff’s mailing of the claims to defendant’s Arizona location was improper due to the parties’ past dealings. Proof of proper mailing gives rise to a rebuttable presumption that the item was received by the addressee (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]). The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (id.). In order to rebut the presumption of receipt, the defendant, in addition to denying receipt, must show that the plaintiff did not follow routine office practices or that plaintiff’s routine office practices are so careless that it would be “unreasonable to assume that the notice was mailed” (see Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]).

To begin, defendant’s contention that plaintiff should have known that its location was not in Arizona is without merit. Plaintiff claims that it sent the three claims to the same Arizona address, and defendant acknowledges that it received at least two of them. As to the mailing of claim 2, plaintiff submitted an official United States Postal Service (USPS) mailing form designed to provide a record for accountable mail. However, the document contains conflicting date stamps: one stamp for January 8, 2015, and the other for January 8, 2016. Thus, the date of actual mailing is unclear. Essentially, plaintiff did not establish that claim 2 was mailed pursuant to its own office procedures. Although Ms. Kazanskaya, who claims to have personal knowledge of company’s procedures, detailed the{**55 Misc 3d at 193} office procedures for mailing, the dueling date stamps on the USPS form conflict with the procedures described in her affidavit. Hence, office procedures do not establish proper mailing in this instance (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547-548 [2d Dept 2006]; see also Alur Med. Supply, Inc. v GEICO Ins. Co., 27 Misc 3d 142[A], 2010 NY Slip Op 51053[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Because questions of fact prevent this court from finding that plaintiff mailed claim 2, this court likewise does not presume that defendant received claim 2.

For the foregoing reasons, defendant’s cross motion for summary judgment is denied. Plaintiff’s motion for summary judgment is granted only as to claims 1 and 3. Plaintiff may enter judgment for $1,499.07 plus statutory costs, attorney’s fees, disbursements and interest. With regard to claim 2, plaintiff has not yet established that the claim was timely mailed. However, if claim 2 is shown to have been timely mailed, then it was not timely denied by defendant. Accordingly, this case shall proceed to trial to determine whether or not claim 2 was timely mailed.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for respondent.

In a proceeding pursuant to CPLR 7511 to vacate an arbitration award dated March 24, 2014, in which Global Liberty Insurance Co. of N.Y. cross-petitioned to confirm the award, Global Liberty Insurance Co. of N.Y. appeals from an order of the Supreme Court, Suffolk County (Asher, J.), dated March 25, 2015, which granted the petition and denied the cross petition.

Ordered that the order is affirmed, with costs.

The petitioner, Liberty Mutual Fire Insurance Company, as subrogee of Mohan Singh (hereinafter Liberty Mutual), paid no-fault benefits on behalf of its insured for the medical treatment of a third party who was injured in a motor vehicle collision with a livery vehicle insured by Global Liberty Insurance Co. of N.Y. (hereinafter Global). Liberty Mutual thereafter sought to recover payments of $11,398.38 from Global in compulsory arbitration pursuant to Insurance Law § 5105. Despite finding that the livery vehicle insured by Global was 100% at fault in the happening of the accident, and notwithstanding Liberty Mutual’s submission of a payment ledger detailing the payments it made for various medical services, the arbitrator determined that Liberty Mutual did not properly manage the medical claims and awarded it only $5,699.19, or 50% of the amount sought. Liberty Mutual thereafter commenced this proceeding pursuant to CPLR 7511 to vacate the arbitration award, contending that the arbitrator erred in awarding it damages of only $5,699.19, rather than the full amount of $11,398.38, and Global cross-petitioned to confirm the award. The Supreme Court granted Liberty Mutual’s petition and denied Global’s cross petition, determining that there was no evidence to support the arbitrator’s findings. We affirm.

While judicial review of arbitration awards is limited to the grounds set forth in CPLR 7511, an award that is the product of compulsory arbitration, such as the one at issue in this case, “must satisfy an additional layer of judicial scrutiny—it ‘must have evidentiary support and cannot be arbitrary and capricious’ ” (City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 919 [2011], quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 46 [2015]; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 70 AD3d 1043 [2010]; Matter of Mercury Cas. [*2]Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2009]).

Here, in response to Liberty Mutual’s submission of evidence establishing the medical payments for which it sought reimbursement, Global failed to produce any evidence that any of the medical claims were improperly paid (see generally State Farm Mut. Auto. Ins. Co. v Stack, 55 AD3d 594, 595 [2008]). Accordingly, the arbitrator’s determination that Liberty Mutual was not entitled to full reimbursement was not supported by evidence in the record and was arbitrary and capricious (see generally Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008]). Under these circumstances, the Supreme Court properly granted Liberty Mutual’s petition and denied Global’s cross petition. Chambers, J.P., Dickerson, Miller and Brathwaite Nelson, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 14, 2014. The order granted defendant’s motion to vacate a default judgment and a marshal’s notice.

ORDERED that the order is reversed, without costs, and defendant’s motion to vacate the default judgment and the marshal’s notice is denied.

In June 2009, plaintiff commenced this action to recover assigned first-party no-fault benefits. Defendant failed to appear or answer, and a $6,288.40 default judgment was entered against defendant on December 8, 2009. On May 9, 2013, a marshal’s “notice of levy and sale” was issued which stated that $12,102.79 would be levied against defendant’s bank account. In September 2013, after its account had been levied, defendant moved to vacate the default judgment and the marshal’s notice. By order entered July 14, 2014, the Civil Court granted defendant’s motion.

On appeal, plaintiff contends, among other things, that defendant’s motion to vacate was untimely, and that defendant failed to show both a reasonable excuse for its default and a meritorious defense to the action.

It is well settled that, within one year after service of a default judgment with notice of entry, a defendant seeking to vacate the judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). Defendant asserts that, when the summons and complaint were served in June 2009, its employee erroneously returned the documents to plaintiff, instead of forwarding them to defendant’s attorney. Defendant argues that it timely moved to vacate the default judgment in September 2013, after it had received the marshal’s notice in May 2013. In opposition, plaintiff, among other things, submitted the affidavit of service of its mailing of the December 8, 2009 default judgment, with notice of entry, which stated that these documents were mailed to defendant on December 22, 2009. The affidavit of service created a presumption that defendant had received the default judgment with notice of entry (see Engel v Lichterman, 62 NY2d 943, 944-945 [1984]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

While defendant’s September 2013 motion to vacate was not made within one year after [*2]the December 2009 service upon defendant of a copy of the default judgment with notice of entry (see CPLR 5015 [a] [1]; Yung Chong Ho v Uppal, 130 AD3d 811, 812 [2015]; U.S. Bank N.A. v Bien-Aime, 123 AD3d 696, 697 [2014]), even after the expiration of the one-year period set forth in CPLR 5015, “a court may vacate its own judgment for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see also Yung Chong Ho v Uppal, 130 AD3d at 812). Nevertheless, in the case at bar, the vacatur of the default judgment upon the exercise of the Civil Court’s inherent power was not warranted, inasmuch as defendant failed to address, in its reply papers, the affidavit of service that plaintiff had submitted in opposition to defendant’s motion which created a presumption that defendant had received the default judgment with notice of entry in 2009. Even if defendant’s employee had erroneously returned the summons and complaint to plaintiff in June 2009, defendant has not proffered any excuse for its failure to move within a reasonable period of time after its receipt of the default judgment with notice of entry (see Matter of Liberty Mut. Ins. Co. v Fiduciary Ins. Co. of Am., 111 AD3d 731, 732 [2013]; Johnson v Nello Homes, 159 AD2d 562 [1990]).

Accordingly, the order is reversed and defendant’s motion is denied.

Solomon, J.P., Weston and Elliot, JJ., concur.

Decided on November 25, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

[*1]

Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts, November 25, 2016

APPEARANCES OF COUNSEL

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

The Law Office of Thomas Tona, P.C., St. James (Alison Berdnik of counsel), for respondent.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, the petition to vacate the master arbitrator’s award is denied and so much of the cross petition as sought to confirm the master arbitrator’s award is granted.

After the provider’s claim for assigned first-party no-fault benefits had been denied by the insurer due to the assignor’s failure to appear at duly scheduled independent medical examinations (IMEs), the provider submitted the claim to arbitration, pursuant to Insurance Law § 5106 (b). The IME scheduling letters that had been sent to the assignor stated that he would be reimbursed for any proven loss of earnings and reasonable transportation expenses incurred in complying with the IME request.^[FN*] The arbitrator determined that the IME scheduling letters were defective because they called for “proven” loss of earnings and did not track the language of the regulation, and found that, as a result, proper notice was not effectuated. The arbitrator awarded the provider the principal sum of $520.20. The insurer appealed the adverse decision to a master arbitrator, who vacated the arbitrator’s award in favor of the provider, upon a determination that the award “was not supported by sufficient evidence and was irrational, arbitrary and capricious and incorrect as a matter of law,” thereby, in effect, finding for the insurer.

{**54 Misc 3d at 33}The provider then commenced this proceeding to vacate the master arbitrator’s award, contending that the master arbitrator had exceeded his power, within the meaning of CPLR 7511 (b) (1) (iii), because he had performed an independent review of the evidence, assessed its [*2]credibility and made his own factual determinations. The insurer, by cross petition, sought to confirm the master arbitrator’s award. By order dated April 22, 2015, from which the insurer appeals, the District Court granted the provider’s petition and denied so much of the insurer’s cross petition as sought to confirm the master arbitrator’s award, finding that the master arbitrator had exceeded his authority by reviewing factual issues which had already been decided by the arbitrator and had impermissibly substituted his own factual determination for that of the arbitrator. We reverse.

Judicial review of a master arbitrator’s authority to vacate an award under Insurance Law § 5106 derives from CPLR 7511 (b) (1) (iii) and involves the question of whether the master arbitrator has exceeded his or her power (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 210 [1981]; see also Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231 [1982]). A master arbitrator is empowered to vacate an arbitration award based upon most grounds set forth in CPLR 7511 (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 210; see also 11 NYCRR 65-4.10 [a] [1]) or based upon the ground that the arbitration award “was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground)” (11 NYCRR 65-4.10 [a] [4]; see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d at 231; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 211). The power of a master arbitrator to review factual and procedural issues (unlike substantive law issues) is limited to “whether the arbitrator acted in a manner that was arbitrary and capricious, irrational or without a plausible basis” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 211). A master arbitrator “exceeds his statutory power by making his own factual determination, by reviewing factual and procedural errors committed during the course of the arbitration, by weighing the evidence, or by resolving issues such as the credibility of the witnesses” (Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [1994]; see also Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). If, however, the master arbitrator vacates the arbitrator’s award based upon an alleged error of a rule of{**54 Misc 3d at 34} substantive law, the determination of the master arbitrator must be upheld unless it is irrational (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d at 232; Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 576 [2002]).

Contrary to the provider’s contention, we find that the master arbitrator did not exceed the scope of his authority, as he did not weigh or independently evaluate issues of credibility or engage in any factual analysis. Rather, his legal analysis of the arbitrator’s determination was well within the scope of his authority to review and correct an error of law made by the arbitrator (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d at 231; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 211). Moreover, “applying the law to a given set of facts is well within the province of a master arbitrator, even if his conclusion differs from that of the arbitrator” (Martinez v Metropolitan Prop. & Liab. Ins. Co., 146 AD2d 610, 611 [1989]). Here, the master arbitrator determined that the use of the word “proven” in the IME scheduling letters did not render such letters ineffective, notwithstanding the fact that the word “proven” does not appear in 11 NYCRR 65-3.5 (e), and that proper notice of the scheduled IMEs was, therefore, effectuated. As the master arbitrator’s determination was not irrational (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d at 232), the District Court erred in granting the provider’s petition to vacate the master arbitrator’s award and in denying the insurer’s cross petition to confirm the master arbitrator’s award.

Accordingly, the order, insofar as appealed from, is reversed, the petition to vacate the master arbitrator’s award is denied and so much of the cross petition as sought to confirm the master arbitrator’s award is granted.

We incidentally note that a proceeding to confirm or vacate an arbitration award is a special proceeding brought pursuant to CPLR article 4, and must terminate in a judgment rather than an order (see CPLR 411).

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.

Footnotes

Footnote *:11 NYCRR 65-3.5 (e) provides: “The insurer shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request.”

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 29, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the automobile insurance policy in question had been issued in Florida, and that, based upon a conflict-of-law analysis, Florida law applied, pursuant to which there was a lack of coverage due to the valid rescission of the automobile insurance policy. By order entered September 29, 2014, the Civil Court denied defendant’s motion.

On appeal, defendant contends that it made a prima facie showing of its defense of rescission of the underlying insurance policy in accordance with Florida law and that its motion for summary judgment dismissing the complaint should have been granted. We agree.

It is undisputed that the vehicle in question was insured by defendant under a Florida automobile insurance policy. At the time of the accident at issue, which occurred in New York, the vehicle was being driven by the policyholder, and plaintiff’s assignor was a passenger in the vehicle. After defendant’s investigation revealed that, at the time the insured applied for automobile insurance, she did not reside at the Florida address listed on the insurance application and that the vehicle was not garaged at that Florida address, defendant rescinded the policy, ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits the retroactive cancellation of an insurance contract if there has been a material misrepresentation in an application for insurance.

In order to show that it properly voided a motor vehicle insurance policy ab initio, in accordance with Florida law, an insurer must demonstrate that it gave notice of the rescission to the insured and that it returned or tendered all premiums paid within a reasonable time after the discovery of the grounds for avoiding the policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; [*2]see also Hu-Nam-Nam, M.D. v Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Inasmuch as defendant demonstrated, through the supporting affidavit of its litigation specialist and accompanying documents, that it had complied with the foregoing requirements, defendant’s prima facie entitlement to summary judgment was established (see Hu-Nam-Nam, M.D. v Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U], *1; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d at 7). In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Florida law.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Aliotta, JJ., concur.