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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.

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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

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered January 8, 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits in the principal sum of $2,279.17, plaintiff appeals from an order which denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. Plaintiff moved for summary judgment as assignee of Mercedes Sinclair. The affidavit submitted by plaintiff’s employee in support of the motion was sufficient to establish plaintiff’s prima facie entitlement to summary judgment with respect to the services at issue (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). Defendant opposed the motion, and cross-moved for summary judgment, on the ground that defendant had paid the claim at issue. While plaintiff argues that defendant’s cross motion should have been denied because of procedural defects, plaintiff failed to assert, let alone demonstrate, prejudice in support of its contentions that the substitution of defense counsel had not been performed in accordance with CPLR 321 (b) (1) (see EIFS, Inc. v Morie Co., 298 AD2d 548, 550 [2002]); that defendant’s cross motion was untimely (see Lawrence v Celtic Holding, LLC, 85 AD3d 874, 875 [2011]; Kavakis v Total Care Sys., 209 AD2d 480 [1994]); and that defendant had failed to annex a copy of the pleadings to its cross motion (see CPLR 2001). In any event, plaintiff submitted the pleadings in support of its motion, and, thus, the record is “sufficiently complete” (Long Is. Pine Barrens Socy., Inc. v County of Suffolk, 122 AD3d 688, 691 [2014]).

Defendant acknowledges its receipt of the disputed claim in the amount of $2,279.17. While defendant contends that it issued a check to plaintiff in the amount at issue, and defendant proffered a copy of the canceled check, defendant failed to establish that a check had been mailed within the 30-day period to pay or deny the claim. Consequently, an issue of fact exists as to whether defendant timely paid the claim at issue, and, thus, neither party is entitled to summary judgment.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

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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.

Decided on November 21, 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 (Ulysses Bernard Leverett, J.), entered October 30, 2014. 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.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it did not provide insurance coverage for the vehicle in question on the date of the accident. By order entered October 30, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

In support of its cross motion, and in opposition to plaintiff’s motion, defendant submitted an affidavit by its senior field support representative, who described the details of a record search which she had performed and stated that her search had revealed that there was no Allstate Insurance Company policy covering the subject vehicle in effect on the date of the accident. We find that defendant’s affidavit was sufficient to demonstrate, prima facie, that plaintiff’s claim did not arise out of a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Renelique v Allstate Ins. Co., 47 Misc 3d 140[A], 2015 NY Slip Op 50609[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Inasmuch as plaintiff failed to raise a triable issue of fact, the Civil Court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Renelique v Allstate Ins. Co., 47 Misc 3d 140[A], 2015 NY Slip Op 50609[U]).

Accordingly, the order is affirmed.

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

Decided on November 17, 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

(Ulysses Bernard Leverett, J.), entered February 10, 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

For the reasons stated in Art of Healing Medicine, P.C., as Assignee of James Dorsainvil v Allstate Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2014-2501 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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