The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), dated April 15, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through third causes of action are 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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.

Plaintiff argues that defendant failed to deny the claims underlying the first through fourth causes of action within 30 days of the second EUO nonappearance and that, as to all seven causes of action, defendant’s mailing affidavits did not set forth practices and procedures sufficient to demonstrate proper mailing of the EUO scheduling letters and denial of claim forms on the dates alleged.

Plaintiff correctly argues that defendant failed to establish that it timely denied the claims underlying the first through third causes of action within 30 days of the second EUO nonappearance (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on those causes of action, as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

With respect to the fourth through seventh causes of action, the proof submitted by defendant was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms had been properly mailed on the dates alleged (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Finally, with respect to the fourth cause of action, the record establishes that a letter had been mailed on March 28, 2018 scheduling an EUO for April 28, 2018. The resulting toll applied to the claim underlying the fourth cause of action, which claim defendant had received on April 6, 2018 (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11tth & 13th Jud Dists 2011]). A follow-up letter was then timely mailed on April 30, 2018, scheduling an EUO for May 25, 2018. Thus, defendant’s June 5, 2018 denial of that claim was timely (see id.; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]).

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through third causes of action are denied.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 12, 2022

Hollander Legal Group, P.C. (Damin J. Toell of counsel), for appellant. The Rybak Firm, PLLC (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered August 22, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider’s assignor had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the assignor, that the assignor had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Parisien v Metlife Auto & [*2]Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Upon a review of the record, we find, contrary to plaintiff’s sole contention on appeal with respect to defendant’s motion, that defendant sufficiently established that the EUO scheduling letters had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; JCC Med., P.C. v Lancer Ins. Co., 71 Misc 3d 140[A], 2021 NY Slip Op 50485[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Parisien v Ameriprise Ins., 68 Misc 3d 131[A], 2020 NY Slip Op 50990[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 12, 2022

[*1]

RA Med. Servs., P.C. v Lancer Ins. Co.

2022 NY Slip Op 50794(U) [76 Misc 3d 129(A)]

Decided on August 12, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 12, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1442 K C

RA Medical Services, P.C., as Assignee of Saint-Flavin, Farra M., Respondent,

against

Lancer Insurance Co., Appellant.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 8, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath and granting plaintiff’s cross motion for summary judgment.

For the reasons stated in RA Med. Servs., P.C., as Assignee of Saint-Flavin, Farra M. v Lancer Ins. Co. (___ Misc 3d ___, 2022 NY Slip Op ______ [appeal No. 2019-1404 K C], decided herewith), the order is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 12, 2022

[*1]

RA Med. Servs., P.C. v Lancer Ins. Co.

2022 NY Slip Op 50793(U) [76 Misc 3d 129(A)]

Decided on August 12, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 12, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1404 K C

RA Medical Services, P.C., as Assignee of Saint-Flavin, Farra M., Respondent,

against

Lancer Insurance Co., Appellant.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 8, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and granting plaintiff’s cross motion for summary judgment.

Contrary to defendant’s contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to appear for EUOs, since the initial EUO request to plaintiff had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip [*2]Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Furthermore, as defendant raises no issue with respect to plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Accordingly, the order is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 12, 2022

Parisien v Allstate Ins. Co.

2022 NY Slip Op 22262 [76 Misc 3d 14]

Accepted for Miscellaneous Reports Publication

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

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, October 19, 2022

[*1]

Jules Francois Parisien, M.D., as Assignee of Emma Pierre-Louis, Appellant, v Allstate Insurance Company, Respondent.

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, August 12, 2022

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel) for appellant.

Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel) for respondent.

Memorandum.

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

In this action by a provider to recover assigned first-party no-fault benefits from the alleged insurer of its assignor, defendant failed to appear or answer the complaint, and a default judgment was entered on July 26, 2018. On September 6, 2018, defendant served an answer and, in November 2018, it moved to vacate the default judgment. Plaintiff appeals from an order of the Civil Court entered October 21, 2019, granting defendant’s motion, finding that defendant had demonstrated a reasonable excuse for its default and a meritorious defense.

In its moving papers, defendant explained that its default had been due to its own failure to forward the complaint to its attorneys. However, it asserted that it had not ignored the matter, but rather had informed plaintiff several months prior to the commencement of the action that it was not the insurance carrier for plaintiff’s assignor—an assertion which plaintiff has never contradicted. Upon receiving notice of the default judgment, defendant requested that the action [*2]be “withdrawn.” Defendant thereafter referred the matter to its counsel, which promptly served an answer and then moved to vacate the default judgment.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The determination of what constitutes a reasonable{**76 Misc 3d at 16} excuse for a default generally lies within the sound discretion of the motion court (see Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 886 [2019]). Here, in light of the absence of an evident pattern of neglect and counsel’s prompt actions, upon entering the case, in seeking to vacate the default (see Barajas v Toll Bros., 247 AD2d 242, 242-243 [1998]), the meritorious defense of lack of coverage, which plaintiff has never disputed, plaintiff’s failure to claim any prejudice by reason of the brief delay involved (see New York Univ. Hosp. Tisch Inst. v Merchants Mut. Ins. Co., 15 AD3d 554, 555 [2005]; see also Matter of A&F Scaccia Realty Corp. v New York City Dept. of Envtl. Protection, 200 AD3d 875, 878 [2021]; Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d 745, 746 [2018]), and the public policy favoring the resolution of cases on the merits (see Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d at 746; Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832, 833 [2009]; Legion Ins. Co. v James, 27 Misc 3d 128[A], 2010 NY Slip Op 50593[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), we conclude that the Civil Court providently exercised its discretion in granting defendant’s motion.

Accordingly, the order is affirmed.

Weston, J. (dissenting and voting to reverse the order and deny defendant’s motion to vacate the default judgment in the following memorandum).

When defendant was served with a summons and complaint on May 29, 2018, it elected not to forward the matter to its attorney to serve and file an answer because it believed that plaintiff’s claim is meritless. Defendant did not answer until September 6, 2018, approximately six weeks after a default judgment had been entered on July 26, 2018, and more than three months after service. A party may not choose when to answer and, given the lengthy delay in answering, it is clear that defendant’s default was intentional and, therefore, inexcusable (see Fok v Insurance Co. of N. Am., 151 AD2d 722, 722 [1989]). Since defendant failed to establish a reasonable excuse for its default in answering the complaint, defendant’s motion should have been denied without the need to consider whether defendant demonstrated the existence of a potentially meritorious defense (see Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 887 [2019]; New Century Mtge. Corp. v Adeyan-Ju, 139 AD3d 683, 684 [2016]).

Accordingly, I vote to reverse the order and deny defendant’s motion to vacate the default judgment.{**76 Misc 3d at 17}

Aliotta, P.J., and Buggs, J., concur; Weston, J., dissents in a separate memorandum.

Marshall & Marshall, PLLC (David A. Gierasch of counsel), for appellant. Dash Law Firm, P.C. (James Errera of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered July 19, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, without costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) (sued herein as MVAIC Insurance Company) appeals from an order of the District Court denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

It is undisputed that plaintiff was required to submit its claim forms to MVAIC within 45 days after the services at issue had been rendered (see 11 NYCRR 65-1.1; Synergy First Med., PLLC v MVAIC, 44 Misc 3d 127[A], 2014 NY Slip Op 50964[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2014]) and that plaintiff did not do so. In support of its motion for summary judgment, MVAIC established that it had timely denied plaintiff’s claims, based upon plaintiff’s untimely submissions, and that it had informed plaintiff that MVAIC could excuse the delay if plaintiff provided “reasonable justification” for the delay (see 11 NYCRR 65-3.3 [e]; see also Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 862-863 [2003]; Mount Sinai Hosp. of Queens v Country Wide Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50780[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). In opposition to MVAIC’s motion, plaintiff demonstrated that it had initially sent the claims at issue to an insurance company, but after plaintiff learned that the insurance company would not cover the claims, plaintiff sent the claims to MVAIC. However, plaintiff did not establish that it had provided MVAIC with a reasonable justification as to why it had initially submitted the claims to the insurance company. As a result, plaintiff did not establish that it had provided MVAIC with a reasonable justification for its untimely submission to MVAIC of the claim forms (see Norman Y. Schoenberg, M.D., P.C. v N.Y.C. Tr. Auth., 39 Misc 3d 128[A], 2013 NY Slip Op 50421[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 26 Misc 3d 145[A], 2010 NY Slip Op 50449[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

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

EMERSON, J.P., GARGUILO and DRISCOLL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 11, 2022

Life Equipment, Inc AAO Keandre Black, Plaintiff(s), against Mid-Century Ins Co, Defendant(s).

Index No. CV-750591-18/KI

Attorney for Plaintiff:
Zachary Whiting, Esq.
Law Office of Zara Javakov Esq., P.C.
100 Livingston St, Fl 4
Brooklyn, NY 11201

Attorney for Defendant:
William Ross Van Tuyl, Esq.
Law Offices of Buratti Rothenberg & Burns
90 Merrick Avenue, Suite 300
East Meadow, NY 11554

Ellen E. Edwards, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers           &nb sp;            &nbs p;                           & nbsp;            &n bsp;     Numbered
Notice of Motion and Affidavits /Affirmations annexed SLIVKW; VK0TOY
Answering Affidavits/ Affirmations           &n bsp;            &nb sp;     PINFJE; WANWVP
Reply Affidavits/ Affirmations
Memoranda of Law
Other

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment on ground that plaintiff’s assignor failed to appear for Independent Medical Examinations (“IMEs”). Plaintiff opposes the defendant’s motion and cross moves for summary judgment in its favor. The following bill is at issue:

Date of Service	Bill    Amount	Date Bill Received	IME Scheduling Letters sent	IME Date	Date Denied
5/17/18 to 6/6/18	$1049.79	6/12/18	5/18/18; 6/14/18; 7/25/18	6/12/1; 7/10/1;  8/14/18	8/22/18; 9/20/18

Upon the forgoing cited papers, and after oral argument, the Decision/Order on defendant’s motion for summary judgment and plaintiff’s cross motion is as follows:

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action.
(Xiang Fu He v. Troon Mgt., Inc., 34 NY3d 167, 175 (2019) (internal citations and quotation marks omitted)).

A. Defendant’s Motion for Summary Judgment

I. IME No-Show

An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy.” (Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 (2d Dept. 2006)). “Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs ‘when, and as often as, the [insurer] may reasonably require.'” (Id. at 722, citing 11 NYCRR 65-1.1).

To meet its prima facie burden, the defendant must establish that: (1) it properly mailed scheduling letters for IMEs to plaintiff’s assignor; (2) the IME was timely scheduled; (3) the assignor failed to appear at the initial IME and the rescheduled follow-up IME; and (4) defendant timely denied the claim on that ground. (Motionpro Physical Therapy v. Hereford Ins. Co., 58 Misc 3d 159(A) (App Term 2018)).

Here, the defendant contends that it issued proper and timely denials based on the assignor’s failure to appear for three scheduled IMEs. Defendant submitted the affidavit of its claims representative, Christopher Stewart to explain why defendant requested the IMEs. (See defendant’s exhibit D, Stewart aff). Stewart attested that defendant requested an IME after receiving notice that plaintiff’s assignor was involved in an accident on March 22, 2018. (Id. at ¶ 14). Thereafter, defendant requested a third-party company, ExamWorks, Inc. to schedule an initial IME on June 12, 2018 at 2:15pm. (Id. at ¶ 15). ExamWorks, Inc. also rescheduled follow-up IMEs for July 10, 2018 at 1:00 pm and August 14, 2018 at 1:00 pm. ((Id.).

“Generally, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee.” (Viviane Etienne Med. Care, P.C. v. Country—Wide Ins. Co.,114 AD3d 33, 46 (2d Dept 2013)). “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.” (New York and Presbyt. Hosp. v. Allstate Ins. Co., 29 AD3d 547 (2d Dept 2006) quoting Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 (2d Dept 2001). To the extent that proof of mailing is based upon a standard office practice or procedure, the burden is on the insurer to present an affidavit of an employee who personally mailed the items, or an employee with personal knowledge of the office’s mailing practices and [*2]procedures. (Quality Psychological Services, P.C. v. Hartford Ins. Co., 38 Misc 3d 1210(A) (Civ Ct 2013)). This individual “must describe those practices or procedural in detail, explicitly denoting the manner in which she/he acquired the knowledge of such procedures or practices, and how a personal review of the file indicates that those procedures or practices were adhered to with respect to the processing of that particular claim.” (Id.)

Here, defendant relies on the affidavit of Georgianna Michios, a litigation manager at ExamWorks Inc. to establish proof of timely mailing of the IME scheduling letters. (See defendant’s exhibit I, Michios aff). The Court finds that defendant’s submission of Michios’ affidavit is insufficient to establish that the IME scheduling letters were timely and properly mailed. The Court agrees with plaintiff that the affidavit is conclusory. Michios merely states that an employee places the scheduling letters in a properly addressed envelope and mails the letter via regular mail and/ or certified mail. (Id. at ¶ 5). This affidavit fails to explicitly state ExamWorks, Inc. practices and procedures for mailing the scheduling letters.

Further, defendant’s submission of the three delivery confirmation receipt is also insufficient to prove that the IME scheduling letters were timely and properly mailed. (See defendant’s exhibit G, IME Scheduling Letters). The Appellate Division, Second Department found that defendant’s submission of a certified mail receipt and “Track & confirm” printout were insufficient where there was no evidence presented that the item purportedly mailed to the plaintiff was mailed under the proffered certified receipt number. (New York and Presbyt. Hosp., 29 AD3d 547). Here, the three delivery confirmation receipts submitted by the defendant state that the items were delivered on May 23, 2016, June 18, 2018 and July 27, 2018, respectively. However, there was no evidence presented that the items purportedly mailed to the plaintiff were mailed under the proffered certified receipt number listed on each delivery confirmation receipt. Thus, the defendant failed to establish timely mailing of the IME scheduling letters.

Even if defendant had demonstrated timely mailing of the scheduling letters, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs. Here, defendant submitted the affidavit of John Iozzio, a licensed chiropractor and acupuncturist. (See defendant’s exhibit H, Iozzio aff). The basis of Iozzio’s information is his personal knowledge of his office policy, and review of the physical file and computer records. (Id. at ¶ 3). Iozzio’s business practice is to make a notation in the file, if the individual fails to appear. (Id. at ¶ 4). Iozzio stated that he personally recorded each of Keandre Black’s nonappearance at the scheduled IMEs. (Id. at ¶¶ 6,8,10). However,

“it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Accordingly, [e]vidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay.’ “

 (Longevity Med. Supply, Inc. v. Progressive Ins. Co., 68 Misc 3d 748, 753 (Civ Ct 2020) quoting Bank of New York Mellon v. Gordon, 171 AD3d 197, 205-06 (2d Dept. 2019)). Here, Iozzio did not submit any business records evidencing the assignor’s nonappearance.

Further, Iozzio stated that he was present at each scheduled IME. According to Iozzio, the assignor failed to appear for the initial IME on June 12, 2018, and rescheduled follow-up IMEs on July 10, 2018 and August 14, 2018. (See Iozzio aff Iozzio at6,8,10). Iozzio neither stated how and whether he would have been able to identify the insured, or that no one appeared at the office at the time of each scheduled IME. (Longevity Medical Supply, Inc., 68 Misc 3d at 748). Therefore, the court agrees with plaintiff that Iozzio’s affidavit lacked personal [*3]knowledge regarding the assignor’s nonappearance.

Thus, defendant failed to establish that plaintiff’s assignor failed to appear at the IMEs on June 12, 2018, July 10, 2018 and August 14, 2018.

II. Timeliness of the Denial of Claim Forms

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim.” (Infinity Health Prods., Ltd. v. Eveready Ins. Co., 67 AD3d 862, 864 (2d Dept. 2009) [internal citations omitted]).

Defendant contends that on June 12, 2018 it received a bill from plaintiff for the dates of service on May 17, 2018 through June 6, 2018. The bill was in the amount of $1049.79. According to defendant, after plaintiff’s assignor failed to appear for IMEs on June 12, 2018 and August 14, 2018, a general denial form dated August 22, 2018 was mailed to plaintiff on August 23, 2022. This denial falls within the 30-days period. Also, another denial of claim form dated September 20, 2018 was mailed to plaintiff on September 21, 2018.

To establish proper mailing, defendant submits the affidavit of Carlton Lewis, a mailing manager, and certificates of mailing report. (See defendant’s exhibit E, Lewis aff; defendant’s exhibit C, Denials). According to Lewis, the items were either generated and mailed from mailing centers in Chino, California or Caledonia, Michigan. (Lewis aff ¶ 3). Lewis further stated that both denials were delivered to the U.S. Post Office, and there were no notations on the certificate of mailing reports that either denial was delayed or there were any malfunctions. (Id. at ¶¶ 9,10,15). Lewis’ affidavit and certificates of mailing reports establish proof of mailing of the denial claims forms on August 23, 2022 and September 21, 2018, in accordance with a standard office procedure. (Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679 (2d Dept. 2001); Ortho-Med Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 27 Misc 3d 141(A) (App Term 2010)).

Contrary to plaintiff’s arguments, Lewis demonstrated personal knowledge of the mailing procedures. Lewis was employed as the mailing manager at both the Caledonia and Chin mailing centers (Curtin aff ¶ 1). Also, he is responsible for ensuring that the standard mailing practices and procedures are followed. (Id. at ¶ 2). Further, Lewis’ affidavit properly laid the foundation for the admission of the denial of claim forms and certificates of mailing reports as business records.

Thus, defendant timely issued denial of claim forms for the dates of service on May 17, 2018 through June 6, 2018. However, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs on May 23, 2016, June 18, 2018 and July 27, 2018.

Accordingly, defendant’s motion for summary judgment is granted to the extent it established that it timely denied plaintiff’s claim.

B. Plaintiff’s Cross-Motion for Summary Judgment

A no-fault provider establishes its prima facie entitlement to summary judgment by (1) proof of the submission to the defendant of a claim form; (2) proof of the fact and the amount of the loss sustained; and (3) proof either that the defendant had failed to pay or deny the claim within the requisite 30—days period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. (See Insurance Law § 5106(a)); Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 (2010); see also New York & Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512 (2006)). Once plaintiff meets its prima facie [*4]burden, the burden shifts to defendant to raise a triable issue fact. (See Alvarez v. Prospect Hosp., 68 NY2d 320 (1986)).

To establish proper mailing, plaintiff submits the affidavit of its owner, Albert Khaimov to describe its’s standard office and procedures for generating and mailing bills. (See plaintiff’s exhibit C, Khaimov aff). Khaimov stated that he created a bill in the amount of $1049.79 for the dates of service on May 17, 2018 through June 6, 2018. (Id. at 20). However, he does not state when the bill was mailed to defendant. The court may, in its discretion, rely on defendant’s documentary submissions to establish defendant’s receipt of plaintiff’s claims. (Devonshire Surgical Facility v. GEICO, 16 Misc 3d 130(A) (App Term 2007)). Here, defendant’s claim representative affidavit established receipt of plaintiff’s bill on June 12, 2018. (Stewart aff 18). Further, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s motion papers, which admitted receipt of plaintiff’s bills. (Bob Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135(A) (App Term 2016); see Oleg Barshay, DC, P.C. v. State Farm Ins. Co., 14 Misc 3d 74 (App Term 2006); Longevity Med. Supply, Inc., 68 Misc 3d at 758). Therefore, defendant’s claim representative affidavit and denial of claims forms established receipt of plaintiff’s claim. Further, Khaimov stated that the bill was neither paid nor denied within the 30-days period. (Khaimov aff 20).

Defendant proved that it timely denied plaintiff’s claim by timely mailing denial of claim forms. However, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at duly scheduled IMEs. Therefore, the issue that is presented here is whether the timely denials warrant denial of plaintiff’s cross motion for summary judgment in its favor, even though the evidence of the grounds of the denials was insufficient. The court in Longevity Med. Supply, Inc. v. Progressive Ins. Co discussed how two Appellate Term, Second Department decisions reached opposite results on this issue. (See Longevity Med. Supply, Inc., 68 Misc 3d at 759-60. The court discussed that,

[In Rockaway Med. and Diagnostic, P.C. v. Country-Wide Ins. Co., 29 Misc 3d 136(A) (App Term 2010)], once the plaintiff met its prima facie burden, the Appellate Term required the defendant not only to come forward with evidence that the denial was timely, but also to lay bare the evidence of the grounds of the denial, which had to be sufficient to establish the grounds. [Three years later in Shara Acupuncture, P.C. v. Allstate Ins. Co., 41 Misc 3d 129(A) (App Term 2013), once the plaintiff met its prima facie burden that the claims were neither paid nor denied within the 30-day period after defendant’s receipt of the bill, the Appellate Term required the insurer only to come forward with evidence that the denial was timely to defeat the plaintiff’s motion for summary judgment. Put differently, once the insurer came forward with evidence that the denial was timely, the burden in Shara Acupuncture, P.C. appears to shift back to the plaintiff to establish the denial was conclusory, vague or without merit as a matter of law to be entitled to summary judgment.

(Longevity Med. Supply, Inc., 68 Misc 3d at 760) (internal citations omitted.)

Shara Acupuncture, P.C. controls here. As discussed above, the plaintiff’s prima facie burden can be established in two ways: (1) proof that the defendant had failed to pay or deny the claim within the requisite 30-days period, or (2) proof that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. (Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128(A) (App Term 2011)). If plaintiff cannot meet its prima facie burden under the first method because defendant submitted evidence of a timely [*5]denial, then the court should consider whether plaintiff met the prima facie burden under the second method. (Longevity Med. Supply, Inc., 68 Misc 3d at 760 citing Longevity Med. Supply, Inc. v. Glob. Liberty Ins. Co., 67 Misc 3d 135(A) (App Term 2020)).

Here, the plaintiff’s prima facie burden was based solely on proof that the claims were neither paid nor denied within the 30-days period. However, the defendant established that it timely denied plaintiff’s bill. Because plaintiff had not demonstrated that the denials were conclusory, vague, or without merit as a matter of law, plaintiff is not entitled to judgment in its favor.

Thus, plaintiff’s cross motion for summary judgment is granted to the extent that it established timely submission of the bill to defendant, and that it remains unpaid.

C. Conclusion

Plaintiff met its prima facie case by establishing timely mailing of the bill to defendant, and that it remains unpaid. Defendant met its prima facie case by establishing timely denial.

Accordingly, the defendant’s motion for summary judgment is granted to the extent it established that it timely denied plaintiff’s bill. The plaintiff’s cross motion for summary judgment is granted to the extent it established timely submission of the claim to defendant, and the bill remains unpaid. The issue left for trial is defendant’s IME no-show defense.

This constitutes the decision and order of the court.

Dated: August 9, 2022
Hon. Ellen E. Edwards
Judge of the Civil Court

[*1]

PFJ Med. Care, P.C. v Nationwide Ins.

2022 NY Slip Op 50783(U) [76 Misc 3d 128(A)]

Decided on August 5, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 5, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1380 K C

PFJ Medical Care, P.C., as Assignee of Ferril, Gabriel, Appellant,

against

Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 12, 2019. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first through seventh and tenth causes of action, and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the first through seventh and tenth causes of action, and denied plaintiff’s cross motion for summary judgment.

To the extent plaintiff contends that defendant was not entitled to summary judgment dismissing the first through seventh and tenth causes of action, for the reasons stated in ACH Chiropractic, P.C., as Assignee of Ferril, Gabriel J. v Nationwide Ins. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2019-1357 K C], decided herewith), plaintiff’s contentions lack merit.

With respect to plaintiff’s argument that it was entitled to summary judgment upon the eighth and ninth causes of action, the affidavit submitted by plaintiff’s owner was insufficient to give rise to a presumption that those claim forms had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, the branches of plaintiff’s cross motion seeking summary judgment on the eighth and ninth causes of action were properly denied.

Accordingly, the the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 5, 2022

[*1]

ACH Chiropractic, P.C. v Nationwide Ins.

2022 NY Slip Op 50782(U) [76 Misc 3d 128(A)]

Decided on August 5, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 5, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1357 K C

ACH Chiropractic, P.C., as Assignee of Ferril, Gabriel J., Appellant,

against

Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated June 28, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contention on appeal, defendant established that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Plaintiff’s remaining argument is not properly before this court as it is being raised for the [*2]first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 5, 2022

American Transit Insurance Company, Petitioner, against Mark S. McMahon MD, P.C. A/A/O RUBIN GOMEZ, Respondent.

Index No. CV-009422-20/NY

Peter C. Merani, P.C. (Adam Waknine, of counsel), New York City, for petitioner.

Samandarov & Associates, P.C. (David M. Gottlieb, of counsel), New York City, for respondent.

Richard Tsai, J.

In this special proceeding arising out of a no-fault arbitration, petitioner American Transit Insurance Company (ATIC) seeks to vacate the determination of a master arbitrator affirming the award of a no-fault arbitrator, which awarded respondent first-party no-fault benefits (Motion Seq. No. 001). Respondent Mark S. McMahon MD, P.C. a/a/o Rubin Gomez opposes the petition and seeks attorney’s fees incurred in opposing the petition.

BACKGROUND

Respondent Mark S. McMahon MD, P.C is the assignee of claims for no-fault benefits for arthroscopic surgery performed on the right knee of Rubin Gomez on October 31, 2017 , for injuries allegedly arising out of an automobile accident on June 3, 2017 (see petitioner’s exhibit B, NF-10 form and Explanation of Benefits). ATIC denied the claims on the ground that the [*2]surgery and surgically related services to the right knew were not causally related to the accident, based on a peer review, and “no medical necessity and no causal relationship between the accident and the shoulder surgery of 10/31/17” (see id.). Respondent then submitted the claims to no-fault arbitration (see petitioner’s exhibit D, no-fault arbitration request).

A no-fault arbitration hearing of respondent’s claims was held before the American Arbitration Association on January 8, 2020 (see petitioner’s exhibit A, no-fault arbitrator award).

Arbitrator Marcie Glasser ruled in favor of respondent, finding that “Claimant had a causally-related ongoing knee injury for which surgery was medically necessary under the circumstances” (see id. at 5). The no-fault arbitration award dated January 14, 2020 states, in relevant part:

“With regard to medical necessity defense, I find that [ATIC]’s Peer Review Report is sufficient to meet its burden of proof and to rebut [respondent]’s evidence. Thereafter, the burden shifts back to [respondent] to present competent medical proof as to the medical necessity for the knee arthroscopy, by a preponderance of the credible evidence. . . . Ultimately, the burden of proof rests with the [respondent].

* * *

I find that this burden as to medical necessity has been met by [respondent]’s medical records, the Rebuttal Report, Letter of Medical Necessity of Dr. McMahon, and the evidence collectively. I am convinced that the Claimant attempted an ample course of non-operative conservative treatment measures including physical therapy under the circumstances, and the decision to perform arthroscopic knee surgery was reasonable to repair the meniscus tear. Moreover, this finding is supported by the fact that the credibility of the Peer Review Report is diminished as it is found to be conclusory in nature, and because Dr. Skolnick primarily relied upon the independent radiology report of Dr. Fitzpatrick which bears minimal weight in this determination. The treating radiologist and the treating orthopedist both reviewed the MRI which showed a tear of the posterior horn of the medial meniscus. The Rebuttal Report appropriately addressed the issues of the Peer Review Report. The orthopedic surgeon, Dr. McMahon, based on his professional experience, examination and treatment of the Claimant determined that the surgery for the meniscus tear was in accordance with the standard of care. I find that the Claimant had a causally-related ongoing knee injury for which surgery was medically necessary under the circumstances”

(petitioner’s exhibit A, no-fault arbitrator award at 4-5). On the issue of lack of causation, the award states, in relevant part:

“I find that Respondent has not adequately demonstrated lack of causation, and therefore, the defense cannot be sustained. The Peer Review Report of Dr. Skolnick is found to be conclusory with regard to the issue of causation. Moreover, Dr. Skolnick relied on the Independent Radiology Evaluation of Dr. Fitzpatrick, which states that the MRI findings, specifically the cartilage thinning, are degenerative in nature, but the Independent Radiology Evaluation, was not specific as to the tear in relation to the thinning cartilage. In the Addendum, Dr. Skolnick stated that he agrees with the treating radiologist’s report that the MRI showed a tear of the meniscus; however, according to the independent radiology review of Dr. Fitzpatrick, there was no evidence of traumatic injury. I find that [*3]Dr. Skolnick’s determination that the MRI showed no traumatic injury is without appropriate reliance on the independent radiology review of Dr. Fitzpatrick. The Peer Reviewer himself interpreted the MRI as showing a meniscus tear, which is in accordance with the interpretation of the MRI by the treating orthopedist and the treating radiologist. The independent radiologist did not state with specificity that the meniscus tear is degenerative in nature and there is a lack of support for the opinion that the injury is not causally related to the accident. I find that the reliance on the Independent Radiology Review is misplaced, and Dr. Skolnick’s finding of lack of causation is conclusory”

(id. at 5).

The arbitrator also awarded interest from the date of 1/21/2019, and attorney’s fees in the amount “in accordance with newly promulgate 11 NYCRR 65-4.6(d) on the amount awarded of $4,702.03 at a rate of 2% per month, simple and ending with the date of payment of the Award” (id. at 7). The arbitrator also directed ATIC to pay respondent $40 for reimbursement of the fee paid to the Designated Organization, unless the fee was previously returned pursuant to an earlier award (id.).

On appeal, Master Arbitrator Robert Trestman affirmed the original arbitrator’s award in its entirety. The master arbitration award, dated March 24, 2020 states, in relevant part:

“I have carefully reviewed the parties’ briefs, the record on appeal, as presented by respondent and the pertinent case law, including the two cases hereinabove cited by respondent. The arbitrator’s detailed findings and conclusions as to the medical necessity and causal relationship issues were within the arbitrator’s sound discretion and rational interpretation of the evidence and which I do not find to be reversible error within my purview as a Master Arbitrator. . . . Within my powers as a Master Arbitrator, I cannot conduct a de novo review of the case and I cannot substitute my interpretation or my view as to the weight or credibility of the evidence over that of the lower arbitrator, especially as the arbitrator’s decision appears to be rational and based on the evidentiary record”

(petitioner’s exhibit A, master arbitration award, at 2-3).

The master arbitrator also awarded $195 to the applicant for attorney’s fees for having prevailed in the master arbitrator’s review of the award (see id. at 5).

On July 29, 2020, ATIC commenced this proceeding pursuant to CPLR 7511 to vacate the master arbitrator’s award.

DISCUSSION

“Judicial review of a master arbitrator’s award is restricted, by the terms of the statute, to the grounds for review set forth in article seventy-five of the CPLR” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981] [internal quotation marks omitted]; Insurance Law § 5106 [c]). Pursuant to CPLR 7511 (b), an arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeding his, her, or their power or imperfectly executed it that a final or definite award was not made; or (4) the failure to follow [*4]the procedures of CPLR article 75. Additionally,

“[w]here, as here, there is compulsory arbitration involving no-fault insurance, the standard of review is whether the award is supported by evidence or other basis in reason. This standard has been interpreted to mean that the relevant test is whether the evidence is sufficient, as a matter of law, to support the determination of the arbitrator, [and whether the determination] is rational and is not arbitrary and capricious”

(Matter of Miller v Elrac, LLC, 170 AD3d 436, 436-37 [1st Dept 2019], lv denied 33 NY3d 907 [2019], citing Matter of Petrofsky, 54 NY2d at 211).

According to ATIC, the arbitrators ignored explicit evidence that ATIC had submitted, failed to apply the proper evidentiary burdens, and rendered an award that was not final and definite that was prejudicial to petitioner (affirmation of petitioner’s counsel ¶ 62). Citing the standards applicable to an insurer’s motion for summary judgment on the ground of medical necessity, ATIC contends that, once it offered it peer review report of Dr. Skolnick, the burden should have shifted to respondent to rebut with evidence establishing that the services were medically necessary (see id. ¶¶ 21-23). ATIC contends that respondent failed to meet its burden because “Respondent offered no significant rebuttal to actually rebut the findings of Dr. Skolnick” (id. ¶ 34).

ATIC argues, “Dr. Skolnick submitted an addendum dated 3/7/19. In it, Dr. Skolnick directly addressed Dr. McMahon’s general statements concerning an alleged tear in the knee necessitating the surgery. Dr. Skolnick stated there was no right knee fracture or dislocation” (id. ¶ 31). According to ATIC, “[t]he no-fault arbitrator exceeded his bestowed powers as there was no basis simply to cast aside the entirety of petitioner’s evidence” (id. ¶ 38).

Respondent maintains that “ATIC’s evidence was not cast aside. It was carefully reviewed and found to be insufficient, in light of the facts and Respondent’s rebuttal (affirmation in opposition of respondent’s counsel ¶ 11). Respondent contends that petitioner’s disagreement with the arbitrator’s findings of fact is not a basis to vacate the award (id.). Respondent further argues, “Applicant was not required to prove that the motor vehicle [sic] exacerbated a pre-existing condition. That was ATIC’s burden if ATIC wanted to prove that the injury was not caused by the accident. . . .it is well-settled that exacerbation of a preexisting condition is compensable under no-fault.”

In reply, ATIC argues that the issue of causality was never considered (reply affirmation of petitioner’s counsel ¶ 7). ATIC submits that “the arbitrator failed to apply the rules in connection to a lack of causation defense” (id.. ¶ 10). According to ATIC, “lack of causation does not require a citation to medical rationales as to whether or not certain types of treatment should be administered. The causation issue is not whether or not a doctor should administer treatment” (id. ¶ 11). ATIC maintains, “the peer review doctor is not required to cite any medical authorization as to support his conclusion for lack of causation as the issue is not one regarding lack of medical necessity. The arbitrator confused the proof required with that of prima facie proof for a lack of medical necessity defense” (id. ¶ 17).

The court agrees with respondent.

“The master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator” (Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577 [2d Dept 2002]). Where error of law is at issue, the [*5]test is “whether any reasonable hypothesis can be found to support the questioned interpretation. 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” (Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]); accord Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533 [2d Dept 1996]).

Here, ATIC fails to establish that the no-fault arbitrator’s award was so irrational as to require vacatur. First, the burden of proof applicable at trial involving medical necessity and an insurer’s burden on a motion for summary judgment are not described in the same terms.

“In a no-fault trial dealing with a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form; however, it is the plaintiff [provider] who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary”

(Radiology Today, P.C. v Geico Ins. Co., 58 Misc 3d 132[A], 2017 NY Slip Op 51768[U] n 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Here, it is abundantly apparent that the no-fault arbitrator ruled that respondent had met its ultimate burden of demonstrating that the services at issue were medically necessary by a preponderance of the evidence (see petitioner’s exhibit A, no-fault arbitrator award, at 5).

The no-fault arbitrator also found that “[ATIC] has not adequately demonstrated lack of causation” (no-fault arbitrator award, at 5). The no-fault arbitrator thoroughly considered the evidence. A reasonable hypothesis can be found to support this interpretation. Insofar as there was no dispute that respondent had established its prima facie case, ATIC “had the burden to proffer evidence in admissible form demonstrating that the assignor’s alleged injuries were not causally related to the accident” (A & A Dental, P.C. v State Farm Ins. Co., 19 Misc 3d 135[A], 2008 NY Slip Op 50709[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

The no-fault arbitrator rejected as conclusory the Peer Review Report of Dr. Skolnick with regard to the issue of causation. It would appear that the no-fault arbitrator concluded that the tear was caused by trauma, given that “the independent radiologist did not state with specificity that the meniscus tear is degenerative in nature” (see petitioner’s exhibit A, no-fault arbitrator award, at 5). ATIC essentially argues that the no-fault arbitrator should not have found that the tear was caused by trauma because Dr. Skolnick stated in his Addendum that there was no evidence of a fracture or dislocation. However, the no-fault arbitrator’s finding that ATIC did not meet its burden that the surgery was not causally related to the accident is consistent with the no-fault arbitrator’s credibility determinations about Dr. Skolnick and Dr. Fitzpatrick.

Contrary to ATIC’s argument, there is no basis to conclude that the arbitrator made a mistake of law by ignoring ATIC’s evidence that services rendered Rubin Gomez were not medically necessary; the arbitrator simply made a factual determination that they were medically necessary (Miller, 170 AD3d at 437). ATIC argues, in essence, that the arbitrator’s determination was an error of law because the arbitrator did not resolve issues of credibility in ATIC’s favor. “However, where, as here, the evidence is conflicting and room for choice exists, this Court may not weigh the evidence or reject the choice made by the arbitrator” (Matter of Powell v Bd. of Educ. of Westbury Union Free School Dist., 91 AD3d 955, 955-56 [2d Dept 2012]). “Obviously, if a court cannot ‘weigh’ the evidence, it cannot weigh credibility, which in [*6]the end is simply a component of that evidence” (Matter of McMahan & Co. [Dunn Newfund I], 230 AD2d 1, 5 [1st Dept 1997]).

The fact that the no-fault arbitrator accepted respondent’s affirmed rebuttal letter over Dr. Skolnick’s peer review report and Addendum presented an issue of Dr. Skolnick’s credibility for the factfinder to resolve. These are not errors of law, notwithstanding that the ATIC’s peer review report and other evidence in the record might support a contrary result. The no-fault arbitrator credited the written testimony of respondent’s physician over that of ATIC’s peer reviewer.

To the extent that ATIC argues that the award “went against the entire weight of the unrebutted evidence” (see petition ¶ 38),

“[a] master arbitrator’s powers of review do not encompass such a review of the facts, nor do they authorize him to determine the weight of the evidence. This is not to say that in making his determinations as to whether the arbitrator’s determination is correct, that the master arbitrator will conduct no review of the facts; rather, it means his review in this respect is limited to whether or not the evidence is sufficient, as a matter of law, to support the determination of the arbitrator”

(Matter of Petrofsky, 54 NY2d at 212). “[T]he master arbitrator is without power to vacate an award based upon a de novo review of the evidence” (Matter of Smith v Firemen’s Ins. Co., 55 NY2d 224, 232 [1982]).

Here, the master arbitrator correctly determined that the evidence was sufficient, as a matter of law, to support the original arbitration’s determination (see State Farm Mut. Auto. Ins. Co. v Stack, 55 AD3d 594, 595 [2d Dept 2008] [testimony of expert witness, who based his opinion upon his examination of defendant and his review of defendant’s relevant medical records, including, inter alia, CT scans and MRIs, was sufficient to establish that defendant’s condition was causally related to the accident]; cf. Advanced Orthopedics, PLLC v GEICO, 63 Misc 3d 136[A], 2019 NY Slip Op 50500[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [record supported the dismissal of complaint because Civil Court found defendant’s expert witness credibly testified that the surgery was not causally related to accident in question]). Thus, the master arbitrator did not exceed his/their powers.

ATIC’s argument that the award was not final or definite is without merit. “An award is deficient in this regard and subject to vacatur only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy” (Matter of Meisels v Uhr, 79 NY2d 526, 536 [1992]). Here, the no-fault arbitration award determined ATIC’s and [respondent]’s rights and obligations, resolved the claims submitted to arbitration, and did not create any new controversies.^[FN1]

Therefore, ATIC’s petition to vacate the master arbitrator’s award is denied.

CPLR 7511(e) mandates confirmation of the award upon denial of an application to [*7]vacate or modify the award (Blumenkopf v Proskauer Rose LLP, 95 AD3d 647, 648 [1st Dept 2012]). Therefore, the award is confirmed.

The no-fault arbitrator awarded respondent the amount of $4,702.03, with interest from 1/21/2019, plus attorney’s fees (petitioner’s exhibit A, no-fault arbitrator award at 6-7). Interest on overdue payments is fixed by regulation at the rate of 2 per cent per month (11 NYCRR 65-3.9 [a]). The total amount of interest due on $4,702.03 from 1/21/2019 until 1/14/2020 (the date of the award) is $1,106.86(2% x $4,702.03 x 11 months 24 days). The amount of attorney’s fees awarded by the no-fault arbitrator is therefore $1,161.78(20% x [$4,702.03 + $1,106.86) (11 NYCRR 65-4.6 [d]).

In addition, the master arbitrator awarded $195 in legal fees for the master arbitration (see petitioner’s exhibit A, master arbitrator award).

Respondent is also entitled to recover costs of the proceeding in the amount of $50.00, for the amount of the judgment is more than $6,000, and no notice of trial has been filed (CPLR 8101; NY City Civ Ct Act § 1901 [a], [b] [1]).

Citing 11 NYCRR 65-4.10 (j) (4), respondent also requests that the court award attorney’s fees in the amount of $1,000, for 2.5 hours (calculated at a rate of $400 per hour) spent to oppose the petition (see affirmation in opposition of respondent’s counsel ¶ 19).

ATIC opposes the request, claiming that $400.00 is a “marquee rate for private litigation” (reply affirmation of petitioner’s counsel ¶ 24). ATIC argues that the hourly rate for attorney’s fees should not exceed the hourly rates of attorney’s fees for a master arbitration, which are capped at $65.00 an hour, and $650.00 in total (id. ¶¶ 24-27).

Respondent correctly indicates that it is entitled to recovery attorney’s fees incurred in the Article 75 proceeding. If a valid claim for first-party no-fault benefits is overdue, the claimant is entitled to recover reasonable attorney’s fees for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations (Insurance Law § 5106 [a]). No-fault regulations provide that “[t]he attorney’s fee for services rendered … in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR § 65-4.10[j][4] ). “The term ‘court appeal’ applies to a proceeding taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award (Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414 [1st Dept 2020]).

ATIC’s argument raises a threshold issue of whether there any regulatory limits on amount of attorney’s fees incurred in connection with Article 75 proceeding to vacate or confirm a master arbitration award.

As ATIC points out, the no-fault regulations limit the amount of attorney’s fees recoverable for services rendered in connection with the master arbitration itself. For example, for preparatory services, the attorney is entitled to “a fee of up to $65 per hour, subject to a maximum fee of $650,” and “a fee of up to $80 per hour for oral argument before the master arbitrator” (see 11 NYCRR 65-4.10 [j] [2] [i], [ii]). For disputes subject to arbitration or court proceedings involving a “policy issue,” the no-fault regulations also limit the attorney’s fee for the arbitration or litigation of all issues to “a fee of up to $70 per hour, subject to a maximum fee of $1,400” (11 NYCRR 65-4.6 [c]; see Kamara Supplies v GEICO Gen. Ins. Co., 67 Misc 3d [*8]129[A], 2020 NY Slip Op 50414[U] [App Term, 1st Dept 2020]). ^[FN2]

However, there do not appear to be any no-fault regulations limiting the amount of attorney’s fees recoverable for services rendered in a proceeding taken pursuant to Article 75 of the CPLR to vacate or confirm a master arbitration award (see e.g. Matter of Hempstead Gen. Hosp. v Natl. Grange Mut. Ins. Co., 179 AD2d 645, 646 [2d Dept 1992]).

In Matter of Hempstead General Hospital, the Appellate Division, Second Department implicitly endorsed the calculation of the attorney’s fees upon a reasonable hourly rate without any limitations, for services rendered in a proceeding to vacate or confirm a master arbitration award. There, the Supreme Court had determined that petitioner was entitled to counsel fees in vacating a master arbitration award, and that the petitioner’s counsel’s work was worth $175 per hour, for a total of $7,000 (179 AD2d at 646). However, the Supreme Court reduced the award to $756, on the ground that it would only award a fee on that portion of the work performed directly on behalf of the client (id.). On appeal, the Appellate Division, Second Department, modified the Supreme Court’s order to increase the award of counsel fees to the full amount of $7,000 (id.).

The court finds that the time that respondent’s counsel spent on this Article 75 proceeding and the hourly rate were reasonable. Accordingly, respondent is awarded $1,000.00 in attorney’s fees for services rendered in opposing the petition.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED and ADJUDGED and the petition to vacate the arbitration award (Motion Seq. No. 001) is DENIED, and it is further

ADJUDGED that the award of the master arbitrator Robert Trestman, dated March 24, 2020 rendered in favor of respondent Mark S. McMahon MD P.C. a/a/o Rubin Gomez against petitioner American Transit Insurance Company, affirming the award of the no-fault arbitrator Marice Glasser issued on January 14, 2020 is confirmed; and it is further

ADJUDGED that respondent Mark S. McMahon MD P.C. a/a/o Rubin Gomez, having an address at 876 Park Avenue, New York, NY 10075, do recover from petitioner American Transit Insurance Company, having an address at 5 Broadway, Freeport, New York 11520, the amount of $4,702.03, plus interest at the rate of 2% per month from the date of 1/21/2019 until 1/14/2020, in the amount of $1,106.86, plus attorney’s fees in the amount $1,161.78, plus $40.00 as reimbursement for a fee previously paid by respondent, plus attorney’s fees incurred in the master arbitration in the amount of $195.00, plus attorney’s fees incurred in this proceeding in the amount of $1,000.00, together with costs of this proceeding in the amount of $50.00, for the [*9]total amount of $8,255.67, and that the respondent have execution therefor.

This constitutes the decision, order, and judgment of the court.

Dated: August 5, 2022
New York, New York
ENTER:

____________/s/__________________
RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1: Although not raised by petitioner, the court notes that the fact that the no-fault arbitration award did not specify an exact amount of interest or attorney’s fees awarded does not render the award indefinite, because the amounts may be ascertained through computation of simple arithmetic (see Matter of Hunter [Proser], 274 AD 311, 312 [1st Dept 1948], affd 298 NY 828 [1949]).

Footnote 2: “‘[P]olicy issues’ enumerated on the denial of claim form at bar are clearly limited to include only: (1) the policy was not in force on the date of the accident (box 3); (2) the injured person is excluded under policy conditions or exclusion (box 4); (3) the policy conditions were violated, which is limited to two categories involving late submission of a notice of claim (box 5); (4) the injured person is not an eligible injured person (box 6); (5) and the injuries did not arise out of use or operation of a motor vehicle (box 7)” (Kamara Supplies, 67 Misc 3d 129[A], 2020 NY Slip Op 50414[U], *1).

ATIC does not contend that the arbitration involved a “policy issue.” No “policy issues” were checked off as reasons for denial on the denial of claim form (see petitioner’s exhibit B).