[*1]

Jaffe & Koumourdas, LLP (Thomas Torto, New York, NY, of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn, NY (Stefan Belinfanti and David M. Gottlieb of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated October 10, 2014, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Bernard J. Graham, J.), dated July 31, 2015. The judgment, upon an undated order of the same court granting the petition, vacating the master arbitrator’s award dated October 10, 2014, and remitting the matter to arbitration, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $625.

Ordered that the judgment is reversed, on the law, with costs, the petition is denied, the master arbitrator’s award dated October 10, 2014, is confirmed, and the undated order is modified accordingly.

Acuhealth Acupuncture, P.C. (hereinafter Acuhealth), is the assignee of a claim for no-fault benefits for treatment it rendered to Hector Rojos. After the carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, Acuhealth submitted the claim to arbitration. The arbitrator denied Acuhealth’s claim, finding, inter alia, that the evidence established that Acuhealth was fraudulently incorporated and thus not entitled to reimbursement under the No-Fault Law (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320-321 [2005]).

On appeal, a master arbitrator affirmed the original arbitrator’s award in favor of Country-Wide. Acuhealth then commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court determined that a prior Supreme Court determination involving the same parties was entitled to preclusive effect. Accordingly, the court granted Acuhealth’s petition, vacated the master arbitrator’s award, remitted the matter to arbitration, and awarded Acuhealth costs and disbursements in the sum of $625. Country-Wide appeals.

We disagree with the Supreme Court’s determination that Acuhealth was entitled to vacatur of the master arbitrator’s award on the ground of collateral estoppel. The prior decision on which the court relied merely stated that Acuhealth’s petition to vacate a master arbitrator’s award was granted, without indicating on what basis the petition was granted or what issues were being decided and in what manner. Under those circumstances, Acuhealth failed to establish that the issue on which it sought collateral estoppel effect in this proceeding was identical to an issue which was raised and necessarily decided in the prior proceeding (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; Von Maack v Wyckoff Hgts. Med. Ctr., 140 AD3d 1055, 1056 [2016]).

Acuhealth failed to demonstrate any additional ground for vacating the master arbitrator’s award. “[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]). A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75, which include, in this compulsory arbitration, the question of whether the determination had evidentiary support, was rational, or had a plausible basis (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981]). Notably, the master arbitrator’s review power is broader than that of the courts’ because it includes the power to review for errors of law (see id. at 211-212; 11 NYCRR 65-4.10 [a] [4]). In contrast, the courts “generally will not vacate an arbitrator’s award where the error claimed is the incorrect application of a rule of substantive law, unless it is so irrational as to require vacatur” (Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982] [citations and internal quotation marks omitted]; see Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 576 [2002]).

Here, since Country-Wide submitted evidence tending to support its fraudulent incorporation defense, it cannot be said that the determination of the master arbitrator affirming the original arbitrator’s award lacked evidentiary support. Nor can it be said that the determination to affirm the original arbitrator, who supported her determination with reasons based on the evidence, lacked a rational basis. Thus, even if it was an error of law to conclude that Country-Wide proved its defense as a matter of law (see Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886-887 [2017]), the master arbitrator’s determination is not subject to vacatur by the courts on the mere basis of that error of law (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223-224 [1996]; Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth., 167 AD3d 869 [2018]). Notably, this Court’s decision in Nationwide Affinity, which is contrary to the conclusion of the master arbitrator in this case, was not published until after the master arbitrator’s award was rendered. Moreover, Country-Wide submitted evidence in support of its defense which, while inadmissible, could be considered by the original arbitrator in this case, who, unlike a court deciding a summary judgment motion like that at issue in Nationwide Affinity, was not bound by the rules of evidence (see Matter of Fagan v Village of Harriman, 140 AD3d 868 [2016]).

Accordingly, the petition should have been denied and the master arbitrator’s award should have been confirmed. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.

[*1]

Jaffe & Koumourdas, LLP (Thomas Torto, New York, NY, of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn, NY (Stefan Belinfanti and David M. Gottlieb of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated February 25, 2016, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Kathy J. King, J.), dated October 27, 2016. The judgment, upon an order of the same court dated October 26, 2016, granting the petition, vacating the master arbitrator’s award dated February 25, 2016, and confirming the original arbitrator’s award dated December 4, 2015, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $13,864.96.

Ordered that the judgment is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of an additional attorney’s fee to be awarded to the petitioner pursuant to Insurance Department Regulations (see 11 NYCRR 65-4.10 [j] [4]).

Acuhealth Acupuncture, P.C. (hereinafter Acuhealth), is the assignee of a claim for no-fault benefits for treatment it rendered to Massiel Olsen. After the carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, Acuhealth submitted the claim to arbitration. The arbitrator, upon refusing to consider Country-Wide’s defenses on the ground that Country-Wide’s submissions to the arbitrator were late, with no excuse for their lateness, found in favor of Acuhealth. On Country-Wide’s appeal, the master arbitrator vacated the award and issued a new award in favor of Country-Wide based on the defense that Acuhealth was fraudulently incorporated, which the original arbitrator had refused to consider on the ground that it was untimely submitted. Acuhealth then commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court granted Acuhealth’s petition, vacated the master arbitrator’s award in favor of Country-Wide, and confirmed the original arbitrator’s award in favor of Acuhealth. Country-Wide appeals.

An arbitrator acts within his or her discretionary authority by refusing to entertain late submissions (see Matter of Global Liberty Ins. Co. v Coastal Anesthesia Servs., LLC, 145 AD3d 644, 645 [2016]; Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017 [2009]; Matter of Green v Liberty Mut. Ins. Co., 22 AD3d 755, 756 [2005]). Here, in rejecting the original arbitrator’s proper exercise of his discretionary authority, and in passing, de novo, upon factual questions concerning the validity of Country-Wide’s defense that Acuhealth was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320-321 [2005]), the master arbitrator exceeded his power (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 230-231 [1982]; Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [1994]). Accordingly, we agree with the Supreme Court’s determination to vacate the master arbitrator’s award and confirm the original arbitrator’s award in favor of Acuhealth.

Moreover, as Acuhealth contends and Country-Wide concedes, Acuhealth is entitled to an attorney’s fee for this appeal pursuant to 11 NYCRR 65-4.10 (j), to be fixed by the Supreme Court (see Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C., 167 AD3d 404, 405 [2018]; Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [2018]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 706 [2017]). The matter is therefore remitted to the Supreme Court, Kings County, for that purpose.

Acuhealth’s remaining contention is without merit. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.

Decided on October 4, 2019

[*1]

Gary Tsirelman, P.C., Brooklyn, NY (Stefan Belinfanti and David M. Gottlieb of counsel), for appellant.

Jaffe & Velazquez, LLP, New York, NY (Jean H. Kang of counsel), for respondent.

In a proceeding pursuant to CPLR article 75, the petitioner appeals from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated March 1, 2018. The order denied the petition to vacate the award of a master arbitrator dated September 6, 2017.

Ordered that the order is affirmed, with costs.

The petitioner commenced a no-fault arbitration proceeding seeking to recover from the respondent insurer for acupuncture treatments provided to the petitioner’s assignor. After a no-fault arbitration hearing, an arbitrator determined that the respondent failed to establish its defenses, and awarded the petitioner the sum of $649.74, plus interest and an attorney’s fee award, in effect, pursuant to 11 NYCRR 65-4.6 (b). The petitioner appealed the arbitrator’s award to a master arbitrator, contending that the attorney’s fee award was incorrect as a matter of law. On September 6, 2017, the master arbitrator issued an award affirming the arbitrator’s award.

By notice of petition dated October 30, 2017, the petitioner sought to vacate the master arbitrator’s award pursuant to CPLR 7511. By order dated March 1, 2018, the Supreme Court denied the petition. The petitioner appeals.

The petitioner contends that the master arbitrator’s award must be vacated because an attorney’s fee should have been awarded pursuant to 11 NYCRR 65-4.6 (c), rather than 11 NYCRR 65-4.6 (b). The “role of the master arbitrator is to review the determination of the arbitrator to assure that the arbitrator reached his [or her] decision in a rational manner, [and] that the decision was not arbitrary and capricious, incorrect as a matter of law, in excess of the policy limits or in conflict with other designated no-fault arbitration proceedings” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981] [citations omitted]). This power “does not include the power to review, de novo, the matter originally presented to the arbitrator” (Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [1994]).

Since arbitration under the no-fault law is compulsory, the scope of review of the master arbitrator’s award is whether it “was arbitrary and capricious, irrational or without a plausible basis” (Matter of Farrell [Allstate Ins. Co.], 232 AD2d 934, 935 [1996] [internal quotation marks omitted]; accord Matter of Steinauer [New York Cent. Mut. Fire Ins. Co.], 272 AD2d 771, 772 [2000]; see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 211; Matter of Mercury Cas. Co. [Patient Care Assoc.], 134 AD3d 1204, 1205 [2015]).

Here, the master arbitrator determined that the petitioner was not entitled to an attorney’s fee award pursuant to 11 NYCRR 65-4.6 (c) because, among other things, it failed to support its attorney’s fee request with “documentation such as time sheets.” Inasmuch as an attorney fee award under subdivision (c) of 11 NYCRR 65-4.6 is set at an hourly rate, and the petitioner’s attorney submitted no time sheets or other documentation to establish how many hours he spent on the matter, the master arbitrator’s affirmance of the attorney’s fee award based upon 11 NYCRR 65-4.6 (b) was not irrational, or arbitrary and capricious. On questions of substantive law, the determination of the master arbitrator must be upheld if, as here, there is a rational basis for the determination (see Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d 757, 759 [1980]; Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577 [2002]).

Accordingly, we agree with the Supreme Court’s determination denying the petition.

The petitioner did not demonstrate its entitlement to an award of an attorney’s fee for this appeal, as the master arbitrator did not make a finding that the subject claims were “overdue” (Insurance Law § 5106 [a]; see Matter of Fast Care Med. Diagnostics, PLLC/PV v Government Empls. Ins. Co., 161 AD3d 1149, 1151 [2018]). Mastro, J.P., Rivera, Miller and Christopher, JJ., concur.

Decided on September 27, 2019

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

Decided on September 20, 2019

744329/16

Attorney for Plaintiff
Oleg Rybak, Esq.
The Rybak Firm, PLLC
1810 Voorhies Ave., 3rd Floor, Ste. 7
Brooklyn, NY 11235
(718) 975-2035

Attorney for Defendant
Katherine A. Hazelton, Esq.
Law Office of Goldstein & Flecker
2 Huntington Quadrangle, Ste. 2N01
Melville, NY 11747
(516) 714-7927

The court’s Decision and Order is based upon consideration of the following papers:

NOTICE OF MOTION & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION 3

SUR REPLY

This is an action by Plaintiff medical provider to recover assigned first-party no-fault benefits for treatment provided to its assignor, David Cenevil (Injured Party). Plaintiff argues that it met its prima facie burden and requests that summary judgment be granted in its favor pursuant to CPLR 3212. Defendant opposes Plaintiff’s motion and cross moves for dismissal on grounds that the injuries were the result of an intentional assault when the insured, Bernard Foy (Insured), used his vehicle as a weapon to deliberately strike the Injured Party. Accordingly, Defendant asserts that the Injured Party’s injuries were not the result of an accident, but an intentional act which is not a covered loss under 11 N.Y.C.R.R. § 65-2.2(a). This court agrees.

In New York, an insurer must provide no-fault insurance benefits for injuries resulting from an accident. 11 N.Y.C.R.R. § 65-2.2(a), requires coverage for “personal injuries caused by an accident arising out of the use or operation of a motor vehicle” (emphasis added). In order for an insurer to be relieved of its obligation to cover a loss, it must come forward with evidence to demonstrate that the injuries were a result of an intentional or deliberate action (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d 349 [2011]; Liberty Mut. Ins. Co. v. Goddard, 29 AD3d 698 [2d Dept. 2006]). An insurer must establish its “founded belief” that the incident was an intentional act by a preponderance of the evidence (A.B. Med. Services PLLC v. Eagle Ins. Co., 3 Misc 3d 8, 9 [2d Dept. 2003]; V.S. Med. Servs., P.C. v. Allstate Ins. Co., 25 Misc 3d 39 [2d Dept. 2009]), and can meet its burden with circumstantial evidence (State Farm Mut. Auto. Ins. Co., v. Laguerre, 305 AD2d 490 [2d Dept. 2003]).

Here, Defendant has met its burden through substantial documentary evidence including a police accident report, a criminal complaint an arrest report and an affidavit from Defendant’s Special Investigation Unit (SIU) investigator Doug Pfleging. These documents consistently support a clear finding that the incident which lead to the Injured Party’s injuries was a result of an intentional act. According to the police accident report, the Insured deliberately hit the Injured Party with his vehicle: “At TPO witness stated that deft had a verbal dispute with his step son [sic]. Witness stated that deft (step father) used his vehicle to hit c/v and fled the accident scene” (Deft. Exh. B). Pursuant to the arrest report, the Insured was subsequently arrested on several charges including felony assault with intent to cause serious physical injury and felony assault for using his vehicle as a weapon (Deft. Exh. C).

In New York, to determine whether an event was accidental “it is customary to look at the casualty from the point of view of the insured, to see whether or not it was unexpected, unusual and unforeseen'” (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d at 355 quoting Miller v. Continental Ins. Co., 40 NY2d 675, 677 [1976]). The view point of the injured party is not considered “[b]ecause an injury is always fortuitous to a non-consenting victim” (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d at 355 quoting Michaels v. City of Buffalo, 85 NY2d [*2]754, 759 [1995]). The same is true when the injured party seeks benefits under the policy’s uninsured motorist endorsement (Castillo v. Motor Vehicle Indemnification Corp., 161 AD3d 937 [2d Dept. 2018]; Utica Mut. Ins. Co. v. Burrous, 121 AD3d 910 [2d Dept. 2014]). Here, both the witness’ statement and the testimony from the Injured Party are consistent with a finding that from the Insured’s perspective, the incident was a deliberate act meant to cause injury (Deft. Exh. D; see generally McCarthy v. Motor Vehicle Indemnification Corp., 12 NY2d 922 [1963]).

Plaintiff’s arguments concerning its prima facie case and timely denial of the claims are irrelevant. Defendant insurer “is not precluded, despite untimely disclaimer, from raising as a defense its denial of liability on the ground that the services rendered to treat the injuries at issue did not arise from a covered accident” (General Hospital v. Chubb Group of Insurance Companies, 90 NY2d 195, 201 [1997]). Furthermore, Defendant’s “strict compliance with the time requirements of both statute and regulations may be obviated and the preclusion remedy rendered unavailable when denial of claims is premised on a lack of coverage” (General Hospital v. Chubb Group of Insurance Companies, 90 NY2d at199).

Based on the foregoing, Plaintiff’s motion for summary judgment is denied. Defendant’s cross motion to dismiss is granted.

This constitutes the decision and order of this court.

September 4, 2019
Brooklyn, NY
ENTER.
__________________________________
CONSUELO MALLAFRE-MELENDEZ
Judge, Civil Court

[*1]

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

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 31, 2018, which denied the petition to vacate a master arbitrator’s award, unanimously reversed, on the law, without costs, and the petition granted.

The master arbitrator’s award was arbitrary because it irrationally ignored the controlling law that the no-fault policy issued by petitioner was void ab initio due to respondent’s assignor’s failure to attend duly scheduled independent medical exams (see Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]; Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]; American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). Concur—Sweeny, J.P., Renwick, Manzanet-Daniels, Tom, Oing, JJ.

The Rybak Firm, PLLC (Damin J. Toell of Cousnel), for appellant. Law Offices of Aloy O. Ibuzor (Janice A. Robinson 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 September 28, 2017. The order denied plaintiff’s motion to vacate an order of that court entered August 12, 2016 which, upon plaintiff’s failure to timely submit opposition to defendant’s prior motion for summary judgment dismissing the complaint, granted defendant’s prior motion.

ORDERED that the order entered September 28, 2017 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment. A stipulation signed by the parties on November 9, 2015 provided that opposition to defendant’s motion “must be served on or before” June 12, 2016, and “[a]ll papers served beyond the within deadline[] shall be deemed null and void.” It is uncontested that plaintiff’s opposition to defendant’s motion was served on July 13, 2016. By order entered August 12, 2016, the Civil Court granted defendant’s motion, noting that it was not considering plaintiff’s late opposition as it had been served beyond the time set therefor in the stipulation, and dismissed the complaint. Thereafter, plaintiff moved, pursuant to CPLR 5015 (a) (1), to vacate the August 12, 2016 order. Plaintiff appeals from an order of the Civil Court entered September 28, 2017 denying plaintiff’s motion.

Where a plaintiff moves, pursuant to CPLR 5015 (a) (1), to vacate an order entered upon the plaintiff’s failure to oppose a motion, “the plaintiff is required to demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion” (Estrada v Selman, 130 AD3d 562, 562—563 [2015]; see also Longevity Med. Supply, Inc. v State Farm Fire & Cas. Co., 54 Misc 3d 136[A], 2017 NY Slip Op 50118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; D & R Med. Supply, Inc. v American Tr. Ins. Co., 35 Misc 3d [*2]136[A], 2012 NY Slip Op 50785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In support of plaintiff’s motion to vacate, plaintiff’s attorney argued that due to law office failure, the “draft [of the opposition papers] was not . . . served on Defendant until one day after it was due to Defendant” (emphasis in the original). The record, however, indicates that plaintiff mailed its opposition papers to defendant on July 13, 2016, which was over a month past the stipulated due date of June 12, 2016. Under the circumstances, we find that plaintiff failed to demonstrate a reasonable excuse for its default and, therefore, we need not consider whether plaintiff offered a potentially meritorious opposition to defendant’s motion (see Wells Fargo Bank, N.A. v Syed, 160 AD3d 914, 915 [2018]).

We note that, for the first time on appeal, plaintiff states that its counsel “misread the stipulation as providing a due date of July 12, 2016.” However, we do not consider arguments or factual assertions raised for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Decided on August 23, 2019

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