Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 51616(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2019 NY Slip Op 51616(U) [65 Misc 3d 133(A)] |
| Decided on October 11, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-2333 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker (Joshua M. Goldberg of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered September 5, 2017. 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 had failed to appear for duly scheduled examinations under oath, and denied plaintiff’s cross motion for summary judgment.
For the reasons stated in Allay Med. Servs., P.C., as Assignee of Mills, Keith A. v Metropolitan Gen. Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-2389 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019
Reported in New York Official Reports at Metro Psychological Servs., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51614(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Insurance Company, Respondent.
Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt and David Steigbigel of counsel), for appellant. Law Office of Daniel J. Tucker (Joshua M. Goldberg of Netanel Ben Chaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), dated March 27, 2017. The order granted 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 denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff filed a notice of trial on January 14, 2016. By notice of motion returnable on June 19, 2016, which was mailed to plaintiff’s attorney on May 11, 2016, defendant moved for summary judgment dismissing the complaint on the ground that there was no coverage for the accident at issue. Plaintiff opposed the motion. By order dated March 27, 2017, the Civil Court granted the motion.
Contrary to plaintiff’s contention, defendant’s motion for summary judgment dismissing the complaint was not untimely under CPLR 3212 (a). CPLR 3212 (a) provides that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc [*2]3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and when a motion is served upon a party’s attorney by mail, service is complete upon mailing (see CPLR 2103 [b] [2]; Pietrafesa v Canestro, 130 AD3d 602 [2015]). Here, it is uncontroverted that the notice of trial was filed on January 14, 2016 and, thus, the 120-day period expired on May 13, 2016. Since defendant served its motion upon plaintiff’s attorney on May 11, 2016, defendant’s motion was timely.
Plaintiff further contends that what purports to be the insured’s affidavit, which was annexed as an exhibit to defendant’s motion papers, should not have been considered because its notarization was “completely illegible,” and it did not contain a caption. We need not decide this issue since, even if the document were considered, it merely demonstrated that the insured did not operate his vehicle on the day of the accident because he was out of town, and observed no damage to the vehicle upon his return. The affidavit was insufficient to establish, as a matter of law, that the vehicle was not involved in the accident at issue. As a result, defendant’s motion for summary judgment dismissing the complaint should have been denied.
Plaintiff’s remaining arguments lack merit or are unpreserved for appellate review.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019
Reported in New York Official Reports at Bento Ortho, Inc. v Victoria Ins. Group (2019 NY Slip Op 51613(U))
| Bento Ortho, Inc. v Victoria Ins. Group |
| 2019 NY Slip Op 51613(U) [65 Misc 3d 133(A)] |
| Decided on October 11, 2019 |
| 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 October 11, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-946 K C
against
Victoria Insurance Group, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group , P.C. (Nathan Shapiro of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered December 20, 2016. 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 defendant’s 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 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, and denied plaintiff’s cross motion for summary judgment.
We find that there is an issue of fact as to whether plaintiff’s claims were timely denied, as there is a significant discrepancy between the date the bills were sent, as claimed by plaintiff, and the date the bills were received, as claimed by defendant (see Complete Radiology, P.C. v Progressive Ins. Co., 37 Misc 3d 133[A], 2012 NY Slip Op 52079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019
Reported in New York Official Reports at Matter of V.S. Care Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 07265)
| Matter of V.S. Care Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 07265 [176 AD3d 834] |
| October 9, 2019 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of V.S. Care Acupuncture, P.C.,
Respondent, v Country-Wide Ins. Co., Appellant. |
Jaffe & Koumourdas, LLP (Thomas Torto and Jason Levine, 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 January 26, 2016, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated October 21, 2016. The judgment, upon an order of the same court dated October 20, 2016, granting the petition, vacating the master arbitrator’s award dated January 26, 2016, and confirming the original arbitrator’s award dated September 22, 2015, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $8,319.61.
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]).
V.S. Care Acupuncture, P.C. (hereinafter V.S.), is the assignee of a claim for no-fault benefits for treatment it rendered to Morris Collins. The carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim on several grounds. Country-Wide contended that Collins had not appeared at scheduled independent medical examinations and that V.S. had failed to appear at scheduled examinations under oath. Country-Wide also contended that V.S. was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). V.S. submitted the claim to arbitration. The arbitrator accepted Country-Wide’s contention regarding Collins’s failure to appear at independent medical examinations, but rejected Country-Wide’s contention regarding V.S.’s failure to appear at examinations under oath. The arbitrator also rejected Country-Wide’s contention as to V.S.’s alleged fraudulent incorporation, finding that Country-Wide had not met its burden of proof. Accordingly, the arbitrator entered an award for the portion of the claim she found Country-Wide had improperly denied.
On Country-Wide’s appeal to a master arbitrator, the master arbitrator found, as relevant to this appeal, that the original arbitrator’s determination to reject the fraudulent incorporation defense was irrational, arbitrary, capricious, and incorrect as a matter of law. The master arbitrator vacated the original arbitrator’s award and remitted the matter to a new arbitrator on the issue of fraudulent incorporation. V.S. commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court granted the petition, vacated the master arbitrator’s award, confirmed the original arbitrator’s award, and entered a judgment accordingly. Country-Wide appeals.
A master arbitrator may not review the facts by weighing the evidence, assessing the credibility of witnesses, or making independent findings of fact (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981]). A master arbitrator’s review powers, however, do include reviewing the facts to determine “whether or not the evidence is sufficient, as a matter of law, to support the determination of the arbitrator” (id. at 212). Here, there is no rational basis for the determination of the master arbitrator that the original arbitrator committed an error of law in rejecting Country-Wide’s fraudulent incorporation defense (cf. Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407 [2018]; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886-887 [2017]). Accordingly, we agree with the Supreme Court that the master arbitrator’s award should be vacated and the original arbitrator’s award confirmed.
Moreover, as V.S. contends and Country-Wide concedes, V.S. 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 at 408; 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. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.
Reported in New York Official Reports at Matter of V.S. Care Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 07264)
| Matter of V.S. Care Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 07264 [176 AD3d 832] |
| October 9, 2019 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of V.S. Care Acupuncture, P.C.,
Respondent, v Country-Wide Ins. Co., Appellant. |
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 (Larry D. Martin, J.), dated February 6, 2017. The judgment, upon an order of the same court dated September 23, 2015, granting the petition, vacating the master arbitrator’s award dated October 10, 2014, and directing entry of a judgment in favor of the petitioner in the principal sum of $3,650 plus statutory interest, attorneys’ fees, and costs and disbursements, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $10,469.82.
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 order dated September 23, 2015, is modified accordingly.
V.S. Care Acupuncture, P.C. (hereinafter V.S.), is the assignee of a claim for no-fault benefits for treatment it rendered to Eric Pascal. After the carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, V.S. submitted the claim to arbitration. The arbitrator denied V.S.’s claim, finding that the evidence established that V.S. was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). On appeal, a master arbitrator affirmed the original arbitrator’s award, finding that it was not arbitrary and capricious. V.S. then commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court granted the petition, vacated the master arbitrator’s award, and entered a judgment in favor of V.S. in the amount of the claim for no-fault benefits plus statutory interest, attorneys’ fees, and costs and disbursements. Country-Wide appeals.
Contrary to the Supreme Court’s determination, V.S. failed to demonstrate any grounds for vacating the master arbitrator’s award. 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]). Here, as explained in this Court’s decision and order in Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co. (176 AD3d 800 [2019] [decided herewith]), since the determination of the master arbitrator affirming the original arbitrator’s award had evidentiary support and was not irrational, it is not subject to vacatur by the courts (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]), even if the master arbitrator committed an error of law (see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 535 [2010]; Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223-224; cf. Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886-887 [2017]). 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.
Reported in New York Official Reports at Matter of Bay Needle Care Acupuncture v Country-Wide Ins. Co. (2019 NY Slip Op 07249)
| Matter of Bay Needle Care Acupuncture v Country-Wide Ins. Co. |
| 2019 NY Slip Op 07249 [176 AD3d 806] |
| October 9, 2019 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Bay Needle Care Acupuncture,
Respondent, v Country-Wide Ins. Co., Appellant. |
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 March 18, 2014, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated July 31, 2015. The judgment, upon an order of the same court dated April 2, 2015, granting the petition, vacating the master arbitrator’s award dated March 18, 2014, and confirming the original arbitrator’s award dated December 13, 2013, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $1,318.91.
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]).
Bay Needle Care Acupuncture (hereinafter Bay Needle) is the assignee of a claim for no-fault benefits for treatment it rendered to Kareem Edgar. The carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, and Bay Needle submitted the claim to arbitration. As relevant to this appeal, the arbitrator rejected Country-Wide’s contention that Bay Needle was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 150 AD3d 192 [2017], affd 33 NY3d 389 [2019]). The arbitrator stated that he found “no reasonable or credible evidence” establishing the defense, and he found in favor of Bay Needle. On Country-Wide’s appeal, a master arbitrator vacated the original arbitrator’s award and remitted the matter for a new hearing before a new arbitrator. The master arbitrator stated that the evidence of fraudulent incorporation presented by Country-Wide “was substantial.” Bay Needle commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court granted the petition, vacated the master arbitrator’s award, confirmed the original arbitrator’s award in favor of Bay Needle, and entered a judgment accordingly. Country-Wide appeals.
We agree with the Supreme Court that the master arbitrator exceeded his power in vacating the original arbitrator’s award after, in effect, weighing the evidence and coming to a different conclusion than the original arbitrator as to what that evidence proved (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981]). As such, we agree with the court’s determination to vacate the master arbitrator’s award and to confirm the original arbitrator’s award in favor of Bay Needle (see Matter of Jordan v Liberty Mut. Fire Ins. Co., 309 AD2d 803, 804 [2003]; cf. Matter of Jasser v Allstate Ins. Co., 77 AD3d 751, 752 [2010]).
Moreover, as Bay Needle contends and Country-Wide concedes, Bay Needle 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. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.
Reported in New York Official Reports at Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 07246)
| Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 07246 [176 AD3d 800] |
| October 9, 2019 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Acuhealth Acupuncture, P.C.,
Respondent, v Country-Wide Ins. Co., Appellant. |
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.
Reported in New York Official Reports at Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 07245)
| Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co. |
| 2019 NY Slip Op 07245 [176 AD3d 799] |
| October 9, 2019 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Acuhealth Acupuncture, P.C.,
Respondent, v Country-Wide Ins. Co., Appellant. |
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.
Reported in New York Official Reports at Allstate Ins. Co. v Brown (2019 NY Slip Op 51560(U))
| Allstate Ins. Co. v Brown |
| 2019 NY Slip Op 51560(U) [65 Misc 3d 130(A)] |
| Decided on October 4, 2019 |
| Appellate Term, First 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 October 4, 2019
PRESENT: Shulman, P.J., Gonzalez, Edmead, JJ.
570204/19
against
Victoria Brown, Defendant-Respondent.
Petitioner appeals from an order and judgment of the Civil Court of the City of New York, New York County (Mary V. Rosado, J.), entered on or about April 26, 2018, which denied its petition to vacate a master arbitration award in favor of respondent and confirmed the award.
Per Curiam.
Order and judgment (Mary V. Rosado, J.), entered on or about April 26, 2018, affirmed, with $25 costs.
Petitioner failed to demonstrate the existence of any of the statutory grounds for vacating the Master Arbitrator’s award (see CPLR 7511[b]). “Since the master arbitrator found that the no-fault arbitrator reached the decision in a rational manner and that the decision was not arbitrary or capricious, incorrect as a matter of law, in excess of policy limits, or in conflict with other no-fault arbitration proceedings there were no grounds for its vacatur; the motion court correctly upheld the master arbitrator’s determination” (Matter of Miller v Elrac, LLC, 170 AD3d 436 [2019], lv denied 33 NY3d 907 [2019]). In particular, since the arbitrator’s rejection of petitioner’s IME no show defense was based, inter alia, upon her review of the proof of mailing the IME notices, the claimant’s appearance at eight prior scheduled IMEs and petitioner’s treatment of claimant as an adversary, the determination was therefore rational, as it was based on the evidence before her (see Matter of Amtrust Group v American Tr. Ins. Co., 161 AD3d 537 [2018]; Park v Long Is. Ins. Co., 13 AD3d 506 [2004]; Empire Mut. Ins. Co. v Hornick, 189 AD2d 707 [1993]).
We note that petitioner does not dispute that the parties agreed, in effect, to bifurcate the arbitration so as to limit the issue before the arbitrator to a determination of the IME no show defense. In the circumstances, petitioner’s complaint that the arbitrator did not resolve other issues is unavailing (see American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 167 AD3d 142 [2018]).
We have considered petitioner’s remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: October 04, 2019
Reported in New York Official Reports at Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co. (2019 NY Slip Op 07061)
| Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co. |
| 2019 NY Slip Op 07061 [176 AD3d 695] |
| October 2, 2019 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Bay Needle Care Acupuncture, P.C.,
Appellant, v Country Wide Insurance Company, Respondent. |
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.