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July 24, 2015

Acuhealth Acupuncture, PC v Country-Wide Ins. Co. (2015 NY Slip Op 51256(U))

https://www.beynensonlaw.com/case-law/acuhealth-acupuncture-pc-v-country-wide-ins-co-2015-ny-slip-op51256u/

Court
Supreme Court, Kings County
Judge
Ellen M. Spodek, J.
Decided
July 24, 2015
Citation
2015 NY Slip Op 51256(U)
Posture
Article 75 petition
Outcome
Insurer prevailed
Issues
CPLR article 75 (arbitration awards) Fraudulent incorporation (Mallela) Declaratory judgment, res judicata
Legal questions
Court review of arbitration awards · Mallela defense: preclusion and discovery (see the maps)
Cite as
Acuhealth Acupuncture, PC v Country-Wide Ins. Co., 2015 NY Slip Op 51256(U) (Sup Ct, Kings County 2015)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

A no-fault arbitrator may subpoena a provider's claimed owner on the arbitrator's own initiative to resolve disputed ownership. The Supreme Court, Kings County, denied the provider's request to vacate or remand under CPLR 7511 and confirmed the master arbitrator's award under CPLR 7510. The arbitrator dismissed the claim without prejudice because the claimed owner was ill, allowing later examination concerning the insurer's fraudulent-incorporation defense. Under 11 NYCRR 65-4.5 (o) (2), the subpoena concerned an issue integral to the dispute. The dismissal permitted a later claim and violated no public policy, was not irrational, and exceeded no specified power. Collateral estoppel did not apply because the provider supplied no reasoning from prior remand decisions showing that the ownership issue had been decided.

Reported in New York Official Reports at Acuhealth Acupuncture, PC v Country-Wide Ins. Co. (2015 NY Slip Op 51256(U))



Acuhealth Acupuncture, PC a/a/o/ ANDRE MASON, Plaintiff,

against

Country-Wide Insurance Company, Defendants.

15621/12

Attorney For Petitioner: Acuhealth Acupuncture, P.C.
Gary Tsirelman, P.C.
129 Livingston Street
Brooklyn, New York 11201

Attorney For Respondent: Country-Wide Insurance Company
Jaffe & Koumourdas
40 Wall Street – 12th Floor
New York, New York 10005


Ellen M. Spodek, J.

PapersNumbered

Notice of Motion and Affidavit………………………………………………..____1_____

Notice of Cross Motion and Affidavit ……………………………..____2_____

Answering Affidavits ……………………………………………………………..____3_____

Replying Affidavits ………………………………………………………………..____4_____

Exhibits …………………………………………………………………………………____5_____

Other .__________

Upon the foregoing papers, petitioner ACUHEALTH ACUPUNCTURE, PC moves for an order to vacate the Master Arbitrator’s award, pursuant to CPLR § 7511. Respondent COUNTRY-WIDE INSURANCE COMPANY opposes the motion and moves for an order to confirm the Master Arbitrator’s award, pursuant to CPLR § 7510.

This case arises out of an automobile accident with petitioner’s assignor on August 8, 2010. At the time of the accident, there was an existing No-Fault policy issued by the Respondent. Petitioner rendered health services to the assignor for the personal injuries sustained in the car accident. When petitioner did not receive full reimbursement for the services provided, the matter proceeded to arbitration. Respondent denied payment for acupuncture services on the contention that petitioner was owned and controlled by a person who is contrary to the New York State No-Fault law requirements, which states that “A provider of health care services is not eligible for reimbursement . . . if the provider fails to meet any applicable New York State . . . licensing requirement necessary to perform such service in New York.” 11 NYCRR § 65-3.16(a)(12). Respondent provided evidence that ACUHEALTH ACUPUNCTURE, PC was owned, controlled, and operated by Andrey Anikeyev, who is not a licensed medical practitioner. Petitioner submitted an affidavit from Natalya Kornilova stating that she is the sole owner of petitioner. As Ms. Kornilova was ill at the time of the arbitration, Arbitrator Weiner dismissed the petitioner’s claim without prejudice to afford respondent the opportunity to subpoena Ms. Kornilova and examine her under oath during the proceedings. Petitioner appealed and Master Arbitrator D’Ammora affirmed.

“An arbitration award can be vacated by a court pursuant CPLR § 7511(b) on only three narrow grounds: if it is clearly violative of a strong public policy, if it is totally or completely irrational, or if it manifestly exceeds a specific, enumerated limitation on the arbitrator’s power.” Matter of Erin Constr. & Dev. Co., Inc. v. Meltzer, 58 AD3d 729 (2009). Even if the arbitrator commits errors of fact or law, the [*2]court should not vacate the arbitrator’s award.” Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 NY3d 471 (2006). In this case, Arbitrator Weiner’s ruling and Master Arbitrator D’Ammora’s affirmation do not meet the three narrow grounds for the Court to vacate the award pursuant to CPLR § 7511. The award is not against public policy of any kind, it is not irrational, and it does not exceed the powers of the arbitrator in any capacity. As such, the Court has no recourse but to affirm the arbitrator’s award.

Petitioner argues that the respondent should be estopped from litigating this case since a similar case was litigated in prior proceedings in this Court. “The two elements that must be satisfied to invoke the doctrine of collateral estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue.” Luscher v. Arrua, 21 AD3d 1005, 1007 (2005). However, petitioner does not provide the Court with any evidence or details of the prior rulings of Judge King or Judge Bayne. Their decisions only state that the case be remanded. In order for collateral estoppel to apply, this Court would need details of the reasoning behind the prior decisions of Judge King and Judge Bayne to determine whether the issues in this case were previously decided. As such details were not provided by the petitioner, respondent is not estopped from litigating this issue.

Petitioner argues that Arbitrator Weiner acted impermissibly and incorrectly as a matter of law by raising the issue of subpoenaing Natalya Kornilova sua sponte. However, an “arbitrator . . . may subpoena witnesses . . . upon the arbitrator’s own initiative or upon the request of any party, when the issues to be resolved require such witnesses.” 11 NYCRR § 65-4.5(o)(2), (see also NY CPLR § 7505, 11 NYCRR § 65-4.4 [e]). Petitioner cites a case, Matter of Health & Endurance Med., P.C. v. Deerbrook Ins. Co., 44 AD3d 857 (2007), which has no relevance to this matter. In that case, the arbitrator raised an issue not relevant for determination of the issues. In this case, the contents of Ms. Kornilova’s deposition were integral to the determination of the issues in question, namely the ownership of the petitioner. As such, the Arbitrator was well within his power to issue a subpoena to Ms. Kornilova.

Petitioner argues that Arbitrator Weiner impermissibly dismissed the case without prejudice. Petitioner contends that a dismissal without prejudice is only warranted when the filing is premature. However, petitioner does not provide any case law to support this proposition. To the contrary, an arbitrator can dismiss a case without prejudice when a party “has failed to establish a prima facie case, but it appears that proof which would support a prima facie case is available.” Kilduff v. Donna Oil Corp., 74 AD2d 562, 563 (1980). A dismissal without prejudice indicates that there was no final determination on the merits and a subsequent action should not be barred. Id. In this case, petitioner is still entitled to bring their claim to an arbitrator at a time Ms. Kornilova is healthy enough to be examined under oath by respondent. As such, the dismissal without prejudice was permissible.

Petitioner further contends that Arbitrator Weiner’s findings were arbitrary and capricious or incorrect as a matter of law regarding the question of whether Petitioner is fraudulently incorporated. As indicated earlier, “even if the arbitrator commits errors of fact or law, the court should not vacate the arbitrator’s award.” Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 NY3d 471 (2006). Arbitrator Weiner’s findings were not so egregious or against public policy as to vacate the award. As explained in Arbitrator D’Ammora’s affirmation, “Arbitrator Weiner could have reached several different results in his decision.” See Affirmation in Opposition, Exhibit B. Arbitrator Weiner’s decision was logical and reasonable and does not warrant the Court vacating the award.


The Court finds that petitioner has failed to provide any evidence to demonstrate that Arbitrator Weiner and Arbitrator D’Ammora acted in any way that was against public policy, completely irrational, or manifestly exceeded a specific enumerated limit on the arbitrator’s powers. Petitioner’s motion to vacate or remand the arbitration award is denied. Pursuant to CPLR § 7510, Master Arbitrator D’Ammora’s award dated October 28, 2014 is confirmed.

This constitutes the decision and order of the Court.

ENTER,

____________________

JSC

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Court review of arbitration awards

Open the full map

When does a court vacate, modify or confirm a no-fault arbitrator’s or master arbitrator’s award under CPLR article 75?

This decision: No ground for vacatur or modification shown: the award is confirmed or left in place

Confirmed the master award affirming dismissal without prejudice because the arbitrator could subpoena the owner on his own initiative, could dismiss without prejudice, and his fraudulent-incorporation findings were rational; claimed errors of law do not warrant vacatur.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 34
  • Appellate TermApp Term 46
  • Trial courtsTrial 38
2010, Court of Appeals: 1 decision (1 Award stands)2022, Appellate Division: 1 decision (1 Vacated: irrational/arbitrary)2019, Appellate Division: 6 decisions (3 Award stands, 1 Vacated: irrational/arbitrary, 2 Vacated: master overstepped)2018, Appellate Division: 2 decisions (1 Award stands, 1 Vacated: irrational/arbitrary)2017, Appellate Division: 1 decision (1 Award stands)2016, Appellate Division: 1 decision (1 Award stands)2015, Appellate Division: 1 decision (1 Award stands)2013, Appellate Division: 1 decision (1 Award stands)2010, Appellate Division: 2 decisions (2 Award stands)2007, Appellate Division: 2 decisions (1 Vacated: irrational/arbitrary, 1 Vacated: exceeded power)2005, Appellate Division: 2 decisions (2 Award stands)2025, Appellate Division: 5 decisions (5 Award stands)2026, Appellate Division: 9 decisions (6 Award stands, 1 Vacated: irrational/arbitrary, 2 Vacated: exceeded power)2009, Appellate Division: 1 decision (1 Award stands)2020, Appellate Term: 2 decisions (1 Award stands, 1 Vacated: master overstepped)2019, Appellate Term: 1 decision (1 Award stands)2017, Appellate Term: 4 decisions (4 Award stands)2016, Appellate Term: 2 decisions (2 Award stands)2011, Appellate Term: 1 decision (1 Award stands)2010, Appellate Term: 3 decisions (3 Award stands)2009, Appellate Term: 1 decision (1 Award stands)2008, Appellate Term: 11 decisions (7 Award stands, 4 Vacated: irrational/arbitrary)2007, Appellate Term: 14 decisions (14 Award stands)2006, Appellate Term: 3 decisions (3 Award stands)2023, Appellate Term: 1 decision (1 Vacated: irrational/arbitrary)2024, Appellate Term: 1 decision (1 Vacated: irrational/arbitrary)2025, Appellate Term: 1 decision (1 Award stands)2004, Appellate Term: 1 decision (1 Award stands)2023, Trial courts: 13 decisions (12 Award stands, 1 Vacated: irrational/arbitrary)2019, Trial courts: 1 decision (1 Award stands)2017, Trial courts: 1 decision (1 Vacated: master overstepped)2015, Trial courts: 2 decisions (2 Award stands)2013, Trial courts: 2 decisions (2 Vacated: irrational/arbitrary)2008, Trial courts: 1 decision (1 Award stands)2006, Trial courts: 1 decision (1 Vacated: irrational/arbitrary)2005, Trial courts: 7 decisions (5 Award stands, 2 Vacated: irrational/arbitrary)2004, Trial courts: 1 decision (1 Vacated: irrational/arbitrary)2024, Trial courts: 3 decisions (3 Award stands)2026, Trial courts: 1 decision (1 Award stands)2009, Trial courts: 2 decisions (1 Award stands, 1 Vacated: irrational/arbitrary)2011, Trial courts: 1 decision (1 Award stands)2016, Trial courts: 1 decision (1 Award stands)2018, Trial courts: 1 decision (1 Vacated: exceeded power)This decision
20052010201520202025
Award standsVacated: irrational/arbitraryVacated: exceeded powerVacated: master oversteppedThis decisionCites it or cited by itDistinguished or limited

Of the 119 decisions on this question in the Second Department courts and the Court of Appeals, 92 (this one included) are in the same category.

Mallela defense: preclusion and discovery

Open the full map

May the insurer raise and investigate a Mallela (fraudulent incorporation) defense, or is it precluded, waived or denied discovery?

This decision: Insurer may raise or investigate the Mallela defense here (rules on the question, but another ground decided the case)

Confirmed an award dismissing the claim without prejudice so the insurer could subpoena and examine the provider's purported owner about whether an unlicensed person owned and controlled it.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 7
  • Appellate TermApp Term 72
  • Trial courtsTrial 56
2005, Court of Appeals: 1 decision (1 Defense may be pursued)2021, Appellate Division: 1 decision (1 Defense may be pursued)2019, Appellate Division: 2 decisions (1 Defense may be pursued, 1 Defense barred)2017, Appellate Division: 1 decision (1 Defense may be pursued)2016, Appellate Division: 1 decision (1 Defense may be pursued)2011, Appellate Division: 1 decision (1 Defense may be pursued)2008, Appellate Division: 1 decision (1 Defense may be pursued)2019, Appellate Term: 1 decision (1 Defense may be pursued)2018, Appellate Term: 2 decisions (2 Defense may be pursued)2017, Appellate Term: 2 decisions (2 Defense may be pursued)2014, Appellate Term: 2 decisions (2 Defense may be pursued)2013, Appellate Term: 5 decisions (5 Defense may be pursued)2012, Appellate Term: 8 decisions (8 Defense may be pursued)2011, Appellate Term: 8 decisions (7 Defense may be pursued, 1 Defense barred)2010, Appellate Term: 9 decisions (7 Defense may be pursued, 2 Defense barred)2009, Appellate Term: 7 decisions (7 Defense may be pursued)2008, Appellate Term: 8 decisions (7 Defense may be pursued, 1 Defense barred)2007, Appellate Term: 7 decisions (7 Defense may be pursued)2006, Appellate Term: 6 decisions (6 Defense may be pursued)2025, Appellate Term: 7 decisions (7 Defense may be pursued)2023, Trial courts: 2 decisions (2 Defense may be pursued)2021, Trial courts: 4 decisions (3 Defense may be pursued, 1 Defense barred)2019, Trial courts: 1 decision (1 Defense may be pursued)2017, Trial courts: 4 decisions (2 Defense may be pursued, 2 Defense barred)2015, Trial courts: 3 decisions (3 Defense may be pursued)2013, Trial courts: 2 decisions (1 Defense may be pursued, 1 Defense barred)2012, Trial courts: 6 decisions (1 Defense may be pursued, 5 Defense barred)2011, Trial courts: 1 decision (1 Defense barred)2010, Trial courts: 3 decisions (3 Defense barred)2009, Trial courts: 4 decisions (3 Defense may be pursued, 1 Defense barred)2008, Trial courts: 6 decisions (5 Defense may be pursued, 1 Defense barred)2007, Trial courts: 2 decisions (2 Defense may be pursued)2006, Trial courts: 5 decisions (5 Defense may be pursued)2005, Trial courts: 9 decisions (5 Defense may be pursued, 4 Defense barred)2025, Trial courts: 2 decisions (2 Defense may be pursued)2026, Trial courts: 2 decisions (2 Defense may be pursued)This decision
20052010201520202025
Defense may be pursuedDefense barredThis decision

Of the 136 decisions on this question in the Second Department courts and the Court of Appeals, 112 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co. (2007 NY Slip Op 07844) DistinguishedAn arbitrator impermissibly raised provider eligibility sua sponte when the insurer disputed only the need for the services.

Similar decisions

  • Matter of Global Liberty Ins. Co. v Professional Chiropractic Care P.C. (2015 NY Slip Op 50936(U))A rational master arbitration award is not subject to judicial vacatur for mere errors of substantive law.
  • Matter of New Century Acupuncture P.C. v Country Wide Ins. Co. (2015 NY Slip Op 50919(U))An insurer's licensing-ineligibility defense requires preponderance proof rather than clear and convincing proof of fraud.
  • American Tr. Ins. Co. v Excell Clinical Lab (2024 NY Slip Op 50820(U))A no-fault arbitrator deciding medical necessity need not require the provider to submit expert evidence rebutting the insurer's peer review.
  • Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co. (2019 NY Slip Op 07246)A master arbitration award with evidentiary support and a rational basis is not subject to judicial vacatur for mere legal error.
  • Matter of Spartan Med. Supply v Liberty Mut. Ins. Co. (2019 NY Slip Op 50862(U))The master arbitrator's affirmance of a policy-exhaustion denial was rational despite conflicting appellate authority.
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