April 13, 2022
Matter of Advanced Orthopaedics, PLLC v Country-Wide Ins. Co. (2022 NY Slip Op 02406)
https://www.beynensonlaw.com/case-law/matter-of-advanced-orthopaedics-pllc-v-country-wide-ins-co-2022-ny-slip-op02406/
- Decided
- April 13, 2022
- Citation
- 2022 NY Slip Op 02406 · 204 AD3d 787
- Posture
- Article 75 petition
- Outcome
- Provider prevailed
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.
Reported in New York Official Reports at Matter of Advanced Orthopaedics, PLLC v Country-Wide Ins. Co. (2022 NY Slip Op 02406)
| Matter of Advanced Orthopaedics, PLLC v Country-Wide Ins. Co. |
| 2022 NY Slip Op 02406 [204 AD3d 787] |
| April 13, 2022 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Advanced Orthopaedics, PLLC,
Appellant, v Country-Wide Insurance Company, Respondent. |
Law Office of Jonathan B. Seplowe, P.C., Malverne, NY (Alan M. Elis of counsel), for appellant.
Jaffe & Velazquez, LLP, New York, NY (Thomas Torto of counsel), for respondent.
In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated April 10, 2018, which vacated an arbitration award in favor of the petitioner, and to confirm the arbitration award, the petitioner appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered October 2, 2018. The order denied the petition.
Ordered that the order is reversed, on the law, with costs, the petition to vacate the award of the master arbitrator dated April 10, 2018, is granted, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
“[A] 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 [2002]). “If the master arbitrator vacates the arbitrator’s award based upon an alleged error of ‘a rule of substantive law,’ the determination of the master arbitrator must be upheld unless it is irrational” (id. at 576 [internal quotation marks omitted]; see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168 [2019]).
The Supreme Court erred in denying the petition, inter alia, to vacate the award of the master arbitrator, as there was no rational basis to support the award. The master arbitrator’s determination that a denial of liability based upon a failure to appear at an examination under oath constitutes a defense of lack of coverage, which is not subject to preclusion, is irrational (see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d at 1168; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-1047 [2009]). Further, the master arbitrator’s application of 11 NYCRR 65-3.5 (p) is irrational, as it effectively allows an insurer to avoid the statutory timeliness requirements set forth in 11 NYCRR 65-3.8 (a). Where, as here, the initial request for an examination under oath is sent more than 30 days after receipt of the claim, the request is a nullity (see Excel Prods., Inc. v Farmington Cas. Co., 71 Misc 3d 137[A], 2021 NY Slip Op 50441[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]), and the insurer’s failure to timely notice the examination under oath is not excused by 11 NYCRR 65-3.5 (p) (see American Tr. Ins. Co. v Foster, 2019 NY Slip Op 30746[U], *4 [Sup Ct, NY County 2019]; cf. Z.M.S. & Y. Acupuncture, P.C. v [*2]Geico Gen. Ins. Co., 56 Misc 3d 926, 930 [Civ Ct, Kings County 2017]). Barros, J.P., Chambers, Zayas and Dowling, JJ., concur.
Legal questions (3)
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held irrational a master arbitrator's ruling that an EUO no-show is a non-precludable lack-of-coverage defense, and held an initial EUO request sent over 30 days after the claim a nullity not excused by 65-3.5 (p).
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.
When does a court vacate, modify or confirm a no-fault arbitrator’s or master arbitrator’s award under CPLR article 75?
This decision: Award vacated or modified because it was irrational, arbitrary and capricious, without evidentiary support or contrary to settled law
Vacated the master arbitrator's award as irrational because it treated an EUO no-show as a non-precludable coverage defense and applied 65-3.5(p) to excuse an EUO request sent more than 30 days after the claim.
Of the 119 decisions on this question in the Second Department courts and the Court of Appeals, 19 (this one included) are in the same category.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements (rules on the question, but another ground decided the case)
Held the master arbitrator irrationally excused the insurer's EUO notice under 65-3.5 (p), because an initial EUO request sent more than 30 days after receipt of the claim was a nullity.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
- Excel Prods., Inc. v Farmington Cas. Co. (2021 NY Slip Op 50441(U)) FollowedThe insurer's initial EUO request, sent more than 30 days after receipt of the claims, was a nullity as to those claims.
- Z.M.S. & Y. Acupuncture, P.C. v Geico Gen. Ins. Co. (2017 NY Slip Op 27189) Contrasted (cf., but see)The insurer's one-day delay in sending a follow-up EUO request did not excuse the provider's four nonappearances on this record.
Cited by
- Matter of American Tr. Ins. Co. v Big Apple Pain Mgt., PLLC (2025 NY Slip Op 05948)The insurer's petition to vacate a master arbitrator's award was denied because it failed to establish statutory grounds for vacatur.
- Matter of South Nassau Community Hosp. v Avis Budget Group, Inc. (2025 NY Slip Op 05954)The provider's petition to vacate a master award based on lack of standing was denied because the determination had a rational basis.
- ENS Med., P.C. v Nationwide Ins. Co. (2026 NY Slip Op 26033)A provider may arbitrate a claim for lost earnings incurred in attending an insurer-demanded EUO. Insurance Law § 5106 (b) encompasses reimbursement disputes arising from claim verification, and 11 NYCRR 65-3.5 (e) requires reimbursement.
Similar decisions
- Wellness Diagnostic Imaging, P.C. v American Tr. Ins. Co. (2025 NY Slip Op 50628(U))The master arbitrator's award had a rational basis because the parties' stipulation limited the dispute to the assignor's IME appearance.
- Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C. (2016 NY Slip Op 04156)A master arbitrator's award was irrational because it ignored the coverage effect of the assignor's failure to attend duly scheduled IMEs. The insurer presented authority establishing that the IME nonappearances rendered the no-fault policy void ab initio.
- Golden Earth Chiropractic & Acupuncture, PLLC v Global Liberty Ins. Co. of N.Y. (2016 NY Slip Op 26395)A master arbitrator may correct an error of substantive law without independently weighing evidence or determining credibility.
- Matter of American Tr. Ins. Co. v Sovereign Med. Servs., P.C. (2026 NY Slip Op 03160)The master arbitrator's application of collateral estoppel to reject a verification defense was rational and supported by evidence.
- Matter of Advanced Orthopaedics PLLC v Unitrin Advantage Ins. Co. (2020 NY Slip Op 51017(U))No-fault arbitration is compulsory, and denial of a petition to vacate a master arbitrator's award requires confirmation of the award.