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November 8, 2019

Matter of Fishkin (Allstate Ins. Co.) (2019 NY Slip Op 08060)

https://www.beynensonlaw.com/case-law/matter-of-fishkin-allstate-ins-co-2019-ny-slip-op-08060/

Court
Appellate Division, Fourth Department
Decided
November 8, 2019
Citation
2019 NY Slip Op 08060 · 177 AD3d 1322
Posture
Article 75 petition
Outcome
Provider prevailed
Issues
CPLR article 75 (arbitration awards)
Legal questions
Court review of arbitration awards (see the maps)
Cite as
Matter of Fishkin (Allstate Ins. Co.), 177 AD3d 1322 (4th Dept 2019)

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 master arbitrator may not conduct de novo review of medical evidence to overturn a no-fault arbitrator's award. The insurer denied a provider's surgical claim as medically unnecessary. The initial arbitrator awarded benefits because the insurer's peer review was conclusory, omitted appropriate medical standards, and failed to address the case's specifics. The master arbitrator vacated that award after independently finding the report apparently rational. Under Petrofsky, master review examines rationality and specified legal defects without reconsidering the evidence de novo. The Appellate Division, Fourth Department, affirmed the order in the CPLR article 75 proceeding vacating the master award, confirming the initial award, and denying the insurer's cross petition, because the master arbitrator exceeded the permitted authority.

Reported in New York Official Reports at Matter of Fishkin (Allstate Ins. Co.) (2019 NY Slip Op 08060)

Matter of Fishkin (Allstate Ins. Co.)
2019 NY Slip Op 08060 [177 AD3d 1322]
November 8, 2019
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 1, 2020

[*1]

 In the Matter of the Arbitration between Zair Fishkin, M.D., as Assignee of Troy Hodge, Respondent, and Allstate Insurance Company, Appellant.

Law Office of Peter C. Merani, P.C., New York City (Karen McCloskey of counsel), for respondent-appellant.

The Wright Law Firm, LLC, Rochester (Ron F. Wright of counsel), for petitioner-respondent.

Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo, J.), entered November 27, 2018, in a proceeding pursuant to CPLR article 75. The order, inter alia, granted the petition to vacate the award of the master arbitrator.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: This case arises from injuries that Troy Hodge sustained when a motor vehicle struck him while he rode a bicycle. Petitioner thereafter performed surgery on Hodge, who assigned his no-fault insurance claims to petitioner. Respondent, Hodge’s no-fault insurance carrier, denied petitioner’s claims for the cost of the surgery on the ground that the surgery was not medically necessary. Petitioner subsequently submitted the matter for arbitration. An initial arbitrator rendered an award in favor of petitioner, but respondent sought review from a master arbitrator, who vacated the award of the initial arbitrator and issued an award in favor of respondent. In this CPLR article 75 proceeding to review the determination of the master arbitrator, respondent appeals from an order that granted the petition, vacated the award of the master arbitrator, confirmed the award of the initial arbitrator, and denied the cross petition to confirm the master arbitrator’s award. We affirm.

It is well settled that “[t]he ‘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, 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]). This power ‘does not include the power to review, de novo, the matter originally presented to the arbitrator’ ” (Matter of Progressive Cas. Ins. Co. [Elite Med. Supply of N.Y., LLC], 162 AD3d 1471, 1472 [4th Dept 2018]). Here, we agree with petitioner that the master arbitrator impermissibly performed a de novo review of the medical evidence, and thus clearly exceeded his powers. The initial arbitrator concluded that respondent failed to meet its burden of submitting a peer review report setting forth a medical rationale for denying the claim, inasmuch as the peer review report submitted by respondent was conclusory, failed to set forth appropriate medical standards and failed to address the specifics of the case. Contrary to respondent’s contention, the master arbitrator did not conclude that the arbitrator’s determination was incorrect as a matter of law. To the contrary, the master arbitrator reviewed the evidence de novo and concluded that the peer review report submitted by respondent “appears rational.” Thus, contrary to respondent’s contention, Supreme Court properly determined that the master arbitrator exceeded his authority (see generally Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [2d Dept 1994]). Present—Whalen, P.J., Smith, DeJoseph, Curran and Winslow, JJ.

Legal questions

A question 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: Master arbitrator's award vacated because the master arbitrator went beyond the limited review allowed by 11 NYCRR 65-4.10

Affirmed vacatur of the master arbitrator's award and confirmation of the lower award because the master arbitrator re-weighed the peer review evidence de novo instead of deciding whether the award was incorrect as a matter of law.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 4
2010, Court of Appeals: 1 decision (1 Award stands)2019, Appellate Division: 1 decision (1 Vacated: master overstepped)2018, Appellate Division: 1 decision (1 Award stands)2013, Appellate Division: 1 decision (1 Award stands)2004, Appellate Division: 1 decision (1 Vacated: irrational/arbitrary)This decision
200520102015
Award standsVacated: irrational/arbitraryVacated: master oversteppedThis decisionCites it or cited by itCited or followed

Of the 5 decisions on this question in the Fourth Department courts and the Court of Appeals, 1 (this one included) is in the same category.

Cited in this decision

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

  • Matter of Progressive Cas. Ins. Co. (Elite Med. Supply of N.Y., LLC) (2018 NY Slip Op 04122) FollowedA master arbitrator may vacate a no-fault award for substantive legal error without conducting de novo factual review.

Similar decisions

  • Matter of Allstate Ins. Co. v Westchester Med. Group, M.D. (2015 NY Slip Op 00876)The insurer failed to establish a statutory ground to vacate a master arbitrator's award confirming payment of no-fault benefits.
  • Allstate Ins. Co. v Longevity Med. Supply, Inc. (2018 NY Slip Op 50238(U))A master arbitrator may apply law to established facts and correct legal error even when reaching a conclusion different from the arbitrator's. The insurer sought vacatur under CPLR 7511 of an award of unpaid no-fault benefits and attorney fees.
  • Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co. (2019 NY Slip Op 07061)The provider's challenge to its arbitration attorney fee failed because it submitted no documentation of hours worked.
  • Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth. (2018 NY Slip Op 08641)The master arbitrator's confirmation of an award denying benefits for exhausted policy limits had evidentiary support and a rational basis.
  • 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.
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