Ola v American Family Connect Ins. Co. (2024 NY Slip Op 51804(U))

Reported in New York Official Reports at Ola v American Family Connect Ins. Co. (2024 NY Slip Op 51804(U))

Callinan & Smith, LLP (Steven Daniel Levy of counsel) for appellant-respondent. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel) for respondent-appellant.

Appeal and cross-appeal from an order of the Civil Court of the City of New York, Queens County (Karen Lin, J.), entered July 14, 2023. The order, insofar as appealed from by cross-petitioner, American Family Connect Insurance Company, formerly known as Ameriprise Insurance Company, granted the petition by Eufrosine Ola to vacate an arbitrator’s award and a master arbitrator’s award, and denied the insurance company’s cross-petition to confirm the arbitrator’s award and the master arbitrator’s award. The order, insofar as cross-appealed from by petitioner Ola, upon granting the petition to vacate the arbitrator’s award and master arbitrator’s award, did not order a rehearing before a new arbitrator. The appeal from the order entered July 14, 2023 brings up for review so much of an order of that court (Soma S. Syed, J.) entered June 25, 2024 as, upon reargument, made the same determination as was made in the order appealed from but added that “the case shall be heard before a new arbitrator,” thereby substantially adhering to the prior determination (see CPLR 5517 [a] [1]; [b]).

ORDERED that the appeal from the order entered July 14, 2023 is dismissed, as that order was superseded by the order entered June 25, 2024, made upon reargument; and it is further,

ORDERED that the order, entered June 25, 2024, insofar as reviewed, is affirmed, without costs.

Eufrosine Ola (the insured) commenced this proceeding, pursuant to CPLR 7511, to vacate both an arbitrator’s award denying the insured’s claims to recover first-party no-fault benefits for a left shoulder surgery performed on July 17, 2019 and other related medical services, and a master arbitrator’s award which upheld the award of the arbitrator, specifically requesting that, upon such vacatur, the matter be remitted for a new arbitration hearing before a different arbitrator (see CPLR 7511 [d]). American Family Connect Insurance Company (the [*2]insurer) cross-petitioned to confirm the arbitrator’s award and the master arbitrator’s award. By order entered July 14, 2023, the Civil Court (Karen Lin, J.) granted the insured’s petition on the ground that the master arbitrator’s award was arbitrary because the arbitrator’s award was contrary to settled law, but did not order a rehearing, and denied the insurer’s cross-petition. The insurer appeals, and the insured cross-appeals, from that order.

The insured moved for leave to reargue the petition on the ground, among others, that her request that the matter be remitted for a rehearing before a different arbitrator had not been granted. The insurer cross-moved for leave to reargue the cross-petition. By order entered June 25, 2024, the Civil Court (Soma S. Syed, J.) in effect granted the respective branches of the motion and cross-motion seeking leave to reargue and, upon reargument, made the same determination as was made in the original order, adding only a directive that “the case shall be heard before a new arbitrator.”^[FN1] Upon the appeal from the July 14, 2023 order, we review so much of the June 25, 2024 order as, upon reargument, substantially adhered to the prior determination (see CPLR 5517 [b] [permitting review of a subsequent order which “upon reargument mak[es] the same or substantially the same determination as is made in the order appealed from” (CPLR 5517 [a] [1])]).

For the reasons stated by the Civil Court, we find that the petition to vacate the arbitrator’s and master arbitrator’s awards was properly granted and the cross-petition was properly denied. To the extent that the insured purports to cross-appeal from so much of the July 14, 2023 order as “failed to address the arbitrator’s ruling that the Petitioner must prove the lack of an assignment, in the absence of proof of an assignment,” that ruling has been vacated as the entire award has been vacated. Nevertheless, we note that the insured correctly argues that this determination was contrary to settled law (see 11 NYCRR 65-3.11 [a]; Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order entered June 25, 2024, insofar as reviewed, is affirmed.

BUGGS, J.P., MUNDY J., concur.

HOM, J. Taking no part.