[*1]

Jaffe & Koumourdas, LLP, New York (Jean H. Kang of counsel), for appellant.

Frank S. Patruno Law Offices P.C., Montgomery (Frank S. Patruno of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Manuel J. Mendez, J), entered August 11, 2015, denying the unopposed petition to vacate a master arbitration award, dated March 17, 2015, which affirmed an arbitrator’s award that had granted respondent no-fault insurance benefits, unanimously reversed, on the law, without costs, the petition granted, and the award vacated. The Clerk is directed to enter judgment accordingly.

The master arbitrator’s award was arbitrary because it irrationally ignored petitioner’s uncontroverted evidence establishing that the assignor failed to appear at the three scheduled examinations under oath (cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U] [App Term, 1st Dept 2015]). Concur—Friedman, J.P., Richter, Kapnick and Kahn, JJ.

[*1]

Stern & Montana, LLP, New York, NY (Richard Montana of counsel), for appellant.

In an action for a judgment declaring, inter alia, that the plaintiff is not obligated to reimburse certain no-fault medical payments with respect to a motor vehicle collision that occurred on September 11, 2011, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated January 9, 2014, which denied its unopposed motion pursuant to CPLR 3215 for leave to enter a judgment against the defendants Sharine Carrier, Roland Sebastian-Hall, Enis Sebastian, Jennine Eastmond, Active Care Medical Supply Corp., Amy M. Kott, MT, Graham Wellness Medical, P.C., Heel to Toe Foot Center, LLC, Immediate Imaging, P.C., Jing Luo Acupuncture, P.C., Precision Medical Diagnostics of NY, P.C., and Ultra Ortho Products, Inc., upon their failure to appear or answer the complaint.

Ordered that the order is reversed, on the law, without costs or disbursements, and the plaintiff’s motion pursuant to CPLR 3215 for leave to enter a judgment against the defendants Sharine Carrier, Roland Sebastian-Hall, Enis Sebastian, Jennine Eastmond, Active Care Medical Supply Corp., Amy M. Kott, MT, Graham Wellness Medical, P.C., Heel to Toe Foot Center, LLC, Immediate Imaging, P.C., Jing Luo Acupuncture, P.C., Precision Medical Diagnostics of NY, P.C., and Ultra Ortho Products, Inc., declaring that (a) a motor vehicle collision that occurred on September 11, 2011, was an excluded act and all claims arising from that accident are excluded under the terms and conditions of an automobile liability insurance policy issued to the defendant Enis Sebastian, and (b) the plaintiff is not obligated to reimburse certain no-fault medical payments, defend and indemnify the defendant Enis Sebastian against any third-party claims, or provide coverage for any uninsured or underinsured motorist claims with respect to the subject motor vehicle collision is granted.

On September 11, 2011, the defendants Sharine Carrier, Roland Sebastian-Hall, and Jennine Eastmond (hereinafter collectively the claimants) allegedly were injured when their vehicle was sideswiped by a U-Haul truck. After the accident the claimants sought medical treatment from, among others, the defendants Active Care Medical Supply Corp., Graham Wellness Medical, P.C., Heel to Toe Foot Center, LLC, Immediate Imaging, P.C., Jing Luo Acupuncture, P.C., Precision Medical Diagnostics of NY, P.C., and Ultra Ortho Products, Inc. (hereinafter collectively the corporate medical providers), and the defendant Amy M. Kott, MT. Thereafter, the corporate medical providers and Kott sought reimbursement of no-fault benefits under an automobile liability insurance policy issued to the defendant Enis Sebastian by the plaintiff, Allstate Property & Casualty Insurance Company, the insurer of the claimants’ vehicle. On November 21, 2012, the plaintiff commenced this action for a judgment declaring, inter alia, that it is not obligated to reimburse the [*2]no-fault medical payments made by the medical providers with respect to the subject motor vehicle collision. The individual defendants were served pursuant to CPLR 308 (4) and the corporate medical providers were served via the secretary of state. On December 20, 2012 the plaintiff served the corporate medical providers with an additional copy of the summons and complaint pursuant to CPLR 3215 (g) (4). After the individual defendants and the corporate medical providers failed to appear or answer, the plaintiff moved by notice of motion dated August 13, 2013, for leave to enter a default judgment against them. The Supreme Court denied the unopposed motion.

On a motion for leave to enter a default judgment under CPLR 3215, a plaintiff must submit proof of service of the summons and the complaint, the facts constituting the causes of action, and the defendant’s default (see CPLR 3215 [f]; Roy v 81E98th KH Gym, LLC, 142 AD3d 985 [2016]; Gershman v Ahmad, 131 AD3d 1104, 1105 [2015]; Dupps v Betancourt, 99 AD3d 855, 855 [2012]; Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651 [2011]). Here, the plaintiff provided copies of the affidavits of service, a complaint verified by the plaintiff’s authorized agent, an affidavit of merit, documentary evidence, and proof that the individual defendants and the corporate medical providers had defaulted in answering the complaint. The plaintiff’s proof was sufficient to establish a viable cause of action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 70 [2003]). Accordingly, the plaintiff’s unopposed motion for leave to enter a default judgment against the individual defendants and the corporate medical providers should have been granted. Rivera, J.P., Dillon, Chambers and Hinds-Radix, JJ., concur.

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Rubin, Fiorella & Friedman LLP, New York (Harlan R. Schreiber of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered February 19, 2015, to the extent appealed from, granting plaintiff’s motion for summary judgment and declaring that plaintiff is not obligated to provide no-fault benefits to defendants Adelaida Physical Therapy, P.C., Charles Deng Acupuncture, P.C., Delta Diagnostic Radiology, P.C., Island Life Chiropractic Pain Care, PLLC, Maiga Products Corp., and TAM Medical Supply Corp. as a result of a motor vehicle accident, due to claimants’ failure to appear for their scheduled examinations under oath (EUO), unanimously reversed, on the law, without costs, the judgment vacated and the motion denied.

Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage (see 11 NYCRR 65-1.1; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), plaintiff failed to supply sufficient evidence to enable the court to determine whether the notices it had served on the injury claimants for EUOs were subject to the timeliness requirements of 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b) (see Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]) and, if so, whether the notices had been served in conformity with those requirements (see National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). Specifically, plaintiff failed to provide copies of any completed verification forms it may have received from any of the health service provider defendants or any other evidence reflective of the dates on which plaintiff had received any such verification forms, or otherwise assert that it never received such forms. Thus, plaintiff failed to meet its burden of establishing either that the EUOs were not subject to the procedures and time frames set forth in the no-fault implementing regulations or that it properly noticed the EUOs in conformity with their terms (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv [*2]denied 17 NY3d 705 [2011]; Allstate Ins. Co. v Pierre, 123 AD3d at 618).

In view of our disposition, we need not reach defendants’ remaining contentions. Concur—Saxe, J.P., Moskowitz, Gische, Kahn and Gesmer, JJ.

[*1]

Law Office of Gregory A. Goodman, P.C., Hauppauge (Gregory A. Goodman of counsel), for appellant.

Law Offices of Daniel J. Tucker, Brooklyn (Joshua M. Goldberg of counsel), for respondent.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 11, 2016, which granted plaintiff’s motion for a default judgment pursuant to CPLR 3215 declaring that it owes no duty to pay any pending or future no-fault claims arising out of a September 24, 2014 motor vehicle accident, and denied the cross motion of defendant Innovative Medical Heights, P.C. (Innovative Medical) for summary judgment dismissing the complaint as against it and for attorneys’ fees, unanimously affirmed, without costs.

Supreme Court properly granted plaintiff’s motion for a default judgment. The record demonstrates that plaintiff submitted proof that it served Innovative Medical with the summons and complaint, Innovative Medical does not deny that it was received, and Innovative Medical failed to set forth a reasonable excuse as to why it failed to timely answer the complaint (see CPLR 3215 [a], [f]). Innovative Medical’s claim that plaintiff accepted its untimely answer by failing to reject it fails, because plaintiff moved for the default judgment within 13 days of its receipt (see e.g. Katz v Perl, 22 AD3d 806, 807 [2d Dept 2005]).

Furthermore, Innovative Medical’s cross motion was properly denied. Since Innovative Medical never properly filed an answer, it may not ask the court to reach the merits of the action because CPLR 3212 (a) expressly provides that a motion for summary judgment may only be made after joinder of issue (see Afco Credit Corp. v Mohr, 156 AD2d 287 [1st Dept 1989]). Concur—Friedman, J.P., Sweeny, Richter, Manzanet-Daniels and Kapnick, JJ.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Russell Friedman & Associates, LLP, Lake Success (Dara C. Goodman of counsel), for respondent.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered April 6, 2016, which denied petitioner’s application to vacate a master arbitration award entitling respondent to no-fault insurance benefits, and granted respondent’s cross motion to confirm the award, unanimously affirmed, with costs.

Petitioner failed to demonstrate the existence of any of the statutory grounds for vacating the Master Arbitrator’s award (CPLR 7511 [b]). The decision of the Master Arbitrator in affirming the arbitration award had evidentiary support, a rational basis, and was not arbitrary and capricious (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]). The original arbitrator properly acted within her discretionary authority to refuse to entertain any late submissions proffered by petitioner (see 11 NYCRR 65-4.2 [b] [3]; Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2d Dept 2009]). Concur—Mazzarelli, J.P., Sweeny, Richter, Manzanet-Daniels and Feinman, JJ.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for respondent.

In a proceeding pursuant to CPLR 7511 to vacate an arbitration award dated March 24, 2014, in which Global Liberty Insurance Co. of N.Y. cross-petitioned to confirm the award, Global Liberty Insurance Co. of N.Y. appeals from an order of the Supreme Court, Suffolk County (Asher, J.), dated March 25, 2015, which granted the petition and denied the cross petition.

Ordered that the order is affirmed, with costs.

The petitioner, Liberty Mutual Fire Insurance Company, as subrogee of Mohan Singh (hereinafter Liberty Mutual), paid no-fault benefits on behalf of its insured for the medical treatment of a third party who was injured in a motor vehicle collision with a livery vehicle insured by Global Liberty Insurance Co. of N.Y. (hereinafter Global). Liberty Mutual thereafter sought to recover payments of $11,398.38 from Global in compulsory arbitration pursuant to Insurance Law § 5105. Despite finding that the livery vehicle insured by Global was 100% at fault in the happening of the accident, and notwithstanding Liberty Mutual’s submission of a payment ledger detailing the payments it made for various medical services, the arbitrator determined that Liberty Mutual did not properly manage the medical claims and awarded it only $5,699.19, or 50% of the amount sought. Liberty Mutual thereafter commenced this proceeding pursuant to CPLR 7511 to vacate the arbitration award, contending that the arbitrator erred in awarding it damages of only $5,699.19, rather than the full amount of $11,398.38, and Global cross-petitioned to confirm the award. The Supreme Court granted Liberty Mutual’s petition and denied Global’s cross petition, determining that there was no evidence to support the arbitrator’s findings. We affirm.

While judicial review of arbitration awards is limited to the grounds set forth in CPLR 7511, an award that is the product of compulsory arbitration, such as the one at issue in this case, “must satisfy an additional layer of judicial scrutiny—it ‘must have evidentiary support and cannot be arbitrary and capricious’ ” (City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 919 [2011], quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 46 [2015]; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 70 AD3d 1043 [2010]; Matter of Mercury Cas. [*2]Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2009]).

Here, in response to Liberty Mutual’s submission of evidence establishing the medical payments for which it sought reimbursement, Global failed to produce any evidence that any of the medical claims were improperly paid (see generally State Farm Mut. Auto. Ins. Co. v Stack, 55 AD3d 594, 595 [2008]). Accordingly, the arbitrator’s determination that Liberty Mutual was not entitled to full reimbursement was not supported by evidence in the record and was arbitrary and capricious (see generally Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008]). Under these circumstances, the Supreme Court properly granted Liberty Mutual’s petition and denied Global’s cross petition. Chambers, J.P., Dickerson, Miller and Brathwaite Nelson, JJ., concur.

[*1]

Gullo & Associates, LLC, Brooklyn (Cristina Carollo of counsel), for appellant-respondent/appellant.

Gary Tsirelman, P.C., Brooklyn (David M. Gottlieb and Stefan Belinfanti of counsel), for respondent-appellant/respondent.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered January 29, 2014, which, to the extent appealed from as limited by the briefs, denied and dismissed petitioner Unitrin’s petition to vacate a no-fault master arbitration award dated June 3, 2013, and granted respondent Professional Health Radiology as assignee of Nestor Camacho’s counterclaim to the extent of confirming the award, unanimously affirmed, without costs. Order, same court (Lawrence K. Marks, J.), entered March 14, 2014, which denied Unitrin’s petition to vacate a no-fault master arbitration award dated June 3, 2013, granted respondent Professional Health Radiology as assignee of Anggi Camacho’s counterclaim to confirm the award, and denied Professional Health’s counterclaim for attorney’s fees in connection with the court proceeding, unanimously modified, on the law, to grant the counterclaim for attorney’s fees, and remand the matter to Supreme Court for further proceedings consistent with this decision, and otherwise affirmed, without costs.

Unitrin failed to establish that it was entitled to deny Professional Health’s claims on the ground that Professional Health’s assignors, Nestor Camacho and Anggi Camacho, did not appear for independent medical examinations (IMEs) (see American Tr. Ins. Co. v Clark, 131 AD3d 840 [1st Dept 2015]). The no-fault regulations include mandatory notice requirements governing insurer requests for both IMEs and examinations under oath (11 NYCRR 65-3.5 [e]). The regulations expressly provide that the insurer “shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request” (id.). Unitrin failed to establish that the requisite regulatory language was contained within its November 30, 2011 letters sent to the assignors, and, based on the multiple errors committed by Unitrin, it failed to establish inadvertent law office error, or that the cases should be remanded, in the interest of justice, for a new arbitration hearing.

[*2] Pursuant to Insurance Law § 5106 (a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations.” “In a proceeding for judicial review of an award by a master arbitrator, an attorney’s fee shall be fixed by the court adjudicating the matter” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 139 AD3d 947, 948 [2d Dept 2016]; see 11 NYCRR 65-4.10 [j] [4]). Professional Health, therefore, is entitled to attorney’s fees in connection with the Supreme Court proceeding regarding Anggi Camacho, and we remand the matter for further proceedings to determine those fees. Professional Health did not file a cross appeal with respect to the denial of its counterclaim for attorney’s fees in connection with the Supreme Court proceeding regarding Nestor Camacho, and this Court lacks the power to grant the counterclaim (see Hecht v City of New York, 60 NY2d 57 [1983]). Concur—Renwick, J.P., Manzanet-Daniels, Gische and Webber, JJ.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Law Offices of Economou & Economou, P.C., Syosset, NY (Ralph C. Caio of counsel), for respondent Laxmidhar Diwan, M.D., as assignee of Jerry Souffront.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brown, J.), entered March 9, 2016, as denied those branches of its motion which were (a) for leave to enter a default judgment against the defendant W. Joseph Gorum, M.D., P.C., as assignee of Maldotha Conyers, and (b) for summary judgment on the complaint insofar as asserted against the defendant Laxmidhar Diwan, M.D., as assignee of Jerry Souffront, declaring that it was not obligated to provide insurance coverage, and dismissing the second counterclaim asserted by that defendant.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff’s motion which was for leave to enter a default judgment against the defendant W. Joseph Gorum, M.D., P.C., as assignee of Maldotha Conyers, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, a no-fault insurance carrier, commenced this action pursuant to Insurance Law § 5106 (c) for a de novo adjudication of two separate insurance disputes concerning the denial of no-fault claims involving the defendant W. Joseph Gorum, M.D., P.C., as assignee of Maldotha Conyers, and the defendant Laxmidhar Diwan, M.D., as assignee of Jerry Souffront. Both Gorum and Diwan had been awarded more than $5,000 against the plaintiff as a result of master arbitration awards.

The plaintiff moved, inter alia, for leave to enter a default judgment against Gorum, which failed to answer the complaint or appear in this action. The Supreme Court denied that branch of the plaintiff’s motion with respect to Gorum on the basis that the plaintiff failed to submit an affirmation from its expert with an original signature. The plaintiff also moved for summary judgment on the complaint insofar as asserted against Diwan declaring it was not obligated to provide insurance coverage for the services Diwan performed for Souffront, since such services were [*2]not medically necessary to treat injuries Souffront sustained in a motor vehicle accident, and for summary judgment dismissing Diwan’s second counterclaim, which alleged breach of contract. The court denied those branches of the plaintiff’s motion with respect to Diwan, determining that the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law.

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to file proof of (1) service of the summons and complaint, (2) the facts constituting the claim, and (3) the other party’s default (see CPLR 3215 [f]; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785 [2015]; Fried v Jacob Holding, Inc., 110 AD3d 56, 59 [2013]). To demonstrate “the facts constituting the claim,” the movant need only submit sufficient proof to enable a court to determine if the claim is viable (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Fried v Jacob Holding, Inc., 110 AD3d at 60; Neuman v Zurich N. Am., 36 AD3d 601, 602 [2007]). Here, the Supreme Court found that the plaintiff submitted proof of service of the summons and complaint upon Gorum (see Business Corporation Law § 306 [b] [i]; CPLR 3215 [g] [4] [i]) and that Gorum had not answered or appeared in this action, thereby admitting all traversable allegations (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]). However, the court erred in denying that branch of the plaintiff’s motion which was for leave to enter a default judgment against Gorum on the basis that its expert’s affirmation, in the form of a peer review, did not have an original signature (see CPLR 2101 [e]; Rechler Equity B-1, LLC v AKR Corp., 98 AD3d 496, 497 [2012]; Billingy v Blagrove, 84 AD3d 848, 849 [2011]; Campbell v Johnson, 264 AD2d 461, 461 [1999]). Further, the plaintiff’s expert’s affirmed peer review demonstrated facts constituting the cause of action asserted against Gorum (see Woodson v Mendon Leasing Corp., 100 NY2d at 71). Thus, the court should have granted the plaintiff leave to enter a default judgment against Gorum.

However, the Supreme Court properly denied those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against Diwan and dismissing Diwan’s second counterclaim. The peer review reports and medical records submitted in support of this motion failed to demonstrate as a matter of law that the surgery performed by Diwan on Souffront was not medically necessary (see Cortland Med. Supply, Inc. v 21st Century Centennial Ins. Co., 46 Misc 3d 136[A], 2014 NY Slip Op 51886[U], *1 [App Term, 1st Dept 2014]; Amherst Med. Supply, LLC v A. Cent. Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51800[U] [App Term, 1st Dept 2013]; Premier Health Choice Chiropractic, P.C. v Praetorian Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51802[U] [App Term, 1st Dept 2013]; Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). In light of the plaintiff’s failure to meet its prima facie burden, this Court need not consider the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Balkin, J.P., Austin, Sgroi and Duffy, JJ., concur.

[*1] (July 6, 2016)

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Don L. Hochler, P.C., Woodbury, NY, for respondent.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of a claim for no-fault insurance benefits, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Marber, J.), entered October 20, 2014, which, upon an order of the same court entered October 1, 2014, denying that branch of its motion which was pursuant to CPLR 3211 (b) to dismiss the third affirmative defense, granting the defendant’s cross motion to confirm the award of a master arbitrator dated January 24, 2014, and, in effect, denying, as academic, those branches of the plaintiff’s motion which were for summary judgment on the complaint and pursuant to CPLR 3211 (b) to dismiss the first, second, fourth, fifth, seventh, and eleventh affirmative defenses, and pursuant to CPLR 3211 (a) (7) to dismiss the second counterclaim and stated portions of the first counterclaim, is in favor of the defendant and against the plaintiff in the principal sum of $6,406.82.

Ordered that the judgment is reversed, on the law, with costs, those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (b) to dismiss the first, second, third, and fourth affirmative defenses are granted, the defendant’s cross motion to confirm the award of the master arbitrator is denied as academic, the order entered October 1, 2014, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for a determination on the merits of those branches of the plaintiff’s motion which were (a) for summary judgment on the complaint, (b) pursuant to CPLR 3211 (b) to dismiss the fifth, seventh, and eleventh affirmative defenses, and (c) pursuant to CPLR 3211 (a) (7) to dismiss the second counterclaim and stated portions of the first counterclaim.

The plaintiff, AutoOne Insurance Company, a no-fault insurance carrier, was entitled to commence this action to compel the de novo adjudication of the insurance dispute at issue since a master arbitrator’s award in favor of the defendant, Eastern Island Medical Care, P.C., as assignee of Jaime Benitez, exceeded the statutory threshold sum of $5,000 (see Insurance Law § 5106 [c]; Allstate Ins. Co. v Nalbandian, 89 AD3d 648, 649 [2011]; Matter of Capuano v Allstate Ins. Co., 122 AD2d 138, 139 [1986]).

The Supreme Court erred in denying that branch of the plaintiff’s motion which was for summary judgment on the complaint on the ground that the demand for a trial de novo was untimely filed (see Insurance Law § 5106 [c]; CPLR 7511; 11 NYCRR 65-4.10 [h] [2]; see also [*2]Matter of Slater v Eagle Ins. Co., 294 AD2d 368, 369 [2002]). As this arbitration dispute was originally submitted to the American Arbitration Association (hereinafter AAA) and was not court-ordered, the 35-day timetable applied by the court pursuant to 28 NYCRR 28.12 was not applicable (see 22 NYCRR 28.2). Instead, the plaintiff had 90 days from the date the master arbitrator’s award was mailed to it to commence this action (see Insurance Law § 5106 [c]; CPLR 7511; 11 NYCRR 65-4.10 [h] [2]; see also Matter of Slater v Eagle Ins. Co., 294 AD2d at 369), and the plaintiff did so. Thus, the court erred in granting the defendant’s cross motion to confirm the award of the master arbitrator on the ground that this action was not timely commenced and in denying that branch of the plaintiff’s motion which was pursuant to CPLR 3211 (b) to dismiss the third affirmative defense, which alleged that the action was not timely commenced. As the plaintiff timely invoked its right to a de novo review by the Supreme Court, the defendant’s cross motion to confirm the award of the master arbitrator was rendered academic (see Allstate Ins. Co. v Nalbandian, 89 AD3d at 649) and the defense of untimeliness was without merit (see Matter of Slater v Eagle Ins. Co., 294 AD2d at 369; Matter of Abadinsky v Aetna Cas. & Sur. Co., 250 AD2d 673, 673-674 [1998]; Matter of Capuano v Allstate Ins. Co., 122 AD2d at 138).

The defendant’s contention that the plaintiff failed to exhaust its administrative remedies or satisfy a condition precedent because the plaintiff defaulted before the master arbitrator is without merit. There is no dispute that the plaintiff timely demanded review by a master arbitrator within 21 calendar days of the mailing of the award by the AAA no-fault arbitrator (see 11 NYCRR 65-4.10 [d] [2]). Further, the insurance regulations specifically provide that a master arbitration will proceed even if a party fails to appear or submit materials and that the master arbitrator must make a determination on the merits, not in favor of an appearing party solely on the default of the other party (see 11 NYCRR 65-4.10 [d] [8]). Thus, the plaintiff’s failure to file a brief with the master arbitrator was not determinative of whether it satisfied a condition precedent or exhausted its administrative remedies (cf. Allstate Ins. Co. v Nalbandian, 89 AD3d at 649). The plaintiff exhausted its administrative remedies when it filed its demand for review by a master arbitrator, and the master arbitrator issued an award which was final and binding except, as is relevant here, when a party commences a court action to adjudicate the dispute de novo when the award is $5,000 or more (see 11 NYCRR 65-4.10 [h] [1]).

Thus, the Supreme Court also should have granted those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (b) to dismiss the first (failure to exhaust administrative remedies), second (default in master arbitration proceeding), and fourth (failure to satisfy condition precedent) affirmative defenses, as those defenses were without merit as a matter of law (see Mazzei v Kyriacou, 98 AD3d 1088, 1089 [2012]; Greco v Christoffersen, 70 AD3d 769, 771 [2010]).

Since the Supreme Court did not consider the merits of those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (b) to dismiss the remaining affirmative defenses, pursuant to CPLR 3211 (a) (7) to dismiss the second counterclaim and stated portions of the first counterclaim, and for summary judgment on the complaint, the matter must be remitted to the Supreme Court, Nassau County, for a determination of those branches of the motion on the merits (see Allstate Ins. Co. v Nalbandian, 89 AD3d at 649; Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d 702, 705 [2010]). Austin, J.P., Cohen, Miller and Duffy, JJ., concur.

[*1]

Jeffrey I. Baum & Associates, P.C., Garden City, NY (Maksim Leyvi of counsel), for appellants.

McDonnell & Adels, PLLC, Garden City, NY (Stuart M. Flamen and Stephanie A. Tebbett of counsel), for respondents.

In an action for declaratory relief and to recover damages for fraud and unjust enrichment, the defendants Raia Medical Health, P.C., and Joseph A. Raia appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCormack, J.), entered July 3, 2014, as granted the plaintiffs’ motion to preliminarily enjoin the defendants Raia Medical Health, P.C., and New Imaging & Diagnostic Services, P.C., inter alia, during the pendency of this action, from, among other things, commencing against the plaintiffs any new actions, arbitrations, or proceedings seeking reimbursement for no-fault benefits, and staying all such currently pending actions, arbitrations, or proceedings, and denied their cross motion pursuant to CPLR 7503 (a) to compel arbitration and stay all further proceedings in the action.

Ordered that the appeal from so much of the order as granted that branch of the plaintiffs’ motion which was for a preliminary injunction against the defendant New Imaging & Diagnostic Services, P.C., is dismissed, as the appellants are not aggrieved by that portion of the order (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs.

The defendant Raia Medical Health, P.C. (hereinafter RMH), which was owned by the defendant Joseph A. Raia (hereinafter together the appellants), allegedly billed the plaintiffs for medical services rendered to injured parties who had assigned their no-fault insurance benefits to RMH. In November 2013, the plaintiffs commenced this action for declaratory relief and to recover damages for fraud and unjust enrichment, alleging, inter alia, that RMH was ineligible to recover no-fault benefits, since it was not wholly owned and controlled by licensed physicians and was engaged in fee splitting with unlicensed individuals. The plaintiffs moved to preliminarily enjoin, among others, RMH, its agents, servants, employees, and all persons acting on its behalf, during the [*2]pendency of this action, from, among other things, “filing, commencing and/or instituting against plaintiffs any new actions, arbitrations or other proceedings seeking reimbursement for no-fault benefits,” and “staying all currently pending actions, arbitrations or other proceedings instituted by and/or on behalf of [RMH] against plaintiffs involving reimbursement for no-fault benefits.” The appellants cross-moved pursuant to CPLR 7503 (a) to compel arbitration and to stay all further proceedings in the action. The Supreme Court granted the preliminary injunction sought by the plaintiffs and denied the appellants’ cross motion.

“To obtain a preliminary injunction, a movant must demonstrate, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury if a preliminary injunction is not granted, and (3) a balance of equities in his or her favor” (M.H. Mandelbaum Orthotic & Prosthetic Servs., Inc. v Werner, 126 AD3d 859, 860 [2015]; see CPLR 6301; Doe v Axelrod, 73 NY2d 748, 750 [1988]; Arthur J. Gallagher & Co. v Marchese, 96 AD3d 791, 791-792 [2012]). “The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court” (Arthur J. Gallagher & Co. v Marchese, 96 AD3d at 792; see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]).

Here, the plaintiffs demonstrated a likelihood of success on the merits on their declaratory judgment causes of action. “Insurance Law § 5102 et seq. requires no-fault carriers to reimburse patients (or, as in this case, their medical provider assignees) for ‘basic economic loss’ ” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320 [2005]). However, “[a] provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York” (11 NYCRR 65-3.16 [a] [12]). “State law mandates that professional service corporations be owned and controlled only by licensed professionals” (One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2008]), and provides that a professional service corporation may issue shares only to individuals, inter alia, “who are or have been engaged in the practice of such profession in such corporation or a predecessor entity” (Business Corporation Law § 1507 [a]). In this case, the plaintiffs established that RMH provided only radiological services consisting of X rays, and MRI and CT scans, and produced an affidavit from Raia, in which he admitted that he had “no training or experience in the field of radiology, including the performance and/or interpretation of MRI studies and/or x-rays.” Raia also averred that he did not consider himself “competent [in] either (i) interpreting MRI studies and/or x-ray studies that are performed on patients; or (ii) supervising the interpretations of MRI studies and/or x-ray studies.” The plaintiffs also submitted an affidavit from an investigator for the plaintiff Liberty Mutual Insurance Company within its Special Investigations Unit, who concluded that RMH was merely a “reincarnation” of Socrates Medical Health, P.C. (hereinafter Socrates), a predecessor professional corporation purportedly owned by Raia which was actually controlled by a nonphysician. The investigator indicated, among other things, that Socrates’s medical director, who was also RMH’s initial medical director, had previously faced “charges by the Attorney General of New Jersey that included being employed by unlicensed MRI facilities and negligently misreading MRI studies,” and had “agreed to pay $60,000.00 and be subject to monitoring for two years.” Thus, the plaintiffs’ submissions demonstrated a likelihood of success on the merits.

Further, under the circumstances of this case, the plaintiffs demonstrated the likelihood of irreparable injury absent the granting of the preliminary injunction, based on the multiplicity of actions and arbitrations, and the risk of inconsistent results (see Ansonia Assoc. v Ansonia Residents’ Assn., 78 AD2d 211, 219 [1980]; 21st Century Advantage Ins. Co. v Cabral, 35 Misc 3d 1240[A], 2012 NY Slip Op 51086[U] [Sup Ct, Nassau County 2012]; St. Paul Travelers Ins. Co. v Nandi, 15 Misc 3d 1145[A], 2007 NY Slip Op 51154[U] [Sup Ct, Queens County 2007]; Allstate Ins. Co. v Elzanaty, 929 F Supp 2d 199, 221-222 [ED NY 2013]; cf. Matter of Countrywide Ins. Co. v DHD Med., P.C., 86 AD3d 431, 431 [2011]). The plaintiffs submitted evidence of well over 100 pending actions and open arbitrations commenced against them by RMH. Lastly, the plaintiffs established that the balance of the equities was in their favor.

The appellants’ remaining contentions are without merit.

Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion [*3]which was for a preliminary injunction against RMH and denied the appellants’ cross motion pursuant to CPLR 7503 (a) to compel arbitration and stay all further proceedings in the action. Rivera, J.P., Roman, Maltese and Duffy, JJ., concur.