[*1]

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

Fazio, Rynsky & Associates, LLP, Syosset (Svetlana Sobel of counsel), for respondent.

Order, Supreme Court, Bronx County (Donna Mills, J.), entered April 16, 2019, which denied the petition to vacate a master arbitrator’s award, unanimously reversed, on the law, without costs, and the petition granted.

The master arbitrator’s award was arbitrary in that it irrationally ignored well-established precedent that “the no-fault policy issued by petitioner was void ab initio due to respondent’s assignor’s failure to attend duly scheduled independent medical exams” (Matter of Global Liberty Ins. Co. of N.Y. v Top Q. Inc., 175 AD3d 1131, 1131 [1st Dept 2019]; see Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Concur—Renwick, J.P., Gische, Kern, Singh, JJ.

[*1]

Hollander Legal Group, P.C., Melville (Allan S. Hollander of counsel), for plaintiffs-appellants.

Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered April 24, 2019. The order denied plaintiffs’ motions for leave to renew their motions seeking summary judgment.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motions for leave to renew are granted and, upon renewal, the motions for summary judgment are granted, and judgment is granted in favor of plaintiffs as follows:

It is adjudged and declared that plaintiffs are under no obligation to pay or reimburse any of the subject claims.

Memorandum: Defendants are medical professional corporations that were assigned claims for no-fault benefits by individuals who purportedly received treatment for injuries allegedly sustained in motor vehicle accidents. Defendants submitted bills for the services they purportedly rendered, along with the assignment of benefit forms, to the insurance carrier plaintiffs (Nationwide plaintiffs) seeking reimbursement pursuant to the No-Fault Law and regulations (see Insurance Law art 51; 11 NYCRR part 65). The Nationwide plaintiffs commenced these declaratory judgment actions after defendants failed to appear at requested examinations under oath (EUOs), alleging that each defendant had breached a material condition precedent necessary to coverage. The Nationwide plaintiffs then moved in both actions for summary judgment declaring that, as a result of such breach, they were under no obligation to pay or reimburse any of the subject claims. Supreme Court denied the motions without prejudice to renew upon completion of discovery. After the Nationwide plaintiffs moved for leave to renew those motions and defendants filed opposition thereto, we issued a decision on an appeal in a related case in which we held that a defense based on nonappearance at an EUO is subject to the preclusion remedy and that, therefore, the Nationwide plaintiffs were required to establish that they issued timely denials on that ground (Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192, 198 [4th Dept 2018] [Jamaica Wellness]). The Nationwide plaintiffs were thus limited to raising that decision in their reply papers, and the court denied the motions. Thereafter, the Nationwide plaintiffs moved for leave to renew the motions pursuant to CPLR 2221 (e) in light of our intervening decision in Jamaica Wellness and submitted, inter alia, a detailed affidavit of a claims specialist, the subject denial of claim forms, and affidavits of the operations manager of their third-party claims processor. The court denied the motions for leave to renew, and the Nationwide plaintiffs now appeal.

We agree with the Nationwide plaintiffs that the court abused its discretion in denying the motions for leave to renew. A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” (CPLR 2221 [e] [2]). “Although a court has discretion to ‘grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made’ . . . , it may not exercise that discretion unless the movant establishes a ‘reasonable justification for the failure to present such facts on the prior motion’ ” (Robinson v Consolidated Rail Corp., 8 AD3d 1080, 1080 [4th Dept 2004]; see CPLR 2221 [e] [3]). Here, to establish their entitlement to summary judgment by making the requisite showing with respect to their defense to payment of the subject claims based upon defendants’ nonappearance at the EUOs, the Nationwide plaintiffs submitted facts that were known to them but not offered on the prior motions for summary judgment (see CPLR 2221 [e] [2]). The Nationwide plaintiffs also established a reasonable justification for failing to present such facts on the prior motions inasmuch as this Court, in our intervening decision in Jamaica Wellness, held for the first time and in contrast to established precedent in another department that the defense based on nonappearance at an EUO is subject to the preclusion remedy and, therefore, that an insurance carrier seeking a declaration that it is not obligated to pay claims due to such nonappearance must establish, inter alia, that it issued timely and proper denials (167 AD3d at 197-198; see generally Foxworth v Jenkins, 60 AD3d 1306, 1307 [4th Dept 2009]).

We further agree with the Nationwide plaintiffs that they are entitled to summary judgment. Upon our review of the record, we conclude that the Nationwide plaintiffs met their burden as movants and that defendants failed to raise a triable issue of fact (see Nationwide Affinity Ins. Co. of Am. v Beacon Acupuncture, P.C., 175 AD3d 1836, 1837 [4th Dept 2019]). Present—halen, P.J., Peradotto, Troutman and Bannister, JJ.

[*1]

Hollander Legal Group, P.C., Melville (Allan S. Hollander of counsel), for plaintiffs-appellants.

Kopelevich & Feldsherova, P.C., Brooklyn (David Landfair of counsel), for defendant-respondent.

Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered March 29, 2019. The order denied plaintiffs’ motion for summary judgment and granted in part defendant’s cross motion to compel discovery.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, the cross motion is dismissed, and judgment is granted in favor of plaintiffs as follows:

It is adjudged and declared that plaintiffs are under no obligation to pay or reimburse any of the subject claims.

Memorandum: As we explained in a prior appeal (Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [4th Dept 2018]), defendant is a medical professional corporation that was assigned claims for no-fault benefits by individuals who purportedly received treatment for injuries allegedly sustained in motor vehicle accidents. Defendant submitted bills for the services it purportedly rendered, along with the assignment of benefit forms, to the insurance carrier plaintiffs (Nationwide plaintiffs) seeking reimbursement pursuant to the No-Fault Law and regulations (see Insurance Law art 51; 11 NYCRR part 65). The Nationwide plaintiffs commenced this declaratory judgment action after defendant failed to appear at repeatedly requested examinations under oath (EUOs), alleging that defendant had breached a material condition precedent necessary to coverage. The Nationwide plaintiffs then moved for summary judgment declaring that, as a result of such breach, they were under no obligation to pay or reimburse any of the subject claims. Supreme Court granted the motion, declared, among other things, that defendant breached a condition precedent to coverage by failing to appear at the scheduled EUOs, and determined that the Nationwide plaintiffs therefore had the right to deny all claims retroactively to the date of loss, regardless of whether they had issued timely denials.

We reversed the judgment insofar as appealed from, denied the Nationwide plaintiffs’ motion, and vacated the declarations. We held that a defense based on nonappearance at an EUO is subject to the preclusion remedy and that, therefore, the Nationwide plaintiffs were required to establish that they issued timely denials on that ground. We determined that the Nationwide plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the issue of their timely and proper denial of coverage inasmuch as the assertions in the affidavit of their claims specialist that they issued timely denial forms to defendant for nonappearance at the EUOs were conclusory and unsupported by any such denial forms (Nationwide Affinity Ins. Co. of Am., 167 AD3d at 198).

The Nationwide plaintiffs subsequently filed a second motion for summary judgment on the complaint and submitted, inter alia, a detailed affidavit of the claims specialist, the subject denial of claim forms, and affidavits of the operations manager of their third-party claims processor. Defendant cross-moved pursuant to CPLR 3124 to compel discovery. Supreme Court denied the motion on the ground that it was an improper successive motion for summary judgment and granted in part the cross motion. The Nationwide plaintiffs now appeal.

We agree with the Nationwide plaintiffs that the court erred in refusing to entertain their second summary judgment motion. “Although successive summary judgment motions generally are disfavored absent newly discovered evidence or other sufficient cause . . . , neither Supreme Court nor this Court is precluded from addressing the merits of such a motion” (Giardina v Lippes, 77 AD3d 1290, 1291 [4th Dept 2010], lv denied 16 NY3d 702 [2011]; see Putrelo Constr. Co. v Town of Marcy, 137 AD3d 1591, 1593 [4th Dept 2016]). Here, our intervening decision in the prior appeal, which clarified that the defense based on nonappearance at an EUO is subject to the preclusion remedy and that the Nationwide plaintiffs were therefore required to establish that they issued timely denials on that ground, constitutes sufficient cause to entertain the motion (see Pludeman v Northern Leasing Sys., Inc., 106 AD3d 612, 616 [1st Dept 2013]).

We further agree with the Nationwide plaintiffs that they are entitled to summary judgment. Contrary to defendant’s contentions, we conclude upon our review of the record that the Nationwide plaintiffs met their burden as movant and that defendant failed to raise a triable issue of fact (see Nationwide Affinity Ins. Co. of Am. v Beacon Acupuncture, P.C., 175 AD3d 1836, 1837 [4th Dept 2019]). In addition, defendant’s “ ’mere hope or speculation’ that further discovery will lead to evidence sufficient to defeat [the Nationwide plaintiffs’] motion is insufficient to warrant denial thereof” (Kaufmann’s Carousel, Inc. v Carousel Ctr. Co. LP, 87 AD3d 1343, 1345 [4th Dept 2011], lv dismissed 18 NY3d 975 [2012], rearg denied 19 NY3d 938 [2012]; see Austin v CDGA Natl. Bank Trust & Canandaigua Natl. Corp., 114 AD3d 1298, 1301 [4th Dept 2014]; see generally CPLR 3212 [f]). In light of our determination, defendant’s cross motion to compel discovery is dismissed as moot (see Clark C.B. v Fuller, 59 AD3d 1030, 1031 [4th Dept 2009]). We therefore reverse the order by granting the motion, dismissing the cross motion, and granting judgment in favor of the Nationwide plaintiffs declaring that they are under no obligation to pay or reimburse any of the subject claims. Present—Whalen, P.J., Peradotto, Troutman and Bannister, JJ.

[*1]

Gary Tsirelman, P.C., Brooklyn (Stefan M. Belinfanti of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville (Nathan M. Shapiro of counsel), for respondent.

Rivkin Radler, LLP, Uniondale (Barry I Levy of counsel), for amici curiae.

Order, Appellate Term, First Department, entered January 2, 2018, which reversed an order of the Civil Court, New York County (Erika M. Edwards, J.), entered on or about November 30, 2016, denying the petition to vacate a master arbitrator’s award and confirming the award, and remanded the matter to Civil Court for a framed issue hearing on whether the policy limit was exhausted before petitioner became obligated to pay respondent’s claims, unanimously affirmed, without costs.

Generally, courts will not set aside an award where “there is a rational view to support it” (Country-Wide Ins. Co. v May, 282 AD2d 298, 298 [1st Dept 2001]; see also Matter of Carty v Nationwide Ins. Co., 212 AD2d 462 [1st Dept 1995]). However, in addition to irrationality, an award may be vacated if the arbitrator exceeds his or her power (see CPLR 7511 [b] [1] [iii]). An arbitrator exceeds his/her power if the award is “beyond the policy limits” (Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 823 [1998]; see also e.g. Countrywide Ins. Co. v Sawh, 272 AD2d 245 [1st Dept 2000]).

Respondent contends that its claims were complete before the policy issued by petitioner was exhausted. This argument is unavailing. The Court of Appeals has interpreted the word “claims” in 11 NYCRR 65-3.15 to mean “verified claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]), i.e., claims as to which the healthcare provider has submitted additional information requested by the insurer (see id. at 297-298, 300-301). Petitioner requested verification in the form of an examination under oath (EUO). Since respondent never appeared for an EUO, its claims were never verified. The defense that an award exceeds an arbitrator’s power is so important that a party may introduce evidence for the first time when the other party tries to confirm the award (see Brijmohan, 92 NY2d at 822-823).

Respondent may also raise on appeal the purely legal argument that Appellate Term lacked the power to remand to Civil Court for a framed issue hearing (see generally Branham v Loews Orpheum Cinemas, Inc., 31 AD3d 319, 323 n 2 [1st Dept 2006], affd 8 NY3d 931 [2007]). On the merits, however, this argument is unavailing (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U] [App Term, 1st Dept 2016]; Allstate Ins. Co. v DeMoura, 30 Misc 3d 145[A], 2011 NY Slip Op 50430[U] [App Term, 1st Dept 2011]).

In view of the foregoing, respondent is not entitled to the attorneys’ fees it requested. Concur—Gische, J.P., Mazzarelli, Webber, Gesmer, JJ. [Prior Case History: 58 Misc 3d 144(A), 2017 NY Slip Op 51911(U).]

[*1]

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for appellant.

Jaffe & Velazquez, LLP, New York (Jean H. Kang of counsel), for respondent.

Judgment, Supreme Court, New York County (Lynn R. Kotler, J.), entered November 30, 2018, awarding respondent attorney’s fees in the sum total of $980 in connection with a no-fault arbitration award, unanimously modified, on the law, to remand the matter to Supreme Court for a determination of respondent’s reasonable attorney’s fees incurred in the CPLR article 75 proceeding brought by petitioner to vacate the arbitration award and on this appeal, and otherwise affirmed, without costs.

“The attorney’s fee for services rendered . . . in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10 [j] [4]). The term “court appeal” applies to a proceeding taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2d Dept 2017]). Accordingly, respondent TC Acupuncture, as a prevailing applicant for payment by petitioner insurer of attorney’s fees in an article 75 proceeding reviewing an arbitration award, is entitled to an additional award of attorney’s fees, as fixed by the court, for its motion to modify the order, in a 2015 article 75 proceeding denying Countrywide’s petition to vacate the arbitration award, to include a ruling confirming the arbitration and its opposition to Countrywide’s motion to reargue that order. Supreme Court erred in failing to award these additional fees.

Respondent is also entitled to the attorney’s fees incurred in this appeal to this Court of the order issued in the article 75 proceeding, to be fixed by the court, upon remand, pursuant to 11 NYCRR 65-4.10 (j) (4) (see Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [1st Dept 2018]). Concur—Richter, J.P., Gische, Mazzarelli, Gesmer, JJ.

[*1]

Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber of counsel), for appellant.

Nicoletti Gonson Spinner Ryan Gulino Pinter LLP, New York, NY (Benjamin Gonson of counsel), for respondents.

In an action, inter alia, for certain declaratory relief, the nominal defendant Hereford Insurance Company appeals from an order of the Supreme Court, Kings County (Andrew Borrok, J.), dated March 29, 2018. The order, insofar as appealed from, denied the motion of the nominal defendant Hereford Insurance Company for leave to enter a default judgment on its counterclaim for loss transfer pursuant to Insurance Law § 5105 (a) insofar as asserted against the plaintiff Repwest Insurance Company and deemed the reply of the plaintiff Repwest Insurance Company to the counterclaim to have been served.

Ordered that the order is reversed insofar as appealed from, on the law, with costs to the plaintiff Repwest Insurance Company, and the counterclaim of the nominal defendant Hereford Insurance Company is dismissed for lack of subject matter jurisdiction.

The plaintiff Repwest Insurance Company (hereinafter Repwest) commenced this action for a judgment declaring, inter alia, that it has no duty to provide insurance coverage for any claims arising out of a collision between a livery vehicle insured by the nominal defendant Hereford Insurance Company (hereinafter Hereford) and a vehicle driven by the defendant Nazim Hanif and insured by Repwest. The defendants Dinorah Carmen Anglero, Dario Ferrer de la Cruz, and Ramon Duarte Garcia were passengers in the livery vehicle and no-fault benefits were paid on their behalf by Hereford. Repwest alleged that there is no coverage for the subject incident because it was not an accident, but rather the result of an intentional act/fraudulent scheme. Thereafter, Hereford interposed an answer to the complaint and asserted a counterclaim against Repwest, among others, for loss transfer pursuant to Insurance Law § 5105 (a).

After Repwest failed to timely reply to the counterclaim, Hereford moved for leave to enter a default judgment on its counterclaim insofar as asserted against Repwest. The Supreme Court denied Hereford’s motion and deemed Repwest’s reply to the counterclaim to have been served. Hereford appeals.

Pursuant to Insurance Law § 5105 (b), “[t]he sole remedy of any insurer or compensation provider to recover on a claim arising pursuant to subsection (a) hereof, shall be the submission of the controversy to mandatory arbitration pursuant to procedures promulgated or approved by the superintendent” (see Matter of Infinity Indem. Ins. Co. v Hereford Ins. Co., 149 AD3d 1075, 1076 [2017]; see also State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d 976, 977 [1989]). Contrary to Hereford’s contention, since its counterclaim is for loss transfer pursuant to section 5105 (a), the counterclaim is subject to mandatory arbitration and the Supreme Court had no subject matter jurisdiction over the counterclaim (see Insurance Law § 5105 [b]; State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d at 977-978). Repwest’s complaint and its disclaimer of coverage for the subject incident do not dictate a different result (see State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d at 977-978; DTG Operations, Inc. v American Tr. Ins. Co., 2013 NY Slip Op 30119[U] [Sup Ct, NY County 2013]; 11 NYCRR 65-4.11 [a] [6]).

Although Repwest did not seek dismissal of the counterclaim in the Supreme Court, “a court’s lack of subject matter jurisdiction is not waivable, but may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action” (Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 [2008] [internal quotation marks omitted]; see Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 AD3d 121, 133 [2018]). Since the court lacked subject matter jurisdiction over Hereford’s counterclaim, the counterclaim should have been dismissed (see Empire Ins. Co. v Metropolitan Suburban Bus. Auth., 159 AD2d 312, 312 [1990]; see also State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d at 978).

In light of our determination, we need not reach the parties’ remaining contentions. Rivera, J.P., Dillon, Roman and Duffy, JJ., concur.

[*1]

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

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for respondents-appellants.

Order, Supreme Court, Bronx County (Donna Mills, J.), entered February 1, 2019, which granted respondents’ motion to vacate, pursuant to stipulation, an order entered on default vacating an arbitration award, deny the petition to vacate the award, and grant statutory attorneys’ fees, to the extent of dismissing the petition, unanimously modified, on the law, to remand for a determination of respondents’ attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), and otherwise affirmed, without costs.

Petitioner failed to establish that respondents’ assignor was injured in the course of his employment, and therefore that it properly denied his claim because workers’ compensation benefits were available to him (see Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848, 849 [2d Dept 2009]). Although the assignor was allegedly injured while driving a livery car, his license from the New York Taxi and Limousine Commission was issued that day. Further, petitioner submitted no evidence that the assignor was on duty or carrying a paying passenger at the time of the incident (cf. Matter of Aminov v New York Black Car Operators Injury Compensation Fund, 2 AD3d 1007, 1007-1008 [3d Dept 2003], lv denied 4 NY3d 709 [2005]).

Supreme Court had the authority to award attorneys’ fees in connection with a “court appeal from a master arbitration award and any further appeals” (11 NYCRR 65-4.10 [j] [4]). Because the court failed to address respondents’ request for attorneys’ fees, the matter is remanded for a determination of the amount of fees to which respondents are entitled (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2d Dept 2017]), including fees for the instant appeal (see Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C., 167 AD3d 404, 405 [1st Dept 2018]). Concur—Richter, J.P., Manzanet-Daniels, Webber, Gesmer, JJ.

[*1]

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

The Rybak Firm, PLLC, Brooklyn (Karina Barska of counsel), for respondents.

Order, Supreme Court, New York County (Tanya R. Kennedy, J.), entered on or about December 5, 2018, which, to the extent appealed from, denied plaintiffs’ motion for summary judgment on their claims seeking a declaration that licensed acupuncturists are entitled to payment of no-fault insurance benefits only as set forth in the workers’ compensation fee schedule for chiropractors, and an order enjoining defendants from claiming payment in litigation or arbitration under the fee schedule for physicians, unanimously affirmed, without costs.

In this action, plaintiff no-fault insurers seek to resolve, as a matter of law, the question of the fee schedule applicable to reimbursement of licensed acupuncturists who provide services to eligible individuals injured in motor vehicle accidents. Under the Insurance Law, no-fault coverage for necessary medical expenses “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents” except under “unique circumstances” (Insurance Law § 5108 [a]). Under applicable regulations, where a service is reimbursable but the superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with the charges permissible for similar procedures under schedules already adopted or established (11 NYCRR 68.5 [b]; see Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co., 54 AD3d 996, 997 [2d Dept 2008], affg 15 Misc 3d 137[A], 2007 NY Slip Op 50874[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). The superintendent has not adopted a fee schedule applicable to licensed acupuncturists, requiring consideration of “charges permissible for similar procedures under schedules already adopted or established” (11 NYCRR 68.5 [b]).^[FN*]

Plaintiffs did not proffer admissible evidence sufficient to make a prima facie showing of entitlement to judgment on the issue as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Plaintiffs rely on a 2004 informal opinion letter of the former Insurance Department, but that letter did not resolve the issue. It allows insurers to pay “the rates established for doctors and chiropractors,” instead of a higher “prevailing fee in the geographic location of the provider,” so long as there is a review “for consistency with [the] charges permissible for similar procedures” under either fee schedule (Ops Gen Counsel NY Ins Dept No. 04-10-03; see 11 NYCRR 68.5 [b]). The opinion letter “did not give any guidance as to which particular fee schedule should be applied to a licensed acupuncturist in any particular instance, although the Department was aware” that “the fee schedules for acupuncture services performed by chiropractors are lower than the fee schedules for such services performed by physicians” (Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23, 28 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; see Andryeyeva v New York Health Care, Inc., 33 NY3d 152, 174 [2019] [requiring judicial deference to an “agency’s rational interpretation of its own regulations”]). While courts have held that “an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] [emphasis added]; see also Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept 2013]), such holdings do not foreclose the use of the physician fee schedule in all cases (see e.g. Okslen Acupuncture P.C. v Travco Ins. Co., 44 Misc 3d 135[A], 2014 NY Slip Op 51209[U], *1 [App Term, 1st Dept 2014]; Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Further, plaintiffs did not “proffer sufficient evidence to establish as a matter of law that the claims were improperly billed or were in excess of the amount permitted by the fee schedule” (Easy Care Acupuncture, P.C. v A. Cent. Ins. Co., 48 Misc 3d 129[A], 2015 NY Slip Op 50973[U], *1 [App Term, 1st Dept 2015]).

In any event, defendants raised an issue of fact as to whether the physician fee schedule should apply. They rely on the former Insurance Department’s regulatory impact statement accompanying its proposed 2010 rule amendment, by which it sought to clarify “inconsistent” court rulings, that “acupuncture treatments are the primary service performed and billed by licensed acupuncturists” and “such treatments merit reimbursement at the same rate that medical doctors receive for comparable services” (NY Reg, July 21, 2010 at 12-13). They also proffered, among other things, an affidavit from a licensed acupuncturist who averred that he was consistently reimbursed by workers’ compensation insurers at the physician rates, for over 15 years, which plaintiffs did not rebut.

Further, Supreme Court did not err by finding the motion for summary judgment on the issue of overbilling to be premature prior to discovery (see American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]; see also CPLR 3212 [f]). Concur—Richter, J.P., Manzanet-Daniels, Webber, Gesmer, JJ.

Footnotes

Footnote *:We join the recommendation of the Appellate Term, Second Department, that the Superintendent of Insurance consider adopting a fee schedule including licensed acupuncturists to resolve the issue.

[*1]

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.

[*1]

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

Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for respondent.

Order, Supreme Court, Bronx County (Rubén Franco, J.), entered on or about April 9, 2019, which, as limited by the briefs, denied Global’s motion for summary judgment to declare it does not owe no fault coverage to health care provider defendant SML Acupuncture, P.C. (SML) because defendant-assignor Akeem Evans failed to attend two properly scheduled examinations under oath (EUOs), unanimously affirmed, without costs.

Based on the claims adjuster’s conflicting affidavits and an application for no-fault benefits that was dated September 15, 2015, and stamped as received by facsimile on October 11, 2011, Global failed to provide evidence sufficient to prove that the EUO letters were timely mailed (see Unitrin Advantage Ins. Co. v All of NY, Inc., 158 AD3d 449, 449 [1st Dept 2018]; National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]).

Summary judgment was also correctly denied because issues of facts arise as to why Evans, who appeared at the EUO with counsel, left after counsel abruptly announced that he would no longer represent claimant (see American States Ins. Co. v Huff, 119 AD3d 478, 478-479 [1st Dept 2014]).

SML’s contention that Global failed to provide notice as to the reasons why the claim was delayed “by identifying in writing the missing verification and the party from whom it was requested” (11 NYCRR 65-3.6 [b]) is unpreserved, and its argument that it should be awarded attorneys’ fees is unavailing, as this is an appeal from a declaratory action, not an arbitration (Insurance Law § 5106 [c]; 11 NYCRR 65-4.10 [j] [4]). Concur—Richter, J.P., Gische, Tom, Gesmer, Moulton, JJ.