[*1]

Jaffe & Koumourdas, LLP (Thomas Torto and Jason Levine, New York, NY, of counsel), for appellant.

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

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated January 26, 2016, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated October 21, 2016. The judgment, upon an order of the same court dated October 20, 2016, granting the petition, vacating the master arbitrator’s award dated January 26, 2016, and confirming the original arbitrator’s award dated September 22, 2015, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $8,319.61.

Ordered that the judgment is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of an additional attorney’s fee to be awarded to the petitioner pursuant to Insurance Department Regulations (see 11 NYCRR 65-4.10 [j] [4]).

V.S. Care Acupuncture, P.C. (hereinafter V.S.), is the assignee of a claim for no-fault benefits for treatment it rendered to Morris Collins. The carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim on several grounds. Country-Wide contended that Collins had not appeared at scheduled independent medical examinations and that V.S. had failed to appear at scheduled examinations under oath. Country-Wide also contended that V.S. was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). V.S. submitted the claim to arbitration. The arbitrator accepted Country-Wide’s contention regarding Collins’s failure to appear at independent medical examinations, but rejected Country-Wide’s contention regarding V.S.’s failure to appear at examinations under oath. The arbitrator also rejected Country-Wide’s contention as to V.S.’s alleged fraudulent incorporation, finding that Country-Wide had not met its burden of proof. Accordingly, the arbitrator entered an award for the portion of the claim she found Country-Wide had improperly denied.

On Country-Wide’s appeal to a master arbitrator, the master arbitrator found, as relevant to this appeal, that the original arbitrator’s determination to reject the fraudulent incorporation defense was irrational, arbitrary, capricious, and incorrect as a matter of law. The master arbitrator vacated the original arbitrator’s award and remitted the matter to a new arbitrator on the issue of fraudulent incorporation. V.S. commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court granted the petition, vacated the master arbitrator’s award, confirmed the original arbitrator’s award, and entered a judgment accordingly. Country-Wide appeals.

A master arbitrator may not review the facts by weighing the evidence, assessing the credibility of witnesses, or making independent findings of fact (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981]). A master arbitrator’s review powers, however, do include reviewing the facts to determine “whether or not the evidence is sufficient, as a matter of law, to support the determination of the arbitrator” (id. at 212). Here, there is no rational basis for the determination of the master arbitrator that the original arbitrator committed an error of law in rejecting Country-Wide’s fraudulent incorporation defense (cf. Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407 [2018]; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886-887 [2017]). Accordingly, we agree with the Supreme Court that the master arbitrator’s award should be vacated and the original arbitrator’s award confirmed.

Moreover, as V.S. contends and Country-Wide concedes, V.S. is entitled to an attorney’s fee for this appeal pursuant to 11 NYCRR 65-4.10 (j), to be fixed by the Supreme Court (see Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C., 167 AD3d 404, 405 [2018]; Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d at 408; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 706 [2017]). The matter is therefore remitted to the Supreme Court, Kings County, for that purpose. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.

[*1]

Jaffe & Koumourdas, LLP (Thomas Torto, New York, NY, of counsel), for appellant.

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

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated October 10, 2014, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Larry D. Martin, J.), dated February 6, 2017. The judgment, upon an order of the same court dated September 23, 2015, granting the petition, vacating the master arbitrator’s award dated October 10, 2014, and directing entry of a judgment in favor of the petitioner in the principal sum of $3,650 plus statutory interest, attorneys’ fees, and costs and disbursements, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $10,469.82.

Ordered that the judgment is reversed, on the law, with costs, the petition is denied, the master arbitrator’s award dated October 10, 2014, is confirmed, and the order dated September 23, 2015, is modified accordingly.

V.S. Care Acupuncture, P.C. (hereinafter V.S.), is the assignee of a claim for no-fault benefits for treatment it rendered to Eric Pascal. After the carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, V.S. submitted the claim to arbitration. The arbitrator denied V.S.’s claim, finding that the evidence established that V.S. was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). On appeal, a master arbitrator affirmed the original arbitrator’s award, finding that it was not arbitrary and capricious. V.S. then commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court granted the petition, vacated the master arbitrator’s award, and entered a judgment in favor of V.S. in the amount of the claim for no-fault benefits plus statutory interest, attorneys’ fees, and costs and disbursements. Country-Wide appeals.

Contrary to the Supreme Court’s determination, V.S. failed to demonstrate any grounds for vacating the master arbitrator’s award. A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75, which include, in this compulsory arbitration, the question of whether the determination had evidentiary support, was rational, or had a plausible basis (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981]). Here, as explained in this Court’s decision and order in Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co. (176 AD3d 800 [2019] [decided herewith]), since the determination of the master arbitrator affirming the original arbitrator’s award had evidentiary support and was not irrational, it is not subject to vacatur by the courts (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223-224 [1996]; Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth., 167 AD3d 869 [2018]), even if the master arbitrator committed an error of law (see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 535 [2010]; Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223-224; cf. Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886-887 [2017]). Accordingly, the petition should have been denied and the master arbitrator’s award should have been confirmed. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.

[*1]

Jaffe & Koumourdas, LLP (Thomas Torto, New York, NY, of counsel), for appellant.

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

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated March 18, 2014, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated July 31, 2015. The judgment, upon an order of the same court dated April 2, 2015, granting the petition, vacating the master arbitrator’s award dated March 18, 2014, and confirming the original arbitrator’s award dated December 13, 2013, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $1,318.91.

Ordered that the judgment is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of an additional attorney’s fee to be awarded to the petitioner pursuant to Insurance Department Regulations (see 11 NYCRR 65-4.10 [j] [4]).

Bay Needle Care Acupuncture (hereinafter Bay Needle) is the assignee of a claim for no-fault benefits for treatment it rendered to Kareem Edgar. The carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, and Bay Needle submitted the claim to arbitration. As relevant to this appeal, the arbitrator rejected Country-Wide’s contention that Bay Needle was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 150 AD3d 192 [2017], affd 33 NY3d 389 [2019]). The arbitrator stated that he found “no reasonable or credible evidence” establishing the defense, and he found in favor of Bay Needle. On Country-Wide’s appeal, a master arbitrator vacated the original arbitrator’s award and remitted the matter for a new hearing before a new arbitrator. The master arbitrator stated that the evidence of fraudulent incorporation presented by Country-Wide “was substantial.” Bay Needle commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court granted the petition, vacated the master arbitrator’s award, confirmed the original arbitrator’s award in favor of Bay Needle, and entered a judgment accordingly. Country-Wide appeals.

We agree with the Supreme Court that the master arbitrator exceeded his power in vacating the original arbitrator’s award after, in effect, weighing the evidence and coming to a different conclusion than the original arbitrator as to what that evidence proved (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981]). As such, we agree with the court’s determination to vacate the master arbitrator’s award and to confirm the original arbitrator’s award in favor of Bay Needle (see Matter of Jordan v Liberty Mut. Fire Ins. Co., 309 AD2d 803, 804 [2003]; cf. Matter of Jasser v Allstate Ins. Co., 77 AD3d 751, 752 [2010]).

Moreover, as Bay Needle contends and Country-Wide concedes, Bay Needle is entitled to an attorney’s fee for this appeal pursuant to 11 NYCRR 65-4.10 (j), to be fixed by the Supreme Court (see Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C., 167 AD3d 404, 405 [2018]; Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [2018]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 706 [2017]). The matter is therefore remitted to the Supreme Court, Kings County, for that purpose. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.

[*1]

Jaffe & Koumourdas, LLP (Thomas Torto, New York, NY, of counsel), for appellant.

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

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated October 10, 2014, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Bernard J. Graham, J.), dated July 31, 2015. The judgment, upon an undated order of the same court granting the petition, vacating the master arbitrator’s award dated October 10, 2014, and remitting the matter to arbitration, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $625.

Ordered that the judgment is reversed, on the law, with costs, the petition is denied, the master arbitrator’s award dated October 10, 2014, is confirmed, and the undated order is modified accordingly.

Acuhealth Acupuncture, P.C. (hereinafter Acuhealth), is the assignee of a claim for no-fault benefits for treatment it rendered to Hector Rojos. After the carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, Acuhealth submitted the claim to arbitration. The arbitrator denied Acuhealth’s claim, finding, inter alia, that the evidence established that Acuhealth was fraudulently incorporated and thus not entitled to reimbursement under the No-Fault Law (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320-321 [2005]).

On appeal, a master arbitrator affirmed the original arbitrator’s award in favor of Country-Wide. Acuhealth then commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court determined that a prior Supreme Court determination involving the same parties was entitled to preclusive effect. Accordingly, the court granted Acuhealth’s petition, vacated the master arbitrator’s award, remitted the matter to arbitration, and awarded Acuhealth costs and disbursements in the sum of $625. Country-Wide appeals.

We disagree with the Supreme Court’s determination that Acuhealth was entitled to vacatur of the master arbitrator’s award on the ground of collateral estoppel. The prior decision on which the court relied merely stated that Acuhealth’s petition to vacate a master arbitrator’s award was granted, without indicating on what basis the petition was granted or what issues were being decided and in what manner. Under those circumstances, Acuhealth failed to establish that the issue on which it sought collateral estoppel effect in this proceeding was identical to an issue which was raised and necessarily decided in the prior proceeding (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; Von Maack v Wyckoff Hgts. Med. Ctr., 140 AD3d 1055, 1056 [2016]).

Acuhealth failed to demonstrate any additional ground for vacating the master arbitrator’s award. “[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]). A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75, which include, in this compulsory arbitration, the question of whether the determination had evidentiary support, was rational, or had a plausible basis (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981]). Notably, the master arbitrator’s review power is broader than that of the courts’ because it includes the power to review for errors of law (see id. at 211-212; 11 NYCRR 65-4.10 [a] [4]). In contrast, the courts “generally will not vacate an arbitrator’s award where the error claimed is the incorrect application of a rule of substantive law, unless it is so irrational as to require vacatur” (Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982] [citations and internal quotation marks omitted]; see Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 576 [2002]).

Here, since Country-Wide submitted evidence tending to support its fraudulent incorporation defense, it cannot be said that the determination of the master arbitrator affirming the original arbitrator’s award lacked evidentiary support. Nor can it be said that the determination to affirm the original arbitrator, who supported her determination with reasons based on the evidence, lacked a rational basis. Thus, even if it was an error of law to conclude that Country-Wide proved its defense as a matter of law (see Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886-887 [2017]), the master arbitrator’s determination is not subject to vacatur by the courts on the mere basis of that error of law (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223-224 [1996]; Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth., 167 AD3d 869 [2018]). Notably, this Court’s decision in Nationwide Affinity, which is contrary to the conclusion of the master arbitrator in this case, was not published until after the master arbitrator’s award was rendered. Moreover, Country-Wide submitted evidence in support of its defense which, while inadmissible, could be considered by the original arbitrator in this case, who, unlike a court deciding a summary judgment motion like that at issue in Nationwide Affinity, was not bound by the rules of evidence (see Matter of Fagan v Village of Harriman, 140 AD3d 868 [2016]).

Accordingly, the petition should have been denied and the master arbitrator’s award should have been confirmed. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.

[*1]

Jaffe & Koumourdas, LLP (Thomas Torto, New York, NY, of counsel), for appellant.

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

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated February 25, 2016, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Kathy J. King, J.), dated October 27, 2016. The judgment, upon an order of the same court dated October 26, 2016, granting the petition, vacating the master arbitrator’s award dated February 25, 2016, and confirming the original arbitrator’s award dated December 4, 2015, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $13,864.96.

Ordered that the judgment is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of an additional attorney’s fee to be awarded to the petitioner pursuant to Insurance Department Regulations (see 11 NYCRR 65-4.10 [j] [4]).

Acuhealth Acupuncture, P.C. (hereinafter Acuhealth), is the assignee of a claim for no-fault benefits for treatment it rendered to Massiel Olsen. After the carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, Acuhealth submitted the claim to arbitration. The arbitrator, upon refusing to consider Country-Wide’s defenses on the ground that Country-Wide’s submissions to the arbitrator were late, with no excuse for their lateness, found in favor of Acuhealth. On Country-Wide’s appeal, the master arbitrator vacated the award and issued a new award in favor of Country-Wide based on the defense that Acuhealth was fraudulently incorporated, which the original arbitrator had refused to consider on the ground that it was untimely submitted. Acuhealth then commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court granted Acuhealth’s petition, vacated the master arbitrator’s award in favor of Country-Wide, and confirmed the original arbitrator’s award in favor of Acuhealth. Country-Wide appeals.

An arbitrator acts within his or her discretionary authority by refusing to entertain late submissions (see Matter of Global Liberty Ins. Co. v Coastal Anesthesia Servs., LLC, 145 AD3d 644, 645 [2016]; Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017 [2009]; Matter of Green v Liberty Mut. Ins. Co., 22 AD3d 755, 756 [2005]). Here, in rejecting the original arbitrator’s proper exercise of his discretionary authority, and in passing, de novo, upon factual questions concerning the validity of Country-Wide’s defense that Acuhealth was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320-321 [2005]), the master arbitrator exceeded his power (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 230-231 [1982]; Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [1994]). Accordingly, we agree with the Supreme Court’s determination to vacate the master arbitrator’s award and confirm the original arbitrator’s award in favor of Acuhealth.

Moreover, as Acuhealth contends and Country-Wide concedes, Acuhealth is entitled to an attorney’s fee for this appeal pursuant to 11 NYCRR 65-4.10 (j), to be fixed by the Supreme Court (see Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C., 167 AD3d 404, 405 [2018]; Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [2018]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 706 [2017]). The matter is therefore remitted to the Supreme Court, Kings County, for that purpose.

Acuhealth’s remaining contention is without merit. Balkin, J.P., Roman, Brathwaite Nelson and Christopher, JJ., concur.

[*1]

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

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

In a proceeding pursuant to CPLR article 75, the petitioner appeals from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated March 1, 2018. The order denied the petition to vacate the award of a master arbitrator dated September 6, 2017.

Ordered that the order is affirmed, with costs.

The petitioner commenced a no-fault arbitration proceeding seeking to recover from the respondent insurer for acupuncture treatments provided to the petitioner’s assignor. After a no-fault arbitration hearing, an arbitrator determined that the respondent failed to establish its defenses, and awarded the petitioner the sum of $649.74, plus interest and an attorney’s fee award, in effect, pursuant to 11 NYCRR 65-4.6 (b). The petitioner appealed the arbitrator’s award to a master arbitrator, contending that the attorney’s fee award was incorrect as a matter of law. On September 6, 2017, the master arbitrator issued an award affirming the arbitrator’s award.

By notice of petition dated October 30, 2017, the petitioner sought to vacate the master arbitrator’s award pursuant to CPLR 7511. By order dated March 1, 2018, the Supreme Court denied the petition. The petitioner appeals.

The petitioner contends that the master arbitrator’s award must be vacated because an attorney’s fee should have been awarded pursuant to 11 NYCRR 65-4.6 (c), rather than 11 NYCRR 65-4.6 (b). The “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, [and] 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] [citations omitted]). This power “does not include the power to review, de novo, the matter originally presented to the arbitrator” (Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [1994]).

Since arbitration under the no-fault law is compulsory, the scope of review of the master arbitrator’s award is whether it “was arbitrary and capricious, irrational or without a plausible basis” (Matter of Farrell [Allstate Ins. Co.], 232 AD2d 934, 935 [1996] [internal quotation marks omitted]; accord Matter of Steinauer [New York Cent. Mut. Fire Ins. Co.], 272 AD2d 771, 772 [2000]; see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 211; Matter of Mercury Cas. Co. [Patient Care Assoc.], 134 AD3d 1204, 1205 [2015]).

Here, the master arbitrator determined that the petitioner was not entitled to an attorney’s fee award pursuant to 11 NYCRR 65-4.6 (c) because, among other things, it failed to support its attorney’s fee request with “documentation such as time sheets.” Inasmuch as an attorney fee award under subdivision (c) of 11 NYCRR 65-4.6 is set at an hourly rate, and the petitioner’s attorney submitted no time sheets or other documentation to establish how many hours he spent on the matter, the master arbitrator’s affirmance of the attorney’s fee award based upon 11 NYCRR 65-4.6 (b) was not irrational, or arbitrary and capricious. On questions of substantive law, the determination of the master arbitrator must be upheld if, as here, there is a rational basis for the determination (see Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d 757, 759 [1980]; Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577 [2002]).

Accordingly, we agree with the Supreme Court’s determination denying the petition.

The petitioner did not demonstrate its entitlement to an award of an attorney’s fee for this appeal, as the master arbitrator did not make a finding that the subject claims were “overdue” (Insurance Law § 5106 [a]; see Matter of Fast Care Med. Diagnostics, PLLC/PV v Government Empls. Ins. Co., 161 AD3d 1149, 1151 [2018]). Mastro, J.P., Rivera, Miller and Christopher, JJ., concur.

[*1]

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

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 31, 2018, 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 because it irrationally ignored the controlling law 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 (see Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]; Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]; American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). Concur—Sweeny, J.P., Renwick, Manzanet-Daniels, Tom, Oing, JJ.

[*1]

Brown Chiari LLP, Buffalo (Timothy M. Hudson of counsel), for plaintiff-appellant.

Rupp Baase Pfalzgraf Cunningham LLC, Buffalo (Matthew A. Lenhard of counsel), for defendant-respondent.

Appeal from a judgment of the Supreme Court, Niagara County (Frank Caruso, J.), entered October 22, 2018. The judgment dismissed the complaint and awarded defendant costs and disbursements.

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

Memorandum: Plaintiff commenced this action seeking supplementary uninsured/underinsured motorist (SUM) benefits from defendant, her motor vehicle liability insurer, based on injuries that plaintiff allegedly sustained in a motor vehicle accident. The jury returned a verdict finding that the accident was not “a substantial factor in causing an injury to [plaintiff].” Thereafter, Supreme Court denied plaintiff’s motion to set aside the verdict as against the weight of the evidence. Plaintiff appeals from a judgment entered after the jury’s verdict, and we affirm.

We reject plaintiff’s initial contention that the court erred in precluding her from calling as witnesses at trial any claims representatives employed by defendant or from entering into evidence any proof of insurance. It was undisputed at trial that plaintiff carried SUM coverage pursuant to a policy issued by defendant and that the SUM coverage was applicable to plaintiff’s motor vehicle accident, and thus there was no need for plaintiff to offer further evidence establishing the existence of the policy. Similarly, there is no indication in plaintiff’s pleadings or elsewhere in the record that she was alleging that defendant denied her claim for SUM benefits in bad faith (see e.g. Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 191-192 [2008]), and thus evidence that defendant conducted an internal investigation regarding plaintiff’s claim was not relevant to the issues at trial. Indeed, it is understandable that defendant engaged in such an investigation inasmuch as, “[w]hen an insured injures someone in a motor vehicle accident, the injured party is subject to the serious injury requirement in the No-Fault Law and cannot sue for noneconomic loss unless the serious injury threshold is met (see Insurance Law § 5104 [a]). Since the purpose of supplementary coverage is to extend to the insured the same level of coverage provided to an injured third party under the policy, the insured must also meet the serious injury requirement before entitlement to supplementary benefits. If this were not the case, the insured would receive coverage more comprehensive than that available to a third party injured by the insured” (Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 205 [2007]). Here, we agree with defendant that its representatives were not witnesses to the accident, have no personal knowledge of the facts of the accident, and are not medical doctors qualified to testify regarding plaintiff’s alleged injuries. Thus, defendant’s internal investigation and evaluation of plaintiff’s claim is therefore irrelevant to the issue whether plaintiff sustained a serious injury, which, along with the issue whether any such injury was causally related to the accident, were the primary issues before the jury (see generally 40 Rector Holdings, LLC v Travelers Indem. Co., 40 AD3d 482, 483 [1st Dept 2007]). We also agree with defendant that plaintiff did not need a representative from defendant to explain the relationship between the parties. Plaintiff’s counsel could have requested a special instruction from the court or elicited detailed testimony from the plaintiff on that topic. Moreover, plaintiff’s counsel did explain to the jury in his opening and closing statements the relationship between the parties.

Contrary to plaintiff’s contention, the court properly rejected her request to charge the jury pursuant to PJI 2:282 regarding the aggravation of a preexisting injury inasmuch as “ ’there was no factual basis for such a charge’ ” (Dennis v Massey, 134 AD3d 1532, 1533-1534 [4th Dept 2015]; cf. Mazurek v Home Depot U.S.A., 303 AD2d 960, 961 [4th Dept 2003]). We thus reject plaintiff’s contention that a “rational jury could have found that [plaintiff] had asymptomatic pre-existing arthritis that was activated and precipitated by the injury” and that a charge pursuant to PJI 2:282 was therefore warranted. We note, however, that plaintiff’s contention supports a charge under PJI 2:283 regarding increased susceptibility to injury, and that charge was given in this case (see Martin v Volvo Cars of N. Am., 241 AD2d 941, 943 [4th Dept 1997]).

We also reject plaintiff’s contention that the court erred in failing to set aside the verdict as against the weight of the evidence. It is well established that “[a] verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence” (Sauter v Calabretta, 103 AD3d 1220, 1220 [4th Dept 2013] [internal quotation marks omitted]). “That determination is addressed to the sound discretion of the trial court, but if the verdict is one that reasonable persons could have rendered after receiving conflicting evidence, the court should not substitute its judgment for that of the jury” (Ruddock v Happell, 307 AD2d 719, 720 [4th Dept 2003]; see Todd v PLSIII, LLC-We Care, 87 AD3d 1376, 1377 [4th Dept 2011]). “Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” (Schreiber v University of Rochester Med. Ctr., 88 AD3d 1262, 1263 [4th Dept 2011] [internal quotation marks omitted]). Here, there was sharply conflicting expert testimony with respect to whether plaintiff sustained an injury as a result of the accident, and the jury was entitled to credit the testimony of defendant’s expert and reject the testimony of plaintiff’s experts (see McMillian v Burden, 136 AD3d 1342, 1344 [4th Dept 2016]).

While we conclude under the circumstances of this case that the verdict is not against the weight of the evidence, we nonetheless note that the first question on the verdict sheet—i.e., “[w]as the accident . . . a substantial factor in causing an injury to [plaintiff]?”—invites the very problem we addressed in Brown v Ng (163 AD3d 1464, 1465 [4th Dept 2018]), where we noted that an interrogatory asking whether the plaintiff sustained an “injury” fails to address the appropriate legal issue, which is whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). The first question on the verdict sheet was unnecessary here inasmuch as the second and third questions asked the jury to determine whether plaintiff sustained a serious injury under the relevant categories that was causally related to the accident.

Finally, we reject plaintiff’s contention that the court erred in denying her motion for a directed verdict on the issue of liability. Contrary to plaintiff’s contention, defendant was not required to issue a disclaimer regarding the serious injury threshold (see generally Insurance Law § 3420 [f] [1], [2]; Raffellini, 9 NY3d at 205; Meegan v Progressive Ins. Co., 43 AD3d 182, 184-185 [4th Dept 2007]). Present—Peradotto, J.P., DeJoseph, NeMoyer and Curran, JJ.

[*1]

Hurwitz & Fine, P.C., Buffalo (Jerry Marti of counsel), for defendant-appellant.

The Morris Law Firm, P.C., Buffalo (Daniel K. Morris of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Erie County (Catherine R. Nugent Panepinto, J.), entered November 1, 2017. The order denied defendant’s motion to dismiss the amended complaint.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the amended complaint is dismissed.

Memorandum: Plaintiff, as the assignee of claims for no-fault benefits of individuals who had received health care services from plaintiff for injuries sustained in motor vehicle accidents, commenced this action against defendant, the issuer of the assignors’ no-fault policies. In its amended complaint, plaintiff alleged, inter alia, that defendant violated the no-fault regulations by requesting verifications and examinations under oath and delaying the payment of claims for treatment rendered by plaintiff to the assignors. Although the no-fault claims were adjudicated and paid by defendant after arbitration, plaintiff sought further damages from defendant for the manner in which those claims were processed. Prior to serving its answer, defendant moved to dismiss the amended complaint on, inter alia, the ground that it failed to state a cause of action upon which relief could be granted (see CPLR 3211 [a] [7]). Supreme Court denied the motion, and we reverse.

On a CPLR 3211 (a) (7) motion to dismiss, “[w]e accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Hall v McDonald’s Corp., 159 AD3d 1591, 1592 [4th Dept 2018]). “The allegations in a complaint, however, ‘cannot be vague and conclusory . . . , and [b]are legal conclusions will not suffice’ ” (Choromanskis v Chestnut Homeowners Assn., Inc., 147 AD3d 1477, 1478 [4th Dept 2017]; see Simkin v Blank, 19 NY3d 46, 52 [2012]).

We agree with defendant that the court erred in denying the motion with respect to the breach of contract cause of action. The amended complaint alleged that defendant and plaintiff “were parties to the applicable insurance contracts by way of the [a]ssignments of [b]enefits” and that “[t]he underlying verification requests, examinations under oath, and subsequent non-payment of bills by . . . [d]efendant represent a breach of contract.” The amended complaint, however, failed to identify the specific insurance contracts that plaintiff had performed services under or the contract provisions that defendant allegedly breached. Inasmuch as bare legal conclusions without factual support are insufficient to withstand a motion to dismiss, we conclude that the amended complaint fails to state a cause of action for breach of contract. Additionally, we note that plaintiff conceded in its respondent’s brief that “[d]efendant[ ] did not fail to perform their obligations under the contract[s]” and that “the contracts have specific remedies available to plaintiff . . . , and all such remedies have already been applied” (see generally Non-Instruction Adm’rs & Supervisors Retirees Assn. v School Dist. of City of Niagara Falls, 118 AD3d 1280, 1283 [4th Dept 2014]).

With respect to the cause of action for negligent hiring, supervision, or retention, the amended complaint alleged that defendant’s employees delayed the payment of plaintiff’s claims and sent plaintiff requests for verification and examinations under oath, that defendant was aware of its employees’ propensity to commit those acts, and that defendant nevertheless continued to employ them. Although “[a]n employer may be liable for a claim of negligent hiring or supervision if an employee commits an independent act of negligence outside the scope of employment and the employer was aware of, or reasonably should have foreseen, the employee’s propensity to commit such an act” (Lamb v Stephen M. Baker, O.D., P.C., 152 AD3d 1230, 1231 [4th Dept 2017] [internal quotation marks omitted]), the amended complaint failed to allege that the acts of defendant’s employees were committed independent of defendant’s instruction or outside the scope of employment (see id.). The amended complaint also failed to allege how the employees’ purported acts of sending requests for verification and examinations under oath constituted acts of negligence. We therefore conclude that the court erred in denying defendant’s motion with respect to the cause of action for negligent hiring, supervision, or retention.

We also agree with defendant that the amended complaint failed to allege facts sufficient to state a cause of action for prima facie tort (see generally Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]). “There can be no recovery [for prima facie tort] unless a disinterested malevolence to injure [a] plaintiff constitutes the sole motivation for [the] defendant[‘s] otherwise lawful act” (Backus v Planned Parenthood of Finger Lakes, 161 AD2d 1116, 1117 [4th Dept 1990] [internal quotation marks omitted]). Here, the amended complaint alleged that defendant acted in “bad faith” and intentionally caused harm to plaintiff by requesting verifications and examinations under oath. Those conclusory allegations, however, failed to state that defendant had “ ’a malicious [motive] unmixed with any other and exclusively directed to [the] injury and damage of [plaintiff]’ ” (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983]). Furthermore, it is “[a] critical element of [a prima facie tort] cause of action . . . that plaintiff suffered specific and measurable loss” (Freihofer, 65 NY2d at 143; see Lincoln First Bank of Rochester v Siegel, 60 AD2d 270, 279-280 [4th Dept 1977]). Here, the injuries alleged in the amended complaint, i.e., delayed payment of claims resulting in a “reduced cash flow,” are “couched in broad and conclusory terms” (Lincoln First Bank of Rochester, 60 AD2d at 280), and do not constitute “specific and measurable loss” (Freihofer, 65 NY2d at 143; cf. S. E. Nichols, Inc. v Grossman [appeal No. 1], 50 AD2d 1086, 1086 [4th Dept 1975]). Thus, the court erred in denying the motion with respect to the prima facie tort cause of action.

Finally, as conceded by plaintiff’s counsel at oral argument of this appeal before this Court, defendant is entitled to dismissal of the remaining causes of action asserted in the amended complaint. Present—Peradotto, J.P., Lindley, DeJoseph, Troutman and Winslow, JJ.

[*1]

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

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

In an action to recover no-fault benefits, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts dated October 27, 2017. The order reversed so much of an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 18, 2014, as (1) granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover no-fault benefits for services billed under CPT code 97039 (moxibustion), and (2) denied that branch of the plaintiff’s cross motion which was for summary judgment on that cause of action, and the order dated October 27, 2017, thereupon denied that branch of the defendant’s motion and granted that branch of the plaintiff’ cross motion.

Ordered that the order dated October 27, 2017, is affirmed, with costs.

The plaintiff commenced this action in the Civil Court of the City of New York, Kings County, to recover the sum of $727.36, the cost of the unpaid services rendered to its assignor, Dulce Baez. The defendant answered the complaint and asserted as a fourth affirmative defense that “[a]n unlisted modality has been billed” for which “[d]ocumentation of the type of modality, a description of services, and if there has been constant attendance, the amount of time is required for payment.”

The defendant subsequently moved, and the plaintiff cross-moved, for summary judgment. The Civil Court granted the defendant’s motion and denied the plaintiff’s cross motion, concluding that the defendant had “paid the claims as per the proper fee schedule.” The plaintiff appealed the order of the Civil Court to the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts.

The Appellate Term reversed the order insofar as appealed from, denied that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover for services billed under CPT code 97039 (moxibustion), and granted that branch of the plaintiff’s cross motion which was for summary judgment on that cause of action. By further order of the Appellate Term, the defendant was granted leave to appeal to this Court.

The no-fault law “is aimed at ensuring ‘prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists’ ” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 504-505 [2015], quoting Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]). “The legislative design of the no-fault insurance scheme demonstrates an interest in prompt resolution of reimbursement claims, a desire to avoid litigation, and statutory consequences on an insurer to incentivize it to seek verification of a claim, deny it, or pay” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506-507).

“Within 30 calendar days after receipt of the proof of claim for no-fault benefits, an insurer can either pay the claim, in whole or in part, deny it, or seek verification of it” (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 162 [2013]; see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1168 [2010]). “Subsequent to the receipt of one or more of the completed verification forms [used to establish proof of claim], any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms” (11 NYCRR 65-3.5 [b]). “If an insurer seeks additional verification, . . . the 30-day window is tolled until it receives the relevant information requested” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007] [citation omitted]). In Hospital for Joint Diseases v Travelers Prop. Cas. Inc. Co., the Court of Appeals wrote “[w]e concur” with “Appellate Division case law [that] consistently holds that a carrier’s failure to seek verification or object to the adequacy of claim forms pursuant to 11 NYCRR 65-3.5 precludes it from interposing any defenses based on such deficiencies” (id. at 318).

Here, moxibustion therapy was billed under CPT code 97039, which is described as an “unlisted modality.” “The workers’ compensation fee schedules do not assign a relative value to . . . [this] code[ ], but instead have assigned [it] a ‘By Report’ designation, which requires a provider to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement” (Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135[A], 2017 NY Slip Op 50101[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

The defendant maintains that it properly denied payment of the charges listed under CPT code 97039 “because the provider failed to provide pertinent information concerning the nature, extent, and need for the service, or the time, the skill and the equipment necessary.” In other words, the denial of the plaintiff’s claim was based on the lack of sufficient information.

We agree with the Appellate Term’s determination that the denial of the plaintiff’s claim for services billed under CPT code 97039 was without merit as a matter of law. Although an unlisted modality must be justified by report, this requirement has no bearing on the insurer’s burden of requesting additional verification in the first instance (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 319), which the defendant insurer did not do. Since there is no dispute that the defendant received the requisite claim form and that the denial of the claim was without merit as a matter of law, summary judgment on the cause of action to recover for services billed under CPT code 97039 (moxibustion) was properly awarded to the plaintiff. Mastro, J.P., Balkin, Barros and Christopher, JJ., concur.