Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 14, 2014. The order granted defendant’s motion to vacate a default judgment and a marshal’s notice.

ORDERED that the order is reversed, without costs, and defendant’s motion to vacate the default judgment and the marshal’s notice is denied.

In June 2009, plaintiff commenced this action to recover assigned first-party no-fault benefits. Defendant failed to appear or answer, and a $6,288.40 default judgment was entered against defendant on December 8, 2009. On May 9, 2013, a marshal’s “notice of levy and sale” was issued which stated that $12,102.79 would be levied against defendant’s bank account. In September 2013, after its account had been levied, defendant moved to vacate the default judgment and the marshal’s notice. By order entered July 14, 2014, the Civil Court granted defendant’s motion.

On appeal, plaintiff contends, among other things, that defendant’s motion to vacate was untimely, and that defendant failed to show both a reasonable excuse for its default and a meritorious defense to the action.

It is well settled that, within one year after service of a default judgment with notice of entry, a defendant seeking to vacate the judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). Defendant asserts that, when the summons and complaint were served in June 2009, its employee erroneously returned the documents to plaintiff, instead of forwarding them to defendant’s attorney. Defendant argues that it timely moved to vacate the default judgment in September 2013, after it had received the marshal’s notice in May 2013. In opposition, plaintiff, among other things, submitted the affidavit of service of its mailing of the December 8, 2009 default judgment, with notice of entry, which stated that these documents were mailed to defendant on December 22, 2009. The affidavit of service created a presumption that defendant had received the default judgment with notice of entry (see Engel v Lichterman, 62 NY2d 943, 944-945 [1984]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

While defendant’s September 2013 motion to vacate was not made within one year after [*2]the December 2009 service upon defendant of a copy of the default judgment with notice of entry (see CPLR 5015 [a] [1]; Yung Chong Ho v Uppal, 130 AD3d 811, 812 [2015]; U.S. Bank N.A. v Bien-Aime, 123 AD3d 696, 697 [2014]), even after the expiration of the one-year period set forth in CPLR 5015, “a court may vacate its own judgment for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see also Yung Chong Ho v Uppal, 130 AD3d at 812). Nevertheless, in the case at bar, the vacatur of the default judgment upon the exercise of the Civil Court’s inherent power was not warranted, inasmuch as defendant failed to address, in its reply papers, the affidavit of service that plaintiff had submitted in opposition to defendant’s motion which created a presumption that defendant had received the default judgment with notice of entry in 2009. Even if defendant’s employee had erroneously returned the summons and complaint to plaintiff in June 2009, defendant has not proffered any excuse for its failure to move within a reasonable period of time after its receipt of the default judgment with notice of entry (see Matter of Liberty Mut. Ins. Co. v Fiduciary Ins. Co. of Am., 111 AD3d 731, 732 [2013]; Johnson v Nello Homes, 159 AD2d 562 [1990]).

Accordingly, the order is reversed and defendant’s motion is denied.

Solomon, J.P., Weston and Elliot, JJ., concur.

Decided on November 25, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

[*1]

Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts, November 25, 2016

APPEARANCES OF COUNSEL

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

The Law Office of Thomas Tona, P.C., St. James (Alison Berdnik of counsel), for respondent.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, the petition to vacate the master arbitrator’s award is denied and so much of the cross petition as sought to confirm the master arbitrator’s award is granted.

After the provider’s claim for assigned first-party no-fault benefits had been denied by the insurer due to the assignor’s failure to appear at duly scheduled independent medical examinations (IMEs), the provider submitted the claim to arbitration, pursuant to Insurance Law § 5106 (b). The IME scheduling letters that had been sent to the assignor stated that he would be reimbursed for any proven loss of earnings and reasonable transportation expenses incurred in complying with the IME request.^[FN*] The arbitrator determined that the IME scheduling letters were defective because they called for “proven” loss of earnings and did not track the language of the regulation, and found that, as a result, proper notice was not effectuated. The arbitrator awarded the provider the principal sum of $520.20. The insurer appealed the adverse decision to a master arbitrator, who vacated the arbitrator’s award in favor of the provider, upon a determination that the award “was not supported by sufficient evidence and was irrational, arbitrary and capricious and incorrect as a matter of law,” thereby, in effect, finding for the insurer.

{**54 Misc 3d at 33}The provider then commenced this proceeding to vacate the master arbitrator’s award, contending that the master arbitrator had exceeded his power, within the meaning of CPLR 7511 (b) (1) (iii), because he had performed an independent review of the evidence, assessed its [*2]credibility and made his own factual determinations. The insurer, by cross petition, sought to confirm the master arbitrator’s award. By order dated April 22, 2015, from which the insurer appeals, the District Court granted the provider’s petition and denied so much of the insurer’s cross petition as sought to confirm the master arbitrator’s award, finding that the master arbitrator had exceeded his authority by reviewing factual issues which had already been decided by the arbitrator and had impermissibly substituted his own factual determination for that of the arbitrator. We reverse.

Judicial review of a master arbitrator’s authority to vacate an award under Insurance Law § 5106 derives from CPLR 7511 (b) (1) (iii) and involves the question of whether the master arbitrator has exceeded his or her power (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 210 [1981]; see also Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231 [1982]). A master arbitrator is empowered to vacate an arbitration award based upon most grounds set forth in CPLR 7511 (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 210; see also 11 NYCRR 65-4.10 [a] [1]) or based upon the ground that the arbitration award “was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground)” (11 NYCRR 65-4.10 [a] [4]; see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d at 231; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 211). The power of a master arbitrator to review factual and procedural issues (unlike substantive law issues) is limited to “whether the arbitrator acted in a manner that was arbitrary and capricious, irrational or without a plausible basis” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 211). A master arbitrator “exceeds his statutory power by making his own factual determination, by reviewing factual and procedural errors committed during the course of the arbitration, by weighing the evidence, or by resolving issues such as the credibility of the witnesses” (Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [1994]; see also Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). If, however, the master arbitrator vacates the arbitrator’s award based upon an alleged error of a rule of{**54 Misc 3d at 34} substantive law, the determination of the master arbitrator must be upheld unless it is irrational (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d at 232; Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 576 [2002]).

Contrary to the provider’s contention, we find that the master arbitrator did not exceed the scope of his authority, as he did not weigh or independently evaluate issues of credibility or engage in any factual analysis. Rather, his legal analysis of the arbitrator’s determination was well within the scope of his authority to review and correct an error of law made by the arbitrator (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d at 231; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 211). Moreover, “applying the law to a given set of facts is well within the province of a master arbitrator, even if his conclusion differs from that of the arbitrator” (Martinez v Metropolitan Prop. & Liab. Ins. Co., 146 AD2d 610, 611 [1989]). Here, the master arbitrator determined that the use of the word “proven” in the IME scheduling letters did not render such letters ineffective, notwithstanding the fact that the word “proven” does not appear in 11 NYCRR 65-3.5 (e), and that proper notice of the scheduled IMEs was, therefore, effectuated. As the master arbitrator’s determination was not irrational (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d at 232), the District Court erred in granting the provider’s petition to vacate the master arbitrator’s award and in denying the insurer’s cross petition to confirm the master arbitrator’s award.

Accordingly, the order, insofar as appealed from, is reversed, the petition to vacate the master arbitrator’s award is denied and so much of the cross petition as sought to confirm the master arbitrator’s award is granted.

We incidentally note that a proceeding to confirm or vacate an arbitration award is a special proceeding brought pursuant to CPLR article 4, and must terminate in a judgment rather than an order (see CPLR 411).

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.

Footnotes

Footnote *:11 NYCRR 65-3.5 (e) provides: “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.”

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 29, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the automobile insurance policy in question had been issued in Florida, and that, based upon a conflict-of-law analysis, Florida law applied, pursuant to which there was a lack of coverage due to the valid rescission of the automobile insurance policy. By order entered September 29, 2014, the Civil Court denied defendant’s motion.

On appeal, defendant contends that it made a prima facie showing of its defense of rescission of the underlying insurance policy in accordance with Florida law and that its motion for summary judgment dismissing the complaint should have been granted. We agree.

It is undisputed that the vehicle in question was insured by defendant under a Florida automobile insurance policy. At the time of the accident at issue, which occurred in New York, the vehicle was being driven by the policyholder, and plaintiff’s assignor was a passenger in the vehicle. After defendant’s investigation revealed that, at the time the insured applied for automobile insurance, she did not reside at the Florida address listed on the insurance application and that the vehicle was not garaged at that Florida address, defendant rescinded the policy, ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits the retroactive cancellation of an insurance contract if there has been a material misrepresentation in an application for insurance.

In order to show that it properly voided a motor vehicle insurance policy ab initio, in accordance with Florida law, an insurer must demonstrate that it gave notice of the rescission to the insured and that it returned or tendered all premiums paid within a reasonable time after the discovery of the grounds for avoiding the policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; [*2]see also Hu-Nam-Nam, M.D. v Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Inasmuch as defendant demonstrated, through the supporting affidavit of its litigation specialist and accompanying documents, that it had complied with the foregoing requirements, defendant’s prima facie entitlement to summary judgment was established (see Hu-Nam-Nam, M.D. v Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U], *1; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d at 7). In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Florida law.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decided on November 21, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on November 17, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on November 17, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered February 5, 2014. The order denied defendant’s motion for leave to renew its motion for summary judgment dismissing the complaint, which prior motion had been denied in an order of the same court (Maureen A. Healy, J.) entered November 4, 2013.

ORDERED that the order entered February 5, 2014 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiff’s claims based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). By order entered November 4, 2013, the Civil Court (Maureen A. Healy, J.) denied defendant’s motion on the ground that defendant had failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs, citing this court’s decision in Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), which was decided while defendant’s motion was pending. In Alrof, this court held that this court’s earlier determination in W & Z Acupuncture, P.C. v Amex Asset Co. (24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2009]) should no longer be followed.

In November 2013, defendant moved for leave to renew its motion for summary judgment and submitted in support thereof an affidavit containing new facts, which affidavit, defendant contended, was sufficient under Alrof, to establish plaintiff’s nonappearance at the EUOs. By order entered February 5, 2014, the Civil Court (Jodi Orlow, J.) denied the renewal motion on the ground that defendant had failed to set forth any new facts not previously available or to show a change in the law.

While we disagree with the Civil Court’s determination that defendant’s motion failed to satisfy the requirements of CPLR 2221 (e), turning to the merits of defendant’s motion, we conclude that defendant failed to establish its entitlement to summary judgment.

With respect to the claim comprising the thirty-first cause of action, defendant failed to support the conclusory statement by its claim representative that the claim was “never mailed” to defendant. As to the remaining claims, defendant failed to establish that the denials were timely. The EUO scheduling letters were not sent within 30 days of the insurer’s receipt of each of the claims (see O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op [*2]50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and we note that delay letters, which request no verification, do not toll the 30-day statutory time period within which a claim must be paid or denied (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Consequently, we need not reach the issue of whether defendant properly established plaintiff’s nonappearance at the EUOs.

Accordingly, we affirm the February 5, 2014 order, albeit on a ground other than that stated by the Civil Court.

Elliot, J.P., Pesce and Aliotta, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 17, 2016

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.

Peter C. Merani, P.C., New York City (Eric M. Wahrburg of counsel), for respondent.

Ordered that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the insurance policy covering the vehicle allegedly involved in the March 26, 2010 motor vehicle accident had been terminated on March 16, 2010, prior to the accident. Plaintiff appeals from an order of the Civil Court which granted defendant’s cross motion for summary judgment dismissing the complaint and implicitly denied plaintiff’s motion for summary judgment.

In support of its cross motion, defendant submitted its senior field support representative’s affidavit accompanied by documents which, together, demonstrated that, on December 17, 2009, in compliance with Vehicle and Traffic Law § 313 (1), defendant had mailed a letter to the policyholder notifying it that, due to “missing information or no response to our underwriting inquiry,” the policy would terminate on March 16, 2010. However, although the affidavit referred to an annexed{**54 Misc 3d at 48} document purportedly showing a record of defendant’s March 17, 2010 notification to the Department of Motor Vehicles (DMV) of defendant’s March 16, 2010 termination of the policy, these submissions did not conclusively establish, as a matter of law, that defendant’s notice of termination had been properly filed with the DMV (see e.g. Matter of Government Empls. Ins. Co. v Barthold, 194 AD2d 724 [1993]). As defendant failed to demonstrate, as a matter of law, that it had filed a copy of the notice of termination, upon which its defense is based, with the DMV within 30 days of the effective date of the policy’s termination, as required by Vehicle and Traffic Law § 313 (2) (a) (see Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]), defendant did not show that the cancellation was effective with respect to plaintiff’s assignor, who was not the named insured or a member of the insured’s household (Vehicle and Traffic Law § 313 [3]). Consequently, defendant should not have been awarded summary judgment dismissing the complaint.

With respect to plaintiff’s motion for summary judgment, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of [*2]law, as the proof submitted in support of its motion failed to establish either that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Thus, plaintiff’s motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered August 1, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint and granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $591.10. So much of the appeal as is from the portion of the order which granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon the claim for $591.10 and denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim is deemed to be an appeal from a judgment of the same court entered November 20, 2014 awarding plaintiff the principal sum of $591.10 (see CPLR 5512 [a]).

ORDERED that the judgment is reversed, without costs, so much of the order entered August 1, 2014 as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon the claim for $591.10 is vacated and that branch of plaintiff’s motion is denied; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits on three claims, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity, based on two peer review reports. Plaintiff opposed the motion and separately moved for summary judgment. Defendant appeals, as limited by its brief, from so much an order of the Civil Court entered August 1, 2014 as denied defendant’s motion and granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $591.10. So much of the appeal as is from the portion of the order which granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon the claim for $591.10 and denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim is deemed to be an appeal from a judgment of the same court entered November 20, 2014 awarding plaintiff the principal sum of $591.10 (see CPLR 5512 [a]).

Defendant correctly argues that plaintiff failed to make a prima facie showing of its entitlement to summary judgment on so much of the complaint as sought to recover upon the claim for $591.10, as the papers submitted by plaintiff in support of its motion failed to establish that the claim was not timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that the denial was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

We further find that neither of the peer review reports submitted by defendant sufficiently set forth a factual basis or medical rationale establishing that the supplies at issue were not [*2]medically necessary. Therefore, there is an issue of fact as to the medical necessity of the supplies underlying all three claims at issue, and, thus, defendant is not entitled to summary judgment on any claim.

Accordingly, the judgment is reversed, so much of the order entered August 1, 2014 as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon the claim for $591.10 is vacated and that branch of plaintiff’s motion is denied. The order, insofar as reviewed on direct appeal, is affirmed.

Solomon, J.P., Weston and Elliot, JJ., concur.