SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Richmond County (Johnny Lee Baynes, J.), entered December 21, 2006, deemed from a judgment of the same court entered January 2, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the December 21, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,375.18 plus statutory interest and attorney’s fees.

Judgment reversed without costs, order entered December 21, 2006 granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment. The instant appeal by defendant ensued.

On appeal, defendant contends, inter alia, that the affidavit by an employee of plaintiff’s former attorney, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by the employee was insufficient to establish that said employee possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th [*2]Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.

To the extent defendant asks this court to search the record and grant it summary judgment, we decline to do so (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 14, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered May 1, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order affirmed with $10 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 on the ground that plaintiff was seeking to recover for services performed by an independent contractor. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. This appeal by plaintiff ensued.

Where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the medical services rendered within the meaning of Insurance Department Regulations (11 NYCRR) § 65-3.11 (a) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer (see Health & Endurance Med. P.C. v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 134[A], 2006 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists 2006]; Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept 2006]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [App Term, 2d & 11th Jud Dists 2005]).

In the case at bar, the claim forms submitted by plaintiff in support of its motion for summary judgment state that the treating professional was an independent contractor and, in opposition to defendant’s cross motion, plaintiff concedes that the services were rendered by an [*2]independent contractor. Contrary to plaintiff’s contention, said defense is nonwaivable and not subject to the preclusion rule (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003]; M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51286[U] [App Term, 2d & 11th Jud Dists 2006]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). As a result, the court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

In light of the foregoing, we reach no other issue.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 14, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 18, 2006, deemed from a judgment entered August 22, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 18, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,476.52.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affirmation by plaintiff’s billing manager, and various documents annexed thereto. The affirmation executed by plaintiff’s billing manager stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affirmation by plaintiff’s billing manager failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The court granted plaintiff’s motion for summary judgment and this appeal by defendant ensued.

On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to its moving papers. We agree. Inasmuch as the affirmation submitted by plaintiff’s billing manager was insufficient to establish that she possessed personal knowledge of plaintiff’s office practices and procedures so as to lay a foundation for the admission, as business records, of the documents [*2]annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The fact that copies of documents were stored in compliance with a document retention policy is not sufficient to establish that the documents were business records in the absence of a showing as to how and when the documents were generated (see CPLR 4518). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In light of the foregoing, we do not address defendant’s remaining contentions.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 8, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered June 22, 2006. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Order affirmed without 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 of res judicata. Defendant argued that plaintiff had previously commenced an identical action, which was dismissed pursuant to CPLR 3126 (3) for plaintiff’s failure to comply with a so-ordered discovery stipulation. Plaintiff cross-moved for summary judgment. The court below granted defendant’s motion and denied plaintiff’s cross motion. The instant appeal by plaintiff ensued.

Although the court’s order dismissing the prior action did not specifically state that the dismissal of the action was with prejudice or on the merits, since the so-ordered discovery stipulation provided for preclusion, the dismissal was with prejudice and, as a result, plaintiff was barred from commencing a second action (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614 [1985]; Lipin v Bender, 216 AD2d 131 [1995]). Accordingly, the court below properly granted defendant’s motion for summary judgment dismissing the complaint based on [*2]the doctrine of res judicata.
Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 3, 2008

[*1]

Supreme Court, Appellate Term, Second Department, April 3, 2008

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Gullo & Associates, Brooklyn (Gina M. DiGaudio of counsel), for respondent.

{**20 Misc 3d at 33} OPINION OF THE COURT

Memorandum.

Order reversed without costs and defendant’s motion to amend the judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff was awarded partial summary judgment in the sum of $5,855.82. A judgment was subsequently entered in the principal sum of $5,855.82. Defendant moved, inter alia, to amend the judgment by reducing the amount of attorney’s fees awarded to plaintiff, claiming that plaintiff’s recovery of attorney’s fees was limited to 20% of the total amount of first-party no-fault benefits awarded for services provided to the assignor, subject to the statutory maximum of $850 in attorney’s fees for the entire action, regardless of the number of claims in dispute. The court below granted defendant’s motion, relying upon an opinion letter issued by the New York State Department of Insurance on October 8, 2003, which stated that attorney’s fees are to be calculated based upon the aggregate amount of payment resolved in favor of an applicant for benefits in a single action (see Ops Gen Counsel NY Ins Dept No. 03-10-04 [Oct. 2003]), and directed the clerk to enter judgment with a maximum of $850 in attorney’s fees. This instant appeal by plaintiff ensued.

In an action to recover first-party no-fault benefits, if a valid claim or portion thereof is overdue, reasonable attorney’s fees may be recovered “for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent [of insurance]” (Insurance Law § 5106 [a]). Insurance Department Regulations (11 NYCRR) § 65-4.6 (e) provides that attorney’s fees are limited to “20 percent of the amount of first-party benefits, plus interest thereon, awarded by the . . . court, subject to a maximum fee of $850.” In Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co. (207 AD2d 338, 339 [1994]), the Appellate Division, Second Department, interpreted Insurance Department Regulations (11 NYCRR) § 65.17 (b) (6) (v), the attorney’s fees provision which was the predecessor of Insurance Department Regulations (11 NYCRR) § 65-4.6 (e), as requiring that the $850 limitation be applied to each claim rather than to the entire action.

Subsequent to entry of the order appealed from, the Appellate Division, Third Department, in LMK Psychological Servs., P.C. v{**20 Misc 3d at 34} State Farm Mut. Auto. Ins. Co. (46 AD3d 1290 [2007]), held that counsel fees should be awarded on a “per claim” basis rather than a “per action” basis. In reaching this conclusion, the court noted that the October 8, 2003 opinion letter, which stated that counsel fees should be calculated on a “per action” basis, should not be accorded deference since it was not an appropriate interpretation of the rules regarding attorney’s fees and, in fact, conflicted with the language of the controlling statute. The court further stated that said interpretation “undermines the goal of the no-fault law to fully compensate a claimant for economic loss resulting from the wrongful denial of a claim and wastes judicial assets by encouraging the commencement of multiple actions in order to recover the maximum available counsel fees” (id. at 1292 [citation omitted]).

As this court is bound by principles of stare decisis to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Appellate Division, Second Department, pronounces a contrary rule (see Mountain View Coach Lines v Storms, 102 AD2d 663 [1984]), the decision of the Appellate Division, Third Department, is controlling on this issue. We note that the Appellate Division, Second Department, in Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co. (207 AD2d 338 [1994], supra), in interpreting the predecessor attorney’s fees provision, held that the amount of attorney’s fees should be determined in a similar manner. Therefore, based on the foregoing analysis, attorney’s fees are to be calculated on a “per claim” basis. Accordingly, the order of the court below is reversed and defendant’s motion to revise the amount of attorney’s fees on the judgment is denied.

Golia, J.P. (concurring in the result only, in the following memorandum). I am constrained to agree with the ultimate decision reached by the majority. I wish to note, however, that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my expressed position and generally contrary to my views.

Pesce and Rios, JJ., concur; Golia, J.P., concurs in a separate memorandum.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Charles John Markey, J.), entered September 20, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,250.45.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the matter proceeded to trial solely with respect to plaintiff’s claims with regard to assignor Ganiyu Salawu. At trial, the parties stipulated that plaintiff proved its prima facie case, that defendant timely and properly denied plaintiff’s claims and that no payments were made on the claims. The parties also stipulated that the sole issue at trial was whether
the assignor’s alleged injuries were causally related to the motor vehicle accident. Defendant called the assignor and a biomechanics expert as witnesses. Plaintiff did not call any witnesses. The court awarded judgment to plaintiff, and this appeal by defendant ensued.

“A decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence” (Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [2004]). Having stipulated to plaintiff’s prima facie case, defendant had the burden to proffer evidence in admissible form demonstrating that the assignor’s alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18 [1999]). Defendant failed to meet this burden.

A fair reading of the assignor’s testimony supports a conclusion that prior to the accident, the assignor was wearing a seat belt which was not working properly. Defendant’s expert [*2]testified that, based upon his investigation, and his review of the documents, “only an unrestrained occupant” could have made contact with the windshield. However, in his report, which was admitted into evidence, the expert concluded that any injuries sustained by plaintiff’s assignor were “causally attributed directly” to the improper use of the seat belt. In view of the conflicting inferences that could be drawn from the assignor’s testimony and the expert’s testimony and, indeed, the ambiguous statements by defendant’s expert, we find no basis to disturb the court’s determination accepting the assignor’s testimony and finding in favor of plaintiff. Defendant’s remaining contentions are either unpreserved for appellate review or without merit.

Weston Patterson, J.P. and Rios, J., concur.
Decision Date: March 27, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), dated March 21, 2007, which denied its motion for summary judgment.

Per Curiam.

Order (Ben R. Barbato, J.), dated March 21, 2007, affirmed, without costs.

Defendant’s motion for summary judgment dismissing this action for no-fault first party benefits on the ground that the underlying medical services were performed by an independent contractor was properly denied. In opposition to the motion, the plaintiff provider submitted the treating physician’s affidavit stating that he is the plaintiff’s president and sole shareholder, not an independent contractor, and that the box for “Independent Contractor” on the NF-3 claim form had been marked erroneously. In these circumstances, the record presents issues of fact as to whether the services were performed by plaintiff through its officer rather than an independent contractor.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: March 24, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), dated December 7, 2006. The order granted that branch of defendant’s motion seeking to dismiss the complaint based on the pendency of a prior action in Queens County Civil Court only to the extent that the court deemed the prior action discontinued, and in effect denied that branch of defendant’s motion seeking the imposition of costs pursuant to part 130 of the Rules of the Chief Administrator (22 NYCRR).

Order modified by striking the provision deeming the prior action in Queens County Civil Court discontinued and by providing that defendant’s motion is granted to the extent of dismissing the complaint; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint based on the pendency of a prior action for the same cause of action (CPLR 3211 [a] [4]). The court granted defendant’s motion only to the extent that the court in essence deemed discontinued the prior action in Queens County Civil Court.

In our view, the court should properly have dismissed the instant complaint. The record demonstrates that both lawsuits are predicated on the same cause of action, and that the prior action had proceeded to discovery. Moreover, as a general matter, deference is accorded to the first action filed (see Reckson Assoc. Realty Corp. v Blasland, Bouck & Lee, 230 AD2d 723 [1996]; Matter of Wallach, 130 AD2d 495, 496 [1987]), and no sufficient reason was shown to depart from this rule here. Accordingly, we modify the order to provide for the dismissal of the instant complaint (see Packes v Cendant Mtge. Corp., 19 AD3d 386 [2005]).

The branch of defendant’s motion seeking costs pursuant to part 130 of the Rules of the Chief Administrator (22 NYCRR) was properly denied as plaintiff’s actions, under the circumstances presented, do not rise to the level warranting the imposition of such costs. [*2]

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 13, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered August 24, 2006. The order, insofar as appealed from, denied the petition to vacate a master arbitrator’s award.

Order, insofar as appealed from, reversed without costs, awards of the master arbitrator and arbitrator vacated, and matter remitted for a rehearing before a different arbitrator.

R.J. Professional Acupuncturist, P.C. (R.J.) commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld the denial of its claim for assigned first-party no-fault benefits. The insurer opposed the petition, asserting, inter alia, that the arbitrator properly found that R.J. failed to make a prima facie showing of its entitlement to reimbursement since it did not provide documentation to support the bills for the services which it rendered. The insurer also cross-petitioned for confirmation of the master arbitrator’s award. The court denied the petition and the cross petition. This appeal by R.J. ensued.

The standard applicable to judicial review of a compulsory arbitration proceeding is whether the award was “supported by a reasonable hypothesis’ and was not contrary to what could be fairly described as settled law” (Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005], citing Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]; see Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533, 534 [1996]; Matter of Adams v Allstate Ins. Co., 210 AD2d 319, 320 [1994]). Applying this standard to the instant proceeding, we find that the master arbitrator’s award and the arbitrator’s award were irrational (see Matter of State Farm [*2]Mut. Auto. Ins. Co., 18 AD3d at 763; Matter of Hanover Ins. Co., 226 AD2d at 534) since they were contrary to settled law.

It is well settled that a provider seeking to recover assigned first-party no-fault benefits makes a prima facie showing by demonstrating that a complete proof of claim setting forth the fact and amount of the loss sustained was submitted to the insurer and payment of no-fault benefits was overdue (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Notwithstanding the foregoing, the arbitrator held that R.J. failed to make a prima facie showing because it did not submit sufficient additional evidence to substantiate its bills for the services rendered. Consequently, the
court below should have vacated the master arbitrator’s award as well as the arbitrator’s award (see e.g. Matter of Pradip Das/N.Y. Med. Rehab v Allstate Ins. Co., 297 AD2d 321 [2002]; Matter of Nyack Hosp. v Government Empls. Ins. Co., 139 AD2d 515 [1988]). Accordingly, the matter is remitted for a new hearing before a different arbitrator (see Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co., 44 AD3d 857 [2007]).

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the following memorandum:

I concur for the reasons stated in my concurrence in Metropolitan Radiological Imaging, P.C. v Country-Wide Insurance Company (___ Misc 3d ____, 2008 NY Slip Op _______ [No. 2006-1670 K C], decided herewith).
Decision Date: March 13, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered July 31, 2006. The judgment granted the petition to vacate the master arbitrator’s award and awarded petitioner unpaid no-fault benefits in the principal sum of $1,791.73.

Judgment affirmed without costs.

Metropolitan Radiological Imaging, P.C. (Metropolitan) commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld the denial of its claim for assigned first-party no-fault benefits. The insurer opposed the petition, asserting that the master arbitrator’s award was not irrational. The court granted the petition to vacate the master arbitrator’s award, and awarded petitioner the principal sum of $1,791.73. The instant appeal by the insurer ensued.

The standard applicable to judicial review of a compulsory arbitration proceeding is whether the award was “supported by a reasonable hypothesis’ and was not contrary to what could be fairly described as settled law” (Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005], citing Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]; see Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533, 534 [1996]; Matter of Adams v Allstate Ins. Co., 210 AD2d 319, 320 [1994]). Applying this standard to the instant proceeding, we find that the master arbitrator’s award was irrational (see Matter of State Farm Mut. Auto. Ins. Co., 18 AD3d at 763; Matter of Hanover Ins. Co., 226 AD2d at 534) since he upheld the arbitrator’s determination which was contrary to settled law (see Mount Sinai Hosp. v Joan Serv. Corp., 22 AD3d 649 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). [*2]

It is well settled that a provider seeking to recover assigned first-party no-fault benefits makes a prima facie showing by demonstrating that a complete proof of claim setting forth the fact and amount of the loss sustained was submitted to the insurer and that payment of no-fault benefits was overdue (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004], supra). Notwithstanding the foregoing, the arbitrator held that Metropolitan failed to make a prima facie showing because it did not submit sufficient additional evidence to establish the medical necessity of the services rendered. Consequently, the court properly granted the petition and vacated the master arbitrator’s award.

Under the circumstances presented, we affirm the judgment (Matter of Pradip Das/N.Y. Med. Rehab v Allstate Ins. Co., 297 AD2d 321 [2002]; cf. Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co., 44 AD3d 857 [2007]).
Pesce, P.J., and Weston Patterson, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law relied on by the majority which I find inconsistent with higher court precedents and generally contrary to my views.

Most specifically, I am referring to what appears to be the standard of review which was utilized by the majority in this case. The majority herein applies the more exacting standard applicable to judicial review of “compulsory” arbitration proceedings. It applies this standard without addressing the fact that in this case it is the claimant-provider which is seeking judicial review and not the defendant insurance carrier. The reason that I raise this distinction is that a claimant-provider has the unfettered choice to elect to bring its claim before the court or an arbitrator, whereas a defendant insurance carrier is compelled to submit to an arbitration proceeding if the claimant chooses to prosecute its claim in that forum.

Although I find this distinction, between one party which has a choice and the other which does not, to be vital, I nevertheless raise my concerns by way of a concurrence and not in dissent by reason of the Appellate Division, Second Department’s holding in Matter of Shand (Aetna Ins. Co.) (74 AD2d 442 [1980]), which, I submit, provides the support for the finding of the majority on this issue.

The Appellate Division, in Matter of Shand (Aetna Ins. Co.), held that all no-fault arbitration determinations are to be reviewed as if they were “compulsory arbitration” regardless of whether the review is requested by the insurance carrier, which is compelled to submit to arbitration, or the claimant, which is not compelled to submit to arbitration. The Appellate Division relied upon two cases for the principle that a clamant’s application to review a no-fault arbitrator’s award should be determined by the higher standard of compulsory arbitration even though the claimant had freely elected to have the matter heard by an arbitrator.

The Shand court cites to Matter of Conroy v Country Wide Ins. Co. (75 AD2d 852 [1980]), which was decided in the same court exactly one week earlier and without any specific reference to this issue. It also cites to a Supreme Court, Bronx County case, Matter of Hicks (Royal Globe Ins. Co.) (96 Misc 2d 477 [1978]). In Hicks, it appears that the court may have [*3]been confused regarding the distinction between “binding” arbitration and “compulsory” arbitration. The reason stated by the Hicks court is the belief that “parties to voluntary arbitration waive their due process right to judicial review, while the parties to compulsory arbitration do not” (id. at 478-479). This appears to be a valid expression of the difference between binding and non-binding arbitration and not between voluntary and compulsory arbitration.
The Appellate Division, Second Department, appropriately ruled in Matter of Shand (Aetna Ins. Co.) (74 AD2d at 446):
“When a part of a controversy is compelled by statute to submit to arbitration. . . and thereby loses the right of initial resort to a judicial forum. . . the right to review the resulting arbitration award cannot in turn be overly limited in scope without involving a due process issue” (emphasis added).
Unfortunately, the Shand court also found that “insurers [must] submit to binding arbitration of no-fault claims at the option of the insured. Such compelled submissions are classified as compulsory arbitrations . . . even if (as here), it is the assured who complains after exercising the option to pursue [his right to] arbitration instead of legal action. . .” (Matter of Shand [Aetna Ins. Co.], 74 AD2d at 446 [emphasis added]).

I interpret the Shand court as saying that even a claimant, who has the free election to choose to bring his claim in court or by arbitration, must receive the benefit of the higher standard of review which is accorded to those subjected to compulsory arbitration because he “is compelled by statute to submit to arbitration” (Matter of Shand [Aetna Ins. Co.], 74 AD2d at 446).

I submit this holding, within two consecutive paragraphs, is internally conflicting and does not comport with the holdings of the Court of Appeals.

In Matter of Furstenberg (Aetna Cas. & Sur. Co. – – Allstate Ins. Co.) (49 NY2d 757 [1980]), cited by the Shand court, the Court of Appeals clearly states that since “Aetna Casualty & Security Co. was obliged under the statute to accept the arbitral forum for the resolution of the claim against it, we agree that the standard for judicial review of the award is more exacting than in voluntary arbitration” (Matter of Furstenberg [Aetna Cas. & Sur. Co. – – Allstate Ins. Co.], 49 NY2d at 758 [emphasis added and citations omitted]). Indeed, this statement merely amplifies the standard presented by the Appellate Division, First Department, which opined (in the same case) that “[a]t least as to the insurance company, arbitration under the no-fault insurance law
is compulsory and not voluntary” (Matter of Furstenberg [Aetna Cas. & Sur. Co.], 67 AD2d 580, 583 [1979], revd 49 NY2d 757 [1980]).

I would only hope that the Appellate Division, if again confronted with this anomaly, would re-examine this issue and find that a claimant which voluntarily and freely elects to have its no-fault claim brought before an arbitrator is not deemed to be one which was subjected to compulsory arbitration.
Decision Date: March 13, 2008