Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Reported in New York Official Reports at Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co.
2024 NY Slip Op 00599
Decided on February 06, 2024
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: February 06, 2024
Before: Singh, J.P., Moulton, Gesmer, Mendez, Rodriguez, JJ.

Index No. 651264/23, 650919/23 Appeal No. 1590-1591 Case No. 2023-03313, 2023-03164

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

v

Garrison Property & Casualty Insurance Company, Respondent-Respondent.



In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Tracey Simpson, Petitioner-Appellant,

v

GEICO Casualty Company, Respondent-Respondent.




Roman Kravchenko, Melville, for appellant.

Marshall, Dennehey, Warner, Coleman & Goggin, P.C., New York (Richard Lane of counsel), for Garrison Property & Casualty Insurance Company, respondent.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for GEICO Casualty Company, respondent.



Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered July 3, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated January 12, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs. Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about May 12, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated February 1, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.

Supreme Court correctly denied the petitions to vacate the master arbitration awards. “Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (see New Millenium Pain & Spine Medicine, P.C. v Progressive Casualty Insurance Company (220 AD3d 578, 578 [1st Dept 2023], quoting Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]), “The fact that the arbitrator[s] followed First Department precedent in (Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]) rather than Second Department precedent in (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy (see Matter of DTR Country—Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], lv denied 40 NY3d 904 [2023])” (id).

New Millennium was not precluded from arguing for the first time in its petitions that respondent insurer took the 20% wage offset twice, first, when issuing payment against gross wages, and second, when taken against the no-fault personal injury protection limit of liability (Insurance Law§ 5102[b]; 11 NYCRR 65-1.1; Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d at 481). However, the argument is unavailing because Insurance Law § 5102(b) allows an insurer to deduct from first-party benefits to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, 20% of lost earnings plus any other setoffs, such as amounts recovered or recoverable for Social Security disability or Worker Compensation benefits, or disability benefits under article 9 of the Workers Compensation Law (Matter of Lam Quam, MD, PC v GEICO, — AD3d —, 2024 NY Slip Op 00174 [1st Dept 2024]; Normile v Allstate [*2]Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).

New Millennium is not the prevailing party, therefore it is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 6, 2024



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Reported in New York Official Reports at Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co.
2024 NY Slip Op 00599
Decided on February 06, 2024
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: February 06, 2024
Before: Singh, J.P., Moulton, Gesmer, Mendez, Rodriguez, JJ.

Index No. 651264/23, 650919/23 Appeal No. 1590-1591 Case No. 2023-03313, 2023-03164

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

v

Garrison Property & Casualty Insurance Company, Respondent-Respondent.



In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Tracey Simpson, Petitioner-Appellant,

v

GEICO Casualty Company, Respondent-Respondent.




Roman Kravchenko, Melville, for appellant.

Marshall, Dennehey, Warner, Coleman & Goggin, P.C., New York (Richard Lane of counsel), for Garrison Property & Casualty Insurance Company, respondent.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for GEICO Casualty Company, respondent.



Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered July 3, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated January 12, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs. Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about May 12, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated February 1, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.

Supreme Court correctly denied the petitions to vacate the master arbitration awards. “Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (see New Millenium Pain & Spine Medicine, P.C. v Progressive Casualty Insurance Company (220 AD3d 578, 578 [1st Dept 2023], quoting Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]), “The fact that the arbitrator[s] followed First Department precedent in (Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]) rather than Second Department precedent in (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy (see Matter of DTR Country—Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], lv denied 40 NY3d 904 [2023])” (id).

New Millennium was not precluded from arguing for the first time in its petitions that respondent insurer took the 20% wage offset twice, first, when issuing payment against gross wages, and second, when taken against the no-fault personal injury protection limit of liability (Insurance Law§ 5102[b]; 11 NYCRR 65-1.1; Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d at 481). However, the argument is unavailing because Insurance Law § 5102(b) allows an insurer to deduct from first-party benefits to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, 20% of lost earnings plus any other setoffs, such as amounts recovered or recoverable for Social Security disability or Worker Compensation benefits, or disability benefits under article 9 of the Workers Compensation Law (Matter of Lam Quam, MD, PC v GEICO, — AD3d —, 2024 NY Slip Op 00174 [1st Dept 2024]; Normile v Allstate [*2]Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).

New Millennium is not the prevailing party, therefore it is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 6, 2024



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Reported in New York Official Reports at Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co.
2024 NY Slip Op 00599
Decided on February 06, 2024
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: February 06, 2024
Before: Singh, J.P., Moulton, Gesmer, Mendez, Rodriguez, JJ.

Index No. 651264/23, 650919/23 Appeal No. 1590-1591 Case No. 2023-03313, 2023-03164

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

v

Garrison Property & Casualty Insurance Company, Respondent-Respondent.



In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Tracey Simpson, Petitioner-Appellant,

v

GEICO Casualty Company, Respondent-Respondent.




Roman Kravchenko, Melville, for appellant.

Marshall, Dennehey, Warner, Coleman & Goggin, P.C., New York (Richard Lane of counsel), for Garrison Property & Casualty Insurance Company, respondent.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for GEICO Casualty Company, respondent.



Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered July 3, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated January 12, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs. Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about May 12, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated February 1, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.

Supreme Court correctly denied the petitions to vacate the master arbitration awards. “Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (see New Millenium Pain & Spine Medicine, P.C. v Progressive Casualty Insurance Company (220 AD3d 578, 578 [1st Dept 2023], quoting Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]), “The fact that the arbitrator[s] followed First Department precedent in (Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]) rather than Second Department precedent in (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy (see Matter of DTR Country—Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], lv denied 40 NY3d 904 [2023])” (id).

New Millennium was not precluded from arguing for the first time in its petitions that respondent insurer took the 20% wage offset twice, first, when issuing payment against gross wages, and second, when taken against the no-fault personal injury protection limit of liability (Insurance Law§ 5102[b]; 11 NYCRR 65-1.1; Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d at 481). However, the argument is unavailing because Insurance Law § 5102(b) allows an insurer to deduct from first-party benefits to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, 20% of lost earnings plus any other setoffs, such as amounts recovered or recoverable for Social Security disability or Worker Compensation benefits, or disability benefits under article 9 of the Workers Compensation Law (Matter of Lam Quam, MD, PC v GEICO, — AD3d —, 2024 NY Slip Op 00174 [1st Dept 2024]; Normile v Allstate [*2]Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).

New Millennium is not the prevailing party, therefore it is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 6, 2024



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Reported in New York Official Reports at Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co.
2024 NY Slip Op 00599
Decided on February 06, 2024
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: February 06, 2024
Before: Singh, J.P., Moulton, Gesmer, Mendez, Rodriguez, JJ.

Index No. 651264/23, 650919/23 Appeal No. 1590-1591 Case No. 2023-03313, 2023-03164

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

v

Garrison Property & Casualty Insurance Company, Respondent-Respondent.



In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Tracey Simpson, Petitioner-Appellant,

v

GEICO Casualty Company, Respondent-Respondent.




Roman Kravchenko, Melville, for appellant.

Marshall, Dennehey, Warner, Coleman & Goggin, P.C., New York (Richard Lane of counsel), for Garrison Property & Casualty Insurance Company, respondent.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for GEICO Casualty Company, respondent.



Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered July 3, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated January 12, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs. Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about May 12, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated February 1, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.

Supreme Court correctly denied the petitions to vacate the master arbitration awards. “Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (see New Millenium Pain & Spine Medicine, P.C. v Progressive Casualty Insurance Company (220 AD3d 578, 578 [1st Dept 2023], quoting Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]), “The fact that the arbitrator[s] followed First Department precedent in (Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]) rather than Second Department precedent in (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy (see Matter of DTR Country—Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], lv denied 40 NY3d 904 [2023])” (id).

New Millennium was not precluded from arguing for the first time in its petitions that respondent insurer took the 20% wage offset twice, first, when issuing payment against gross wages, and second, when taken against the no-fault personal injury protection limit of liability (Insurance Law§ 5102[b]; 11 NYCRR 65-1.1; Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d at 481). However, the argument is unavailing because Insurance Law § 5102(b) allows an insurer to deduct from first-party benefits to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, 20% of lost earnings plus any other setoffs, such as amounts recovered or recoverable for Social Security disability or Worker Compensation benefits, or disability benefits under article 9 of the Workers Compensation Law (Matter of Lam Quam, MD, PC v GEICO, — AD3d —, 2024 NY Slip Op 00174 [1st Dept 2024]; Normile v Allstate [*2]Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).

New Millennium is not the prevailing party, therefore it is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 6, 2024



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Reported in New York Official Reports at Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co.
2024 NY Slip Op 00599
Decided on February 06, 2024
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: February 06, 2024
Before: Singh, J.P., Moulton, Gesmer, Mendez, Rodriguez, JJ.

Index No. 651264/23, 650919/23 Appeal No. 1590-1591 Case No. 2023-03313, 2023-03164

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

v

Garrison Property & Casualty Insurance Company, Respondent-Respondent.



In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Tracey Simpson, Petitioner-Appellant,

v

GEICO Casualty Company, Respondent-Respondent.




Roman Kravchenko, Melville, for appellant.

Marshall, Dennehey, Warner, Coleman & Goggin, P.C., New York (Richard Lane of counsel), for Garrison Property & Casualty Insurance Company, respondent.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for GEICO Casualty Company, respondent.



Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered July 3, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated January 12, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs. Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about May 12, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated February 1, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.

Supreme Court correctly denied the petitions to vacate the master arbitration awards. “Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (see New Millenium Pain & Spine Medicine, P.C. v Progressive Casualty Insurance Company (220 AD3d 578, 578 [1st Dept 2023], quoting Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]), “The fact that the arbitrator[s] followed First Department precedent in (Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]) rather than Second Department precedent in (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy (see Matter of DTR Country—Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], lv denied 40 NY3d 904 [2023])” (id).

New Millennium was not precluded from arguing for the first time in its petitions that respondent insurer took the 20% wage offset twice, first, when issuing payment against gross wages, and second, when taken against the no-fault personal injury protection limit of liability (Insurance Law§ 5102[b]; 11 NYCRR 65-1.1; Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d at 481). However, the argument is unavailing because Insurance Law § 5102(b) allows an insurer to deduct from first-party benefits to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, 20% of lost earnings plus any other setoffs, such as amounts recovered or recoverable for Social Security disability or Worker Compensation benefits, or disability benefits under article 9 of the Workers Compensation Law (Matter of Lam Quam, MD, PC v GEICO, — AD3d —, 2024 NY Slip Op 00174 [1st Dept 2024]; Normile v Allstate [*2]Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).

New Millennium is not the prevailing party, therefore it is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 6, 2024



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Reported in New York Official Reports at Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co.
2024 NY Slip Op 00599
Decided on February 06, 2024
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: February 06, 2024
Before: Singh, J.P., Moulton, Gesmer, Mendez, Rodriguez, JJ.

Index No. 651264/23, 650919/23 Appeal No. 1590-1591 Case No. 2023-03313, 2023-03164

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

v

Garrison Property & Casualty Insurance Company, Respondent-Respondent.



In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Tracey Simpson, Petitioner-Appellant,

v

GEICO Casualty Company, Respondent-Respondent.




Roman Kravchenko, Melville, for appellant.

Marshall, Dennehey, Warner, Coleman & Goggin, P.C., New York (Richard Lane of counsel), for Garrison Property & Casualty Insurance Company, respondent.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for GEICO Casualty Company, respondent.



Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered July 3, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated January 12, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs. Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about May 12, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated February 1, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.

Supreme Court correctly denied the petitions to vacate the master arbitration awards. “Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (see New Millenium Pain & Spine Medicine, P.C. v Progressive Casualty Insurance Company (220 AD3d 578, 578 [1st Dept 2023], quoting Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]), “The fact that the arbitrator[s] followed First Department precedent in (Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]) rather than Second Department precedent in (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy (see Matter of DTR Country—Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], lv denied 40 NY3d 904 [2023])” (id).

New Millennium was not precluded from arguing for the first time in its petitions that respondent insurer took the 20% wage offset twice, first, when issuing payment against gross wages, and second, when taken against the no-fault personal injury protection limit of liability (Insurance Law§ 5102[b]; 11 NYCRR 65-1.1; Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d at 481). However, the argument is unavailing because Insurance Law § 5102(b) allows an insurer to deduct from first-party benefits to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, 20% of lost earnings plus any other setoffs, such as amounts recovered or recoverable for Social Security disability or Worker Compensation benefits, or disability benefits under article 9 of the Workers Compensation Law (Matter of Lam Quam, MD, PC v GEICO, — AD3d —, 2024 NY Slip Op 00174 [1st Dept 2024]; Normile v Allstate [*2]Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).

New Millennium is not the prevailing party, therefore it is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 6, 2024



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Reported in New York Official Reports at Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co.
2024 NY Slip Op 00599
Decided on February 06, 2024
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: February 06, 2024
Before: Singh, J.P., Moulton, Gesmer, Mendez, Rodriguez, JJ.

Index No. 651264/23, 650919/23 Appeal No. 1590-1591 Case No. 2023-03313, 2023-03164

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

v

Garrison Property & Casualty Insurance Company, Respondent-Respondent.



In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Tracey Simpson, Petitioner-Appellant,

v

GEICO Casualty Company, Respondent-Respondent.




Roman Kravchenko, Melville, for appellant.

Marshall, Dennehey, Warner, Coleman & Goggin, P.C., New York (Richard Lane of counsel), for Garrison Property & Casualty Insurance Company, respondent.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for GEICO Casualty Company, respondent.



Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered July 3, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated January 12, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs. Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about May 12, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated February 1, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.

Supreme Court correctly denied the petitions to vacate the master arbitration awards. “Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (see New Millenium Pain & Spine Medicine, P.C. v Progressive Casualty Insurance Company (220 AD3d 578, 578 [1st Dept 2023], quoting Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]), “The fact that the arbitrator[s] followed First Department precedent in (Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]) rather than Second Department precedent in (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy (see Matter of DTR Country—Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], lv denied 40 NY3d 904 [2023])” (id).

New Millennium was not precluded from arguing for the first time in its petitions that respondent insurer took the 20% wage offset twice, first, when issuing payment against gross wages, and second, when taken against the no-fault personal injury protection limit of liability (Insurance Law§ 5102[b]; 11 NYCRR 65-1.1; Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d at 481). However, the argument is unavailing because Insurance Law § 5102(b) allows an insurer to deduct from first-party benefits to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, 20% of lost earnings plus any other setoffs, such as amounts recovered or recoverable for Social Security disability or Worker Compensation benefits, or disability benefits under article 9 of the Workers Compensation Law (Matter of Lam Quam, MD, PC v GEICO, — AD3d —, 2024 NY Slip Op 00174 [1st Dept 2024]; Normile v Allstate [*2]Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).

New Millennium is not the prevailing party, therefore it is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 6, 2024



Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Reported in New York Official Reports at Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)

Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co.
2024 NY Slip Op 00599
Decided on February 06, 2024
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: February 06, 2024
Before: Singh, J.P., Moulton, Gesmer, Mendez, Rodriguez, JJ.

Index No. 651264/23, 650919/23 Appeal No. 1590-1591 Case No. 2023-03313, 2023-03164

[*1]In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Michelle Hicks, Petitioner-Appellant,

v

Garrison Property & Casualty Insurance Company, Respondent-Respondent.



In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Tracey Simpson, Petitioner-Appellant,

v

GEICO Casualty Company, Respondent-Respondent.




Roman Kravchenko, Melville, for appellant.

Marshall, Dennehey, Warner, Coleman & Goggin, P.C., New York (Richard Lane of counsel), for Garrison Property & Casualty Insurance Company, respondent.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for GEICO Casualty Company, respondent.



Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered July 3, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated January 12, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs. Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about May 12, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated February 1, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.

Supreme Court correctly denied the petitions to vacate the master arbitration awards. “Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (see New Millenium Pain & Spine Medicine, P.C. v Progressive Casualty Insurance Company (220 AD3d 578, 578 [1st Dept 2023], quoting Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]), “The fact that the arbitrator[s] followed First Department precedent in (Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]) rather than Second Department precedent in (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy (see Matter of DTR Country—Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], lv denied 40 NY3d 904 [2023])” (id).

New Millennium was not precluded from arguing for the first time in its petitions that respondent insurer took the 20% wage offset twice, first, when issuing payment against gross wages, and second, when taken against the no-fault personal injury protection limit of liability (Insurance Law§ 5102[b]; 11 NYCRR 65-1.1; Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d at 481). However, the argument is unavailing because Insurance Law § 5102(b) allows an insurer to deduct from first-party benefits to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, 20% of lost earnings plus any other setoffs, such as amounts recovered or recoverable for Social Security disability or Worker Compensation benefits, or disability benefits under article 9 of the Workers Compensation Law (Matter of Lam Quam, MD, PC v GEICO, — AD3d —, 2024 NY Slip Op 00174 [1st Dept 2024]; Normile v Allstate [*2]Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).

New Millennium is not the prevailing party, therefore it is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 6, 2024



Matter of Lam Quan, MD, PC v GEICO Gen. Ins. Co. (2024 NY Slip Op 00174)

Reported in New York Official Reports at Matter of Lam Quan, MD, PC v GEICO Gen. Ins. Co. (2024 NY Slip Op 00174)

Matter of Lam Quan, MD, PC v GEICO Gen. Ins. Co.
2024 NY Slip Op 00174
Decided on January 16, 2024
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: January 16, 2024
Before: Moulton, J.P., Kapnick, Scarpulla, Higgitt, O’Neill Levy, JJ.

Index No. 651286/23 Appeal No. 1423 Case No. 2023-03165

[*1]In the Matter of Lam Quan, MD, PC, as Assignee of Ginaldi Mirambeaux, Petitioner-Appellant,

v

GEICO General Insurance Company, Respondent-Respondent.




Roman Kravchenko, Melville, for appellant.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for respondent.



Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered May 8, 2023, which denied petitioner Quan’s petition to vacate a master arbitrator’s award, dated February 26, 2023, affirming a lower arbitrator’s award, dated January 11, 2023, unanimously affirmed, without costs.

The motion court correctly upheld the master arbitrator’s determination that there were no grounds to vacate the initial arbitration award, as the master arbitrator found that the no-fault arbitrator reached the decision in a rational manner and that the decision was not arbitrary and capricious, incorrect as a matter of law, in excess of policy limits, or in conflict with other no-fault arbitration proceedings (see Matter of Miller v Elrac, LLC, 170 AD3d 436, 437 [1st Dept 2019]). As stated in Matter of New Millenium Pain & Spine Medicine., PC v Progressive Cas. Ins. Co. “[t]he fact that the arbitrator followed First Department precedent in Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]), rather than Second Department precedent in Alleviation Med. Servs., P.C. v Allstate Ins. Co. (55 Misc 3d 44, 49 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]), does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy” (220 AD3d 578, 578 [1st Dept 2023]).

Quan’s argument that GEICO took the 20% wage offset twice—first, when issuing payment against gross wages; and second, when taken against the no-fault personal injury protection limit of liability (see Insurance Law § 5102[b]; 11 NYCRR 65-1.1) is unpreserved and, if considered (see Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], affd 40 NY3d 904 [2023]), is unavailing (see Normile v Allstate Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).

Quan is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 16, 2024



Nationwide Gen. Ins. Co. v South (2024 NY Slip Op 00028)

Reported in New York Official Reports at Nationwide Gen. Ins. Co. v South (2024 NY Slip Op 00028)

Nationwide Gen. Ins. Co. v South
2024 NY Slip Op 00028
Decided on January 04, 2024
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided and Entered: January 04, 2024
Before: Singh, J.P., Scarpulla, Pitt-Burke, Higgitt, O’Neill Levy, JJ.

Index No. 154533/21 Appeal No. 1337 Case No. 2023-02237

[*1]Nationwide General Insurance Company, et al., Plaintiffs-Appellants,

v

Richard South, et al., Defendants, ARS Medical Equipment Corp., et al., Defendants-Respondents.




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



Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered on or about April 10, 2023, which, insofar as appealed from, denied plaintiffs’ motion for summary judgment declaring that they have no obligation to pay no-fault benefits to defendants ARS Medical Equipment Corp., Ideal Care Pharmacy, Inc., and Rosar Medical Equipment Corp. (collectively defendants) in connection with the underlying August 9, 2020 accident, unanimously reversed, on the law, the motion granted, and it is so declared.

Plaintiffs demonstrated a “founded belief” that the August 9, 2020 accident was not covered by no-fault insurance (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; 11 NYCRR 65-3.8[e][2]), based on, among other things, the investigation undertaken by their investigator and the examination under oath (EUO) testimony of the driver of the vehicle in which the claimants were passengers. The driver stated that immediately before the collision, he heard one of the passengers tell someone on the phone to hit the car, and that after the accident the other vehicle fled the scene. Defendants failed to present evidence sufficient to raise an issue of fact as to the bona fides of the accident because they did not provide an affidavit of a person with knowledge supporting the legitimacy of their claims. The affirmation of defendants’ attorney in opposition to plaintiffs’ summary judgment motion was of no probative value (see Ramos v New York City Hous. Auth., 264 AD2d 568 [1st Dept 1999]). Under these circumstances, plaintiffs were entitled to deny coverage pursuant to 11 NYCRR 65-3.8(e)(2)and the provisions of the policy voiding coverage based on fraud (see Matter of Eagle Ins. Co. v Gueye, 26 AD3d 192, 193 [1st Dept 2006]).

Additionally, and as a separate ground for the declaration, plaintiffs demonstrated prima facie that the claimants’ failure to appear for two properly noticed and scheduled EUOs was a violation of a condition precedent to coverage and a valid basis to deny defendants’ claims (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). The affidavit of plaintiffs’ claims manager and the exhibits attached thereto were sufficient evidence that the notices of the EOUs were sent within 15 days of receipt of the NF-2s (see 11 NYCRR 65-3.5[b]), and the second EUO was noticed within 10 days of the claimants’ nonappearance at the first scheduled EUO (see 11 NYCRR 65-3.6[b]).The affirmation of plaintiffs’ attorneys and the transcript of the proceedings on the dates the EUOs were scheduled showed that the claimants did not appear; and the affirmation of one of the attorneys described in detail the office procedure regarding mailing of the EUO notices. A further affidavit of the operations manager of the company acting as plaintiffs’ agent for receipt of bills and correspondence showed that the denial letters were also timely sent(see 11 NYCRR 65-3.8[*2][a][1], [c]).Defendants failed to present sufficient evidence to raise an issue of fact concerning the timeliness of the EUO the nonappearance of the claimants at the EUOs, and the subsequent denial notices.Whether or not defendants were innocent third parties was irrelevant because “an assignee never stands in a better position than his assignor” (see Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121, 126 [1975]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 4, 2024