Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v Country Wide Ins. Co. (2017 NY Slip Op 51103(U))
| Gentlecare Ambulatory Anesthesia Servs. v Country Wide Ins. Co. |
| 2017 NY Slip Op 51103(U) [56 Misc 3d 141(A)] |
| Decided on August 25, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 25, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ
2016-265 Q C
against
Country Wide Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellants. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J), entered December 15, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
For the reasons stated in Island Life Chiropractic, P.C. v Country Wide Ins. Co. (53 Misc 3d 131[A], 2016 NY Slip Op 51378[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the order is modified by providing that defendant’s cross motion for summary judgment [*2]dismissing the complaint is denied.
ALIOTTA, J.P., PESCE and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 25, 2017
Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v Country Wide Ins. Co. (2017 NY Slip Op 51102(U))
| Gentlecare Ambulatory Anesthesia Servs. v Country Wide Ins. Co. |
| 2017 NY Slip Op 51102(U) [56 Misc 3d 140(A)] |
| Decided on August 25, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 25, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ
2016-262 Q C
against
Country Wide Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellants. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J), entered December 15, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
For the reasons stated in Island Life Chiropractic, P.C. v Country Wide Ins. Co. (53 Misc 3d 131[A], 2016 NY Slip Op 51378[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
ALIOTTA, J.P., PESCE and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 25, 2017
Reported in New York Official Reports at B.Z. Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51091(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Respondent-Appellant.
B.Z. Chiropractic, P.C., as Assignee of Tony Dance, Appellant,
against
Allstate Insurance Company, Respondent.
Amos Weinberg, Esq., for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for respondent.
Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered November 19, 2015 (appeal No. 2015-2956 Q C). Separate appeal from an order of the same court entered July 7, 2016 (appeal No. 2016-1958 Q C). The order entered November 19, 2015 granted defendant’s motion to, among other things, toll the accrual of postjudgment interest on the amount of a default judgment of the same court entered November 15, 2001 only to the extent of tolling the accrual of interest on the judgment from November 1, 2005 through June 19, 2015. The order entered July 7, 2016 granted defendant’s motion to, among other things, compel plaintiff to file a satisfaction of judgment, to direct the clerk to enter a satisfaction of judgment and for a protective order to the extent of directing the clerk to enter a satisfaction of judgment and lifting restraints on defendant’s funds.
ORDERED that, on the court’s own motion, appeal No. 2015-2956 Q C and appeal No. 2016-1958 Q C are consolidated for purposes of disposition; and it is further,
ORDERED that the cross appeal from the order entered November 19, 2015 is dismissed as abandoned; and it is further,
ORDERED that the order entered November 19, 2015, insofar as appealed from, is reversed, without costs, and defendant’s motion to, among other things, toll the accrual of postjudgment interest on the amount of a default judgment of the same court entered November 15, 2001 is denied; and it is further,
ORDERED that the order entered July 7, 2016 is modified by providing that defendant’s motion to, among other things, direct the clerk to enter a satisfaction of judgment is granted only to the extent of directing the clerk to enter a partial satisfaction of judgment in the amount of $22,999.70; as so modified, the order is affirmed, without costs.
In this action, commenced on November 7, 2000 to recover assigned first-party no-fault benefits, plaintiff moved on April 9, 2001 for summary judgment. Defendant failed to oppose the motion, and, by order entered November 2, 2001, the Civil Court (Duane A. Hart, J.) granted plaintiff’s motion on default. Plaintiff served a copy of the order and a “statement for judgment” on defendant’s then attorney on November 13, 2001. A judgment in the amount of $8,847.49, including the principal sum of $5,077.49 and interest in the amount of $2,775, was entered on November 15, 2001.
There was no action by either party until June 2015, when plaintiff’s attorney wrote a letter to defendant, demanding payment, or proof of payment, of the 2001 judgment and advising defendant that interest as of the date of the letter was $221,134.17, as interest had been accruing at 2% per month (see 11 NYCRR 65-3.9 [a]). By order to show cause dated August 25, 2015, defendant moved to, among other things, toll the accrual of postjudgment interest and to release defendant’s funds that were being held pursuant to restraining notices. In support of its motion, defendant proffered proof that it had paid $8,842.49 on the judgment in July 2015. By order entered November 19, 2015, the Civil Court (Terrence C. O’Connor, J.) granted defendant’s motion to the extent of tolling the accrual of interest from November 1, 2005 through June 19, 2015. Plaintiff appeals and defendant cross-appeals from the order. As the cross appeal has not been perfected, it is dismissed as abandoned.
Thereafter, defendant moved to, among other things, compel plaintiff to file a satisfaction of judgment and to direct the clerk to enter a satisfaction of the judgment on the ground that defendant had paid plaintiff the total amount of $22,999.70, which sum, defendant alleged, was the full amount of the judgment in accordance with the November 19, 2015 order of the Civil Court. Plaintiff opposed the motion and appeals from an order of the Civil Court (Terrence C. O’Connor, J.), entered July 7, 2016, which granted defendant’s motion to the extent of directing the clerk to enter a satisfaction of judgment and lifting restraints on defendant’s funds.
A money judgment bears interest from the date of its entry (see CPLR 5003), and, generally, the interest accrues until the judgment is paid (see Matter of Matra Bldg. Corp. v [*2]Kucker, 19 AD3d 496 [2005]; Martin v Tafflock, 166 AD2d 635 [1990]). “Postjudgment interest is awarded as a penalty for the delayed payment of a judgment” (ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]). Contrary to defendant’s assertion, there is no evidence of actions or conduct by plaintiff which prevented defendant from paying the judgment (see ERHAL Holding Corp., 252 AD2d at 474; cf. Danielowich v PBL Dev., 292 AD2d 414 [2002]). Since plaintiff, as the prevailing party, was not required to make a demand for the money (see e.g. Feldman v Brodsky, 12 AD2d 347, 351 [1961]; Weinstein-Korn-Miller, NY Civ Prac ¶ 5003.01 [2d ed 2009]) and did not cause the delay in paying the judgment, the Civil Court erred in tolling the accrual of interest on the judgment. However, defendant demonstrated, through the submission of checks to plaintiff, which plaintiff had endorsed “without prejudice,” that defendant had partially paid the judgment and is, therefore, entitled to the entry of a partial satisfaction of judgment in the amount of $22,999.70 (see CPLR 5021 [a]). We note that, contrary to plaintiff’s position, postjudgment interest should be calculated pursuant to CPLR 5004 and not at the two percent per month rate provided for in 11 NYCRR 65-3.9 (a) (see e.g. Castle Restoration & Constr., Inc. v Castle Restoration, LLC, 149 AD3d 692 [2017]; NYCTL 1998-2 Trust v Wagner, 61 AD3d 728, 729 [2009]).
Accordingly, the order entered November 19, 2015, insofar as appealed from, is reversed and defendant’s motion to, among other things, toll the accrual of postjudgment interest is denied. The order entered July 7, 2016 is modified by providing that defendant’s motion to, among other things, direct the clerk to enter a satisfaction of judgment and for a protective order is granted only to the extent of directing the clerk to enter a partial satisfaction of the judgment in the amount of $22,999.70.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 18, 2017
Reported in New York Official Reports at K.O. Med., P.C. v USAA Cas. Ins. Co. (2017 NY Slip Op 51089(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
USAA Casualty Insurance Company, Respondent.
Law Offices of Melissa Betancourt, P.C., (Melissa Betancourt, Esq.), for appellant. McDonnell, Adels & Klestzick, PLLC (Linda A. Mule, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 1, 2015. The order, insofar as appealed from, granted a motion by defendant to the extent of striking the notice of trial and compelling plaintiff to provide responses to specified discovery demands.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as granted a motion by defendant to the extent of striking the notice of trial and compelling plaintiff to “provide verified responses and documents responsive to defendant’s demands for” discovery relevant to a defense interposed pursuant to State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]).
Plaintiff’s sole argument on appeal is that the “Mallela defense” is subject to the preclusion rule (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274 [1997]) and, since defendant did not prove that it had issued timely denials, defendant did not demonstrate that the discovery demands at issue are not palpably improper (see All Boro Psychological Servs., P.C. v Allstate Ins. Co., 39 Misc 3d 9 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Although this argument is raised for the first time on appeal, it is reviewable by this court since the threshold issue of whether a “Mallela defense” is subject to the [*2]preclusion rule is “one of law appearing on the face of the record and it could not have been avoided had it been raised at the proper juncture” (Navillus Tile, Inc. v George A. Fuller Co., Inc., 83 AD3d 919, 920 [2011]; see also Olim Realty v Lanaj Home Furnishings, 65 AD3d 1318, 1320 [2009]). In any event, defendant addressed this argument in its reply submission to the Civil Court as if it had been raised.
Contrary to plaintiff’s argument, a “Mallela defense” need not be preserved in a timely denial (see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2017]; All Boro Psychological Servs., P.C., 39 Misc 3d 9; First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).
Accordingly, the order, insofar as appealed from, is affirmed.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 18, 2017
Reported in New York Official Reports at New Millennium Med. Imaging, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51088(U))
| New Millennium Med. Imaging, P.C. v American Tr. Ins. Co. |
| 2017 NY Slip Op 51088(U) [56 Misc 3d 139(A)] |
| Decided on August 18, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 18, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., MICHAEL L. PESCE, THOMAS P. ALIOTTA, JJ
2015-1998 K C
against
American Transit Ins. Co., Respondent.
Law Office of Damin J. Toell, P.C. (Damin J. Toell, Esq.), for appellant. Law Office of Daniel J. Tucker (Netanel Benchaim, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 16, 2015. The order, insofar as appealed from as limited by the brief, denied plaintiff’s cross motion for summary judgment.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, as limited by its brief, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s cross motion for summary judgment, upon a finding that defendant’s opposition papers had raised a triable issue of fact.
Contrary to plaintiff’s contention on appeal, the Civil Court did not improvidently exercise its discretion in considering defendant’s late opposition papers (see CPLR 2004), which raised a triable issue of fact as to whether the claims had been timely denied.
Accordingly, the order, insofar as appealed from, is affirmed.
WESTON, J.P., PESCE and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 18, 2017
Reported in New York Official Reports at Compas Med., P.C. v Hereford Ins. Co. (2017 NY Slip Op 51084(U))
| Compas Med., P.C. v Hereford Ins. Co. |
| 2017 NY Slip Op 51084(U) [56 Misc 3d 139(A)] |
| Decided on August 18, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 18, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1320 Q C
against
Hereford Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Rubin & Nazarian (Lawrence R. Miles, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered May 20, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that defendant did not provide insurance coverage for the vehicle in question on the date of the accident at issue. By order entered May 20, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
For the reasons stated in Compas Med., P.C., as Assignee of Pierre, Eddy v Hereford Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op ______ [appeal No. 2014-1319 Q C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 18, 2017
Reported in New York Official Reports at Compas Med., P.C. v Hereford Ins. Co. (2017 NY Slip Op 51083(U))
| Compas Med., P.C. v Hereford Ins. Co. |
| 2017 NY Slip Op 51083(U) [56 Misc 3d 139(A)] |
| Decided on August 18, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 18, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1319 Q C
against
Hereford Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Rubin & Nazarian (Lawrence R. Miles, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered May 20, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that defendant did not provide insurance coverage for the vehicle in question on the date of the accident at issue. By order entered May 20, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
In support of its cross motion and in opposition to plaintiff’s motion, defendant submitted an affidavit by its employee who described the details of a record search she had performed and stated that her search had revealed that there was no relevant Hereford Insurance Company policy in effect on the date of the accident in question. We find that defendant’s affidavit was sufficient to demonstrate, prima facie, that plaintiff’s claim did not arise out of a covered incident (see [*2]Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). As plaintiff failed to raise a triable issue of fact, the Civil Court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 18, 2017
Reported in New York Official Reports at Essential Health Chiropractic, P.C. v Geico Ins. Co. (2017 NY Slip Op 51080(U))
| Essential Health Chiropractic, P.C. v GEICO Ins. Co. |
| 2017 NY Slip Op 51080(U) [56 Misc 3d 139(A)] |
| Decided on August 17, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 17, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., BRUCE E. TOLBERT, JERRY GARGUILO, JJ
2016-614 S C
against
GEICO Insurance Company, Respondent.
The Law Office of Gregory A. Goodman, P.C. (Gregory A. Goodman, Esq.), for appellant. Short & Billy, P.C. (Skip Short, Esq.), for respondent.
Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated January 26, 2016. The order, in a proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated July 17, 2015 in which GEICO Insurance Company cross-petitioned to confirm the master arbitrator’s award, denied the petition and granted the cross petition.
ORDERED that the order is affirmed, without costs.
Petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award, dated July 17, 2015 which upheld the award of an arbitrator, rendered pursuant to Insurance Law § 5106 (b), denying petitioner’s claims to recover assigned first-party no-fault benefits. GEICO Insurance Company cross-petitioned to confirm the master arbitrator’s award. The District Court denied the petition and granted the cross petition.
Upon a review of the record, we find that the determination of the master arbitrator had a rational basis and was not arbitrary, capricious, or contrary to settled law (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Consequently, the District Court properly denied the petition to vacate the master [*2]arbitrator’s award and granted the cross petition to confirm the award.
Accordingly, the order is affirmed.
We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).
MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 17, 2017
Reported in New York Official Reports at Essential Health Chiropractic, P.C. v Geico Ins. Co. (2017 NY Slip Op 51079(U))
| Essential Health Chiropractic, P.C. v GEICO Ins. Co. |
| 2017 NY Slip Op 51079(U) [56 Misc 3d 139(A)] |
| Decided on August 17, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 17, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., BRUCE E. TOLBERT, JERRY GARGUILO, JJ
2016-559 S C
against
GEICO Insurance Company, Respondent.
The Law Office of Gregory A. Goodman, P.C. (Gregory A. Goodman, Esq.), for appellant. Short & Billy, P.C. (Skip Short, Esq.), for respondent.
Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated January 26, 2016. The order, in a proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated July 17, 2015 in which GEICO Insurance Company cross-petitioned to confirm the master arbitrator’s award, denied the petition and granted the cross petition.
ORDERED that the order is affirmed, without costs.
Petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award, dated July 17, 2015 which upheld the award of an arbitrator, rendered pursuant to Insurance Law § 5106 (b), denying petitioner’s claims to recover assigned first-party no-fault benefits. GEICO Insurance Company cross-petitioned to confirm the master arbitrator’s award. The District Court denied the petition and granted the cross petition.
Upon a review of the record, we find that the determination of the master arbitrator had a rational basis and was not arbitrary, capricious, or contrary to settled law (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [*2][Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Consequently, the District Court properly denied the petition to vacate the master arbitrator’s award and granted the cross petition to confirm the award.
Accordingly, the order is affirmed.
We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).
MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 17, 2017
Reported in New York Official Reports at Essential Health Chiropractic, P.C. v Geico Ins. Co. (2017 NY Slip Op 51078(U))
| Essential Health Chiropractic, P.C. v GEICO Ins. Co. |
| 2017 NY Slip Op 51078(U) [56 Misc 3d 138(A)] |
| Decided on August 17, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 17, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., BRUCE E. TOLBERT, JERRY GARGUILO, JJ
2016-558 S C
against
GEICO Insurance Company, Respondent.
The Law Office of Gregory A. Goodman, P.C. (Gregory A. Goodman, Esq.), for appellant. Short & Billy, P.C. (Skip Short, Esq.), for respondent.
Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated January 26, 2016. The order, in a proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated July 17, 2015 in which GEICO Insurance Company cross-petitioned to confirm the master arbitrator’s award, denied the petition and granted the cross petition.
ORDERED that the order is affirmed, without costs.
Petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award, dated July 17, 2015 which upheld the award of an arbitrator, rendered pursuant to Insurance Law § 5106 (b), denying petitioner’s claims to recover assigned first-party no-fault benefits. GEICO Insurance Company cross-petitioned to confirm the master arbitrator’s award. The District Court denied the petition and granted the cross petition.
Upon a review of the record, we find that the determination of the master arbitrator had a rational basis and was not arbitrary, capricious, or contrary to settled law (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Consequently, the District Court properly denied the petition to vacate the master [*2]arbitrator’s award and granted the cross petition to confirm the award.
Accordingly, the order is affirmed.
We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).
MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 17, 2017