[*1] (February 25, 2015)

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn, N.Y. (Damin J. Toell of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the plaintiff validly disclaimed coverage to its insured, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated December 14, 2012, as denied those branches of its motion which were for a temporary restraining order and a preliminary injunction.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff sought to temporarily restrain and preliminarily enjoin all no-fault actions arising from a car accident in which its insured allegedly was a driver. The plaintiff failed to establish a likelihood of success on the merits of its cause of action (see Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612 [2008]; Matter of Related Props., Inc. v Town Bd. of Town/Vil. of Harrison, 22 AD3d 587, 590 [2005]; Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 349-350 [1998]), failed to demonstrate that it would suffer any imminent and nonspeculative harm in the absence of the requested injunctive relief (see County of Suffolk v Givens, 106 AD3d 943 [2013]; Golden v Steam Heat, 216 AD2d 440, 442 [1995]), and failed to demonstrate that any injuries it would suffer would not be compensable by money damages (see Rowland v Dushin, 82 AD3d 738 [2011]; EdCia Corp. v McCormack, 44 AD3d 991, 994 [2007]; Matter of Gandolfo v White, 224 AD2d 526, 528 [1996]). The plaintiff also failed to establish that the equities balance in its favor (see McLaughlin, Piven, Vogel v Nolan & Co., 114 AD2d 165, 174 [1986]). Accordingly, the Supreme Court properly denied those branches of the plaintiff’s motion which sought a temporary restraining order and a preliminary injunction. Skelos, J.P., Hall, Sgroi and Hinds-Radix, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 13, 2013. 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 to recover assigned first-party no-fault benefits, plaintiff seeks to recover for services it provided to its assignor, who had sustained injuries in a motor vehicle accident that had occurred on February 13, 2011. After this action was commenced, defendant commenced a declaratory judgment action in the Supreme Court, New York County, against various medical providers and their assignors, including plaintiff herein and its assignor. By order dated July 31, 2012, the Supreme Court granted, on default, defendant’s motion for the entry of a declaratory judgment and found that defendant “has no obligation to pay no-fault benefits to” plaintiff and its assignors “arising out of a collision that occurred on February 13, 2011.” In October 2012, plaintiff moved for, among other things, summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is barred by the doctrines of res judicata and collateral estoppel by virtue of the July 31, 2012 Supreme Court order in the declaratory judgment action. By order entered May 13, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, the instant action is barred under the doctrine of res judicata by virtue of the July 31, 2012 Supreme Court order (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the Supreme Court’s order (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Moreover, the Supreme Court’s order is a conclusive final determination notwithstanding that it was entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 658, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v N Y Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Plaintiff’s remaining contentions lack merit or are unpreserved for appellate review.

Accordingly, the order of the Civil Court is affirmed.

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

Decided on February 24, 2015

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

Decided on February 24, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Decided on February 24, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 24, 2015

APPEARANCES OF COUNSEL

Rhonda H. Barry, Jericho, and Thomas Torto, New York City, for appellant.

Zara Javakov, Esq., P.C., Brooklyn Zara Javakov of counsel), for respondent.

Ordered that the order entered January 10, 2013 is reversed, without costs, and the branch of defendant’s motion seeking to resettle the order entered September 15, 2010 so as to delete the notation on that order stating that it was made on “consent” and is “not appealable” is granted; and it is further ordered that, on the court’s own motion, the decision and order on motion of this court dated May 1, 2012 (see 2012 NY Slip Op 72730[U] [2012]), which dismissed the appeal from the order of the Civil Court entered September 15, 2010, is recalled and vacated, and that appeal is reinstated under appeal No. 2011-192 K C; and it is further ordered that appeal No. 2011-192 K C shall be perfected within 30 days of the date of this decision and order; and it is further ordered that in the event that appeal is not perfected within 30 days of the date of this decision and order, the court, on its own motion, may dismiss the appeal, or respondent may move to dismiss the appeal on three days’ notice, and may serve such application in person; and it is further ordered that respondent, if it be so advised, may serve and file a respondent’s brief within 21 days of the date that the appellant’s brief is due to be filed pursuant to this decision and order, and appellant, if it be so advised, may serve and file a reply brief within 14 days of the date that the respondent’s brief is due to be filed pursuant to this decision and order.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court, entered January 10, 2013, denying defendant’s motion to resettle so much of a prior order of the same court, entered September 15, 2010, which had decided a motion and cross motion{**52 Misc 3d at 14} for summary judgment, so as to delete a notation on that order stating that the order was made on “consent” and is “not appealable,” or for alternative relief.

At the outset, we note that, contrary to plaintiff’s argument on appeal, so much of the January 10, 2013 order as denied resettlement is appealable, as defendant did not seek to change the substantive or decretal portions of the September 15, 2010 order, but rather to, in essence, correct a factual recitation of that order (see Matter of Lewin v New York City Conciliation & Appeals Bd., 88 AD2d 516 [1982]; Bergin v Anderson, 216 App Div 844 [1926]; see also 4 NY Jur 2d, Appellate Review § 57; 10 Carmody-Wait 2d § 70:31).

In support of its motion, defendant submitted an affirmation from the attorney for defendant who had appeared on the return date of the motion and cross motion in question. That attorney attested that both he and plaintiff’s attorney had “vigorously argued” the motion and cross motion that day, and explicitly denied that the order had been made on consent. Defendant also submitted a copy of the September 15, 2010 order, apparently handed to the parties on September 15, 2010, the return date, which does not contain the “consent/not appealable” notation. Defendant further noted that all copies of the September 15, 2010 order state that it was made after oral argument. Plaintiff submitted no opposition to defendant’s motion, and, on appeal, does not dispute defendant’s factual assertions.

As defendant’s affirmed claim—that the September 15, 2010 order was not made on consent—was made on personal knowledge and was not contradicted, we find that the court should have granted the branch of defendant’s motion seeking to resettle the order so as to delete the “consent” and “not appealable” notation.

Accordingly, the order entered January 10, 2013 is reversed and the branch of defendant’s motion seeking to resettle the prior order entered September 15, 2010 so as to delete the notation on that order stating that it was made on “consent” and is “not appealable” is granted. In view of the foregoing, the decision and order on motion of this court dated May 1, 2012, which dismissed defendant’s appeal from the Civil Court’s September 15, 2010 order on the ground that no appeal lies from an order entered on consent, is recalled and vacated, and that appeal is reinstated.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 29, 2013. The order, insofar as appealed from, denied plaintiff’s motion to vacate a prior order of the same court entered October 24, 2011 granting, on default, defendant’s motion for summary judgment dismissing the complaint.

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, the Civil Court, by order entered October 24, 2011, granted, on default, defendant’s motion for summary judgment dismissing the complaint, noting that the parties had entered into a stipulation, which set a schedule for serving opposition and reply papers, and declining to consider plaintiff’s late opposition to the motion. Almost 10 months later, plaintiff moved, pursuant to CPLR 5015 (a) (1), to vacate the October 24, 2011 default order. Defendant opposed plaintiff’s motion, and cross-moved for costs and sanctions. Plaintiff appeals from so much of an order of the Civil Court entered April 29, 2013 as denied its motion.

In support of its motion, plaintiff was required to establish, among other things, a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant’s prior motion, pursuant to the parties’ stipulation. In support of plaintiff’s motion to vacate the default order, plaintiff’s attorney alleged that her late submission of an affirmation in opposition to defendant’s motion for summary judgment was the result of her heavy workload. Her explanation to justify the default amounted to nothing more than mere neglect, which is not accepted as an excusable default (see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d, 11th & 13th Jud Dists 2013]). Moreover, plaintiff’s attorney offered no reason for waiting almost 10 months to move to vacate the default order (see Byers v Winthrop Univ. Hosp., 100 AD3d 817 [2012]). In view of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 7, 2013. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs, and, upon searching the record, defendant is awarded summary judgment dismissing the complaint.

Plaintiff commenced this action in the Civil Court to recover assigned first-party no-fault benefits, asserting that it had provided health care services to Kashif Edwards for injuries sustained in an April 26, 2010 automobile accident, and that Edwards had assigned his benefits to plaintiff. Shortly thereafter, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against plaintiff, other providers and Kashif Edwards, seeking a declaration that all of the defendants therein were not entitled to no-fault benefits as a result of the April 26, 2010 accident involving Edwards on the ground that Edwards had failed to comply with the terms of the applicable insurance policy by failing to appear for scheduled independent medical examinations. Neither plaintiff nor Edwards served an answer or otherwise appeared in the Supreme Court action. Approximately one year later, plaintiff, LMS Acupuncture, P.C., moved for summary judgment in the Civil Court. American Transit opposed the motion on the ground that LMS Acupuncture, P.C.’s Civil Court action was barred by the pending declaratory judgment action. While the Civil Court action was pending, American Transit moved in Supreme Court for, among other relief, a declaration that Kashif Edwards is not an eligible injured person entitled to no-fault benefits under the insurance policy at issue and that American Transit is not obligated to honor or pay claims submitted by Edwards’ assignees, including LMS Acupuncture, P.C., arising from the subject accident, under the insurance policy at issue. On May 8, 2013, the Supreme Court granted, on default, American Transit’s motion. By order entered June 7, 2013, the Civil Court denied LMS Acupuncture, P.C.’s motion for summary judgment, in light of the Supreme Court’s determination in the declaratory judgment action. On August 1, 2013, the Supreme Court signed a long-form order embodying its determination.

Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior action (see Abraham v Hermitage Ins. Co., 47 AD3d 855 [2008]). “The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again” (Matter of Hunter, 4 NY3d 260, 269 [2005]).

Based upon the declaratory judgment action in Supreme Court, the instant action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. [*2]Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), since the prior action was disposed of on the merits (see Abraham, 47 AD3d 855; Ava Acupuncture, P.C., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]), and the Supreme Court’s order is a conclusive final determination (see Sabatino v Capco Trading, Inc., 27 AD3d 1019 [2006]). To hold otherwise could result in a judgment in the present action which would destroy or impair rights or interests established in the Supreme Court action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; EBM Med. Health Care, P.C., 38 Misc 3d 1). We note that any contention that the Supreme Court’s May 8, 2013 determination was not a final disposition has been rendered moot by the entry of the August 1, 2013 long-form order.

Although defendant did not cross-move for summary judgment dismissing the complaint, upon a search of the record, we find that it supports the granting of such relief as a matter of law (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]).

Accordingly, the order of the Civil Court is affirmed, and, upon searching the record, defendant is awarded summary judgment dismissing the complaint.

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

[*1]

Second Department, February 18, 2015

Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 2013 NY Slip Op 33849(U), reversed.

APPEARANCES OF COUNSEL

Melito & Adolfsen, P.C., New York City (Louis G. Adolfsen and S. Dwight Stephens of counsel), for appellants.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP, New York City (John Belesi and David Verschell of counsel), for respondent.

Greenberg Traurig, LLP, New York City (Francis J. Serbaroli of counsel), for amicus curiae New York State Association of Ambulatory Surgery Centers, Inc.

This appeal presents an issue of first impression, namely, whether a no-fault insurer must pay, as a component of first-party benefits for “basic economic loss” (Insurance Law § 5102 [a]), a facility fee in connection with “office-based surgery” performed in a practice and setting accredited under Public Health Law § 230-d (1) (h). A facility fee is a charge for the use of a medical facility and its staff and equipment. It is separate from the fee to which a physician or other medical professional is entitled for performance of the medical procedure itself.

The No-Fault Law (Insurance Law art 51) and its implementing regulations specifically provide that the operator of a hospital or “ambulatory surgery center,” both of which are established under, and subject to, the comprehensive statutory and regulatory framework of Public Health Law article 28, may properly bill a no-fault carrier for facility fees (see e.g. 10 NYCRR 86-4.40). There is, however, no provision for recovery of a facility fee for the performance of an “office-based surgery” performed in a practice and setting accredited under Public Health Law § 230-d (Public Health Law § 230-d [1] [b]). Public Health Law § 230-d, which is not contained in Public Health{**127 AD3d at 62} Law article 28, imposes a substantially more modest level of oversight and regulation than article 28. We hold that, absent express statutory or regulatory authorization, a no-fault insurer is not required to pay a facility fee for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d.

Mark Gladstein, an anesthesiologist, performs “office-based surgery” (Public Health Law § 230-d [1] [h]) at an office in Brooklyn owned by the defendant, Avanguard Medical Group, [*2]PLLC.^[FN1] Dr. Gladstein is an owner of Avanguard. It is not in dispute on this appeal that Dr. Gladstein’s medical practice is accredited under Public Health Law § 230-d for the performance of office-based surgery (see Public Health Law § 230-d [2]). It is also not in dispute that Avanguard’s Brooklyn office is accredited as a setting for office-based surgery (see Public Health Law § 230-d [3]).

Dr. Gladstein bills for his performance of office-based surgery through a professional corporation, Metropolitan Medical and Surgical, P.C. Separate and apart from that billing, Avanguard seeks to collect a facility fee from no-fault insurers for the use of its Brooklyn office where the office-based surgery is performed. The facility fee is a charge for the cost of providing “technicians, medical assistant[s] . . . [and] equipment,” such as X ray and ultrasound equipment, for office-based surgery.

In 2011, the plaintiffs—Government Employees Insurance Co., GEICO Indemnity Co., GEICO General Insurance Co., and GEICO Casualty Co. (hereinafter collectively GEICO)—commenced this action against Avanguard seeking a judgment declaring, in essence, that GEICO is not required under the No-Fault Law and regulations to pay a facility fee for office-based surgery performed at Avanguard’s office. Avanguard had named GEICO as a defendant in numerous actions and arbitrations in which Avanguard sought to collect facility fees after GEICO refused to pay such fees. In 2012, GEICO moved in this action for a stay of numerous related district court and civil court actions and arbitrations, and for a preliminary{**127 AD3d at 63} injunction against the commencement of new actions and arbitrations, pending the determination of this action. The Supreme Court denied GEICO’s motion (2012 NY Slip Op 31516[U] [2012]), and GEICO appealed from that determination (see Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 125 AD3d 803 [2d Dept 2015, No. 2012-06819] [decided herewith]). GEICO subsequently moved for summary judgment declaring that it is not required to pay facility fees for office-based surgery. In the order appealed from, the Supreme Court denied GEICO’s motion, in large part on the ground that its denial of the motion for a stay and preliminary injunction was, in effect, the law of the case (2013 NY Slip Op 33849[U] [2013]).

To determine whether a fee for the use of medical facilities may be reimbursed as a component of “basic economic loss,” we need to examine the meaning of “basic economic loss.” Under the No-Fault Law (Insurance Law § 5101 et seq.), an insurer must pay first-party benefits of up to $50,000 per person to reimburse a person for covered “basic economic loss” (Insurance Law § 5102 [a]), subject to the limitations of Insurance Law § 5108. One of the components of basic economic loss is, as relevant here, “[a]ll necessary expenses incurred for . . . medical, hospital . . . , surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services . . . and . . . any other professional health services” (Insurance Law § 5102[a] [1]).^[FN2]

Insurance Law § 5108 provides, with some exceptions, that charges for services covered under Insurance Law § 5102 “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents” (Insurance Law § 5108 [a]).^[FN3] Where workers’ compensation schedules have not been prepared for certain services covered under Insurance Law § 5102, Insurance Law § 5108 requires that the Superintendent of Financial Services establish schedules after consulting with the [*3]Chairperson of the Workers’ Compensation Board and the Commissioner of Health (see Insurance Law § 5108 [b]). The implementing and coordinating regulations of the{**127 AD3d at 64} Department of Financial Services^[FN4] 11 NYCRR 65-3.16 (regulation No. 68-C, “Measurement of no-fault benefits”)—refer, in turn, to “Regulation [No.] 83.” Regulation No. 83 (11 NYCRR 68.0) adopts the workers’ compensation schedules that were already in existence (see 11 NYCRR 68.1 [“Adoption of certain workers’ compensation schedules”]; 12 NYCRR 329.3 [“Medical fee schedule; incorporation by reference”]), and establishes schedules for services not already contained in workers’ compensation schedules (11 NYCRR 68.2 [“Establishment of certain health provider schedules”]).

The fee schedules do not provide for facility fees for office-based surgery performed in a practice and a setting accredited under Public Health Law § 230-d. Nonetheless, Avanguard contends that facility fees are included within the Insurance Law § 5102 definition of “basic economic loss” because they are a “necessary expense[ ] incurred for . . . medical, . . . surgical [and] nursing . . . services” (Insurance Law § 5102 [a] [1]). Further, Avanguard points out that regulation No. 83 includes a default provision in recognition that not all covered services will be contained in the applicable fee schedules. This provision—11 NYCRR 68.5 (“Health services not set forth in schedules”)—provides a mechanism for determination of appropriate fees for those services that are included within the definition of “basic economic loss” but are not contained in a schedule. Avanguard contends that, under this “default” regulation, it is entitled to a facility fee and that this fee is the same fee provided to ambulatory surgical centers under article 28 of the Public Health Law.

Avanguard’s contention is untenable. First, Avanguard fails to take into account that the definition in Insurance Law § 5102 of “basic economic loss” expressly incorporates the limitations imposed by Insurance Law § 5108. As previously discussed, Insurance Law § 5108 provides that, with only limited exceptions, charges shall not exceed the amounts set forth in the workers’ compensation schedules. Accordingly, the determination of what is a necessary expense must take Insurance Law § 5108 into account. There is no provision in the workers’ compensation schedules expressly providing for payment of facility fees for office-based surgery performed in a practice and setting accredited under Public Health Law § 230-d. The {**127 AD3d at 65}absence of such a provision supports GEICO’s argument that a facility fee is not a necessary expense for medical services performed by a practice and in a facility accredited under Public Health Law § 230-d.

Moreover, the default provision upon which Avanguard relies is inapplicable, by its own terms. That provision, contained in 11 NYCRR 68.5, provides a mechanism for setting a fee for necessary services for which no fee schedule is specifically set forth in the workers’ compensation fee schedules. It says:

“Section 68.5. Health services not set forth in schedules

“If a professional health service is performed which is reimbursable under section 5102(a)(1) of the Insurance Law, but is not set forth in fee schedules adopted or established by the superintendent, and:

“(a) if the superintendent has adopted or established a fee schedule applicable to the provider, then the provider shall establish a fee or unit value consistent with other fees or unit values for comparable procedures shown in such schedule, subject to review by the insurer; or

“(b) if the superintendent has not adopted or established a fee schedule applicable to the provider, then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5 [emphasis added]).

Under this regulation, a provider may be entitled to reimbursement in situations when there is no fee schedule for a particular service. Avanguard cannot accurately assert that there is no existing fee schedule that determines the amount of a facility fee. Indeed, it is undisputed that Avanguard has consistently billed GEICO for facility fees based on the existing fee schedule and “PAS” codes that are applicable to Public Health Law article 28 ambulatory surgical centers (see 10 NYCRR 86-4.1, 86-4.40). Accordingly, there is indeed a fee schedule for facility fees. That schedule, however, is not applicable to Avanguard. Thus, a prerequisite to application of the default provision is absent.{**127 AD3d at 66}

The conclusion that the default provision is inapplicable makes sense in light of its purpose. The default provision relates to particular procedures that do not appear on any existing fee schedule (see 11 NYCRR 68.5 [a], [b]). A facility fee is not a fee for a particular medical procedure, but a blanket charge added to the billing for all procedures. In other words, Avanguard contends that, under the default regulation, an entire category of fees should be deemed compensable. We reject such a broad interpretation of the default provision, because the obvious intent of the default provision is to fill in discrete gaps in the schedules, not to make an entirely new category of “service” compensable (11 NYCRR 68.5).

We decline to read the default provision so broadly for another reason. We glean no legislative intent to require payment of facility fees, which are part of the comprehensive statutory and regulatory framework under Public Health Law article 28 pertaining to specific types of medical facilities, to practices and settings entirely separate from Public Health Law article 28. Article 28 facilities are subject to detailed and extensive requirements governing the establishment, licensing, and operation of facilities (see e.g. 10 NYCRR 400.18, 709.5; part 755). Avanguard is not an article 28 facility.

Avanguard’s remaining contention does not require extensive discussion. Avanguard contends that, in 2007, the legislature created a new class of medical facility, an “office based surgical facility,” when it enacted Public Health Law § 230-d (see L 2007, ch 365, § 2). Further, it asserts that its accreditation under Public Health Law § 230-d entitles it to a facility fee. As we have already discussed, however, only article 28 facilities are entitled to a facility fee under the existing no-fault laws and regulations. Thus, we need not decide whether the legislature created a new class of medical facility under Public Health Law § 230-d when it required accreditation of practices and settings in which office-based surgery is performed. Further, it would be improper for us, on our own, to determine that a facility such as Avanguard is entitled to a benefit of Public Health Law article 28 when it is not subject to the significant regulatory burdens and costs of that article. Instead, it is for the legislature and the Superintendent of Financial Services to determine whether the laws and regulations should be{**127 AD3d at 67} changed to entitle an accredited Public Health Law § 230-d facility to a facility fee.^[FN5]

Inasmuch as GEICO established on its motion for summary judgment, prima facie, that it is not required to reimburse Avanguard for facility fees, and Avanguard did not raise a triable issue of fact in opposition, GEICO’s motion should have been granted.

Accordingly, the order is reversed, on the law, GEICO’s motion for summary judgment declaring that it is not required to reimburse the defendant for facility fees as payable first-party benefits under Insurance Law § 5102 is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that GEICO is not required to reimburse Avanguard for facility fees as payable first-party benefits under Insurance Law § 5102.

Dickerson, Leventhal and Roman, JJ., concur.

Ordered that the order is reversed, on the law, with costs, the plaintiffs’ motion for summary judgment declaring that they are not required to reimburse the defendant for facility fees as payable first-party benefits under Insurance Law § 5102 is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiffs are not required to reimburse the defendant for facility fees as payable first-party benefits under [*5]Insurance Law § 5102.

Footnotes

Footnote 1:Under Public Health Law § 230-d (1) (h),

“ ’Office-based surgery’ means any surgical or other invasive procedure, requiring general anesthesia, moderate sedation, or deep sedation, and any liposuction procedure, where such surgical or other invasive procedure or liposuction is performed by a licensee in a location other than a hospital, as such term is defined in article twenty-eight of this chapter, excluding minor procedures and procedures requiring minimal sedation.”

Footnote 2:Insurance Law § 5102 (a) (1) also encompasses psychiatric treatment, physical therapy, and occupational therapy and rehabilitation, as well as certain nonmedical remedial care and treatment in accordance with religious methods of healing (see Insurance Law § 5102 [a] [1] [ii], [iii]).

Footnote 3:The workers’ compensation schedules are referred to in the regulations of the Commissioner of Labor and incorporated into that regulation by reference (see 12 NYCRR 329.3).

Footnote 4:In 2011, the Insurance Department and the Banking Department merged into the newly created “Department of Financial Services” (see L 2011, ch 62, § 1, part A, §§ 1, 13, 104 [d]).

Footnote 5:The Office of General Counsel of the Department of Financial Services has opined that the Insurance Law does not require an insurer to pay a facility fee for surgery performed in a physician’s office (see Ops Gen Counsel NY Ins Dept No. 08-10-06 [Oct. 2008]).

[*1]

Peter C. Merani, P.C., New York, N.Y. (Mark J. Fenelon and Eric Wahrburg of counsel), for appellant.

Subin Associates, LLP, New York, N.Y. (Gregory T. Cerchione and Asya Domashitsky of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated July 23, 2012, confirming an award of an arbitrator dated April 5, 2012, the petitioner appeals from an order of the Supreme Court, Nassau County (Phelan, J.), entered March 18, 2013, which denied the petition and confirmed the master arbitrator’s award.

Ordered that the order is affirmed, with costs.

In this case, the nonparty, Carmen Carvajal, allegedly was injured in a motor vehicle accident on February 22, 2011, and thereafter sought treatment from the Westchester Medical Group, incorrectly named herein as Westchester Medical Group, M.D. (hereinafter Westchester). As assignee of Carvajal, Westchester sought from her insurance carrier, the petitioner Allstate Insurance Company (hereinafter Allstate), no-fault benefits in the sum of $352.81 for medical services rendered to Carvajal. However, Allstate maintained that it had no duty to pay this sum since its request to Westchester for “additional verification” allegedly remained outstanding (see 11 NYCRR 65-3.5 [f]). In an award dated April 25, 2012, the arbitrator concluded that Westchester did in fact comply with the requests for additional verification, and that Allstate “did not appear to be acting in good faith.” That award was confirmed in an award issued by a master arbitrator on July 23, 2012. The Supreme Court denied Allstate’s petition to vacate the master arbitrator’s award and confirmed the award. We affirm.

“Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied” (Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017 [2009]; see Matter of Green v Liberty Mut. Ins. Co., 22 AD3d 755, 755-756 [2005]; Matter of Domotor v State Farm Mut. Ins. Co., 9 AD3d 367 [2004]). Here, Allstate failed to demonstrate the existence of any of the statutory grounds for vacating the master arbitrator’s award. In addition, the determination of the master arbitrator confirming the original arbitration award had evidentiary support and a rational basis (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231-232 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 [*2]NY2d 207, 211 [1981]; Matter of Fireman’s Fund Ins. Co. v Allstate Ins. Co., 46 AD3d 560, 561 [2007]). “It is not for [the court] to decide whether [the master] arbitrator erred [in applying the applicable law]” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 535 [2010]). Accordingly, the Supreme Court properly denied the petition and confirmed the award. Mastro, J.P., Roman, Sgroi and Barros, JJ., concur.