American Transit Insurance Company, Petitioner, against Dr. Jong Won Yom, DC, LAC, RPH, MS a/a/o Mann Joung Chon, Respondent. American Transit Insurance Company, Petitioner, against Integrated Medicine of S.I., PC a/a/o Segundo Matute, Respondent. American Transit Insurance Company, Petitioner, against YD Medical Services PC a/a/o Stuart Simpson Keralyn, Respondent.

Index Nos. 532051/2022, 500128/2023, 535310/2022

Manning & Kass, Ellrod, Ramirez, Trester, LLP, New York City (Jeanette L. Dixon and Ellen Burach-Zion of counsel), Larkin Farrell LLC, New York City (Joseph P. Farrell, III of counsel), and Morrison Mahoney, LLP New York City (James A. McKenney and Robert A. Stern of counsel), for petitioner.

Roman Kravchenko, Melville (Jason Tenenbaum of counsel), for respondents.

L’Abbate Balkan Colavita & Contini, LLP, Melville (James D. Spithogiannis of counsel), for Jason Tenenbaum and Roman Kravchenko, non-party attorneys.

Aaron D. Maslow, J.

The following NYSCEF Documents were used on these motions:^[FN1]

American Transit Insurance Company v Dr. Jong Won Yom, DC, LAC, RPH, MS a/a/o Mann Joung Chon (Index No. 532051/2022)
No. 1: Petition (filed by Petitioner, 11/3/2022)
No. 2: Notice of petition (filed by Petitioner, 11/3/2022)
No. 3: Exhibit A — Arbitration award (filed by Petitioner, 11/3/2022)
No. 4: Exhibit B — Master arbitration award (filed by Petitioner, 11/3/2022)
No. 5: Exhibit C — Respondent’s arbitration submission (filed by Petitioner, 11/3/2022)
No. 6: Exhibit D — Petitioner’s arbitration submission (filed by Petitioner, 11/3/2022)
No. 13: Notice of cross-petition (filed by Respondent, 1/20/2023)
No. 14: Cross-petition (filed by Respondent, 1/20/2023)
No. 15: Affirmation of William Larkin in opposition to cross-petition & reply in support of petition (filed by Petitioner, 1/23/2023)
No. 16: Reply in support of cross-petition (filed by Respondent, 5/3/2023)
No. 17: Order on petition & cross-petition (filed by clerk, 6/13/2023)
No. 19: Judgment (filed by clerk, 7/18/2023)
No. 20: Notice of motion to hold Petitioner in contempt (filed by Respondent, 9/8/2023)
No. 21: Affirmation in support of motion to hold Petitioner in contempt (filed by Respondent, 9/8/2023)
No. 22: Exhibit A — Information subpoena (filed by Respondent, 9/8/2023)
No. 23: Exhibit B — USPS receipt & proof of delivery (filed by Respondent, 9/8/2023)
No. 24: Letter from Petitioner’s counsel to Respondent’s counsel seeking withdrawal of information subpoena and motion to hold Petitioner in contempt (filed by Petitioner, 9/28/2023)
No. 25: Letter from Petitioner’s counsel to Respondent’s counsel asserting that Respondent’s counsel has conflict of interest and seeking withdrawal of their representation (filed by Petitioner, 11/20/2023)
No. 27: Notice of cross-motion by Petitioner for protective order and quashing subpoena (filed by Petitioner, 11/22/2023)
No. 28: Affirmation of William Larkin in opposition to motion to hold Petitioner in contempt & in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 29: Affidavit of Madanawelly Armogan in opposition to motion to hold Petitioner in contempt & in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 30: Exhibit A — checks (filed by Petitioner, 11/21/2023)
No. 31: Affirmation of Roman Kravchenko in opposition to cross-motion for protective order and quashing subpoena & in further support of motion to hold Petitioner in contempt (filed by Respondent, 11/21/2023)
No. 32: Letter from Petitioner’s counsel to Respondent’s counsel requesting satisfaction of judgment (filed by Petitioner, 11/21/2023)
No. 34: Affirmation of William Larkin in reply in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 12/6/2023)
No. 35: Proposed order to show cause on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 36: Emergency affirmation of William Larkin in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 37: Affirmation of William Larkin in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 38: Affidavit of Madanawelly Armogan in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 39: Exhibit A — checks (filed by Petitioner, 12/7/2023)
No. 40: Exhibit B — emails between Petitioner’s counsel and Respondent’s counsel (filed by Petitioner, 12/7/2023)
No. 41: Letter re proposed order to show cause (filed by Petitioner, 12/7/23).
No. 43: Amended affirmation of Roman Kravchenko in opposition to cross-motion for protective order and quashing subpoena & in further support of motion to hold Petitioner in contempt (filed by Respondent, 12/9/2023)
No. 44: Notice of appeal (filed by Respondent, 12/10/23)
No. 45: Signed order to show cause on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/13/2023)
No. 46: Affirmation of Roman Kravchenko in opposition to motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Respondent, 12/13/2023)
No. 47: Conformed copy of signed order to show cause and supporting papers on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by [*2]Petitioner, 12/14/2023)
No. 49: Affirmation of William Larkin in reply in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 1/16/2024)
No. 50: Interim order (filed by Court, 3/26/2024)
No. 52: Interim order (filed by Court, 4/15/2024)
No. 53: Letter from Respondent’s counsel to Court (filed by Respondent, 5/7/2024)
No. 54: Interim order (filed by Court, 5/13/2024)
No. 58: Satisfaction of judgment (filed by Respondent, 5/20/2024)
No. 59: Transcript of proceedings, 1/17/2024 (filed by Court, 5/26/2024)
No. 60: Transcript of proceedings, 5/20/2024 (filed by Court, 5/26/2024)

American Transit Insurance Company v Integrated Medicine of S.I., PC a/a/o Segundo Matute (Index No. 500128/2023)
No. 1: Petition (filed by Petitioner, 1/3/2023)
No. 2: Notice of petition (filed by Petitioner, 1/3/2023)
No. 3: Exhibit A — Arbitration award (filed by Petitioner, 1/3/2023)
No. 4: Exhibit B — Master arbitration award (filed by Petitioner, 1/3/2023)
No. 5: Exhibit C — Respondent’s arbitration submission (filed by Petitioner, 1/3/2023)
No. 6: Exhibit D — Petitioner’s arbitration submission (filed by Petitioner, 1/3/2023)
No. 13: Notice of cross-petition (filed by Respondent, 5/26/2023)
No. 14: Cross-petition (filed by Respondent, 5/26/2023)
No. 15: Affirmation of Anthony R. Troise in opposition to cross-petition & reply in support of petition (filed by Petitioner, 6/1/2023)
No. 16: Order on petition & cross-petition (filed by clerk, 6/23/2023)
No. 18: Judgment (filed by clerk, 7/18/2023)
No. 20: Notice of motion to hold Petitioner in contempt (filed by Respondent, 9/8/2023)
No. 21: Affirmation in support of motion to hold Petitioner in contempt (filed by Respondent, 9/8/2023)
No. 22: Exhibit A — Information subpoena (filed by Respondent, 9/8/2023)
No. 23: Exhibit B — USPS receipt & proof of delivery (filed by Respondent, 9/8/2023)
No. 24: Letter from Petitioner’s counsel to Respondent’s counsel seeking withdrawal of information subpoena and motion to hold Petitioner in contempt (filed by Petitioner, 9/28/2023)
No. 25: Letter from Petitioner’s counsel to Nassau County Sheriff (filed by Petitioner, 9/28/2023)
No. 26: Letter from Petitioner’s counsel to Respondent’s counsel asserting that Respondent’s counsel has conflict of interest and seeking withdrawal of their representation (filed by Petitioner, 11/17/2023)
No. 28: Notice of cross-motion by Petitioner for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 29: Affirmation of William Larkin in opposition to motion to hold Petitioner in contempt & in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 30: Affidavit of Madanawelly Armogan in opposition to motion to hold Petitioner in contempt & in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 31: Exhibit A — checks (filed by Petitioner, 11/21/2023)
No. 32: Affirmation of Roman Kravchenko in opposition to cross-motion for protective order [*3]and quashing subpoena & in further support of motion to hold Petitioner in contempt (filed by Respondent, 11/21/2023)
No. 33: Letter from Petitioner’s counsel to Respondent’s counsel requesting satisfaction of judgment (filed by Petitioner, 11/28/2023)
No. 35: Affirmation of William Larkin in reply in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 12/6/2023)
No. 36: Proposed order to show cause on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 37: Emergency affirmation of William Larkin in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 38: Affirmation of William Larkin in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 39: Affidavit of Madanawelly Armogan in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 40: Exhibit A — checks (filed by Petitioner, 12/7/2023)
No. 41: Exhibit B — emails between Petitioner’s counsel and Respondent’s counsel (filed by Petitioner, 12/7/2023)
No. 42: Letter re proposed order to show cause (filed by Petitioner, 12/7/23).
No. 44: Amended affirmation of Roman Kravchenko in opposition to cross-motion for protective order and quashing subpoena & in further support of motion to hold Petitioner in contempt (filed by Respondent, 12/9/2023)
No. 45: Signed order to show cause on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/13/2023)
No. 46: Affirmation of Roman Kravchenko in opposition to motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Respondent, 12/13/2023)
No. 47: Conformed copy of signed order to show cause and supporting papers on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/14/2023)
No. 49: Affirmation of William Larkin in reply in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 1/16/2024)
No. 50: Interim order (filed by Court, 3/26/2024)
No. 52: Interim order (filed by Court, 4/22/2024)
No. 53: Letter from Respondent’s counsel to Court (filed by Respondent, 5/7/2024)
No. 54: Interim order (filed by Court, 5/13/2024)
No. 58: Satisfaction of judgment (filed by Respondent, 5/20/2024)
No. 59: Transcript of proceedings, 1/17/2024 (filed by Court, 5/26/2024)
No. 60: Transcript of proceedings, 5/20/2024 (filed by Court, 5/26/2024)

American Transit Insurance Company v YD Med. Services PC a/a/o Stuart Simpson Keralyn (Index No. 535310/2022)
No. 1: Petition (filed by Petitioner, 12/5/2022)
No. 2: Notice of petition (filed by Petitioner, 12/5/2022)
No. 3: Exhibit A — Arbitration award (filed by Petitioner, 12/5/2022)
No. 4: Exhibit B — Master arbitration award (filed by Petitioner, 12/5/2022)
No. 5: Exhibit C — Respondent’s arbitration submission (filed by Petitioner, 12/5/2022)
No. 6: Exhibit D-1 — Petitioner’s arbitration submission (filed by Petitioner, 12/5/2022)
No. 7: Exhibit D-2 — Petitioner’s arbitration submission (filed by Petitioner, 12/5/2022)
No. 8: Exhibit D-3 — Petitioner’s arbitration submission (filed by Petitioner, 12/5/2022)
No. 14: Notice of cross-petition (filed by Respondent, 3/6/2023)
No. 15: Cross-petition (filed by Respondent, 3/6/2023)
No. 16: Affirmation of David Fair in opposition to cross-petition & reply in support of petition (filed by Petitioner, 5/19/2023)
No. 17: Reply in support of cross-petition (filed by Respondent, 5/31/2023)
No. 18: Order on petition & cross-petition (filed by clerk, 6/13/2023)
No. 20: Judgment (filed by clerk, 7/31/2023)
No. 21: Notice of motion to hold Petitioner in contempt (filed by Respondent, 9/8/2023)
No. 22: Affirmation in support of motion to hold Petitioner in contempt — no signature (filed by Respondent, 9/8/2023)
No. 23: Exhibit A — Information subpoena (filed by Respondent, 9/8/2023)
No. 24: Exhibit B — USPS receipt & proof of delivery (filed by Respondent, 9/8/2023)
No. 25: Affirmation in support of motion to hold Petitioner in contempt — with signature (filed by Respondent, 9/16/2023)
No. 26: Letter from Petitioner’s counsel to Respondent’s counsel seeking withdrawal of information subpoena and motion to hold Petitioner in contempt (filed by Petitioner, 11/14/2023)
No. 27: Letter from Petitioner’s counsel to Respondent’s counsel asserting that Respondent’s counsel has conflict of interest and seeking withdrawal of their representation (filed by Petitioner, 11/17/2023)
No. 29: Notice of cross-motion by Petitioner for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 30: Affirmation of William Larkin in opposition to motion to hold Petitioner in contempt & in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 31: Affidavit of Madanawelly Armogan in opposition to motion to hold Petitioner in contempt & in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 32: Exhibit A — checks (filed by Petitioner, 11/21/2023)
No. 33: Affirmation of Roman Kravchenko in opposition to cross-motion for protective order and quashing subpoena & in further support of motion to hold Petitioner in contempt (filed by Respondent, 11/21/2023)
No. 34: Letter from Petitioner’s counsel to Respondent’s counsel requesting satisfaction of judgment (filed by Petitioner, 11/28/2023)
No. 36: Affirmation of William Larkin in reply in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 12/7/2023)
No. 38: Proposed order to show cause on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/8/2023)
No. 39: Emergency affirmation of William Larkin in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/8/2023)
No. 40: Affirmation of William Larkin in support of motion to stay judgment execution, direct [*4]satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/8/2023)
No. 41: Affidavit of Madanawelly Armogan in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/8/2023)
No. 42: Exhibit A — checks (filed by Petitioner, 12/8/2023)
No. 43: Exhibit B — emails between Petitioner’s counsel and Respondent’s counsel (filed by Petitioner, 12/8/2023)
No. 44: Letter re proposed order to show cause (filed by Petitioner, 12/7/23).
No. 46: Amended affirmation of Roman Kravchenko in opposition to cross-motion for protective order and quashing subpoena & in further support of motion to hold Petitioner in contempt (filed by Respondent, 12/9/2023)
No. 47: Signed order to show cause on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/13/2023)
No. 48: Conformed copy of signed order to show cause and supporting papers on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/14/2023)
No. 50: Affirmation of Roman Kravchenko in opposition to motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Respondent, 12/14/2023)
No. 51: Affirmation of William Larkin in reply in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 1/16/2024)
No. 52: Interim order (filed by Court, 3/26/2024)
No. 54: Interim order (filed by Court, 4/22/2024)
No. 55: Letter from Respondent’s counsel to Court (filed by Respondent, 5/10/2024)
No. 56: Interim order (filed by Court, 5/13/2024)
No. 60: Satisfaction of judgment (filed by Respondent, 5/20/2024)
No. 61: Transcript of proceedings, 1/17/2024 (filed by Court, 5/26/2024)
No. 62: Transcript of proceedings, 5/20/2024 (filed by Court, 5/26/2024)

Introduction

This decision and order concerns motions made in three special proceedings commenced by Petitioner American Transit Insurance Company (“Petitioner”) against Respondent medical providers (“Respondents”) to vacate No-Fault insurance arbitration determinations which Petitioner lost.^[FN2] Motion Seq. 1 and Motion Seq. 2 in each special proceeding, respectively the original petition and cross-petition, were previously determined in 2023 in favor of the respective medical provider, with resulting judgments having been entered by the County Clerk after the petitions were denied and the cross-petitions granted.

The motions at issue before the Court which are the subject of this decision and order — Motion Seqs. 3, 4, and 5 — came about amidst the backdrop of hostility between Petitioner and the two attorneys representing the several medical providers herein (Respondents) and other providers of medical services who treated motor vehicle accident victims (respondents in other Article 75 special proceedings commenced by Petitioner herein), the providers having prevailed in No-Fault insurance arbitrations against Petitioner. Until more recently, when it retained additional counsel, Petitioner was represented by Larkin Farrell LLC. Respondents have been represented by Roman Kravchenko, Esq., who works together with Jason Tenenbaum, Esq.^[FN3] In each special proceeding which is the subject of this decision and order, the respective medical provider, represented by Attorneys Kravchenko and Tenenbaum, moved for a contempt finding and the imposition of a fine against Petitioner for not responding to an information subpoena (Motion Seq. 3 in each one), and Petitioner moved for a protective order and to quash the information subpoena (Motion Seq. 4 in each one), and to stay judgment execution, direct a satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (Motion Seq. 5 in each one).^[FN4]

The three special proceedings are captioned above. For purposes of facilitating clarity, they will be referred to by their index numbers.^[FN5]

Background Information & Chronology of Proceedings

On May 26, 2022, Arbitrator Gregory Watford awarded Respondent Dr. Jong Won Yom, DC, LAC, RPH, MS $3,628.80 in No-Fault insurance compensation for performing acupuncture services on Mann Joung Chon, a patient allegedly injured in a motor vehicle accident on November 2, 2019 (see Index No. 532051/2022 Doc No. 3). His determination was affirmed by Master Arbitrator A. Jeffrey Grob on August 26, 2022 (see Index No. 532051/2022 Doc No. 4).

On August 17, 2022, Arbitrator Richard Martino awarded Respondent Integrated Medicine of S.I., PC $3,452.31 in No-Fault insurance compensation for performing EMG/NCV testing on Segundo Matute, a patient allegedly injured in a motor vehicle accident on November 18, 2019 (see Index No. 500128/2023 Doc No. 3). The arbitration determination was affirmed by Master Arbitrator Robyn D. Weisman on November 1, 2022 (see Index No. 500128/2023 Doc No. 4).

On July 20, 2022, Arbitrator John Hyland awarded Respondent YD Medical Services PC $4,716.48 in No-Fault insurance compensation for performing office visits and range of motion, muscle, physical performance, and outcome assessment testing on Stuart Simpson Keralyn, a patient allegedly injured in a motor vehicle accident on January 21, 2018 (see Index No. 535310/2022 Doc No. 3). The arbitration determination was affirmed by Master Arbitrator Robyn D. Weisman on September 29, 2022 (see Index No. 535310/2022 Doc No. 4).

In each of the aforementioned arbitrations, the respective medical provider was also awarded statutory interest, attorney’s fees, and the return of the filing fee (see Index No. 532051/2022 Doc Nos. 3-4; Index No. 500128/2023 Doc Nos. 3-4; Index No. 535310/2022 Doc Nos. 3-4).

After the master arbitration awards in the above three arbitrations were issued, Petitioner commenced the within Article 75 special proceedings to vacate them. The petitions were assigned Motion Seq. 1 in each special proceeding. Corresponding cross-petitions were assigned Motion Seq. 5. In each instance this Court ruled against Petitioner (see Index No. 532051/2022 Doc No. 17; Index No. 500128/2023 Doc No. 16; Index No. 535310/2022 Doc No. 18). Judgments then were entered against Petitioner by the respective Respondents in all three special proceedings, the amounts and dates of entry being $7,610.39, July 18, 2023 (see Index No. 532051/2022 Doc No. 19); $6,595.52, July 18, 2023 (see Index No. 500128/2023 Doc No. 18); and $8,945.13, July 31, 2023 (see Index No. 535310/2022 Doc No. 20). The judgment amounts continued to accrue interest until paid (see id.).

When the judgments were not paid within a short period of time, the respective Respondents issued information subpoenas with restraining notices. In Index No. 532051/2022, the information subpoena with restraining notice was issued on August 3, 2023 and served on August 4, 2023, the judgment having been entered on July 18, 2023; in other words, the information subpoena with restraining notice was issued 16 days after entry of judgment (see Index No. 532051/2022 Doc Nos. 19, 22). In Index No. 500128/2023, the information subpoena with restraining notice was issued on August 3, 2023 and served on August 4, 2023, the judgment having been entered on July 18, 2023; in other words, the information subpoena with restraining notice was issued 16 days after entry of judgment (see Index No. 500128/2023 Doc Nos. 18, 22). In Index No. 535310/2022, the information subpoena with restraining notice was issued on August 3, 2023 and served on August 4, 2023, the judgment having been entered on July 31, 2023; in other words, the information subpoena with restraining notice was issued three days after entry of judgment (see Index No. 535310/2022 Doc Nos. 20, 23).

Motions to hold Petitioner in contempt for failing to comply with the information subpoenas were filed and served by the respective Respondents on September 8, 2023 (see Index No. 532051/2022 Doc No. 20; Index No. 500128/2023 Doc No. 20; Index No. 535310/2022 Doc No. 21). In each special proceeding, the contempt motion was designated Motion Seq. 3. Thereafter, Petitioner’s counsel issued letters to the Respondents’ counsel requesting that the latter withdraw the information subpoenas and the concomitant motions seeking to hold Petitioner in contempt. In Index Nos. 532051/2022 and 500128/2023, Petitioner’s counsel’s letters were issued on September 26, 2023 (see Index No. 532051/2022 Doc No. 24; Index No. 500128/2023 Doc No. 24). In Index No. 535310/2022, Petitioner’s counsel’s letter was issued on November 14, 2023 (see Index No. 535310/2022 Doc No. 26).

The September 26, 2023 letters from Petitioner’s counsel to Respondents’ counsel, Roman Kravchenko, read as follows:

Dear Mr. Kravchenko, Esq.,

Please allow this to serve as our request that you withdraw your Information Subpoena, pursuant to CPLR § 2304, and the subsequent Motion for Contempt.

As you should already be aware, the claims that form the basis of the underlying action have already been paid. See the cashed checks attached.

As such, the information subpoena is not necessary to aid the judgment creditor in collecting on the judgment and is, therefore, moot.

Please withdraw the information subpoena and motion to avoid burdening the Court with unnecessary motion practice.

Sincerely,

/s/

William Larkin

(Index No. 532051/2022 Doc No. 24; Index No. 500128/2023 Doc No. 24.)

The November 14, 2023 letter from Petitioner’s counsel to Respondents’ counsel, Roman Kravchenko, read as follows:

Dear Mr. Kravchenko, Esq.,

Please allow this to serve as our request that you withdraw your Information Subpoena, pursuant to CPLR § 2304, and the subsequent Motion for Contempt.

Please also allow this to serve as our formal request to file a Satisfaction of Judgment with the clerk of the Court as required by CPLR § 5020(a).

As you should already be aware, the claims that form the basis of the underlying action have already been paid. See the cashed checks attached.

As such, the information subpoena is not necessary to aid the judgment creditor in collecting on the judgment and is, therefore, moot.

Your failure to acknowledge the payment and file the Satisfaction of Judgment with the clerk is prejudicial to my client.

Please file the Satisfaction of Judgment and withdraw the information subpoena and motion to avoid burdening the Court with unnecessary motion practice.

Sincerely,

/s/

William Larkin

(Index No. 535310/2022 Doc No. 26.)

In response to Respondents’ motions filed on September 8, 2023 to hold Petitioner in [*5]contempt for failing to comply with the information subpoenas, Petitioner claiming that the judgments were paid and Respondents did not file even partial satisfactions of judgment, on November 21, 2023, Petitioner filed cross-motions in each of the three special proceedings “for a PROTECTIVE ORDER pursuant to CPLR §3103, or in the alternative, for an Order, pursuant to CPLR §2304, to QUASH the Information Subpoena served on Petitioner by Respondent and for such other and further relief as this Court may deem just and proper” (Index No. 532051/2022 Doc No. 27; Index No. 500128/2023 Doc No. 28; Index No. 535310/2022 Doc No. 29). In each special proceeding, Petitioner’s motion was designated Motion Seq. 4 (see id.). Petitioner’s motion papers included, in each instance, an affidavit of merit from Madanawelly Armogan, an employee in its claims department, who attested to Petitioner’s payments toward the respective judgment. Copies of cleared checks were attached. Counsel’s affirmations claimed that the judgments were fully paid, that Respondents did not provide a satisfaction of judgment or even a partial satisfaction of judgment, that Respondents insisted on enforcing the information subpoena, and, upon information and belief, that Respondents referred the matter to a marshal for collection. (See Index No. 532051/2022 Doc Nos. 28-30; Index No. 500128/2023 Doc Nos. 29-31; Index No. 535310/2022 Doc Nos. 30-32.)

With respect to each of the three judgments, Petitioner’s counsel again wrote to Respondents’ counsel, seeking that he issue satisfactions of judgment. Dated November 28, 2023, the letters stated as follows:

Dear Mr. Kravchenko, Esq.,

We previously served your office via NYSCEF with a demand to withdraw you[r] Information Subpoena and Contempt Motion and provide a Satisfaction of Judgment.

We did not receive a response to that demand.

We produced the cancelled checks with that prior demand. A second copy of the checks is attached hereto.

Please note that CPLR § 5020(a) requires you to file a Satisfaction of Judgment. The production of the Satisfaction of Judgment is not optional.

It should be clear from the amount of the checks in comparison to the amount of the judgment that the judgment has been fully satisfied. Should you feel that any portion of the judgment is still owed, please note that CPLR § 5020(a) requires you to file a Partial Satisfaction of Judgment in that circumstance.

Your failure to produce the Satisfaction of Judgment, or Partial Satisfaction of Judgment, obviously prejudices my client. This is especially true considering your willingness to enforce information subpoenas, refer to the Marshal for collection, freeze bank accounts and utilize other enforcement tools to execute on judgments that have already been satisfied.

I’ve discussed this issue with Mr. Tenenbaum in the past. He seems to think that it is okay to require Petitioner to file the necessary paperwork to stay the execution of the judgment and seek the satisfaction of judgment from the Court. He also seemed amused by the fact that the additional motion practice would create additional fees that he could claim pursuant to 11 NYCRR 65-4.10(j)(4).

We urge you to consider that the obligation to file the Satisfaction of Judgment is an affirmative obligation required by CPLR § 5020(a). It is not okay for you to intentionally fail to file this document while also attempting to collect on amounts that were already paid.

We also urge you to consider your conduct in light of Rule 130-1.1. You have already been reprimanded by Judge Barry for similar conduct in American Transit [I]nsurance Company vs. YSC Trinity Acupuncture, PC a/a/o Shaba Hill, Index 502863/2022 and by Judge Sweeney in American Transit Insurance Company vs. Dr. Jong Won Yom, DC, LAC, RPH, MS a/a/o Mann Jouyng Chon, Index 532032/2022. It should be clear that the Court does not agree that this conduct is acceptable.

Please file the Satisfaction of Judgment and withdraw the information subpoena and motion to avoid burdening the Court with unnecessary motion practice.

Sincerely,

/s/

William Larkin

(Index No. 532051/2022 Doc No. 32; Index No. 500128/2023 Doc No. 33; Index No. 535310/2022 Doc No. 34.)

The record on these motions includes email correspondence between Petitioner’s counsel and Respondents’ two counsels from November 28, 2023. The Court herewith reproduces same:

From: William Larkin [email address omitted]

Sent: Tuesday, November 28, 2023 11:05 AM

To: [email address omitted]; Jason Tenenbaum [email address omitted]

Cc: Roman Kravchenko [email address omitted]

Subject: 2nd Demands for Satisfaction of Judgment

Roman/Jason,

See attached [presumably the letters dated November 28, 2023, seeking a satisfaction of judgment or a partial satisfaction of judgment]. I’m sending these as a courtesy. The Court has not been happy with contempt motions. I just wanted to make sure you are aware that the CPLR requires you to file the satisfaction of judgment. It’s an affirmative obligation. When I spoke to Jason on the phone a month or two ago he seemed to think it was optional and that he wasn’t doing anything wrong by making us file the papers. I strongly disagree with that position and I think it is clear now that the Court does as well.

I hope you will file the necessary Satisfactions of Judgment and withdraw the contempt motions.

I just received another 20 information subpoenas on judgments that, like these, were paid in full. Let me know if you will provide a satisfaction of judgment on those as well once I produce the checks.

Sincerely,

William R. Larkin, III

Larkin Farrell LLC

Attorneys at Law———————————————————————————————————————

From: Jason Tenenbaum [email address omitted]

Sent: Tuesday, November 28, 2023 11:44 AM

To: William Larkin [email address omitted]; [email address omitted]

Cc: Roman Kravchenko [email address omitted]

Subject: RE: 2nd Demands for Satisfaction of Judgment

Bill,

We are unable to oblige.

When someone at ATIC [American Transit Insurance Company] wants to have a serious discussion about resolving my cases, we will gladly have a discussion that involves post-judgment enforcement, interest reductions, attorney fee stipulations and waiver of my Article 52 remedies.

Until then, we will keep your staff busy for the holidays and for the better part of next year.

I have settled all my Merani cases without this litigation. Perhaps someone should find out how that happened.

Best,

Jason
————————————————————————————————————————–

From: William Larkin [email address omitted]

Sent: Tuesday, November 28, 2023 12:25 PM

To: Jason Tenenbaum [email address omitted]; [email address omitted]

Cc: Roman Kravchenko [email address omitted]

Subject: RE: 2nd Demands for Satisfaction of Judgment

Your settlement demands are unreasonable. The attorney fees you are requesting are highly inflated. We have discussed that. ATIC’s refusal to settle for the highly inflated numbers has nothing to do with your obligations on these cases. They paid the judgments and CPLR 5020(a) requires you to provide a satisfaction of judgment. You are abusing the post-judgment process. These tools are obviously designed to help judgment creditors collect. They are not supposed to be used to harass a judgment debtor because they won’t settle other cases with you.

Your email below regarding the settlement of the unrelated cases begs another question; Do your “clients” know that you are holding their principal and interest payments hostage in an effort to strong arm ATIC to pay these inflated attorney fees? Based on your testimony and Roman’s testimony in Hempstead, they don’t even know that you represent them on these cases so I’m not sure how they could approve of these settlement demands. Roman testified that his lack of contact with the client is not a problem because he does not settle…..and hear [sic] you are trying to settle.

I wasn’t kidding when I said below that I am sending this email as a courtesy. You are crossing lines and don’t seem to be aware that you are doing it or just can’t seem to put the emotions aside and act logically. As stated above, the settlement demands on the other cases has nothing to do with the Satisfaction of Judgment on these cases. You owe us the Satisfaction of Judgment and your refusal to provide it and your insistence that we file the Motions to Quash and the Orders to Show Cause for the satisfaction of judgment are forcing me to put your conduct before the Court. I’m trying to avoid that.

Sincerely,

William R. Larkin, III

Larkin Farrell LLC

Attorneys at Law———————————————————————————————————————————–

From: Jason Tenenbaum [email address omitted]

Sent: Tuesday, November 28, 2023 12:41 PM

To: William Larkin [email address omitted]; [email address omitted]

Cc: Roman Kravchenko [email address omitted]

Subject: RE: 2nd Demands for Satisfaction of Judgment

We are adults. Do as you may. But we will make one concession. We have done this in all of our papers:

Provide me with proof of full payment with 2% post-judgment interest on the entered judgment within 14-days of ATIC’s receipt of the information subpoena. If you do that instead of copying and pasting demands, we will then be ethically obliged to give you the full satisfaction you want.

You never make this calculation in any of your papers.

Absent that, we do not think the relief you are seeking — a full satisfaction — is appropriate to these facts. It is not emotion — it is holding your client to the letter of the law.

We are unsure how making ATIC pay every cent they owe and a reasonable attorney fee is crossing the line. Better minds than us may disagree.

Thank you.

We will not respond to any further emails on this subject.——————————————————————————————————————————-

From: William Larkin

Sent: Tuesday, November 28, 2023 12:51 PM

To: Jason Tenenbaum; [email address omitted]

Cc: Roman Kravchenko

Subject: RE: 2nd Demands for Satisfaction of Judgment

Each of these judgments was paid in full. If you add up the checks you will see that the checks total more than the face value of the judgment. The payments include the post judgment interest.

Even if it were true that it did not include the post judgment interest, you are still required to provide us with a partial satisfaction of judgment pursuant to CPLR 5020(a). If there was a legitimate claim to a few cents more then I would have that paid, but you are refusing to provide the satisfaction and refusing to tell us what you think is owed. Yesterday Roman argued $200 in one breath and then $500 in another breath on the same case. It is your obligation to provide the satisfaction. If it is paid in full, provide a full satisfaction. If you think it is partially paid provide a partial satisfaction and explain where you get the balance from.

Sincerely,

William R. Larkin, III

Larkin Farrell LLC

Attorneys at Law

(Index No. 532051/2022 Doc No. 40; Index No. 500128/2023 Doc No. 41; Index No. 535310/2022 Doc No. 43.)

As Petitioner’s counsel’s letters discussed above stated, attached were copies of cancelled checks. The following table compiled by the Court contains pertinent information concerning the judgments and the chronology of Respondent’s information subpoenas, Petitioner’s payments (all of which cleared), the amounts remaining to be paid (due to ongoing interest), the filing of Respondents’ contempt motions against Petitioner, and Petitioner’s letters concerning payments made and/or the need for Respondents to file satisfactions of judgment:

[*6]

Index No. &  Judgment	Information  Subpoena	Petitioner’s  Payments	Remaining Unpaid	Contempt  Motion	Petitioner’s  Counsel’s Letters
Index No. 532051/2022: $7,610.39, 7/18/23	8/3/23  (mailed  8/4/23)	$613.85, 8/30/23 (cleared 9/6/23*); $3,628.80, 8/31/23 (cleared 9/6/23*); $2,278.89, 8/31/23 (cleared 9/6/23*); $1,221.53, 8/31/23 (cleared 9/6/23*)  Total $7,743.07	$176.81 per Kravchenko aff (see Index No. 532051/2022 Doc No. 43 10); $84.98 per 1/17/24 oral argument (see Index No. 532051/ 2022 Doc No. 59 at 24); “probably about $10 or $15” per Tenenbaum at 5/20/24 hearing (Index No. 532051/ 2022 Doc No. 60 at 9);  $16.92 as recalculated below	9/8/23	9/26/23; 11/28/23
[*7]Index No.  500128/2023:  $6,595.52, 7/18/23	8/3/23  (mailed 8/4/23)	$646.35, 8/21/23 (cleared 8/31/23);  $3,452.31, 8/31/23 (cleared 9/6/23*); $1,574.25, 8/31/23 (cleared 9/6/23*); $1,045.31, 8/31/23 (cleared 9/6/23*) Total $6,718.22	$65.60 per Kravchenko aff (see Index No. 500128/2023 Doc No. 44 14); $200.87 per 1/17/24 oral argument (see Index No. 500128/2023 Doc No. 59 at 75); $10 or $15, or as much as $50 per Tenenbaum at 5/20/24 hearing (Index No. 500128/ 2022 Doc No. 60 at 26); $12.82 as recalculated below	9/8/23	9/26/23; 11/28/23
[*8]Index No. 535310/2022:  $8,945.13, 7/31/23	8/3/23  (mailed  8/4/23)	$130.00, 7/14/23 (cleared date unknown); $4,716.48, 7/21/23 (cleared date unknown);  $2,188.45, 7/21/23 (cleared date unknown);  $1,400.00, 7/21/23 (cleared date unknown); $516.35, 9/28/23 (cleared date unknown)  Total $8,951.28	$13.92 per Kravchenko aff (see Index No. 535310/2022 Doc No. 46 11); $13.92 per 1/17/24 oral argument (see Index No. 535310/2022 Doc No. 61 at 79); “Ballpark figure, between $10 and $20, most likely” per Tenenbaum at 5/20/24 hearing (Index No. 5535310/2022 Doc No. 62 at 33);  $240.47 as recalculated below	9/8/23	11/14/23;  11/28/23

* Check endorsed by Roman Kravchenko, of of Respondents’ counsels.

(See Index No. 532051/2022 Doc Nos. 19, 20, 22, 24, 29, 30, 32; Index No. 500128/2023 Doc Nos. 18, 20, 22, 24, 30, 31, 33; Index No. 535310/2022 Doc Nos. 20, 21, 23, 26, 31, 32, 34.)

Contemporaneous with the dispute between counsel for Petitioner and counsel for Respondents concerning the non-provision of satisfactions of judgment, complete or partial, there was a dispute over Respondents’ counsel representing their clients in matters adverse to Petitioner. Attorney Jason Tenenbaum had previously represented Petitioner in hundreds of No-Fault insurance actions. In a No-Fault insurance action by an individual seeking to recover lost [*9]wage benefits, the Appellate Division affirmed the trial court’s disqualification of Attorney Tenenbaum. “Here, the defendant established that counsel for the plaintiff had a prior attorney-client relationship with the defendant, that the issues involved in his prior representation of the defendant were substantially related to the issues involved in his firm’s current representation of the plaintiff, and that the interests of the plaintiff and the defendant were materially adverse (see Rules of Prof Conduct [22 NYCRR 1200.0] rule 1.9; Delaney v Roman, 175 AD3d at 650)” (Sakandar v American Tr. Ins. Co., 217 AD3d 1005, 1006-1007 [2d Dept 2023]). Petitioner wrote letters dated November 15, 2023, to Roman Kravchenko, asking that he withdraw from representing the various Respondents (see Index No. 532051/2022 Doc No. 25; Index No. 500128/2023 Doc No. 26; Index No. 535310/2022 Doc No. 27.)

The last motion in the three special proceedings, designated Motion Seq. 5, was one made by Petitioner via order to show cause. The proposed orders to show cause were submitted to the Court on December 7 and 8, 2023, and signed December 13, 2023 (see 532051/2022 Doc Nos. 35, 45; Index No. 500128/2023 Doc Nos. 36, 45; Index No. 535310/2022 Doc Nos. 38, 47). This trio of motions sought:

1. STAY the execution of the judgment pursuant to CPLR §2201, and

2. For a SATISFACTION OF JUDGMENT pursuant to CPLR §5020(a) and CPLR 5021(a)(2), and

3. Costs pursuant to 22 NYCRR 130.1.1 [actually 130-1.1] for causing Petitioner to have to file this application, and

4. For such other relief that this Court deems just and proper.

(Index No. 532051/2022 Doc No. 45; Index No. 500128/2023 Doc No. 45; Index No. 535310/2022 Doc No. 47.)

As it did regarding Motion Seq. 4 in each special proceeding, Petitioner’s motion papers in support of Motion Seq. 5 included, in each instance, the affidavit of merit from Madanawelly Armogan, the employee in its claims department who attested to Petitioner’s payments toward the respective judgment. Copies of cleared checks were again attached. Counsel’s affirmations claimed that the judgments were fully paid, Respondents did not provide a satisfaction of judgment or even a partial satisfaction of judgment, Respondents insisted on enforcing the information subpoena, and, upon information and belief, Respondents referred the matter to a marshal for collection. (See Index No. 532051/2022 Doc Nos. 37-39; Index No. 500128/2023 Doc Nos. 38-40; Index No. 535310/2022 Doc Nos. 39-41.)

On January 17, 2024, this Court heard oral arguments in various special proceedings where American Transit Insurance Company was the Petitioner and Roman Kravchenko represented the respective Respondents. These three special proceedings herein were included among them. Motion Seqs. 4 and 5, as well as Motion Seq. 3, in these special proceedings were argued. Initially, decision was reserved. Later on, on March 26, 2024, the Court recalled that marking and adjourned the motions (also the Motion Seq. 3s, which were Respondents’ motions for contempt) to May 20, 2024 due to there being an issue in common with other cases, to wit, the disqualification of Respondents’ counsel sought by Petitioner: “The Court recalls the dispositions of reserved decision and submitted with respect to the nine motions herein, as indicated above, and the Clerk shall replace such dispositions with ones which adjourn the motions to May 20, 2024, at 10:00 a.m., the date on which the issue of disqualification of Respondents’ counsels had already been scheduled to be considered in the hearing to be conducted then” (Index No. 532051/2022 Doc No. 50; Index No. 500128/2023 Doc No. 50; [*10]Index No. 535310/2022 Doc No. 52).

Faced with an impending hearing on May 20, 2024, Attorneys Kravchenko and Tenenbaum attempted to withdraw their contempt motions in letters sent to the Court on May 7, 2024 (see Index No. 532051/2022 Doc No. 53; Index No. 500128/2023 Doc No. 53; Index No. 535310/2022 Doc No. 55).

On May 20, 2024, Petitioner and the respective Respondents appeared before the Court. Respondents withdrew Motion Seq. 3 in each special proceeding — the one seeking contempt against Petitioner for not responding to the respective information subpoenas (Index No. 532051/2022 Doc No. 60 at 4, 24, 31; Index No. 500128/2023 Doc No. 60 at 4, 24, 31; Index No. 535310/2022 Doc No. 62 at 4, 24, 31). After oral argument on Motion Seqs. 4 (for a protective order and to quash an information subpoena), and Motion Seqs. 5 (to stay judgment execution, direct a satisfaction of judgment, and for 22 NYCRR 130-1.1 costs), decision was reserved.

Later in the day, on May 20, 2024, the three Respondents filed complete satisfactions of judgment (see Index No. 532051/2022 Doc No. 58; Index No. 500128/2023 Doc No. 58; Index No. 535310/2022 Doc No. 60).

Arguments in Motion Papers

As discussed supra at 11, Petitioner’s counsel’s affirmations in the three Motion Seq. 4s claimed that the judgments were fully paid, Respondents did not provide a satisfaction of judgment or even a partial satisfaction of judgment, Respondents insisted on enforcing the information subpoena, and, upon information and belief, Respondents referred the matter to a marshal for collection (see Index No. 532051/2022 Doc No. 28; Index No. 500128/2023 Doc No. 29; Index No. 535310/2022 Doc No. 30.)

In opposition, Respondents’ counsel, Roman Kravchenko, submitted affirmations disputing the claim that Petitioner was entitled to a complete satisfaction of judgment. Still owed to the respective Respondents as of August 30, 2023 were $176.81, $65.60, and $13.92 in post-judgment interest, Petitioner should be held in contempt, and Respondents should be awarded an attorney’s fee for post-judgment work performed on the file, he maintained. (See Index No. 532051/2022 Doc No. 43; Index No. 500128/2023 Doc No. 44; Index No. 535310/2022 Doc No. 46.)

In the three Motion Seq. 5s, Petitioner again related allegations contained in its Motion Seq. 4s’ affirmations, as well as additional ones:^[FN6]

14. Petitioner requested Respondent provide a satisfaction of judgment. Rather than provide said satisfaction as required by CPLR § 5020(a), or even credit the payments made and exchange a partial satisfaction of judgment, Respondent refused and instead sought to enforce the subpoena and, upon information and belief, as he has done in other cases, referred the judgment to the Marshal for collection.

15. CPLR §5020(a) provides:

§ 5020. Satisfaction-piece. (a) Generally. When a person entitled to enforce a judgment receives satisfaction or partial satisfaction of the judgment, he shall execute and file with [*11]the proper clerk pursuant to subdivision (a) of section 5021, a satisfaction-piece or partial satisfaction-piece acknowledged in the form required to entitle a deed to be recorded, which shall set forth the book and page where the judgment is docketed. A copy of the satisfaction-piece or partial satisfaction-piece filed with the clerk shall be mailed to the judgment debtor by the person entitled to enforce the judgment within ten days after the date of filing.

16. CPLR §5021(a)(2) provides:

§ 5021. Entry of satisfaction. (a) Entry upon satisfaction-piece, court order, deposit into court, discharge of compounding joint debtor. The clerk of the court in which the judgment was entered or, in the case of a judgment of a court other than the supreme, county or a family court which has been docketed by the clerk of the county in which it was entered, such county clerk, shall make an entry of the satisfaction or partial satisfaction on the docket of the judgment upon:

1. the filing of a satisfaction-piece or partial satisfaction-piece; or

2. the order of the court, made upon motion with such notice to other persons as the court may require, when the judgment has been wholly or partially satisfied but the judgment debtor cannot furnish the clerk with a satisfaction-piece or partial satisfaction-piece; or….

17. The judgment was clearly paid. Petitioner provided the checks and requested the Satisfaction of Judgment on numerous occasions. (see NYSCEF Doc ID 24 and 32 and the email attached hereto as Exhibit B)

18. Respondent failed to comply with the requirements of CPLR §5020(a) by failing to file the Satisfaction of Judgment with the clerk and by failing to exchange the Satisfaction with Petitioner.

19. Respondent has refused to acknowledge the payment without explanation.

20. It is respectfully requested that the Court order the Clerk of the Court to enter a Satisfaction of Judgment pursuant to CPLR §5021(a)(2).

21. Petitioner also requests costs pursuant to 22 NYCRR 130.1.1 [should read 130-1.1], which provides:

(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under article 3, 7 or 8 of the Family Court Act.

(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor’s office, legal aid society or public defender’s office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is [*12]associated.

(c) For purposes of this Part, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

22. Counsel for Respondent is clearly harassing Petitioner.

23. As discussed on numerous occasions, Mr. Kravchenko’s business “partner,”1 Jason Tenenbaum, Esq. used to represent Petitioner. He has some sort of vendetta against the company.

24. He was removed as counsel in at least one case because the Court found that he was using information he gained in his representation against American Transit in the lawsuit as attorney for American Transit’s adversary. (see Supreme Court, Queens County Index 707562/2019) The Appellate Division, Second Department upheld the order removing him as counsel. (See Sakandar v Am. Transit Ins. Co., 217 AD3d [1005] (2d Dep’t 2023)

25. Mr. Tenenbaum, through his former employee and now “partner” Roman Kravchenko, Esq., has already harassed Petitioner on approximately 100 de novo actions by filing warrantless motion after motion requesting documents that are not relevant to the prosecution or defense of the action.

26. He has intentionally driven up the attorney fees on these de novo actions at the Court’s expense.

27. The information subpoena is just another tactic to harass Petitioner, his former client, as revenge for their falling out.

28. The Court agreed with Petitioner in a similar case involving similar circumstances. (see American Transit Insurance Company vs. YSC Trinity Acupuncture PC a/a/o Shaba Hill, Supreme Kings Index 502863/2022)

29. This Court has already determined that Respondent’s intentions by serving the subpoena and attempting to execute on the judgment after it was paid were done to harass Petitioner. (see Supreme Kings Index 502863/2022) There is no other explanation for their refusal to provide a Satisfaction of Judgment as required by CPLR §5020(a).

30. It should be noted that this is not the only case where counsel has sought to harass Petitioner by filing judgment on amounts already paid and attempting to execute on judgments that have been fully satisfied. The undersigned has 13 similarly situated cases with Motions for Contempt pending and recently received notice of another 20 cases where an information subpoena was served.

31. Respondent’s intention to harass is clear from Mr. Tenenbaum’s response to my recent email requesting a Satisfaction of Judgment. I explained in the email that he has an affirmative obligation to provide a Satisfaction of Judgment. Mr. Tenenbaum’s response was he would consider it if we settled all of the cases we have with his office (Mr. Kravchenko’s office) and that if we don’t settle “we [his office] will keep your [my] staff busy for the holidays and for the better part of next year.” (see attached at Exhibit B)

32. Respondent’s conduct is clearly harassing, repetitive and intentionally designed to waste our time and resources without any regard for the fact that he is doing the same to the Court.

33. As such, costs are warranted pursuant to 22 NYCRR 130.1.1 [actually 130-1.1].

1 We use the term “partner” loosely. Mr. Kravchenko and Mr. Tenenbaum have testified that they are “partners” with respect to the petitions and de novos they handle against American Transit Insurance Company but we believe that Mr. Kravchenko is really an employee of Mr. Tenenbaum and that the Cross-Petitions and Answers are only filed in Mr. Kravchenko’s name to hide a conflict that Mr. Tenenbaum [has] with American Transit Ins. Co.

(Index No. 532051/2022 Doc No. 37; Index No. 500128/2023 Doc No. 38; see Index No. 535310/2022 Doc No. 40.)

In opposition to Petitioner’s Motion Seq. 5s in the three special proceedings, Respondents’ counsel, Roman Kravchenko, did not address the additional allegations contained in the affirmations of William Larkin offered on behalf of Petitioner. Rather, Attorney Kravchenko merely wrote in Index Nos. 532051/2022 and 500128/2023 as follows:

1. I am a member of Ronan [sic] Kravchenko, counsel for Respondent, of counsel to Russell Friend Law Group, LLP^[FN7] and, as such, am fully familiar with the facts and [*13]circumstances of the within matter.

2. I make this affirmation in opposition to the order to show cause.

3. We are relying upon our previously filed opposition to the motion to compel a satisfaction and in Reply to our contempt motion in herein opposing this order to show cause.

(Index No. 532051/2022 Doc No. 46; Index No. 500128/2023 Doc No. 46.)

In the third special proceeding, Attorney Kravchenko’s affirmation contained basically the same response:

1. I am a member of Roman Kravchenko, of counsel for Respondent and as such, am fully familiar with the facts and circumstances of this matter.

2. I make this affirmation in opposition to the order to show cause.

3. Our basis for opposing the order to show cause is found in our amended affirmation in opposition to the cross-motion seeking to quash the subpoena and compel issuance of a complete satisfaction of judgment.

(Index No. 535310/2022 Doc No. 50.)

On January 17, 2024, when various special proceedings were before this Court, Petitioner, by its attorney, Joseph P. Farrell, argued:

I think you will see that a lot of what these cases all have is the same similar fact pattern. They are paid. No requests — we’re making requests for satisfactions of judgments, we are being told to file an order to show cause. They then are going to the Marshall and asking for the full amount of the bill even after payments are made. We’re being required to file order to show causes. And if you look they are paid. What is going on here, your Honor, and we can look at each one you will see it is going to have the same pattern, we’re creating work just to bill work. And it is very obvious what is going on when you see what is going on here.

(Index No. 532051/2022 Doc No. 59 at 7; Index No. 500128/2023 Doc No. 59 at 7; Index No. [*14]535310/2022 Doc No. 59 at 7)

Attorney Kravchenko argued that there was a fundamental difference between Petitioner and respective Respondents as to how interest is calculated on judgments in No-Fault insurance cases. He maintained that whereas Petitioner believed it is 9% annually the No-Fault Insurance Law, in § 5106 (a), provided for interest at 2% per month, thus superseding the general CPLR provision for 9% annually. (Id. at 13.)

In terms of Petitioner’s contempt in Index No. 532051/2022, Attorney Kravchenko argued that since Petitioner owed $84.98, it was in contempt of court, warranting a $50.00 penalty. “And while conceding, of course, that American Transit at the very least isn’t due a partial satisfaction of judgment for the amounts that they paid but they still owe the $84” (id. at 31). Asked why a partial satisfaction was not filed — the basis for Petitioner’s seeking to impose a penalty against Respondent’s attorneys — Attorney Kravchenko answered, “We don’t agree that we have done anything that should be sanctionable” (id. at 32). He added as an explanation for why no satisfaction was filed by him, “Because of the ongoing disagreement as to how the percentage is applied” (id. at 32). Asked by the Court whether one needs to know the exact amount still owed in order to issue a satisfaction once a check is received, Attorney Kravchenko claimed confusion when multiple checks are issued, as was the situation here. However, if full payment were made, then he withdraws (the subpoena or contempt motion) and files a satisfaction (see id. at 32-33). With the Court focusing on the issue of filing a partial satisfaction of judgment following receipt of any partial payment (“So if you get a couple of checks each time another check is issued don’t you think you have to file [a] partial satisfaction-piece?), Attorney Kravchenko conceded that one is entitled to a partial satisfaction (id. at 34). After earlier claiming that a difference of opinion in how interest is calculated led to no satisfaction being filed, he now claimed that it was due to “Difficulties of practice. Not intentional but it is difficult to — ” (id. at 34).

Attorney Kravchenko stated that he did not recall Petitioner seeking a partial satisfaction anywhere except in motion papers, but the Court called his attention to Petitioner’s November 28, 2023 letter seeking it if Respondent thought any further money was due (see id. at 36-37). Kravchenko maintained that as long as none was requested, a partial satisfaction of judgment did not have to be filed (see id. at 39-40). This was even though, as the Court pointed out, the CPLR required it (see id. at 40).

Attorney Farrell emphasized that while he was arguing interest should be calculated at 9% annually, Respondent refused to file a satisfaction of judgment. He took issue with Respondent’s treatment of the issue of the remaining amount claimed to be owed — that Respondent did not send a letter to collect the money, and went straight to an information subpoena for an amount owed which is now conceded to be $84.00. In other cases, Respondents represented by Attorney Kravchenko called in the marshal on the full amount owed, even if partially paid. (Id. at 47-50.) Attorney Farrell took issue with the strategy of Attorneys Kravchenko and Tenenbaum whereby Petitioner was compelled to go to court to fight information subpoenas and contempt motions over relatively small amounts rather than them sending a letter to Petitioner with the amount they claim was still owed (see id. at 52-53). Attorney Kravchenko conceded that “[T]his is the legal strategy of the Respondent’s counsel” (id. at 51-52).

Attorney Farrell argued in support of Petitioner’s motion to quash the information subpoena and issue a protective order (Mot. Seq. 4) (see id. at 57).

As for the motion to stay judgment execution, direct a satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (Motion Seq. 5), Attorney Farrell argued that he was still seeking a satisfaction of judgment on behalf of Respondent as well as a stay of execution. He also was seeking costs pursuant to 22 NYCRR 130-1.1. His firm charges Petitioner $210.00 per hour and close to three to four hours were spent. (See id. at 57-59.) Further, he added,

[Y]ou have to add up the checks, get the affidavit, you have to write up, give the breakdowns, the dates of the checks and the payments and the math on these I would wish these were templated work. Unfortunately, your Honor, they are very intricate. You have to be very specific on the dates, the amounts, the judgment amounts, the differentiation between the interest of the attorneys fees and the bill. I can honestly say this was the kind of work that we can only do department level at the firm because if you didn’t know no-fault well enough, you wouldn’t be able to grasp some of the concepts that we had to apply to the templates. You will see a lot of math and broken down work has to be done. (Id. at 59.)

Attorney Farrell emphasized that it burdens the Court to have to deal with an order to show cause every time someone has a dispute over less than $100.00 or 5% of a bill. It is burdensome to have to go to Court instead of receiving a satisfaction of judgment. (See id. at 60.) “I don’t think [the Court] is to hear $84 is owed on a $7,000 bill that nothing was done to really collect” (id. at 61). The Respondents represented by Attorneys Kravchenko and Tenenbaum are the first to challenge the interest paid. “This is in essence where there’s two routes here, your Honor, one route is to be amicable, send a letter. The other route is — creates work, creates legal fees, creates — just the route we’re taking just mysteriously creates an attorney fee that he is asking for. The other route that is taken he is more effective but that doesn’t give him attorney fees.” (Id. at 61.)

Attorney Kravchenko concluded with respect to Index No. 532051/2022:

First of all, as far as all actions taken by myself and attorneys that work with me on these cases, I fully stand behind our conduct and actions as being meritorious, lawful and reasonable under the circumstances. American Transit is not an individual person who is unrepresented, they are a sophisticated party, taking sophisticated legal positions in order to achieve a goal which is to pay as little as possible of what they actually do owe. And at any rate we — our strategy in getting American Transit to pay what it does owe is meritorious, lawful and reasonable. (Id. at 63.)

As for Index No. 500128/2023, the arguments were the same but Attorney Farrell still maintained that a partial satisfaction of judgment, if not a complete one, should have been issued and that 22 NYCRR costs should still be imposed (see Index No. 500128/2023 Doc No. 59 at 70-77).

Finally, on January 17, 2024, the Court dealt with Index No. 535310/2022. Here, Attorney Farrell added:

This case will show you exactly why a letter should have been mailed with the exact terms of what was owed. I’m sorry, but to tell my client you owe money, question mark. There’s not much more than a contentious relationship with Counsel of the other side. You can see by the amount of volume of paperwork that is before you today, that this not something where no-fault specifically says should not be adversarial. I can’t think anything more adversarial than to make someone spend legal fees, time and effort for $13. If a letter was sent to my client saying you owe $13 instead of an information [*15]subpoena, I think this would have taken a completely different route. In total we argued today over on Plaintiff saying he is owed about $300. You have seen 22 motions, you have seen three hours — (Index No. 535310/2022 Doc No. 61 at 80.)

Further emphasizing what he described as wasting time, Attorney Farrell stated:

Your Honor, we were still here on them. I had to still appear on them. You still had to be here and read them into the record. The whole morning was wasted on $300. It just behooves this kind of conduct for an attorney. Mr. Kravchenko not a rookie attorney, he has been doing this for a long time. I would think his experience level would be able to find a way to collect this money without taking this route. Mysteriously this route has led to him collecting attorney fees. A letter. All collection work begins with a letter 30 days notice. I don’t see why this collection didn’t take that route at all. (Id. at 81.)

As for a satisfaction of judgment, Attorney Farrell requested that the branch of one of Petitioner’s motions seeking it (Motion Seq. 5) should be granted. Of Attorney Tenenbaum’s attitude, he said,

Mr. Tannenbaum^[FN8] laughed at it. Mr. Tannenbaum the e-mail and letter said, you know, oh, okay, we pleaded for in his letter. We sent to them the consequences. He said he was fine with it. I don’t think the Court should condone this kind of behavior. A satisfaction of judgment is not optional. It should have been given as soon as it was asked for in recognition of the money that was paid. The applicant — you didn’t see it in this case, but in other cases in the past has gone to the Marshall with this. And the fear that my client had that he would go to the Marshall, must be understood by this Court. There’s no reason why he could — he could give this Court why a satisfaction wasn’t given except to say that, you know, it just wasn’t in his legal strategy. (Id. at 83.)

On that subject, Mr. Farrell added later on:

Mr. Tannenbaum, as told to you, Mr. Tannenbaum’s is hand-in-hand in this. Mr. Tannenbaum has been disqualified against American Transit. It seems to be a vendetta against American Transit. It seems to be this idea — that Mr. Tannenbaum has gone on social media and taken checks that he has received from American Transit and posted them. Hey, look what I got in cases. It has become quite interesting how Mr. Tannenbaum and Mr. Kravchenko — he said to you he is going to fight for every dollar that American Transit has. Well, that’s why he didn’t give the satisfaction of judgment. That’s why we have to worry that he is going to go to the Marshall. It is unconscionable to receive money and not credit that money as paid and to give an indication to the other side how much you are owed before going to the Court. My client received nothing that said that this payment is wrong. You owe us this much more. What they received was an information subpoena. What they received was a motion to be held in contempt. Okay, nothing was done — there was never a letter saying your calculation was this, my calculation was this, you owe this amount. (Id. at 89.)

Attorney Kravchenko in turn criticized Petitioner for filing Article 75 proceedings to vacate arbitration awards:

American Transit alleging that the situation should be non-adversarial is deeply sad for many respects given that they filed master arbitrations on all or a substantial majority or [*16]portion at any rate or the arbitrations that they filed that they then even on issues of medical necessity, which are clearly not going to be overturned by a Master, flood the Courts with hundreds, if not thousands, yearly petitions, trial de nova’s as a transparent attempt to not pay arbitrations which would never be reversed under any situation, only the — the only strategy for doing so is to bully under-supplied no-fault arbitration attorneys who have no recourse really other than to either settle for pennies on the dollar or else to retain me to represent their interest because I am the only person that is going to hold American Transit to account for every penny that they owe. And the Court can see transparently that American Transit knowing that their position is completely ludicrous, will just send a — short change you by a couple of bucks and say you just have to eat it, so it is entirely reasonable for myself and for the people that work with me to hold American Transit to account in the way that we have. (Id. at 84.)

The Court asked of Attorney Kravchenko a question which gets to the heart of the dispute between Petitioner and Respondents represented by Attorneys Kravchenko and Tenenbaum:

Is it your position, Mr. Kravchenko, that — you see, it is you, I can’t say your client, you are being criticized for pursuing this line of legal strategy for relatively small dollar amounts, is it your position that that strategy is justified in light of American Transit’s issuance of repeated denials — denials of claims and then after losing an arbitration pursuing — pursuing Master Arbitration and Article 75’s? (Id. at 86.)

Attorney Kravchenko responded: “Your Honor, yes, and not only is it justified in theory, but it is proven in result. Mr. Farrell’s firm no longer files trial de novo’s because I move to defend them” (id. at 86). He answered the Court’s hypothetical question whether an information subpoena was justified for a debt of five cents with a “Yes” (id. at 90).

(B) May 20, 2024

The three subject special proceedings appeared again on the Court’s calendar of May 20, 2024, to deal with the three motions within them (Motion Seqs. 3, 4, and 5) along with other cases where Petitioner and Respondents-clients of Attorneys Kravchenko and Tenenbaum disputed matters. Insofar as the three subject special proceedings are concerned, the respective Respondents withdrew Motion Seq. 3, which sought a contempt finding against Petitioner (see Index No. 532051/2022 Doc No. 60 at 4, 24, 31; Index No. 500128/2023 Doc No. 60 at 4, 24, 31; Index No. 535310/2022 Doc No. 62 at 4, 24, 31. Remaining were Petitioner’s motions for a protective order and to quash an information subpoena (Motion Seq. 4 in each one), and to stay judgment execution, direct a satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (Motion Seq. 5 in each one).

In Index No. 532051/2022, Attorney Jason Tenenbaum stated: “[The judgment] was paid. There was an issue as to post-judgment interest, that two percent per month versus nine percent per year. But we are withdrawing the application and, on the record, stating that the judgment, for purposes of today, has been paid, and there’s no other action left on this case.” (Id. at 5.) He withdrew the information subpoena “if it is indeed, outstanding” (id. at 5-6). Counsel for Petitioner objected to Respondent’s withdrawing the subpoena in Index No. 532051/2022 because Attorney Tenenbaum had not yet issued a satisfaction of judgment, and she still wanted attorney’s fees (see id. at 6).

The Court noted that “costs” as defined in 22 NYCRR 130-1.1 included sanctions in addition to attorney’s fees (id. at 7, 27). Attorney Tenenbaum responded that his client’s motion [*17]“has merit, and, if it were to be decided, would likely prevail, so it was not frivolous” (id. at 8). He claimed that “probably about $10 or $15 was owed,” and that he pursued this

to make sure that the two-percent interest is faithfully paid, Judge. That’s something that the insurance company should be doing when they’re paying judgments and paying overdue benefits. And in fact, Judge, we’ve succeeded, because based upon the recent checks we’ve received, American Transit does pay the two percent. So these applications have, at least from a company policy, of succeeding, ensuring that American Transit’s in compliance with the regulation and the Appellate Division and Appellate Term Second Department case law. (Id. at 9.)

Petitioner’s counsel countered that “So for him, today, still not having filed a satisfaction of judgment, to come before the Court today to say it’s because of interest — I find that to be frivolous, in fact” (id. at 11). Attorney Tenenbaum agreed that a CPLR 5020 satisfaction of judgment has to be provided when there is either a partial payment or full payment of a judgment (see id. at 12). Attorney Tenenbaum disagreed that 22 NYCRR 130-1.1 costs should be imposed for not having filed a satisfaction — not even a partial satisfaction. “But the response to the order to show cause agreed there’s contentions. To the extent that a partial satisfaction was not issued, that was an oversight, Judge. But we clearly, upon receipt of the papers, agreed with the contention that payment was received, Judge.” (Id. at 12.)

It was even after January 17, 2024, when the Court went through the math with the parties in terms of what was still owed, and still, as of May 20, 2024, that there was no partial satisfaction filed “for the amount that they paid, even after this was an issue that was discussed on January 17” (id. at 13). “Well, Judge, that issue was not raised to me,” replied Attorney Tenenbaum. “We have issued scores of satisfaction for American Transit cases which we are handling. So this would be an outlier, Judge. But the majority of them — almost all of the payments have been made at this juncture, satisfactions have been made. And like I said, we would do it by the end of business today, Judge.” (Id. at 13.) There ensued the following colloquy:

THE COURT: They were entitled for four months to have a satisfaction filed.

MR. TENENBAUM: I understand, Judge. But there wouldn’t be any prejudice to the extent that any judgment that was issued was stayed.

THE COURT: But they had to come here today to pursue this to get a satisfaction.

MR. TENENBAUM: Judge, again, what I’m indicating to you is that it will be issued today. And we were here on a whole litany of issues, also, Judge.

(Id. at 13-14.)

Petitioner’s counsel emphasized that in all three cases the situation was the same:

So I would like to raise the fact that this isn’t just a slight oversight, the fact that Counsel was given a letter requesting that he withdraw, given the copy of the checks in this case, was told that, you know, they had, in fact, been paid, and still today no judgment. We even asked that they file partial satisfaction of judgment for the amounts paid and those were, in fact, not even entered. (Id. at 15.)

Attorney Tenenbaum charged anywhere from $350.00 an hour to $500.00, depending on the type of work (see id. at 15). Attorney Joseph Farrell said he charged Petitioner $210.00 an hour (see id. at 20).

Attorney Farrell stated that the work involved here

would require an affidavit. An affidavit would require that to be drafted and then sent to [*18]the client to be proofread and then executed. That alone could take, possibly, two to three hours. It has to be drafted from scratch. And if you look at these particular ones, the affidavits were very, very particular as to check numbers, check times, check dates. These were not just templated. These all had to be drafted from scratch. Further than the affidavit, that motion would be done in order to show cause. The order to show cause would have to be filed with the court, a copy would then have to be taken and served, and there would be costs incurred. I would say that a minimum of eight to ten hours would be a minimum of what these would entail as far as between the service, between the drafting, and, you know, the e-mails going back and forth as far the, you know, the particularities, the checks that have to be acquired, the foundations that have to be laid for the checks. This was not simple work by any means. And at the end of it all, at every motion, we requested just to get a satisfaction of judgment. We asked for that before we underwent any of this work. And it all could have not been performed if we got that satisfaction of judgment at that time. (Id. at 16-17.)

When the Court raised an issue of repetitiveness in the papers submitted, Attorney Farrell responded:

Your Honor, for most of no fault, I would agree with you. The only reason I would disagree with you is these have specific check numbers and dates and payments. These were not something that is — all of them were different. The math that had to be done — you had to sit down in the same way we did it on those days and we had to work out the math, and that had to be done on these. These were not templated work. These were done with particularity. Because, again, the burden was on us to establish the dates that these payments were made, how much they were made, and how it was broken up. That did not lend itself to templated work, your Honor. (Id. at 17-18.)

Pressed by the Court, Attorney Farrell said that six to eight hours would have been spent on Motion Seqs. 4 and 5 (see id. at 19). Attorney Tenenbaum claimed that one hour would be more accurate (see id. at 20). Then he conceded, “Maybe three hours, Judge” (id. at 21).

Again, with regard to not having any satisfaction of judgment, “Final words, Mr. Tenenbaum, on not having filed a satisfaction after payments were made in August of 2023 up to today, May 20, 2024, and four months past the hearing that we had on the motions in January? Any final words as to why the satisfaction — a partial satisfaction was not filed?” Attorney Tenenbaum answered, “All I can indicate, Judge, is we’ll file it by the end of business today. And there’s been no objection to that. That’s my final word.” (Id. at 21.)

The next case that was dealt with was Index No. 500128/2023.

MR. TENENBAUM: Your Honor, it was the same issue as the prior case where it’s two-percent post-judgment interest that runs on the judgment. And, again, up until recently, American Transit only paid judgment rate interest at best. So I do not believe that our application is frivolous in that we were underpaid a sum of money that would be set forth in the motion papers that were previously argued by Mr. Kravchenko on January — the date that was earlier this year. To the extent — (Id. at 25.)

Attorney Tenenbaum estimated that $10.00 or $15.00 was owed, but that it could be as much as $50.00 (see id. at 26):

I would estimate that would be the sum. Because my recollection is that was — with the exception of only one case that’s not before this Court, that was roughly the sums of money were underpaid. It could be as much as $50. But the majority were $10 to $15. [*19](Id. at 26.)

Petitioner’s counsel emphasized again, as in the prior case, that

I just want to, again, reiterate to the Court that on September 26th, 2023, well after these payments were issued, a letter was issued, again, to Mr. Tenenbaum and Mr. Kravchenko, requesting that they withdraw their contempt motion and that was not done. To this day, no satisfaction of judgment was done. At that time when the letter was issued, the checks were provided to Counsel, and they were fully aware that this judgment was more than satisfied.(Id. at 27.)

Attorney Farrell estimated time spent as six hours (see id. at 27):

And, your Honor, that would entail — because the affidavit would have to be done on top of the fact that you have to get the math and all that kind of stuff. Affidavits have to go back and forth, they have to be proofread, they have to be drafted from scratch, a lot of it with the math. And further, with the service, that kind of adds a little bit more to just the drafting of the papers. This entailed more than just drafting. You have to serve and you have to serve different entities. There’s just a little more to it than just the affidavits being sent back and forth. (Id. at 27-28.)

Attorney Tenenbaum maintained with respect to this case,

Again, your Honor, in light of the fact that there was outstanding interest that was outstanding, I do believe that our application had merit. I don’t believe that anything that our firm did lacked merit or was frivolous. The issue we’re having here was the lack of filing a partial satisfaction. But in terms of the application before this Court, nothing we did was frivolous. And, again, we did the math and came to a total in our papers. (Id. at 28-29.)

Asking for a response to an information subpoena for $50.00 was appropriate, claimed Attorney Tenenbaum (see id. at 29). Petitioner replied that Attorney Tenenbaum was at fault for not sending a letter asking for the $50.00 before issuing the information subpoena (see id. at 29).

Finally, the Court dealt with Index No. 535310/2022. Petitioner’s counsel argued:

Well, I would like to say, as in the prior two matters, once again, counsel — Mr. Tenenbaum was well aware that the checks had, in fact, been issued. He, in fact, negotiated those checks. He also received a letter asking him to withdraw his motion and he failed to do so. He also failed to file either a satisfaction of judgment in full or partial. You know, the definition of frivolous here is the intent to harass, and we believe that his filing of his motions with the information on the subpoenas was nothing more than to harass his prior client. And we’d like to bring that to the Court’s attention, especially since they have not filed a satisfaction of judgment through today’s date after being told by the Court back in January that that was, in fact, something they should do, and, in fact, that they should have filed them when they received a letter from Counsel without having Counsel pursue these motions. (Id. at 32.)

According to Attorney Tenenbaum, “Ballpark figure, between $10 and $20, most likely” was owed. “Could be more. Probably wasn’t less.” (Id. at 33.) Attorney Joseph Farrell estimated time spent as five hours at $210.00 an hour (see id. at 33). Attorney Tenenbaum thought three hours was more appropriate (see id. at 34).

Discussion

In each of the three special proceedings, Motion Seq. 4, filed by Petitioner, sought a protective order regarding the respective information subpoena pursuant to CPLR 3103 or to [*20]quash it pursuant to CPLR 2304 (see Index No. 532051/2022 Doc No. 27; Index No. 500128/2023 Doc No. 28; Index No. 535310/2022 Doc No. 29).

Attorney Tenenbaum represented to the Court on May 20, 2024 that the information subpoena in Index No. 532051/2022 was being withdrawn “if it is indeed, outstanding” (Index No. 532051/2022 Doc No. 60 at 5-6; Index No. 500128/2023 Doc No. 60 at 5-6; Index No. 535310/2022 Doc No. 62 at 5-6), as related supra at 29. He did not make the same representation with respect to Index Nos. 500128/2023 and 535310/2022. Perhaps he forgot to do so or assumed that his statement applied to all three information subpoenas. In any event, the Court views the issue as academic inasmuch as complete satisfactions were filed by the respective Respondents in all three cases.

Counsel for Petitioner objected to Respondent’s withdrawing the subpoena in Index No. 532051/2022 because Attorney Tenenbaum had not yet issued a satisfaction of judgment, and she still wanted costs (see supra at 29). However, by now the satisfactions have been filed (see Index No. 532051/2022 Doc No. 58; Index No. 500128/2023 Doc No. 58; Index No. 535310/2022 Doc No. 60). The issue of costs still remains regardless of whether the information subpoenas were withdrawn or not.

“Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy (see Karger, Powers of the New York Court of Appeals § 71[a], at 426—429 [3d ed.])” (Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 172 [2002]). Since Respondents have acknowledged that the judgments were satisfied, there is no need to issue a protective order to Petitioner concerning the information subpoenas, and nothing would be accomplished by quashing the now-academic subpoenas. In each proceeding, Motion Seq. 4 is denied.

In each of the three special proceedings, Motion Seq. 5 sought in part to stay execution of the respective judgment pursuant to CPLR 2201 and to direct Respondent to file a satisfaction of judgment pursuant to CPLR 5020 (a) and 5021 (a) (2) (see Index No. 532051/2022 Doc No. 45; Index No. 500128/2023 Doc No. 45; Index No. 535310/2022 Doc No. 47). These requests too are academic as satisfactions of judgment were filed by Respondents. Those branches of Motion Seq. 5 seeking such relief are denied.

Remaining for disposition are those branches of Petitioner’s motions (Motion Seq. 5, brought on by order to show cause, in each special proceeding), for the imposition of “Costs pursuant to 22 NYCRR 130.1.1 [actually 130-1.1] for causing Petitioner to have to file this application” (id. at 1).

Said provision of the Rules of the Chief Administrator of the Courts provides in pertinent part as follows:

Section 130-1.1. Costs; sanctions

(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart. This Part shall not apply to town or village courts, to proceedings in a small claims part of any [*21]court, or to proceedings in the Family Court commenced under article 3, 7 or 8 of the Family Court Act.

(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor’s office, legal aid society or public defender’s office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.

(c) For purposes of this Part, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.

(d) An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.

(Rules of Chief Admr of Cts [22 NYCRR] § 130-1.1.)

Further relevant are the provisions of the following sections of 22 NYCRR Subpart Part 130-1:

Section 130-1.2. Order awarding costs or imposing sanctions

The court may award costs or impose sanctions or both only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate. An award of costs or the imposition of sanctions or both shall be entered as a judgment of the court. In no event shall the amount of sanctions imposed exceed $10,000 for any single occurrence of frivolous conduct.

Section 130-1.3. Payment of sanctions

Payments of sanctions by an attorney shall be deposited with the Lawyers’ Fund for Client Protection established pursuant to section 97-t of the State Finance Law. Payments of sanctions by a party who is not an attorney shall be deposited with the clerk of the court for transmittal to the Commissioner of Taxation and Finance. The court shall give notice to the Lawyers’ Fund of awards of sanctions payable to the fund by sending a copy of the order awarding sanctions, or by sending other appropriate notice, to the Lawyers’ Fund for Client Protection, 119 Washington Avenue, Albany, NY 12210.

(Id. §§ 130-1.2; 130-1.3.)

In reviewing appellate case law, this Court endeavored to locate precedent on the issue of whether § 130-1.1. costs should be imposed as a consequence of failing to issue satisfactions of judgment. In Solow v Bethlehem Steel Corp. (204 AD2d 227 [1st Dept 1994]), the Court held, “Nor do we find that an award of attorney’s fees was warranted by appellant’s refusal to issue an immediate Satisfaction of Judgment in exchange for uncertified checks. Indeed, the acceptance by an attorney of uncertified checks would, under the circumstances of this case, have been most surprising, particularly in light of respondent’s failure to offer any explanation for its failure to have the checks certified.” Unlike in Solow, where the judgment creditor delayed filing a satisfactory judgment until the judgment debtor’s uncertified checks had cleared, here Respondents’ counsel never issued partial satisfactions of judgment after the checks cleared and, complete satisfactions of judgment were not issued until after the second court hearing was held eight months after the last payment. Thus, in the absence of guidance from appellate authority directly on point with respect to § 130-1.1 costs, this Court must determine whether, the failure of Respondents’ counsel to issue partial satisfactions of judgment constituted frivolous conduct, within the meaning of § 130-1.1.

In doing so, this Court notes that issuing a partial satisfaction of judgment is not discretionary. As CPLR 5020 (a) provides: “When a person entitled to enforce a judgment receives satisfaction or partial satisfaction of the judgment, he shall execute and file with the proper clerk pursuant to subdivision (a) of section 5021, a satisfaction-piece or partial satisfaction-piece acknowledged in the form required to entitle a deed to be recorded, which shall set forth the book and page where the judgment is docketed. A copy of the satisfaction-piece or partial satisfaction-piece filed with the clerk shall be mailed to the judgment debtor by the person entitled to enforce the judgment within ten days after the date of filing.” “Since it is undisputed that the bank has successfully collected an amount of money toward the judgment, the appellants are entitled to a partial satisfaction-piece in that amount (see generally, 5 Weinstein-Korn- Miller, NY Civ Prac ¶¶ 5020.01, 5020.03, 5020.05, 5021.05; Matter of Quiggle v Quiggle, 144 AD2d 1011; Conticommodity Servs. v Haltmier, 67 AD2d 480, 482)” (National Bank of NY City v ESI Group, 201 AD2d 469, 471 [2d Dept 1994]).

“A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1(c) has the burden of demonstrating that the conduct of the opposing party was frivolous within the meaning of the rule (Matter of Miller v Miller, 96 AD3d 943, 944; see Brin v Shady, 179 AD3d 760, 763; Matter of Lebron v Lebron, 101 AD3d 1009, 1010-1011)” (Matter of Edwin C. v Fenny C.,  — AD3d —, 2024 NY Slip Op 02700 [2d Dept 2024] [internal quotation marks omitted]).

It is within the court’s discretion to award attorney’s fees to a party who has partially complied with a stipulation and has had to defend against a motion by the other party, who failed to comply with its obligations (see Colon v Crespo, 223 AD3d 645, 648 [2d Dept 2024]). Similarly here, Petitioner partially complied with payment of the judgment — near totally complied — yet Respondents failed to file partial satisfactions of judgment.

“Making claims of colorable merit can constitute frivolous conduct within the meaning of 22 NYCRR 130-1.1 if undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another (Stow v Stow, [262 AD2d] at 551, quoting 22 NYCRR 130-1.1 [c] [2]; see also Matter of Gordon v Marrone, [202 AD2d 104]; Tyree Bros. Envtl. Servs. v Ferguson Propeller, [247 AD2d 376])” (Ofman v Campos, 12 AD3d 581, 582 [2d Dept [*22]2004] [internal quotation marks omitted]). Even assuming that a party’s claim possesses prima facie merit, where its litigation tactics are designed primarily to harass, sanctions are appropriate (see Ferraro v Gordon, 1 AD3d 595, 598 [2d Dept 2003]).

In contention here is whether the conduct of Attorneys Roman Kravchenko and Jason Tenenbaum, in issuing the information subpoenas, making the contempt motions, and refusing to issue partial satisfactions of judgment — resulting in Petitioner’s making motions to deal with the situation and sending letters protesting Kravchenko’s and Tenenbaum’s actions — constituted frivolous conduct.

Determining this issue rests upon an underlying dispute of how much interest was owed in each proceeding on the respective judgment. At times, calculating interest can be a vexatious conundrum, due to complex mathematical complications. Already, it has been indicated above that conflicting amounts were arrived at for each judgment. This is due to partial payments being made on different dates by Petitioner (within close proximity to each other), as necessitated by the No-Fault Insurance Regulations, which themselves require that insurers separately identify interest ^[FN9] and attorney’s fees and segregate attorney’s fees.^[FN10] Moreover, for interest purposes, said Regulations define a month — overdue claims bearing interest at two percent per month — as comprising 30 days (see 11 NYCRR 65-3.9 [a]), regardless of how many days actually comprise a particular month. Additionally, the parties possessed different views as to whether post-judgment interest accrued at the CPLR 5004 rate of nine percent per annum or Insurance Law § 5106 (a)’s “two percent per month.” While Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co. (197 AD3d 144 [2d Dept 2021]) held that post-judgment interest on court judgments accrued at two percent per month in No-Fault insurance actions, it did involve a claim interposed when the No-Fault Insurance Regulations provided that interest compounded monthly, a provision subsequently modified by the Department of Insurance to provide for straight interest.

In any event, regardless of the different results from undertaking the interest calculations, ultimately Petitioner did not owe that much money in interest. What is questionable are the aggressive tactics Respondents’ attorneys utilized in their efforts to secure every last penny in interest from Petitioner.

In assessing whether the attorneys’ conduct was frivolous, this Court views it necessary to once more attempt a calculation of the amounts of interest due in each special proceeding. In engaging in this effort, the Court recognizes the following case law. “[P]ostjudgment interest under CPLR 5003 is computed on the total amount of the judgment, which includes the prejudgment interest (see generally David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5003)” (Mahoney v Brockbank, 142 AD3d 200 [2d Dept 2016]). [*23]“Logic dictates where interest is allowed from and after the date of entry of a money judgment (CPLR 5003) said judgment will not be satisfied until interest had been collected from date of entry to date of final payment” (Matter of Beneficial Discount Co. of NY v Spike, 91 Misc 2d 733, 735-736 [Sup Ct, Yates County 1977]). “The court properly determined that plaintiff is entitled to post-judgment interest on the outstanding portion of the money judgment from the time of entry of the judgment until full satisfaction (see CPLR 5003, 5519 [a] [2]; Wiederhorn v Merkin, 106 AD3d 416, 416-417 [1st Dept 2013], lv denied 21 NY3d 864 [2013]; HGCD Retail Servs., LLC v 44-45 Broadway Realty Co., 12 Misc 3d 1166[A], 2006 NY Slip Op 51082[U] [Sup Ct, NY County 2006])” Coffey v CRP/Extell Parcel I, L.P., 122 AD3d 504, 504-505 [1st Dept 2014]). “Interest due and owing shall be computed at the statutory rate . . . on the declining balance due, calculated from and after each periodic payment when received by the respondent Sheriff” (Matter of Beneficial Discount Co. of NY, 91 Misc 2d at 736).

In other words, while post-judgment interest includes a component of interest upon interest (the pre-judgment part), after entry of judgment, post-judgment interest must be calculated only on the judgment amount, and where there are partial payments made, there must be a recalculation as to the declining balance of principal and remaining interest due. A judgment is not completely satisfied until the judgment is paid in full and the interest amount due is also paid. Moreover, as partial payment of a judgment is made, a partial satisfaction-piece is required to be filed by the judgment creditor (see CPLR 5020 [a]).

On January 17, 2024, when this Court performed calculations of the amounts owed on the judgments when final payment was made by Petitioner, it did not take into account that No-Fault insurance interest of two percent per month should be applied only on the balance of the principal, which would comport with the text of Insurance Law § 5106: “Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained. If proof is not supplied as to the entire claim, the amount which is supported by proof is overdue if not paid within thirty days after such proof is supplied. All overdue payments shall bear interest at the rate of two percent per month.” This Insurance Law provision of two percent per month does not apply to anything other than the principal balance of first party benefits, i.e., the health service benefits which were overdue. The remainder of each judgment amount which was comprised of accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements should have accrued post-judgment interest at the CPLR 5004 rate of nine percent per annum. Therefore, in decreeing that interest on the respective total judgments accrued at the rate of two percent per month (see Index No. 532051/2022 Doc No. 19 at 2; Index No. 500128/2023 Doc No. 18 at 2; Index No. 535310/2022 Doc No. 20 at 2), the County Clerk erred. In each proceeding, the County Clerk should have decreed a separate percentage of two-percent-per-month post-judgment interest applicable to the principal balance of first party benefits, and nine percent per annum to the remainder.

The Court now rectifies this error and makes the following recalculations.

Index No. 532051/2022

Judgment date 7/18/23 — $7,610.39, comprised of $3,628.80 in first party benefits and $3,981.59 in accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements.

30-day monthly post-judgment interest on $3,628.80 in first party benefits @ 2% per month = $72.58.

Daily interest ($72.58 / 30) = $2.42

365-day yearly post-judgment interest on $3,981.59 in accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements @ 9% per annum = $358.34.

Daily interest ($358.34 / 365) = $0.98

Total daily interest = $3.40

8/30/23 — Petitioner paid $613.85 (principal only, no interest); remaining balance due of principal $6,996.54.

8/31/23 — Petitioner paid $7,129.22 ($6,996.54 allocated to principal, which is now completely paid, leaving difference of $132.68 allocated to interest); due accrued interest of $149.60 (44 days x $3.40); $149.60 minus $132.68 paid toward interest = $16.92 owed in interest.

Index No. 500128/2023

Judgment date 7/18/23 — $6,595.52, comprised of $3,452.31 in first party benefits and $3,143.21 in accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements.

30-day monthly post-judgment interest on $3,452.31 in first party benefits @ 2% per month = $69.05.

Daily interest ($69.05 / 30) = $2.30

365-day yearly post-judgment interest on $3,143.21 in accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements @ 9% per annum = $282.89.

Daily interest ($282.89 / 365) = $0.78

Total daily interest = $3.08

8/21/23 — Petitioner paid $646.35 (principal only, no interest); remaining balance due of principal $5,949.17.

8/31/23 — Petitioner paid $6,071.87 ($5,949.17 allocated to principal, which is now completely paid, leaving difference of $122.70 allocated to interest); due accrued interest of $135.52 (44 days x $3.08); $135.52 minus $122.70 paid toward interest = $12.82 owed in interest.

Index No. 535310/2022

Judgment date 7/31/23 — $8,945.13, comprised of $4,716.48 in first party benefits and $4,228.65 in accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements.

30-day monthly post-judgment interest on $4,716.48 in first party benefits @ 2% per month = $94.33.

Daily interest ($94.33 / 30) = $3.14

365-day yearly post-judgment interest on $4,228.65 in accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements @ 9% per annum = $380.58.

Daily interest ($380.58 / 365) = $1.04

Total daily interest = $4.18

7/14/23 — Petitioner paid $130.00 (principal only, no interest); remaining balance due of principal $8,815.13.

7/21/23 — Petitioner paid $8,304.93 (principal only, no interest); remaining balance due of principal $510.20.

9/28/23 — Petitioner paid $516.35 (510.20 allocated to principal, which is now completely paid, leaving difference of $6.15, allocated to interest); due accrued interest of $246.62 (59 days x $4.18); $246.62 minus $6.15 paid toward interest = $240.47 owed in interest.

Taking into account the differing calculations of how much interest remained due after [*24]Petitioner’s last payment toward each bill — between Roman Kravchenko’s amounts set forth in his affirmations, this Court’s January 17, 2024 calculations, Jason Tenenbaum’s estimated amounts at the May 20, 2024 hearing, and this Court’s present calculations — the fact remains that a small amount was due with respect to each judgment. The most that would be owed as of the date of Petitioner’s last payment would be $240.47 per this Court’s present calculation for Index No. 535310/2022. The least that would be due as of the date of Petitioner’s last payment would be $12.82 per this Court’s present calculation for Index No. 500128/2023. In any event, on May 20, 2022, Attorney Tenenbaum estimated the amounts due as “probably about $10 or $15” or “Ballpark figure, between $10 and $20, most likely.” Per Attorney Kravchenko’s affirmations in the three cases, the amounts were $176.81 (see Index No. 532051/2022 Doc No. 43 ¶ 10); $65.60 (see Index No. 500128/2023 Doc No. 44 ¶ 14); and $13.92 (see Index No. 535310/2022 Doc No. 46 ¶ 11).

At the time the information subpoenas were issued by Attorneys Kravchenko and Tenenbaum on August 3, 2023, the judgment amounts due were $7,610.39; $6,595.52; and $8,945.13 respectively. Petitioner made its earliest payment, of $130.00 (toward Index No. 535310/2022’s judgment), even before the information subpoenas were issued. The next payments were made by Petitioner on July 21, 2023 in the same case. Payments of the judgment principal amounts themselves were complete by August 31, 2023 in Index Nos. 532051/2022 and 500128/2023; and the judgment principal in Index No. 535310/2022 was completely paid by September 28, 2023. Therefore all that remained were interest amounts, concerning which there were disputes over the exact amounts due. Yet Respondents, acting through Attorneys Kravchenko and Tenenbaum filed the contempt motions on September 8, 2023, when the principal amounts were paid off in two cases, the remaining one’s principal amount being paid off on September 28, 2023.

After Petitioner’s counsel wrote to Respondents’ counsel in September 2023 and November 2023, claiming that the judgments were paid and asking the latter to withdraw the information subpoenas, withdraw the contempt motions, and issue satisfactions of judgment or, at least, partial satisfactions of judgment, Respondents’ counsel refused to do so, even though Petitioner’s counsel stated that their actions prejudiced Petitioner and the Court should not be burdened with unnecessary motion practice.

Going into the January 17, 2024 oral argument, Attorneys Kravchenko and Tenenbaum insisted on maintaining the contempt motions despite the only issue being how much exactly was due in interest in these three special proceedings. And despite the discussion at the hearing — attended by Attorney Kravchenko — of the issue of the partial satisfactions of judgment, Respondents’ counsel did not file partial satisfaction-pieces as called for by the CPLR in the days, weeks, and months thereafter.

It was not until early May 2024 that Attorneys Kravchenko and Tenenbaum sought to withdraw their contempt motions, faced with an impending hearing on May 20, 2024. And even then, as of the morning of May 20, 2024, no satisfaction of judgment — be it partial or complete — had been filed by Attorneys Kravchenko and Tenenbaum, despite the entire principal amount of each judgment having been paid by late summer or early fall of 2023.

What was the motivation behind the conduct of Attorneys Kravchenko and Tenenbaum in maintaining contempt motions to enforce relatively small amounts, refusing to state with specificity how much interest remained due — minute amounts in two of the cases — and refusing to file at least partial satisfactions of judgment? The answer lies in the November 28, 2023 [*25]11:44 a.m. and 12:41 p.m. email correspondence from Jason Tenenbaum to William Larkin of the Larkin Farrell law firm. At 11:44 a.m., he wrote:

We are unable to oblige.

When someone at ATIC [American Transit Insurance Company] wants to have a serious discussion about resolving my cases, we will gladly have a discussion that involves post-judgment enforcement, interest reductions, attorney fee stipulations and waiver of my Article 52 remedies.

Until then, we will keep your staff busy for the holidays and for the better part of next year.

I have settled all my Merani cases without this litigation. Perhaps someone should find out how that happened.

Best,

Jason

(Index No. 532051/2022 Doc No. 40; Index No. 500128/2023 Doc No. 41; Index No. 535310/2022 Doc No. 43.)

At 12:41 p.m., he wrote:

Provide me with proof of full payment with 2% post-judgment interest on the entered judgment within 14-days of ATIC’s receipt of the information subpoena. If you do that instead of copying and pasting demands, we will then be ethically obliged to give you the full satisfaction you want.

You never make this calculation in any of your papers.

Absent that, we do not think the relief you are seeking — a full satisfaction — is appropriate to these facts. It is not emotion — it is holding your client to the letter of the law.

We are unsure how making ATIC pay every cent they owe and a reasonable attorney fee is crossing the line. Better minds than us may disagree.

Thank you.

We will not respond to any further emails on this subject.

(Id.)

Notably, Attorney Tenenbaum never offered to file a partial satisfaction of judgment, nor did he inform Petitioner’s counsel of the amount of interest he claimed was still due and owing, even though he insisted on the last cent. But the 11:44 a.m. email evidences that Attorney Tenenbaum intended to keep Petitioner’s counsel’s staff busy during the holiday season and beyond because Petitioner refused to settle his other cases. In other words, Attorney Tenenbaum wielded the information subpoenas, contempt motions, and failures to file partial satisfactions of judgment as a litigation cudgel in some cases to achieve successful results in other cases, i.e., to obtain a tactical advantage in representing clients in other legal disputes with Petitioner. In so doing, he intentionally caused Petitioner to incur further legal fees, and sought to increase his legal fees pursuant to the No-Fault Insurance Regulations provisions regarding legal fees in post-arbitration litigation (see 11 NYCRR 65-4.10 [j] [4]). He caused public records to reflect that nothing was paid toward any of the judgments in these special proceedings, potentially affecting Petitioner’s financial status in the insurance industry.

Perhaps there is bad blood between Attorney Tenenbaum and Petitioner dating back to when he parted company as an attorney for them or due to Petitioner’s efforts to have him disqualified from now representing medial providers against them in litigation over No-Fault [*26]insurance disputes. But if anything is clear it is that Attorney Tenenbaum’s phrase, “We are unable to oblige,” meant that he refused to issue ANY satisfactions of judgment even as to partial amounts paid, despite CPLR 5020 (a)’s mandate that partial ones be filed. No one associated with Respondents can claim lack of knowledge of the partial payments. All checks in the three cases were deposited (see Index No. 532051/2022 Doc No. 30); Index No. 500128/2023 Doc No. 31); Index No. 535310/2022 Doc No. 32); Roman Kravchenko endorsed checks paid toward the judgments in Index Nos. 532051/2022 and 500128/2023 (see id.); and the payments were acknowledged in Roman Kravchenko’s December 9, 2023 amended affirmations in support of the contempt motions and in opposition to Petitioner’s motions for protective orders and to quash the information subpoenas (see Index No. 532051/2022 Doc No. 43 ¶ 9); Index No. 500128/2023 Doc No. 44 ¶ 14); Index No. 535310/2022 Doc No. 46 ¶¶ 5, 10).

As this Court was reminded many years ago by the Court of Appeals, “the law will not bother with trifles” (Matter of Staber v Fidler, 65 NY2d 529, 534 [1985]). The doctrine is known in Latin as “de minimis non curat lex,” described as a “familiar maxim” (Lounsbery v Snyder, 31 NY 514 [1865]). “Under the de minimis doctrine, ‘the law does not concern itself with trifles,’ 1 Am.Jur.2d Actions § 58 (1994); ‘the law does not care for, or take notice of, very small or trifling matters,’ Black’s Law Dictionary (6th ed. 1979)” (People v Gonzalez, 163 Misc 2d 950, 959 n 8 [Sup Ct, Bronx County 1995]). “[A] strictness of construction beyond that necessary for the effectuation of those policies can also lead to injustice” (Matter of Staber, 65 NY2d at 534). As applied to the present situation, it means that with trifling amounts of interest due, in comparison to the original judgment amounts, the utilization of information subpoenas and contempt motions was overkill and totally unnecessary. All Attorneys Kravchenko and Tenenbaum had to do was file partial satisfactions of judgment and contact Petitioner’s counsel and explain how they arrived at their calculations of small amounts of overdue interest. There is no question but that Petitioner would have paid the miniscule interest amounts due just to end the matters completely, avoid further motion practice, and compel Attorneys Kravchenko and Tenenbaum to file complete satisfactions of judgment. This was not the route Attorneys Kravchenko and Tenenbaum took. Thus, Petitioner had to file another motion in each case (Motion Seq. 5) to enlist the Court’s aid in procuring either a partial satisfaction or a complete one.

On January 17, 2024 and May 20, 2024, various reasons were proffered by Respondents’ counsel for not issuing partial satisfactions of judgment. On January 17, 2024, Attorney Kravchenko offered the following explanations:

• “American Transit at the very least isn’t due a partial satisfaction of judgment for the amounts that they paid but they still owe the $84.”

• “We don’t agree that we have done anything that should be sanctionable.”

• “Because of the ongoing disagreement as to how the percentage is applied.”

• Confusion when multiple checks are issued, as was the situation here. However, if full payment were made, then he would withdraw the subpoena or contempt motion and file a satisfaction.

• One is entitled to a partial satisfaction.

• “Difficulties of practice. Not intentional but it is difficult to — “

• Petitioner did not seek a partial satisfaction anywhere except in motion papers (not true).

• “[W]e our strategy in getting American Transit to pay what it does owe is meritorious, [*27]lawful and reasonable.”

(Supra at 25-26.)

On May 20, 204, Attorney Tenenbaum offered the following explanations:

• “To the extent that a partial satisfaction was not issued, that was an oversight, Judge. But we clearly, upon receipt of the papers, agreed with the contention that payment was received, Judge.”

• “Well, Judge, that issue was not raised to me,” . . . “We have issued scores of satisfaction for American Transit cases which we are handling. So this would be an outlier, Judge. But the majority of them — almost all of the payments have been made at this juncture, satisfactions have been made. And like I said, we would do it by the end of business today, Judge.”

• “Judge, again, what I’m indicating to you is that it will be issued today. And we were here on a whole litany of issues, also, Judge.”

• “All I can indicate, Judge, is we’ll file it by the end of business today. And there’s been no objection to that. That’s my final word.”

• “I don’t believe that anything that our firm did lacked merit or was frivolous. The issue we’re having here was the lack of filing a partial satisfaction. But in terms of the application before this Court, nothing we did was frivolous. And, again, we did the math and came to a total in our papers.”

(Supra at 29-32.)

This Court finds the justifications offered by Attorneys Kravchenko and Tenenbaum to be insufficient and unsatisfactory. CPLR 5020 (a) mandates the filing of a partial satisfaction-piece by a judgment creditor when partial payment toward a judgment is made. There is no condition precedent to filing same that the judgment debtor has to request it. Despite Petitioner’s counsel’s correspondence, Attorney Kravchenko’s acknowledgments of partial payment in his own motion papers, additional motion practice by Petitioner’s counsel to compel the filings, and the Court’s January 17, 2024 observations concerning the partial satisfactions of judgment, the necessary satisfactions were not filed. In Index No. 532051/2022 and 500128/2023, partial satisfactions of judgment should have been issued on September 6, 2023 (Index No. 532051/2022) and August 31, 2023 (Index No. 500128/2023), when the first checks from Petitioner cleared.^[FN11] Partial satisfactions of judgment should have been issued in Index No. 535310/2022 a few days after receipt of checks dated July 14, 2023; July 21, 2023; and September 28, 2023 (clearance dates unknown). (See Index No. 532051/2022 Doc No. 30; Index No. 500128/2023 Doc No. 31; Index No. 535310/2022 Doc No. 32.) Attorneys Kravchenko’s and Tenenbaum’s excuses lacked “colorable merit” (Ofman, 12 AD3d at 582). Even if they did possess a right to collect ever last penny in interest the way they went about it was sanctionable (see Ferraro, 1 AD3d at 598).

This Court finds that the only logical explanation for this situation, in light of Attorney Tenenbaum’s email insistence that Petitioner settle his other cases and that counsel’s staff would be busy during the holiday season and beyond, is that the non-filing of partial satisfactions was a deliberate strategy to maliciously harass Petitioner, affect its financial reputation, prolong the [*28]resolution of the litigation, and compel it to pay additional legal fees to both its own counsel and to Respondents’ counsel.

Moreover, to persist in enforcing information subpoenas when the amounts of interest were negligible in light of the total amounts of the judgments is abusive. Simple discussions with opposing counsel could have achieved payment of what remained due and owing.

Petitioner’s counsel’s arguments on both January 17, 2024 and May 20, 2024 concerning Attorneys Kravchenko’s and Tenenbaum’s actions are found meritorious:

• The legal strategy of Respondents’ counsel was to compel Petitioner to go to court rather than resolve the matters without motion practice.

• It is burdensome for the Court to deal with motions over less-than-$100.00 or less-than-5% disputes.

• “I don’t think [the Court] is to hear $84 is owed on a $7,000 bill that nothing was done to really collect.”

• Partial satisfactions were due.

• “I can’t think anything more adversarial than to make someone spend legal fees, time and effort for $13. If a letter was sent to my client saying you owe $13 instead of an information subpoena, I think this would have taken a completely different route. In total we argued today over on Plaintiff saying he is owed about $300.”

• “Your Honor, we were still here on them. I had to still appear on them. You still had to be here and read them into the record. The whole morning was wasted on $300. It just behooves this kind of conduct for an attorney. Mr. Kravchenko not a rookie attorney, he has been doing this for a long time. I would think his experience level would be able to find a way to collect this money without taking this route. Mysteriously this route has led to him collecting attorney fees. A letter. All collection work begins with a letter 30 days notice. I don’t see why this collection didn’t take that route at all.”

• “A satisfaction of judgment is not optional. It should have been given as soon as it was asked for in recognition of the money that was paid. The applicant — you didn’t see it in this case, but in other cases in the past has gone to the Marshall with this. And the fear that my client had that he would go to the Marshall, must be understood by this Court. There’s no reason why he could — he could give this Court why a satisfaction wasn’t given except to say that, you know, it just wasn’t in his legal strategy.”

• “It is unconscionable to receive money and not credit that money as paid and to give an indication to the other side how much you are owed before going to the Court.”

• “So I would like to raise the fact that this isn’t just a slight oversight, the fact that Counsel was given a letter requesting that he withdraw, given the copy of the checks in this case, was told that, you know, they had, in fact, been paid, and still today no judgment. We even asked that they file partial satisfaction of judgment for the amounts paid and those were, in fact, not even entered.”

• “I just want to, again, reiterate to the Court that on September 26th, 2023, well after these payments were issued, a letter was issued, again, to Mr. Tenenbaum and Mr. Kravchenko, requesting that they withdraw their contempt motion and that was not done. To this day, no satisfaction of judgment was done.”

• “Well, I would like to say, as in the prior two matters, once again, counsel — Mr. Tenenbaum was well aware that the checks had, in fact, been issued. He, in fact, negotiated those checks. He also received a letter asking him to withdraw his motion and [*29]he failed to do so. He also failed to file either a satisfaction of judgment in full or partial. You know, the definition of frivolous here is the intent to harass, and we believe that his filing of his motions with the information on the subpoenas was nothing more than to harass his prior client. And we’d like to bring that to the Court’s attention, especially since they have not filed a satisfaction of judgment through today’s date after being told by the Court back in January that that was, in fact, something they should do, and, in fact, that they should have filed them when they received a letter from Counsel without having Counsel pursue these motions.”

(Supra at 25-28, 30-33.)

The Court finds that Petitioner has borne its burden of demonstrating that the conduct of Attorneys Roman Kravchenko and Jason Tenenbaum in the three special proceedings at bar was frivolous within the meaning of 22 NYCRR 130-1.1 in that their refusal to issue partial satisfactions of judgment and file same with the County Clerk was undertaken primarily to delay or prolong the resolution of the litigation, and to harass or maliciously injure Petitioner — to intentionally yield extra attorney’s fees for themselves pursuant to the No-Fault Insurance Regulations, to cause Petitioner to incur additional attorney’s fees, to injure Petitioner’s financial reputation, to gain a tactical advantage over Petitioner in other disputes between their clients and Petitioner, to cause Petitioner’s counsel and its staff to perform unnecessary work, including unnecessary motion practice, and to subject the Court to having to determine unnecessary motions. Said conduct was completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law which includes, inter alia, that a partial satisfaction-piece must be issued and filed by a judgment creditor upon receipt of a partial payment toward a judgment.

The Court finds likewise with respect to the conduct of Attorneys Roman Kravchenko and Jason Tenenbaum in the three special proceedings at bar in terms of pursuing contempt motions at the January 17, 2024 return date when very small amounts of outstanding interest were due.

There is no question but that Respondents, as judgment creditors, were entitled to the exact amount of interest on their judgments to which they were entitled from Petitioner, as the judgment debtor in the three special proceedings herein. Nonetheless, as it has been held, a colorable claim does not excuse litigation tactics which are designed primarily to harass the other party:

Litigants who use our court system for improper purposes, such as for retribution and harassment, may be sanctioned under the rules designed to deter frivolous conduct. The Supreme Court dismissed the proceeding here, on the merits, although it determined that the petitioner had raised a “colorable” claim. The court imposed a sanction against the petitioner, finding that the litigation had been brought primarily for improper purposes. The issue on appeal, one of first impression, is whether the prosecution of a colorable claim for primarily improper purposes constitutes frivolous conduct sanctionable under the court’s rules. We hold that the imposition of a sanction by the court here was proper. (Matter of Gordon v Marrone, 202 AD2d 104, 105-106 [2d Dept 1994].)

Matter of Gordon involved a repeat Article 75 proceeding commenced by a landowner against an adjacent nature preserve and the local tax assessor to challenge the tax assessor’s granting of a real property tax-exempt status for the nature preserve’s property. The nature preserve had previously opposed the landowner’s proposal to subdivide his property when it came before the [*30]town planning board. Despite the landowner’s colorable standing to challenge the nature preserve’s tax-exempt status, it was held that the primary purpose of the landowner’s lawsuit was to harass and punish the nature preserve because of its opposition to his subdivision plan. (See Matter of Gordon, 202 AD2d at 110.) Likewise here, although Respondents were entitled to the exact amount of interest on their judgments, their attorneys misused the legal process to pursue that objective. As the Court in Matter of Gordon held, the two definitions of frivolous conduct stand in the alternative. A party seeking costs need not prove that conduct was both “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” and “it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another,” as set forth in 22 NYCRR 130-1.1 (c). Merely engaging in conduct “primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” suffices per 22 NYCRR 130-1.1 [c] [2]. (See Matter of Gordon, 202 AD2d at 110; accord Ofman, 12 AD3d at 582; Ferraro, 1 AD3d at 598.) Such conduct was engaged in by Respondents’ counsel, Attorneys Kravchenko and Tenenbaum.

Therefore, this Court awards attorney’s fees to Petitioner. The law firm representing Petitioner in No-Fault insurance litigation in the Supreme Court, Larkin Farrell LLC, charges $210.00 per hour (see supra at 26, 30, 33). A legal fee of $210.00 is found reasonable by this Court. The work here was not in the nature of challenging a No-Fault arbitration award, concerning which this Court has awarded less to attorneys representing health care providers opposing CPLR petitions to vacate (e.g. American Tr. Ins. Co. v Nexray Med. Imaging P.C., 81 Misc 3d 1210[A], 2023 NY Slip Op 51311[U] [Sup Ct, Kings County 2023]). Rather the work was of more significance, to wit, opposing efforts to maintain unnecessary information subpoenas and attempting continuously to procure satisfactions of judgment. The Court takes into account the time and labor required, the difficulty of the questions involved, the skill required to handle the problems presented, the lawyer’s experience and ability, and the results obtained. Petitioner’s experience and ability was ably demonstrated in how they patiently dealt with Respondents’ counsel’s vexatious conduct (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839 [2d Dept 2016]; Diaz v Audi of Am., Inc., 57 AD3d 828, 830 [2d Dept 2008]). While there was no evidence of Petitioner’s counsel reputation, the Court notes that the Larkin Farrell LLC firm has appeared before it on numerous occasions since this Court took office in January 2023. Although there was no evidence of the customary fee charged in the local community for similar legal services, the Court notes that it has not encountered such vexatious conduct as transpired here, such as pursuing information subpoenas and contempt motions for small overdue double-digit interest amounts rather than thousands or tens of thousands of dollars. Thus, lack of evidence of the customary fee charged for opposing a law firm pursuing trifling amounts does not preclude a finding that $210.00 is reasonable. It certainly is reasonable considering that Respondents’ counsel claims to charge $450.00 per hour (see NYSCEF Doc No. 18, Kravchenko aff ¶ 12, in American Tr. Ins. Co. v Nexray Med. Imaging P.C., Sup Ct, Kings County, Index No. 504585/2023).

In terms of the time consumed, Attorney Joseph P. Farrell, III stated on January 17, 2024 that three to four hours were spent dealing with Respondents’ conduct in attempting to collect interest on the judgment in Index No, 532051/2022 (see supra at 26); on May 20, 2024, he stated that it was six to eight hours (see supra at 31). As for Index Nos. 500128/2023 and 535310/2022, he stated on May 20, 2024 that six hours and five hours were respectively spent [*31](see supra at 32-33). Attorney Tenenbaum questioned how much time it should have taken for Petitioner’s attorneys, claiming that it should have been three hours (see supra at 31, 33).

This Court has extensively reviewed Petitioner’s papers on the three motions dealt with on May 20, 2024, Motion Seq. 3 in each case being withdrawn by Respondents. While there is duplication in a lot of the content, nonetheless Petitioner’s counsel did have to deal with different payments in each case and did have to prepare papers in nine motions — opposing Respondents’ contempt motions and in support of their own motions. The Court also takes into consideration the letters sent by Petitioner’s counsel to Respondents’ counsel in the attempt to avoid more motion practice and Respondents’ counsel issue at least partial satisfactions of judgment. There is also the email correspondence of November 28, 2023, wherein Attorney Tenenbaum conceded that

When someone at ATIC [American Transit Insurance Company] wants to have a serious discussion about resolving my cases, we will gladly have a discussion that involves post-judgment enforcement, interest reductions, attorney fee stipulations and waiver of my Article 52 remedies.

Until then, we will keep your staff busy for the holidays and for the better part of next year.

I have settled all my Merani cases without this litigation. Perhaps someone should find out how that happened.

(Supra at 13.)

This Court finds that Petitioner’s counsel spent more than five and a half hours on each of the three special proceedings in countering the vexatious conduct of Attorneys Kravchenko and Tenenbaum in pursuing excessive litigation despite Petitioner’s payment of the judgment principal and much of the accrued interest, with only small amounts of interest remaining due and owing, and in refusing to issue at least partial satisfactions of judgment. Said calculation encompasses the paperwork, correspondence with opposing counsel, working with the client, and filing documents. The Court adds one and a half hour to each special proceeding for the court appearances and travel time ^[FN12] on January 17, 2024 and May 20, 2024. The total for each proceeding is seven hours.

The product of $210.00 multiplied by seven hours is $1,470.00. The Court allocates this sum between Roman Kravchenko and Jason Tenenbaum at $735.00 apiece for each proceeding.

As for sanctions, this Court notes that the main gravamen of Petitioner’s complaint concerning Attorneys Kravchenko’s and Tenenbaum’s conduct was in abusing the litigation process to deprive Petitioner of at least partial satisfactions of judgment — that said attorneys engaged in overly aggressive debt collection tactics more suitable to large judgment interest amounts rather than miniscule amounts where the principal amounts were satisfied. Therefore, in fashioning the amount of sanctions to be imposed, the Court takes into account how much was owed in interest, at least from Attorney Tenenbaum’s perspective. On May 20, 2022, Attorney Tenenbaum estimated the amounts due as “probably about $10 or $15” or “Ballpark figure, between $10 and $20, most likely” (supra at 29, 33, 40).

The Court finds that a daily sanction is appropriate (see New York City Hous. Auth. v [*32]Marrero, 64 Misc 3d 1228[A], 2019 NY Slip Op 51337[U] [Civ Ct, Bronx County 2019] [$50.00 per day sanction when plaintiff failed to notify marshal of vacatur of warrant of eviction]). It will apply a $10.00 per day sanction, $10.00 being at the law end of Attorney Tenenbaum’s estimates as to how much interest was due and owing in each of the three special proceedings.

In Index No. 532051/2022, all checks (total $7,743.07) issued by Petitioner cleared on September 6, 2023 (see supra at 16). That is when Respondents’ attorneys should have first issued a partial satisfaction of judgment in the case. A satisfaction of judgment — a complete satisfaction — was issued and filed on May 20, 2024. Thus, it took 257 days before Respondents’ attorneys performed their legally required duty. In this case, Attorneys Kravchenko and Tenenbaum are sanctioned a total of $2,570.00, representing $10.00 daily multiplied by 257 days. The sanctions shall be apportioned among them at $1,285.00 apiece in this case.

In Index No. 500128/2023, Petitioner’s first check ($646.35) cleared on August 31, 2023 (see supra at 16). That is when the first partial satisfaction of judgment in the case should have been issued. The satisfaction of judgment — a complete satisfaction — was issued and filed on May 20, 2024. Thus, it took 263 days before Respondents’ attorneys performed their legally required duty. In this case, Attorneys Kravchenko and Tenenbaum are sanctioned a total of $2,630.00, representing $10.00 daily multiplied by 263 days. The sanctions shall be apportioned among them at $1,315.00 apiece in this case.

In Index No. 535310/2022, the earliest check, in the amount of $130.00, was dated July 14, 2023 (see supra at 17). While the clearance dates are unknown, Madanawelly Armogan, Petitioner’s employee, attested to their being mailed on the dates of issuance (see Index No. Index No. 535310/2022 Doc No. 31 ¶ 27). The first check in Index No. 500128/2023 ($646.35) took ten days after the date of issuance to clear. The Court will similarly apply a ten-day period for the first-issued check here, so the presumed date of clearance is determined to be July 24, 2023. The satisfaction of judgment — a complete satisfaction — was issued and filed on May 20, 2024. Thus, it took 301 days before Respondents’ attorneys performed their legally required duty. In this case, Attorneys Kravchenko and Tenenbaum are sanctioned a total of $3,010.00, representing $10.00 daily multiplied by 301 days. The sanctions shall be apportioned among them at $1,505.00 apiece in this case.

Accordingly, it is hereby ORDERED as follows:

American Transit Insurance Company v Dr. Jong Won Yom, DC, LAC, RPH, MS a/a/o Mann Joung Chon (Index No. 532051/2022)

(1) Respondent Dr. Jong Won Yom, DC, LAC, RPH, MS’s motion for a contempt finding and the imposition of a fine against Petitioner for not responding to an information subpoena (Motion Seq. 3) is found to have been WITHDRAWN and rendered academic.

(2) Petitioner American Transit Insurance Company’s motion for a protective order and to quash an information subpoena (Motion Seq. 4) is DENIED as academic.

(3) Those branches of Petitioner American Transit Insurance Company’s motion brought on by order to show cause (Motion Seq. 5) which sought a stay of execution on the respective judgments pursuant to CPLR 2201 and to direct Respondent to file satisfactions of judgment pursuant to CPLR 5020 (a) and 5021 (a) (2) are DENIED as academic.

(4) That branch of Petitioner American Transit Insurance Company’s motion brought on by order to show cause (Motion Seq. 5) seeking costs pursuant to 22 NYCRR 130-1.1 is [*33]GRANTED to the extent of awarding Petitioner $735.00 as an attorney’s fee from Roman Kravchenko and $735.00 as an attorney’s fee from Jason Tenenbaum, and declaring that Roman Kravchenko and Jason Tenenbaum shall each separately pay a sanction of $1,285.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.

(5) Petitioner American Transit Insurance Company shall have judgment against Roman Kravchenko in the amount of $735.00 plus interest, costs, and disbursements as allowed by law.

(6) Petitioner American Transit Insurance Company shall have judgment against Jason Tenenbaum in the amount of $735.00, plus interest, costs, and disbursements as allowed by law.

(7) Roman Kravchenko shall pay $1,285.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.

(8) Jason Tenenbaum shall pay $1,285.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.

American Tr. Ins. Co. v Integrated Medicine of S.I., PC a/a/o Segundo Matute (Index No. 500128/2023)

(1) Respondent Integrated Medicine of S.I., PC’s motion for a contempt finding and the imposition of a fine against Petitioner for not responding to an information subpoena (Motion Seq. 3) is found to have been WITHDRAWN and rendered academic.

(2) Petitioner American Transit Insurance Company’s motion for a protective order and to quash an information subpoena (Motion Seq. 4) is DENIED as academic.

(3) Those branches of Petitioner American Transit Insurance Company’s motion brought on by order to show cause (Motion Seq. 5) which sought a stay of execution on the respective judgments pursuant to CPLR 2201 and to direct Respondent to file satisfactions of judgment pursuant to CPLR 5020 (a) and 5021 (a) (2) are DENIED as academic.

(4) That branch of Petitioner American Transit Insurance Company’s motion brought on by order to show cause (Motion Seq. 5) seeking costs pursuant to 22 NYCRR 130-1.1 is GRANTED to the extent of awarding Petitioner $735.00 as an attorney’s fee from Roman Kravchenko and $735.00 as an attorney’s fee from Jason Tenenbaum, and declaring that Roman Kravchenko and Jason Tenenbaum shall each separately pay a sanction of $1,285.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.

(5) Petitioner American Transit Insurance Company shall have judgment against Roman Kravchenko in the amount of $735.00 plus interest, costs, and disbursements as allowed by law.

(6) Petitioner American Transit Insurance Company shall have judgment against Jason Tenenbaum in the amount of $735.00, plus interest, costs, and disbursements as allowed by law.

(7) Roman Kravchenko shall pay $1,315.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.

(8) Jason Tenenbaum shall pay $1,315.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.

American Tr. Ins. Co. v YD Med. Services PC a/a/o Stuart Simpson Keralyn (Index No. 535310/2022)

(1) Respondent Integrated Medicine of S.I., PC’s motion for a contempt finding and the imposition of a fine against Petitioner for not responding to an information subpoena (Motion Seq. 3) is found to have been WITHDRAWN and rendered academic.

(2) Petitioner American Transit Insurance Company’s motion for a protective order and to quash an information subpoena (Motion Seq. 4) is DENIED as academic.

(3) Those branches of Petitioner American Transit Insurance Company’s motion brought [*34]on by order to show cause (Motion Seq. 5) which sought a stay of execution on the respective judgments pursuant to CPLR 2201 and to direct Respondent to file satisfactions of judgment pursuant to CPLR 5020 (a) and 5021 (a) (2) are DENIED as academic.

(4) That branch of Petitioner American Transit Insurance Company’s motion brought on by order to show cause (Motion Seq. 5) seeking costs pursuant to 22 NYCRR 130-1.1 is GRANTED to the extent of awarding Petitioner $735.00 as an attorney’s fee from Roman Kravchenko and $735.00 as an attorney’s fee from Jason Tenenbaum, and declaring that Roman Kravchenko and Jason Tenenbaum shall each separately pay a sanction of $1,505.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.

(5) Petitioner American Transit Insurance Company shall have judgment against Roman Kravchenko in the amount of $735.00 plus interest, costs, and disbursements as allowed by law.

(6) Petitioner American Transit Insurance Company shall have judgment against Jason Tenenbaum in the amount of $735.00, plus interest, costs, and disbursements as allowed by law.

(7) Roman Kravchenko shall pay $1,505.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.

(8) Jason Tenenbaum shall pay $1,505.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.

Dated: June 12, 2024
HON. AARON D. MASLOW
Justice of the Supreme Court of the State of New York

Footnotes

Footnote 1:Besides documents filed specifically in support of or in opposition to the motions determined, the Court has also considered certain other relevant documents contained within the electronic case folders for these special proceedings (see Khatibi v Weill, 8 AD3d 485 [2d Dept 2004]).

Footnote 2:For a further description of the No-Fault arbitration process and issues that arise therein see past decisions of this Court (e.g. Community Med. Imaging P.C. v American Tr. Ins. Co., 82 Misc 3d 1213[A], 2024 NY Slip Op 50301[U] [Sup Ct, Kings County 2024]); American Tr. Ins. Co. v PDA NY Chiropractic, P.C., 80 Misc 3d 1208[A], 2023 NY Slip Op 50938[U] [Sup Ct, Kings County 2023]); American Tr. Ins. Co. v U.S. Med. Supply Corp., 79 Misc 3d 1209[A], 2023 NY Slip Op 50560[U] [Sup Ct, Kings County 2023]; American Tr. Ins. Co. v Right Choice Supply, Inc., 78 Misc 3d 890 [Sup Ct, Kings County 2023]).

Footnote 3:While this Court is unable to ascertain an exact number of Article 75 special proceedings commenced by Petitioner in attempts to vacate the results of No-Fault insurance arbitrations successfully won by medical providers over the last few years in which Attorneys Kravchenko and Tenenbaum represented the respondent medical providers in opposing the petitions to vacate the arbitration determinations, there appear to have been several hundred of such special proceedings. This estimate is based on the Court’s own motion calendars which included such special proceedings as well as its observations of other Justices’ calendars.

Footnote 4:While the reference to 22 NYCRR 130-1.1 costs is specifically contained only within Petitioner’s Motion Seq. 5s, the Court deems it to refer to all activity engaged in by Respondents’ counsel to enforce the information subpoenas in these three cases and seek contempt orders against Petitioner, and to their non-issuance of any partial satisfactions of judgment. Petitioner’s motion papers in the Motion Seq. 5 series refer to Respondents’ enforcement efforts. For example, the November 28, 2023 email correspondence quoted herein referring to the contempt motions is included as an exhibit in each Motion Seq. 5. Petitioner’s attorney’s affirmation in each Motion Seq. 5 refers to Respondents’ enforcement of the information subpoena. Claims are harassment are detailed. (See generally Index No. 532051/2022 Doc Nos. 35-41, 49; Index No. 500128/2023 Doc Nos. 36-42, 49; Index No. 535310/2022 Doc Nos. 38-44, 51). Moreover, Petitioner’s Motion Seq. 4 series included a request for “other and further relief as this Court may deem just and proper” (Index No. 532051/2022 Doc No. 27; Index No. 500128/2023 Doc No. 28; Index No. 535310/2022 Doc No. 29). It is clear that Petitioner sought attorney’s fees and sanctions for the entire course of conduct of Attorneys Kravchenko and Tenenbaum in these proceedings by quoting the relevant provisions of 22 NYCRR 130-1.1 pertaining to same in the affirmations in support of Motion Seqs. 5 amidst the description of the conduct (see Index No. 532051/2022 Doc No. 37; Index No. 500128/2023 Doc No. 38; Index No. 535310/2022 Doc No. 40).

Footnote 5:Likewise, references to NYSCEF documents will be to the document numbers within the special proceedings referred to by index number.

Footnote 6:This quoted series of allegations is contained in William Larkin’s affirmations in Index Nos. 532051/2022 and 500128/2023. Mr. Larkin’s affirmation filed in Index No. 535310/2022 is nearly identical.

Footnote 7:The Court is mystified at this reference to Russell Friend Law Group, LLP.

In Index No. 532051/2022, Roman Kravchenko was listed as “Counsel for Respondent,” as well as “Of counsel to: Russell Friedman & Associates [/] Attorneys for Respondent,” in Respondent’s initial document, the notice of cross-petition (Index No. 532051/2022 Doc No. 13). An attorney from The Russell Friedman Law Group, LLC (a different firm name) appears as a contact for Respondent in “Case Detail” in NYSCEF in that special proceeding (see https://iapps.courts.state.ny.us/nyscef/CaseDetails?docketId=p6g_PLUS_GnbqtpTRBoF3mHvN5A== [last accessed May 27, 2024]). Notably, in his notice of appeal to the Appellate Division, Second Department, from the judgment, only Mr. Kravchenko is listed as attorney for Respondent; there is no reference to a Friend or Friedman law firm (see Index No. 532051/2022 Doc No. 44).

In Index No. 500128/2023, the notice of cross-petition, Respondent’s earliest-filed document, lists only Roman Kravchenko as “Counsel for Respondent” (Index No. 500128/2022 Doc No. 13). In that case, nobody from The Russell Friedman Law Group, LLC or any similar name is listed as a contact for Respondent in NYSCEF; rather there is an April S. Mittleman listed in “Case Detail,” but not on court papers (see https://iapps.courts.state.ny.us/nyscef/CaseDetails?docketId=ZXMIpPzJLtSwd9DpsPMu6w== [last accessed May 27, 2024]), which puzzles the Court because Mr. Kravchenko’s affirmation refers to being of counsel to the Friend law firm.

In Index No. 535310/2022, the notice of cross-petition lists only Roman Kravchenko as “Counsel for Respondent” (Index No. 535310/2022 Doc No. 14). Only Mr. Kravchenko is listed as a contact for Respondent in that case (see https://iapps.courts.state.ny.us/nyscef/CaseDetails?docketId=FuPw78fcimOCo/H_PLUS_6Eqokg== [last accessed May 27, 2024]).

The Court notes further that the affidavit submitted to the County Clerk in support of her issuance of the judgments in each of these three special proceedings indicated that both “the law firm of Roman Kravchenko, Esq. and The Law office of Jason Tenenbaum, P.C.” were “attorneys of record of the Defendant/Respondent” (Index No. 532051/2022 Doc No. 19 at PDF 3; Index No. 500128/2023 Doc No. 18 at PDF 3; Index No. 535310/2022 Doc No. 20 at PDF 3).

In any event, on January 17, 2024, Mr. Kravchenko stated in court, “Mr. Tenenbaum is of-Counsel to me and routinely we share resources and work closely together on these cases” (Index No. 532051/2022 Doc No. 59 at 6; Index No. 500128/2023 Doc No. 59 at 6; Index No. 535310/2022 Doc No. 61 at 6). Had Mr. Tenenbaum’s cat not been ill, he would have been in court with Mr. Kravchenko that day (see id. at 8).

Nobody from any Friend or Friedman law firm has appeared in court in any of these proceedings nor has Ms. Mittleman; and neither has anyone other than Mr. Kravchenko signed papers in them. Both Attorneys Kravchenko and Tenenbaum have appeared in person. The Friend or Friedman law firms, as well as Ms. Mittleman, appear to have fallen off the radar screen.

Footnote 8:Court reporter’s spelling; name is “Tenenbaum.”

Footnote 9:“The insurer shall separately identify any interest payment on an overdue claim from benefit payments. This may be done by issuing separate drafts for each amount or by an accompanying statement that clearly and separately identifies the components of the draft.” (11 NYCRR 65-3.9 [e] [emphasis added].)

Footnote 10:“The insurer shall segregate any attorney’s fee on an overdue claim from the loss and interest payments, either through issuance of separate drafts or through an accompanying statement which clearly and separately identifies the components of the draft.” (11 NYCRR 65-3.10 [c] [emphasis added].)

Footnote 11:In fact, all checks, totaling $7,743.07, in Index No. 532051/2022 cleared on September 6, 2023.

Footnote 12:Travel time is compensable (see Rourke v New York State Dept. of Correctional Services, 245 AD2d 870 [3d Dept 1997]).

Supreme Court, Kings County

Supreme Court, New York County

Supreme Court, Kings County

Supreme Court, Kings County

Supreme Court, Kings County

Supreme Court, New York County

American Transit Insurance Company, Petitioner, against Nexray Medical Imaging PC d/b/a Soul Radiology, a/a/o Carlos Colon, Respondent.

Index No. 531377/2022

Larkin Farrell LLC, New York City (Anthony Troise of counsel), for Petitioner.

Roman A. Kravchenko, Garden City, for Respondent.

Aaron D. Maslow, J.

The following numbered papers were read on this petition:

Submitted by Petitioner
NYSCEF Doc No. 1: Petition
NYSCEF Doc No. 2: Notice of Petition
NYSCEF Doc No. 3: Exhibit A — Arbitration Award
NYSCEF Doc No. 4: Exhibit B — Master Arbitration Award
NYSCEF Doc No. 5: Exhibit C — Respondent’s Arbitration Request Form and Arbitration Submission
NYSCEF Doc No. 6: Exhibit D — Petitioner’s Arbitration Submission and Master Arbitration Appeal
NYSCEF Doc No. 7: Statement of Authorization for Electronic Filing
NYSCEF Doc No. 8: Request for Judicial Intervention
NYSCEF Doc No. 9: Proof of Service
NYSCEF Doc No. 10: Statement of Authorization for Electronic Filing
NYSCEF Doc No. 11: Affidavit of Service
NYSCEF Doc No. 12: Statement of Authorization for Electronic Filing

Submitted by Respondent
NYSCEF Doc No. 13: Notice of Cross-Petition
NYSCEF Doc No. 14: Cross-Petition

Submitted by Petitioner
NYSCEF Doc No. 15: Affirmation in Opposition to Cross-Motion and in Reply in Support of Petition
NYSCEF Doc No. 16: Exhibit A — Order & Judgment in Kings Co. Index No. 530086/22

Respondent’s reply affirmation in support of the cross-petition (NYSCEF Doc No. 17) filed on September 7, 2023 (19 days after oral argument while the matter was sub judice, is not considered inasmuch as it was not timely filed and no application to accept it or proffer explaining its untimeliness was submitted to this Court (see CPLR 402, 2214, 3012; 22 NYCRR 202.8, 202.9; Aneke v Parks, 197 AD3d 601 [2d Dept 2021]; Garner v Rosa Coplon Jewish Home & Infirmary, 189 AD3d 2105 [4th Dept 2020]; Evans v Perl, 19 Misc 3d 1119[A], 2008 NY Slip Op 50775[U], *5 n 2 [Sup Ct, NY County 2008]; cf. Wilcox v Newark Valley Cent. School Dist., 107 AD3d 1127 [3d Dept 2013]).

Introduction

Petitioner American Transit Insurance Company (“ATIC”) submitted a notice of petition and petition via an Article 75 proceeding under the CPLR. ATIC requests the Court to vacate the Master Arbitrator’s award in a No-Fault insurance arbitration in favor of the Respondent herein, Nexray Medical Imaging PC (“Nexray”). (See NYSCEF Doc No. 1, Petition; NYSCEF Doc No. 2, Notice of Petition.)

Background

ATIC seeks to vacate the $1,790.67 award rendered by Master Arbitrator A. Jeffrey Grob, Esq., in American Arbitration Association (“AAA”) Case No. 99-20-1166-0711, in favor of Nexray (see NYSCEF Doc No. 1, Petition ¶ 3; NYSCEF Doc No. 2, Notice of Petition at 1). Nexray had performed MRIs (lumbar spine on July 13, 2019, and left shoulder on July 19, 2019) on policyholder Carlos Colon (“Assignor”) to diagnose any injuries resulting from a motor vehicle accident on May 2, 2019 (see NYSCEF Doc No. 5, Nexray’s Arbitration Request Form and Arbitration Submission at 12-15 [Form NF-3 claim form re lumbar spine MRI], 16-19 [Form NF-3 claim form re left shoulder MRI]). ATIC denied payment of the No-Fault insurance medical bills for the said services (see NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Appeal at 3-4 [Form NF-10 denial of claim re lumbar spine MRI], 5-6 [Form NF-10 denial of claim re left shoulder MRI]).

Nexray initiated arbitration, claiming entitlement to $1,790.67 for the medical care rendered to Assignor (see NYSCEF Doc No. 5, Nexray’s Arbitration Request Form and Arbitration Submission at 1-1422). ATIC submitted its papers in opposition for the arbitration (see NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Appeal at 1-192).

Bernadette Connor, Esq. was assigned to arbitrate the matter by the AAA. She awarded Nexray the $1,790.67 at issue in its billing. She noted that each of the two bills was denied on several grounds by ATIC: (1) Assignor was eligible for Workers’ Compensation, having been in the course of employment; (2) Assignor failed to appear at scheduled IMEs (independent medical examinations); and (3) lack of medical necessity based on a peer review by Dr. Peter Chiu. Arbitrator Connor reasoned that the Form NF-10 denials of claim were untimely, i.e., past Insurance Law § 5106 (a)’s 30-day deadline based on deficiencies in ATIC’s evidence regarding [*2]seeking additional verification to toll said deadline. With the denials of claim being late, the defenses of Assignor being injured in the course of employment and having missed IMEs were precluded. An IME no-show defense could be maintained even when there is a late denial of claim, she wrote, citing to Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011]). However, ATIC failed to prove that Assignor did not attend the IMEs, she found. Besides the principal sum of $1,790.67 as No-Fault medical benefits, Arbitrator O’Connor awarded Nexray interest, attorney’s fees, and return of the arbitration filing fee. (See NYSCEF Doc No. 3, Arbitration Award at 1-6.)

ATIC filed with the AAA for a master arbitrator to review the issues, and Master Arbitrator A. Jeffrey Grob, Esq. upheld Arbitrator Connor’s arbitration award (see NYSCEF Doc No. 1, Petition ¶¶ 3, 83).

After ATIC commenced this Article 75 proceeding, Nexray filed a cross-petition in support of Master Arbitrator Grob’s award (see NYSCEF Doc No. 13, Notice of Cross-Petition; NYSCEF Doc No. 14, Cross-Petition). Nexray sought confirmation of the arbitration award and attorney’s fees, costs, and disbursements with respect to this proceeding.

Petitioner ATIC’s Arguments

Petitioner ATIC argues that the master arbitrator’s award should be vacated as a matter of law. ATIC states the award issued to Nexray by Arbitrator Connor and later upheld by Master Arbitrator Grob is faulty, and relies upon Matter of Petrofsky [Allstate Ins. Co.] (54 NY2d 207 [1977]) for the argument that an arbitration award should be overturned when it is arbitrary and capricious, irrational or without a plausible basis (see NYSCEF Doc No. 1, notice of petition ¶ 34). It cited to various other court decisions ruling on the standard of review of No-Fault arbitration awards (see generally NYSCEF Doc No. 1, Petition).

ATIC asserts the award should be vacated as Nexray’s claims (both bills) were properly denied. ATIC argues that the arbitrator and master arbitrator issued awards that conflicted with well-settled law. The denials of claim were appropriate as ATIC had reason to believe Assignor was working when the accident occurred. As such, Worker’s Compensation became primary. (See NYSCEF Doc No. 1, Petition ¶¶ 42-59.) Furthermore, “The Worker’s Compensation Board has exclusive jurisdiction to determine whether workmen’s [sic] compensation benefits are available to the claimant, and it is inappropriate for the arbitrators to express an opinion. . . .” (id. ¶ 55). The Appellate Term recognizes that the Worker’s Compensation Board must determine workers’ eligibility, and a No-Fault insurer must show evidence of “potential merit” that a Workers’ Compensation defense exists (see id. ¶ 56, citing A.B. Med. Servs. v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U] [App Term, 2d & 11th Dists 2005]). Here, ATIC argues there were reasons to believe that the claimant was employed when the injury occurred (see NYSCEF Doc No. 1, Petition ¶ 43). “The arbitrator’s decision was arbitrary and capricious, without rational basis and incorrect as a matter of law because the arbitrator ignored Petitioner’s evidence and/or well settled legal precedent in order to justify a determination in favor of Applicant” (NYSCEF Doc No. 1, Petition ¶ 57).

Additionally, ATIC argues that they have met their burden of proving that medical necessity for the MRIs was not present through the peer review conducted by Dr. Peter Chiu, M.D. As such, the burden shifted to Nexray, who had to prove by a preponderance of the evidence that the services were medically necessary and reasonable. ATIC alleges that Nexray failed to meet its burden as it did not rebut the findings and conclusions set forth in Dr. Chiu’s peer review report. Nexray’s failure to refute said findings and conclusions went against well-[*3]settled law which requires a health service provider to affirmatively prove medical necessity. As the fact finder, the arbitrator did not have evidence to weigh when determining if the services were medically necessary; and due to the absence of evidence from Nexray, the arbitrator should have found in ATIC’s favor. ATIC argues that both arbitrators went against well-settled law in favoring Nexray, resulting in an arbitrary and capricious decision, being without rational basis and incorrect. (See id. ¶¶ 60-82.)

Finally, ATIC argued also that it was arbitrary and capricious, irrational, and without plausible basis to reject its defense to the subject bills relying on Assignor’s failure to attend IMEs (see id. ¶¶ 35-41). Arbitrator Connor had found that ATIC “did not provide any evidence to establish that the Assignor failed to appear for the examinations” (id. ¶ 37, citing NYSCEF Doc No. 3, Arbitration Award at 4). Yet there was evidence, maintained ATIC. It was in the form of an affidavit from Tracy Simpson. Although it was hearsay it should have been accepted since strict conformity to the rules of evidence is not necessary in arbitration. (See id. ¶¶ 37-38.)

Respondent Nexray’s Arguments

Here, Respondent Nexray asserts that the arbitration award should be confirmed as “the ‘[s]tandard of review of decisions in mandatory arbitration proceedings is whether the decision lacks rationality” (NYSCEF Doc No. 14, Cross-Petition, citing Unigard Mut. Ins. Co. v Hartford Ins. Group, 108 AD2d 917 [2d Dept 1985]). Referencing an arbitrator acting inapposite to settled law when there is a defense that benefits should come from Workers’ Compensation, Nexray disagrees with the arbitration outcome, as ATIC failed to provide evidence that Assignor was on duty or carrying a passenger at the time of the incident. Also, the denials of claim were late. Therefore, Workers’ Compensation is not an appropriate defense, and ATIC must pay the award. (See NYSCEF Doc No. 14, Cross-Petition ¶¶ 18, 40-45.)

Additionally, it was not within the scope of Nexray’s burden to rebut ATIC’s peer review of Dr. Chiu because the defense was nullified. Nexray mailed bills for dates of service July 13, 2019 and July 19, 2019; these bills were received by ATIC on August 5, 2019 and August 2, 2019 respectively. ATIC failed to respond with its IME requests within the 30-day window thereafter, as mandated per Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. (48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d, 11th & 13th Dists 2015]), thereby nullifying the defense of lack of medical necessity. (See NYSCEF Doc No. 14, Cross-Petition ¶¶ 13-16, 18, 35, 49-51.) Also, there is a presumption of medical necessity that attaches to a claim form. ATIC is mistaken in averring that the evidence proved the MRIs were not medically necessary. (See id. ¶¶ 36-39, 49-51.)

As for the IME no-show defense, it too was nullified by the late issuance of ATIC’s denials of claim, argued Nexray (see id. ¶¶ 48-51). And moreover the arbitrator found that ATIC failed to prove that Assignor failed to appear (see id. ¶¶ 18, 57).

According to Nexray, the arbitrator’s award, followed by the affirmance of the master arbitrator, was rational and based on well-settled law. ATIC failed to meet its burden in this proceeding of proving otherwise.

Should the Court find for Nexray, it asks for a reasonable attorney’s fee to be awarded pursuant to 11 NYCRR 65-4.10 (j) (4).

Discussion

A special proceeding, such as one commenced pursuant to CPLR 7511 to vacate an arbitration award, “is a civil judicial proceeding in which a right can be established or an obligation enforced in summary fashion. Like an action, it ends in a judgment (CPLR 411), but [*4]the procedure is similar to that on a motion (CPLR 403, 409). Speed, economy and efficiency are the hallmarks of this procedure.” (Vincent C. Alexander, Prac Commentaries, McKinney’s Cons Laws of NY, CPLR C401:01.)

In Matter of FIA Card Servs. v Thompson (18 Misc 3d 1146[A], 2008 NY Slip Op 50450[U] [Dist Ct, Nassau County 2008], the court discussed a petitioner’s burden when commencing a special proceeding to confirm an arbitration award. The court’s analysis would likewise apply to special proceedings to vacate an arbitration award. “In evaluating the proof offered by a petitioner in support of the foregoing, it must be kept in mind that ‘the standards governing motions for summary judgment are applicable to special proceedings generally (Matter of Port of New York Auth. [62 Cortlandt St. Realty Co.], 18 NY2d 250, 255, cert denied sub nom. McInnes v. Port of New York Auth., 385 U.S. 1006)[.]’ Brusco v. Braun, 199 AD2d 27, 31 (1st Dept. 1993) aff’d84 NY2d 674 (1994); See also: CPLR 409(b); Friends World College v. Nicklin, 249 AD2d 393 (2nd Dept. 1998); Bahar v. Schwartzreich, 204 AD2d 441 (2nd Dept. 1994). Accordingly, to prevail, a petitioner must submit proof in evidentiary form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065 (1979)[.] A petitioner’s failure to do so will result in the denial of the petition, regardless of the sufficiency of any papers in opposition. Winegrad v. New York University Medical Center, 64 NY2d 851 (1985); Delgado v. Butt, [48] AD3d [735] (2nd Dept. 2008) Martinez v. 123-16 Liberty Ave. Realty Corp., 47 AD3d 901 (2nd Dept. 2008)[.]” (Matter of FIA Card Servs., 18 Misc 3d 1146[A], 2008 NY Slip Op 50450[U], *5 [parallel citations omitted].)

In the instant Article 75 proceeding, Nexray did not raise an issue as to the sufficiency of ATIC’s papers, i.e., the notice of petition, petition, and supporting exhibits. This Court, however, did at oral argument. Returning to the relief sought in ATIC’s Notice of Petition, this Court notes that ATIC sought an order and judgment “VACATING the arbitration award issued by Arbitrator Bernadette Connor, Esq. and/or Master Arbitrator A. Jeffrey Grob, Esq. under Article 75 of the CPLR” (NYSCEF Doc No. 2, Notice of Petition at 1). That A. Jeffrey Grob was the master arbitrator who issued the master arbitration award sought to be vacated was indicated in ATIC’s petition (see NYSCEF Doc No. 1, Petition ¶¶ 3, 31, 83).

In order to assess ATIC’s arguments in support of the petition herein this Court needed to be presented with a copy of Master Arbitrator Grob’s award. ATIC did not include same as an exhibit. Rather, it included the master arbitration award in Matter of Arbitration of Rutland Med., PC v American Tr. Ins. Co. a/a/o “SC” (AAA Case No. 99-20-1175-4211 [July 25, 2022]), which coincidentally was the subject of this Court’s decision, order, and judgment in American Tr. Ins. Co. v Rutland Med, PC (79 Misc 3d 1236[A], 2023 NY Slip Op 50814[U] [Sup Ct, Kings County 2023]). Clearly the wrong master arbitration award was submitted in ATIC’s papers herein.

“[A]s a general matter, a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion (see Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d at 55), for “[w]e are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made” (Misicki v Caradonna, 12 NY3d 511, 519 [2009]).

ATIC was not blindsided by this Court’s observation at oral argument that it failed to include a copy of Master Arbitrator Grob’s award. During argument, ATIC proceeded to offer its arguments as to why its petition to vacate should be granted, going into the details of the [*5]issues in the arbitration, but, after this Court raised the issue of the wrong master arbitration award being submitted, conceded that it was aware of the error since earlier in the morning. For its part, Nexray was not aware of the error when it submitted its notice of cross-petition and cross-petition.

A court must always review a motion for summary judgment to determine if the movant has made out a prima facie case in the first instance. “A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.” (CPLR 3212 [b].) The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “[I]nconsistencies which appear on the face of plaintiff’s own papers prohibit the granting of summary judgment, despite the inadequacy of the opposing papers” (Bank of NY v McLean, 116 AD2d 546, 547 [2d Dept 1986], citing to Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Article 75 proceedings have evidentiary and substantive requirements similar to summary judgment motions (see Worldwide Asset Purch., LLC v Karafotias, 9 Misc 3d 390, 394 [Civ Ct, Kings County 2005], citing Brusco v Braun, 199 AD2d 27, 31-32 [1st Dept 1993], affd on other grounds 84 NY2d 674 [1994]; accord Matter of Port of NY Auth. (62 Cortlandt St. Realty Co.),18 NY2d 250, 255 [1966], cert denied sub nom. McInnes v Port of NY Auth., 385 US 1006 [1967] [condemnation proceeding]).

Therefore, a court determining an Article 75 special proceeding seeking vacatur of an arbitration award must review it in order to assess whether the petitioner made out a prima facie case in support of the requested relief, just as it would do the same when presented with a summary judgment motion.

Even if ATIC was not aware of its error, this Court, in the absence of Master Arbitrator Grob’s award being in the record, would not be able to determine whether he erred as a matter of law and, if so, whether it was so irrational as to require vacatur (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982]; Matter of Liberty Mut. Ins. Co. v Spine Americare Med., P.C., 294 AD2d 574 [2d Dept 2002]), or whether he exceeded his powers (see Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724 [2d Dept 1994]).

Failing to attach a copy of the arbitration award in an Article 75 proceeding denudes the petition of a prima facie case (see Amica Mut. Ins. Co. v City of NY, 2019 WL 4274334 [Sup Ct, NY County, Sept. 5, 2019, No. 652663/2019]). “As an initial matter, petitioner fails to attach the arbitration award as an exhibit to its petition, which necessitates denial on that ground alone” (Countrywide Ins. Co. v American Tr. Ins. Co., 2021 WL 939010 [Sup Ct, NY County, Mar. 9, 2021, No. 654011/20]).

This Court denies ATIC’s petition to vacate Master Arbitrator A. Jeffrey Grob’s award as ATIC failed to make a prima facie showing. It failed to attach the master arbitration award as an exhibit to its October 17, 2022 petition, and the master arbitration award which was submitted was inconsistent with ATIC’s notice of petition and petition.

Attorney’s Fee

As mentioned supra at 5, Nexray sought an attorney’s fee in the event it prevailed in having the master arbitration award of A. Jeffrey Grob confirmed.

11 NYCRR 65-4.10 [j] [4] in the New York No-Fault Insurance Regulations provides, “The attorney’s fee for services rendered . . . in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (see also Global Liberty Ins. Co. of NY v North Shore Family Chiropractic, PC, 178 AD3d 525 [1st Dept 2019]; GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2d Dept 2017]).

While technically Nexray has prevailed in the within Article 75 proceeding, it did not do so on any ground it advanced. Nexray overlooked ATIC’s error in not submitting Master Arbitrator Grob’s award. Not only that, its boilerplate nature cross-petition — significant components of it have been used in past Article 75 proceedings — misdescribed the arbitration award as being dated March 10, 2022, instead of April 11, 2022 (see NYSCEF Doc No. 14, Cross-Petition ¶ 3; NYSCEF Doc No. 3, Arbitration Award at 6). Nexray referred to the master arbitration award in this case as being dated July 25, 2022, when that was the date of the erroneously submitted master arbitration award in Matter of Arbitration of Rutland Med., PC v American Tr. Ins. Co. a/a/o “SC” (see NYSCEF Doc No. 14, Cross-Petition ¶ 4; NYSCEF Doc No. 4, Master Arbitration Award at 4). The same dates of March 10, 2022 and July 25, 2022 were erroneously set forth respectively for the arbitration award and the master arbitration award, in Nexray’s Notice of Petition (see NYSCEF Doc No. 13, Notice of Petition at 1).

“In determining what is reasonable compensation for an attorney, the court may consider a number of factors, including, inter alia, the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented, the lawyer’s experience, ability, and reputation, the customary fee charged for similar services, and the results obtained (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 839; Diaz v Audi of Am., Inc., 57 AD3d 828, 830 [2008]). The determination of reasonable attorney’s fees is generally left to the discretion of the trial court, which is often in the best position to determine those factors integral to the fixing of a reasonable fee (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 840; Miller Realty Assoc. v Amendola, 51 AD3d at 990).” (Diggs v Oscar De La Renta, LLC, 169 AD3d 1003, 1004-1005 [2d Dept 2019]; accord Matter of Freeman, 34 NY2d 1 [1974]; Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036 [2d Dept 2015]).

Nexray’s counsel has not attested to how much time was involved in preparing the papers opposing ATIC’s petition. The issues presented in the petition were neither difficult nor novel. This Court recalls that Nexray’s counsel has dealt with medical necessity on various occasions (e.g. American Tr. Ins. Co. v Rutland Med., PC, 79 Misc 3d 1236[A], 2023 NY Slip Op 50814[U] [Sup Ct, Kings County 2023]). He dealt with a Workers’ Compensation defense too (see American Tr. Ins. Co. v Nexray Med. Imaging PC, 79 Misc 3d 1206[A], 2023 NY Slip Op 50538[U] [Sup Ct, Kings County 2023]. Counsel did not submit anything to elaborate on his experience, ability, and reputation, or to establish the customary fee charged for similar services.

Most significantly, with respect to results obtained, the last factor in determining an attorney’s fee, Nexray’s counsel failed to notice that ATIC did not attach a copy of the master arbitration award of A. Jeffrey Grob, Esq., which was sought to be vacated. Hence, Nexray’s counsel’s work did not provide the basis underpinning the reasoning utilized by this Court in denying the petition.

Even had Nexray not filed a cross-petition, ATIC’s petition would have been denied and the master arbitration award confirmed. Nonetheless it did go through the formality of making a [*6]cross-motion for purposes of confirming Master Arbitrator Grob’s award, so a nominal attorney’s fee of $100.00 is awarded.

Conclusion

Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED that:

(1) ATIC’s petition to vacate the master arbitration award of A. Jeffrey Grob in AAA Case No. 99-20-1166-0711 is denied and this proceeding is dismissed.

(2) Nexray’s cross-petition to confirm said master arbitration award is granted.

(3) Said master arbitration award is confirmed.

(4) Nexray is awarded the principal amount of $1,790.67 as No-Fault insurance medical benefits.

(5) Nexray is awarded simple interest (i.e., not compounded) on the said principal amount at two per cent per month on a pro rate basis using a 30-day month, computed in accordance with the provisions of Insurance Law § 5106 (a) and 11 NYCRR 65-3.9 and 65-4.5 (s) (3).^[FN1]

(6) After calculating the sum total of the said principal amount plus the interest thereon, ATIC shall pay Nexray an attorney’s fee equal to 20 percent of that sum total, subject to a maximum fee of $1,360.00, in accordance with Insurance Law § 5106 (a) and 11 NYCRR 65-3.10 and 65-4.5 (s) (2).

(7) ATIC shall pay Nexray the $40.00 arbitration filing fee.

(8) ATIC shall pay Nexray an attorney’s fee in connection with the master arbitration if one was awarded by the master arbitrator.^[FN2]

(9) ATIC shall pay Nexray an attorney’s fee of $100.00 for work performed by counsel in this Article 75 proceeding.

(10) Nexray shall recover from ATIC costs and disbursements as allowed by law to be taxed by the Clerk.

Dated: September 8, 2023
HON. AARON D. MASLOW
Justice of the Supreme Court of the State of New York

Footnotes

Footnote 1:“Pursuant to Insurance Law §5106(a), interest accrues on overdue no-fault insurance claims at a rate of 2% per month. A claim is overdue when it is not paid within 30 days after a proper demand is made for its payment [citations omitted].” (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009].) If an applicant prevails in whole or in part on its claim, the arbitrator shall direct the insurer to “in an award of interest, compute the amount due for each element of first-party benefits in dispute, commencing 30 days after proof of claim therefor was received by the insurer and ending with the date of payment of the award, subject to the provisions of section 65-3.9(c) of this Part (stay of interest)” (11 NYCRR 65-4.5 [s] [3]). “If an applicant does not request arbitration or institute a lawsuit within 30 days after the receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations, interest shall not accumulate on the disputed claim or element of claim until such action is taken” (11 NYCRR 65-3.9 [c]). This provision of the No-Fault Regulations applies to untimely-issued denials as well as to timely ones, and results in interest being tolled until arbitration is requested (see LMK Psychological Services, P.C., 12 NY3d 217; see also East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202 [2d Dept 2009]).

In the case at bar, Nexray did not request arbitration within 30 days after receipt of ATIC’s two denials appurtenant to the bills for which compensation was awarded. Hence, there are actually two periods of interest, the first of which commences 30 days from when the insurer received proof of claim and ends on the date it issued its denial, and the second of which commences on the date arbitration was commenced and ends on the date of payment of the claim. (See State Farm Mut. Auto Ins. Co. v Pfeiffer, 95 AD2d 806 [2d Dept 1983].) In calculating interest, the date of accrual in both periods shall be excluded from the calculation (see General Construction Law § 20 [“The day from which any specified period of time is reckoned shall be excluded in making the reckoning.”]). Where a motor vehicle accident occurs after April 5, 2002, interest shall be calculated at the rate of two percent per month, simple, calculated on a pro rata basis using a 30-day month (see 11 NYCRR 65-3.9(a); Gokey v Blue Ridge Ins. Co., 22 Misc 3d 1129[A], 2009 NY Slip Op 50361[U] [Sup Ct, Ulster County 2009]).

The $912.00 claim awarded for date of service July 13, 2019 was denied on September 19, 2019, following ATIC’s receipt of proof of claim on August 5, 2019 (see NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Appeal at 4). The denial of claim was found late by the arbitrator. Therefore, payment became overdue 30 days after receipt of proof of claim. The 30th day thereafter (“overdue date”) was September 4, 2019. Issuance of the late denial of claim tolled interest until arbitration was commenced on May 22, 2020 (see NYSCEF Doc No. 5, Nexray’s Arbitration Request Form and Arbitration Submission at 1). With respect to this claim, therefore, ATIC shall pay Nexray interest computed from September 4, 2019 to September 19, 2019, but excluding September 4, 2019 from being counted within the period of interest; and from May 22, 2020 to the date of payment of the award, but excluding May 22, 2020 from being counted within the period of interest.

The $878.67 claim awarded for date of service July 19, 2019 was denied on September 19, 2019, following ATIC’s receipt of proof of claim on August 5, 2019 (see NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Appeal at 6). The denial of claim was found late by the arbitrator. Therefore, payment became overdue 30 days after receipt of proof of claim. The 30th day thereafter (“overdue date”) was September 4, 2019. Issuance of the late denial of claim tolled interest until arbitration was commenced on May 22, 2020 (see NYSCEF Doc No. 5, Nexray’s Arbitration Request Form and Arbitration Submission at 1). With respect to this claim, therefore, ATIC shall pay Nexray interest computed from September 4, 2019 to September 19, 2019, but excluding September 4, 2019 from being counted within the period of interest; and from May 22, 2020 to the date of payment of the award, but excluding May 22, 2020 from being counted within the period of interest.

The interest rate shall be two percent per month, simple (i.e., not compounded), on a pro rata basis using a 30-day month.

Footnote 2:In the absence of Master Arbitrator Grob’s award being submitted, this Court has no information whether he awarded an arbitration appeal attorney’s fee.

American Transit Insurance Company, Petitioner, against PDA NY Chiropractic, P.C., A/A/O Leonidis Rodriguez, Respondent.

Index No.: 504957/2023

Larkin Farrell LLC, New York City, for Petitioner.

Aaron D. Maslow, J.

The following numbered papers (submitted by Petitioner) were read on this petition:

Petition (NYSCEF Doc No. 1)
Notice of Petition (NYSCEF Doc No. 2)
Exhibit A — Arbitration Award (NYSCEF Doc No. 3)
Exhibit B — Master Arbitration Award (NYSCEF Doc No. 4)
Exhibit C — Respondent’s Arbitration Request Form and Arbitration Submission (“PDA’s Arbitration Request Form & Submission”) (NYSCEF Doc No. 5)
Exhibit D — Petitioner’s Arbitration Submission and Master Arbitration Appeal (“ATIC’s Arbitration Submission and Master Arbitration Brief”) (NYSCEF Doc No. 6)
Statement of Authorization for Electronic Filing (NYSCEF Doc No. 7)
Request for Judicial Intervention (NYSCEF Doc No. 8)
Affidavit of Service (NYSCEF Doc No. 9)
Statement of Authorization for Electronic Filing (NYSCEF Doc No. 10)
Affidavit of Service (NYSCEF Doc No. 11)

Issue Presented

Is it incorrect as a matter of law and irrational for a No-Fault insurance master arbitrator [*2]to affirm a hearing arbitrator’s ^[FN1] award determining that (1) a health service provider met its obligation to submit additional verification requested by the insurer under a standard of “substantial compliance,” (2) an insurer’s seeking sign-in sheets was not reasonable when “medical documentation” was submitted, and (3) an insurer’s seeking information as to whether Workers’ Compensation benefits were available was not necessary when the assignor testified that he was not working and the insurer did not issue denials of claim based on a Workers’ Compensation defense?

Background

Petitioner American Transit Insurance Company (“ATIC”) commenced this CPLR Article 75 proceeding by notice of petition, seeking an order and judgment vacating a No-Fault insurance master arbitration award of Victor J. Hershdorfer, Esq. (dated December 21, 2022), which affirmed the arbitration award of John Kannengieser, Esq. (dated September 26, 2022) granting Respondent PDA NY Chiropractic P.C.’s (“PDA”) claim for No-Fault insurance compensation in the amount of $4,150.27 for chiropractic treatment reflected in a total of eight bills.^[FN2] ,^[FN3] The services at issue were provided to Leonidis Rodriguez, who claimed to have been injured in a motor vehicle accident on February 2, 2020. He assigned his No-Fault insurance benefits to PDA, and is denoted as “Assignor.”^[FN4] (See NYSCEF Doc No. 1, Petition ¶¶ 1-3, 16-[*3]24.)

Respondent PDA did not submit any papers in opposition. The petition came before the undersigned for oral argument on July 20, 2023. At that time, neither party appeared. This Court has considered the petition on the papers submitted (see Buckley v Zoning Bd. of Appeals of City of Geneva, 189 AD3d 2080, 2081 [4th Dept 2020]; Matter of Dandomar Co., LLC v Town of Pleasant Val. Town Bd., 86 AD3d 83 [2d Dept 2011]; Matter of Javarone, 76 Misc 2d 20, 21 [Fulton County Ct 1973] [“special proceeding “may be summarily determined by the court solely on the pleadings and other papers submitted”], affd 49 AD2d 788 [3d Dept 1975]). A court should review an Article 75 petition to vacate an arbitration award even in the absence of opposing papers (see American Tr. Ins. Co. v NextStep Healing, Inc., 79 Misc 3d 1203[A], 2023 NY Slip Op 50521[U] [Sup Ct, Kings County 2023]).

The underlying arbitration which is the subject of this proceeding was organized by the American Arbitration Association (“AAA”), which assigned Case No. 17-21-1198-7980 ^[FN5] to it. The AAA has been designated by the New York State Department of Financial Services to coordinate the mandatory arbitration provisions of Insurance Law § 5106 (b):

Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party [“No-Fault insurance”] benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent.

Insurance Law Article 51 provides for the payment of basic economic loss incurred by persons injured in motor vehicle accidents. Included within basic economic loss are first-party benefits for medical and other professional health services.^[FN6] First-party benefits are more commonly known as “No-Fault benefits”^[FN7] or “personal injury protection (PIP) benefits.”^[FN8]

In furtherance of the statutory scheme, a comprehensive set of No-Fault Regulations was promulgated by the Superintendent of Insurance (presently Superintendent of Financial Services). They are contained at 11 NYCRR Part 65. Said part is subdivided into five subparts [*4]which encompass the following topics: prescribed policy endorsements (11 NYCRR Subpart 65-1), rights and liabilities of self-insurers (11 NYCRR Subpart 65-2), claims for personal injury protection benefits (11 NYCRR Subpart 65-3), arbitration (11 NYCRR Subpart 65-4), and unauthorized providers of health services (11 NYCRR Subpart 65-5). Part 65 is also known as Insurance Regulation 68.

Generally, the claims process for health service bills ^[FN9] for No-Fault insurance compensation begins with the submission by a health service provider of a claim form (usually, but not always, a Form NF-3 verification of treatment by attending physician or other provider of health service).^[FN10] Besides providing information regarding the injured person, the accident, the subject insurance policy, the billing health service provider, diagnoses, and projected treatment, the claim form includes a bill for services performed. The claim form can be submitted directly by the injured person to the No-Fault insurer but over many decades a practice developed whereby the health service providers submit the claim forms. As noted in footnote 4, they possess standing to do so by virtue of having received signed assignments of benefits from the injured persons.^[FN11] ,^[FN12] The insurer must then either pay or deny the bill within 30 days, or seek additional verification within 15 business days. If it denies payment, it must issue a Form NF-10 denial of claim ^[FN13] explaining why the bill was not paid. (See Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505 [2015].)

The record evidence submitted in this Article 75 proceeding revealed that the underlying arbitration involved eight claim forms covering services for a period of February 19, 2020-September 29, 2020, as per the Form AR Arbitration Request Form (see NYSCEF Doc No. 5, PDA’s Arbitration Request Form & Submission at 6).^[FN14] The following chart provides pertinent information concerning the eight bills and how Respondent dealt with them:

Dates of Service	Amount	Respondent’s Actions
2/19/20-2/28/20	$285.94	Issued additional verification requests 4/1/20 & 5/6/20, seeking examination under oath (“EUO”) of Assignor, sign-in sheets from dates of service, and letter of medical necessity. Reminder of non-provision of requested additional verification 7/20/20. No denial of claim issued.
3/2/20-3/23/20	$739.84	Issued additional verification requests 4/15/20 & 5/20/20, seeking EUO of Assignor, sign-in sheets from dates of service, and letter of medical necessity. Reminder of non-provision of requested additional verification 5/27/20 & 7/20/20. No denial of claim issued.
4/7/20	$26.41	Denial of claim asserted untimely proof of claim (“45-day rule”).
[*5]5/4/20-5/28/20	$647.36	Issued additional verification requests 6/16/20 & 7/21/20, seeking EUO of Assignor, information from Assignor to determine eligibility for Workers’ Compensation independent livery fund coverage,[FN15] sign-in sheets from dates of service, chiropractic re-evaluation report, and letter of medical necessity. No denial of claim issued.
6/1/20-6/30/20	$1017.28	Issued additional verification requests 7/20/20 & 8/24/20, seeking EUO of Assignor, information from Assignor to determine eligibility for Workers’ Compensation independent livery fund coverage, sign-in sheets from dates of service, chiropractic re-evaluation report, and letter of medical necessity. Reminder of non-provision of requested additional verification 9/24/20. No denial of claim issued.
[*6]7/1/20-7/30/20	$739.84	Issued additional verification requests 8/17/20 & 9/21/20, seeking EUO of Assignor, information from Assignor to determine eligibility for Workers’ Compensation independent livery fund coverage, sign-in sheets from dates of service, chiropractic re-evaluation report, and letter of medical necessity. No denial of claim issued.
8/3/20-8/31/20	$462.40	Denial of claim asserted lack of medical necessity based on Dr. John Iozzio’s independent medical examination (“IME”) report.
9/3/20-9/29/20	$231.20	Denial of claim asserted lack of medical necessity based on Dr. John Iozzio’s IME report.

(See NYSCEF Doc No. 5, PDA’s Arbitration Request Form & Submission at 6, 8-33; NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Brief at 19-38, 40-43.)

Hearing Arbitrator’s Award

The record evidence reveals further that on August 26, 2022, Arbitrator John Kannengieser, Esq. (“hearing arbitrator”), conducted a hearing at which George T. Lewis Jr., Esq., from George T. Lewis, Jr., P.C., appeared for PDA, and Megan Harris appeared for ATIC (see NYSCEF Doc No. 3, Arbitration Award at numbered p 1).

The American Arbitration Association maintains an online platform for documents filed by parties to No-Fault insurance arbitrations. It is called Modria.^[FN16] The submissions for the arbitration at issue are contained in NYSCEF Doc Nos. 5 and 6 submitted by ATIC.

With respect to the bill for date of service April 7, 2020, which was denied on the asserted ground of late proof of claim, the hearing arbitrator found credible PDA’s claim that the [*7]bill was timely mailed (see NYSCEF Doc No. 3, Arbitration Award at numbered p 2). This determination has not been challenged by ATIC.

With respect to the bills for dates of service August 3, 2020-August 31, 2020 and September 3, 2020-September 29, 2020, the hearing arbitrator found that Dr. John Iozzio’s IME report made out a prima facie case of lack of medical necessity for further treatment, but that PDA’s medical records and reports documenting continued pain, reduced range of motion, muscle spasm, and subluxations were sufficiently credible enough to prove medical necessity. Therefore he awarded compensation as billed. (See id. at numbered pp 2-3.)

Finally, with respect to the five remaining bills — covering dates of service February 19, 2020-February 28, 2020; March 2, 2020-March 23, 2020; May 4, 2020-May 28, 2020; June 1, 2020-June 30, 2020; and July 1, 2020-July 30, 2020 — the hearing arbitrator noted that no denials of claim were issued. Rather, ATIC delayed the bills in order to seek additional verification. He took note that an EUO of Assignor was sought, as well as certain medical documentation, information pertaining to livery fund coverage (as potential Workers’ Compensation benefits), and PDA’s dates of service sign-in sheets. (See id. at numbered p 2.)

Responses to the requests for medical documentation were acknowledged by ATIC, wrote the hearing arbitrator. The EUO of Assignor was conducted. Since Assignor “clearly testified” at his EUO that he was not working at the time of the accident, there was no need for the information pertaining to Workers’ Compensation through the livery fund. “[ATIC]’s request for sign-in sheets is not a reasonable request, as medical documentation for each of the [dates of service] at issue has been provided.” (Id.) For the affected five bills pended for additional verification, the amounts billed were awarded, as the hearing arbitrator denied ATIC’s defense that the bill claims were premature in the absence of additional verification being provided (see id.).

Altogether the hearing arbitrator awarded $4,150.27 as No-Fault insurance benefits to PDA. He also awarded interest of 2% per month, an attorney’s fee, and return of the $40.00 filing fee (see id. at numbered pp 4-5; Insurance Law § 5106 [a]; 11 NYCRR 65-4.5 [s]).

Master Arbitrator’s Award

ATIC filed for master arbitration to appeal the hearing arbitrator’s award. It presented two arguments.

(A) Rebutting the IME Report

The first contention on appeal by ATIC was that the hearing arbitrator erred as a matter of law and his award was irrational because when he assessed ATIC’s defense of lack of medical necessity with respect to the two bills denied on that ground, he did not take into account well settled case law concerning the need for a medical claimant to meaningfully rebut and discuss the conclusions of the insurer’s expert (citing Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321 [2d, 11th & 13th Dists 2009]), and other decisions (see NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Brief at 138-140).

Master Arbitrator Victor J. Hershdorfer, Esq. (“master arbitrator”) summarized this first issue in dispute as follows: “Was the arbitrator’s determination that the applicant met its burden as to medical necessity irrational and/or incorrect as a matter of law?” (NYSCEF Doc No. 4, Master Arbitration Award at 1.)

The master arbitrator noted that the medical necessity issue was determined in PDA’s favor by the hearing arbitrator. The latter had “found that the IME by Dr. Iozzio shifted the [*8]burden,” and that while PDA “submitted no direct rebuttal to the IME but relied upon medical records and reports,” PDA’s evidence was “sufficient . . . to meet its burden of proving the medical necessity of the health services at issue” (id. at 2).

Having summarized the hearing arbitrator’s analysis, the master arbitrator concluded with his own:

Insurance Law §5102 provides for reimbursement for all medically necessary expenses on account of personal injuries arising out of the use or operation of a motor vehicle.

Unfortunately, neither the statute nor the regulations interpreting the stature define what is “necessary”. That determination is almost ultimately one of fact to be determined by the arbitrator or a court on a case-by-case basis. See opinion of the Office of General Counsel of the Superintendent of Insurance, www.ins.ny.us/rg000111.htm (January 11, 2000).

The role of the master arbitrator is to review the determination of the no-fault arbitrator to be sure that the arbitrator reached a decision in a rational manner and that the decision was not irrational, arbitrary or capricious. Petrofsky v. Allstate Insurance Co., 54 NY2d 207 (1981).

A master arbitrator exceeds his statutory power by making his own factual determination, by reviewing factual and procedural errors committed during the course of the arbitration, by weighing the evidence, or by resolving issues such as the credibility of witnesses. Matter of Allstate Insurance Co. v. Keegan, 201 AD2d 724 (2d Dept., 1994); Mott v. State Farm Insurance Co., 55 NY2d 224 (1982). See also Metro Pain Specialist, P.C., Matter of Country-Wide Ins. Co., 2020 NY Slip Op. 50014 (App. Term, 2nd Dept., 9th, 10th Jud. Dists. 1/2/2020.)

The arbitrator is free to choose between the experts’ testimony and evaluate the evidence. Bilotta v. Chevrolet-Tonawanda Division GMC, 81 AD2d 718 (3d Dept., 1981).

. . .

The determination as to medical necessity is not irrational or incorrect as a matter of law.

(B) ATIC’s Additional Verification Requests

ATIC’s second contention on appeal was that the hearing arbitrator erred as a matter of law in rejecting ATIC’s arguments with respect to the five bills pended for additional verification. In pertinent part, ATIC argued:

The 30 day period under 11 NYCRR § 65-3.3 in which a no-fault insurer must either pay or deny a claim for first party benefits may be extended by the insurer’s timely requests for verification of the claim, and, until the insurer receives verification of the claim, the 30-day period is tolled and the insurer need not pay or deny the claim. See, New York Hosp. v. Country-Wide, 295 AD2d 583, 744 N.Y.S.2d 201 (2d Dep’t 2002); Westchester County Medical Center v. New York Central Mut. Fire Ins. Co., 262 AD2d 553, 692 N.Y.S.2d 665 (2d Dep’t 1999).

. . .

Where a plaintiff has not provided verification of all the relevant information requested by the insurer, a no-fault action will be dismissed as premature. See, Infinity Health Products, Ltd. v Eveready Ins. Co., 67 AD3d 862, 865, 890 N.Y.S.2d 545 (2d Dep’t 2009); New York Hosp. v Country-Wide, supra.

. . .

Since to this day, the Respondent has not received the records it needs to take a position [*9]on the claim, this matter should have been dismissed.

The NFA’s conclusion that since the Applicant stated at his EUO that he was not injured in the course of his employment no response was required, lacks a rational basis. . . .

In any event, the claimant’s self-certified conclusion that he is entitled to PIP and not Workers’ Compensation is obviously not dispositive of the issue.

Accordingly, the order appealed from should be reversed.

(See NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Brief at 135-137.)

This second issue was summarized by the master arbitrator as follows: “Should the arbitrator’s determination that the applicant had substantially complied with the verification requests be reversed” (NYSCEF Doc No. 4, Master Arbitration Award at 1)?

The master arbitrator’s analysis of the hearing arbitrator’s consideration of the additional verification issue was as follows:

The argument was that the verification sought, if provided, would have allowed the appellant to take a position as to whether the claim was covered by the no-fault policy or by Workers’ Compensation Insurance.

. . .

The arbitrator found that the testimony of the EIP clearly established that he was not working at the time of the accident and that after reviewing the various requests for verification and the responses provided that the applicant has substantially complied with the verification requests and that the claims at issue are overdue.

The arbitrator is the judge of the relevance and materiality of the evidence offered. 11 NYCRR 65-4.5(o)(1).

The question as to whether the applicant’s obligations to provide verification have been met is almost always one of fact. 11 NYCRR §65-3.5(o) requires an applicant to submit “. . . all such verification under the applicant’s control or possession providing reasonable justification for the failure to comply . . .” .

It is then up to the arbitrator to determine whether the applicant has met the test set forth in the regulation.

In this case, the arbitrator found for the applicant.

. . .

The arbitrator’s determination that the applicant had substantially complied with the verification requests is not incorrect as a matter of law.

(NYSCEF Doc No. 4, Master Arbitration Award at 3-4 [emphasis added].)

(c) Master Arbitration Outcome

The master arbitrator affirmed the hearing arbitrator’s award in its entirety.

(NYSCEF Doc No. 4, Master Arbitration Award at 3.)

ATIC’s petition to vacate asserted that “The arbitration decision was arbitrary and capricious, irrational and without a plausible basis” (NYSCEF Doc No. 1, petition ¶ 35), in that “Arbitrator John Kannengieser, Esq. failed to follow well settled law” (id. ¶ 37). “An arbitration award must be vacated by the Master Arbitrator if the decision was incorrect as a matter of law. (id. ¶ 36). It also made reference to the grounds set forth in CPLR 7511 (b) (1) for vacating an arbitration award:

The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

(See NYSCEF Doc No. 1, Petition ¶ 33.)

(B) Rebutting the IME Report

The petition argued that the hearing arbitrator “failed to follow well settled law with respect to the medical necessity issue” (id. ¶ 62). Two bills at issue “for dates of service August 3, 2020-September 29, 2020 were properly and timely denied for lack of medical necessity” (id. ¶ 63). ATIC’s evidence submitted to the hearing arbitrator (Dr. Iozzio’s IME report) “clearly satisfied its burden” (id. ¶ 65). Ultimately the health service provider—PDA in this instance—had to prove by a preponderance of the evidence that its services were medically necessary, claimed ATIC; the petition to vacate cited to Dayan v Allstate Ins. Co. (49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Dists 2015]), and Park Slope Med. and Surgical Supply, Inc. v Travelers Ins. Co. (37 Misc 3d 19, 22 n [App Term, 2d Dept, 2d, 11th & 13th Dists 2012]) (see NYSCEF Doc No. 1, Petition ¶ 66). “In order for an applicant to prove that the services were medically necessary, it must meaningfully refer to, or rebut, the conclusions set forth in the peer review,” maintained the petition, which cited to Pan Chiropractic, P.C. v Mercury Ins. Co. (24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Dists 2009]) (NYSCEF Doc No. 1, Petition ¶ 67). PDA failed to offer any rebuttal at all, and certainly did not meaningfully refer to the IME report, as was required by Pan Chiropractic, P.C. and the more than 100 published decisions citing to it, insisted ATIC (see id. ¶ 68).

ATIC reiterated in several paragraphs of its petition that a health service provider seeking No-Fault medical expense compensation must meaningfully refer to and rebut an insurer’s peer reviewer’s and IME doctor’s conclusions (id. ¶¶ 72-76). “This proposition is widely accepted as ‘well settled’ law in the industry” (id. ¶ 76). “In this case the arbitrator also ruled for Respondent [PDA] despite the fact that there was no rebuttal. In doing so the arbitrator failed to follow well settled law. As such, this Court should vacate the arbitration award for the same reasons the Appellate Term reversed the trial courts in Pan Chiropractic, Eastern Star Acupuncture, Jaga Med. Servs., P.C. and High Quality Medical.” (Id. ¶ 79)

“This decision was arbitrary and capricious, without rational basis and incorrect as a matter of law because zero evidence simply cannot outweigh evidence” (id. ¶ 81). The petition concluded by asserting that the hearing arbitrator ignored ATIC’s “evidence and/or well settled legal precedent in order to justify a determination in favor of Applicant [PDA]” (id. ¶ 83).

(C) ATIC’s Additional Verification Requests

With respect to the additional verification issue, ATIC argued that claims “for dates of service February 19, 2020-July 30, 2020 [were] not paid because [ATIC] timely and properly [*10]requested verification and [PDA] failed to comply with [ATIC]’s request”^[FN17] (id. ¶ 42). The No-Fault Regulations at 11 NYCRR 65-3.5 (b) and 3.6 (b) permit a health service provider to request additional verification (see id. ¶ 43). ATIC took issue with the hearing arbitrator’s having awarded compensation “despite the fact that [PDA] failed to provide the requested verification” (id. ¶ 49). The hearing arbitrator “even acknowledged that items were not provided, disregarded the request for sign in sheets and failed to apply the well settled law to justify an award in favor of [PDA]” (id.). No-Fault benefits are not payable “until all verification is received pursuant to 11 NYCRR 65-3.8(a)(1)” (id. ¶ 50), and “the 30 days in which to pay or deny the claim is tolled and does not begin to run” (id. ¶ 51). Since PDA did not provide all that was sought its claim was premature (see id.).

ATIC insisted that it

“was not required to pay or deny the claim after its receipt of a partial response. See New Horizon Surgical Ctr., LLC v Travelers Ins. Co., 2019 NY Slip Op 51690(U) (App. Term, 2d Dept., 2019) (holding, ‘Contrary to plaintiff’s contention, defendant was not required to pay or deny plaintiff’s claims upon receipt of a ‘partial response’ to defendant’s verification requests . . .; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004] [‘A claim need not be paid or denied until all demanded verification is provided’]).’ (See also, Compas Med., P.C. v Travelers Ins. Co., 2016 NY Slip Op 51441(U), (App. Term, 2d Dept., 2016) (holding, ‘Contrary to plaintiff’s contention, defendant was not required to pay or deny plaintiff’s claims upon receipt of a ‘partial response’ to defendant’s verification requests’).

(Id. ¶ 53.) Moreover, the requested additional verification may be sought from someone other than the health service provider, ATIC citing to several decisions. “The need for sign in sheets is obvious, to confirm that the claimant actually showed up for the alleged services. . . . It is outside the scope of the arbitrator’s authority to simply disregard a timely request.” (Id. ¶ 55.)

Therefore, ATIC’s rights were prejudiced by the arbitrator’s partiality “and the arbitrator exceeded his/her power and failed to make a final and definite award and the decision must be vacated” (id. ¶ 84). The relief sought was vacatur of the arbitration awards that they “have no force or effect” (id. ¶ 85).

No-Fault Insurance Arbitration

When the No-Fault Law was first enacted by the Legislature in Chapter 13 of the Laws of 1973 to take effect February 1, 1974, § 675 of the Insurance Law was added. In subdivision 2 thereof, insurers were required to provide claimants with an arbitration option for disputes involving liability for first-party benefits. This provision was amended in Chapter 892 of the Laws of 1977, when several changes were made to the 1973 version.^[FN18] The provision regarding arbitration in § 675 was amended to add the following language:

An award by an arbitrator may be vacated or modified by a master arbitrator in [*11]accordance with simplified procedures to be promulgated or approved by the superintendent [of insurance]. The grounds for vacating or modifying an arbitrator’s decision by a master arbitrator shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules. The decision of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator’s award is five thousand dollars or greater, exclusive of interest and attorney’s fees, the insurer or the claimant may institute an action in a court of competent jurisdiction to adjudicate the dispute de novo.^[FN19]

The provisions regarding No-Fault insurance arbitration remained in the recodification of the Insurance Law enacted in Chapters 367 and 805 of the Laws of 1984. The arbitration provisions were set forth in § 5106, and subdivisions (b) and (c) now read as follows:

(b) Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent. Such simplified procedures shall include an expedited eligibility hearing option, when required, to designate the insurer for first party benefits pursuant to subsection (d) of this section. The expedited eligibility hearing option shall be a forum for eligibility disputes only, and shall not include the submission of any particular bill, payment or claim for any specific benefit for adjudication, nor shall it consider any other defense to payment.

(c) An award by an arbitrator shall be binding except where vacated or modified by a master arbitrator in accordance with simplified procedures to be promulgated or approved by the superintendent. The grounds for vacating or modifying an arbitrator’s award by a master arbitrator shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules. The award of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator’s award is five thousand dollars or greater, exclusive of interest and attorney’s fees, the insurer or the claimant may institute a court action to adjudicate the dispute de novo.

Insofar as is here relevant, the No-Fault Insurance Regulations promulgated by the [*12]Superintendent of Insurance provided that a master arbitrator may vacate or modify a hearing arbitrator’s award where it “was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground)” (11 NYCRR 65.18 [a] [4]). This regulatory language was carried over into the revised Regulations promulgated in 2002, in 11 NYCRR 65-4.10 (a) (4).^[FN20] A master arbitrator may also vacate or modify a hearing arbitrator’s award under certain other grounds also (see 11 NYCRR 65-4.10 [a]).^[FN21]

The proper standard of review by a No-Fault insurance master arbitrator is whether the hearing arbitrator’s determination was arbitrary and capricious, irrational, or without a plausible basis, or incorrect as a matter of law; the master arbitrator may not engage in an extensive factual review, which includes weighing the evidence, assessing the credibility of various [*13]medical reports, or making independent findings of fact (Matter of Petrofsky (Allstate Ins. Co.), 54 NY2d 207 [1981]).

The standard for Article 75 court scrutiny of a master arbitrator’s review of a hearing arbitrator’s award in terms of whether there was an error of law is whether it was so irrational as to require vacatur (see Matter of Smith (Firemen’s Ins. Co.), 55 NY2d 224, 232 [1982]; Matter of Acuhealth Acupuncture, PC v Country-Wide Ins. Co., 170 AD3d 1168 [2d Dept 2019]; Matter of Acuhealth Acupuncture, P.C. v New York City Transit Authority, 167 AD3d 869 [2d Dept 2018]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]). The master arbitrator’s determination of the law need not be correct, and mere errors of law are insufficient to set aside the master arbitrator’s award; on questions of substantive law, the master arbitrator’s determination must be upheld if there is a rational basis for his determination; if the master arbitrator’s errors on a matter of law are irrational, his award may be set aside (see Matter of Liberty Mut. Ins. Co. v Spine Americare Med., P.C., 294 AD2d 574 [2d Dept 2002]).

Judicial review of a master arbitrator’s factual determination in an arbitration appeal is limited to whether the master arbitrator exceeded his or her power, for instance by impermissibly weighing the credibility of a witness, by reviewing the hearing arbitrator’s factual determination, or by reviewing medical reports de novo (see Matter of Allstate Ins. Co. v Keegan (201 AD2d 724 [2d Dept 1994].

It is important to again state that arbitration of No-Fault compensation claims is compulsory against insurers (see n 19, supra). A health service provider who possesses standing via an assignment of benefits makes the election of whether to litigate its claim in court or in arbitration, which is binding upon the insurer (see Insurance Law § 5106 [b]). Such compulsory arbitration awards are held to higher level of scrutiny (see Matter of Motor Veh. Acc. Indemn. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Smith, 55 NY2d 224; Matter of Petrofsky, 54 NY2d 207; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493 [1970]; Matter of GEICO Gen. Ins. Co. v Wesco Ins. Co., 211 AD3d 729 [2d Dept 2022]).

(B) Rebutting the IME Report

As noted above, ATIC’s petition to vacate the master arbitrator’s award is predicated on two grounds. The first is that the hearing arbitrator failed to follow well settled law that a health service provider applicant in arbitration must meaningfully refer to, or rebut, the conclusions set forth in the health service provider’s medical expert’s report and, therefore, the master arbitrator’s affirmance was erroneous.

This Court has previously discussed the issue raised by ATIC—whether a health service provider applicant in No-Fault insurance arbitration must submit expert medical opinion evidence which specifically refers to and either discusses or rebuts the insurer’s expert medical opinion evidence. This Court held that it need not, because the case law ATIC relied upon governs summary judgment motions in court, not No-Fault arbitrations. (See American Tr. Ins. Co. v Right Choice Supply, 78 Misc 3d 890 [Sup Ct, Kings County 2023].) Assessment of medical necessity entails a factual review of evidence and this is committed to the arbitrator’s discretion (id.). As this Court wrote,

In part, this Court’s present determination is based on the additional provision in 11 NYCRR 65-4.10 (a) (4) which provides that “procedural or factual errors committed in the arbitration below are not encompassed within this ground.” The reference to “factual errors” conveys impliedly that when it comes to assessing evidence for the purpose of fact-finding, an arbitrator has wider latitude and should not be required to comply with [*14]settled or established law concerning what specific evidence suffices to refute the opposing party’s evidence. This Court also takes into account the general proposition that the admissibility of evidence and the determination of issues of fact are left to the arbitrator’s discretion (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 483 [2006] [“Manifest disregard of the facts is not a permissible ground for vacatur of an award. . . .”]; Central Square Teachers Association v Board of Education of the Central Square Central School District, 52 NY2d 918, 919 [1981] [“The path of analysis, proof and persuasion by which the arbitrator reached this conclusion is beyond judicial scrutiny.”]; Matter of Lipson v Herman, 189 AD3d 440, 441 [1st Dept. 2020] [“error of fact . . . will not result in the vacatur of an arbitrator’s award”]; Matter of Bernstein v On-Line Software International, Inc., 232 AD2d 336, 338 [1st Dept. 1996] [“It is well established, however, that arbitrators are not bound by the rules of evidence and may admit or deny exhibits on an equitable basis.”]). In light of this case law with respect to the admissibility of evidence and the determination of issues of fact in arbitration, 11 NYCRR 65-4.10 (a) (4)’s “matter of law” should be limited in its breadth.

(78 Misc 3d at 909-910.)

Therefore, this Court holds that the hearing arbitrator did not err when he did not require a formal rebuttal from PDA which would have specifically referred to and either discussed or rebutted ATIC’s IME report. It was within the arbitrator’s discretion to find that PDA’s treatment notes finding reduced range of motion, muscle spasm, and subluxations overcame the IME report and proved medical necessity. Further, when the master arbitrator conducted his review, he adhered to Matter of Petrofsky (54 NY2d 207), which restricted it to whether the hearing arbitrator’s determination was arbitrary, capricious, irrational, or without a plausible basis, or incorrect as a matter of law, as the master arbitrator may not engage in an extensive factual review, which includes weighing the evidence, assessing the credibility of various medical reports, or making independent findings of fact.

As an Article 75 court, this Court finds that the master arbitrator correctly affirmed the factual findings as to medical necessity especially because PDA did not have to meaningfully refer to and either discuss or rebut the IME report. Whether services were medically necessary entails a factual determination, the hearing arbitrator assessed the facts appropriately, and the master arbitrator conducted a proper appellate review; this master arbitration review was neither irrational nor erroneous as a matter of law (see Matter of Smith, 55 NY2d 224, 232; Matter of Acuhealth Acupuncture, PC, 170 AD3d 1168; Matter of Acuhealth Acupuncture, P.C., 167 AD3d 869; Matter of Acuhealth Acupuncture, P.C., 149 AD3d 828). This Court sustains this component of the master arbitrator’s award, which concerned bills for dates of service August 3, 2020-August 31, 2020 and September 3, 2020-September 29, 2020.

(C) ATIC’s Additional Verification Requests

This Court concludes otherwise with regard to the additional verification issue, which impacted five bills, the dates of service being February 19, 2020-February 28, 2020; March 2, 2020-March 23, 2020; May 4, 2020-May 28, 2020; June 1, 2020-June 30, 2020; and July 1, 2020-July 30, 2020.

(1) No-Fault Insurance Law Lacks Concept of Substantial Compliance With Verification Requests

This Court again takes cognizance of the hearing arbitrator’s finding that PDA “substantially complied” with ATIC’s additional verification requests — that Assignor’s EUO [*15]testimony that he was not working when the accident occurred and there were no denials premised on a Worker’s Compensation defense obviated the need for livery fund information, and that requesting sign-in sheets was unreasonable because medical documentation for the dates of service was provided.

“Upon receipt of one or more of the prescribed verification forms used to establish proof of claim, . . . an insurer has 15 business days within which to request any additional verification required by the insurer to establish proof of claim (11 NYCRR 65-3.5 [b]). . . . Significantly, an insurance company must pay or deny the claim within 30 calendar days after receipt of the proof of claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). If an insurer seeks additional verification, however, the 30-day window is tolled until it receives the relevant information requested (see 11 NYCRR 65-3.8 [a] [1]).” (Viviane Etienne Med. Care, P.C., 25 NY3d 498, 505 [2015] [internal quotation marks and citations omitted].)

The No-Fault program “stresses the justifying of claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]). Information sought as additional verification is not necessarily that which can be found on the prescribed verification forms “but any information that the carrier finds necessary to properly review and process the claim” (Westchester Med. Ctr. v Travelers Prop. & Cas. Ins. Co., 2001 NY Slip Op. 50082 [U] *3 [Sup Ct, Nassau County 2001]).

“The insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested” (11 NYCRR 3.5 [c] [emphasis added]). “A claim need not be paid or denied until all demanded verification is provided” (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999] [emphasis added]); accord New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2d Dept 2004]).

Case law has been consistently to the effect that a partial response to an additional verification request is insufficient. For example, in D & R Med. Supply, Inc. v Clarendon Nat. Ins. Co. (22 Misc 3d 1127[A], 2009 NY Slip Op 50306[U] [Civ Ct, Kings County 2009]), the court held that where an insurer issues a verification request seeking from the claimant an invoice, CPT codes, and medical records but only an invoice was provided and the insurer followed this up twice, seeking the CPT codes and medical records, the claimant’s complaint had to be dismissed as the action was commenced prematurely.

It is manifest that an insurer is not required to pay or deny a claim upon receipt of a partial response to a verification request (see Chapa Products Corp. v MVAIC, 66 Misc 3d 16 [App Term, 2d, 11th & 13th Dists 2019]; New Horizon Surgical Ctr., LLC v Travelers Ins. Co., 65 Misc 3d 139[A], 2019 NY Slip Op 51690[U] [App Term, 2d, 11th & 13th Dists 2019]; Compas Med., P.C. v Travelers Ins. Co., 53 Misc 3d 136[A], 2016 NY Slip Op 51441[U] [App Term, 2d, 11th & 13th Dists 2016]).

“Even accepting plaintiff’s assertion that it submitted certain verification documents to defendant, the record establishes that plaintiff did not fully respond to defendant’s requests for additional verification, which were properly mailed to plaintiff’s attorney as authorized by counsel’s prior correspondence to defendant (see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]; GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138[A], 2012 NY Slip Op 52195[U] [App Term, 1st Dept 2012]). Since verification remained outstanding, the then-applicable thirty-day period to pay or deny the claims did not begin to run, the claims were not overdue, and plaintiff’s action is premature (see St. Vincent [*16]Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]).” (Orthoplus Prods., Inc. v Global Liberty Ins. Co. of NY, 64 Misc 3d 128[A], 2019 NY Slip Op 51003[U] *1 [App Term, 1st Dept 2019].)

Therefore, it is contrary to law to hold that a health service provider need only “substantially comply” with additional verification requests. The hearing arbitrator’s determination was contrary to established law — as provided in the No-Fault Regulations at 11 NYCRR 3.5 [c] and in case law recited herein, rendering it arbitrary, capricious, and irrational (see Matter of Petrofsky, 54 NY2d 207). In No-Fault insurance law, there is no concept of “substantial compliance” with an insurer’s additional verification requests; partial compliance simply does not suffice. PDA was required by law to provide the sign-in sheets and ATIC was also entitled to await Assignor’s provision of information as to whether he was eligible for the livery fund’s Workers’ Compensation benefits instead of No-Fault insurance.

When the master arbitrator wrote, “The arbitrator’s determination that the applicant had substantially complied with the verification requests is not incorrect as a matter of law” (NYSCEF Doc No. 4, Master Arbitration Award at 3), this confirmed an erroneous standard of compliance with additional verification requests. This master arbitration finding was erroneous as a matter of law — contrary to the No-Fault Regulations at 11 NYCRR 3.5 [c] and the case law recited herein — and rose to the level of being so irrational as to require vacatur (see Matter of Smith, 55 NY2d 224, 232 (“the courts are limited in their further review of the master arbitrator’s resolution of that error of law, since we generally will not vacate an arbitrator’s award where the error claimed is the incorrect application of a rule of substantive law . . . unless is it so irrational as to require vacatur”); Matter of Acuhealth Acupuncture, PC, 170 AD3d 1168; Matter of Acuhealth Acupuncture, P.C., 167 AD3d 869; Matter of Acuhealth Acupuncture, P.C., 149 AD3d 828; Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co., 44 AD3d 857 [2d Dept 2007]).^[FN22]

(2) An Assignor’s EUO Testimony of Not Working Does Not Vitiate Seeking Livery Fund Information to Determine If Workers’ Compensation Benefits Are Available

The hearing arbitrator excused PDA’s provision of livery fund information because the Assignor “clearly testified that he was not working at the time of this accident” (NYSCEF Doc [*17]No. 3, Arbitration Award at 2). Again, this was arbitrary and capricious.

The livery fund information had been sought by ATIC from Assignor in order to determine whether he was eligible for Workers’ Compensation benefits instead of No-Fault insurance. In seeking additional verification, an insurer is not limited to seeking it from the applicant (see Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 9th & 10th Dists 2007]). “Regulation § 65-3.5(c) provides that an insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification is requested. This latter section does not confine or require the insurer to seek information solely from the provider but rather contemplates that verification information may be sought from any source.” (Westchester Med. Ctr. v One Beacon Ins. Co., 22 Misc 3d 1102[A], 2008 NY Slip Op 52580[U] *2 [Sup Ct, Nassau County 2008]). Verification requests to the injured person will pend bills from a medical provider who treated him (see Liberty Mut. Ins. Co. v Brutus, 76 Misc 3d 1201[A], 2022 NY Slip Op 50799[U] [Sup Ct, NY County 2022]). It was more than appropriate for ATIC, as the No-Fault insurer, to seek information from Assignor to determine his possible eligibility for Workers’ Compensation insurance as an alternative.

Workers’ Compensation benefits are primary to those injured as a result of a motor vehicle accident while in the course of their employment (see Insurance Law § 5102 [b] [2]). It is settled law that the determination of whether someone was injured in the course of employment is more suitably made by the Workers’ Compensation Board (e.g. Arvatz v Empire Mut. Ins. Co., 171 AD2d 262 [1st Dept 1991]; Dunn v American Tr. Ins. Co., 71 AD3d 629 [2d Dept 2010]; LMK Psychological Servs., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2d Dept 2009]).

While a determination by an arbitrator that a No-Fault insurer failed to submit prima facie evidence that one was injured in the course of employment is a factual issue which should not be disturbed by an Article 75 court (see American Tr. Ins. Co. v North Shore Family Chiropractic PC, 78 Misc 3d 1212[A], 2023 NY Slip Op 50208[U] [Sup Ct, Kings County 2023]), here ATIC was not afforded the opportunity to deny PDA’s claims with a course-of-employment defense because the hearing arbitrator would not even permit it to assemble documentation to perform the preliminary inquiry as to Assignor’s status. To accept an injured person’s word without permitting the No-Fault insurer to seek pertinent evidence on the issue was arbitrary and capricious.

The master arbitrator wrote, “The arbitrator found that the testimony of the EIP clearly established that he was not working at the time of the accident. . . .” (NYSCEF Doc No. 4, Master Arbitration Award at 3.) This was incorrect. The hearing arbitrator wrote, “[T]he EIP clearly testified that he was not working at the time of the accident” (NYSCEF Doc No. 3, Arbitration Award at 2). The hearing arbitrator did not make a credibility finding regarding Assignor’s testimony. Testifying does not necessarily equate to establishing.

Moreover, the hearing arbitrator referenced that ATIC had not denied bills based on a Workers’ Compensation defense (see NYSCEF Doc No. 3, Arbitration Award at 2). This is an arbitrary reason to deny ATIC’s request for documents which might establish coverage under Workers’ Compensation. A request for additional verification precedes issuance of a denial of claim — not follows it (see 11 NYCRR 65-3.8 [b] [3] [insurer shall not issue denial of claim prior to receipt of all requested verification]). An insurer is not permitted to issue a denial of claim first and then seek additional verification; doing so puts the cart before the horse.

(3) Medical Documentation is Not a Substitute for Sign-In Sheets

The hearing arbitrator found that “medical documentation” having been provided, it was “unreasonable” to request sign-in sheets (NYSCEF Doc No. 3, Arbitration Award at 2). This Court finds this to be arbitrary and capricious in light of the well established case law holding that all additional verification sought by a No-Fault insurer must be provided; incomplete responses are not acceptable (see supra at 16-18).

A heath service provider may not avoid replying to a No-Fault insurer’s additional verification request seeking a specific form or document by providing something else or answering with an excuse which declines to provide what was sought. For example, a medical report stating that the assignor had signed a “separate, comprehensive Informed Consent Form which has been made a portion of the patient’s chart” does not suffice to comply with an additional verification request for a signed informed consent form from the assignor (see New Horizon Surgical Ctr., L.L.C. v Travelers Ins., 62 Misc 3d 150[A], 2019 NY Slip Op 50281[U] [App Term, 2d, 11th & 13th Dists 2019]).

A medical equipment supplier fails to provide requested additional verification when, in response to a request for an initial report and letter of medical necessity from the referring physician, it merely states that the supplies at issue had been provided pursuant to a doctor’s prescription and does not advise the insurer of the doctor’s name or where he is located (see D & R Medical Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Dists 2011]). In another instance of a health service provider’s response being insufficient, it was held that a response of “Be further advised that this response constitutes full compliance with any purported requests and constitutes the provider’s submission of all relevant documents in the provider’s possession. Any further requests should be directed to the party that possesses such other information. Therefore any further requests to this provider are deemed unnecessary and in violation of 11 NYCRR §65-3.2 (c),” in response to the insurer’s verification request for a “manufacturers invoice documenting the cost of the medical equipment or supplies” and “proof of payment for the medical equipment or supplies” hardly constitutes good faith; the failure to provide the additional verification warrants dismissal of the claim as premature (see Custom Orthotics, Ltd. v Government Employees Ins. Co., 25 Misc 3d 545 [Civ Ct, Queens County 2009]).

A response by a health service provider to additional verification requests which states that it is an ambulatory surgery facility and, as such, “does not possess all the medical records,” and that the insurer should “request any additional information directly from the treating provider,” constitutes an insufficient response, and the 30-day period to pay or deny the claim has not yet begun to run (see Excel Surgery Ctr., L.L.C. v Fiduciary Ins. Co. of Am., 55 Misc 3d 131[A], 2017 NY Slip Op. 50408[U] [App Term, 2d, 11th & 13th Dists 2017]).

Just as the foregoing cited cases establish that a response from a health service provider other than one furnishing that which was requested is insufficient, so too was “medical documentation”^[FN23] in place of sign-in sheets.

If courts have sustained additional verification requests seeking wholesale invoices for furnished medical supplies and equipment (see CPM Med Supply, Inc. v State Farm Fire and [*18]Cas. Ins. Co., 63 Misc 3d 140[A], 2019 NY Slip Op 50576[U] [App Term, 2d, 11th & 13th Dists 2019] [provider’s excuse that fee could be determined without wholesale invoice constitutes failure to comply]); MRI films (see Radiology Today, P.C. v New York Cent. Mut. Fire Ins. Co., 34 Misc 3d 139(A), 2011 NY Slip Op 52452[U] [App Term, 2d, 11th & 13th Dists 2011]; session notes (see Boro Medical & Psych Treatment Servs., P.C. v Country Wide Ins. Co., 2002 NY Slip Op 50538[U] [App Term, 2nd & 11th Dists 2002]); and an assignor’s Social Security number (see Olympic Chiropractic, P.C. v American Tr. Ins. Co., 14 Misc 3d 129[A], 2007 NY Slip Op 50011[U] [App Term, 2d & 11th Dists 2007]), it is certainly reasonable to request sign-in sheets for the dates of service.

Verification of the authenticity of claims is consistent with one of the purposes underlying the adoption of new No-Fault insurance regulations which took effect in 2002 — to rein in fraud in the form of “medical mills [generating] stacks of medical bills for each passenger, detailing treatments and tests that were unnecessary or never performed” (Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 861 [2003] [emphasis added]). A No-Fault insurer’s seeking as additional verification copies of No-Fault forms containing signatures helps insure that compensation is not paid for services not performed (see Doshi Diagnostic Imaging Servs. v Progressive Ins. Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51430[U] (App Term, 9th & 10th Dists 2006); DWP Pain Free Med. P.C. v Progressive Northeastern Ins. Co., 14 Misc 3d 800 [Dist Ct, Suffolk County 2006]).

“Plaintiff’s objection to the reasonableness of the request for the MRI films is unavailing. It is readily apparent that copies of any MRI films (or lack of such films) would substantiate whether the billed MRIs were, in fact, actually performed.” (Lenox Hill Radiology & MIA, P.C. v Hereford Ins. Co., 72 Misc 3d 702, 712 [Civ Ct, NY County 2021].) Likewise, seeking PDA’s sign-in sheets is reasonable as their provision would substantiate Assignor’s actually being present for treatment.

(4) Reasonableness of Additional Verification Requests

This Article 75 Court’s determination concerning the subject hearing and master arbitration awards is not to be construed as holding that an additional verification request can never be unreasonable. This Court’s determination must be construed in light of the eminent reasonableness of ATIC having sought provider sign-in sheets and information as to whether Assignor might be eligible for alternative (Workers’ Compensation) benefits.

While there has been case law finding certain additional verification requests unreasonable, usually these holdings concern instances of procedural abuse by No-Fault insurers as compared to the substance of the requests.

For instance, “A provider should not have to repeatedly provide documentation it has already provided unless the insurer can establish a reasonable basis and rational need for demanding this material anew” (Brownsville Advance Med., P.C. v Country-Wide Ins. Co., 33 Misc 3d 1236[A], 2011 NY Slip Op 52255[U] *3 [Dist Ct, Nassau County 2011). Moreover, an applicant provides reasonable justification for the failure to comply with an insurer’s verification requests identical to each of four bills and containing 34 unnumbered and unlettered bullet point demands by showing that its objection letters challenged the requests as “unduly burdensome and abusive” and seeking further clarification, and that the insurer rebuffed the objection letters by stating that it was entitled to each item as a matter of law. “The court notes that if plaintiff wished to respond to specific verification requests, it had no method by which to refer to a specific request, since the voluminous requests were not numbered or lettered or presented in [*19]any cogent way with specificity.” (Pro-Align Chiropractic, P.C. v Travelers Prop. Cas. Ins. Co., 58 Misc 3d 857, 862 [Dist Ct, Suffolk County 2017].)

However, “[J]ust as an insurer must have ‘good cause’ to demand verification, so too must a provider have a ‘reasonable justification’ for refusal to provide a response” (HKP Physical Therapy, P.C. v Government Employees Ins. Co., 67 Misc 3d 282, 300-301 [Sup Ct, NY County 2019], citing 11 NYCRR 65-3.8 [b] [3], [o]). A strong showing of good cause requires an equally compelling justification for withholding any responsive items, and responses categorizing the requests as irrelevant, unduly burdensome, or moot because they were already substantially complied with cannot prevail (see id. at 301).

In the instance of a No-Fault insurance arbitrator finding that an additional verification request was unreasonable, such determination must be assessed at first by a master arbitrator to determine whether the hearing arbitrator reached her decision in a rational manner, i.e., whether it was arbitrary and capricious, irrational, or without a plausible basis, or incorrect as a matter of law (see Matter of Petrofsky, 54 NY2d 207). Then the master arbitrator’s award must be assessed by the Article 75 court in terms of whether there was an error of law which was so irrational as to require vacatur or whether the master arbitrator exceeded her power (see Matter of Smith, 55 NY2d 224, 232; Matter of Acuhealth Acupuncture, PC, 170 AD3d 1168; Matter of Acuhealth Acupuncture, P.C., 167 AD3d 869; Matter of Acuhealth Acupuncture, P.C., 149 AD3d 828; Matter of Health & Endurance Med., P.C., 44 AD3d 857; Matter of Liberty Mut. Ins. Co., 294 AD2d 574; Matter of Allstate Ins. Co. v Keegan (201 AD2d 724 [2d Dept 1994]).

However, even if an arbitrator’s award finds that an additional verification request was unreasonable, such an assessment must be conducted without application of a doctrine of substantial compliance — as was the situation here — because nothing in the No-Fault Regulations or in case law construing such Regulations suggests that such a standard exists.

(5) Instant Claim Was Premature in Terms of Bills Not Denied

An insurer may deny a claim where requested additional verification has not been provided within 120 days of the initial request (see 11 NYCRR 65-3.5 [o], 65-3.8 [b] [3]). Issuance of such a “120-day denial of claim” for failure to provide requested additional verification is optional (see Island Life Chiropractic Pain Care, PLLC v Zipcar, 72 Misc 3d 141[A], 2021 NY Slip Op 50844[U] *2 [App Term, 2d, 11th & 13th Dists 2021]).

If an insurer demonstrates that it did not receive requested verification and no 120-day denial of claim was issued on that basis, and the claimant does not show that the verification had been provided to the insurer prior to the commencement of the action, the 30-day period within which the insurer was required to pay or deny the claim did not begin to run and, thus, the action is premature and should be dismissed without prejudice (see AOM Med. Supply, Inc. v Hereford Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51366[U] [App Term, 2d, 11th & 13th Dists 2020]; Daily Med. Equip. Distrib. Ctr., Inc. v Interboro Ins. Co., 56 Misc 3d 135[A], 2017 NY Slip Op. 50958[U] [App Term, 2d, 11th & 13th Dists 2017]).

Here, there was no 120-day denial of claim. In the absence of ATIC having received the sign-in sheets and livery fund (possible eligibility for Workers’ Compensation benefits) information, that part of PDA’s claim for payment of pended bills should have been dismissed without prejudice by the hearing arbitrator as being premature. The hearing arbitrator having awarded No-Fault compensation and the award having been affirmed by the master arbitrator, the latter’s award must be vacated insofar as the pended bills are concerned.

Conclusion

ATIC has successfully established herein that insofar as the master arbitration award affirmed the hearing arbitration award with respect to the bills pended for additional verification, it was arbitrary, capricious, and irrational because it contravened well settled law (see 11 NYCRR 65-4.10 [a] [4]). In that respect the master arbitrator “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made” (CPLR 7511 [b] [1] [iii]; see Matter of Kowaleski (New York State Dept. of Correctional Servs.), 16 NY3d 85 [2010]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 799 [2d Dept 2019]; Matter of Global Liberty Ins. Co. v McMahon, 172 AD3d 500 [1st Dept 2019]; Matter of Liberty Mut. Ins. Co., 294 AD2d 574; Allstate Ins. Co. v Natural Healing Acupuncture, P.C., 39 Misc 3d 1217[A], 2013 NY Slip Op 50645[U] [Civ Ct, Kings County 2013]).

On the other hand, ATIC has not successfully established herein that insofar as the master arbitration award affirmed the hearing arbitration award with respect to the bills denied on the basis of Dr. John Iozzio’s IME report (lack of medical necessity), it was arbitrary, capricious, and irrational because it contravened well settled law (see 11 NYCRR 65-4.10 [a] [4]). Contrary to ATIC’s assertions, in that respect none of the grounds it cited from CPLR 7511 [b] [1] for vacating the master arbitration award apply.

Since none of the grounds for modifying an arbitration award pursuant to CPLR 7511 [c]^[FN24] apply and this Court may not partially confirm and partially vacate the master arbitration award (see Zunzurovski v Jacaranda Club, LLC, 2022 NY Slip Op. 33984[U] [Sup Ct, NY County 2022]), this Court must vacate the master arbitration award (see CPLR 7511 [b] [1] [iii]). A remand is necessary (see CPLR 7511 [d]).

It is hereby ORDERED, ADJUDGED, and DECREED that the master arbitration award of Victor Hershdorfer, Esq., dated December 21, 2022, in AAA Case No. 99-21-1198-7980, is hereby VACATED, and the within arbitration claim of Respondent PDA NY Chiropractic, P.C. is remanded in its entirety to the American Arbitration Association for a rehearing, with the within decision constituting the law of the case (see Allcity Ins. Co. v Eagle Ins. Co., 1 Misc 3d 41 [App Term, 2d & 11th Dists 2003]).

Dated: September 1, 2023
HON. AARON D. MASLOW
Justice of the Supreme Court of the State of New York

Footnotes

Footnote 1:The term “hearing arbitrator,” referring to the arbitrator who initially conducted the hearing, is used to distinguish him from the master arbitrator, who determined the appellate arbitration.

Footnote 2:The notice of petition seeks vacatur of “the arbitration award issued by Arbitrator John Kannengieser, Esq. and/or Master Arbitrator Victor J. Hershdorfer, Esq. under Article 75 of the CPLR” (NYSCEF Doc No. 2, Notice of Petition), but it must be deemed to seek vacatur of just the master arbitration award inasmuch as the latter is the final determination of the arbitration process. The No-Fault Regulations provide that “court review pursuant to an article 75 proceeding” is from the “decision of a master arbitrator” (11 NYCRR 65-4.10 [h] [1] [i]; see also Insurance Law § 5106 [c]). In fact, a party may not appeal from a hearing arbitration award (see Matter of Staten Is. Hosp. v USAA, 103 AD2d 744 [2d Dept 1984]; Matter of Griffith v Home Indem. Co., 84 AD2d 332 [1st Dept 1982]; Matter of Lampasona v Prudential Prop. & Cas. Ins. Co., 111 Misc 2d 623 [Sup Ct, Kings County 1981]). “[T]he Legislature intended the provision of CPLR article 75 to apply only to the review of the awards of master arbitrators (see, Insurance Law § 5106[c])” (Matter of Custen v General Acc. Fire and Life Ins. Co., 126 AD2d 256 [2d Dept 1987]). It follows that if the hearing arbitrator’s award is imperfect, this can affect judicial review of a master arbitration award affirming it.

Footnote 3:Rather than denote the parties here as “Petitioner” and “Respondent” in discussion, the parties’ names are used henceforward. This is to facilitate the reader’s understanding of the facts, arguments, analysis, and determination. This also minimizes confusion because the respondent in the underlying arbitration, ATIC, is not the respondent herein but rather is the petitioner herein. The respondent herein, PDA, was not the respondent in the arbitration, but was the applicant.

Footnote 4:Health service providers obtain standing to pursue No-Fault insurance compensation in arbitration by virtue of having received an assignment of benefits from the respective person claiming to have been injured in a covered motor vehicle accident; such person is often denoted as an “assignor.”

Footnote 5:Paragraph 28 of the petition describes the AAA Case No. as 99-21-1198-7980, which was assigned to the master arbitration appeal (see NYSCEF Doc No. 4, Master Arbitration Award at 1). The original arbitration was assigned AAA Case No. 17-21-1198-7980 (see NYSCEF Doc No. 3, Arbitration Award at numbered p 1).

Footnote 6:This statutory scheme was developed by New York’s legislature in 1973, as part of a tradeoff whereby lawsuits for pain and suffering resulting from personal injuries in motor vehicle accidents were limited to instances of serious injury (see generally Insurance Law art 51; L 1973, ch 13, as amended L 1977, ch 892; John R. Dunne, New York’s No-Fault Automobile Insurance Law A Glimpse of the Past and a Glance at the Future, 50 NY St BJ 284 [June 1978]; J. Benedict, New York Adopts No-Fault: A Summary and Analysis, 37 Albany L Rev 662 [1973]).

Footnote 7:Although Insurance Law Article 51 does not mention the term “No-Fault,” shortly after the post-motor vehicle accident economic loss compensation system was enacted in 1973, the appellation “No-Fault” was adopted in common parlance to describe it.

Footnote 8:The term “personal injury protection benefits” is a creature of the No-Fault Regulations (see 11 NYCRR Subpart 65-3) and does not appear in the statute.

Footnote 9:This Court uses the term “health service bills” instead of “medical bills” because the No-Fault Law provides for reimbursement of “(i) medical, hospital . . . , surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical therapy . . . and occupational therapy and rehabilitation . . . and (iv) any other professional heath services” (Insurance Law § 5102 [b] [1]). Hence, the No-Fault insurance system encompasses not just “medical” services. In the instant case, the services at issue were chiropractic office visits and treatment.

Footnote 10:The prescribed claim forms are included within 11 NYCRR Part 65 (Regulation 68) Appendix 13. Besides Form NF-3 (verification of treatment by attending physician or other provider of health service), Appendix 13 contains Form NF-4 (verification of hospital treatment) and Form NF-5 (hospital facility form). Not every No-Fault insurance provider uses the prescribed forms; some utilize a HICF (Health Insurance Claim Form) or a UB-04 form more commonly used for inpatient and outpatient claims billed by hospitals, healthcare facilities, and surgical facilities.

Footnote 11:There is a prescribed assignment of benefits form (Form NF-AOB) in 11 NYCRR Part 65 (Regulation 68) Appendix 13.

Footnote 12:The process of submitting a No-Fault claim to the insurer is governed by 11 NYCRR Subpart 65-3, which contains §§ 65-3.1 et seq.

Footnote 13:Form NF-10 is also included within 11 NYCRR Part 65 (Regulation 68) Appendix 13.

Footnote 14:References to page numbers in NYSCEF filings lacking specified page numbers are to the PDF page numbers.

Footnote 15:The information specifically sought from Assignor regarding potential eligibility for Workers’ Compensation independent livery fund coverage as additional verification concerning this bill and the next two was as follows:
(1) “Submit the name of the Base or Car Service at the time of accident.”
(2) “List any smart phone applications or other radio bases the claimant received dispatched calls from.”
(3) “Confirmation the named Base paid into the Livery Fund.”
(4) “If claimant worked during period of treatment, please submit an affidavit of the date returned to work.”
(5) “Please provide us with notarized copy of your social security card.”
(NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Brief at 24, 27, 29, 31, 33, 35, 37, 40, 42.)

Footnote 16:This is the AAA’s electronic case management and filing platform maintained on the Internet; it is known as “Modria,” which was the name of the company which developed it for the AAA (see Liveblogging #ODR2014: The Developing Field of Online Dispute Resolution, https://civic.mit.edu/index.html%3Fp=1452.html [last accessed Mar. 19, 2023]; Welcome to the Modria Resolution Center for the American Arbitration Association, https://aaa-nynf.modria.com/ [last accessed Mar. 19, 2023]).

Footnote 17:PDA’s bill for date of service April 7, 2020 was denied on the asserted defense of untimely proof of claim and, therefore would not be encompassed within the February 19, 2020-July 30, 2020 period applicable to bills for which additional verification was requested.

Footnote 18:Among the more substantial changes in the 1977 legislation were the adoption of fee schedules to limit health service expenses and modifying the threshold categories for suing for noneconomic loss, i.e., pain and suffering.

Footnote 19:Nothing in the Governor’s Bill Jacket for Chapter 13 of the Laws of 1977 or other contemporary records comments on the provision adopting master arbitration review of hearing arbitrators’ decisions, so it is not known why the master arbitration process was created (see Matter of Bamond v Nationwide Mut. Ins. Co., 75 AD2d 812, 813 [2d Dept 1980], affd 52 NY2d 957 [1981]). This Court speculates that at least one reason was that No-Fault arbitration was compulsory and the Legislature desired to permit a party to an arbitration to seek review of the hearing arbitrator’s award on the basis of an assertion of an error of law, which traditionally was not a basis for review in an Article 75 proceeding (see Mott v State Farm Ins. Co., 77 AD2d 488 [3d Dept 1980], revd sub nom. on other grounds Matter of Smith v Firemen’s Ins. Co., 55 NY2d 224 [1982]).

Footnote 20:Most non-No-Fault insurance arbitration awards cannot be vacated due to an error of law (see Matter of Sprinzen v Nomberg, 46 NY2d 623, 629-630 [1979]). No-Fault insurance arbitrations are different; an error of law can be the basis for reversal — by a master arbitrator.

Footnote 21:11 NYCRR 65-4.10 (a) provides as follows:

Grounds for review. An award by an arbitrator rendered pursuant to section 5106(b) of the Insurance Law and section 65-4.4 or 65-4.5 of this Subpart may be vacated or modified solely by appeal to a master arbitrator, and only upon one or more of the following grounds:

(1) any ground for vacating or modifying an award enumerated in article 75 of the Civil Practice Law and Rules (an article 75 proceeding), except the ground enumerated in CPLR subparagraph 7511(b)(1)(iv) (failure to follow article 75 procedure);

(2) that the award required the insurer to pay amounts in excess of the policy limitations for any element of first-party benefits; provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of an appeal, as provided for in section 65-4.4 or 65-4.5 of this Subpart;

(3) that the award required the insurer to pay amounts in excess of the policy limitations for any element of additional first-party benefits (when the parties had agreed to arbitrate the dispute under the additional personal injury protection endorsement for an accident which occurred prior to January 1, 1982); provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of the appeal, as provided for in section 65-4.4 or 65-4.5 of this Subpart;

(4) that an award rendered in an arbitration under section 65-4.4 or 65-4.5 of this Subpart, was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground);

(5) that the attorney’s fee awarded by an arbitrator below was not rendered in accordance with the limitations prescribed in section 65-4.6 of this Subpart; provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of the appeal, as provided for in section 65-4.4 or 65-4.5 of this Subpart.

Footnote 22:While substantial compliance may be acceptable in other areas of insurance law, it is not always the appropriate standard of compliance; strict compliance is sometimes required (e.g. Argo Corp. v Greater NY Mut. Ins. Co., 4 NY3d 332 [2005] [no notice of claim submitted]; Barile v Kavanaugh, 67 NY2d 392 [1986] [failure to advise insured that insurance must be maintained continuously vitiates cancellation notice]; GEICO Indem. v Roth, 56 AD3d 1244 [2d Dept 2008] [cancellation procedure]; Matter of Rue v Northeast Timber Erectors, 289 AD2d 787 [3d Dept 2001] [attempt to cancel Workers’ Compensation insurance coverage ineffective since carrier failed to establish that it requested return receipt when notice of cancellation sent by certified mail]; Home Indem. Co. v de Martinez, 240 AD2d 580 [2d Dept 1997] [billing notice to policyholder failed to include advices that insured has option of remitting premium payment either through producer or directly to company so subsequent cancellation invalid]; Cohn v Royal Globe Ins. Co., 67 AD2d 993 [2d Dept 1979], affd 49 NY2d 942 [1980] [cancellation notice invalid due to type face smaller than 12 points].)

Footnote 23:The hearing arbitrator did not describe the “medical documentation.” Presumably it was the reports for the dates of service.

Footnote 24:CPLR 7511 (c) provides:

Grounds for modifying. The court shall modify the award if:

1. there was a miscalculation of figures or a mistake in the description of any person, thing or property referred to in the award; or

2. the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or

3. the award is imperfect in a matter of form, not affecting the merits of the controversy.

American Transit Insurance Company, Petitioner, against Rutland Medical, PC, A/A/O SHANIA M PESSOA CRAIG, Respondent.

Index No. 531225/2022

Larkin Farrell LLC, New York City (Anthony R. Troise of counsel), for Petitioner.

Roman A. Kravchenko, Garden City, for Respondent.

Aaron D. Maslow, J.

The following numbered papers were read on this petition:

Petition (NYSCEF Doc No. 1)
Notice of Petition (NYSCEF Doc No. 2)
Exhibit A — Arbitration Award (NYSCEF Doc No. 3)
Exhibit B — Master Arbitration Award (NYSCEF Doc No. 4)
Exhibit C — Respondent’s Arbitration Request Form and Arbitration Submission (NYSCEF Doc No. 5) (“Rutland’s Arbitration Request Form & Submission”)
Exhibit D-1 — Petitioner’s Arbitration Submission and Master Arbitration Appeal (NYSCEF Doc No. 6) (“ATIC’s Arbitration Submission and Master Arbitration Brief”)
Exhibit D-2 — Petitioner’s Arbitration Submission (NYSCEF Doc No. 7)
Exhibit D-3 — Petitioner’s Arbitration Submission (NYSCEF Doc No. 8)
Exhibit D-4 — Petitioner’s Arbitration Submission (NYSCEF Doc No. 9)
Exhibit D-5 — Petitioner’s Arbitration Submission (NYSCEF Doc No. 10)
Exhibit D-6 — Petitioner’s Arbitration Submission (NYSCEF Doc No. 11)
Statement of Authorization for Electronic Filing (NYSCEF Doc No. 12)
Request for Judicial Intervention (NYSCEF Doc No. 13)
Affidavit of Service (NYSCEF Doc No. 14)
Statement of Authorization for Electronic Filing (NYSCEF Doc No. 15)
Affidavit of Service (NYSCEF Doc No. 16)
Statement of Authorization for Electronic Filing (NYSCEF Doc No. 17)
Notice of Cross-Petition (NYSCEF Doc No. 18)
Cross-Petition (NYSCEF Doc No. 19)
Stipulation to Adjourn (NYSCEF Doc No. 20)
Statement of Authorization for Electronic Filing (NYSCEF Doc No. 21)
Affirmation in Opposition to Cross-Petition and Reply in Support of Petition (NYSCEF Doc No. 22)
Reply Affirmation in Support of Cross-Petition (NYSCEF Doc No. 23)

Issue Presented

In a No-Fault insurance master arbitration, where the master arbitrator failed to address the issue of law asserted by the insurer, but the issue of law was previously decided by the court in a different Article 75 proceeding, must the master arbitration award be vacated?

Background

Petitioner American Transit Insurance Company (“ATIC”) commenced this CPLR Article 75 proceeding by notice of petition, seeking an order and judgment vacating a No-Fault insurance master arbitration award of Richard B. Ancowitz, Esq. (dated July 25, 2022), which affirmed the arbitration award of Wendy Bishop, Esq. (dated April 8, 2022) granting Respondent Rutland Medical, PC’s (“Rutland”) claim for No-Fault insurance compensation for range of motion testing, muscle testing, physical performance testing, outcome assessment testing, trigger point injections, and chiropractic treatment reflected in a total of 25 bills.^[FN1] , ^[FN2] Arbitrator Bishop [*2]awarded $2,713.58 to Rutland as compensation.^[FN3] The services at issue were provided to Shania M. Pessoa Craig, who claimed to have been injured in a motor vehicle accident on April 18, 2019. She assigned her No-Fault insurance benefits to Rutland, and is denoted as “Assignor.” ^[FN4] (See NYSCEF Doc No. 1, Petition ¶¶ 2, 16-22; NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Brief at 145 ^[FN5] .)

Respondent Rutland has opposed ATIC’s petition to vacate the master arbitration award and it cross-petitioned for a judgment confirming the master arbitration award and awarding $2,713.58 as principal, statutory interest, the $40.00 arbitration filing fee, attorney’s fees, and costs and disbursements (see NYSCEF Doc No. 18, Notice of Cross-Petition; NYSCEF Doc No. 19, Cross-Petition).

The petition and cross-petition came before the undersigned for oral argument on June 23, 2023. At that time, both parties appeared by counsel.

The underlying arbitration which is the subject of this proceeding was organized by the American Arbitration Association (“AAA”), which assigned Case No. 17-20-1175-4211 ^[FN6] to it. [*3]The AAA has been designated by the New York State Department of Financial Services to coordinate the mandatory arbitration provisions of Insurance Law § 5106 (b), which provides:

Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party [“No-Fault insurance”] benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent.

Insurance Law Article 51 provides for the payment of basic economic loss incurred by persons injured in motor vehicle accidents. Included within basic economic loss are first-party benefits for medical and other professional health services.^[FN7] First-party benefits are more commonly known as “No-Fault benefits.”^[FN8]

In furtherance of the statutory scheme, a comprehensive set of No-Fault Regulations was promulgated by the Superintendent of Insurance (presently Superintendent of Financial Services). They are contained at 11 NYCRR Part 65. Said part is subdivided into five subparts which encompass the following topics: prescribed insurance policy endorsements, rights and liabilities of self-insurers, claims for benefits, arbitration, and unauthorized providers of health services. Part 65 is also known as Insurance Regulation 68.

Generally, the claims process for health service bills ^[FN9] for No-Fault insurance compensation begins with the submission by a health service provider of a claim form (usually, but not always, a Form NF-3 verification of treatment by attending physician or other provider [*4]of health service).^[FN10] Besides providing information regarding the injured person, the accident, the subject insurance policy, the billing health service provider, diagnoses, and projected treatment, the claim form includes a bill for services performed. The claim form can be submitted directly by the injured person to the No-Fault insurer but over many decades a practice developed whereby the health service providers submit the claim forms. As noted in footnote 4, they possess standing to do so by virtue of having received signed assignments of benefits from the injured persons.^[FN11] , ^[FN12] The insurer must then either pay or deny the bill within 30 days, or seek additional verification within 15 business days. If it denies payment, it must issue a Form NF-10 denial of claim ^[FN13] explaining why the bill was not paid. (See Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505 [2015].)

The record evidence submitted in this Article 75 proceeding revealed that the underlying arbitration involved 25 claim forms covering services for a period of April 30, 2019-December 16, 2019, as per the Form AR Arbitration Request Form (see NYSCEF Doc No. 5, Rutland’s Arbitration Request Form & Submission at 14). Apparently, one claim form was neither paid nor denied and there is no evidence that it was pended for additional verification. The other claim forms (bills) were timely denied, either on the basis of respective peer reviews from Dr. Peter Chiu, M.D. (dated July 16, 2019; September 23, 2019; and December 6, 2019) or an IME (independent medical examination) report of Dr. Glenn Berman, D.C. Dr. Chiu had opined that the services were not medically necessary. Dr. Berman opined that further chiropractic was not medically necessary. (See NYSCEF Doc No. 3, Arbitration Award at numbered pp 1-2.)

Arbitrator Wendy Bishop’s Award

The record evidence reveals further that on April 7, 2002, Arbitrator Wendy Bishop, Esq., conducted a hearing at which Ryan Woodworth, Esq., from Russell Friedman & Associates LLP, appeared for Rutland, and nobody appeared for ATIC (see id. at numbered p 1).

In her award, Arbitrator Bishop noted that the hearing documents were contained in Modria ^[FN14] . With respect to the bill for which there was no appurtenant denial of claim, she noted that Rutland provided proof of its mailing and she awarded compensation. (See id. at numbered p 2.) Regarding the denials premised on a peer review of Chiu, she found them insufficient as lacking a standard of care and/or a medical rationale; ATIC therefore failed to satisfy an initial burden of establishing lack of medical necessity (see id.).

With regard to bills denied on the basis of Dr. Berman’s IME report, she found that ATIC did meet its initial burden of establishing lack of medical necessity; Dr. Berman’s conclusion that Assignor’s injuries had resolved was supported by negative range of motion and neurological testing. The burden therefore shifted to Rutland to demonstrate the medical necessity of the respective services. “[Rutland] submits the reports of its clinical examinations of the Assignor performed on July 15, 2019 and August 19, 2019. Range of motion in the Assignor’s cervical spine and lumbar spine was restricted. There were muscle spasms in the areas of the Assignor’s cervical spine and lumbar spine. Applicant has thus rebutted Dr. Berman’s IME report, and demonstrated the medical necessity of further treatment.” (Id. at numbered p 3.)

Arbitrator Bishop awarded $2,713.58 as principal. She also awarded interest of 2% per month, an attorney’s fee, and return of the $40.00 filing fee (see id. at numbered pp 4-5; Insurance Law § 5106 [a]; 11 NYCRR 65-4.5 [s]).

Master Arbitrator Richard Ancowitz’s Award

ATIC filed for master arbitration to appeal Arbitrator Bishop’s award. It presented two arguments. The first was that Rutland was an entity formed by a No-Fault insurance fraud ring, as evidenced by an attached indictment. The second was that Arbitrator Bishop erred as a matter of law and her award was irrational because when she assessed medical necessity, she did not take into account well settled case law concerning the need for a medical claimant to meaningfully rebut and discuss the conclusions of the insurer’s expert (citing Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [2d, 11th & 13th Dists 2009]). (See NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Brief at 148-153.)

Master Arbitrator Ancowitz summarized the issues in dispute as follows: “Did the arbitrator err in finding that respondent’s lack of medical necessity defense was insufficiently stated? Was the award irrational or incorrect as a matter of law?” (NYSCEF Doc No. 4, Master Arbitration Award at 2.)

His findings and conclusions were as follows:

The award indicates that $2,713.58 was in dispute, relating to billing submitted to respondent by applicant for various medical and chiropractic services rendered to the Eligible Injured Person (EIP). The arbitrator rejected respondent’s physical examination and peer review-based defense of lack of medical necessity, and rendered an award for applicant.

Specifically, the arbitrator found that applicant had rebutted respondent’s physical examination report, and also found that respondent’s peer review report failed to adequately support the assertion of lack of medical necessity with a standard of care and/or medical rationale.

Respondent has submitted a brief which contends that the arbitrator erred in rejecting their defense. Respondent further contends in conclusory fashion that the award was irrational and should be vacated. Respondent contends that their proof was sufficient to sustain their defense.

Applicant has submitted a brief which contends that the award was rational and should not be disturbed.

Upon review of the contentions of the respondent, I see no reason to disturb the arbitrator’s weighing of the evidence, and in particular, the arbitrator’s determination that respondent’s peer review report was insufficient to support their lack of medical necessity defense. I also find no error in the arbitrator’s factual determination that applicant had rebutted respondent’s physical examination report.

Clearly, a no-fault arbitrator has wide latitude in deciding whether to credit and how to weigh such evidence. 11 NYCRR 65-4.5 (o)(1). See also, Matter of Bay Needle Acupuncture v. Country-Wide Ins. Co., 176 AD3d 806 (2nd Dept 2019); Matter of Jasser v. Allstate Ins. Co., 77 AD3d 751 (2nd Dept 2010); Allstate Ins. Co. v. Keegan, 201 AD2d 724 (2nd Dept 1994).

As per these cases, the weighing of evidence is generally not the function of a master arbitrator. In any event, in this case I find that the award here clearly was not irrational or otherwise infirm.

The award must be affirmed. Matter of Petrofsky v. Allstate Insurance Co., 54 NY2d 207 (1981).

(Id. at 2-3.)

ATIC’s Petition to Vacate

ATIC’s petition to vacate asserted that “The arbitration decision was arbitrary and capricious, irrational and without a plausible basis” (NYSCEF Doc No. 1, Petition ¶ 35), in that “Arbitrator Wendy Bishop, Esq. failed to follow well settled law” (id. ¶ 37). It also made reference to the grounds set forth in CPLR 7511 (b) (1) for vacating an arbitration award (see id. ¶ 33):

The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the [*5]rights of that party were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

The petition proceeded to argue that the claims at issue were properly and timely denied for lack of medical necessity as per the attached peer review and IME report (see id. ¶ 39). ATIC’s evidence submitted to the hearing arbitrator “clearly satisfied its burden” (id. ¶ 40). Ultimately the medical provider — Rutland in this instance — had to prove by a preponderance of the evidence that its services were medically necessary, claimed ATIC; the petition to vacate cited to Dayan v Allstate Ins. Co. (49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Dists 2015]), and Park Slope Medical and Surgical Supply, Inc. v Travelers Ins. Co. (37 Misc 3d 19, 22 n. [App Term, 2d Dept, 2d, 11th & 13th Dists 2012]) (see id. ¶ 41). “In order for an applicant to prove that the services were medically necessary, it must meaningfully refer to, or rebut, the conclusions set forth in the peer review,” maintained the petition, which cited to Pan Chiropractic, P.C. v Mercury Ins. Co. (24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Dists 2009]) (id. ¶ 42). Rutland failed to offer any rebuttal at all, and certainly did not meaningfully refer to the peer review and the IME report, as was required by Pan Chiropractic, P.C. and the more than 100 published decisions citing to it, insisted ATIC (see id. ¶ 43).

ATIC reiterated in several paragraphs of its petition that a health service provider seeking No-Fault medical expense compensation must meaningfully refer to and rebut an insurer’s peer reviewer’s and IME doctor’s conclusions (see id. ¶¶ 47-51). “This proposition is widely accepted as ‘well settled’ law in the industry” (id. ¶ 51). “In this case the arbitrator also ruled for Respondent [Rutland] despite the fact that there was no rebuttal. In doing so the arbitrator failed to follow well settled law. As such, this Court should vacate the arbitration award for the same reasons the Appellate Term reversed the trial courts in Pan Chiropractic, Eastern Star Acupuncture, Jaga Med. Servs., P.C. and High Quality Medical.” (Id. ¶ 54.)

“This decision was arbitrary and capricious, without rational basis and incorrect as a matter of law because zero evidence simply cannot outweigh evidence” (id. ¶ 57). The petition concluded by asserting that Arbitrator Bishop ignored ATIC’s “evidence and/or well settled legal precedent in order to justify a determination in favor of Applicant [Rutland]” (id. ¶ 58). Therefore, ATIC’s rights were prejudiced by the arbitrator’s partiality “and the arbitrator exceeded his/her power and failed to make a final and definite award and the decision must be vacated” (id. ¶ 59). The relief sought was vacatur of the awards of both Arbitrator Bishop and Master Arbitrator Ancowitz — that they “have no force or effect” (id. ¶ 60).

Rutland’s Cross-Petition to Confirm

Rutland argued in its cross-petition most significantly that the arbitration awards had to be confirmed if they were supported by evidence or other basis in reason (citing Matter of Petrofsky v Allstate Ins. Co., 54 NY2d 207 [1981]); rational (citing Matter of Unigard Mut. Ins. Co. v Hartford Ins. Group, 108 AD2d 917 [2d Dept 1985]); and not inapposite to settled law (citing Matter of Global Liberty Ins. Co. v Therapeutic Physical Therapy, P.C., 148 AD3d 502 [1st Dept 2017]). ATIC did not meet its burden of establishing that the master arbitration award did not meet these criteria. (See NYSCEF Doc No. 19, Cross-Petition.)

Rutland did not submit any calculation of an attorney’s fee for its opposition to the petition and maintenance of the cross-petition.

No-Fault Insurance Arbitration

When the No-Fault Law was first enacted by the Legislature in Chapter 13 of the Laws of 1973 to take effect February 1, 1974, § 675 of the Insurance Law was added. In subdivision 2 thereof, insurers were required to provide claimants with an arbitration option for disputes involving liability for first-party benefits. This provision was amended in Chapter 892 of the Laws of 1977, when several changes were made to the 1973 version.^[FN15] The provision regarding arbitration in § 675 was amended to add the following language:

An award by an arbitrator may be vacated or modified by a master arbitrator in accordance with simplified procedures to be promulgated or approved by the superintendent [of insurance]. The grounds for vacating or modifying an arbitrator’s decision by a master arbitrator shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules. The decision of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator’s award is five thousand dollars or greater, exclusive of interest and attorney’s fees, the insurer or the claimant may institute an action in a court of competent jurisdiction to adjudicate the dispute de novo.^[FN16]

The provisions regarding No-Fault insurance arbitration remained in the recodification of the Insurance Law enacted in Chapters 367 and 805 of the Laws of 1984. The arbitration provisions were set forth in § 5106, and subdivisions (b) and (c) now read as follows:

(b) Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent. Such simplified procedures shall include an expedited eligibility hearing option, when required, to designate the insurer for first party benefits pursuant to subsection (d) of this section. The expedited eligibility hearing option shall be a forum for eligibility disputes only, and shall not include the submission of any particular bill, payment or claim for any specific benefit for adjudication, nor shall it consider any other defense to payment.

(c) An award by an arbitrator shall be binding except where vacated or modified by a master arbitrator in accordance with simplified procedures to be promulgated or approved by the superintendent. The grounds for vacating or modifying an arbitrator’s award by a master arbitrator shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules. The award of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator’s award is five thousand dollars or greater, exclusive of interest and attorney’s fees, the insurer or the claimant may institute a court action to adjudicate the dispute de novo.

Insofar as is here relevant, the No-Fault Insurance Regulations promulgated by the Superintendent of Insurance provided that a master arbitrator may vacate or modify a hearing arbitrator’s award where it “was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground)” (11 NYCRR 65.18 [a] [4]). This regulatory language was carried over into the revised Regulations promulgated in 2002, in 11 NYCRR 65-4.10 (a) (4).^[FN17] A master arbitrator may also vacate or modify a hearing [*6]arbitrator’s award under certain other grounds also (see 11 NYCRR 65-4.10 [a]).^[FN18]

Discussion

ATIC’s contention in its master arbitration appeal that Rutland was an entity formed by a No-Fault insurance fraud ring has not been pursued in this Article 75 proceeding and, therefore, is not before this Court. Remaining is ATIC’s contention that Arbitrator Bishop failed to follow well settled law that a medical provider applicant in arbitration must meaningfully refer to, or rebut, the conclusions set forth in the peer review and/or IME report and, therefore, Master Arbitrator Ancowitz’s affirmance was erroneous.

The proper standard of review by a No-Fault insurance master arbitrator is whether he or she reached their decision in a rational manner, i.e., whether it was arbitrary and capricious, irrational, or without a plausible basis, or incorrect as a matter of law; the master arbitrator may [*7]not engage in an extensive factual review, which includes weighing the evidence, assessing the credibility of various medical reports, and making independent findings of fact (see Matter of Petrofsky v Allstate Ins. Co., 54 NY2d 207 [1981]).

The standard for Article 75 court scrutiny of a master arbitrator’s review of a hearing arbitrator’s award in terms of whether there was an error of law is whether it is so irrational as to require vacatur (see Matter of Smith v Firemen’s Ins. Co., 55 NY2d 224, 232 [1982]; Matter of Acuhealth Acupuncture, PC v Country-Wide Ins. Co., 170 AD3d 1168 [2d Dept 2019]; Matter of Acuhealth Acupuncture, P.C. v New York City Transit Authority, 167 AD3d 869 [2d Dept 2018]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]). The master arbitrator’s determination of the law need not be correct, and mere errors of law are insufficient to set aside the master arbitrator’s award; on questions of substantive law, the master arbitrator’s determination must be upheld if there is a rational basis for his determination; if the master arbitrator’s errors on a matter of law are irrational, his award may be set aside (see Matter of Liberty Mut. Ins. Co. v Spine Americare Med., P.C., 294 AD2d 574 [2d Dept 2002]).

This Court has previously discussed the issue raised by ATIC — whether a medical provider applicant in No-Fault insurance arbitration must submit expert medical opinion evidence which specifically refers to and either discusses or rebuts the insurer’s expert medical opinion evidence. This Court held that it need not, because the case law ATIC relied upon governs summary judgment motions in court, not No-Fault arbitrations. (See American Tr. Ins. Co. v Right Choice Supply, 78 Misc 3d 890 [Sup Ct, Kings County 2023].) Assessment of medical necessity entails a factual review of evidence and this is committed to the arbitrator’s discretion (id.). As this Court wrote,

In part, this Court’s present determination is based on the additional provision in 11 NYCRR 65-4.10 (a) (4) which provides that “procedural or factual errors committed in the arbitration below are not encompassed within this ground.” The reference to “factual errors” conveys impliedly that when it comes to assessing evidence for the purpose of fact-finding, an arbitrator has wider latitude and should not be required to comply with settled or established law concerning what specific evidence suffices to refute the opposing party’s evidence. This Court also takes into account the general proposition that the admissibility of evidence and the determination of issues of fact are left to the arbitrator’s discretion (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 483 [2006] [“Manifest disregard of the facts is not a permissible ground for vacatur of an award. . . .”]; Central Square Teachers Association v Board of Education of the Central Square Central School District, 52 NY2d 918, 919 [1981] [“The path of analysis, proof and persuasion by which the arbitrator reached this conclusion is beyond judicial scrutiny.”]; Matter of Lipson v Herman, 189 AD3d 440, 441 [1st Dept. 2020] [“error of fact . . . will not result in the vacatur of an arbitrator’s award”]; Matter of Bernstein v On-Line Software International, Inc., 232 AD2d 336, 338 [1st Dept. 1996] [“It is well established, however, that arbitrators are not bound by the rules of evidence and may admit or deny exhibits on an equitable basis.”]). In light of this case law with respect to the admissibility of evidence and the determination of issues of fact in arbitration, 11 NYCRR 65-4.10 (a) (4)’s “matter of law” should be limited in its breadth.

(78 Misc 3d at 909-910.)

Therefore, this Court holds that Arbitrator Bishop did not err when she did not require a formal rebuttal from Rutland which would have specifically referred to and either discussed or rebutted ATIC’s peer reviews and IME report. In point of fact, according to Arbitrator Bishop, Dr. Chiu’s peer reviews did not even rise to the level of a prima facie case of lack of medical necessity. It was within the arbitrator’s discretion to find that Dr. Chiu did not adequately support his conclusions. Ergo, the burden of proof did not shift to Rutland to rebut them.

The situation is a bit different with regard to Dr. Berman’s IME report. Arbitrator Bishop held that ATIC did meet its initial burden of proof and the burden of proof then shifted to Rutland to prove medical necessity, which it did with examination report findings. Based on this Court’s decision in American Tr. Ins. Co. v Right Choice Supply, however, a formal rebuttal was not necessary. It was within the arbitrator’s discretion to find that the IME report was overcome by evidence which was not a formal rebuttal (clinical examination results).

This Court notes that Master Arbitrator Ancowitz did not consider the legal issue he was presented with in the master arbitration appeal. In the segment of his award reserved for a summary of the issues, he wrote, “Was the award irrational or incorrect as a matter of law?” (NYSCEF Doc No. 4, Master Arbitration Award at 2). This court’s scrutiny of his master arbitration award reveals that he never discussed the issue posed by ATIC — that Rutland failed to submit a rebuttal meaningfully referring to and either discussing or rebutting ATIC’s medical evidence (peer reviews and IME report). Master Arbitrator Ancowitz found no error in Arbitrator Bishop’s analysis of the factual issue of medical necessity; it was neither arbitrary nor otherwise inform. Yet he did not mention the asserted error of law! In essence, his master arbitration award was incomplete. Despite that, however, this Court is constrained to uphold his award because the ultimate determination affirming Arbitrator Bishop was not irrational (see Matter of Smith, 55 NY2d 224; Matter of Acuhealth Acupuncture, PC, 170 AD3d 1168; Matter of Acuhealth Acupuncture, P.C., 167 AD3d 869; Matter of Acuhealth Acupuncture, P.C., 149 AD3d 828; Matter of Liberty Mut. Ins. Co., 294 AD2d 574). The reason Master Arbitrator Ancowitz’s award was not irrational is because Arbitrator Bishop was not required to apply the case law cited by ATIC regarding meaningfully referring to the insurer’s peer reviews and IME reports, as this Court held in American Tr. Ins. Co. v Right Choice Supply. Even if Master Arbitrator Ancowitz ignored this legal issue, it was academic; Arbitrator Bishop was within her rights to ignore the absence of a formal rebuttal referring to ATIC’s expert evidence.^[FN19]

“An arbitration award is indefinite or nonfinal for purposes of CPLR 7511 and subject to vacatur ‘only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy’ [citations omitted]” (Westchester County Corr. Officers Benevolent Assn., Inc. v Cheverko, 112 AD3d 842 [2d Dept [*8]2013]). While Master Arbitrator Ancowitz did not rule on the asserted error of law, it is inconsequential inasmuch as did not find that there was an error of law. Arbitrator Bishop’s award determined the rights and obligations of the parties and resolved the submitted controversy, and her determination was sustained by Master Arbitrator Ancowitz. There has been a final and definite resolution of the parties’ dispute (see Civil Serv. Empls. Assn. v County of Nassau, 305 AD2d 498 [2d Dept 2003]; Matter of Paul v Insurance Co. of N. Am., 81 AD2d 671 [2d Dept 1981]; cf. Papapietro v Pollack v Kotler, 9 AD3d 419 [2d Dept 2004]; Matter of Teamsters Local Union 693 [Coverall Serv. & Supply Co.], 84 AD2d 609 [3d Dept 1981]).

“This Court has recognized the authority of a court, before which there is a petition to confirm or to vacate an arbitration award, to remand the matter to the arbitration panel when the panel’s award does not dispose of a particular issue raised by the parties or indicate the panel’s intention with respect to it (see, Matter of Ritchie Bldg. Co. [Rosenthal], 9 AD2d 880), or when the award is ambiguous and not sufficiently explicit, since a court may not impose its own interpretation of the award (see, Matter of Jolson [Forest Labs.], 15 AD2d 901). Here, the award is not only ambiguous as to the intent of the panel, but also fails to address and dispose of the issues raised by the parties or to make any specific findings of fact or credibility. Given the diametrically opposed positions of the parties, the award, which apparently denied both sets of claims on the merits, cannot be harmonized or interpreted without speculation as to the panel’s intent.” (Hamilton Partners v Singer, 290 AD2d 316, 316-317 [2d Dept 2002].) Master Arbitrator Ancowitz’s award is not ambiguous. His intent to affirm Arbitrator Bishop is quite manifest. His approval of her analysis is evident. There is nothing to speculate about how the master arbitrator treated the hearing arbitration award. Although he did not explicitly deal with the issue raised by ATIC asserting an error of law, Master Arbitrator Ancowitz was sufficiently explicit to enable this Court to review it without having to speculate about his intent.

Accordingly, this Court rejects ATIC’s contentions in its petition. ATIC’s rights were not prejudiced, the arbitrator was not partial, she did not exceed her powers, her decision was neither arbitrary nor capricious, it had a rational basis, and she did not render a nonfinal award.

None of the CPLR 7511 (b) (1) grounds cited by ATIC for vacating an arbitration award have been proved by ATIC. There was no corruption, fraud or misconduct in the arbitration process. There was no partiality. Neither arbitrator exceeded his or her power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made. There was no failure to follow the procedure of Article 75.

Cross-Petition;
Interest, Attorney’s Fees, Return of Arbitration Filing Fee, Costs, and Disbursements

As mentioned above, Rutland sought in its cross-petition to confirm the arbitration determinations. Having found that no grounds exist to vacate them, the master arbitration award must be confirmed. Rutland is entitled to No-Fault compensation for health services in the principal amount of $2,713.58.

Rutland also sought additional payments in the nature of interest, attorney’s fees, return [*9]of the arbitration filing fee, costs, and disbursements.

Interest:

Where a claim is timely denied, interest at two per cent per month shall begin to accrue as of the date arbitration was requested by the claimant, i.e., the date the AAA received the applicant’s arbitration request, unless arbitration was commenced within 30 days after receipt of the denial, in which event interest shall begin to accrues as of the 30th day after proof of claim was received by the insurer (see Insurance Law § 5106 [a]; 11 NYCRR 65-4.5 [s] [3], 65-3.9 [c]; Canarsie Med. Health, P.C. v National Grange Mut. Ins. Co., 21 Misc 3d 791, 797 [Sup Ct, NY County 2008] [“The regulation provides that where the insurer timely denies, then the applicant is to seek redress within 30 days, after which interest will accrue.”]). The plaintiff health care provider in Canarsie Med. Health, P.C. argued that where a timely issued denial is later found to have been improper, the interest should not be stayed merely because the provider did not seek arbitration within 30 days after having received the denial. The court rejected this argument, finding that the regulation concerning interest was properly promulgated; this includes the provision staying interest until arbitration is commenced, where the claimant does not promptly take such action. Rutland’s arbitration request was received by the AAA on August 14, 2020 (see NYSCEF Doc No. 5, Rutland’s Arbitration Request Form & Submission at 1), which was more than 30 days after ATIC’s last denial of claim. Thus, interest on all of the claims herein accrued from August 14, 2020, not from the 30th day after proof of claim was received by ATIC. The end date for the calculation of the period of interest shall be the date of payment of the claims. In calculating interest, the date of accrual is excluded from the calculation (see General Construction Law § 20 [“The day from which any specified period of time is reckoned shall be excluded in making the reckoning.”]). Where a motor vehicle accident occurred after April 5, 2002, interest is calculated at the rate of two percent per month, simple, on a pro rata basis using a 30-day month (see 11 NYCRR 65-3.9 [a]; Gokey v Blue Ridge Ins. Co., 22 Misc 3d 1129[A], 2009 NY Slip Op 50361[U] [Sup Ct, Ulster County 2009]). CPLR 5004’s nine percent per annum is superseded by Insurance Law § 5106 [a]’s two percent per month (see Pro-Med Med., P.C. v MVAIC (74 Misc 3d 130[A], 2022 NY Slip Op 50135[U] [App Term 2d Dept, 2d, 11th & 13th Dists 2022]).

Attorney’s Fees:

After calculating the sum total of the first-party benefits awarded in this arbitration plus interest thereon, ATIC shall pay Rutland an attorney’s fee equal to 20 percent of that sum total subject to a maximum fee of $1,360.00, as provided for in 11 NYCRR 65-4.6 [d].

Additionally, this Court sustains the $130.00 attorney’s fee for preparatory services in connection with the master arbitration. This is in accordance with 11 NYCRR 65-4.10 [j] [2] [i].

Moreover, pursuant to 11 NYCRR 65-4.10 [j] [4], having successfully prevailed in this Article 75 proceeding, Rutland is entitled to an additional attorney’s fee (see Global Liberty Ins. Co. of NY v Nexray Family Chiropractic, 178 AD3d 525 [1st Dept 2019]; GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2d Dept 2017]).

Rutland’s counsel did not submit an affirmation specifying details with regard to work performed in this Article 75 special proceeding. It is not known whether an attorney or support staff performed the work. The cross-petition contains mostly boilerplate statements which could apply to most Article 75 proceedings to confirm No-Fault arbitration awards, with a few insertions specific to this particular claim. The same boierplate allegations have been submitted by Rutland’s counsel in past Article 75 proceedings. The cross-petition asserted that Rutland “should be granted leave to serve an afirmation in order to set forth its resonable attroneys’ fees in defending this action” (NYSCEF Doc No. 19, Cross-Petition ¶ 61).

A special proceeding, such as one commenced pursuant to CPLR 7511 to vacate an arbitration award, “is a civil judicial proceeding in which a right can be established or an obligation enforced in summary fashion. Like an action, it ends in a judgment (CPLR 411), but the procedure is similar to that on a motion (CPLR 403, 409). Speed, economy and efficiency are the hallmarks of this procedure.” (Vincent C. Alexander, Prac Commentaries, McKinney’s Cons Laws of NY, CPLR C401:01.) Counsel should have included an affirmation containing details describing the work performed (see Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co., 176 AD3d 695 [2d Dept 2019] [claim for hourly fee for prevailing on policy issue not substantiated with any time records]). It behooved counsel to do so considering the expedited nature of special proceedings.

In a Kings County No-Fault insurance case involving an appeal to the Court of Appeals, the court awarded $250.00 per hour but this was in connection with the litigation of a novel or unique issue (see Viviane Etienne Med. Care PC v Country-Wide Ins. Co., 59 Misc 3d 579 [Sup Ct, Kings County 2018]). The issue in the case at bar was neither novel nor unique, especially since the preclusion rule for untimely assertions of lack of medical necessity is established law.

Consdering the factors delineated herein, this Court awards $375.00 for work performed by Rutland’s counsel on this Article 75 proceeding. This Court considered the $70.00 per hour fee for policy issues litigated in arbitration or at the trial level, increased it to $125.00 per hour, and assumed that there was attorney involvement for two hours at the most in preparation of Rutland’s papers. In addition, a $125.00 for a personal appearance in court is awarded. (See 11 NYCRR 65-4.6 [c].)

Return of Arbitration Filing Fee:

ATIC shall also pay Rutland $40.00 as reimbursement for the fee paid to the AAA (see 11 NYCRR 65-4.5 [s] [1]).

Costs and Disbursements:

As the prevailing party in this special proceeding, Rutland shall recover its costs and disbursements, to be taxed by the Clerk.

Other Requested Relief

Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly rejected.

Conclusion

Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED that:

(1) ATIC’s petition to vacate the master arbitration award of Richard Ancowitz in AAA Case No. 99-20-1175-4211 is denied and this special proceeding is dismissed.

(2) Rutland’s cross-petition to confirm said master arbitration award is granted.

(3) Said master arbitration award is confirmed in its entirety.

(4) Rutland is awarded the principal amount of $2,713.58 as No-Fault insurance health service benefits, along with simple interest thereon (i.e., not compounded) at two per cent per month on a pro rate basis using a 30-day month, computed from August 14, 2020 to the date of payment of the principal amount, but excluding August 14, 2020 from being counted within the period of interest.

(5) After calculating the sum total of the principal amount of $2,713.58 plus the interest thereon, ATIC shall pay Rutland an attorney’s fee equal to 20 percent of that sum total, subject to a maximum fee of $1,360.00.

(6) ATIC shall pay Rutland an attorney’s fee of $130.00 in connection with the master arbitration.

(7) ATIC shall pay Rutland an attorney’s fee of $375.00 for work performed by counsel on this Article 75 proceeding.

(8) Rutland shall recover from ATIC costs and disbursements as allowed by law to be taxed by the Clerk.

E N T E R
Brooklyn, New York
August 4, 2023
HON. AARON D. MASLOW
Justice of the Supreme Court of the
State of New York

Footnotes

Footnote 1:The notice of petition seeks vacatur of “the arbitration award issued by Arbitrator Wendy Bishop, Esq. and/or Master Arbitrator Richard Ancowitz, Esq. under Article 75 of the CPLR” (NYSCEF Doc No. 2, Notice of Petition at 1), but it must be deemed to seek vacatur of just the master arbitration award inasmuch as the latter is the final determination of the arbitration process. The No-Fault Regulations provide that “court review pursuant to an article 75 proceeding” is from the “decision of a master arbitrator” (11 NYCRR 65-4.10 [h] [1] [i]). In fact, a party may not appeal from a hearing arbitration award (see Matter of Staten Is. Hosp. v USAA, 103 AD2d 744 [2d Dept 1984]; Matter of Griffith v Home Indem. Co., 84 AD2d 332 [1st Dept 1982]; Matter of Lampasona v Prudential Prop. & Cas. Ins. Co., 111 Misc 2d 623 [Sup Ct, Kings County 1981]). “[T]he Legislature intended the provision of CPLR article 75 to apply only to the review of the awards of master arbitrators (see, Insurance Law § 5106[c])” (Matter of Custen v General Acc. Fire and Life Ins. Co., 126 AD2d 256 [2d Dept. 1987]). It follows that if the hearing arbitrator’s award is imperfect, this can affect judicial review of a master arbitration award affirming it.

Footnote 2:Rather than denote the parties here as “Petitioner” and “Respondent” in discussion, the parties’ names are used. This is to facilitate the reader’s understanding of the facts, arguments, analysis, and determination. This also minimizes confusion because the respondent in the underlying arbitration (ATIC) is not the respondent herein but rather is the petitioner herein. The respondent herein, Rutland, was not the respondent in the arbitration, but was the applicant.

Footnote 3:Arbitrator Bishop wrote that the claimed amount in the arbitration request form was $2,713.58, which conflicts with the Form AR Arbitration Request Form (compare NYSCEF Doc No. 3 (Arbitration Award at numbered p 1) with NYSCEF Doc No. 5 (Rutland’s Arbitration Request Form & Submission at 15).

Footnote 4:Health service providers obtain standing to pursue No-Fault insurance compensation in arbitration by virtue of having received an assignment of benefits from the respective person claiming to have been injured in a covered motor vehicle accident; such person is often denoted as an “assignor.”

Footnote 5:References to page numbers in NYSCEF filings lacking specified page numbers are to the PDF page numbers.

Footnote 6:Paragraph 28 of the petition describes the AAA Case No. as 99-20-1175-4211, which was assigned to the master arbitration appeal. The original arbitration was assigned AAA Case No. 17-20-1175-4211 (see NYSCEF Doc No. 3, Arbitration Award at numbered p 1).

Footnote 7:This statutory scheme was developed by New York’s legislature in 1973, as part of a tradeoff whereby lawsuits for pain and suffering resulting from personal injuries in motor vehicle accidents were limited to instances of serious injury (see generally Insurance Law art 51; L 1973, ch 13, as amended L 1977, ch 892; John R. Dunne, New York’s No-Fault Automobile Insurance Law A Glimpse of the Past and a Glance at the Future, 50 NY St BJ 284 [June 1978]; J. Benedict, New York Adopts No-Fault: A Summary and Analysis, 37 Albany L Rev 662 [1973]).

Footnote 8:Although Insurance Law Article 51 does not mention the term “No-Fault,” shortly after the post-motor vehicle accident economic loss compensation system was enacted in 1973, the appellation “No-Fault” was adopted in common parlance to describe it.

Footnote 9:This Court uses the term “health service bills” instead of “medical bills” because the No-Fault Law provides for reimbursement of “(i) medical, hospital . . . , surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical therapy . . . and occupational therapy and rehabilitation . . . and (iv) any other professional heath services” (Insurance Law § 5102 [b] [1]). Hence, the No-Fault insurance system encompasses not just “medical” services. In the instant case, the services at issue encompassed diagnostic testing, therapeutic injections, and chiropractic.

Footnote 10:The prescribed claim forms are included within 11 NYCRR Part 65 (Regulation 68) Appendix 13. Besides Form NF-3 (verification of treatment by attending physician or other provider of health service), Appendix 13 contains Form NF-4 (verification of hospital treatment) and Form NF-5 (hospital facility form). Not every No-Fault insurance provider uses the prescribed forms; some utilize a HICF (Health Insurance Claim Form) or a UB-04 form more commonly used for inpatient outpatient claims billed by hospitals, healthcare facilities, and surgical facilities.

Footnote 11:There is a prescribed assignment of benefits form (Form NF-AOB) in 11 NYCRR Part 65 (Regulation 68) Appendix 13.

Footnote 12:The process of submitting a No-Fault claim to the insurer is governed by 11 NYCRR Subpart 65-3, which contains §§ 65-3.1 et seq.

Footnote 13:Form NF-10 is also included within 11 NYCRR Part 65 (Regulation 68) Appendix 13.

Footnote 14:This is the AAA’s electronic case management and filing platform maintained on the Internet; it is known as “Modria,” which was the name of the company which developed it for the AAA (see Liveblogging #ODR2014: The Developing Field of Online Dispute Resolution, https://civic.mit.edu/index.html%3 Fp=1452.html [last accessed Mar. 19, 2023]; Welcome to the Modria Resolution Center for the American Arbitration Association, https://aaa-nynf.modria.com/ [last accessed Mar. 19, 2023]).

Footnote 15:Among the more substantial changes in the 1977 legislation were the adoption of fee schedules to limit health service expenses and modifying the threshold categories for suing for noneconomic loss, i.e., pain and suffering.

Footnote 16:Nothing in the Governor’s Bill Jacket for Chapter 13 of the Laws of 1977 or other contemporary records comments on the provision adopting master arbitration review of hearing arbitrators’ decisions, so it is not known why the master arbitration process was created (see Matter of Bamond v Nationwide Mut. Ins. Co., 75 AD2d 812, 813 [2d Dept 1980], affd 52 NY2d 957 [1981]). This Court speculates that at least one reason was that No-Fault arbitration was compulsory and the Legislature desired to permit a party to an arbitration to seek review of the hearing arbitrator’s award on the basis of an assertion of an error of law, which traditionally was not a basis for review in an Article 75 proceeding (see Mott v State Farm Ins. Co., 77 AD2d 488 [3d Dept 1980], revd sub nom. on other grounds Matter of Smith v Firemen’s Ins. Co., 55 NY2d 224 [1982]).

Footnote 17:Most non-No-Fault insurance arbitration awards cannot be vacated due to an error of law (see Matter of Sprinzen v Nomberg, 46 NY2d 623, 629-630 [1979]). No-Fault insurance arbitrations are different; an error of law can be the basis for reversal — by a master arbitrator. In that sense, the master arbitrator’s review is broader than that of a court, since a court will not vacate an arbitration award due to an error of law (see Matter of Petrofsky v Allstate Ins. Co., 54 NY2d 207, 211-212 [1981]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802 [2d Dept 2019]).

Footnote 18:11 NYCRR 65-4.10 (a) provides as follows:

Grounds for review. An award by an arbitrator rendered pursuant to section 5106(b) of the Insurance Law and section 65-4.4 or 65-4.5 of this Subpart may be vacated or modified solely by appeal to a master arbitrator, and only upon one or more of the following grounds:

(1) any ground for vacating or modifying an award enumerated in article 75 of the Civil Practice Law and Rules (an article 75 proceeding), except the ground enumerated in CPLR subparagraph 7511(b)(1)(iv) (failure to follow article 75 procedure);

(2) that the award required the insurer to pay amounts in excess of the policy limitations for any element of first-party benefits; provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of an appeal, as provided for in section 65-4.4 or 65-4.5 of this Subpart;

(3) that the award required the insurer to pay amounts in excess of the policy limitations for any element of additional first-party benefits (when the parties had agreed to arbitrate the dispute under the additional personal injury protection endorsement for an accident which occurred prior to January 1, 1982); provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of the appeal, as provided for in section 65-4.4 or 65-4.5 of this Subpart;

(4) that an award rendered in an arbitration under section 65-4.4 or 65-4.5 of this Subpart, was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground);

(5) that the attorney’s fee awarded by an arbitrator below was not rendered in accordance with the limitations prescribed in section 65-4.6 of this Subpart; provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of the appeal, as provided for in section 65-4.4 or 65-4.5 of this Subpart.

Footnote 19:One bill dealt with by Arbitrator Bishop had no corresponding denial of claim. Her determination with respect to this bill was not referred to in ATIC’s master arbitration appeal or in this Article 75 petition.