Acuhealth Acupuncture, PC v Country-Wide Ins. Co. (2015 NY Slip Op 51256(U))

15621/12

Attorney For Petitioner: Acuhealth Acupuncture, P.C.
Gary Tsirelman, P.C.
129 Livingston Street
Brooklyn, New York 11201

Attorney For Respondent: Country-Wide Insurance Company
Jaffe & Koumourdas
40 Wall Street – 12th Floor
New York, New York 10005

PapersNumbered

Notice of Cross Motion and Affidavit ……………………………..____2_____

Answering Affidavits ……………………………………………………………..____3_____

Replying Affidavits ………………………………………………………………..____4_____

Exhibits …………………………………………………………………………………____5_____

Other .__________

Upon the foregoing papers, petitioner ACUHEALTH ACUPUNCTURE, PC moves for an order to vacate the Master Arbitrator’s award, pursuant to CPLR § 7511. Respondent COUNTRY-WIDE INSURANCE COMPANY opposes the motion and moves for an order to confirm the Master Arbitrator’s award, pursuant to CPLR § 7510.

This case arises out of an automobile accident with petitioner’s assignor on August 8, 2010. At the time of the accident, there was an existing No-Fault policy issued by the Respondent. Petitioner rendered health services to the assignor for the personal injuries sustained in the car accident. When petitioner did not receive full reimbursement for the services provided, the matter proceeded to arbitration. Respondent denied payment for acupuncture services on the contention that petitioner was owned and controlled by a person who is contrary to the New York State No-Fault law requirements, which states that “A provider of health care services is not eligible for reimbursement . . . if the provider fails to meet any applicable New York State . . . licensing requirement necessary to perform such service in New York.” 11 NYCRR § 65-3.16(a)(12). Respondent provided evidence that ACUHEALTH ACUPUNCTURE, PC was owned, controlled, and operated by Andrey Anikeyev, who is not a licensed medical practitioner. Petitioner submitted an affidavit from Natalya Kornilova stating that she is the sole owner of petitioner. As Ms. Kornilova was ill at the time of the arbitration, Arbitrator Weiner dismissed the petitioner’s claim without prejudice to afford respondent the opportunity to subpoena Ms. Kornilova and examine her under oath during the proceedings. Petitioner appealed and Master Arbitrator D’Ammora affirmed.

“An arbitration award can be vacated by a court pursuant CPLR § 7511(b) on only three narrow grounds: if it is clearly violative of a strong public policy, if it is totally or completely irrational, or if it manifestly exceeds a specific, enumerated limitation on the arbitrator’s power.” Matter of Erin Constr. & Dev. Co., Inc. v. Meltzer, 58 AD3d 729 (2009). Even if the arbitrator commits errors of fact or law, the [*2]court should not vacate the arbitrator’s award.” Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 NY3d 471 (2006). In this case, Arbitrator Weiner’s ruling and Master Arbitrator D’Ammora’s affirmation do not meet the three narrow grounds for the Court to vacate the award pursuant to CPLR § 7511. The award is not against public policy of any kind, it is not irrational, and it does not exceed the powers of the arbitrator in any capacity. As such, the Court has no recourse but to affirm the arbitrator’s award.

Petitioner argues that the respondent should be estopped from litigating this case since a similar case was litigated in prior proceedings in this Court. “The two elements that must be satisfied to invoke the doctrine of collateral estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue.” Luscher v. Arrua, 21 AD3d 1005, 1007 (2005). However, petitioner does not provide the Court with any evidence or details of the prior rulings of Judge King or Judge Bayne. Their decisions only state that the case be remanded. In order for collateral estoppel to apply, this Court would need details of the reasoning behind the prior decisions of Judge King and Judge Bayne to determine whether the issues in this case were previously decided. As such details were not provided by the petitioner, respondent is not estopped from litigating this issue.

Petitioner argues that Arbitrator Weiner acted impermissibly and incorrectly as a matter of law by raising the issue of subpoenaing Natalya Kornilova sua sponte. However, an “arbitrator . . . may subpoena witnesses . . . upon the arbitrator’s own initiative or upon the request of any party, when the issues to be resolved require such witnesses.” 11 NYCRR § 65-4.5(o)(2), (see also NY CPLR § 7505, 11 NYCRR § 65-4.4 [e]). Petitioner cites a case, Matter of Health & Endurance Med., P.C. v. Deerbrook Ins. Co., 44 AD3d 857 (2007), which has no relevance to this matter. In that case, the arbitrator raised an issue not relevant for determination of the issues. In this case, the contents of Ms. Kornilova’s deposition were integral to the determination of the issues in question, namely the ownership of the petitioner. As such, the Arbitrator was well within his power to issue a subpoena to Ms. Kornilova.

Petitioner argues that Arbitrator Weiner impermissibly dismissed the case without prejudice. Petitioner contends that a dismissal without prejudice is only warranted when the filing is premature. However, petitioner does not provide any case law to support this proposition. To the contrary, an arbitrator can dismiss a case without prejudice when a party “has failed to establish a prima facie case, but it appears that proof which would support a prima facie case is available.” Kilduff v. Donna Oil Corp., 74 AD2d 562, 563 (1980). A dismissal without prejudice indicates that there was no final determination on the merits and a subsequent action should not be barred. Id. In this case, petitioner is still entitled to bring their claim to an arbitrator at a time Ms. Kornilova is healthy enough to be examined under oath by respondent. As such, the dismissal without prejudice was permissible.

Petitioner further contends that Arbitrator Weiner’s findings were arbitrary and capricious or incorrect as a matter of law regarding the question of whether Petitioner is fraudulently incorporated. As indicated earlier, “even if the arbitrator commits errors of fact or law, the court should not vacate the arbitrator’s award.” Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 NY3d 471 (2006). Arbitrator Weiner’s findings were not so egregious or against public policy as to vacate the award. As explained in Arbitrator D’Ammora’s affirmation, “Arbitrator Weiner could have reached several different results in his decision.” See Affirmation in Opposition, Exhibit B. Arbitrator Weiner’s decision was logical and reasonable and does not warrant the Court vacating the award.

This constitutes the decision and order of the Court.

ENTER,

____________________

JSC