American Transit Insurance Company, Petitioner, against Ortho City Services Inc., A/A/O CARMEN LOPEZ, Respondent.

Index No. 530474/2022

Larkin Farrell LLC, New York City (David Fair of counsel), for petitioner.

Aaron D. Maslow, J.

The following numbered papers were read on this petition:

In an Article 75 proceeding commenced by an insurance company to vacate the awards of a No-Fault insurance hearing arbitrator and a master arbitrator in favor of a health service provider, where the latter failed to submit opposition to the insurance company’s verified petition, should the court review the verified petition to determine whether it makes out a prima facie case in support of the relief requested?

Does a No-Fault insurer make out a prima facie case in support of vacatur of an arbitration award on the asserted ground that the arbitrator erred with respect to an issue of medical necessity when no defense of lack of medical necessity was asserted in its Form NF-10 denials of claim?

Background

This is a special proceeding — pursuant to CPLR Article 75 — commenced by American Transit Insurance Company (“ATIC”) seeking an order and judgment vacating a No-Fault Insurance master arbitration award of Toby Susan DeSimone, Esq. (dated July 21, 2022), which affirmed the arbitration award of Mitchell Lustig, Esq. (dated April 2, 2022) granting Respondent Ortho City Services Inc.’s (“Ortho”) claim for $2,021.74 in No-Fault insurance compensation for the rental to Assignor Carmen Lopez ^[FN1] of a continuous passive motion unit and a cold water therapy unit from February 18, 2021 to March 3, 2021.^[FN2] ,^[FN3] Assignor had allegedly [*2]been injured in an October 16, 2020 motor vehicle accident. The medical supplies were prescribed by Dr. Laxmidhar Diwan following his right shoulder arthroscopic surgery performed on Assignor on February 3, 2021.

The arbitration was organized by the American Arbitration Association (“AAA”), which 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.

The arbitration was assigned Case No. 17-21-1214-9074 ^[FN4] by the AAA. At oral argument before this Court on May 12, 2023, Petitioner ATIC appeared and argued that the above-referenced arbitration awards should be vacated. Respondent Ortho has neither submitted opposition nor appeared in this special proceeding.

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 Lustig failed to follow well settled law” (id. ¶ 37). “As a result, Petitioner’s rights were prejudiced by the partiality of the arbitrator and the arbitrator exceeded his/her power and failed to make a final and definite award and the decision must be vacated” (id. ¶ 59).

As a predicate to its contentions in the petition that that both arbitration awards should be vacated, ATIC asserted that “The claims totaling $2,021.74 for dates of service 02/18/2021 – 03/03/2021 were denied because the services were not medically necessary as per the peer [*3]review of Dr. Raghava Polavarapu, a medical expert. (id. ¶¶ 26, 39). ATIC’s evidence submitted to the hearing arbitrator ^[FN5] “clearly satisfied its burden” (id. ¶ 40). Ultimately the medical provider had to prove by a preponderance of the evidence that its services were reasonable and 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]) (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). Ortho failed to offer any rebuttal at all, never mind one that meaningfully referred to Dr. Polavarapu’s peer review, as was required by Pan Chiropractic, P.C. and the more than 100 published decisions citing to it, insisted ATIC (id. ¶ 43).

Further, claimed ATIC, “Petitioner’s peer review and or IME report ^[FN6] exposed the Respondent and claimant for providing and receiving unnecessary medical treatment for the purpose of over-billing the carrier and bolstering the claimant’s personal injury claim” (id. ¶ 46). “The arbitrator, as finder of fact, is required to weigh the evidence when making a determination whether services were medically necessary. [Ortho] did not submit a rebuttal to the peer review and/or IME report. As such, the arbitrator did not have any evidence to suggest that the services were medically necessary” (id. ¶ 55).

Discussion

As noted above, Respondent Ortho has not appeared in this special proceeding, either with written opposition or oral argument. The question arises whether Petitioner ATIC’s petition to vacate the master arbitration award should be granted solely on default — on the nonappearance of Respondent Ortho. This Court answers the question in the negative.

“[T]he announced policy of this State favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties. One way to encourage the use of the arbitration forum we recently noted would be to prevent parties to such agreements from using the courts as a vehicle to protract litigation. This conduct has the effect of frustrating both the initial intent of the parties as well as legislative policy [citation & internal quotation marks omitted].” (Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91, 95 [1975].) “Judicial review of an arbitrator’s award is extremely limited” (Pearlman v Pearlman, 169 AD2d 825 [2d Dept 1991]). This is especially true with respect to No-Fault [*4]insurance arbitrations. 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 ^[FN7] 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 314 [2d Dept 2018]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]). Similarly, with respect to factual issues reviewed by a master arbitrator, the proper standard of his review was whether the latter reached his decision in a rational manner, i.e., whether it was arbitrary and capricious, irrational, or without a plausible basis; the master arbitrator may 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 (Matter of Petrofsky v Allstate Ins. Co., 54 NY2d 207 [1981]).^[FN8]

Were this Court to vacate a No-Fault insurance master arbitration award merely because a verified petition to vacate has been filed within the context of an Article 75 proceeding and the respondent failed to appear in opposition, the policy preference for the adjudication of such disputes through arbitration would be significantly frustrated. It is quite possible that a health service provider who prevailed in arbitration and was awarded a relatively low sum of money simply finds it not financially or logistically worthwhile to retain legal counsel to interpose opposition. Merely because one side had the resources to challenge the arbitration award in court and the other declined to undertake the effort to retain counsel should not impel the court to ipso facto rubber-stamp the unopposed petition commencing the special proceeding.

Rather, the court should treat this situation as the functional equivalent of when a plaintiff moves for a default judgment. As part of its application for a judgment by default, the plaintiff must submit “proof of the facts constituting the claim. . .” (CPLR 3215 [f]). The affidavit of merit must provide enough facts to enable the court to determine that a viable cause of action exists against the party in default (Roy v 81 E 98th KH Gym, LLC, 142 AD3d 985 [2d Dept 2016]).

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.)

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’d 84 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)[.]” (Id. at *5 [parallel citations omitted].)

In a special proceeding to stay arbitration, the petitioner must make out a prima facie [*5]case (Matter of Empire Ins. Co. v Milioner, 187 AD2d 277 [2d Dept 1992]). A court may determine that a claim is not properly before it in an Article 78 special proceeding (see Matter of McCoy v Annucci, 199 AD3d 1143 [3d Dept 2021]). A special proceeding seeking pre-action discovery must provide the facts and the law which supports the relief sought (Matter of Accetta, 39 Misc 3d 1218[A], 2013 NY Slip Op 50657[U] [Sup Ct, Kings County 2013]).

Taking into account this case law, this Court holds that in an Article 75 proceeding to vacate the award of a No-Fault insurance arbitration, where the respondent health service provider failed to submit opposition to the verified petition, the Court should review the verified petition to determine whether it makes out a prima facie case in support of the relief requested.

Determination

The instant arbitration concerned two bills submitted by Ortho to ATIC for payment. One bill, in the amount of $1,400.70 was for the rental of a continuous passive motion machine for the right shoulder (NYSCEF Doc No. 5, Ortho’s arbitration submission, at 10-12). The other bill, in the amount of $621.04, was for the rental of a cold water therapy unit (id. at 20-22). Both bills were denied on two grounds: (1) fees were not in accordance with fee schedule, and (2) surgery and surgically related services to the right shoulder were not causally related to the accident of record, based on the attached peer review of Dr. Raghava Polavarapu (id. at 15-18, 25-28).

Hearing Arbitrator Lustig found that no evidence was submitted in support of a defense relating to fees charged (NYSCEF Doc No. 3, Arbitrator Lustig’s Award, at numbered p 2.) He found that Dr. Polavarapu’s peer review was not sufficient for ATIC to satisfy its burden of proof that the medical supplies at issue were not medically necessary and/or causally related to the February 3, 2021 accident. “Dr. Polavarapu’s peer review only discusses the medical necessity and/or causal relationship to the accident of the underlying right shoulder surgery performed by Dr. Diwan on February 3, 2021. At no time in his peer review report does Dr. Polavarapu discuss or opine on the medical necessity and/or causal relationship to the accident of the rental of the CPM Machine and CTU specifically in dispute herein. . . . Consequently, I find that Dr. Polavarapu’s peer review report dated June 28, 2021 fails to set forth a sufficient factual basis and medical rationale for the denial of the rental of the CPM and CTU in dispute in this matter.” (Id. at numbered p 4.)

Arbitrator Lustig also wrote: “Finally, to the extent that Dr. Polavarapu suggested that the assignor’s injuries were unrelated to the accident, it is the Respondent’s burden to demonstrate that the Assignor’s condition or injury was not caused or exacerbated to any degree by the underlying automobile accident but was, rather, pre-existing. I find that Dr. Polavarapu’s peer review report is not sufficient to meet this heavy burden. Indeed, as specifically noted by Dr. Diwan on page 3 of his examination report of the Assignor on December 14, 2020: ‘Within a reasonable degree of medical certainty [the Assignor’s right shoulder injuries] were [a] direct result of 10/16/2020 motor vehicle accident.’ ” (Id. at numbered p 5.)

Master Arbitrator DeSimone affirmed Hearing Arbitrator Lustig. “I find the lower [*6]arbitrator decided this claim based upon his review and evaluation of the record, as well as case law. I find the award below was clearly articulated and had a rational and plausible basis in the evidence. The lower arbitrator was persuaded by Applicant/Appellee’s submissions. There was no evidence presented which would establish any valid ground to set aside the award of the lower arbitrator. I see no reason [to] disturb the arbitrator’s decision. The award is therefore affirmed in its entirety.” (NYSCEF Doc No. 4, Master Arbitrator DeSimone’s Award, at 5.)

In determining whether ATIC’s verified petition made out a prima facie case in support of its cause of action to vacate it, this Court notes that ATIC claimed that Arbitrator Lustig erred with respect to his finding concerning an asserted issue of medical necessity. The factual averment in the verified petition that Ortho’s claims (bills) “were denied because the services were not medically necessary” (NYSCEF Doc No. 1, petition, ¶ 26) — and throughout its verified petition, ATIC continued to refer to lack of medical necessity as a defense supporting its nonpayment of Ortho’s bills (id. ¶¶ 38-42, 46, 55) — is contradicted by ATIC’s Form NF-10 denials of claim it submitted into the record (NYSCEF Doc No. 5, Ortho’s arbitration submission, at 15-18, 25-28). Said denials of claim asserted as a defense for nonpayment that the surgery and surgically related services to the right shoulder were not causally related to the accident of record (id.).

Nowhere in the verified petition to vacate the arbitration determination was there any reference to a defense of lack of a causal relationship between the rental of the medical supplies and the subject motor vehicle accident.

In essence what ATIC claimed for its prima facie case in this special proceeding is that Arbitrator Lustig erred regarding lack of medical necessity. This Court concludes as a matter of law that an alleged arbitrator’s error concerning the issue of lack of medical necessity fails to make out a prima facie case in support of vacatur of the arbitrator’s award in an Article 75 proceeding when lack of medical necessity was not the original basis for denying payment of the bills. An insurer must stand or fall upon the defense upon which it based its refusal to pay and cannot create new grounds (see Todaro v GEICO General Ins. Co., 46 AD3d 1086 [3d Dept. 2007]; Matter of State Farm Ins. Co. v Domotor, 266 AD2d 219, 220-221 [2d Dept 1999]). An insurer is not permitted to assert a defense in litigation which was not preserved in the denial of claim form (see Metropolitan Radiological Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 675, 678 [Civ Ct, Queens Co. 2005]).

If a No-Fault insurer is contesting an arbitration award with a verified petition which fails to discuss the arbitrator’s analysis of the defense asserted in the respective denials of claim issued in response to the bills submitted, then the insurer has clearly failed to establish a prima facie case to vacate the arbitration award.

Accordingly, although Arbitrator Lustig did discuss an issue of lack of medical necessity in his award, this Court deems it surplusage inasmuch as ATIC’s denials of claim did not assert lack of medical necessity as a defense. That portion of his award which determined the issue of an asserted lack of causal relationship between the services and the accident could have been challenged in this proceeding — as it was a stated defense in the denials of claim — but ATIC [*7]failed to raise it in its verified petition.

There being a lack of a prima facie case in the verified petition for vacating the arbitration awards, this Court rejects ATIC’s contentions that Arbitrator Lustig’s award “was arbitrary and capricious, irrational and without a plausible basis” (NYSCEF Doc No. 1, petition, ¶ 35), that its “rights were prejudiced by the partiality of the arbitrator, and that the arbitrator exceeded his/her power and failed to make a final and definite award” (id. ¶ 59). ATIC failed to make out a prima facie case in support of any of the grounds listed in CPLR 7511 (b) (1) for vacating an arbitration award: that the rights of a party were prejudiced by (i) corruption, fraud or misconduct in procuring the award; (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; (iii) an arbitrator, or agency or person making the award, exceeding his power or so imperfectly executing it that a final and definite award upon the subject matter submitted was not made; or (iv) a failure to follow the procedure of Article 75.

Conclusion

Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED that that ATIC’s petition is denied, this special proceeding is dismissed, and the master arbitration award of Toby Susan DeSimone, Esq., which affirmed the arbitration award of Mitchell Lustig, Esq., is confirmed in its entirety.

E N T E R
Brooklyn, New York
May 28, 2023
HON. AARON D. MASLOW
Justice of the Supreme Court of the State of New York

Footnotes

Footnote 1: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 an “assignor.”

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, NextStep, was not the respondent in the arbitration, but was the applicant.

Footnote 3:The notice of petition seeks vacatur of “the arbitration award issued by Arbitrator Mitchell Lustig, Esq. and/or Master Arbitrator Toby Susan DeSimone, Esq.” (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]). In fact, a party may not appeal from an arbitration award without first seeking master arbitration (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]). Naturally, if the hearing arbitrator’s award is imperfect, this can impact judicial review of a master arbitration award affirming it.

Footnote 4:Paragraph 28 of the petition describes the AAA Case No. as 99-21-1214-9074, which was assigned to the master arbitration appeal. The original arbitration was assigned AAA Case No. 17-21-1214-9074.

Footnote 5:The term “hearing arbitrator” is used herein instead of “arbitrator” to avoid confusion with the term “master arbitrator.”

Footnote 6:The reference to an “IME report” in paragraphs 39, 43, 46, 47, and 55 are inapropos. There was no IME report upon which ATIC relied in denying compensation. There was only a peer review and, as we shall see, it did not even refer to lack of medical necessity.

Footnote 7:“In No-Fault insurance arbitration, an error of law is a ground for reversal by a master arbitrator of a hearing arbitrator’s award (11 NYCRR 65-4.10 [a] [4]). This is an exception to the principle generally applicable to arbitration that errors of law do not warrant vacatur of an arbitrator’s award (see, e.g., Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471,479 [2006]). This Court has held that the error-of-law ground for reversal applies only to substantive law, and not to the means by which factual issues are assessed (see Matter of American Tr. Ins. Co. v Right Choice Supply, Inc., — Misc 3d —, 2023 NY Slip Op 23039 [Sup Ct, Kings County 2023]).

Footnote 8:11 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.

American Transit Insurance Company, Petitioner, against NextStep Healing, Inc., A/A/O YULEE VELEZ, Respondent.

Index No. 500216/2023

Larkin Farrell LLC, New York City (David Fair of counsel), for petitioner.

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 NextStep Healing, Inc.’s Arbitration Request Form and Arbitration Submission (NYSCEF Doc No. 5)
Exhibit D – Petitioner American Transit Insurance Company’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

In an Article 75 proceeding commenced by an insurance company to vacate the awards of a No-Fault insurance hearing arbitrator and a master arbitrator in favor of a health service provider, does the insurance company make out a prima facie case of entitlement to vacatur where the bases for relief were not presented to either the hearing arbitrator or the master arbitrator?

Background

This is a special proceeding — pursuant to CPLR Article 75 — commenced by American Transit Insurance Company (“ATIC”) seeking an order and judgment vacating a No-Fault insurance master arbitration award of Steven Rickman, Esq. (dated October 30, 2022), which affirmed the arbitration award of Teresa Girolamo, Esq. (dated July 12, 2022) granting Respondent NextStep Healing, Inc.’s (“NextStep”) claim for $4,124.54 in No-Fault insurance compensation for the rental to Assignor Yulee Velez ^[FN1] of medical supplies from September 2, 2020 to September 28, 2020.^[FN2] ,^[FN3] Assignor had allegedly been injured in a February 23, 2020 [*2]motor vehicle accident. The medical supplies were prescribed by Dr. Andrew Miller following his left knee arthroscopic surgery performed on Assignor on August 28, 2020.

The arbitration was organized by the American Arbitration Association (“AAA”), which 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.

The master arbitration was assigned Case No. 99-21-1190-9729 ^[FN4] by the AAA (NYSCEF Doc No. 4, Master Arbitration Award). At oral argument before this Court on May 12, 2023, Petitioner ATIC appeared and argued that the above-referenced arbitration awards should be vacated. Respondent NextStep has neither submitted opposition nor appeared in this special proceeding.

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 Teresa Girolamo, Esq. failed to follow well settled law” (id. ¶ 41). “As a result, Petitioner’s rights were prejudiced by the partiality of the arbitrator and the arbitrator exceeded his/her power and failed to make a final and definite award and the decision must be vacated” (id. ¶ 68).

As a predicate to its contentions in the petition that that both arbitration awards should be vacated, ATIC asserted that the claims totaling $4,124.54 were denied by it because the services were not medically necessary as per the peer review of Dr. Douglas Petroski, a medical expert (id. ¶¶ 25-26, 42, 48). ATIC contended that the claims at issue were originally delayed for verification, including an examination under oath (“EUO”), but Arbitrator Girolamo precluded ATIC and refused to consider the peer review or decide the medical necessity defense; instead, the arbitrator based her decision on the fact that there was a large gap between the scheduling of the first and second EUOs. The arbitrator found the requests to be untimely and precluded Petitioner as a result. (Id. ¶¶ 43-45.) “The arbitrator’s decision failed to consider that the EUO was scheduled in the heart of Covid and that the Governor’s Executive Order 202.8 and the series of subsequent orders stayed all time frames provided for by the regulations (id. ¶ 46).” ATIC’s evidence submitted to the hearing arbitrator ^[FN5] “clearly satisfied its burden” (id. ¶ 49).

Ultimately the medical provider had to prove by a preponderance of the evidence that its services were reasonable and 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]) (id. ¶ 50). “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. ¶ 51). NextStep failed to offer any rebuttal at all, never mind one that meaningfully referred to Dr. Petroski’s peer review, as was required by Pan Chiropractic, P.C. and the more than 100 published decisions citing to it, insisted ATIC (id. ¶ 52).

Further, claimed ATIC, “Petitioner’s peer review and or IME report ^[FN6] exposed the Respondent and claimant for providing and receiving unnecessary medical treatment for the purpose of over-billing the carrier and bolstering the claimant’s personal injury claim” (id. ¶ 55). “The arbitrator, as finder of fact, is required to weigh the evidence when making a determination whether services were medically necessary. [NextStep] did not submit a rebuttal to the peer review and/or IME report. As such, the arbitrator did not have any evidence to suggest that the services were medically necessary” (id. ¶ 64).

Discussion

As noted above, Respondent NextStep has not appeared in this special proceeding, either with written opposition or oral argument. The question arises whether Petitioner ATIC’s petition to vacate the master arbitration award should be granted solely on default — on the nonappearance of Respondent NextStep. This Court answers the question in the negative.

“[T]he announced policy of this State favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties. One way to encourage the use of the arbitration forum we recently noted would be to prevent parties to such agreements from using the courts as a vehicle to protract litigation. This conduct has the effect of frustrating both the initial intent of the parties as well as legislative policy [citation & internal quotation marks omitted].” (Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91, 95 [1975].) “Judicial review of an arbitrator’s award is extremely limited” (Pearlman v Pearlman, 169 AD2d 825 [2d Dept 1991]). This is especially true with respect to No-Fault insurance arbitrations. 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 ^[FN7] is whether it is so [*3]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 314 [2d Dept 2018]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]). Similarly, with respect to factual issues reviewed by a master arbitrator, the proper standard of his review was whether the latter reached his decision in a rational manner, i.e., whether it was arbitrary and capricious, irrational, or without a plausible basis; the master arbitrator may 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 (Matter of Petrofsky v Allstate Ins. Co., 54 NY2d 207 [1981]).^[FN8]

Were this Court to vacate a No-Fault insurance master arbitration award merely because a verified petition to vacate has been filed within the context of an Article 75 proceeding and the respondent failed to appear in opposition, the policy preference for the adjudication of such disputes through arbitration would be significantly frustrated. It is quite possible that a health service provider who prevailed in arbitration and was awarded a relatively low sum of money simply finds it not financially or logistically worthwhile to retain legal counsel to interpose opposition. Merely because one side had the resources to challenge the arbitration award in court and the other declined to undertake the effort to retain counsel should not impel the court to ipso facto rubber-stamp the unopposed petition commencing the special proceeding.

Rather, the court should treat this situation as the functional equivalent of when a plaintiff moves for a default judgment. As part of its application for a judgment by default, the plaintiff must submit “proof of the facts constituting the claim. . .” (CPLR 3215 [f]). The affidavit of merit must provide enough facts to enable the court to determine that a viable cause of action exists against the party in default (Roy v 81 E 98th KH Gym, LLC, 142 AD3d 985 [2d Dept 2016]).

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.)

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’d 84 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)[.]” (Id. at *5 [parallel citations omitted].)

In a special proceeding to stay arbitration, the petitioner must make out a prima facie case (Matter of Empire Ins. Co. v Milioner, 187 AD2d 277 [2d Dept 1992]). A court may determine that a claim is not properly before it in an Article 78 special proceeding (see Matter of McCoy v Annucci, 199 AD3d 1143 [3d Dept 2021]). A special proceeding seeking pre-action discovery must provide the facts and the law which supports the relief sought (Matter of Accetta, 39 Misc 3d 1218[A], 2013 NY Slip Op 50657[U] [Sup Ct, Kings County 2013]).

Taking into account this case law, this Court holds that in an Article 75 proceeding to vacate the award of a No-Fault insurance arbitration, where the respondent health service [*4]provider failed to submit opposition to the verified petition, the Court should review the verified petition to determine whether it makes out a prima facie case in support of the relief requested.

Determination

The instant arbitration concerned several bills submitted by NextStep to ATIC for payment. Arbitrator Girolamo described the issue in dispute as “[W]hether this arbitration is premature due to outstanding verification.” Timely verification requests were issued by ATIC, noted Arbitrator Girolamo, but in each instance it informed NextStep that an EUO of Assignor was still outstanding. “The first EUO letter was issued on 6/15/2020 for an EUO of 7/22/2020. This was rescheduled on 11/13/2020 to 2/17/2021. No explanation was provided for this gap in scheduling.” (NYSCEF Doc No. 3, Hearing Arbitration Award, at numbered pp 2-3.) Arbitrator Girolamo concluded: “The issue in this case turns on the handling of the scheduling of the EUO. The first date was 7/22/2020 and the second date was 2/17/2021. Respondent did not provide any claims adjuster affidavit or attorney affidavit regarding the scheduling of same and the huge gap. As such I find that based upon the claims handling of this case, the delay in scheduling is unacceptable. Therefore Applicant’s claim is granted.”

Master Arbitrator Rickman affirmed Arbitrator Girolamo. He noted that ATIC defended against payment of NextSetp’s claims in the hearing arbitration on the basis that there was verification outstanding, i.e., an EUO of Assignor. He reviewed Arbitrator Girolamo’s findings. Master Arbitrator Rickman then noted that ATIC’s brief submitted to him did not contest Arbitrator Girolamo’s determination regarding Assignor’s failure to attend an EUO.^[FN9] (NYSCEF Doc No. 4, Master Arbitration Award, at numbered p 2.) ATIC’s master arbitration brief argued that ” ‘At the time the defense package was due the claim was neither paid nor denied as there remained outstanding verification. As a result, the defense package presented concerned the verification requests. Since then, the claims were denied based on peer review. The matter should be remanded for a determination on the merits.’ ” (Id.)

Master Arbitrator Rickman reasoned that since the Form NF-10 denials of claim issued by ATIC, citing a defense predicated on Dr. Douglas Petroski’s peer review, were issued on March 15, 2021, they could have been submitted for consideration at the hearing arbitration, which took place on July 12, 2022 (id.). “Appellant offers absolutely no explanation why it did not submit the peer review denials into evidence prior to the scheduled hearing so that the NFA [No-Fault Arbitrator] could have considered the issue” (id.). Master Arbitrator Rickman took cognizance of the provision in 11 NYCRR 65-4.10 (c) (6), which permits the master arbitrator to only consider those matters which were the subject of the arbitration below or which were [*5]included in the arbitration award appealed from. “Appellant’s peer review defense was not the subject of the arbitration below nor was this defense included in the arbitration award.” (Id.)

Noting that Arbitrator Girolamo considered all the evidence before her in the AAA’s electronic case folder, Master Arbitrator Rickman was satisfied that the former’s award was rationally supported. He concluded, “I find that the arbitrator’s determination was not irrational, arbitrary, capricious or incorrect as a matter of law.” (Id. at 3.)

In determining whether ATIC’s verified petition made out a prima facie case in support of its cause of action to vacate the arbitration awards, this Court takes note that ATIC basically presented two bases for vacatur. One was that Arbitrator Girolamo erred in denying the defense that there was a failure by Assignor to attend EUOs; that she should have considered Gov. Andrew Cuomo’s Executive Orders, which allegedly stayed all time frames. The other was that its peer reviewer, Dr. Petroski proved lack of medical necessity for the medical supplies at issue.

A party cannot raise in court an issue which should have been raised in arbitration (see Rochester City Sch. Dist. v Rochester Teachers Assn., 41 NY2d 578 [1977]). The purpose of No-Fault insurance master arbitration is clearly so that the unsuccessful party in the original arbitration may appeal without having to proceed straight to court with an Article 75 proceeding. This is evident from a review of the grounds for reversal by a master arbitrator set forth at 11 NYCRR 65-4.10(a) (quoted in n 8 supra). However, just as it would be inappropriate to commence an Article 75 proceeding without first having sought master arbitration (see Matter of Staten Island 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], so too it is inappropriate to commence an Article 75 special proceeding without first having raised before a master arbitrator the defense relied on at the hearing arbitration (see Matter of Metropolitan Prop. & Liab. v Mendelsohn, 251 AD2d 666 [2d Dept 1998] [master arbitrator exceeded his powers by permitting party to return to hearing arbitration with evidence inadvertedly not submitted previously]).

In the instant case, the issue presented to Master Arbitrator Rickman was a defense of lack of medical necessity. Under “Issues Presented for Review” in its master arbitration brief, ATIC wrote, “1. Whether the DME [durable medical equipment] was medically necessary. In her award dated, 02/23/20, Arbitrator Molesso awarded the Applicant $4,124.54” (NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Brief, at 35). (While the amount awarded by Arbitrator Girolamo was correct, ATIC mistakenly called her “Arbitrator Molesso” and set forth an incorrect award date, the correct one being July 12, 2022.) Therefore, since ATIC failed to preserve at the master arbitration level an issue regarding the failure of Assignor to attend EUOs as a defense to payment of the claims, it cannot now pursue this issue here in court review of the master arbitration award. There is a lack of a prima facie case by ATIC in this Court concerning the issue of Assignor’s nonappearance at the EUOs.

Similarly, ATIC did not assert the defense of lack of medical necessity (as opined by Dr. Petroski in his peer review) before Arbitrator Girolamo. This is abundantly clear from her award and from Master Arbitrator Rickman’s award. ATIC’s allegation in paragraph 44 of its petition (NYSCEF Doc No. 1), “The arbitrator precluded Petitioner and refused to consider the peer review or decide the medical necessity defense,” constitutes an unsupported and incorrect accusation of misconduct on the part of Arbitrator Girolamo. ATIC’s failure to raise the issue of lack of medical necessity is due to its own neglect to litigate this before her.

ATIC could have submitted the denial of claim asserting lack of medical necessity, [*6]considering that its Form NF-10 denials of claim were issued a year and four months earlier, yet it never did so.^[FN10] Not having asserted this defense before the hearing arbitrator, ATIC lacks a prima facie case in this Court. In effect, ATIC seeks de novo review of a defense never presented in the original arbitration, which is improper as CPLR 7511 review cannot be had when the issue was not preserved (see Rochester City Sch. Dist. v Rochester Teachers Assn., 41 NY2d 578).

Parenthetically, it was neither irrational nor arbitrary for Arbitrator Girolamo to reject the EUO failure-to-appear defense without ATIC explaining the gap between scheduling the initial EUO on June 15, 2020 for July 22, 2020, and the follow-up request on November 13, 2020 for February 17, 2021 (see 11 NYCRR 65-3.5 [b], 65-3.6 [b]; Restoration Chiropractic, P.C. v 21st Century Ins. Co., 65 Misc 3d 157[A], 2019 NY Slip Op 51961[U] [App Term, 2d Dept, 2d, 11th & 13th Dists 2019]).

There being a lack of a prima facie case in the verified petition for vacating the arbitration awards, this Court rejects ATIC’s contentions that “The arbitration decision was arbitrary and capricious, irrational and without a plausible basis” (NYSCEF Doc No. 1, petition, ¶ 35). The assertion that “Arbitrator Teresa Girolamo, Esq. failed to follow well settled law” (id. ¶ 41) is without any merit. In fact, by rejecting ATIC’s failure-to-attend EUO defense, she followed well settled law governing the scheduling of EUOs, as discussed in the preceding paragraph. Arbitrator Girolamo was not partial and ATIC’s assertion that she was (id. ¶ 68) is rejected. Neither did Arbitrator Girolamo exceed her power and fail to make a final and definite award, this Court rejecting such an assertion (id.).

Conclusion

Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED that that ATIC’s petition is denied, this special proceeding is dismissed, and the master arbitration award of Steven Rickman, Esq., which affirmed the hearing arbitration award of Teresa Girolamo, Esq., is confirmed in its entirety.

E N T E R
Dated: Brooklyn, New York, May 28, 2023
HON. AARON D. MASLOW
Justice of the Supreme Court of the
State of New York

Footnotes

Footnote 1: 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 an “assignor.”

Footnote 2: The notice of petition seeks vacatur of “the arbitration award issued by Arbitrator Teresa Girolamo, Esq. and/or Master Arbitrator Steven Rickman, Esq.” (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]). In fact, a party may not appeal from an arbitration award without first seeking master arbitration (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]). Naturally, if the hearing arbitrator’s award is imperfect, this can impact 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. 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, NextStep, was not the respondent in the arbitration, but was the applicant.

Footnote 4: The original arbitration was assigned AAA Case No. 17-21-1190-9729 (NYSCEF Doc No. 3, Hearing Arbitration Award). For the master arbitration appeal, the AAA switched the “17” to “99.”

Footnote 5: The term “hearing arbitrator” is used herein instead of “arbitrator” to avoid confusion with the term “master arbitrator.”

Footnote 6: The references to an “IME report” in the verified petition are inapropos. There was no IME report upon which ATIC relied in denying compensation.

Footnote 7:“In No-Fault insurance arbitration, an error of law is a ground for reversal by a master arbitrator of a hearing arbitrator’s award (11 NYCRR 65-4.10 [a] [4]). This is an exception to the principle generally applicable to arbitration that errors of law do not warrant vacatur of an arbitrator’s award (see, e.g., Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471,479 [2006]). This Court has held that the error-of-law ground for reversal applies only to substantive law, and not to the means by which factual issues are assessed (see Matter of American Tr. Ins. Co. v Right Choice Supply, Inc., — Misc 3d —, 2023 NY Slip Op 23039 [Sup Ct, Kings County 2023]).

Footnote 8:11 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 9: Master Arbitrator Rickman wrote, “Appellant’s brief does not contest the NFA’s determination regarding its outstanding verification [EUO] defense. Thus, the lower arbitration award is affirmed on this issue (defense).” (NYSCEF Doc No. 4, Master Arbitration Award, at numbered p 2.) One could argue that he should not have even written that he was affirming Arbitrator Girolamo on this defense since it was not raised in ATIC’s master arbitration brief (see Matter of Bamond v Nationwide Mut. Ins. Co., 75 AD2d 812, 813 [2d Dept 1980] [Article 75 court should not consider question not raised in No-Fault insurer’s application]).

Footnote 10: It is true that the denial of claim forms would have constituted late evidence past the filing of ATIC’s hearing arbitration submission (see 11 NYCRR 65-4.2 [b] [3] [i]-[iii]), but it could have sought leave from Arbitrator Girolamo to submit them into the record (see 11 NYCRR 65-4.2 [b] [3] [iv]).

American Transit Insurance Company, Petitioner, against Nexray Medical Imaging PC D/B/A Soul Radiology, A/A/O Ronald Simpson, Respondent.

Index No. 530898/2022

Larkin Farrell LLC, New York City (David Fair of counsel), for petitioner.

Roman A. Kravchenko, Garden City, for respondent.

Aaron D. Maslow, J.

The following numbered papers were read on this petition and cross-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)
Exhibit D — Petitioner’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)
Notice of Cross-Petition (NYSCEF Doc No. 12)
Cross-Petition (NYSCEF Doc No. 13)
Stipulation of Adjournment (NYSCEF Doc No. 14)
Statement of Authorization for Electronic Filing (NYSCEF Doc No. 15)
Affirmation in Opposition to Cross-Petition and Reply in Support of Petition (NYSCEF Doc No. [*2]16)^[FN1]

Issue Presented

Where a No-Fault insurer initially denies payment of bills on the grounds that the injured person was acting in the course of employment while driving and, therefore, the bills should be submitted to the Workers’ Compensation insurer instead, and thereafter the Workers’ Compensation Board finds that the injured person was not working while employed, should a defense of lack of medical necessity asserted in a second, subsequent denial of claim be considered?

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 Joseph J. O’Brien, Esq. (dated July 23, 2022), which affirmed the arbitration award of Matthew K. Viverito, Esq. (dated March 26, 2022) granting Respondent Nexray Medical Imaging PC’s (“Nexray”) claim for No-Fault insurance compensation for health service expenses.^[FN2] , ^[FN3] Arbitrator Viverito awarded $2,450.73 to Nexray as compensation for performing left shoulder, cervical, and lumbar MRIs on Ronald Simpson, its assignor ^[FN4] (“Assignor”), who claimed to have been injured in a motor vehicle accident on August [*3]6, 2019. (NYSCEF Doc Nos. 2, Notice of Petition; 1, Petition.)

Respondent Nexray 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 $2,450.73 as principal, statutory interest, the $40.00 arbitration filing fee, attorney’s fees, and costs and disbursements (NYSCEF Doc Nos. 12, Notice of Cross-Petition; 13, Cross-Petition).

The petition and cross-petition came before the undersigned for oral argument on May 12, 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. 17-21-1191-9817 ^[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], 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.^[FN6] First-party benefits are more commonly known as “No-Fault benefits.”^[FN7] Notably, and relevant in the instant case, is that first-party benefits are reduced by, among other things, Workers’ Compensation benefits where an injured person in a motor vehicle accident was acting in the course of employment (see Insurance Law § 5102 [b] [2]).

In furtherance of the statutory scheme, a comprehensive set of No-Fault Regulations were 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 ^[FN8] for No-Fault 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).^[FN9] Besides providing information regarding the injured person, diagnoses, projected treatment, etc., 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 by which 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.^[FN10] ,^[FN11]

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 ^[FN12] 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 three Form NF-3 claim forms (bills) submitted by Nexray to ATIC for payment. This was in accordance with the procedure for the submission of claims for No-Fault compensation, as summarized above. ATIC received two bills for date of service September 6, 2019 (right shoulder and cervical MRIs) on September 26, 2019, and one bill for date of service October 11, 2019 (lumbar MRI). After requesting additional verification, and receiving it on January 30, 2020, ATIC issued Form NF-10 denials of claim on February 24, 2020. These claim denials were timely inasmuch as they were issued within 30 days after the receipt of the requested additional verification (see Liberty Queens Med., P.C. v Tri-State Consumer Ins., 188 Misc 2d 835, 839 [Dist Ct, Nassau Co. 2001] [once verification has been received, an insurer has 30 days within which to make a determination on the claim].

The February 24, 2020 Form NF-10 denials of claim all asserted: “Claimant is eligible for Workers’ Compensation as he/she was in the course of employment at the time of accident, [and] as a result, all medicals should be submitted to the Workers’ Compensation carrier. ATIC is requesting that we be placed on notice regarding any Workers’ Compensation hearing” [*4](NYSCEF Doc No. 6, Petitioner’s Arbitration Submission and Master Arbitration Brief, at 6, 14, 22).^[FN13] A fee defense was also asserted in them but it was never pursued in arbitration.

Thereafter, an application was made to the Workers’ Compensation Board for coverage of medical expenses under Workers’ Compensation. On September 4, 2020, the Workers’ Compensation Board issued a Notice of Decision, which determined the issue as follows: “Per claimant’s testimony, he was not working at time of accident. He was not logged in to any ride-sharing application. I find he did not have a compensable accident. Claimant can pursue no fault claim. No further action is planned by the Board at this time.” (Id. at 38.)

ATIC then submitted Assignor’s medical records to Dr. Edward Weiland, who issued a peer review on October 5, 2020, in which he opined that the subject MRIs were not medically necessary (id. at 50-54).

Thereafter, a second, subsequent denial of claim was issued by ATIC appurtenant to each of the three bills. They were all dated October 9, 2020, and asserted, “This service was denied based on a peer review by a reviewer/physician. . . . Peer review by Dr. Edward M. Weiland, M.D. attached.”^[FN14] (Id. at 10-13, 18-21, 26-29.)

Arbitrator Matthew K. Viverito’s Award

The record evidence reveals further that on March 26, 2002, Arbitrator Viverito conducted a hearing at which Andrew Ciccaroni, Esq., from Russell Friedman & Associates LLP, appeared for Nexray, and Dianne Galluzzo, Esq., appeared for ATIC (NYSCEF Doc No. 3, Arbitration Award, at numbered p 1).

In his award, Arbitrator Viverito stated that the hearing documents were contained in Modria ^[FN15] . ATIC related that it was withdrawing its defense that Workers’ Compensation benefits were primary. (NYSCEF Doc No. 3, Arbitration Award, at numbered p 2.) It offered two arguments to the arbitrator as to why its October 9, 2020 denials of claim should be sustained (id.).

First, ATIC argued that the owner of Nexray was indicted by the federal government for allegedly participating in a criminal scheme to exploit insurance companies. Arbitrator Viverito rejected this argument since no documentation was presented that there was a guilty plea or a conviction.

Second, and more particularly relevant, ATIC argued that the MRIs were not medically necessary; it relied upon Dr. Weiland’s peer review. The pertinent findings by Arbitrator Viverito were as follows:

Having reviewed the evidence, I find that respondent’s subsequent denials of claim based on lack of medical necessity are fatally untimely as they were issued more than 30 days [*5]after receipt of claim, in violation of the No-fault Regulations. I further find that respondent may not rescind its original denial based on workers’ compensation and re-start the processing of the within claim.

Respondent argued that its subsequent denials of claim based on lack of medical necessity should be permitted and the within matter should move forward on the merits of such defense.

However, there is nothing in the No-fault Regulations which permits respondent to re-start the processing of claim and therefore I find that respondent is bound to the four corners of its original denials. Respondent has not presented persuasive support for its position that it may withdraw or retract denials based on workers’ compensation and re-start the time to pay or deny a claim.

Accordingly, I find that respondent’s subsequent denials of claim based on lack of medical necessity are unsustainable.

(Id. at numbered pp 2-3).

Arbitrator Viverito awarded the $2,450.73 principal billed. He also awarded statutory interest of 2% per month and an attorneys’ fee (see Insurance Law § 5106 [a]) and return of the $40 filing fee (see 11 NYCRR 65-4.5 [s]).

Master Arbitrator Joseph J. O’Briens’s Award

ATIC filed for master arbitration to appeal Arbitrator Viverito’s award. It challenged the arbitrator’s determination concerning the issue raised as to the true ownership of Nexray. It suffices to say—because this issue is not raised in the Article 75 petition—that Master Arbitrator O’Brien sustained the arbitrator’s determination because “an indictment . . . is not a conviction, and [ATIC] has not submitted evidence that that a conviction was obtained following the indictment [ATIC] relies on” (NYSCEF Doc No. 4, Master Arbitration Award, at numbered p 3).

In its master arbitration brief, ATIC argued that Arbitrator Viverito’s treatment of the issue of medical necessity was irrational. There was citation to various court decisions on the issue of medical necessity. (NYSCEF Doc No. 6, Petitioner’s Arbitration Submission and Master Arbitration Brief, at 107-109). Master Arbitrator O’Brien concurred in the position of Nexray “that there is nothing in the No-fault Regulations which permits respondent to re-start the processing of claim and therefore I find that respondent is bound to the four corners of its original denials. Respondent has not presented persuasive support for its position that it may withdraw or retract denials based on workers’ compensation and re-start the time to pay or deny a claim.” (NYSCEF Doc No. 4, Master Arbitration Award, at numbered pp 2-3.)

In his conclusion, Master Arbitrator O’Brien wrote, “For the foregoing reasons, we find that the award appealed from was detailed, well-reasoned and, therefore, was neither arbitrary nor capricious and was not in error as a matter of law.” He affirmed the arbitration award and also awarded $227.50 as a master arbitration attorney’s fee for Nexray.

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 Matthew K. Viverito failed to follow well settled law” (id. ¶ 37). The petition proceeded to argue that the claims at issue were properly and timely denied for lack of medical necessity (id. ¶ 38). ATIC had offered the opinion of a medical expert to establish that the services were not medically necessary (id. ¶ 39). ATIC’s burden of proof was satisfied and Nexray had to prove medical necessity through the submission of a rebuttal which meaningfully [*6]referred to or rebutted the peer reviewer’s conclusions (id. ¶¶ 40-42). Nexray failed to do so, contended ATIC, and this was contrary to well settled law (id. ¶¶ 44-45, 48-55).

The petition concluded by asserting that Arbitrator Viverito’s decision was “arbitrary and capricious, without rational basis and incorrect as a matter of law because the arbitrator ignored [ATIC]’s evidence and/or well settled legal precedent in order to justify a determination in favor of [Nexray]” (id. ¶ 59). “As a result, [ATIC]’s rights were prejudiced by the partiality of the arbitrator and the arbitrator exceeded his/her power and failed to make a final and definite award and the decision must be vacated” (id. ¶ 60). ATIC was “entitled to a declaration that the arbitration decisions of Matthew K. Viverito, Esq. and Joseph J. O’Brien, Esq. in the matter designated AAA number 99-21-1191-9817 have no force or effect” (id. ¶ 61).

Nexray’s Cross-Petition to Confirm

Nexray 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 this criteria.

Nexray 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.^[FN16] 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.^[FN17]

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).^[FN18] A master arbitrator may also vacate or modify a hearing [*7]arbitrator’s award under certain other grounds also (see 11 NYCRR 65-4.10 [a]).^[FN19]

Discussion

The provision that a master arbitrator may vacate or modify a hearing arbitrator’s award due to an error of law is one of several grounds but is the main gravamen of ATIC’s objection to the arbitration outcome here, considering the numerous paragraphs in its Article 75 petition discussing case law concerning the applicability of settled law.

The provision in 11 NYCRR 65-4.10 [a] [4] that a No-Fault insurance arbitration award may be vacated where it was incorrect as a matter of law refers to substantive issues not issues of fact (see American Transit Ins. Co. v Right Choice Supply, Inc., — Misc 3d —, 2023 NY Slip Op 23039, *11 [Sup Ct, Kings County 2023]).

Master Arbitrator O’Brien sustained Arbitrator Viverito, describing the latter’s award as detailed, well-reasoned, neither arbitrary nor capricious, and not being in error as a matter of law (NYSCEF Doc No. 4, Master Arbitration Award, at numbered p 3).

This Court must next determine whether to sustain Master Arbitrator O’Brien’s review of Arbitrator’s Viverito award for an error of law.

“A presumption of medical necessity attaches to a defendant’s admission of the plaintiff’s timely submission of proper claim forms, and the burden then switches to the defendant to demonstrate the lack of medical necessity. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U, 2007 NY Misc. LEXIS 7860 (Dist. Ct., Nassau Co. 12/3/2007); A.B. Medical Services, PLLC v. NY Central Mutual Fire Ins. Co., 7 Misc 3d 1018(A), 801 N.Y.S.2d 229 (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings Co. 2004).” (Millennium Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 23 Misc 3d 1121[A], 2009 NY Slip Op 50877[U], *2 [Civ Ct, Richmond County 2009]; accord Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d Dept, 2d & 11th Dists 2004], mod on other grounds 35 AD3d 720 [2d Dept 2006]; Harvey Family Chiro PT & Acup, PLLC v Ameriprise Ins. Co., 68 Misc 3d 556 [Civ Ct, Bronx County 2020]).

“Pursuant to the statutory and regulatory framework governing the payment of no-fault automobile benefits, insurance companies are required to either pay or deny a claim for benefits within 30 days of receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). However, the 30-day period may be extended where the insurer makes a request for additional information within 15 business days of its receipt of the claim (see 11 NYCRR 65-3.5 [b]; Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 100 [2005]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 569-570), and an insurer is not obligated to pay or deny a claim until all demanded verification is provided (see Nyack Hosp. v General Motors Acceptance Corp., supra at 100-101; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005], lv denied 7 NY3d 704 [2006]).” (New York and Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2d Dept 2006].)

“When an insurance company fails to comply with its duty to act expeditiously in processing no-fault claims, it will be precluded from raising most defenses (see, e.g., Presbyterian Hosp. v Maryland Cas. Co., 226 AD2d 613; LaHendro v Travelers Ins. Co., 220 AD2d 971; Presbyterian Hosp. v Atlanta Cas. Co., 210 AD2d 210; Loudermilk v Allstate Ins. Co., 178 AD2d 897; Bennett v State Farm Ins. Co., 147 AD2d 779). This is because the very purpose of the no-fault law was to ensure the ‘swift reimbursement of accident victims . . . who had serious injuries’ (Pavone v Aetna Cas. & Sur. Co., 91 Misc 2d 658, 663), with ‘as little litigation as possible’ (Matter of Furstenburg [Aetna Cas. & Sur. Co.], 67 AD2d 580, 583, rev’d on other grounds 49 NY2d 757).” (Presbyterian Hosp. in City of NY v Aetna Cas. & Sur. Co., 233 AD2d 431, 432 [2d Dept 1996].)

If an insurer asserts a lack of coverage defense defense, it will be permitted to assert said defense despite the lack of a timely-issue denial (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The lack-of-coverage defense is an exception to the 30-day “pay-or-deny” rule enunciated in Presbyterian Hosp. v Maryland Cas. Co. (90 NY2d 274 [1997], which is considered the leading decision in No-Fault insurance law regarding the preclusion of defenses asserted in denials of claim where the denials are not timely issued (the deadline being 30 days after receipt of the claim form (bill) or 30 days after receipt of requested additional verification) or the denials are timely but the defense is not asserted therein. Lack of medical necessity is obviously not a lack of coverage defense.

“This Court has recognized that preclusion may require an insurer to pay a no-fault claim it might not have had to honor if it had timely denied the claim (see Presbyterian Hosp., 90 [*8]NY2d at 285). Nonetheless, we emphasized that the great convenience of ‘prompt uncontested, first-party insurance benefits’ is ‘part of the price paid to eliminate common-law contested lawsuits’ (id.; see Fair Price, 10 NY3d at 565-566).” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506.)

Therefore, it is well settled No-Fault insurance law that an untimely denial of claim issued by an insurer results in preclusion of the defense of lack of medical necessity in litigation. The case law is abundant. (See, e.g., A & S Med. P.C. v Allstate Ins. Co., 15 AD3d 170 [1st Dept 2005]; Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1st Dept 1999]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [2d Dept 1999]; Gotham Acupuncture, P.C. v Country Wide Ins. Co., 20 Misc 3d 141[A], 2008 NY Slip Op 51615[U] [App Term, 1st Dept 2008]; Response Med. Equip. v General Assur. Co., 13 Misc 3d 129[A], 2006 NY Slip Op 51765[U] [App Term, 1st Dept 2006]; Diagnostic Rehab. Medicine Serv., P.C. v Farm Family Cas. Ins. Co., 7 Misc 3d 137[A], 2005 NY Slip Op 50826[U] [App Term, 1st Dept 2005].)

In the instant case, ATIC received Nexray’s additional verification regarding all three bills on January 30, 2020. When it issued Form NF-10 denials of claim on February 24, 2020, it asserted a fee defense and that Assignor was injured in the course of employment and should submit bills to the Workers’ Compensation carrier. It did not assert a defense of lack of medical necessity. ATIC’s 30-day deadline to assert lack of medical necessity as a defense expired on March 2, 2020 (February 29, 2020, the 30th day thereafter, being a Saturday).

The denials of claim issued on October 9, 2020, which asserted the peer review (lack of medical necessity) defense, contained a date of receipt of final verification of September 11, 2020. However, September 11, 2020 was not the date of receipt of final verification. Perhaps ATIC received the September 4, 2020 Workers’ Compensation Board Notice of Decision that day. However, said Notice of Decision did not constitute additional verification, as such term is referred to in the No-Fault Regulations (see 11 NYCRR 65-3.5 [b]). A decision of the Workers’ Compensation Board was not sought by ATIC.

“No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart” (11 NYCRR 65-3.8 [a] [1]). Proof of claim was complete on January 30, 2020, for purposes of the bills at issue herein. The three Form NF-10 denials of claim issued on October 9, 2020 were more than eight months late. As such, the peer review (lack of medical necessity) defense asserted therein was a nullity.

Arbitrator Viverito correctly applied settled law when precluding the lack of medical necessity defense. He was correct in stating that “there is nothing in the No-[F]ault Regulations which permits [ATIC] to re-start the processing of claim and therefore I find that [ATIC] is bound to the four corners of its original denials” (NYSCEF Doc No. 3, Arbitration Award, at numbered pp 2-3). The No-Fault Regulations do not provide anywhere that the claim processing function begins anew if the Workers’ Compensation Board issues a determination that an injured person is entitled to No-Fault benefits. This is consistent with the fact that Workers’ Compensation benefits are to be harmonized with basic economic loss (expenses for health service treatment, lost earnings, and other reasonable and necessary expenses as a result of being injured in a motor vehicle accident) (see Insurance Law § 5102 [a], [b] [2]; Normile v Allstate Ins. Co., 60 NY2d 1003 [1983], affg 87 AD2d 721 [3d Dept 1982]); Ryder Truck Lines v Maiorano, 44 NY2d 364 [1978]; Carriers Ins. Co. v Burakowski, 93 Misc 3d 100 [Sup Ct, Erie County 1978]).

Had ATIC wished to assert a defense of lack of medical necessity it should have done so in the original denials of claim issued on February 24, 2020. Having failed to assert such defense within the 30-day period following receipt of complete proof of claim, including requested additional verification, said defense could not be considered. The presumption of medical necessity arising from the submission of the bills to ATIC survived.

An insurer must stand or fall upon the defense upon which it based its refusal to pay and cannot create new grounds (see Todaro v GEICO General Ins. Co., 46 AD3d 1086 [3d Dept. 2007]; Matter of State Farm Ins. Co. v Domotor, 266 AD2d 219, 220-221 [2d Dept 1999]). ATIC was relegated to the defenses asserted in the February 24, 2020 denials of claim.

The standard for Article 75 court scrutiny of a No-Fault insurance arbitration is whether the master arbitration award was 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 314 [2d Dept 2018]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]). A master arbitrator’s review of a hearing arbitrator’s award where an error of a rule of substantive law is alleged must be upheld unless it is irrational (see Golden Earth Chiropractic & Acupuncture, PLLC v Global Liberty Ins. Co. of New York, 54 Misc 3d 31 [App Term, 2d Dept, 2d, 11th & 13th Dists 2016]).

Not only was Master Arbitrator O’Brien correct when he found that Arbitrator Viverito’s award was detailed, well-reasoned, neither arbitrary nor capricious, and not being in error as a matter of law, it bears saying that the latter accurately stated the law concerning the untimely assertion of a defense of lack of medical necessity. Therefore, Master Arbitrator O’Brien’s affirmance was absolutely not irrational; it was legally correct.

The only issue before the arbitrators was one of law—whether the defense of lack of medical necessity being precluded was proper. There were no issues of fact. In sustaining the arbitrators, this Court holds as follows: Where a No-Fault insurer initially denies payment of bills on the grounds that the injured person was acting in the course of employment while driving and, therefore, the bills should be submitted to the Workers’ Compensation insurer instead, and later on the Workers’ Compensation Board finds that the injured person was not working while employed, a defense of lack of medical necessity asserted in a second, subsequent denial of claim—issued after the 30-day deadline past receipt of proof of claim—is precluded.

Judicial review of a master arbitrator’s authority to vacate a hearing arbitrator’s award derives from § 675 (presently § 5106 [c]) of the Insurance Law and involves the question of whether the master arbitrator exceeded his power (Matter of Smith v Firemen’s Ins. Co., 55 NY2d 224 at 231). Master Arbitrator O’Brien did not exceed his power because he affirmed the award of Arbitrator Viverito, whose determination was consistent with well settled law (see 11 NYCRR 65-4.10 [a] [4]; cf. Matter of Petrofsky v Allstate Ins. Co., 54 NY2d 207 [1981]).

Accordingly, this Court rejects ATIC’s contentions in its petition that Arbitrator Viverito’s award was arbitrary and capricious, without rational basis, and incorrect as a matter of law (cf. NYSCEF Doc No. 1, Petition, ¶ 59). ATIC’s rights were not prejudiced, the arbitrator was not partial, he did not exceed his powers, and he did not fail to make a final and definite award” (cf. id. ¶ 60).

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

As mentioned above, Nexray sought in its cross-petition to confirm the arbitration [*9]determinations. Having found that no grounds exist to vacate them, the master arbitration award must be confirmed. Nexray is entitled to No-Fault compensation for health services in the principal amount of $2,450.73.

Nexray also sought additional payments in the nature of interest, attorney’s fees, return 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. Nexray presumptively received ATIC’s timely-issued denials a few days after February 24, 2020, when they were issued. Applicant’s arbitration request was received by the AAA on January 25, 2021 (NYSCEF Doc No. 5, Respondent’s Arbitration Request Form and Arbitration Submission, at 1), which was clearly more than 30 days later. Thus, interest on all of the claims herein accrued from that date, 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 Nexray 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 $227.50 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, Nexray 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]).

Nexray’s counsel did not submit an affirmation specifying details with regard to work [*10]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 cross-petition asserted that Nexray “should be granted leave to serve an afirmation in order to set forth its resonable attroneys’ fees in defending this action.”

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 $220.00 for work performed by Nexray’s counsel on this Article 75 proceeding. This Court applied the $70.00 per hour fee for policy issues litigated in arbitration or at the trial level, and assumed that there was attorney involvement for two hours at the most. In addition, the $80.00 per hour personal appearance fee is awarded. (See 11 NYCRR 65-4.6 [c].)

Return of Arbitration Filing Fee:

ATIC shall also pay Nexray $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, Nexray 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 Joseph J. O’Brien in AAA Case No. 99-21-1191-9817 is denied and this special proceeding is dismissed.

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

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

(4) Nexray is awarded the principal amount of $2,450.73 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 January 25, 2021 to the date of payment of the principal amount, but excluding January 25, 2021 from being counted within the [*11]period of interest.

(5) After calculating the sum total of the principal amount of $2,450.73 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.

(6) ATIC shall pay Nexray an attorney’s fee of $227.50 in connection with the master arbitration.

(7) ATIC shall pay Nexray an attorney’s fee of $220.00 for work performed by counsel on this Article 75 proceeding.

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

Dated: May 28, 2023
Brooklyn, New York
HON. AARON D. MASLOW
Justice of the Supreme Court of the State of New York

Footnotes

Footnote 1: Respondent’s reply affirmation in support of the cross-petition, filed on May 13, 2023 (day after oral argument), is not considered inasmuch as it was not timely filed and no application to accept it was made to this Court (see CPLR 402, 2214, 3012; 22 NYCRR 202.8, 202.9).

Footnote 2: The notice of petition seeks vacatur of “the arbitration award issued by Arbitrator Matthew K. Viverito, Esq. and/or Master Arbitrator Joseph J. O’Brien, Jr., Esq.” (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]). In fact, a party may not appeal from an arbitration award without first seeking master arbitration (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]). Naturally, if the hearing arbitrator’s award is imperfect, this can impact 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. 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, Nexray, 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 99-21-1191-9817, which was assigned to the master arbitration appeal. The original arbitration was assigned AAA Case No. 17-21-1191-9817.

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: 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 were MRIs.

Footnote 9: 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).

Footnote 10: There is a prescribed assignment of benefits form (Form NF-AOB) in 11 NYCRR Part 65 (Regulation 68) Appendix 13.

Footnote 11: 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 12: Form NF-10 is also included within 11 NYCRR Part 65 (Regulation 68) Appendix 13.

Footnote 13: References to NYSCEF filings lacking page numbers are to the PDF page numbers.

Footnote 14: Again, a fee defense was also asserted but this was of no consequence since excessive fees was not an issue in arbitration.

Footnote 15: 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 16: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 to be able to sue for pain and suffering.

Footnote 17: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., revd on other grounds 55 NY2d 224 [1982]).

Footnote 18: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 19:11 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.

Peter C. Merani, P.C. (Adam Waknine and Samuel A. Kamara of counsel), for appellant. Lewin & Baglio, LLP (Michael Nathan and William Benson of counsel), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), dated August 1, 2022, deemed from a judgment of that court entered October 24, 2022 (see CPLR 5512 [a]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,018.77.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $2,018.77. At the outset of the trial, the parties stipulated that the sole issue for trial was whether the services at issue were medically necessary.

In a no-fault trial involving a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form; however, it is the plaintiff who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (see Radiology Today, P.C. v Geico Ins. Co., 58 Misc 3d 132[A], 2017 NY Slip Op 51768[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Dayan [*2]v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). Here, the record supports the determination of the Civil Court that, based upon its assessment of the credibility of the expert witnesses and the proof adduced at trial, plaintiff sufficiently established by a preponderance of the evidence that the services at issue were medically necessary. Consequently, we find no basis to disturb the Civil Court’s findings.

Accordingly, the judgment is affirmed.

TOUSSAINT, P.J., BUGGS and VENTURA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 26, 2023

American Transit Insurance Company, Petitioner, against Nexray Medical Imaging PC D/B/A Soul Radiology, A/A/O Carlos Guzman, Respondent.

Index No. 533041/2022

Larkin Farrell LLC, New York City (David Fair of counsel), for petitioner.

Roman Kravchenko, Melville, for Respondent.

Aaron D. Maslow, J.

The following numbered papers were read on this petition and cross-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)
Exhibit D — Petitioner’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)
Statement of Authorization for Electronic Filing (NYSCEF Doc No. 12)
Notice of Cross-Petition (NYSCEF Doc No. 13)
Cross-Petition (NYSCEF Doc No. 14)^[FN1]

Issues Presented

Should a No-Fault arbitration award be sustained where the insurer denied payment on the ground that there was a fact or founded belief that health services were unrelated to the motor vehicle accident but the insurer failed to submit an explanatory brief, witness statements, medical records, or an expert affidavit to support its defense?

Is it the role of a No-Fault hearing arbitrator to peruse a transcript of an examination under oath for the purpose of locating testimony to support such a defense, in the absence of the insurer’s highlighting the specific substantiating testimony?

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. D’Ammora, Esq. (dated September 8, 2022), which affirmed the arbitration award of Kihyun Kim, Esq. (dated June 4, 2022) granting Respondent Nexray Medical Imaging PC’s (“Nexray”) claim for No-Fault insurance [*2]compensation for health service expenses.^[FN2] ,^[FN3] Arbitrator Kim awarded $878.67 to Nexray as compensation for performing a left knee MRI on Carlos Guzman, its assignor ^[FN4] (“Assignor”), who claimed to have been injured in a motor vehicle accident on September 20, 2019. (NYSCEF Doc Nos. 2, Notice of Petition; 1, Petition.)

Respondent Nexray 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 $878.67 as principal, statutory interest, the $40.00 arbitration filing fee, attorney’s fees, and costs and disbursements (NYSCEF Doc No. 13, Notice of Cross-Petition; 14, Cross-Petition).

The petition and cross-petition were scheduled for oral argument on May 19, 2023, before this Court. Prior thereto, in accordance with IAS Part 2 Rules, the parties were notified that the matter would be determined on the submissions.

The underlying arbitration which is the subject of this proceeding was organized by the American Arbitration Association (“AAA”), which assigned Case No. 17-21-1191-8028 ^[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], 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.^[FN6] First-party benefits are more commonly known as “No-Fault benefits.”^[FN7]

In furtherance of the statutory scheme, a comprehensive set of No-Fault Regulations were 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 ^[FN8] for No-Fault 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).^[FN9] Besides providing information regarding the injured person, diagnoses, projected treatment, etc., [*3]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 by which 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.^[FN10] ,^[FN11] The insurer must 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 ^[FN12] identifying why the bill was not paid. (See Insurance Law § 5106 [a]; 11 NYCRR 65-3.5 [b]; Viviane Etienne Medical Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505 [2015]; New York & Presbyterian Hospital v Progressive Casualty Ins. Co., 5 AD3d 568, 569-570 [2d Dept 2004]). The 30-day deadline does not apply to situations where the insurer claims that health services were not related to the subject motor vehicle accident (see Central Gen. Hosp. v. Chubb Group, 90 NY2d 195 [1997]).

The record evidence submitted in this Article 75 proceeding revealed that the underlying arbitration involved one Form NF-3 claim form (bill) submitted by Nexray to ATIC for payment. It was in the amount of $878.67 and it covered a left knee MRI of March 6, 2020. This was in accordance with the procedure outlined in the previous paragraph for the submission of claims for No-Fault compensation. After requesting additional verification, and receiving it on June 19, 2020, ATIC issued a Form NF-10 denial of claim on July 13, 2020.

The denial of claim asserted: “Based on American Transit’s investigation and EUO [examination under oath] testimony conducted on 6/17/20, American Transit is asserting a lack of coverage, as it has established the ‘fact or founded belief’ that the claimant’s treated condition was unrelated to the motor vehicle accident. The eligible injured person failed to establish that the alleged injuries were causally related to the motor vehicle accident.” (NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Brief, at 4 ^[FN13] ). A fee defense was also asserted but not pursued in arbitration.

Arbitrator Kihyun Kim’s Award

The record evidence reveals further that on May 5, 2002, Arbitrator Kihyun Kim conducted a hearing at which Alexander Mun, Esq., from Russell Friedman & Associates LLP, appeared for Nexray, and Helen Cohen, Esq., appeared for ATIC (NYSCEF Doc No. 3, Arbitration Award, at numbered p 1).

In his award, Arbitrator Kim stated that the hearing documents were contained in the [*4]AAA’s ADR Center ^[FN14] . ATIC conceded that the fee charged by Nexray was consistent with the applicable fee schedule. (Id. at numbered p 2.) The only issue in the case was “whether [ATIC] established its lack of coverage defense” (id. at numbered p 1).

In support of its claim that it established the fact or founded belief that Assignor’s treated condition was unrelated to the subject motor vehicle accident, ATIC’s counsel maintained that Assignor’s EUO “testimony revealed that the accident was a low impact condition, and that the scope and amount of treatment was disproportionate to the nature of the accident. She noted, among other things[,] that the Assignor did not go to the hospital and was not treated at the scene. Counsel further advised that Applicant’s [Nexray] owner has been indicted for his participation in a no fault fraud scheme involving Applicant.” (Id. at numbered p 4.) In terms of evidence, ATIC relied on “a Report of Motor Vehicle Accident – MV104; the Assignor’s NF-2 [application for No-Fault benefits]; the EUO scheduling letters; and the transcript of the Examination Under Oath of the Assignor, dated June 17, 2020” (id.).

Nexray’s counsel argued that ATIC “failed to upload sufficient proof to the record to establish its defense” (id.).

Arbitrator Kim reviewed case law pertaining to No-Fault insurers’ defense that a purported accident was not a covered event because there was a fact or founded belief that a condition and/or treatment was not proximately related to it (id. at numbered pp 2-3):

• Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]: The initial burden is on the insurer to come forward with proof establishing by “fact or founded belief” that the claimed injuries have no nexus to the accident.

• Mt. Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11 [2d Dept. 1999]: Causation is presumed since it would not be reasonable to insist that an applicant must prove as a threshold matter that the patient’s condition was caused by the automobile accident; when alleging a lack of coverage defense, the insurer bears the burden of coming forward with admissible evidence of the fact of lack of coverage or of the foundation for its belief that there is no coverage.

• Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2d Dept. 2009]: This defense often involves a fact pattern which calls for the insurer to present evidence by a medical expert who is qualified to render an opinion on causality.

• A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 822 [Civ Ct, Kings County 2005]: When arguing fraud as a defense, the insurer bears the burden of presenting sufficient evidence of the fact of fraud or of the foundation for its belief that fraud occurred; besides medical evidence an affidavit by a special investigator can suffice; if the insurer carries its burden then the insured must rebut it or succumb.

• A.B. Med. Servs. PLLC v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 2d Dept, 9th & 10th [*5]Jud Dists 2002]: An insurer’s founded belief cannot be based upon unsubstantiated hypotheses and suppositions.

Applying the law to the evidence presented to him, Arbitrator Kim made the following findings (NYSCEF Doc No. 3, Arbitration Award, at numbered p 4):

I find that Respondent failed to establish its lack of coverage/causation defense. I find that there is insufficient credible evidence in the record to support a founded belief that, “the claimant’s treated condition was unrelated to the motor vehicle accident.” Respondent did not upload any explanatory brief, any witness statements, any medical records, any expert affidavit regarding causation, any SIU affidavit discussing Respondent’s investigation or explaining how or why Respondent’s determination was made, or any other actual proof to support and substantiate its defense, other than the EUO transcript of the Assignor, and the MV-104, Report of Motor Vehicle Accident. I have carefully review[ed] the EUO transcript of the Assignor, as well as the EUO transcript of the other claimant/passenger in the linked case, and I find it unclear as to what specific testimony Respondent believes adequately supports its assertions/defense and how Respondent made the leap that the Assignor’s treated condition was unrelated to the motor vehicle accident. While counsel asserted that the accident was not significant and that the asserted injuries were disproportionate to the low impact nature of the accident, I do not[ ] believe that the testimonial evidence alone was sufficient to reach such conclusion, particularly without the presentation of some actual medical evidence and/or expert opinion. With respect to the asserted indictment of Applicant’s owner, Respondent did not present any actual evidence of any indictment nor any evidence that any such indictment related to the subject accident, the claimants and/or claims at issue in this proceeding. If Respondent’s investigation was broader than what was presented herein, then Respondent should have uploaded such supporting evidence to the record herein. In sum, only limited evidence was uploaded to the record and on this record, the evidence submitted to the record in this case does not, in my view, make out a prima facie case in support of Respondent’s asserted defense. Based on the totality of the evidence in the record, Respondent has failed to meet its initial burden and its denial cannot be sustained. Accordingly, Applicant is entitled to reimbursement in the amount of $878.67. . . .

In essence, Arbitrator Kim held that there was a lack of evidence to support ATIC’s position that it established the fact or founded belief that Assignor’s condition and treatment were unrelated to the subject accident.

Arbitrator Kim awarded the $878.67 principal billed. He also awarded statutory interest of 2% per month, an attorney’s fee, and return of the $40 filing fee (id. at numbered pp 5-6; see 11 NYCRR 65-4.5 [s]).

Master Arbitrator Victor J. D’Ammora’s Award

ATIC filed for master arbitration to appeal Arbitrator Kim’s award. It argued that the latter’s award was irrational (NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master [*6]Arbitration Brief, at pp 70-79).

Master Arbitrator D’Ammora held that while a hearing arbitrator’s award can be reversed if it is incorrect as a matter of law, a master arbitrator exceeds his statutory power by making his own factual determination, reviewing factual and procedural errors committed during the course of the arbitration, weighing the evidence, or resolving credibility issues (NYSCEF Doc No. 4, Master Arbitration Award, at numbered p 2, citing 11 NYCRR 65-4.10 [a] [4]) and Mott v State Farm Ins. Co., 55 NY2d 224 [1982]).

He noted that Arbitrator Kim reached his determination after reviewing the submitted evidence—that there was insufficient evidence to sustain a lack of coverage defense. “Arbitrator Kim’s conclusions and findings were in his discretion and interpretation of the evidence. It cannot be regarded as reversible error within this Master Arbitrator’s purview. This Master Arbitrator cannot conduct a de novo review and substitute my interpretation and view of the evidence for that of Arbitrator Kim. In particular, as here, Arbitrator Kim’s determination is rational and supported by the record.” (NYSCEF Doc No. 4, Master Arbitration Award, at numbered p 2.) The award was affirmed along with a $195.00 attorney’s fee (id. at numbered pp 3-4).

ATIC’s Petition to Vacate

ATIC’s CPLR Article 75 petition to vacate stated that the claim was denied based upon ATIC’s investigation and the EUO testimony—that there was a fact or founded belief that Assignor’s treated condition was unrelated to the motor vehicle accident and that Assignor failed to establish that the alleged injuries were causally related to the accident (NYSCEF Doc No. 1, Petition, ¶ 26). “The arbitration decision was arbitrary and capricious, irrational and without a plausible basis” (id. ¶ 35), in that “Arbitrator Kihyun Kim failed to follow well settled law” (id. ¶ 40). The petition proceeded to argue that ATIC needed only to show a founded belief to support its defense (id. ¶ 40), and that circumstantial evidence could support it (id. ¶ 47). “[ATIC] offered evidence to establish the ‘founded belief’ of fraud. [Nexray] did not offer any evidence to rebut that showing. The arbitrator ruled for [Nexray] despite the fact that [ATIC] offered evidence of a founded belief and [Nexray] failed to offer any evidence to rebut that showing. In doing so the arbitrator failed to follow well settled law.”

The petition concluded by asserting that Arbitrator Kim’s decision was “arbitrary and capricious, without rational basis and incorrect as a matter of law because zero evidence simply cannot outweigh evidence” (id. ¶ 49). ATIC was “entitled to a declaration that the arbitration decisions of Kihyun Kim, Esq. and Vic D’Ammora, Esq. in the matter designated AAA number 99-21-1191-8208 have no force or effect” (id. ¶ 50).

Nexray’s Cross-Petition to Confirm

Nexray 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 Petrofksy 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 [*7]not meet this criteria. (See generally NYSCEF Doc No. 14, Cross-Petition ¶¶ 21-29.)

Besides seeking confirmation of the hearing arbitration award which was affirmed by the master arbitrator, Nexray sought interest, attorney’s fees, return of the arbitration filing fee, and costs and disbursements (NYSCEF Doc No. 13, Notice of Cross-Petition, at numbered p 1). Notably, Nexray did not submit any calculation of an attorney’s fee for its opposition to the Article 75 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 [*8]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 arbitrator’s award under certain other grounds also (see 11 NYCRR 65-4.10 [a]).^[FN18]

Discussion

The burden of proof on the issue of whether a motor vehicle accident caused a medical condition for which a person was treated and the No-Fault insurer was billed falls upon the insurer if the latter asserts a lack of nexus between the accident and the condition; the underlying purpose of the No-Fault Law would be undermined if a claimant health care provider were required to prove as a threshold matter that a patient’s condition was caused by the accident and unrelated to his or her entire medical history (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 18-19 [2d Dept 2009]). An expert’s affirmation is needed to provide a factual foundation for an insurance carrier’s good faith belief that an alleged injury did not arise out of an insured accident; speculation or wishful thinking does not suffice (see Mount Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11 [2d Dept. 1999]).

The courts have also recognized that a prima facie case of lack of coverage may be established by other than a medical expert. This can include a biomechanical engineer’s report (e.g., American Tr. Ins. Co. v AAAMG Leasing Corp., 2020 NY Slip Op 31811[U] [Sup Ct, NY County 2020]); Liberty Mut. Ins. Co. v Hayes, 2018 NY Slip Op 31283[U] [Sup Ct, NY County 2018]; a special investigator’s affidavit (e.g., A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 143[A], 2004 NY Slip Op 51104[U] [App Term, 2d Dept, 2nd & 11th Dists 2004]); or a low-impact study (e.g., A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d Dept, 2d & 11th Dists 2006]).

A claimant’s [health service provider] prima facie showing establishes a presumption of coverage, and the burden of going forward on the issue of coverage falls upon the insurer; once the insurer comes forward with proof for its belief that the claimed loss was a staged accident, the burden shifts to the claimant to prove coverage by a preponderance of the evidence (see New York Massage Therapy P.C. v State Farm Mut. Ins. Co., 14 Misc 3d 1231[A], 2006 NY Slip Op 52573[U] [Civ Ct, Kings County 2006]). The insurer bears the burden of coming forward with evidence of the fact of fraud or of the foundation for its belief that fraud occurred, but the burden of persuasion is on the applicant to prove that the loss was a covered event under the policy (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 822 [Civ Ct, Kings County 2005]). At trial, the ultimate burden of proof on issues of causal relationship of injuries to the [*9]accident in question lies with the plaintiff (see 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]).

The insurer must demonstrate that it has a founded basis for believing that the collision was intentionally caused but the burden of persuasion remains on the claimant, who must prove its case by a fair preponderance of the credible evidence; if the evidence weighs against the claimant or it is so evenly balanced that it is impossible to determine the matter, then judgment must be given for the insurer (see V.S. Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 334, 342-343 [Civ Ct, Kings County 2006], affd 25 Misc 3d 39 (App Term, 2d Dept, 2d, 11th & 13th Dists 2009]).

V.S. Med. Servs. provided an example of the evidence which demonstrated that the insurer established a founded belief that injuries did not arise from a covered accident. In that case, the insurer presented credible evidence that the subject vehicle was an older model, that the collision took place shortly after insurance was procured, that insurance on the vehicle was cancelled after the subject collision and once before after a collision, that there were several passengers in the vehicle, that no occupant underwent emergency room treatment, that there were material discrepancies in EUO testimony among the occupants as to the number and genders of people in the vehicle, where they were going, and whether the driver knew the vehicle owner, and that the vehicle sustained only a small scratch—that the collision was staged because at least one driver intended to make contact. The burden then shifted to the claimant health service provider; the latter having failed to produce the alleged injured persons or any witnesses to the collision, it failed to carry its burden of proving that the collision was a covered accident. (V.S. Med. Servs., P.C., 11 Misc 3d at 343-344 [“defendant’s proof, which plaintiff failed to rebut, established by a preponderance of the evidence its defense of lack of coverage”].)

Very rarely will a case contain a Perry Mason-like moment where there is a confession that an assignor injured person’s injuries were not the result of the claimed accident. Of necessity an insurer’s founded belief that a collision was staged will be established by circumstantial evidence. “Circumstances insignificant in themselves may acquire probative force as links in the chain of circumstantial proof.” (A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d at 827-828 [Civ Ct, Kings County 2005], quoting Van Iderstine Co. v Barnet Leather Co., 242 NY 425, 435 [1926]). For example, where a vehicle was involved in several collisions within a short period of time after the insurer issued an insurance policy, this may satisfy the need for a founded belief necessary to support a denial grounded in asserted fraud (e.g., State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2d Dept 2003]). Where a driver rear ends another vehicle two days after taking out insurance, and again less than sixty days after the first collision, and his written and recorded statements contain discrepancies, this constitutes compelling circumstantial evidence that there was an intentional collision staged for the purpose of insurance fraud (e.g., National Grange Mut. Ins. Co. v Vitebskaya, 1 Misc 3d 774 [Sup Ct, Kings County 2003]).

Notwithstanding the foregoing, unsupported conclusions and suspicions, as well as unsubstantiated hypotheses and suppositions are insufficient to raise a triable issue of alleged fraud (see A.B. Medical Services PLLC v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 2d Dept, 9th & 10th Dists 2002]). To create a trial issue of fraud or lack of coverage, the specific facts must be alleged with particularity (see Vital Points Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 1031[A], 2005 NY Slip Op 50267[U] [Civ Ct, Kings County 2005]).

Clearly, Arbitrator Kim did not misapply well-settled law in the arbitration at bar. As [*10]indicated above (supra at 5), he noted case law governing the adjudication of insurer defenses that there was a fact or founded belief that a condition and/or treatment was not proximately related to an alleged accident. What ATIC is challenging as a misapplication of settled law is Arbitrator Kim’s finding that its evidence did not meet the evidentiary minimum to make out its initial burden of proof. That is an issue of fact—not an issue of law.

The provision in 11 NYCRR 65-4.10 [a] [4] that a No-Fault insurance arbitration award may be vacated where it was incorrect as a matter of law refers to substantive issues—not issues of fact (see American Transit Ins. Co. v Right Choice Supply, Inc., — Misc 3d —, 2023 NY Slip Op 23039, *11 [Sup Ct, Kings County 2023]).

ATIC did not submit witness statements, supporting medical records, or a medical or other expert affidavit or report. It did not submit evidence of an indictment of the owner of Nexray, which it mentioned, the argument inferentially being that the alleged accident was fraudulent and the MRI unnecessary. ATIC merely relied on conclusory assertions of counsel which focused in large part on Assignor’s EUO testimony. ATIC did not even submit a brief to Arbitrator Kim summarizing what EUO testimony supported its position. In essence, it appears that ATIC expected the arbitrator himself to peruse the transcript to locate questionable responses by Assignor which might be indicative that something was awry. This is not the role of the arbitrator.

This Court notes that most No-Fault insurance arbitrations organized by the AAA are scheduled at 15-minute intervals.^[FN19] Usually the only evidence iare the documentary submissions of the parties. In some instances where medical necessity is an issue a treating health provider or a peer review doctor may be called as a witness by the applicant or respondent respectively. In rare instances, an injured person may testify, especially if lost wages is an issue. The testimony of an SIU investigator might be offered where the respondent insurer asserts a contrived accident.

Here, it is not exactly clear whether ATIC’s defenses of lack of coverage and lack of a relationship between the accident and the treated condition were premised on a belief that the accident was staged, that Nexray performed the MRI without regard to whether Assignor actually sustained injuries in the accident, or that Assignor indeed had a condition for which an MRI was appropriate but the condition was unrelated to the accident.

At times a No-Fault arbitration respondent insurer will call the arbitrator’s attention to the fact that a transcript of the examination under oath taken of the assignor was included in its documentary submission and it alone supports the defense. Relying on this poses litigation risks for the insurer if the lack of coverage is premised upon an underlying theory that the health service was performed without regard to whether the injured person-assignor actually sustained injuries in the accident or that the injured person-assignor indeed had a condition for which the health service was appropriate but the condition was unrelated to the accident; such an underlying theory really necessitates expert medical opinion evidence and an EUO transcript likely will not suffice. Some insurers may rely on a biomechanical expert report which might be probative or not, depending on the arbitrator’s assessment of it.

Situations where the lack of coverage defense is predicated on an underlying theory that the accident was staged calls for proper advocacy by the respondent No-Fault insurer. [*11]Submitting a transcript alone without a brief, affidavit, SIU report, or counsel specifically detailing the testimony supporting its position unfairly places the hearing arbitrator in a quandary. The arbitrator has two options: (1) find that the respondent insurer failed to identify the supporting testimony, or (2) review the transcript himself and determine if any of its contents supports the fact or founded belief that there was a lack of causation due to a staged accident, i.e., that fraud took place.

The arbitrator must remain objective and impartial. It is unfair for a respondent insurer to place the arbitrator in the role of evidence explorer on its behalf. The arbitrator is not an investigator or detective. To argue to an arbitrator, “Our defense relies on the EUO testimony,” or offer a similar statement, without any identification of the transcript components being relied on is improper advocacy, and an arbitrator should decline the implied invitation to search the transcript to locate testimony supporting the respondent’s defense. It is unknown whether ATIC’s counsel made such a statement to Arbitrator Kim. From his award, it is evident that nothing was offered by way of specification as to particular testimony in one or more EUO transcripts. Arbitrator Kim did write that he “carefully review[ed] the EUO transcript of the Assignor, as well as the EUO transcript of the other claimant/passenger in the linked case, and I find it unclear as to what specific testimony Respondent believes adequately supports its assertions/defense and how Respondent made the leap that the Assignor’s treated condition was unrelated to the motor vehicle accident (NYSCEF Doc No. 3, Arbitration Award, at numbered p 4).” This burden of reviewing the transcript should not have been placed on Arbitrator Kim. And if ATIC asked him to perform this task, it should not have done so. Rather, ATIC should have submitted a brief, affidavit, or investigator’s report identifying by page and line the portions of the testimony it claims were inculpatory and thus made out its defense; or counsel at the hearing should have done so. Preferably the specification should be in writing as a document included in the arbitration submission.

If a No-Fault arbitration hearing respondent (the insurer) fails to adequately support its defense of lack of causation premised under any of the underlying theories — but especially one claiming that no true accident took place — because it failed to identify specific EUO testimony, it lacks a legal basis to challenge the hearing arbitrator’s award on appeal, either before the master arbitrator or the Article 75 judge.

The foregoing perspectives of this Court are in harmony with the expressions of sister courts. “While plaintiff [insurer] submits the transcripts of the claimants’ EUOs, it does not cite to any line or page of the claimants’ testimony to support such claims. The Court should not have to undertake the toilsome task of reading through pages and pages of testimony in order to ascertain which portions support plaintiff’s supposed contentions” that there exists a founded belief that the alleged injuries did not arise from a covered accident. (Unitrin Advantage Ins. Co. v Advanced Orthopedics and Joint Preservation P.C., 2018 NY Slip Op 33296[U] *6-7 [Sup Ct, NY County 2018]). Similarly, it has been held, “It is not the duty of the arbiter, be it an arbitrator or Court, to parse though hundreds of pages of exhibits to make out a claim or defense for a party (see e.g. Barsella v. City of New York, 82 AD2d 747, 748 [1st Dept 1981]); such duty belongs to counsel, as advocate. Failing to elucidate evidence in support of a party’s claim is not error of the arbitrator but is rather error of counsel, and such failure does not render an arbitrator’s award arbitrary and capricious [citation omitted].” Country-Wide Ins. Co. v M El Sayed Physical Therapy, P.C., 2022 NY Slip Op 31874[U] [Sup Ct, NY County 2022]).

There being a paucity of evidence to support ATIC’s defense of a fact or founded belief [*12]that Assignor’s treated condition was unrelated to the alleged motor vehicle accident, Arbitrator Kim’s factual determination against ATIC was eminently reasonable.

Lower and master arbitration awards were supported by a reasonable hypothesis and were not contrary to “fairly described settled law” when a biomechanical report was rejected by the lower arbitrator, who found as follows: “I have reviewed the EUO transcript in its entirety and I do not find sufficient evidence within the EIP’s testimony that would give rise to establishing a basis for Respondent’s denial. As for the opinion of the Respondent’s accident reconstruction expert, I find it is insufficient to establish that the EIP’s injuries were not causally related to the underlying accident. Unless an injury for which an EIP is treated is so clearly unrelated to the biomechanics of a motor vehicle accident, a low-impact study (standing alone without any accompanying medical evidence—which does not explain how the EIP’s injuries are causally incompatible with the subject accident) does not suffice to prove prima facie that the injuries were not causally related to the accident. Bronx Radiology, P.C. v. New York Cent. Mutual Fire Ins. Co., 17 Misc 3d 97, 847 N.Y.S.2d 313 (App. Term 1st Dept. 2007). [¶] In this case, I find the Respondent has not submitted sufficient evidence to establish its defense that the treatment was not causally related to the MVA.” (Matter of Am. Tr. Ins. Co. v North Shore Family Chiropractic, P.C., 2022 NY Slip Op 32663[U] *1-2 [Sup Ct, Kings County 2022]). The decision of Hon. Justice Peter P. Sweeney in the case found that “the lower and master arbitration awards were supported by a reasonable hypothesis’ and [were] not contrary to what could be fairly described as settled law. The determinations of the master and lower arbitrators had evidentiary support and a rational basis. (Id. at *3.) So too did Arbitrator Kim’s award.

Since the instant Article 75 proceeding to vacate is one where vacatur of the master arbitration award is sought, this Court must assess whether Master Arbitrator D’Ammora erred as a matter of law or fact. His findings are related hereinabove at page 7. After reviewing the case law on master arbitration appeals and Arbitrator Kim’s findings, Master Arbitrator D’Ammora concluded as follows: “I cannot conclude on the basis of the record before me that Arbitrator Kim’s decision was incorrect as a matter of law or arbitrary or capricious” (NYSCEF Doc No. 4, Master Arbitration Award, at numbered p 2).

The standard for Article 75 court scrutiny is whether the master arbitration award was so irrational with respect to settled law 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 314 [2d Dept 2018]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]). A master arbitrator’s review of a hearing arbitrator’s award where an error of a rule of substantive law is alleged must be upheld unless it is irrational (see Golden Earth Chiropractic & Acupuncture, PLLC v Global Liberty Ins. Co. of New York, 54 Misc 3d 31 [App Term, 2d Dept, 2d, 11th & 13th Dists 2016]). Clearly, Master Arbitrator D’Ammora did not err in concluding that Arbitrator Kim’s decision was not incorrect as a matter of law, because this Court reviewed the latter’s discussion of the law and found no error. Cases cited by Arbitrator Kim were directly on point in terms of the law and were likewise cited by this Court.

Did Master Arbitrator D’Ammora err in determining that Arbitrator Kim’s factual findings were erroneous? No. Here, the master arbitrator noted the case law that he cannot conduct a de novo review of the evidence and substitute his interpretation of the evidence. The arbitrator’s determination was “rational and supported by the record.” (NYSCEF Doc No. 4, [*13]Master Arbitration Award, at numbered p 2.) He was correct. This Court 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 Sq. Teachers Assn. v Board of Educ. of Cent. Sq. Cent. Sch. Dist., 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 Intl., 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.”]).

The proper standard of master arbitration review is whether the hearing arbitrator reached his decision in a rational manner, i.e., whether it was arbitrary and capricious, irrational, or without a plausible basis; the master arbitrator may 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]). Master Arbitrator D’Ammora adhered to this.

Judicial review of a master arbitrator’s authority to vacate a hearing arbitrator’s award derives from § 675 (presently § 5106 [c]) of the Insurance Law and involves the question of whether the master arbitrator exceeded his power (see Matter of Smith v Firemen’s Ins. Co., 55 NY2d at 231 [1982]). Master Arbitrator D’Ammora did not exceed his power and, therefore, his award must be sustained.

In its petition, ATIC concluded by asserting that Arbitrator Kim’s decision was “arbitrary and capricious, without rational basis and incorrect as a matter of law because zero evidence simply cannot outweigh evidence” (id. ¶ 49). ATIC was “entitled to a declaration that the arbitration decisions of Kihyun Kim, Esq. and Vic D’Ammora, Esq. in the matter designated AAA number 99-21-1191-8208 have no force or effect” (id. ¶ 50). Based on the foregoing analysis, this Court rejects these contentions.

ATIC’s petition in this Article 75 proceeding cited the four applicable grounds delineated in CPLR 7511 for vacating an arbitration award where a party participated in the arbitration:

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.

(NYSCEF Doc No. 1, petition, ¶ 33.)

This Court finds that ATIC failed to establish that there was corruption, fraud, or misconduct in procuring the award; that there was partiality on the part of either arbitrator; that either arbitrator exceeded his or her power or so imperfectly executed it that a final and definite [*14]award upon the subject matter submitted was not made; or that there was a 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, Nexray sought in its cross-petition to confirm the arbitration determination. Nexray also sought additional payments in the nature of interest, attorney’s fees, return of the arbitration filing fee, and costs and disbursements (NYSCEF Doc No. 13, Notice of Cross-Petition, at numbered p 1). For the reasons set forth above, Nexray is entitled to confirmation of Master Arbitrator D’Ammora’s award.

Interest:

ATIC issued its Form NF-10 denial of claim on July 13, 2020, within 30 days after final verification was received on June 19, 2020; the denial was timely (NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Brief, at 5). 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.

Nexray arbitration request was received by the AAA on January 22, 2021 (NYSCEF Doc No. 6, Nexray’s Arbitration Request Form and Arbitration Submission, at 1), which was clearly more than 30 days after it received the denial of claim issued on July 13, 2020. Thus, interest accrued from the filing date of January 22, 2021, 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]).

[*15]Attorney’s Fees:

After calculating the sum total of the first-party benefits awarded in this arbitration plus 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, as provided for in 11 NYCRR 65-4.6 [d].

Additionally, this Court sustains the $195.00 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, Nexray is entitled to an additional attorney’s fee (see Global Liberty Ins. Co. of New York v Nexray Family Chiropractic, 178 AD3d 525 [1st Dept 2019]; GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2d Dept 2017]).

Nexray’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 cross-petition asserted that Nexray “should be granted leave to serve an afirmation in order to set forth its resonable attroneys’ fees in defending this action” (NYSCEF Doc No. 13, Cross-Petition, ¶ 45).

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 issues in the case at bar was neither novel nor unique, especially since there was already a plethora of case law dealing with them and Nexray’s cross-petition contained boilerplate statements of law.

Consdering the factors delineated herein, this Court awards $140.00 for work performed by Nexray’s counsel on this Article 75 proceeding. This Court applies the $70.00 per hour fee for policy issues litigated in arbitration or at the trial level (see 11 NYCRR 65-4.6 [c]), having assumed that there was attorney involvement for two hours at the most. It does not apply the $80.00 per hour fee for personal appearances before the arbitration forum or court (see id.), inasmuch as this proceeding was determined on the submissions.

Return of Arbitration Filing Fee:

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

[*16]Costs and Disbursements:

As the prevailing party, Nexray 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 Victor J. D’Ammora in AAA Case No. 99-21-1191-8028 is dismissed.

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

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

(4) Nexray is awarded the principal amount of $878.67 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 January 22, 2021 to the date of payment of the principal amount, but excluding January 22, 2021 from being counted within the period of interest.

(5) After calculating the sum total of the principal amount of $878.67 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.

(6) ATIC shall pay Nexray an attorney’s fee of $195.00 in connection with the master arbitration.

(7) ATIC shall pay Nexray an attorney’s fee of $140.00 for work performed by counsel on this Article 75 proceeding.

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

E N T E R
Dated: Brooklyn, New York, May 25, 2023

______________________________
HON. AARON D. MASLOW
Justice of the Supreme Court of the
State of New York

Footnotes

Footnote 1:A reply affirmation from Respondent’s counsel (NYSCEF Doc No. 15) is not considered inasmuch as it was filed on the motion calendar date of May 19, 2023, several days after all counsels were advised that this proceeding was being determined on submissions. The time of filing of 1:13 p.m. on May 19, 2023, was after the calendar call too.

Footnote 2:The notice of petition seeks vacatur of “the arbitration award issued by Arbitrator Kihyun Kim, Esq. and/or Master Arbitrator Victor J. D’Ammora, Esq.” (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. Insurance Law § 5106 (c) provides that “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. . . .” 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 an arbitration award without first seeking master arbitration (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 Property & 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]). Naturally, if the hearing arbitrator’s award is imperfect, this can impact 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. 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, Nexray, 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 99-21-1191-8028, which was assigned to the master arbitration appeal. The original arbitration was assigned AAA Case No. 17-21-1191-8028.

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 sustained 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: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 service was an MRI.

Footnote 9:The prescribed claim forms are included within 11 NYCRR Part 65 (Regulation 68) Appendix 13. In addition to 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). Other official No-Fault forms also appear in Appendix 13.

Footnote 10:There is a prescribed assignment of benefits form (Form NF-AOB) in 11 NYCRR Part 65 (Regulation 68) Appendix 13.

Footnote 11: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 12:Form NF-10 is also included within 11 NYCRR Part 65 (Regulation 68) Appendix 13.

Footnote 13:References to NYSCEF filings lacking page numbers are to the PDF page numbers.

Footnote 14:The AAA’s electronic case management and filing platform maintained on the Internet 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 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 to be able to sue for 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.

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:This Court served as a No-Fault insurance arbitrator for close to 21 years.

Quality Health Supply Corp. v Nationwide Ins.

2023 NY Slip Op 02689 [216 AD3d 1013]

May 17, 2023

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, July 5, 2023

[*1]

Quality Health Supply Corp., Respondent, v Nationwide Ins., Appellant.

Hollander Legal Group, P.C., Melville, NY (Allan S. Hollander and Jennifer B. Ettenger of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn, NY (Damin J. Toell of counsel), for respondent.

In an action to recover no-fault benefits, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts dated October 16, 2020. The order affirmed an order of the Civil Court of the City of New York, Kings County (Robin K. Sheares, J.), entered July 20, 2018, denying the defendant’s motion for summary judgment dismissing the complaint and granting the plaintiff’s cross-motion for summary judgment on the complaint.

Ordered that the order dated October 16, 2020, is reversed, on the law, with costs, the defendant’s motion for summary judgment dismissing the complaint is granted, the plaintiff’s cross-motion for summary judgment on the complaint is denied, and the order entered July 20, 2018, is modified accordingly.

The plaintiff, a medical provider, commenced this action, as assignee of no-fault insurance benefits, against the defendant insurer for a judgment in the amount of its claims for medical services provided to the insured. The defendant moved for summary judgment dismissing the complaint, arguing that it was not obligated to pay the no-fault benefits to the plaintiff because the insured assignor failed to appear at three scheduled examinations under oath (hereinafter EUOs). The plaintiff cross-moved for summary judgment on the complaint. By order entered July 20, 2018, the Civil Court denied the defendant’s motion and granted the plaintiff’s cross-motion, and, by order dated October 16, 2020, the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts affirmed. The defendant appeals, by permission, from the order dated October 16, 2020.

“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’ ” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007], quoting 11 NYCRR 65-3.5 [b]). “At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested” (11 NYCRR 65-3.6 [b] [emphasis added]). “The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath[*2]. . . is a material breach of the policy, precluding recovery of the policy proceeds” (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2020] [internal quotation marks omitted]; see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).

Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by showing that its letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at the scheduled EUOs, that it timely and properly followed up pursuant to 11 NYCRR 65-3.6 (b), and that it ultimately issued a timely and proper denial of the claims following the insured’s failure to appear at the last scheduled EUO (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; 65-3.8 [a]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 756; Interboro Ins. Co. v Clennon, 113 AD3d at 597). In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted, and the plaintiff’s cross-motion for summary judgment on the complaint should have been denied.

The defendant’s remaining contention need not be reached in light of our determination. Barros, J.P., Iannacci, Miller and Zayas, JJ., concur.

Pak Hong Sik MD Medical Care, P.C. AAO JOSE FELICIANO, Plaintiff, against Omni Insurance Company, Defendant.

Index No. CV-714236-22/RI

Kopelevich & Feldsherova PC for Plaintiff

Gallo Vitucci Klar LLP for Defendant

Robert J. Helbock Jr., J.

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:

Papers NYSCEF Numbered
Notice of Motion and Affirmation/Affidavit annexed 21-28
Notice of Cross-Motion and Affirmation in Opposition 29-33
Interim Order of the Court 34
Defendant’s Affirmation in Further Support 35

After argument and upon the foregoing cited papers, the decision on Defendant’s motion and Plaintiff’s cross-motion is as follows:

Plaintiff, PAK HONG SIK MD MEDICAL CARE, P.C. (hereinafter, “Plaintiff”), as assignee of JOSE FELICIANO (hereinafter, “Assignor”), commenced this action against the defendant, OMNI INSURANCE COMPANY (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion (i) to dismiss for lack of personal jurisdiction and failure to state a cause of action and (ii) for summary judgment pursuant to CPLR 3212. Plaintiff cross-moved for a motion finding the Defendant in default for failing to interpose an Answer in this matter. The Defendant filed an affirmation in further support of its motion and in opposition to the cross-motion. The parties argued the motion before the undersigned on May 4, 2023, and the motion was marked submitted.

The Defendant moves to dismiss the matter on the grounds that this Court lacks personal jurisdiction over the Defendant. The Defendant argues that it is not licensed to issue insurance [*2]policies in New York or transact any business in New York. In support of its motion, Defendant presented an affidavit of Kim Blankenship, the Assistant Vice President of Operations of American Independent Companies Inc., (“AICI”) the alleged parent company of the Defendant. The Court notes that the affidavit was notarized in 2020 in Cobb County, Georgia and contains an unsigned certificate of conformity. While the lack of a certificate of conformity may be excused under CPLR 2001, the Court finds that the affidavit still predates the accident at issue by more than six months. Considering the Defendant’s motion is made more than 2 years after the affidavit was executed, the Defendant does not offer any reasonable explanation for failing to produce a contemporaneous affidavit.

The Defendant also submits a screenshot of a website entitled “NAIC.” The Court finds the screenshot of the NAIC website inadmissible for several reasons. The screenshot is not dated, does not have an accompanying affidavit explaining its origin, and does not list the website’s URL. While this website may be useful to the Defendant’s investigation, it is not offered in admissible form.

Also annexed to the Defendant’s motion is a NYS DMV MV-104 accident report (incorrectly labeled and referred to as a “Police Accident Report”). The Court takes judicial notice this is not a report issued or completed by the New York City Police Department. The accident report was allegedly completed and signed by Mr. Feliciano reporting the accident to the DMV listing the Defendant as his carrier. However, the state issuing the driver’s license and vehicle registration, along with the insurance code, are all missing from the document.

Defendant cites to Matter of Eagle Ins. Co. v Gutierrez-Guzman, a matter decided in 2005 by the Appellate Division, Second Department, in support of its motion (21 AD3d 489, 491 [2d Dept 2005]). In this case, the court found that the Supreme Court, Nassau County did not have personal jurisdiction over an insurance company named “American Independent Insurance Company” (“AIIC”). Defendant infers that AIIC and AICI are one in the same. However, there has been no evidence presented to demonstrate that the two companies are in fact the same entity or even the parent company of the Defendant. Assuming for a moment that AIIC and AICI are the same corporate entity, and the Defendant’s parent company, the Court does not find this decision binding since it was related to an accident that occurred over twenty years ago, and that the Defendant’s business practices in New York might have changed since the Appellate Division’s decision.

It should be noted that the Defendant brought a prior motion for identical relief that was denied by the undersigned in a decision and order dated January 30, 2023. In the prior order, the Court found Defendant’s unsigned affidavit of Ms. Blankenship to be defective and inadmissible. Inasmuch as the Defendant states that it disagrees with the Court’s prior order, there is no request before the Court to vacate the prior order.

In opposition, the Plaintiff argues that the Defendant is barred from bringing the instant motion due to the “single motion rule.” The Plaintiff also cites the “accident report” to support a finding of jurisdiction. The Court finds this to be a self-serving document signed by Mr. Feliciano in which any information relevant to jurisdiction is missing. In support of its cross-motion for a default judgment, the Plaintiff argues that the Defendant is in default for failing to file an answer within 30 days from the Court’s prior order, as it was directed to do.

DISCUSSION

Turning first to the branch of Defendant’s motion which is for summary judgment, that request must be denied. Since the Defendant has yet to file an answer, issue has not been joined, and any motion for summary judgment is improper. The joinder of issue is a prerequisite that is “strictly adhered to” (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). This does not bar the Defendant from bringing a motion for summary judgment once issue has been joined.

As to the Defendant’s motion to dismiss, this Court finds the Defendant is barred from seeking such relief in successive motions. CPLR 3211(e) states that “At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) of this rule, and no more than one such motion shall be permitted” (emphasis added). Courts have consistently held this “single motion rule” to bar successive motions to dismiss (See Ramos v City of New York, 51 AD3d 753, 754 [2d Dept 2008]). The purpose of the single-motion rule is “not only to prevent delay before answer, but also to protect the pleader from being harassed by repeated CPLR 3211(a) motions and to conserve judicial resources” (Oakley v County of Nassau, 127 AD3d 946, 947 [2d Dept 2015] [internal quotation marks and citations omitted]). While the Defendant is barred from seeking pre-answer dismissal, the single motion rule will not prohibit the Defendant from seeking that relief in another form, such as a motion for summary judgment (See Id; Tapps of Nassau Supermarkets, Inc. v Linden Blvd., L.P., 269 AD2d 306, 307 [1st Dept 2000]).

The Court notes that if the Defendant’s motion was not barred by the “single motion rule,” the Defendant still failed to meet its entitlement to dismissal, based upon the defects and inadmissible evidence explained above.

As to the Plaintiff’s cross-motion, the Court finds that while the Defendant did not file an answer as directed by the Court, the Defendant did file this motion within 30 days of the Court’s prior order. Therefore, the Defendant is now placed on notice that this Court will not entertain any further pre-answer motions to dismiss and must interpose an answer in this matter.

Accordingly, it is hereby

ORDERED that Defendant’s motion is DENIED in its entirety; and it is further

ORDERED that the Defendant shall file and serve its Answer within 14 days from the date of this Order; and it is further

ORDERED that the Plaintiff’s cross-motion is DENIED, with leave to renew should Defendant fail to timely file its Answer as directed herein by the Court.

The foregoing constitutes the Decision and Order of the Court.

Date: May 10, 2023
Staten Island, New York
Hon. Robert J. Helbock, Jr.
Judge, Civil Court

Adirondack Ins. Exch. v Rodriguez

2023 NY Slip Op 02095 [215 AD3d 904]

April 26, 2023

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, May 31, 2023

[*1]

Adirondack Insurance Exchange et al., Respondents, v Alias Rodriguez et al., Defendants, and First Spine Chiropractic of NY, P.C., et al., Appellants.

The Rybak Firm, PLLC, New York, NY (Damin J. Toell of counsel), for appellants.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Michael J. Giordano of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the plaintiffs are not obligated to pay certain no-fault claims, the defendants First Spine Chiropractic of NY, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., Jules Francois Parisien, Longevity Medical Supply, Inc., and NYC Madison Avenue Medical, P.C., appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered May 1, 2020. The order and judgment, insofar as appealed from, granted that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against those defendants, and declared that certain motor vehicle collisions were intentional and that the plaintiffs are not obligated to pay certain no-fault claims related to those collisions.

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

In August 2018, the plaintiffs, both automobile insurance carriers, commenced this action, inter alia, for a judgment declaring that certain collisions involving insured motor vehicles were intentional acts and that they therefore had no duty to pay no-fault claims relating to those collisions. On July 29, 2019, the Supreme Court entered a judgment on default against a number of the defendants, including the insured individuals, and declared, among other things, that the collisions were intentional acts, and the plaintiffs had no duty to pay related no-fault claims.

Thereafter, the plaintiffs moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants First Spine Chiropractic of NY, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., Jules Francois Parisien, Longevity Medical Supply, Inc., and NYC Madison Avenue Medical, P.C. (hereinafter collectively the appellants). In an order and judgment entered May 1, 2020, the Supreme Court, inter alia, granted that branch of the plaintiffs’ motion and declared that the collisions were intentional acts and that the plaintiffs were not obligated to pay the no-fault claims the appellants submitted to them relating to the collisions. This appeal ensued.

The appellants failed to demonstrate that the plaintiffs’ motion was premature since they failed to identify any evidence within the plaintiffs’ exclusive control which was essential to their defense. Instead, the appellants were merely hopeful that further discovery would lead to evidence which would support their opposition to the motion (see CPLR 3212 [f]; Santiago v City [*2]of New York, 191 AD3d 715 [2021]; Blake v City of New York, 148 AD3d 1101 [2017]). Accordingly, the appellants failed to establish that the motion should be denied on that basis.

An intentionally caused or staged vehicular collision is not a covered accident under an insurance policy (see National Gen. Ins. Online, Inc. v Blasco, 210 AD3d 786 [2022]). When a collision is intentionally caused, the insurer is not obligated to provide coverage, even to innocent third parties (see Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040 [2014]). Here, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law by proffering evidence that the collisions were intentional. Specifically, the plaintiffs proffered evidence that the insured individuals procured the subject insurance policies fraudulently and that the collisions occurred under similar circumstances. In both collisions, the insured individuals were not in the insured vehicles at the relevant time, the insured vehicles struck a UPS truck while exiting a parking space, the individuals involved in the collisions were all closely interrelated, and all of the individuals allegedly injured in the collisions sought treatment from the same healthcare providers. In opposition, the appellants failed to raise a triable issue of fact.

The appellants also failed to establish that the plaintiffs’ evidence was inadmissible. The plaintiffs met their burden to support their motion with admissible evidence by including affidavits from witnesses personally knowledgeable about material facts (see CPLR 3212 [b]; Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2019]). The witnesses also laid appropriate foundations for certain business records (see CPLR 4518 [a]; U.S. Bank N.A. v Zakarin, 208 AD3d 1275 [2022]; Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2019]). Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against the appellants and declared that the collisions were intentional and the plaintiffs were not obligated to pay no-fault claims relating to the collisions.

In light of the foregoing, we need not reach the appellants’ remaining contention. Brathwaite Nelson, J.P., Rivera, Ford and Taylor, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Cheryl F. Korman and Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered August 2, 2021. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In January 2018, plaintiff Horizon P.T. Care, P.C. (Horizon) commenced this action against defendant State Farm Mutual Automobile Ins. Co. (State Farm) to recover assigned first-party no-fault benefits for services it rendered to its assignor for injuries the assignor allegedly sustained in a motor vehicle accident on March 9, 2015. After issue was joined, Horizon moved for, among other things, summary judgment. State Farm cross-moved for summary judgment dismissing the complaint on the separate grounds that Horizon had failed to appear for duly scheduled examinations under oath (EUOs), and that four of Horizon’s causes of action were barred by a declaratory judgment issued by the Supreme Court, Nassau County, in a December 2015 declaratory judgment action commenced by State Farm against Horizon in regard to the same March 2015 accident. Following Horizon’s default in appearing in the Supreme Court action, judgment was entered in July 2016, which declared that “Horizon . . . has no right to receive payment for the bills submitted to STATE FARM and listed in Exhibit ‘1’ of the . . . summons and verified complaint.” By order entered August 2, 2021, the Civil Court denied Horizon’s motion and granted State Farm’s cross motion for summary judgment dismissing the complaint on the ground that State Farm had established that Horizon failed to appear for duly scheduled EUOs.

State Farm’s cross-moving papers in the Civil Court sufficiently established that the assignor, claims, date of loss and dates of service relevant to Horizon’s first, third, fourth, and seventh causes of action in the case at bar are the same as those referenced in the Supreme Court declaratory judgment action. For the reasons stated in Horizon P.T. Care, P.C. v State Farm [*2]Mut. Auto. Ins. Co. (— Misc 3d —, 2023 NY Slip Op 50295 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]), those causes of action were barred under the doctrine of res judicata, thereby obviating any need for this court to independently review them. The Civil Court thus properly granted the branches of State Farm’s cross motion seeking summary judgment dismissing those causes of action, albeit on grounds different from those relied upon by the Civil Court.

With respect to Horizon’s remaining causes of action—the second, fifth, and sixth—contrary to Horizon’s contention, the affidavits of State Farm’s employees were sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms as to the claims underlying those causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, plaintiff has not demonstrated any basis to disturb so much of the order as granted the branches of State Farm’s cross motion seeking summary judgment dismissing those causes of action.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 14, 2023

Michele B. Glispy AAO RODRIGUEZ, MARIA, Plaintiff, against Ameriprise Insurance Company, Defendant. MICHELE B. GLISPY AAO RODRIGUEZ, MARIA, Plaintiff, against AMERIPRISE INSURANCE COMPANY, Defendant. MICHELE B. GLISPY AAO RODRIGUEZ, MARIA, Plaintiff, against AMERIPRISE INSURANCE COMPANY, Defendant.

Index No. CV-721025-20-KI

Plaintiff: Oleg Rybak
The Rybak Firm PLLC
1810 Voorhies Ave, Suite 7
Brooklyn, NY 11235-3313
(718) 975-2035
orybak@rybakfirm.com

Defendant: Steven Levy
Callinan and Smith LLP
3361 Park Avenue-Suite 104
Wantagh, NY 11793
(516)-784-5148
slevy@callinansmith.com

Jill R. Epstein, J.

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this Motion for Summary Judgment submitted on February 1, 2023,

Papers/Numbered
Notice of Motion and Affirmations/Affidavits Annexed 1-6
Affidavits/Affirmations in Opposition 7-13
Reply 14-16

Upon the foregoing cited papers, and oral argument, the Decision/Order on the Defendant’s Motions for Summary Judgement and Plaintiff’s Cross-Motions for Summary Judgement is as follows:

Defendant, Ameriprise Insurance Company, (hereinafter “Defendant”) moves by Notices of Motion dated November 2, 2020, for Orders pursuant to CPLR § 3212 (b) granting Defendant summary judgment as a matter of law and dismissing Plaintiff’s Summons and Complaint, in its entirety, with prejudice, based upon Plaintiff’s failure to attend duly scheduled Examinations Under Oath (“EUOs”). These matters are consolidated for the purposes of oral argument and this motion. Plaintiff, Michele B. Glispy, (hereinafter “Plaintiff” or “Assignee”), cross moves by Notices of Cross-Motion dated, July 9, 2021, July 12, 2021, and July 6, 2021, respectively, pursuant to CPLR § 3211 (c), CPLR § 3212 (a) seeking summary judgment in favor of plaintiff, denying defendant’s Motion for Summary Judgement, or limiting the issues of fact for trial pursuant to CPLR § 3212 (g), and seeking dismissal of defendant’s affirmative defenses pursuant to CPLR § 3211 (b).

This matter involves a claim for assigned first-party no fault benefits, which resulted from plaintiff providing medical treatment to Assignor, Maria Rodriguez (hereinafter “Assignor”), following a motor vehicle accident, which occurred on October 25, 2018. Defendant acknowledges receipt of specified bills in its denials, however, at oral argument both defendant and plaintiff agreed that bills one, two, and three were not received. After the receipt of the bills specified, defendant sent two Examinations Under Oath (hereinafter “EUO”) scheduling letters for each matter, CV-721025-20-KI letters are dated January 23, 2019, and February 19, 2019, CV-721026-20-KI and CV- 721033-20-KI letters are both dated January 4, 2019 and January, 23, 2019, respectively, to the assignor’s home address listed on the NF-3’s and Verification of Treatment forms and to the provider’s billing address. Defendant annexed affidavits in all three instant matters of Michael A. Callinan, Esq. (hereinafter the “Callinan Affidavits”) all dated October 19, 2020, in order to establish the mailing of the scheduling letters and the non-appearance of the assignor for the scheduled EUO’s. Defendant states that the [*2]assignor did not attend the two scheduled EUO’s for each of the three matters sub judice, and therefore, the defendant asserts that they are entitled to summary judgement dismissing the complaints.

At oral argument, defendant confirmed that it properly mailed EUO scheduling letters to the assignor for all three scheduled EUO’s. Defendant contends that the EUO scheduling letters sent to the assignor, the Callinan affidavits establishing both mailing of the letters and the non-appearance of assignor, in conjunction with a statement on the record, are sufficient under the current no-fault laws, to warrant dismissal of plaintiff’s case for the assignor’s failure to appear. The Court notes that the Callinan affidavits were identical in sum and substance as to the instant matters, but for the dates of the scheduling letters. As set forth below, defendant put forth numerous cases in which the Second Department has held that affidavits similar to Mr. Callinan’s were sufficient to establish the proper mailing of EUO scheduling letters and EUO non-appearance.

Plaintiff argues that the Callinan affidavits were conclusory and insufficient to establish proper mailing as required under CPLR. Plaintiff asserted that defendant did not annex copies of the envelopes in which the scheduling letters were sent as was required according to plaintiff. In the Cross-Motions for Summary Judgement and at oral argument, plaintiff drew the Court’s attention to the matter of Carle Place Chiropractic v. New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 1139A, 866 NYS2d 90 [1st Dist. Nassau Co. 2008]. Plaintiff argues that the Court’s rationale in Carle Place should be applied to the matters sub judice for failure to establish proper mailing procedure. The case is not an appellate case and has no precedential authority herein.

Plaintiff seeks to create new law by using this Court to impose more rigorous requirements on defendants to prove EUO non-appearance and the mailing of scheduling EUO letters. There is no legal requirement of such additional proof along with personal knowledge of mailing procedures to prove mailing of scheduling notices. Additionally, there is no requirement of that which plaintiff urged at oral arguments, to wit: annexing proof of first class mailing and/or envelopes in which the scheduling letters were sent, in addition to affidavits by an attorney with personal knowledge of the mailing of the specific scheduling letters at issue.

All three of plaintiff’s Cross-Motions acknowledge receipt of the scheduling letters by stating that plaintiff responded to the EUO scheduling letters in March of 2019. Though not annexed in plaintiff’s cross-motions, defendant’s motion papers contain, three letters from plaintiff’s counsel, all dated March 5, 2019, after the two scheduled EUO dates had already passed in each instant matter.

In this matter the Callinan affidavits describe in detail that he created the mailing procedure at the legal office handling these matters for defendant, as he was partner and oversaw the mailing of EUO scheduling letters, explicitly outlining his personal knowledge of mailing procedure. The Callinan affidavits state Mr. Callinan was personally responsible for handling these instant matters and these files “on a day-to-day basis.” His “personal knowledge” was not limited to file review and office mailing procedure. It was based upon his personal involvement on these matters in conjunction with review of the file, his creation and over-sight of office mailing procedure, and his knowledge of office mailing procedure.

Defendant argues that the Callinan affidavits established both mailing and the EUO non-appearances. There was no contradictory evidence provided by plaintiff in their motion papers aside from a blanket assertion that defendant did not have enough personal knowledge to establish proper mailing and EUO non-appearance and letters allegedly sent to defendant in [*3]March 2019 attempting to reschedule the EUO’s that were not actually annexed. Plaintiff did not provide any affidavit from its assignor to contradict the assertions made by the Callinan affidavits. Defendant cited to multiple cases in which the Second Department upheld both the sufficiency of similar affidavits to establish EUO no-shows and mailing of scheduling letters, to those of the Callinan affidavits in the matters sub judice as set forth below. Though plaintiff’s Cross-Motion asserts that there was no statement on the record to prove EUO non-appearance, in each of the three instant matters, defendant attached Mr. Callinan’s statements (Defendant’s Motions for Summary Judgement Exhibit “F”) on the record reflecting the non-appearances of plaintiff’s assignor for the scheduled EUO’s in contradiction to plaintiff’s assertions.

In Adelaida Physical Therapy, P.C. v Ameriprise Auto & Home, 58 Misc 3d 130(A), 92 NYS3d 702 (2nd Dept., 2017), the Second Department held that, “contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs” (see, Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 827 NYS2d 217 [2006]). Adelaida Physical Therapy, P.C. v Ameriprise Auto & Home, 58 Misc 3d 130(A), 92 NYS3d 702 (2nd Dept., 2017). Adelaida represents one of many examples proffered by defendant in which the Second Department has held that attorney affirmations alone can establish both mailing of EUO scheduling letters and non-appearance for an EUO. The Court in Adelaida did not require defendant to provide envelopes in which the scheduling letters were sent out in, nor did it as plaintiff requested in its Cross-Motion, ask defendant to provide a log of other people scheduled for EUO’s the same day as the assignor in question. Id. The affirmation of the attorney was relied upon in Adelaida to prove both sufficient mailing and failure of the assignor to appear for an EUO and therefore, affirmed the dismissal of plaintiff’s case. Id.

The Second Department applied similar logic in Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins., 1, 69 Misc 3d 143(A), 133 NYS3d 384, (2nd Dept. 2020) and wrote “defendant established that initial and follow-up letters scheduling an examination under oath had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 857 NYS2d 211 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 827 NYS2d 217 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123, 857 NYS2d 211). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing the complaint. Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins., 1, 69 Misc 3d 143(A), 133 NYS3d 384, (2nd Dept. 2020). Similarly, to Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins., this Court finds that in the three matters sub judice that defendant has established timely mailing of EUO scheduling letters and the non-appearance of the assignor at scheduled EUO’s by the Callinan affidavits and Mr. Callinan’s three statements on the record. Additionally, plaintiff has failed to raise an issue of fact for trial.

Summary Judgment is a drastic remedy and should be granted only in the absence of any triable issue of material fact. See, Rotuba Extruders, Inc. v Ceppos, 46 NY2d 141 [1978]; Andre v Pomeroy, 35 NY2d 361 [1974]. In order to prevail, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]. The appearance of the eligible injured person, or its assignor, at an EUO is a condition precedent [*4]to coverage. See W&Z Acupuncture, P.C. v. Amex Assur. Co., 24 Misc 3d 142(A) (NY App. Term July 31, 2009). The Second Department holds that, “[a]n insurer may establish its prima facie entitlement to judgment as a matter of law based on the failure to submit to an EUO by establishing that the letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at two scheduled EUOs, and that the insurer issued a timely and proper denial of the claims.” Nationwide Affinity Ins. Co. of Am. v. George, 183 AD3d 755, 756 (2nd Dept. 2020).

The Court finds that though other arguments were raised by both plaintiff and defendant in their Motion papers, the sole issues at oral argument were the mailing of the scheduling letters and the veracity of the Callinan affidavits to prove non-appearance of the assignor at the scheduled the EUO’s. The Court found no need to explore those additional written arguments as they are rendered moot by the issues determined in this decision.

Thus, the defendant’s Motion for Summary Judgement must be granted as plaintiff has failed to rebut the presumption of the mailing of the EUO scheduling letters and non-appearance at the EUO’s. Plaintiff has failed to raise an issue of fact for trial. Therefore, Plaintiff’s motion must be denied by the Court as it is moot.

WHEREFORE it is hereby

ORDERED AND ADJUDGED that defendant’s motions for summary judgement dismissing the complaint is granted pursuant to CPLR § 3212 and the matter is dismissed. Plaintiff’s cross-motions for Summary Judgement are denied in all respects.

Dated: Brooklyn, New York
April 13, 2023

_______________s/_____________________
HON. JILL R. EPSTEIN, JCC