American Tr. Ins. Co. v NextStep Healing, Inc. (2023 NY Slip Op 50521(U))

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]).