[*1]

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.

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Thomas Torto, New York, for respondent.

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered August 27, 2021, which granted plaintiff Country-Wide Insurance Company’s motion for summary judgment declaring that plaintiff has no duty to defendants-appellants to pay no-fault claims based on the injured party’s failure to appear for examinations under oath (EUO), and permanently stayed any further action involving the injured party, unanimously reversed, on the law, without costs, the motion denied and the declaration and stay vacated.

Although plaintiff timely requested an EUO and subsequently issued a timely denial (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]), the motion court erred in granting summary judgment. 11 NYCRR 65-3.5 (e) requires an EUO request be based on application of objective standards, and that the insurer must have a specific objective justification. Summary judgment is premature under CPLR 3212 where an insurer fails to provide a medical provider with its objective justification for requesting the EUO (Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 473 [1st Dept 2022]). This Court has explained that the insurer’s reason for the EUO is essential for medical providers to oppose an insurer’s summary judgment motion, and that information is in the exclusive knowledge and control of the insurer (American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]).

Plaintiff’s argument that the opposing defendants waived any objection to the reasonableness of EUO request is unavailing (Country-Wide, 205 AD3d at 474). Concur—Kapnick, J.P., Kern, Gesmer, Moulton, Higgitt, JJ.

[*1]

Jaffe & Asher LLP, White Plains (Marshall T. Potashner of counsel), for appellants.

Eppinger, Reingold & Korder, Larchmont (Mitchell L. Korder of counsel), for respondents.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered September 21, 2022, which denied plaintiffs’ motion pursuant to CPLR 602 (b) to consolidate eight Civil Court actions with this action, unanimously reversed, on the law, without costs, and plaintiffs’ motion granted.

This action arises out of insurance claims based on an accident on December 30, 2020 in which defendant Melito Bonilla, while a passenger in a parked car, was injured when the car was struck by another vehicle. Each of the claims is under an insurance policy issued by plaintiffs that required Bonilla to appear for an examination under oath (EUO). Plaintiffs Liberty Mutual Insurance Company and LM General Insurance Company commenced this action on December 28, 2021, seeking a declaratory judgment, alleging that they do not owe no-fault coverage for medical fees in connection to Bonilla’s injuries because he failed to appear for an EUO.

After the action was commenced, two of Bonilla’s medical providers, Bay Ridge Chiropractic PC and Hudson Valley Chiro & Rehab PC, both of which are defendants in this action, brought eight actions, all in Richmond County Civil Court, seeking payment from Liberty for treatment of Bonilla’s alleged injuries. Liberty asserts that the same defense applies in each case, namely that it is not required to cover the injuries because Bonilla failed to appear for scheduled EUOs.

It was an improvident exercise of discretion to have denied plaintiffs’ motion to consolidate (see Amcan Holdings, Inc. v Torys LLP, 32 AD3d 337, 340 [1st Dept 2006]). The issue of whether Bonilla failed to submit to the EUO, and whether such failure entitles Liberty to disclaim coverage for his alleged injuries and treatment, would affect the outcome of each of the cases, and Liberty would risk inconsistent verdicts and multiple trials if the Civil Court actions are not consolidated with this one (see Phoenix Garden Rest. v Chu, 202 AD2d 180, 180-181 [1st Dept 1994]). Moreover, in opposing plaintiffs’ motion, defendants have not argued that they would be prejudiced. Concur—Webber, J.P., González, Scarpulla, Rodriguez, JJ.

[*1]

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for appellant.

Jaffe & Velazquez, LLP, New York (Thomas Torto of counsel), for respondent.

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about February 3, 2022, which granted petitioner Country-Wide Insurance Company’s (Country-Wide) petition to vacate a master arbitrator’s award, dated September 20, 2021, which affirmed a lower arbitrator’s award, dated May 31, 2021, in favor of respondent Refill Rx Pharmacy, Inc, as assignee of Kimberly Rosas (Refill) and against Country-Wide, in the amount of $2,715.48, and denied respondent’s cross motion for attorneys’ fees, unanimously affirmed, without costs.

Vacatur of the award was warranted under CPLR 7511 (b) (1) (iii) as the lower arbitrator exceeded his power by issuing an award exceeding the contractual limit for the subject no-fault coverage policy of $50,000, and the master arbitrator erred in affirming. Once a no-fault insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245 [1st Dept 2000]). An arbitrator’s award directing payment beyond the monetary limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 823 [1998]; see also Matter of Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 179 AD3d 563 [1st Dept 2020]). Country-Wide was not precluded from raising the issue of policy exhaustion before the court, even if it was not before the arbitrators in the underlying arbitration (Matter of Ameriprise Ins. Co. at 564).

Country-Wide submitted an affidavit from its No-Fault Litigation/Arbitration supervisor, attesting that the instant claims file of Refill’s assignor, Ms. Rosas, reflects that the policy has been exhausted beyond its $50,000 limit. The affidavit also contains a ledger reflecting the dates that claims by various medical providers were paid, which exhausted Ms. Rosas’ policy. Thus, Country-Wide’s submissions showed that the policy was properly exhausted prior to the underlying arbitration (see 11 NYCRR 65-3.15).

In view of the foregoing, Refill is not entitled to the attorneys’ fees it requested (see 11 NYCRR 65-4.10 [j] [4]).

We have considered Refill’s remaining arguments and find them unavailing. Concur—Kapnick, J.P., Friedman, Kennedy, Mendez, Shulman, JJ.

[*1]

The Rybak Firm, PLLC, Brooklyn (Michael I. Kroopnick of counsel), for appellants.

Freiberg, Peck & Kang, LLP, Armonk (Yilo J. Kang of counsel), for respondents.

Order, Supreme Court, Bronx County (Eddie J. McShan, J.), entered December 8, 2021, which, to the extent appealed from as limited by the briefs, denied defendants All City Family Healthcare, Aron Rovner, MD, PLLC, Averroes Physical Therapy PC, Burke Physical Therapy PC, Cavallaro Medical Supply, East 19 Medical Supply Corp., JSJ Anesthesia Pain Management PLLC, Jules F. Parisien, Longevity Medical Supply, Inc., LR Medical PLLC, Metro Pain Specialists, PC, Nova Medical Diagnostic, P.C., CMA Psychology, P.C., Danimark Physical Therapy PC, Fairpoint Acupuncture PC, and NYEEQASC, LLC’s (the Rybak defendants) motion to dismiss the complaint or, alternatively, to sever the claims, unanimously affirmed, without costs. Order, same court and Justice, entered December 8, 2021, which denied the Rybak defendants’ motion for a protective order, unanimously affirmed, without costs. Appeal from order, same court (Fidel E. Gomez, J.), entered June 14, 2022, which denied the Rybak defendants’ motion to sever the claims pursuant to the law of the case doctrine, unanimously dismissed, without costs, as academic.

On a motion to dismiss a declaratory judgment action for failure to state a cause of action, “the only question is whether a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment, and not whether the plaintiff is entitled to a declaration favorable to him” (Law Research Serv. v Honeywell, Inc., 31 AD2d 900, 901 [1st Dept 1969]). Here, plaintiffs stated causes of action for declaratory judgment. Contrary to the Rybak defendants’ contention, plaintiffs need not allege a proper claim for fraud in the complaint. Further, plaintiffs were not merely seeking an advisory opinion. Rather, their request for a declaration regarding the eligibility of defendants to recover no-fault benefits under the relevant policies amounts to a justiciable controversy sufficient to render declaratory judgment (State Farm Mut. Auto. Ins. Co. v Anikeyeva, 89 AD3d 1009, 1010-1011 [2d Dept 2011]).

The court providently exercised its discretion in declining to sever plaintiff’s claims into separate actions. Generally, “[t]o avoid the waste of judicial resources and the risk of inconsistent verdicts, it is preferable for related actions to be tried together” (Rothstein v Milleridge Inn, 251 AD2d 154, 155 [1st Dept 1998]). Although the Rybak defendants’ severance arguments carry some weight, after consideration of all relevant factors, including the potential prejudice that would be suffered by plaintiffs in having to litigate 32 separate actions involving many of the same parties and witnesses, the court properly declined to sever the claims (see Hempstead Gen. Hosp. v Liberty Mut. Ins. Co., 134 AD2d 569, 569-570 [2d Dept 1987]; cf. Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185, 185 [1st Dept 2004]). In view of the foregoing, the appeal from the order denying the Rybak defendants’ second motion to sever pursuant [*2]to the law of the case doctrine is dismissed as academic.

The court properly declined to dismiss the claims which had also been previously asserted by the Rybak defendants in separate Civil Court actions as Civil Court cannot grant the declaratory relief that plaintiffs seek here (see State Farm Fire & Cas. Co. v Jewsbury, 169 AD3d 949, 950-951 [2d Dept 2019]).

The court providently exercised its discretion in declining to grant the Rybak defendants a protective order to preclude plaintiffs from deposing them. Generally, a party seeking a protective order bears the initial burden of showing either that the discovery sought is irrelevant or that it is “obvious the process will not lead to legitimate discovery” (Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 403 [1st Dept 2018]). Where a party seeking a protective order fails to “substantiate their conclusory claims,” the motion must be denied (Ocean to Ocean Seafood Sales v Trans-O-Fish & Seafood Co., 138 AD2d 265, 266 [1st Dept 1988]). Here, the Rybak defendants did not meet their initial burden, as they simply asserted, in conclusory fashion, that they had no knowledge of the automobile accidents and did not witness the accidents, and thus could not attest to whether they had been staged (see id.; City Wide Social Work v NY Cent. Mut. Fire Ins. Co., 20 Misc 3d 134[A], 2008 NY Slip Op 51470[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The Rybak defendants’ affirmative defenses also support plaintiffs’ need to depose them. Concur—Kern, J.P., Kennedy, Scarpulla, Pitt-Burke, Higgitt, JJ.

[*1]

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for appellant.

Harriette G. Zelman (Scahill Law Group, P.C., Bethpage, NY [David J. Tetlak], of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated May 23, 2019, the petitioner appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered May 7, 2020. The order denied the petition and, in effect, dismissed the proceeding.

Ordered that the order is affirmed, with costs.

In May 2017, nonparty Eric Rhodes was injured when he was involved in a motor vehicle collision while operating a loaner vehicle owned by nonparty Staluppi Group of Dealerships and insured by Wesco Insurance Company (hereinafter Wesco). Government Employees Insurance Company (hereinafter GEICO) paid no-fault benefits to Rhodes for his injuries pursuant to an automobile liability policy issued to him. GEICO thereafter sought to recover the benefits paid to Rhodes from Wesco in a compulsory arbitration proceeding. In an arbitration award dated May 23, 2019, the arbitrator determined that Wesco, as insurer of the loaner vehicle operated by Rhodes, was liable for the benefits paid to Rhodes.

In August 2019, Wesco commenced this proceeding to vacate the arbitration award. The Supreme Court denied the petition and, in effect, dismissed the proceeding. Wesco appeals.

For the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 731 [2022] [decided herewith]), the Supreme Court properly denied the petition to vacate the arbitration award and, in effect, dismissed the proceeding. Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for appellant.

Scahill Law Group, P.C., Bethpage, NY (David J. Tetlak of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated September 26, 2019, the petitioner appeals from an order of the Supreme Court, Suffolk County (Andrew A. Crecca, J.), dated May 26, 2021. The order denied the petition to vacate the arbitration award and confirmed the arbitration award.

Ordered that the order is affirmed, with costs.

In August 2017, nonparty Dacora Motley was injured when she was involved in a motor vehicle collision while operating a loaner vehicle owned by nonparty Nissan of Huntington and insured by Wesco Insurance Company (hereinafter Wesco). GEICO Indemnity Company (hereinafter GEICO) paid basic no-fault benefits to Motley for her injuries pursuant to an automobile liability policy issued to her. GEICO thereafter sought to recover the benefits paid to Motley from Wesco in a compulsory arbitration proceeding. In an arbitration award dated September 26, 2019, the arbitrators determined that Wesco, as insurer of the loaner vehicle operated by Motley, was liable for the benefits paid to Motley.

In December 2019, Wesco commenced this proceeding seeking to vacate the arbitration award. The Supreme Court denied the petition and confirmed the award. Wesco appeals.

For the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 738 [2022] [decided herewith]), the Supreme Court properly denied the petition and confirmed the arbitration award.

Further, contrary to the petitioner’s contention, it failed to present evidence of actual bias or the appearance of bias on the part of one of the arbitrators (see Kotlyar v Khlebopros, 176 AD3d 793, 795 [2019]; Matter of Heller v Bedford Cent. Sch. Dist., 154 AD3d 754, 755 [2017]). Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

Harriette G. Zelman (Scahill Law Group, P.C., Bethpage, NY [David J. Tetlak], of counsel), for appellant.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated July 11, 2019, GEICO Indemnity Company appeals from an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered December 16, 2019. The order granted the petition to vacate the arbitration award, vacated the arbitration award, and remitted the matter to the arbitrator for a rehearing and new determination.

Ordered that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

In August 2017, nonparty Sarah Pierre was injured when she was involved in a motor vehicle collision while operating a loaner vehicle owned by nonparty Bay Ridge Volvo and insured by Wesco Insurance Company (hereinafter Wesco). GEICO Indemnity Company (hereinafter GEICO) paid basic no-fault benefits to Pierre for her injuries pursuant to an automobile liability policy issued to her (hereinafter the GEICO policy). GEICO thereafter sought to recover from Wesco the benefits paid to Pierre in a compulsory arbitration proceeding. In an arbitration award dated July 11, 2019, the arbitrator determined that Wesco, as insurer of the loaner vehicle operated by Pierre, was liable for the benefits paid to Pierre.

In October 2019, Wesco commenced this proceeding to vacate the arbitration award, and, in an order entered December 18, 2019, the Supreme Court granted the petition, vacated the arbitration award, and remitted the matter to the arbitrator for a rehearing and new determination. GEICO appeals.

Where, as here, the obligation to arbitrate arises through a statutory mandate, the arbitrator’s determination is subject to “closer judicial scrutiny” under CPLR 7511 (b) than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008]). To be upheld, an [*2]award in a compulsory arbitration proceeding “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223; see Matter of Allstate Ins. Co. v Travelers Cos., Inc., 159 AD3d 982, 983 [2018]; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]; Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d 980, 981 [2015]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]).

Here, the arbitrator’s determination that Wesco was liable for the benefits paid to Pierre was not arbitrary and capricious and was supported by the evidence. The mandatory personal injury protection (hereinafter PIP) endorsement in the GEICO policy excluded coverage for injuries sustained by the insured while occupying a vehicle other than the “Insured motor vehicle, with respect to which the coverage required by the New York Comprehensive Motor Vehicle Insurance Reparations Act is in effect.” The PIP endorsement defined “Insured motor vehicle” as a motor vehicle owned by the “insured and to which the bodily injury liability insurance of [the GEICO] policy applies and for which a specific premium is charged.” Since, among other things, the loaner vehicle was not owned by Pierre, the insured, it was not an “Insured motor vehicle” within the meaning of the PIP endorsement. Accordingly, the PIP endorsement in the GEICO policy did not provide coverage for the injuries Pierre sustained while operating the loaner vehicle.

Contrary to Wesco’s contention, the fact that the loaner vehicle constituted a “temporary substitute auto” pursuant to the separate “Bodily Injury Liability” section of the GEICO policy did not result in coverage pursuant to the mandatory PIP endorsement, as the definition of “Insured motor vehicle” in the PIP endorsement did not include a “temporary substitute auto.” Contrary to Wesco’s further contention, Pierre’s agreement with Bay Ridge Volvo, which authorized her to operate the loaner vehicle, did not relieve Wesco of its obligation to provide mandatory PIP coverage for Pierre (see 11 NYCRR 65-1.1, 65-1.7).

Accordingly, the Supreme Court should have denied Wesco’s petition and dismissed the proceeding.

Wesco’s remaining contention is without merit. Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for appellant.

Scahill Law Group, P.C., Bethpage, NY (David J. Tetlak of counsel), for respondent in proceeding No. 2.

In related proceedings pursuant to CPLR article 75, Wesco Insurance Company appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered May 7, 2020. The order, insofar as appealed from, denied the petition of Wesco Insurance Company to vacate an arbitration award dated May 23, 2019, and confirmed the arbitration award.

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

In March 2017, nonparty Linotte Dhaiti was injured when she was involved in a motor vehicle collision while operating a loaner vehicle owned by nonparty New Rochelle Hyundai, LLC, and insured by Wesco Insurance Company (hereinafter Wesco). GEICO Indemnity Company (hereinafter GEICO) paid no-fault benefits to Dhaiti for her injuries pursuant to an automobile liability policy issued to her. GEICO thereafter sought to recover the benefits paid to Dhaiti from Wesco in a compulsory arbitration proceeding. In an arbitration award dated May 23, 2019, the arbitrator determined that Wesco, as insurer of the loaner vehicle operated by Dhaiti, was liable for the benefits paid to Dhaiti.

In August 2019, Wesco commenced a proceeding to vacate the arbitration award. In an order entered May 7, 2020, the Supreme Court, inter alia, denied the petition and confirmed the arbitration award. Wesco appeals.

For the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 738 [2022] [decided herewith]), the Supreme Court properly denied Wesco’s petition to vacate the arbitration award, and confirmed the arbitration [*2]award. Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

Harriette G. Zelman (Scahill Law Group, P.C., Bethpage, NY [David J. Tetlak], of counsel), for appellant.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated May 30, 2019, the petitioner appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered May 13, 2020. The order denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, with costs, the petition is granted, the arbitration award dated May 30, 2019, is vacated, and the matter is remitted to the Supreme Court, Queens County, to remit the matter to the arbitrator for further proceedings consistent herewith.

In April 2018, nonparty Biru Saha entered into a rental agreement with nonparty New Country Motor Car Group, Inc. (hereinafter New Country), which authorized Saha to operate a loaner vehicle owned by New Country and insured by Wesco Insurance Company (hereinafter Wesco). Thereafter, Saha was injured when he was involved in a motor vehicle collision while operating the loaner vehicle. GEICO General Insurance Company (hereinafter GEICO) paid basic no-fault benefits to Saha for his injuries pursuant to an automobile liability policy issued to him. GEICO thereafter sought to recover the benefits paid to Saha from Wesco in a compulsory arbitration proceeding. In an arbitration award dated May 30, 2019, the arbitrator determined that GEICO was liable for the benefits paid to Saha.

In August 2019, GEICO commenced this proceeding to vacate the arbitration award. The Supreme Court denied the petition and dismissed the proceeding. GEICO appeals.

Where, as here, the obligation to arbitrate arises through a statutory mandate, the arbitrator’s determination is subject to “closer judicial scrutiny” under CPLR 7511 (b) than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008]). To be upheld, an award in a compulsory arbitration proceeding “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223; [*2]see Matter of Allstate Ins. Co. v Travelers Cos., Inc., 159 AD3d 982, 983 [2018]; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]; Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d 980, 981 [2015]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]).

Here, the arbitrator’s determination that GEICO was liable for the benefits paid to Saha was arbitrary and capricious and not supported by the evidence. The arbitrator’s interpretation of the rental agreement between Saha and New Country as relieving Wesco of its obligation to provide mandatory personal injury protection (hereinafter PIP) coverage was contrary to 11 NYCRR part 65, which provides, in effect, that all motor vehicle insurance policies must contain a mandatory PIP endorsement; expressly sets forth the language of the PIP endorsement; permits deviations from the prescribed language only upon prior approval; and prohibits any release, express or implied, from mandatory or optional PIP benefits (see 11 NYCRR 65-1.1, 65-1.7, 65-3.18). Moreover, for the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 738 [2022] [decided herewith]), the arbitrator’s determination that GEICO’s policy provided coverage to Saha under the circumstances of this case was not supported by any evidence in the record. Accordingly, the Supreme Court should have vacated the arbitration award (see Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d at 981; Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d at 634; Matter of Allstate Ins. Co. v American Arbitration Assn., 26 AD3d 374 [2006]). Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.