[*1]

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

Law Office of Goldstein, Flecker & Hopkins, Melville (Lauren Hirschfeld of counsel), for respondent.

Order, Appellate Term, First Department, entered on or about April 13, 2020, which affirmed an order of the Civil Court, New York County (Judy H. Kim, J.), entered April 18, 2019, granting defendant’s motion to vacate, in effect, so much of a judgment, same court (Carol R. Sharpe, J.), entered May 25, 2018, as awarded plaintiff attorneys’ fees pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.6 (c) (former 11 NYCRR 65-4.6 [d]), unanimously reversed, on the law, with costs, and the matter remanded for further proceedings and an amended judgment in accordance herewith.

The issue before us in this action to recover first-party No-Fault insurance benefits is whether the failure of an eligible injured person (EIP) to attend an independent medical examination (IME) is a “policy issue” for the purpose of the no-fault insurance law denial of claim (NYS NF-10) form, as prescribed by 11 NYCRR Appendix 13, and an award of hourly attorneys’ fees, as provided by 11 NYCRR 65-4.6 (c). We conclude that an EIP’s failure to attend an IME is a “policy issue” and therefore that plaintiff may be awarded attorneys’ fees pursuant to 11 NYCRR 65-4.6 (c). However, we remand the matter to Civil Court for further proceedings, as explained below.

“Eligible Injured Person” is defined in the Mandatory Personal Injury Protection Endorsement (MPIPE) that must be contained in every motor vehicle owner’s policy of liability insurance (11 NYCRR 65-1.1 [d]). The MPIPE also sets forth certain conditions of and exclusions from coverage. For example, under the subheading “Proof of Claim. Medical, Work Loss, and Other Necessary Expenses” (subpara d), the MPIPE says, “The [EIP] shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require.”

The NYS NF-10 form lists eight “policy issue” reasons for denial of claim: “Policy not in force on date of accident” (box 3); “Injured person excluded under policy conditions or exclusion” (box 4); “Policy conditions violated” (box 5 [a] and [b]), referring to late notices of claim; “Injured person not an ‘Eligible Injured Person’ ” (box 6); “Injuries did not arise out of use or operation of a motor vehicle” (box 7); and “Claim not within the scope of your election under Optional Basic Economic Loss coverage” (box 8).

We find that “policy conditions or exclusion” under which the injured person is excluded from coverage in the “policy issue” reason in box 4 of the NYS NF-10 form refers to the conditions and exclusions of the MPIPE (11 NYCRR 65-1.1 [d]), which include, as noted above, that an EIP must submit to IMEs as required by the insurer. We therefore conclude that an IME no-show defense is a box 4 reason for denial. An EIP who does not attend an IME fails to satisfy a condition precedent to coverage under the policy, voiding the policy ab initio (PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). Thus, an insurer who denies a claim [*2]for first-party No-Fault benefits on the basis of the injured person’s failure to attend an IME properly does so by checking box 4 on the denial of claim form, and therefore an injured person’s failure to attend an IME is a “policy issue” both according to the denial of claim form and for purposes of awarding attorneys’ fees under 11 NYCRR 65-4.6 (c). We are unpersuaded by the reasoning of other courts that have reached the contrary conclusion. We also note that it is unclear to what the terms “policy conditions or exclusion” as used in box 4 of the denial of claim form refer, if not to the policy conditions and exclusions listed in the MPIPE.

Moreover, statutes and regulations must be interpreted in a manner that does not render them meaningless, unreasonable, or absurd (see McKinney’s Cons Laws of NY, Book 1, Statutes § 145; Long v State of New York, 7 NY3d 269, 273 [2006]). For this reason, we also reject the overly restrictive reading of 11 NYCRR 65-4.6 (c) urged by defendant, which would interpret “a policy issue as enumerated on the prescribed denial of claim form” (id.) as referring only to those specific justifications delineated on the form, and only as they are delineated on the form. That interpretation would both render some of the reasons on the denial of claim form meaningless and require the Department of Financial Services effectively to reproduce the MPIPE on the form to capture all the possible reasons for which a No-Fault benefits claim may be denied.

Although we conclude, for the foregoing reasons, that plaintiff may be awarded attorneys’ fees in this case under 11 NYCRR 65-4.6 (c), it is entirely unclear from the record whether the amount that was awarded was calculated correctly. There is no documentation supporting plaintiff’s claim for attorneys’ fees, the parties’ calculations as to the amount of attorneys’ fees owed and due differ irreconcilably, and it is uncertain whether the unpaid amount of the judgment was, in fact, unpaid attorneys’ fees in the first place. Accordingly, upon remittal, Civil Court should ascertain the amount of attorneys’ fees owed to plaintiff under 11 NYCRR 65-4.6 (c) and whether any amount either thereof or of the judgment as a whole remains outstanding, crediting defendant for the payments that it has already made. Concur—Renwick, J.P., Mazzarelli, Singh, González, JJ. [Prior Case History: 67 Misc 3d 129(A), 2020 NY Slip Op 50414(U).]

[*1]

Peter C. Merani, P.C., New York, NY, for appellant.

Gary Tsirelman, P.C., Brooklyn, NY (Stefan Belinfanti and David M. Gottlieb of counsel), for respondent.

Rivkin Radler LLP, Uniondale, NY (Evan H. Krinick, Barry I. Levy, and Henry M. Mascia of counsel), for amici curiae New York Insurance Association, Inc., and another.

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 March 29, 2017. The order affirmed an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 1, 2015, denying the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order dated March 29, 2017, is affirmed, with costs.

In June 2011, the plaintiff commenced the instant action against the defendant in the Civil Court of the City of New York, Queens County, seeking to recover the sum of $4,748.69 for treatment provided to its assignor in April 2011, following a motor vehicle accident that occurred on October 20, 2010. The plaintiff alleged, among other things, that a no-fault claim and verification were sent to the defendant on April 19, 2011, and that the defendant failed to properly deny the claim or request additional verification in compliance with no-fault regulations.

In May 2014, the defendant moved for summary judgment dismissing the complaint, arguing that the benefits under the no-fault policy had been exhausted. The Civil Court denied the defendant’s motion, and the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts affirmed. The defendant appeals, and we affirm, albeit on different grounds than those relied upon by the Civil Court or the Appellate Term.

“Under the no-fault system, payments of benefits ‘shall be made as the loss is incurred’ ” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003], quoting Insurance Law § 5106 [a]). Under this regulatory scheme, “an insurer shall pay benefits directly to the ‘applicant,’ or, upon assignment by the applicant, ‘shall pay benefits directly to providers of health care services’ ” (East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 207 [2009], quoting 11 NYCRR 65-3.11 [a]). In addition, “an insurer is required to either pay or deny a claim for no-fault automobile [*2]insurance benefits within 30 days from the date an applicant supplies proof of claim” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]; see Insurance Law § 5106 [a]). However, “[a]n insurer is not required to pay a claim where the policy limits have been exhausted” (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2004]) since, where payments made by an insurer meet or exceed the policy limits, “its duties under the contract of insurance cease” (Presbyterian Hosp. in City of N.Y. v Liberty Mut. Ins. Co., 216 AD2d 448, 448 [1995]; see 11 NYCRR 65-3.15).

“[A]n insurer must pay or deny only a verified claim—that is, a claim that has been verified to the extent compliance with section 65-3.5 dictates in the particular case—within 30 calendar days of receipt; and, conversely, is not obligated to pay any claim until it has been so verified” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]). Once claims have been verified they are subject to the priority of payment regulation, 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d at 300).

While the defendant submitted records indicating that the subject no-fault policy had been exhausted in 2013, the defendant’s submissions failed to establish its prima facie entitlement to judgment as a matter of law. Although the defendant submitted an affidavit from one of its employees that set forth the defendant’s ordinary business practice of receiving, recording, and denying no-fault claims from medical providers, the affidavit is bereft of any specific information regarding this claim. The defendant failed to submit the no-fault application, verification, any request for verification, or any denial associated with the plaintiff’s claim for payment. “While a witness may read into the record from the contents of a document which has been admitted into evidence, a witness’s description of a document not admitted into evidence is hearsay” (Wells Fargo Bank, N.A. v Sesey, 183 AD3d 780, 783 [2020] [citation and internal quotation marks omitted]). Because “a review of records maintained in the normal course of business does not vest an affiant with personal knowledge” (JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d 1513, 1517 [2019]), the employee’s assertions as to the contents of the no-fault file are inadmissible hearsay (see Wells Fargo Bank, N.A. v Sesey, 183 AD3d at 783; U.S. Bank N.A. v 22 S. Madison, LLC, 170 AD3d 772, 774 [2019]). Accordingly, there are issues of fact remaining as to when the claim was denied, and the basis and efficacy of the denial (see Paulin v Needham, 28 AD3d 531 [2006]).

The parties’ remaining contentions, including those raised by the amici curiae, need not be reached in light of our determination. Chambers, J.P., LaSalle, Barros and Christopher, JJ., concur.

[*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 (Lynn R. Kotler, J.), entered June 8, 2018, which, in effect, granted reargument and adhered to the original determination, which granted the petition to vacate a master arbitrator’s award in favor of respondent, unanimously reversed, on the law, without costs, the petition denied, the master arbitrator’s award confirmed, and the matter remanded for a determination of respondent’s attorneys’ fees.

Although the motion court purported to deny respondent’s motion for reargument, it effectively granted the motion by addressing the merits. Accordingly, the order is appealable (CPLR 5701 [a] [2] [viii]; Castillo v Mount Sinai Hosp., 140 AD3d 619, 620 [1st Dept 2016], lv denied 28 NY3d 913 [2017]).

As respondent argued, the court overlooked existing authority confirming that CPLR 7511 (b) limits courts’ vacatur of arbitration awards to circumstances not present in this case (see Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999] [“(E)ven in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice”]).

The order that vacated the arbitration award cited no basis for vacatur under CPLR 7511 (b), finding only that the arbitrator and master arbitrator applied the wrong burden of proof to plaintiff’s fraudulent incorporation defense. Although on reargument the motion court determined that this Court’s decision in Country-Wide Ins. Co. v TC Acupuncture, P.C. (140 AD3d 643 [1st Dept 2016]), decided June 28, 2016, could not apply to the petition decided on June 9, 2016, Country-Wide did not state a new proposition of law, but merely cited existing authority (id. at 643-644 [“Even assuming, without deciding, that the master arbitrator applied the wrong burden of proof, the award is not subject to vacatur on that ground”], citing New York State Correctional Officers, 94 NY2d at 326).

Respondent is entitled to its reasonable attorneys’ fees on appeal (11 NYCRR 65-4.10 [j] [4]; Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 415 [1st Dept 2020]). We therefore remand the matter to Supreme Court for the calculation of those fees. Concur—Renwick, J.P., Kern, Singh, Shulman, JJ.

[*1]

Goldberg, Miller & Rubin P.C., New York (Eli Shmulik and Harlan R. Schreiber of counsel), for appellant.

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

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered on or about November 1, 2019, which denied summary judgment on plaintiff’s first cause of action for a declaration disclaiming coverage for no-fault benefits sought by defendants-respondents Jules Francois Parisien, M.D. and SP Orthotic Surgical & Medical Supply, Inc., unanimously reversed, on the law, with costs, the motion granted, and it is declared that plaintiff has no coverage obligation for no-fault benefits sought by the defendants-respondents. The Clerk is directed to enter judgment accordingly.

Where, as here, the insurer submits evidence of a medical provider claim (NF-3), the timely request for an independent medical examination (IME) of the injured claimant within 15 days of the receipt of that claim, and the injured claimant is a no-show at two duly noticed IMEs, the basis for disclaimer of coverage is established, as a matter of law, and summary judgment is properly awarded to the insurer with respect to further coverage obligations and reimbursement of outstanding medical bills with respect to all treating providers (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437 [1st Dept 2017]; National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). Concur—Renwick, J.P., Kapnick, Gesmer, Kern, JJ.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Samandarov & Associates, P.C., Floral Park (David M. Gottlieb of counsel), for respondents.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 15, 2020, which denied the petition to vacate a master arbitration award, dated June 17, 2019, affirming the no-fault arbitrator’s award of no-fault benefits to respondents, and dismissed the proceeding brought pursuant to CPLR article 75, unanimously affirmed, without costs, and the matter remanded to Supreme Court for a determination of respondents’ reasonable attorneys’ fees for this appeal.

The no-fault arbitrator found that petitioner’s vague and conclusory explanation that the denial was based on an independent medical examination which did not support reimbursement, without providing any of the examination’s findings, or checking boxes on the NF-10 form to indicate that the denial was based on a lack of medical necessity, was insufficient. The master arbitrator reviewed the no-fault arbitrator’s determination and the parties’ submissions, and confirmed the no-fault arbitrator’s award of benefits to respondent assignees. Supreme Court, reviewing the findings of the master and no-fault arbitrators, correctly found that the award was rational, and was not arbitrary and capricious (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]; Matter of Rose Castle Redevelopment II, LLC v Franklin Realty Corp., 184 AD3d 230, 234 [1st Dept 2020]; Azrielant v Azrielant, 301 AD2d 269, 275 [1st Dept 2002], lv denied 99 NY2d 509 [2003]). Petitioner’s vague declination of benefits lacked the degree of specificity required by statute and case law, which provide that insurers must clearly inform applicants of their position regarding disputed matters by “appris[ing] the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]; see 11 NYCRR 65-3.2 [e]). Respondents are entitled to reasonable attorneys’ fees for this appeal, to be determined by Supreme Court (see Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C., 167 AD3d 404 [1st Dept 2018]; 11 NYCRR 65-4.10 [j] [4]). Concur—Webber, J.P., González, Scarpulla, Shulman, JJ.

[*1]

Goldberg, Miller & Rubin, P.C., New York (Harlan R. Schreiber of counsel), for appellant.

Slotnick & Ashkenazy, LLP, Rockville Centre (Howard J. Stern of counsel), for respondent.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about August 1, 2019, which, in this action pursuant to Insurance Law § 5106 (c) for de novo review of a master arbitrator’s award, denied plaintiff insurer’s motion for summary judgment declaring it has no obligation to pay no-fault benefits to defendant medical provider, and granted defendant’s cross motion for summary judgment confirming the arbitration award, unanimously reversed, on the law, without costs, to grant plaintiff’s motion and to deny defendant’s cross motion. The Clerk is directed to enter judgment declaring in plaintiff’s favor.

Plaintiff insurer’s evidence, including affidavits attesting in detail to the regular business procedures and practices in the handling of its no-fault claims, including providing notice of scheduled IME exams to claimants, together with the mailing ledgers, which were signed and date-stamped by U.S. Postal Service employees, and listed therein IME notices received for mailing to the claimant here at his resident address, provided sufficient proof of proper mailing to support a presumption that the IME notices were received by the claimant (see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [1st Dept 2004]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]). Although the notices incorrectly added the designation “1st Floor” to the address, there is no dispute that the address was otherwise correct and that claimant resided at that building (see Cadle Co. v Tri-Angle Assoc., 18 AD3d 100 [1st Dept 2005]).

The burden on the motion having shifted, defendant failed to offer any evidence in opposition, such as an affidavit from the claimant disavowing receipt of the IME notices or even describing the building composition in a manner that would support an inference that the inclusion of a floor in the address would result in nonreceipt. Plaintiff thus established that the injured claimant failed to appear for three properly scheduled IMEs, constituting breach of a condition precedent to no-fault coverage, warranting the denial of defendant’s claims to no-fault benefits for its medical services rendered to the claimant (see 11 NYCRR 65-1.1; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Concur—Kapnick, J.P., Mazzarelli, Moulton, Mendez, JJ.

[*1]

Goldberg, Miller & Rubin, P.C., New York (Eli Shmulik of counsel), for appellant.

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

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about December 10, 2019, which denied as premature plaintiff’s motion for summary judgment declaring that it is not obligated to reimburse defendants-respondents for no-fault claims submitted in connection with a motor vehicle accident, unanimously affirmed, without costs.

Plaintiff no-fault insurer failed to provide the injured claimant’s assignees with the “specific objective justification” for its request that the injured claimant submit to an examination under oath (EUO) to establish proof of claim (11 NYCRR 65-3.5 [e]; see American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept 2015]). As the criteria by which plaintiff determined that an EUO was required constitute facts unavailable to defendants for use in opposing plaintiff’s motion, the motion was premature (CPLR 3212 [f]). Moreover, as the court noted, plaintiff moved for summary judgment before any depositions had been conducted (see e.g. Blech v West Park Presbyt. Church, 97 AD3d 443 [1st Dept 2012]).

We have considered plaintiff’s remaining contentions and find them unavailing. Concur—Renwick, J.P., Gesmer, Kern, Singh, JJ.

[*1]

The Law Office Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

The Law Office of Melissa Betancourt, P.C., Brooklyn (Jamin Koo of counsel), for Longevity Medical Supply Inc., respondent.

Kopelevich & Feldsherova, P.C., Brooklyn (David Landfair of counsel), for Jamaica Wellness Medical, P.C., and LVOV Acupuncture, P.C., respondents.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about September 30, 2019, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion to renew its motion for summary judgment declaring in its favor against defendants Longevity Medical Supply, Inc., Jamaica Wellness Medical, P.C., United Wellness Chiropractic, P.C., and Lvov Acupuncture, P.C., unanimously reversed, on the law, without costs, the motion for renewal granted and, upon renewal, the motion for summary judgment granted. The Clerk is directed to enter judgment declaring that plaintiff owes no coverage to said defendants.

Plaintiff provided a policy of insurance to VIP Limousine & Tuxedo, Inc. (VIP) that included a no-fault endorsement to an insured or eligible person for necessary expenses resulting from a motor vehicle accident. In April 2014, one of VIP’s limousines was hit in the rear by another car. Thereafter, the driver and passengers of the limousine (the individual defendants) filed claims as eligible persons under the policy issued by plaintiff, and later assigned their rights to the no-fault benefits to various medical providers (medical provider defendants).

Plaintiff moved for summary judgment, asserting that the accident was staged and therefore, none of the individual defendants or the medical provider defendants were entitled to benefits under the policy. Supreme Court denied the motion, finding that plaintiff failed to demonstrate as a matter of law that the accident was fraudulently or intentionally procured.

Plaintiff moved to renew its prior motion for summary judgment. In support of its motion to renew, plaintiff submitted additional evidence that the accident was staged in the form of a videotape confession by one of the passengers, which it had procured, after extensive motion practice, from the Police Department, Department of Financial Services, Insurance Fraud Bureau (DFS), and Kings County District Attorney’s Office. Supreme Court denied renewal on the grounds that plaintiff failed to offer any reasonable explanation as to why the videotape could not have been attached to its prior motion, and that the videotape was not properly authenticated for purposes of summary judgment.

Plaintiff appealed. We now reverse finding that renewal should have been granted in the interests of justice and substantive fairness (see Ross v Lewis, 181 AD3d 423, 424 [1st Dept 2020]; Cruz v Bronx Lebanon Hosp. Ctr., 73 AD3d 597, 598 [1st Dept 2010]; Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460, 461 [1st Dept 2007]). “Although it is true that a motion to renew should generally be based upon newly-discovered facts, this rule is not inflexible, and the court has discretion to grant renewal in the interest of justice even upon facts that were known to the movant at the time the original motion was made” (Kaszar v Cho, 160 AD3d 501, 502 [1st Dept 2018]).

Here, plaintiff demonstrated that the additional evidence it submitted in support of its motion to renew would change the prior determination and that it was required to engage in extensive motion practice to obtain the material. Plaintiff also established that it was unaware of the nature and extent of the information held by those agencies before then (CPLR 2221 [e] [2], [3]). The material, which included statements by the passengers who assigned their claims to defendants, proves that the motor vehicle accident was staged (see Matter of Global Liberty Ins. Co. of N.Y. v Eveillard, 171 AD3d 749, 750-751 [2d Dept 2019]; CPLR 2221 [e]).

Contrary to defendants’ contentions, the videotape of the confession of one of the defendants who participated in the scheme and the statements others provided to the police and DFS are admissible as party admissions (see People v Soto, 26 NY3d 455, 461 [2015]; People v Caban, 5 NY3d 143, 150-151 n [2005]). Plaintiff demonstrated the authenticity of this material by proof of the complete chain of custody (see People v Price, 29 NY3d 472, 481-482 [2017]).

Defendants failed to submit any evidence controverting plaintiff’s proof that the accident was staged. Concur—Kapnick, J.P., Singh, Kennedy, Mendez, JJ.

[*1]

Hurwitz & Fine, P.C., Buffalo (Steven E. Peiper of counsel), for respondent-appellant.

Gelber & O’Connell, LLC, Amherst (Timothy G. O’Connell of counsel), for petitioner-respondent.

Appeal from a judgment of the Supreme Court, Erie County (Catherine R. Nugent Panepinto, J.), entered February 1, 2019. The judgment awarded petitioner money damages upon an arbitration award.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: This case arose from a motor vehicle accident that occurred when petitioner’s vehicle was struck by a vehicle that failed to stop for a red light. Following petitioner’s recovery of damages in an underlying action against the driver of the other vehicle, petitioner submitted a supplemental uninsured/underinsured motorist (SUM) coverage claim to respondent, State Farm Mutual Automobile Insurance Company (State Farm). The matter proceeded to compulsory arbitration, and the arbitrator awarded petitioner $2,250,000, less the setoff amount of $474,771.21, for a total of $1,775,228.79. Supreme Court granted petitioner’s motion to confirm the arbitration award and denied State Farm’s cross motion to vacate the award. In appeal No. 1, State Farm appeals from a judgment that, inter alia, confirmed the arbitration award. In appeal No. 2, State Farm appeals from an order that, inter alia, granted petitioner’s motion to confirm the arbitration award and denied State Farm’s cross motion to vacate the award. In appeal No. 3, State Farm appeals from an order denying its application, pursuant to CPLR 2601 and 5519 (c), for an order permitting payment of the judgment into court.

Preliminarily, inasmuch as the order appealed from in appeal No. 2 was subsumed in the judgment appealed from in appeal No. 1, appeal No. 2 must be dismissed (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988, 988 [4th Dept 1988]; see also Matter of Toussie v Coastal Dev., LLC, 161 AD3d 533, 533 [1st Dept 2018]; Deragon v Burkart, 55 AD3d 1309, 1309 [4th Dept 2008]). Furthermore, inasmuch as State Farm does not challenge any aspect of the order appealed from in appeal No. 3, we dismiss that appeal as abandoned (see Abasciano v Dandrea, 83 AD3d 1542, 1545 [4th Dept 2011]).

We reject State Farm’s contention in appeal No. 1 that the arbitration award is arbitrary and capricious, irrational and unsupported by the evidence. “It is well settled that judicial review of arbitration awards is extremely limited” (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479 [2006], cert dismissed 548 US 940 [2006]; see Whitney v Perrotti, 164 AD3d 1601, 1602 [4th Dept 2018]). As relevant here, a court may vacate an arbitration award if it finds that the rights of a party were prejudiced when “an arbitrator . . . exceeded his [or her] power” (CPLR 7511 [b] [1] [iii]). An arbitrator exceeds his or her power where, inter alia, the award is “irrational” (Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]). “An award is irrational if there is no proof whatever to justify the award” (Matter of Town of Scriba [Teamsters Local 317], 129 AD3d 1596, 1597 [4th Dept 2015] [internal quotation marks omitted]; see Matter of Professional, Clerical, Tech., Empls. Assn. [Board of Educ. for Buffalo City Sch. Dist.], 103 AD3d 1120, 1122 [4th Dept 2013], lv denied 21 NY3d 863 [2013]). If the arbitrator “offers even a barely colorable justification for the outcome reached, the arbitration award must be upheld” (Whitney, 164 AD3d at 1602 [internal quotation marks omitted]; see Matter of Town of Tonawanda [Town of Tonawanda Salaried Workers Assn.], 160 AD3d 1477, 1477 [4th Dept 2018], lv denied 32 NY3d 908 [2018]).

Where, as here, the parties are “subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it ‘must have evidentiary support and cannot be arbitrary and capricious’ ” (City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 919 [2011], quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). “ ’When reviewing compulsory arbitrations . . . , the court should accept the arbitrators’ credibility determinations, even where there is conflicting evidence and room for choice exists’ ” (Matter of Powell v Board of Educ. of Westbury Union Free School Dist., 91 AD3d 955, 955 [2d Dept 2012]).

Here, the record establishes that the findings of the arbitrator were rational, had evidentiary support, and were not arbitrary and capricious (see Motor Veh. Acc. Indem. Corp., 89 NY2d at 223-224; Matter of Bender [Lancaster Cent. Sch. Dist.], 175 AD3d 993, 996 [4th Dept 2019]). The arbitrator’s decision reflects his review of the parties’ submissions, the oral arguments of counsel, and the testimony of petitioner, and the arbitrator’s evaluation of the testimony and analyzation of the medical, no-fault, and property damage records. The arbitrator noted that State Farm had conceded that petitioner had no prior relevant medical history but required an extensive three-level spinal surgery at a very young age, and the arbitrator determined that the diagnosis of petitioner’s spinal surgeon that petitioner’s injuries were caused by the accident was supported by the opinions of the radiologists and other treating physicians. The arbitrator further determined that the diagnosis and opinions of petitioner’s spinal surgeon and chiropractor were supported by the objective evidence, whereas the opinions of the neurosurgeon who conducted the independent medical examination of petitioner were at odds with the opinions of the radiologists and petitioner’s surgeon regarding the severity and progression of petitioner’s injuries. We thus conclude that there is evidentiary support for the arbitrator’s conclusion that petitioner is entitled to collect the SUM benefits from State Farm.

We have considered the remaining contentions of State Farm and conclude that none warrants modification or reversal of the judgment. Present—Centra, J.P., Troutman, Winslow and Bannister, JJ.

[*1] (July 29, 2020)

Bruno, Gerbino & Soriano, LLP, Melville, NY (Nathan M. Shapiro of counsel), for appellant.

In an action for declaratory and injunctive relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (Diccia T. Pineda-Kirwan, J.), entered August 1, 2019. The order, insofar as appealed from, denied that branch of the plaintiff’s motion which was for leave to enter a default judgment against the defendants Roy Kim, Anesthesia Professionals, P.A., Andrew J. Dowd, Bayside Wellness Physical Therapy, P.C., BKLYN Chiropractic, P.C., Central Radiology, P.C., Duramed, LLC, Franklin RX, Inc., Gaogui Leasing Corp., Gaon Acupuncture, P.C., Ji Ae Kim, JPS Medical, P.C., JWC PT, P.C., Matthew Alan Wert, Newtech Chiropractic, P.C., Park West Surgical Group, LLC, Stanford R. Wert, M.D., P.C., Sky Radiology, P.C., and W. Medical Care, P.C., upon their failure to appear or answer the complaint.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, Ameriprise Insurance Company, issued an automobile insurance policy to the defendant Roy Kim and his wife which covered, inter alia, a 2012 Chevrolet Camaro for the period from May 14, 2017, through November 14, 2017. Pursuant to the policy, Kim reported to the plaintiff that on August 14, 2017, the subject vehicle was involved in a hit-and-run accident in Queens, in which another vehicle allegedly reversed and struck the subject vehicle while it was parked, and then fled the scene. Upon receipt of such notification, the plaintiff conducted an investigation and concluded that neither Kim’s claim nor those of his no-fault benefit assignees were covered under the policy. The plaintiff commenced this action, inter alia, for a judgment declaring that pursuant to the policy, it has no duty to indemnify the defendants for any claims arising out of the subject accident. The defendants Kim, Anesthesia Professionals, P.A., Andrew J. Dowd, Bayside Wellness Physical Therapy, P.C., BKLYN Chiropractic, P.C., Central Radiology, P.C., Duramed, LLC, Franklin RX, Inc., Gaogui Leasing Corp., Gaon Acupuncture, P.C., Ji Ae Kim, JPS Medical, P.C., JWC PT, P.C., Matthew Alan Wert, Newtech Chiropractic, P.C., Park West Surgical Group, LLC, Stanford R. Wert, M.D., P.C., Sky Radiology, P.C., and W. Medical Care, P.C. (hereinafter collectively the non-answering defendants) failed to appear or answer the complaint. The plaintiff then moved, inter alia, for leave to enter a default judgment against the non-answering defendants and the Supreme Court denied the motion.

“A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant’s default, and the facts constituting the claim” (Global Liberty Ins. Co. v Surgery Ctr. of Oradell, LLC, 153 AD3d 606, 606 [2017]; see CPLR 3215 [f]). “ '[A] default judgment in a declaratory judgment action will not be granted on the default and pleadings alone for it is necessary that [the plaintiff] establish a right to a declaration’ ” against the defendants (JBBNY, LLC v Dedvukaj, 171 AD3d 898, 902 [2019], quoting Dole Food Co., Inc. v Lincoln Gen. Ins. Co., 66 AD3d 1493, 1494 [2009]; see Merchants Ins. Co. of N.H. v Long Is. Pet Cemetery, 206 AD2d 827, 828 [1994]).

Here, while the plaintiff submitted proof of proper service of the summons and the complaint, the non-answering defendants’ default, and the facts constituting the plaintiff’s claim, the plaintiff’s submissions in support of the motion failed to establish its right to the declarations sought (see JBBNY, LLC v Dedvukaj, 171 AD3d at 902). As such, we agree with the Supreme Court’s determination denying that branch of the plaintiff’s motion which was for leave to enter a default judgment against the non-answering defendants.

Based on the foregoing, the plaintiff’s remaining contention has been rendered academic. Rivera, J.P., Chambers, Iannacci and Wooten, JJ., concur.