American Transit Insurance Company, Plaintiff, against Shawarbi Graves, ADVANCED ORTHOPAEDICS, P.L.L.C., DR. RONALD P. MAZZA, HECTOR MELGAR, PT P.C., NASSAU HEALTH CARE CORP, NASSAU OPEN MRI P.C., NASSAU UNIVERSITY MEDICAL CENTER, ORTHOPRO SERVICES, INC., PROMPT MEDICAL SPINE CARE, PLLC, and STAND-UP MRI OF CARLE PLACE, P.C., Defendants.

Index No. 159039/2021

Law Office of Daniel J. Tucker, Brooklyn, NY (Megan Harris of counsel), for plaintiff.

Law Offices of Dominick W. Lavelle, Locust Valley, NY (Emily K. Lavelle of counsel), for defendant Shawarbi Graves.

No appearances for remaining defendants.

Gerald Lebovits, J.

In this no-fault-insurance-coverage action, plaintiff, American Transit Insurance Company, moves for default judgment against the eligible injured person, defendant Shawarbi Graves, and a number of medical-provider assignees of defendant Graves. Plaintiff’s motion is denied as to defendants Graves, Dr. Ronald P. Mazza, Nassau Health Care Corp., and Nassau University Medical Center; and granted as to [*2]defendants Hector Melgar, PT P.C., Orthopro, Services, Inc., Prompt Medical Spine Care, PLLC, and Stand-Up MRI of Carle Place, P.C.^[FN1]

To obtain default judgment under CPLR 3215, a plaintiff must establish proper service on the defendant, the defendant’s default, and the facts constituting plaintiff’s claims. American Transit cannot show proper service on Graves, Mazza, Nassau Health Care, or Nassau University Medical Center.

American Transit commenced this action on October 1, 2021. (NYSCEF No. 1.) American Transit therefore was required to serve defendants within 120 days from that day. (See CPLR 306-b.) The 120th day of the period, January 29, 2022, was a Saturday, making American Transit’s deadline January 31. (See General Construction Law § 25-a.) But American Transit’s affidavits of service reflect that it did not serve Mazza, Nassau Health Care, and Nassau University Medical Center until February 4, 2022. (See NYSCEF No. 4 at 3, 5, 7 [affidavits of service].) And American Transit did not serve Graves until February 22, 2022.^[FN2] (NYSCEF No. 4 at 1.)

The length of these delays in service is not significant. But American Transit did not, then or later, seek additional time to serve these four defendants. Nor do American Transit’s papers on the current motion address this issue. (See NYSCEF No. 11 [affirmation of counsel].) This court may not sua sponte dismiss American Transit’s claim against these four defendants for untimely service (Daniels v King Chicken & Stuff, Inc., 35 AD3d 345, 345 [2d Dept 2006]); but absent proper service, no basis exists to grant default judgment against them, either.^[FN3]

The other defendants (Melgar, Orthopro, Prompt Medical, and Stand-Up MRI), were each timely served in December 2021. (See NYSCEF No. 3.) None of these defendants have answered or sought additional time to answer. And American Transit has provided the facts constituting its claims against these defendants. American Transit’s motion papers establish for default-judgment purposes that it timely requested and scheduled an independent medical examination, as required by 11 NYCRR 65-3.5; and that Graves twice failed without good cause to appear for the duly scheduled examinations. (See Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011].)

Accordingly, it is

ORDERED that the branch of American Transit’s motion seeking default judgment under CPLR 3215 against Melgar, Orthopro, Prompt Medical, and Stand-Up MRI is granted without opposition, and American Transit is directed to settle order with respect to judgment against those defendants; and it is [*3]further

ORDERED that the branch of American Transit’s motion seeking default judgment under CPLR 3215 against Graves, Mazza, Nassau Health Care, and Nassau University Medical Center is denied; and it is further

ORDERED that if American Transit does not bring a renewed motion for default judgment against defendants Mazza, Nassau Health Care, and Nassau University Medical Center within 30 days of entry of this order, the action will be dismissed as against those defendants.

12/14/2022

Footnotes

Footnote 1:Plaintiff settled its claims against the remaining defendant, Advanced Orthopaedics, P.L.LC. (NYSCEF No. 29), and does not seek relief against it on this motion.

Footnote 2:American Transit served Graves by leave-and-mail under CPLR 308 (2), on February 19, 2022, and February 22, 2022, respectively. (See NYSCEF No. 4 at 1.)

Footnote 3:In any event, American Transit has not properly established that Graves defaulted. Given leave-and-mail service, Graves’s time to appear and respond expired 40 days from the filing of the affidavit of service, which occurred here on June 15, 2022. (See NYSCEF No. 4; CPLR 308 [2]; CPLR 320 [a].) Graves’s deadline to appear and respond, therefore, was July 25, 2022. Graves filed an answer on July 26, 2022. (NYSCEF No. 8.) Although that answer was one day late, American Transit did not serve a notice of rejection; nor separately argue in its default-judgment motion—filed on August 7, 2022—that Graves’s answer was late. As a result, American Transit waived Graves’s one-day default. (See U.S. Bank N.A. v Lopez, 192 AD3d 849, 850 [2d Dept 2021].) For that matter, even absent waiver, this court would be inclined to grant Graves a retroactive one-day enlargement of time under CPLR 2004, were that enlargement requested.

State Farm Mutual Automobile Insurance Company and STATE FARM FIRE AND CASUALTY COMPANY, Plaintiffs, against Emote Medical Services, P.C., Defendant.

Index No. 151954/2022

Rivkin Radler LLP, Uniondale, NY (Vincent J. Pontrello of counsel), for plaintiffs.

No appearance for defendant.

Gerald Lebovits, J.

In this action, plaintiffs seek a declaratory judgment relating to no-fault insurance coverage. Unlike the typical no-fault declaratory-judgment action, plaintiffs do not seek relief against a range of medical providers who have each claimed benefits for treatment provided following a particular covered automobile collision. Instead, plaintiffs have brought this action against one provider, addressing benefits claims for treatment provided following dozens of collisions. (See NYSCEF No. 1 at ｶ 1 [verified complaint]; NYSCEF No. 2 [listing claims].)

Plaintiffs allege that they denied each of these claims because defendant failed in each instance to appear for a properly requested examination under oath (EUO). (NYSCEF No. 1 at ｶｶ 26-32.) They allege that these EUOs were aimed at ascertaining whether defendant is ineligible to collect no-fault benefits under 11 NYCRR 65-3.16 (a) (12) due to, among other things, being controlled by nonphysicians in willful violation of New York law. (Id. at ｶｶ 23-24; see Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 403-405 [2019] [*2][discussing this ground for denying no-fault claims].)

Plaintiffs now move without opposition for default judgment under CPLR 3215. The motion is denied.

DISCUSSION

Plaintiffs’ motion papers establish that defendant was properly served; and defendant has not appeared. The question is thus whether plaintiffs’ verified complaint, standing alone, provides proof of the facts constituting plaintiff’s claim. (See CPLR 3215 [f].) It does not.

A plaintiff denying a provider’s claim for no-fault benefits based on asserted failures to appear for an EUO must demonstrate that the EUO was timely and properly requested. (See Liberty Mut. Ins. Co. v Carranza, 2021 NY Slip Op 50284[U], at *1-2 [Sup Ct, NY County Apr. 7, 2021], citing American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) Plaintiffs have not satisfied these requirements.

Plaintiffs’ verified complaint alleges only that “[e]ach request was timely made,” that plaintiffs then “issued a timely denial on the prescribed denial on the prescribed NF-10 form,” and that these denials “were timely, proper, and consistent with the No-Fault Laws.” (NYSCEF No. 1 at ｶｶ 27, 31, 32.) Given the dozens of bills, EUO requests and follow-up requests, and denials involved (see NYSCEF No. 2 [list of claims]), these conclusory statements are insufficient. That is particularly true since plaintiffs have not submitted any evidence that the many EUO requests, follow-up requests, and denials in question were not simply generated by plaintiffs, but also correctly addressed and mailed to defendant. Plaintiffs do provide a lengthy, detailed chart of bills and EUO requests, organized by the underlying benefits claim. (See id.) That chart, however, omits the most important date for purposes of assessing timeliness—the date on which plaintiffs received the bills. (See id.; 11 NYCRR 65-3.5 [b] [requiring insurers to request EUO-based verification within 15 business days of receiving a provider bill].)

Additionally, the complaint alleges that defendant has “systematically failed and/or refused to appear for an EUO” on many occasions over the past year. (NYSCEF No. 1 at ｶ 29.) This allegation treats a failure to appear and a refusal to appear as interchangeable. But that is not necessarily so. For example, a provider may properly condition its appearance at an EUO on receiving the insurer’s specific objective justification for requesting the EUO under 11 NYCRR 65-3.5 (e). (See Kemper Independence Ins. Co. v Accurate Monitoring, LLC, 73 Misc 3d 585, 586-587, 589 [Sup Ct, NY County 2021].) Plaintiffs’ motion papers do not address whether defendant ever made that kind of request—or, if it did, what the response was.^[FN1] Similarly, [*3]although plaintiffs allege that each EUO request to defendant “endeavored to select places and times for the EUO that would be convenient to [defendant] and advised that a change of time, date, manner and location would be considered if requested” (NYSCEF No. 1 at ｶ 28), plaintiffs do not say whether defendant ever did request a change of that type for logistical/convenience reasons, and, if so, how plaintiffs responded.

Moreover, plaintiffs have not indicated whether any of defendant’s claims for treatment—or other benefits claims arising out of the numerous collisions underlying defendant’s treatment bills—have given rise to other no-fault proceedings by or against plaintiffs. It would be somewhat curious, given the sheer number of insurance claims appearing in plaintiffs’ EUO-request chart, if this action were the very first time that litigation involving one of those claims has arisen—possible, but curious. And if this action were not the first time that one of the no-fault claims identified in the chart has led to litigation, plaintiffs’ declaratory-judgment claims here would be subject to an obvious claim-preclusion objection.

Claim preclusion, to be sure, is an affirmative defense. (See CPLR 3211 [a] [5].) Plaintiffs thus were not required to rule it out in their complaint. For the same reason, the absence of any allegation addressing claim-preclusion-related issues is not itself grounds to deny plaintiffs’ default-judgment motion. But that absence does underscore the comparative thinness of plaintiffs’ motion papers compared to the typical showing in a no-fault coverage action—particularly given the number of claims and bills involved and the amount of money at stake.

The difficulty in this action is that plaintiffs’ true grievance appears to be their conclusion that defendant is not providing legitimate medical services and is ineligible under 11 NYCRR 65-3.16 (a) (12) to receive no-fault benefits. But this action does not pursue and support that grievance through seeking a declaration that speaks directly to defendant’s putative lack of eligibility. Instead, plaintiffs are seeking, in effect, to achieve that same result by relying on many asserted EUO-nonappearances to obtain a declaratory judgment supporting en masse plaintiffs’ denials of defendant’s treatment bills.

Proceeding in this manner might be simpler and more efficient from plaintiffs’ perspective than bringing many individual declaratory judgment actions, each premised on a particular failure of defendant to appear for an EUO. As reflected in the discussion above, though, the flip side of plaintiffs’ efficiency gains is that this court loses the information and documentation it needs to properly evaluate plaintiffs’ claims about defendant’s repeated EUO-nonappearances. (Cf. Travelers Indemnity Co. v Parisien, 2020 NY Slip Op 51561[U], at *3-4 [Sup Ct, Suffolk County Dec. 29, 2020] [expressing concern in a no-fault declaratory-judgment action about 13 different sets of treatment bills that “[u]ltimately, in the guise of convenience, plaintiffs are, in effect, seeking to circumvent the statutorily prescribed procedures that govern disputes between no-fault insurers and no-fault health services providers over the validity of reimbursement claims and the health services provider’s eligibility”].) In these circumstances, on this record, this court is loath to grant plaintiffs the default judgment that they seek.

At the same time, the court does not rule out the possibility that plaintiffs could still provide the details (and supporting documents) about their EUO requests needed to show that defendant repeatedly failed without justification to appear for timely and properly scheduled EUOs. The court thus sees no basis at this time to dismiss plaintiffs’ action altogether.

Accordingly, it is

ORDERED that plaintiffs’ motion for default judgment under CPLR 3215 is denied [*4]without prejudice; and it is further

ORDERED that if plaintiffs do not bring a renewed default-judgment motion within 60 days of entry of this order, the action will be administratively dismissed; and it is further

ORDERED that plaintiffs serve a copy of this order with notice of its entry on defendant by certified mail, return receipt requested, directed to defendant’s last-known address.

DATE 8/24/2022

Footnotes

Footnote 1: Although the issue is not squarely presented by the current motion, plaintiff’s complaint does not provide that justification either. It alleges only that “various facts and circumstances . . . called into question” defendant’s eligibility to collect no-fault benefits and the legitimacy of defendant’s treatment and billing, without identifying any of those facts and circumstances. (NYSCEF No. 1 at 24.) That would not be sufficient under 11 NYCRR 65-3.5 (e), were the issue to be contested. (See Kemper Independence, 73 Misc 3d at 589 n 4; Country-Wide Ins. Co. v Delacruz, 71 Misc 3d 247, 251 [Sup Ct, NY County 2021], affd 205 AD3d 473, 473-474 [1st Dept 2022].)

Liberty Mutual Insurance Company and American States Insurance Company, Plaintiffs, against Edwine Brutus, ADVANCED COMPREHENSIVE LABORATORY LLC, ALL CITY FAMILY HEALTHCARE CENTER INC., FINE MOTOR PHYSICAL THERAPY PC, HERSCHEL KOTES MD PC, I AM SUPPLIES INC., JOURNEY ACUPUNCTURE PC, METRO PAIN SPECIALISTS PROFESSIONAL CORPORATION, MZY ACUPUNCTURE, NEXRAY MEDICAL IMAGING PC, NYC AXIS CHIROPRACTIC PC, SEDATION VACATION PERIOPERATIVE MEDICINE PLLC, TOP CHOICE PHARMACY CORP. AKA TOP CHOICE RX, and WAY TO REHAB PT PC, Defendants.

Index No. 654090/2020

Correia, Conway & Stiefeld, White Plains, NY (Richard Ahrens of counsel), for plaintiff.

Law Office of Gregory A. Goodman, P.C., Jericho, NY (Gregory Goodman of counsel), for defendant NYC Axis Chiropractic PC.

Gerald Lebovits, J.

In this no-fault insurance coverage action, plaintiffs Liberty Mutual Insurance Company and American States Insurance Company (together, Liberty Mutual) move for default judgment against the eligible injured person, defendant Edwine Brutus; and against non-appearing defendants I Am Supplies Inc., MZY Acupuncture PC, Nexray Medical Imaging PC, Sedation Vacation Perioperative Medicine PLLC and Way to Rehab PT PC, all medical-provider assignees of Brutus.

Appearing defendant NYC Axis Chiropractic PC cross-moves for summary judgment against Liberty Mutual. NYC Axis also cross-moves for sanctions, on the ground that Liberty Mutual erroneously named it in the initial default judgment motion and then failed to withdraw the motion quickly enough as against NYC Axis.

Liberty Mutual’s unopposed motion for default judgment is granted. The branch of NYC Axis’s cross-motion seeking sanctions is denied. The branch of NYC Axis’s cross-motion for summary judgment is granted in part and denied in part.

DISCUSSION

I. Liberty Mutual’s Default-Judgment Motion

To obtain default judgment under CPLR 3215, a movant must establish proper service on the subjects of the motion, defaults by those parties, and the facts constituting movant’s claim. Here, Liberty Mutual has established proper service and defaults. Additionally, Liberty Mutual has established, through affidavits and supporting documentation, the facts constituting its claim.

In particular, Liberty Mutual has shown that it timely asked Brutus to appear for an examination under oath (EUO) about whether he had been truthful and accurate on his application for insurance (see NYSCEF No. 24 [EUO scheduling letters]). Liberty Mutual has also demonstrated that Brutus appeared for his EUO but failed to respond fully to timely served post-EUO document requests. (See NYSCEF No. 27 [EUO transcript]; NYSCEF No. 28 [post-[*2]EUO document requests].) Liberty Mutual has provided an affidavit from one of its investigators representing that her investigation, coupled with Brutus’s EUO testimony, indicated he lived at a different address from the one he had used on his application. (NYSCEF No. 23.) And Liberty Mutual has provided an affidavit from one of its underwriters representing that had Brutus provided his true home address on the insurance application, the premium would have been almost double what he was charged. (NYSCEF No. 29.)

These facts, taken together, suffice to establish a prima facie case that Brutus committed a material misrepresentation in applying for insurance from Liberty Mutual. (See Starr Indem. & Liab. Co. v Monte Carlo, LLC, 190 AD3d 441, 441-442 [1st Dept 2021] [“A misrepresentation in an insurance application is material . . . if, had the true facts been known, either the insurer would not have issued the policy or would have charged a higher premium.”]; cf. Dyno v Rose, 260 AD2d 694, 698 [3d Dept 1999] [noting that the “affidavit of facts” supporting a default-judgment motion for default judgment must “establish a prima facie case” for relief].) This material misrepresentation, in turn, is a proper basis to deny claims for benefits brought by Brutus or his assignees. (See Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293, 298-299 [2d Dept 2000].)

Liberty Mutual’s motion for default judgment is granted.

II. NYC Axis’s Cross-Motion

A. The Branch of the Cross-Motion Seeking Sanctions

Liberty Mutual’s default-judgment motion initially sought judgment against NYC Axis, in addition to the other defendants named in the motion. (See NYSCEF No. 14 at 2 [notice of motion].) The attorney affirmation submitted in support of the motion stated that NYC Axis was in default because it did not timely answer. (See NYSCEF No. 15 at 4 ¶ 18.) But although NYC Axis’s answer was untimely, Liberty Mutual did not reject that answer when it was filed, thereby waiving Liberty Mutual’s right to act on the default. (See U.S. Bank N.A. v Lopez, 192 AD3d 849, 850 [2d Dept 2021].)

Liberty Mutual filed its motion on Friday, December 3, 2021. (NYSCEF No. 14.) The motion was returnable on January 4, 2022; it required under CPLR 2214 (b) that opposition papers be filed by December 28, 2021. (Id. at 1-2.) On Saturday, December 4, NYC Axis filed a letter to demand that Liberty Mutual withdraw its motion as against NYC Axis within five days or face a sanctions motion. (NYSCEF No. 37.) On Thursday, December 9, NYC Axis filed this cross-motion for summary judgment under CPLR 3212 and for sanctions under 22 NYCRR 130-1.1. (NYSCEF No. 39 [notice of cross-motion].) On December 16—less than two weeks after the motion was filed—Liberty Mutual withdrew the motion as against NYC Axis, conceding that seeking judgment against NYC Axis was an error. (NYSCEF No. 48.)

NYC Axis argues at length on reply that it should be awarded sanctions against Liberty [*3]Mutual anyway. (See NYSCEF No. 53 at 3-8.) This argument is groundless. Liberty Mutual did not, as NYC Axis asserts, act with “obstinacy” in “refus[ing] to withdraw its motion” (id. at ¶¶ 19, 25)—it merely did not withdraw the motion as rapidly as NYC Axis would have preferred. Additionally, given the timing, NYC Axis was not, as it suggests, “compelled . . . to seek judicial intervention to protect [its] client’s rights” against Liberty Mutual’s motion (id. at ¶ 14). Instead, NYC Axis chose to resort to motion practice only four business days after Liberty Mutual filed its default-judgment motion, and nearly three weeks before NYC Axis’s opposition papers would have been due. No basis for § 130-1.1 sanctions against Liberty Mutual exists on these facts.

B. The Branch of the Cross-Motion for Summary Judgment

NYC Axis also cross-moves for summary judgment on the merits, contending that it is entitled to payment on 10 bills for treatment (plus attorney fees) because Liberty Mutual did not timely deny them, and because the assertedly untimely denials were improper in any event.

The cross-motion is granted in part and denied in part. This court concludes that Liberty Mutual was required to pay or deny these 10 bills within 30 days of receiving the necessary verification. (See subsection II.B.1, infra.) Eight of the 10 bills were undisputedly denied. With respect to those eight bills, NYC Axis has not shown as a matter of law that the bills were untimely denied, or that the denials were substantively improper (See paragraph II.B.2.a, infra). With respect to the remaining two bills, NYC Axis has shown that Liberty Mutual failed to timely deny one of them, for $26.41. (See paragraph II.B.2.b, infra.) NYC Axis is thus entitled to summary judgment only on that one bill. It is not entitled to attorney fees as the prevailing party.

1. Whether Liberty Mutual’s denial of NYC Axis’s treatment bills was subject to the timeliness requirements of 11 NYCRR 65-3.8

NYC Axis argues that it is entitled as a matter of law to payment on the treatment bills it submitted to Liberty Mutual because those bills were not denied (or paid) within 30 days after Liberty Mutual received proof of NYC Axis’s claim, as required by 11 NYCRR 65-3.8 (a) and (c). The first issue this court must address, therefore, is whether the timeliness requirements of § 65-3.8 governed Liberty Mutual’s denial of these bills to begin with.

A no-fault insurer “that fails to deny a claim within the 30—day period is generally precluded from asserting a defense against payment of the claim.” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008] [internal quotation marks omitted].) A narrow but important exception to this preclusion rule exists where the ground for denying the claim (or the defense to a later claim for payment) is a lack of coverage: If “the insurance policy does not contemplate coverage in the first instance . . . requiring payment of a claim upon failure [*4]to timely disclaim” would improperly “create coverage where it never existed.”^[FN1] (Id. [internal quotation marks omitted].)

The ground for Liberty Mutual’s denial of NYC Axis’s claims is that Brutus, NYC Axis’s assignor, made material misrepresentations in his application for no-fault insurance. Such material misrepresentations ordinarily will “void[] the policy ab initio,” thereby retroactively eliminating coverage altogether. (Starr Indem., 190 AD3d at 442.) A different rule applies, however, in the specific context of automotive insurance, including no-fault.

In that context, Vehicle and Traffic Law (VTL) § 313 is understood to “supplant an insurance carrier’s common-law right to cancel a contract of insurance retroactively on the grounds of fraud or misrepresentation,” mandating instead “that the cancellation of a contract pursuant to its provisions may only be effected prospectively.” (Liberty Mut. Ins. Co. v McClellan, 127 AD2d 767, 769 [2d Dept 1987].) This rule derives from the principle that “compulsory automobile liability insurance is not the concern solely of the insured and . . . insurer,” but “exists also for the protection of the public.” (Id. at 769-770.) Preventing an auto insurer from retroactively canceling a policy “protects innocent third parties who may be injured due to the insured’s negligence” and might otherwise struggle to obtain compensation for their injuries—contrary to the core purpose of compulsory auto insurance. (Kaplun, 274 AD2d at 298.)

Courts applying this rule against rescission have stressed that the rule does not leave an auto insurer “without means of redress” should it conclude that a policy was fraudulently obtained. (Id.) An insurer may argue that “the insured’s misrepresentations and/or fraud in obtaining the policy precludes any recovery by the insured.” (Id. at 298-299.) For that matter, the insurer may raise the same argument with respect to a claim under the policy by an insured’s medical provider assignees, which stand in the insured’s shoes and “deal[] with the assignor-insured at [their] peril in accepting an assignment of the insured’s no-fault benefits.” (AB Med. Servs. PLLC v. Commercial Mut. Ins. Co., 12 Misc 3d 8, 11 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists]; accord Central Radiology Services v. Commerce Ins Co., 2011 NY Slip Op 50948[U], at *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists May 23, 2011] [holding that when the insurer established that the insured-assignor was ineligible for coverage for having misrepresented his state of residence in obtaining insurance, the provider-assignee, standing in the insured’s shoes, could not recover from the insurer either].)

That an insurer may raise the insured’s material misrepresentations as a ground for denying claims by the insured or the insured’s assignees presents the question whether the insurer may do so outside 30-day regulatory window for paying or denying the claims set by 11 NYCRR 65-3.8. This is permissible only if denying a claim on material-misrepresentation grounds—but without rescinding the policy outright—is, in substance, raising a lack-of-coverage defense to the claim, rendering untimely-denial preclusion inapplicable.

There are strong arguments that a material-misrepresentations denial should be treated as being based on a lack-of-coverage defense. In raising the insured’s material misrepresentations as a ground for denial, the insurer is contending that the insured (or its assignee) is claiming the benefit of coverage that the insured should not have at the price it paid. This is the same basic contention that underlies an insurer’s argument that it should be permitted to vitiate coverage by rescinding a policy as fraudulently obtained. True, particular policy considerations in the automotive-insurance context foreclose outright rescission. Those considerations, though, are particular to the interests of third parties (and the public at large); they do not affect the relationship between insurer and insured, nor the arguments against denying the insured the benefit of a fraudulently obtained policy.

Put differently, a material-misrepresentation defense is not based on a breach of a policy condition, does not challenge the validity of the claimed charges, and does not call into doubt the right of an assignee to bring the claim. Thus, without speaking in coverage-related terms, it is difficult to explain why the material-misrepresentation defense should defeat a claim for a non-excluded loss within the scope of the policy. (See Fair Price Med. Supply, 10 NY3d at 565 [explaining that the preclusion analysis “entails a judgment” whether “the defense [is] more like a ‘normal’ exception from coverage (e.g., a policy exclusion), or a lack of coverage in the first instance (i.e., a defense ‘implicating a coverage matter'”] [alteration omitted].^[FN2] )

Nonetheless, the Appellate Division, Second Department, has held, without elaborating, that an insurer is precluded from denying a claim on the basis of a material misrepresentation if the denial does not comply with the time limits set by 11 NYCRR 65-3.8. (See Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604-605 [2d Dept 2011].) Liberty Mutual has provided no contrary precedents of the Appellate Division, First Department, and this court’s research has not uncovered any. This court is therefore bound by the Second Department’s decision in GMAC Insurance Company Online. (See D’Alessandro v Carro, 123 AD3d 1, 6 [1st Dept 2014].) The timeliness requirements of § 65-3.8 apply to Liberty Mutual’s denial here of [*5]NYC Axis’s bills.

2. Whether Liberty Mutual timely and properly denied payment for NYC Axis’s treatment bills

Because the pay-or-deny deadlines of 11 NYCRR 65-3.8 apply here, this court must go on to determine whether Liberty Mutual met that deadline with respect to the 10 treatment bills at issue on NYC Axis’s cross-motion for summary judgment.

It is undisputed that eight of the 10 bills were denied by Liberty Mutual. NYC Axis argues that those eight denials were untimely. Liberty Mutual contends that the denials were timely, taking into account the tolling effect of Liberty Mutual’s verification requests to Brutus. This court agrees with Liberty Mutual about these bills. NYC Axis also argues that Liberty Mutual has not provided sufficient support for its proffered material-misrepresentation ground for denying the first eight bills. This court finds NYC Axis’s argument unpersuasive.

As for the two remaining bills, NYC Axis contends that those bills were never denied at all. Liberty Mutual argues both that they were denied, and that the denials were timely. This court agrees with Liberty Mutual about one of the bills, and with NYC Axis about the other.

a. The eight treatment bills that Liberty Mutual undisputedly denied

Title 11 NYCRR 65-3.8 (a) (1) provides that “[n]o-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to [11 NYCRR] 65-3.5.” Section 65-3.8 (c) provides that “[w]ithin 30 calendar days after proof of claim is received, the insurer shall either pay or deny the claim in whole or in part.” Timely verification requests may therefore toll the insurer’s deadline to pay or deny a treatment bill submitted by a medical-provider-assignee. (See Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 903-904 [2d Dept 2007].) For purposes of that deadline, a denial is deemed to have been made when mailed by the insurer, not when received by the provider. (See Westchester Med. Ctr. v A Cent. Ins. Co., 114 AD3d 937, 937 [2d Dept 2014].)

Liberty Mutual first asked Brutus for garaging-related verification information in the beginning of August 2019, and its verification efforts continued through October 2019—thereby encompassing the period in which NYC Axis submitted the bills at issue. (See NYSCEF No. 24 at 1 [EUO scheduling letters]; NYSCEF No. 57 at 1 [verification correspondence from Brutus to Liberty Mutual]; NYSCEF No. 40 at 11 [NYC Axis affirmation in support of cross-motion, charting all the relevant dates for each bill at issue.)

As a result, the question is whether Liberty Mutual’s verification requests to Party A (injured-assignor Brutus) between August and October 2019 tolled the time for it to pay or deny the bills submitted by Party B (provider-assignee NYC Axis) during that period. NYC Axis [*6]argues that verification requests to A may not toll the time to pay or deny B’s claims (see NYSCEF No. 40 at ¶¶ 38, 47); Liberty Mutual argues that they may do so (see NYSCEF No. 49 at ¶¶ 35-37). This court has not been provided with, and has not itself found, Appellate Division precedent discussing this particular question. Considering the matter for itself, this court agrees with Liberty Mutual.

Liberty Mutual’s verification requests to Brutus were aimed at uncovering whether he had materially misrepresented facts in his insurance application—a ground for denying Brutus’s claims that would apply equally to claims submitted by NYC Axis as Brutus’s assignee.^[FN3] (See Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2d Dept 2007] [explaining that because an “assignee stands in the shoes of an assignor . . . and thus acquires no greater rights than its assignor,” a lack-of-medical-necessity defense to a claim that may be raised by the insurer against the assignor is also available against provider assignees] [internal quotation marks omitted]; accord American States Ins. Co. v Huff 119 AD3d 478, 479 [1st Dept 2014] [same, in context of EUO-nonappearance defense].) Because Liberty Mutual’s verification requests to Brutus also related to whether Liberty Mutual could (or could not) deny NYC Axis’s claims, the requests tolled Liberty Mutual’s deadline to respond to NYC Axis’s claims under § 65-3.8. The alternative rule, under which Liberty Mutual would have to pay NYC Axis’s claims even as Liberty Mutual was formally seeking information that might support denial of those claims, makes little sense.

NYC Axis also argues that Liberty Mutuals’ pay-or-deny deadline for NYC Axis’s bills was not tolled by letters Liberty Mutual sent to NYC Axis advising that its decisions on those bills would be delayed due to the need to verify the claims. (See NYSCEF No. 40 at ¶¶ 36-39.) True, but irrelevant. The letters advising of Liberty Mutual’s verification efforts may not have tolled the time to pay or deny—but the verification efforts themselves did under § 65-3.8.

Liberty Mutual sent four verification requests to Brutus. The initial EUO request, sent on August 2, 2019, was made before Liberty Mutual received any bills for treatment, making it proper under Mapfre Ins. Co. of NY v Manoo (140 AD3d 468, 469 [1st Dept 2016]). (See NYSCEF No. 24 [EUO requests]; NYSCEF Nos. 25-26 [provider bills].) The EUO was adjourned, and a later EUO scheduled, by letter sent on August 13. (NYSCEF No. 24 at 12.) The EUO was held on September 5 (see NYSCEF No. 27 at 4 [EUO transcript]); and Liberty Mutual sent Brutus a post-EUO document request four days later on September 9. (See NYSCEF No. 28 at 1.) After Brutus failed to respond, Liberty Mutual sent a follow-up request within 40 calendar days of the initial document request, as required by 11 NYCRR 65-3.6 (b).

Liberty Mutual’s counsel has represented, in correspondence with the court (copied to all [*7]parties), that Liberty Mutual received Brutus’s response to the follow-up document request (dated October 23, 2019) on November 1, 2019. (NYSCEF No. 57 [document response]; NYSCEF No. 58 [representation about timing of receipt].) Liberty Mutual’s motion papers indicate (albeit without saying expressly) that it did not then request further supplementation from Brutus of that document response. (See NYSCEF No. 15 at ¶ 29 [affirmation in support of default judgment].) As a result, under 11 NYCRR 65-3.8 (a) (1) and (c), Liberty Mutual had 30 calendar days from November 1 to pay or deny NYC Axis’s claims. The 30th day of that period fell on a Sunday, so Liberty Mutual’s deadline to mail the denials was December 2, 2019. (See General Construction Law § 25-a.)

Liberty Mutual has not provided denial-by-denial proof of when it mailed each denial to NYC Axis. But as NYC Axis itself acknowledges, the denial letters are dated either November 21, 2019, or November 22, 2019—at least 10 days prior to the denial deadline. (See NYSCEF No. 40 at 11.) Liberty Mutual has also submitted a detailed affidavit of one of its claims managers, representing that Liberty Mutual’s mailing procedures ensure that claim-denial letters are mailed out no later than the next business day after the date on the letter. (See NYSCEF No. 33 at ¶¶ 7, 11-13.) If the denial letters here were mailed consistent with this procedure—and NYC Axis has not provided reason to believe otherwise—the denials were timely. At a minimum, on this record NYC Axis has not shown as a matter of law that the denials were untimely.

In the alternative, NYC Axis asserts that Liberty Mutual has not adequately supported the material-misrepresentation justification on which these denials relied. (See NYSCEF No. 40 at 13-14.) This assertion misconstrues the governing legal standard. NYC Axis is correct that Liberty Mutual’s showing (affidavits from an underwriter and an investigator) would be insufficient to establish materiality as a matter of law on a motion by Liberty Mutual for summary judgment. But Liberty Mutual has not moved for summary judgment—NYC Axis has. Liberty Mutual’s evidence is sufficient at least to raise a dispute of fact about materiality. (See Carpinone v Mutual of Omaha Ins. Co., 265 AD2d 752, 754 [3d Dept 1999] [explaining that the “materiality of an applicant’s misrepresentation is ordinarily a factual question unless the insurer proffers clear and substantially uncontradicted evidence concerning materiality”].)

b. The two treatment bills with disputed denials

The remaining two bills pertain to treatment rendered on July 8, 2019, and August 13, 2019. (See id.) NYC Axis asserts that Liberty Mutual never denied two bills. (See id.) Liberty Mutual contends that it sent denials of the bills (see NYSCEF No. 49 at ¶ 31), providing a supplemental affidavit from its claims manager to that effect. (See NYSCEF No. 52 at ¶¶ 8-10.)

A denial of the bill for the July 8 treatment does appear in the record, explaining that the bill was denied because a peer review concluded that the services billed for were not medically necessary. (See NYSCEF No. 30 at 266-275.) But this court has not found a denial of the bill for treatment on August 13 (or, for that matter, a delay letter pertaining to that bill) in Liberty Mutual’s voluminous motion papers. Therefore, NYC Axis is entitled to summary judgment [*8]solely with respect to the August 13 bill—a $26.41 invoice for a follow-up outpatient visit (NYSCEF No. 26 at 15-17).

NYC Axis contends that it should also be entitled to attorney fees incurred in defending this action. This court disagrees. To be sure, an insured that prevails in a declaratory-judgment coverage action brought against it by the insurer may recover attorney fees. (See U.S. Underwriters Ins. co. v City Club Hotel, LLC, 3 NY3d 592, 597-598 [2004].) And it is immaterial that NYC Axis is an assignee of the insured: As assignee NYC Axis stands in the shoes of the assignor.^[FN4] The court is not persuaded, though, that NYC Axis is, in fact, the prevailing party.

To be a prevailing party for attorney-fee purposes, one must “prevail on the central claims advanced, and receive substantial relief in consequence thereof.” (Sykes v RFD Third Ave. I Assoc., LLC, 39 AD3d 279, 279 [1st Dept 2007].) The dispute between Liberty Mutual and NYC Axis on this motion involves 10 bills. This court has concluded that NYC Axis is entitled to payment on only one of those 10—and for an amount, $26.41, that is a miniscule fraction of the total sum sought by NYC Axis. That is not substantial relief.

Accordingly, for the foregoing reasons it is

ORDERED that Liberty Mutual’s motion for default judgment against the nonappearing defendants named in the motion is granted, and Liberty Mutual is directed to settle order with respect to judgment against those defendants; and it is further

ORDERED that the branch of NYC Axis’s cross-motion seeking sanctions against Liberty Mutual is denied; and it is further

ORDERED that the branch of NYC Axis’s cross-motion seeking summary judgment on the question whether NYC Axis is entitled to payment on ten bills for treatment rendered to the alleged injured person, defendant Brutus, is granted only to the extent that this court declares that NYC Axis is entitled to payment from Liberty Mutual in the amount of $26.41 for treatment rendered to Brutus on August 13, 2019, and otherwise denied; and it is further

ORDERED that the branch of NYC Axis’s cross-motion seeking summary judgment on its claim for attorney fees arising from its defense of this action is denied.

8/16/2022

Footnotes

Footnote 1:In the Appellate Division, First Department, this exception is most frequently invoked with respect to claim-denials based on the alleged injured person’s having failed twice to appear for examinations under oath (EUOs) or independent medical examinations (IMEs). (See e.g. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011] [holding that an injured person’s “failure to appear for IMEs” properly requested “by the insurer . . . is a breach of a condition precedent to coverage under the no-fault policy, and therefore fits squarely within the [lack-of-coverage] exception to the preclusion doctrine”]; Allstate Ins. Co. v Pierre, 123 AD3d 618, 618 [1st Dept 2014] [same, with respect to EUOs].)

Footnote 2:Compare e.g. Bayshore Physical Therapy, 82 AD3d at 560 (holding that denial of a claim based on the injured person’s failure to appear for a properly requested IME is not subject to untimeliness preclusion because that failure breached a condition precedent to the injured person’s coverage under the policy), with Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192, 196-197 (4th Dept 2018) (holding instead that denial of a claim for failure to appear at an IME is subject to untimeliness preclusion because that failure breached only a condition precedent to payment under the policy for a covered loss, not a condition precedent to the existence of coverage itself).

Footnote 3:This scenario thus differs from one in which the verification sought by an insurer from Provider-Assignee C (information going, for example, to the validity of C’s billing for treatments it provided to Injured-Assignor A) would not affect whether Provider-Assignee D was entitled to payment for different treatments that D provided to A. In that circumstance, the insurer’s verification requests to C would not toll the insurer’s time to pay or deny D’s bills.

Footnote 4:Because Brutus, the injured assignor in this case, is the insured under the underlying no-fault policy, this case is not controlled by Fiduciary Ins. Co. of Am. v Medical Diagnostic Servs., P.C. (150 AD3d 498, 498-499 [1st Dept 2017]) and Hertz Vehs., LLC v Cepeda (156 AD3d 440, 441 [1st Dept 2017]). In those cases, the injured assignors were merely passengers in an insured vehicle, rather than being the insureds themselves. As a result, the insurers there did not owe the injured assignors (or their medical-provider assignees) a duty to defend—or a corollary duty under City Club Hotel to pay attorney fees arising from an unsuccessful declaratory-judgment coverage action brought by the insurers. Not so here.

[*1]

American Tr. Ins. Co. v Ferguson

2022 NY Slip Op 50757(U) [75 Misc 3d 1238(A)]

Decided on August 15, 2022

Supreme Court, New York County

Lebovits, J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 15, 2022

Supreme Court, New York County

American Transit Insurance Company, Plaintiff, against Nadine Ferguson, ALL CITY FAMILY HEALTHCARE CENTER, INC., ALPHA CHIROPRACTIC P.C., ASTORIA ORGANIX PHARMACY, INC., ATB SERVICES INC, BEACH MEDICAL REHABILITATION P.C., BIRCH MEDICAL & DIAGNOSTIC, P.C, BROOKLYN RADIOLOGY SERVICES, P.C., DOLPHIN FAMILY CHIROPRACTIC P.C., DR. SIMEON ISAACS, EXCELL CLINICAL LAB, INC., HEALTHWAY MED EQUIPMENT, HMP ORTHOPAEDICS, P.C., ISURPLY LLC, METRO PAIN SPECIALISTS P.C., MIDWOOD SURGICAL SUPPLIES, INC., MOLNAR MEDICAL SERVICES PC, NYC CARE CHIROPRACTIC P.C., NYC MADISON AVENUE MEDICAL P.C., NEW YORK PRESBYTERIAN HOSPITAL, OMEGA ACUPUNCTURE P.C., PARK SLOPE EMERGENCY PHYSICIAN SERVICE, P.C., PRC SUPPLIES INC., RGW CHIROPRACTIC DIAGNOSTICS P.C., SEDATION VACATION PERIOPERATIVE MEDICINE PLLC, SKY RADIOLOGY P.C., SPRUCE MEDICAL & DIAGNOSTIC, P.C., TIELING ACUPUNCTURE, P.C., TRANQUILITY PHYSICAL THERAPY & ACUPUNCTURE PLLC, TRUE HEALTH PHARMACY INC., UNICAST, INC, WELLNESS PHYSICAL THERAPY P.C., and YBD UNIVERSAL CORP, Defendants.

Index No. 157406/2021

Law Office of Daniel J. Tucker, Brooklyn, NY (Fotini Lambrianidis of counsel), for plaintiff.

No appearance for defendants.

Gerald Lebovits, J.

In this no-fault-insurance coverage action, plaintiff American Transit Insurance Company moves without opposition for default judgment against the alleged injured person, defendant Nadine Ferguson, and a number of Ferguson’s medical-provider assignees who have not appeared in this action. The motion is denied.

The information provided in American Transit’s motion papers does not establish that it satisfied the timeliness requirements of the applicable no-fault regulations, as required to obtain default or summary judgment. (See American Tr. Ins. Co. v Alcantara, 203 AD3d 535, 536 [1st Dept. 2022].) Ferguson’s counsel notified American Transit of the underlying collision in March 2019 (see NYSCEF No. 16 at 5); and the record suggests that Ferguson also submitted an NF-2 benefits application to American Transit in April 2019 (see id. at 1). American Transit sent Ferguson requests to appear for an independent medical examination (IME) on August 26, 2019, and September 11, 2019. (See NYSCEF No. 18 [scheduling letters]; NYSCEF No. 14 at 4-10 [affidavits attesting to generation and transmittal of scheduling letters].) But American Transit has not established when the IME requests were sent relative to American Transit’s receipt of NF-3 verification forms from Ferguson’s medical providers.

The only NF-3 form appearing in the record reflects that it was received by American Transit on November 13, 2019 (NYSCEF No. 19)—a month after the date on American Transit’s denial of claim (see NYSCEF No. 17). Nor has American Transit provided a basis to conclude that it requested Ferguson’s IME before it had received any NF-3 forms in the first place, as would be required to exempt the request from the applicable regulatory timeliness requirements. (See Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 469 [1st Dept 2016].)

In short, American Transit has not demonstrated that it asked Ferguson to appear for an IME before receiving any verification forms from one of her medical providers; or that it requested Ferguson’s IME within 15 days after receiving a verification form as required under 11 NYCRR 65-3.5(b). For the same reason, American Transit has not established that the requested IME was scheduled to be held within 30 calendar days from the receipt of the prescribed verification forms, as required under 11 NYCRR 65-3.5(d). (See Alcantara, 203 AD3d at 536.)

Accordingly, it is

ORDERED that American Transit’s motion for default judgment is denied; and it is further

ORDERED that if American Transit does not file a renewed motion for default judgment against the defaulting defendants within 30 days of entry of this order, the action will be dismissed as against those defendants.

DATE 8/15/2022

American Transit Insurance Company, Petitioner, against Mark S. McMahon MD, P.C. A/A/O RUBIN GOMEZ, Respondent.

Index No. CV-009422-20/NY

Peter C. Merani, P.C. (Adam Waknine, of counsel), New York City, for petitioner.

Samandarov & Associates, P.C. (David M. Gottlieb, of counsel), New York City, for respondent.

Richard Tsai, J.

In this special proceeding arising out of a no-fault arbitration, petitioner American Transit Insurance Company (ATIC) seeks to vacate the determination of a master arbitrator affirming the award of a no-fault arbitrator, which awarded respondent first-party no-fault benefits (Motion Seq. No. 001). Respondent Mark S. McMahon MD, P.C. a/a/o Rubin Gomez opposes the petition and seeks attorney’s fees incurred in opposing the petition.

BACKGROUND

Respondent Mark S. McMahon MD, P.C is the assignee of claims for no-fault benefits for arthroscopic surgery performed on the right knee of Rubin Gomez on October 31, 2017 , for injuries allegedly arising out of an automobile accident on June 3, 2017 (see petitioner’s exhibit B, NF-10 form and Explanation of Benefits). ATIC denied the claims on the ground that the [*2]surgery and surgically related services to the right knew were not causally related to the accident, based on a peer review, and “no medical necessity and no causal relationship between the accident and the shoulder surgery of 10/31/17” (see id.). Respondent then submitted the claims to no-fault arbitration (see petitioner’s exhibit D, no-fault arbitration request).

A no-fault arbitration hearing of respondent’s claims was held before the American Arbitration Association on January 8, 2020 (see petitioner’s exhibit A, no-fault arbitrator award).

Arbitrator Marcie Glasser ruled in favor of respondent, finding that “Claimant had a causally-related ongoing knee injury for which surgery was medically necessary under the circumstances” (see id. at 5). The no-fault arbitration award dated January 14, 2020 states, in relevant part:

“With regard to medical necessity defense, I find that [ATIC]’s Peer Review Report is sufficient to meet its burden of proof and to rebut [respondent]’s evidence. Thereafter, the burden shifts back to [respondent] to present competent medical proof as to the medical necessity for the knee arthroscopy, by a preponderance of the credible evidence. . . . Ultimately, the burden of proof rests with the [respondent].

* * *

I find that this burden as to medical necessity has been met by [respondent]’s medical records, the Rebuttal Report, Letter of Medical Necessity of Dr. McMahon, and the evidence collectively. I am convinced that the Claimant attempted an ample course of non-operative conservative treatment measures including physical therapy under the circumstances, and the decision to perform arthroscopic knee surgery was reasonable to repair the meniscus tear. Moreover, this finding is supported by the fact that the credibility of the Peer Review Report is diminished as it is found to be conclusory in nature, and because Dr. Skolnick primarily relied upon the independent radiology report of Dr. Fitzpatrick which bears minimal weight in this determination. The treating radiologist and the treating orthopedist both reviewed the MRI which showed a tear of the posterior horn of the medial meniscus. The Rebuttal Report appropriately addressed the issues of the Peer Review Report. The orthopedic surgeon, Dr. McMahon, based on his professional experience, examination and treatment of the Claimant determined that the surgery for the meniscus tear was in accordance with the standard of care. I find that the Claimant had a causally-related ongoing knee injury for which surgery was medically necessary under the circumstances”

(petitioner’s exhibit A, no-fault arbitrator award at 4-5). On the issue of lack of causation, the award states, in relevant part:

“I find that Respondent has not adequately demonstrated lack of causation, and therefore, the defense cannot be sustained. The Peer Review Report of Dr. Skolnick is found to be conclusory with regard to the issue of causation. Moreover, Dr. Skolnick relied on the Independent Radiology Evaluation of Dr. Fitzpatrick, which states that the MRI findings, specifically the cartilage thinning, are degenerative in nature, but the Independent Radiology Evaluation, was not specific as to the tear in relation to the thinning cartilage. In the Addendum, Dr. Skolnick stated that he agrees with the treating radiologist’s report that the MRI showed a tear of the meniscus; however, according to the independent radiology review of Dr. Fitzpatrick, there was no evidence of traumatic injury. I find that [*3]Dr. Skolnick’s determination that the MRI showed no traumatic injury is without appropriate reliance on the independent radiology review of Dr. Fitzpatrick. The Peer Reviewer himself interpreted the MRI as showing a meniscus tear, which is in accordance with the interpretation of the MRI by the treating orthopedist and the treating radiologist. The independent radiologist did not state with specificity that the meniscus tear is degenerative in nature and there is a lack of support for the opinion that the injury is not causally related to the accident. I find that the reliance on the Independent Radiology Review is misplaced, and Dr. Skolnick’s finding of lack of causation is conclusory”

(id. at 5).

The arbitrator also awarded interest from the date of 1/21/2019, and attorney’s fees in the amount “in accordance with newly promulgate 11 NYCRR 65-4.6(d) on the amount awarded of $4,702.03 at a rate of 2% per month, simple and ending with the date of payment of the Award” (id. at 7). The arbitrator also directed ATIC to pay respondent $40 for reimbursement of the fee paid to the Designated Organization, unless the fee was previously returned pursuant to an earlier award (id.).

On appeal, Master Arbitrator Robert Trestman affirmed the original arbitrator’s award in its entirety. The master arbitration award, dated March 24, 2020 states, in relevant part:

“I have carefully reviewed the parties’ briefs, the record on appeal, as presented by respondent and the pertinent case law, including the two cases hereinabove cited by respondent. The arbitrator’s detailed findings and conclusions as to the medical necessity and causal relationship issues were within the arbitrator’s sound discretion and rational interpretation of the evidence and which I do not find to be reversible error within my purview as a Master Arbitrator. . . . Within my powers as a Master Arbitrator, I cannot conduct a de novo review of the case and I cannot substitute my interpretation or my view as to the weight or credibility of the evidence over that of the lower arbitrator, especially as the arbitrator’s decision appears to be rational and based on the evidentiary record”

(petitioner’s exhibit A, master arbitration award, at 2-3).

The master arbitrator also awarded $195 to the applicant for attorney’s fees for having prevailed in the master arbitrator’s review of the award (see id. at 5).

On July 29, 2020, ATIC commenced this proceeding pursuant to CPLR 7511 to vacate the master arbitrator’s award.

DISCUSSION

“Judicial review of a master arbitrator’s award is restricted, by the terms of the statute, to the grounds for review set forth in article seventy-five of the CPLR” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981] [internal quotation marks omitted]; Insurance Law § 5106 [c]). Pursuant to CPLR 7511 (b), an arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeding his, her, or their power or imperfectly executed it that a final or definite award was not made; or (4) the failure to follow [*4]the procedures of CPLR article 75. Additionally,

“[w]here, as here, there is compulsory arbitration involving no-fault insurance, the standard of review is whether the award is supported by evidence or other basis in reason. This standard has been interpreted to mean that the relevant test is whether the evidence is sufficient, as a matter of law, to support the determination of the arbitrator, [and whether the determination] is rational and is not arbitrary and capricious”

(Matter of Miller v Elrac, LLC, 170 AD3d 436, 436-37 [1st Dept 2019], lv denied 33 NY3d 907 [2019], citing Matter of Petrofsky, 54 NY2d at 211).

According to ATIC, the arbitrators ignored explicit evidence that ATIC had submitted, failed to apply the proper evidentiary burdens, and rendered an award that was not final and definite that was prejudicial to petitioner (affirmation of petitioner’s counsel ¶ 62). Citing the standards applicable to an insurer’s motion for summary judgment on the ground of medical necessity, ATIC contends that, once it offered it peer review report of Dr. Skolnick, the burden should have shifted to respondent to rebut with evidence establishing that the services were medically necessary (see id. ¶¶ 21-23). ATIC contends that respondent failed to meet its burden because “Respondent offered no significant rebuttal to actually rebut the findings of Dr. Skolnick” (id. ¶ 34).

ATIC argues, “Dr. Skolnick submitted an addendum dated 3/7/19. In it, Dr. Skolnick directly addressed Dr. McMahon’s general statements concerning an alleged tear in the knee necessitating the surgery. Dr. Skolnick stated there was no right knee fracture or dislocation” (id. ¶ 31). According to ATIC, “[t]he no-fault arbitrator exceeded his bestowed powers as there was no basis simply to cast aside the entirety of petitioner’s evidence” (id. ¶ 38).

Respondent maintains that “ATIC’s evidence was not cast aside. It was carefully reviewed and found to be insufficient, in light of the facts and Respondent’s rebuttal (affirmation in opposition of respondent’s counsel ¶ 11). Respondent contends that petitioner’s disagreement with the arbitrator’s findings of fact is not a basis to vacate the award (id.). Respondent further argues, “Applicant was not required to prove that the motor vehicle [sic] exacerbated a pre-existing condition. That was ATIC’s burden if ATIC wanted to prove that the injury was not caused by the accident. . . .it is well-settled that exacerbation of a preexisting condition is compensable under no-fault.”

In reply, ATIC argues that the issue of causality was never considered (reply affirmation of petitioner’s counsel ¶ 7). ATIC submits that “the arbitrator failed to apply the rules in connection to a lack of causation defense” (id.. ¶ 10). According to ATIC, “lack of causation does not require a citation to medical rationales as to whether or not certain types of treatment should be administered. The causation issue is not whether or not a doctor should administer treatment” (id. ¶ 11). ATIC maintains, “the peer review doctor is not required to cite any medical authorization as to support his conclusion for lack of causation as the issue is not one regarding lack of medical necessity. The arbitrator confused the proof required with that of prima facie proof for a lack of medical necessity defense” (id. ¶ 17).

The court agrees with respondent.

“The master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator” (Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577 [2d Dept 2002]). Where error of law is at issue, the [*5]test is “whether any reasonable hypothesis can be found to support the questioned interpretation. Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]); accord Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533 [2d Dept 1996]).

Here, ATIC fails to establish that the no-fault arbitrator’s award was so irrational as to require vacatur. First, the burden of proof applicable at trial involving medical necessity and an insurer’s burden on a motion for summary judgment are not described in the same terms.

“In a no-fault trial dealing with a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form; however, it is the plaintiff [provider] who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary”

(Radiology Today, P.C. v Geico Ins. Co., 58 Misc 3d 132[A], 2017 NY Slip Op 51768[U] n 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Here, it is abundantly apparent that the no-fault arbitrator ruled that respondent had met its ultimate burden of demonstrating that the services at issue were medically necessary by a preponderance of the evidence (see petitioner’s exhibit A, no-fault arbitrator award, at 5).

The no-fault arbitrator also found that “[ATIC] has not adequately demonstrated lack of causation” (no-fault arbitrator award, at 5). The no-fault arbitrator thoroughly considered the evidence. A reasonable hypothesis can be found to support this interpretation. Insofar as there was no dispute that respondent had established its prima facie case, ATIC “had the burden to proffer evidence in admissible form demonstrating that the assignor’s alleged injuries were not causally related to the accident” (A & A Dental, P.C. v State Farm Ins. Co., 19 Misc 3d 135[A], 2008 NY Slip Op 50709[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

The no-fault arbitrator rejected as conclusory the Peer Review Report of Dr. Skolnick with regard to the issue of causation. It would appear that the no-fault arbitrator concluded that the tear was caused by trauma, given that “the independent radiologist did not state with specificity that the meniscus tear is degenerative in nature” (see petitioner’s exhibit A, no-fault arbitrator award, at 5). ATIC essentially argues that the no-fault arbitrator should not have found that the tear was caused by trauma because Dr. Skolnick stated in his Addendum that there was no evidence of a fracture or dislocation. However, the no-fault arbitrator’s finding that ATIC did not meet its burden that the surgery was not causally related to the accident is consistent with the no-fault arbitrator’s credibility determinations about Dr. Skolnick and Dr. Fitzpatrick.

Contrary to ATIC’s argument, there is no basis to conclude that the arbitrator made a mistake of law by ignoring ATIC’s evidence that services rendered Rubin Gomez were not medically necessary; the arbitrator simply made a factual determination that they were medically necessary (Miller, 170 AD3d at 437). ATIC argues, in essence, that the arbitrator’s determination was an error of law because the arbitrator did not resolve issues of credibility in ATIC’s favor. “However, where, as here, the evidence is conflicting and room for choice exists, this Court may not weigh the evidence or reject the choice made by the arbitrator” (Matter of Powell v Bd. of Educ. of Westbury Union Free School Dist., 91 AD3d 955, 955-56 [2d Dept 2012]). “Obviously, if a court cannot ‘weigh’ the evidence, it cannot weigh credibility, which in [*6]the end is simply a component of that evidence” (Matter of McMahan & Co. [Dunn Newfund I], 230 AD2d 1, 5 [1st Dept 1997]).

The fact that the no-fault arbitrator accepted respondent’s affirmed rebuttal letter over Dr. Skolnick’s peer review report and Addendum presented an issue of Dr. Skolnick’s credibility for the factfinder to resolve. These are not errors of law, notwithstanding that the ATIC’s peer review report and other evidence in the record might support a contrary result. The no-fault arbitrator credited the written testimony of respondent’s physician over that of ATIC’s peer reviewer.

To the extent that ATIC argues that the award “went against the entire weight of the unrebutted evidence” (see petition ¶ 38),

“[a] master arbitrator’s powers of review do not encompass such a review of the facts, nor do they authorize him to determine the weight of the evidence. This is not to say that in making his determinations as to whether the arbitrator’s determination is correct, that the master arbitrator will conduct no review of the facts; rather, it means his review in this respect is limited to whether or not the evidence is sufficient, as a matter of law, to support the determination of the arbitrator”

(Matter of Petrofsky, 54 NY2d at 212). “[T]he master arbitrator is without power to vacate an award based upon a de novo review of the evidence” (Matter of Smith v Firemen’s Ins. Co., 55 NY2d 224, 232 [1982]).

Here, the master arbitrator correctly determined that the evidence was sufficient, as a matter of law, to support the original arbitration’s determination (see State Farm Mut. Auto. Ins. Co. v Stack, 55 AD3d 594, 595 [2d Dept 2008] [testimony of expert witness, who based his opinion upon his examination of defendant and his review of defendant’s relevant medical records, including, inter alia, CT scans and MRIs, was sufficient to establish that defendant’s condition was causally related to the accident]; cf. Advanced Orthopedics, PLLC v GEICO, 63 Misc 3d 136[A], 2019 NY Slip Op 50500[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [record supported the dismissal of complaint because Civil Court found defendant’s expert witness credibly testified that the surgery was not causally related to accident in question]). Thus, the master arbitrator did not exceed his/their powers.

ATIC’s argument that the award was not final or definite is without merit. “An award is deficient in this regard and subject to vacatur only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy” (Matter of Meisels v Uhr, 79 NY2d 526, 536 [1992]). Here, the no-fault arbitration award determined ATIC’s and [respondent]’s rights and obligations, resolved the claims submitted to arbitration, and did not create any new controversies.^[FN1]

Therefore, ATIC’s petition to vacate the master arbitrator’s award is denied.

CPLR 7511(e) mandates confirmation of the award upon denial of an application to [*7]vacate or modify the award (Blumenkopf v Proskauer Rose LLP, 95 AD3d 647, 648 [1st Dept 2012]). Therefore, the award is confirmed.

The no-fault arbitrator awarded respondent the amount of $4,702.03, with interest from 1/21/2019, plus attorney’s fees (petitioner’s exhibit A, no-fault arbitrator award at 6-7). Interest on overdue payments is fixed by regulation at the rate of 2 per cent per month (11 NYCRR 65-3.9 [a]). The total amount of interest due on $4,702.03 from 1/21/2019 until 1/14/2020 (the date of the award) is $1,106.86(2% x $4,702.03 x 11 months 24 days). The amount of attorney’s fees awarded by the no-fault arbitrator is therefore $1,161.78(20% x [$4,702.03 + $1,106.86) (11 NYCRR 65-4.6 [d]).

In addition, the master arbitrator awarded $195 in legal fees for the master arbitration (see petitioner’s exhibit A, master arbitrator award).

Respondent is also entitled to recover costs of the proceeding in the amount of $50.00, for the amount of the judgment is more than $6,000, and no notice of trial has been filed (CPLR 8101; NY City Civ Ct Act § 1901 [a], [b] [1]).

Citing 11 NYCRR 65-4.10 (j) (4), respondent also requests that the court award attorney’s fees in the amount of $1,000, for 2.5 hours (calculated at a rate of $400 per hour) spent to oppose the petition (see affirmation in opposition of respondent’s counsel ¶ 19).

ATIC opposes the request, claiming that $400.00 is a “marquee rate for private litigation” (reply affirmation of petitioner’s counsel ¶ 24). ATIC argues that the hourly rate for attorney’s fees should not exceed the hourly rates of attorney’s fees for a master arbitration, which are capped at $65.00 an hour, and $650.00 in total (id. ¶¶ 24-27).

Respondent correctly indicates that it is entitled to recovery attorney’s fees incurred in the Article 75 proceeding. If a valid claim for first-party no-fault benefits is overdue, the claimant is entitled to recover reasonable attorney’s fees for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations (Insurance Law § 5106 [a]). No-fault regulations provide that “[t]he attorney’s fee for services rendered … in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR § 65-4.10[j][4] ). “The term ‘court appeal’ applies to a proceeding taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award (Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414 [1st Dept 2020]).

ATIC’s argument raises a threshold issue of whether there any regulatory limits on amount of attorney’s fees incurred in connection with Article 75 proceeding to vacate or confirm a master arbitration award.

As ATIC points out, the no-fault regulations limit the amount of attorney’s fees recoverable for services rendered in connection with the master arbitration itself. For example, for preparatory services, the attorney is entitled to “a fee of up to $65 per hour, subject to a maximum fee of $650,” and “a fee of up to $80 per hour for oral argument before the master arbitrator” (see 11 NYCRR 65-4.10 [j] [2] [i], [ii]). For disputes subject to arbitration or court proceedings involving a “policy issue,” the no-fault regulations also limit the attorney’s fee for the arbitration or litigation of all issues to “a fee of up to $70 per hour, subject to a maximum fee of $1,400” (11 NYCRR 65-4.6 [c]; see Kamara Supplies v GEICO Gen. Ins. Co., 67 Misc 3d [*8]129[A], 2020 NY Slip Op 50414[U] [App Term, 1st Dept 2020]). ^[FN2]

However, there do not appear to be any no-fault regulations limiting the amount of attorney’s fees recoverable for services rendered in a proceeding taken pursuant to Article 75 of the CPLR to vacate or confirm a master arbitration award (see e.g. Matter of Hempstead Gen. Hosp. v Natl. Grange Mut. Ins. Co., 179 AD2d 645, 646 [2d Dept 1992]).

In Matter of Hempstead General Hospital, the Appellate Division, Second Department implicitly endorsed the calculation of the attorney’s fees upon a reasonable hourly rate without any limitations, for services rendered in a proceeding to vacate or confirm a master arbitration award. There, the Supreme Court had determined that petitioner was entitled to counsel fees in vacating a master arbitration award, and that the petitioner’s counsel’s work was worth $175 per hour, for a total of $7,000 (179 AD2d at 646). However, the Supreme Court reduced the award to $756, on the ground that it would only award a fee on that portion of the work performed directly on behalf of the client (id.). On appeal, the Appellate Division, Second Department, modified the Supreme Court’s order to increase the award of counsel fees to the full amount of $7,000 (id.).

The court finds that the time that respondent’s counsel spent on this Article 75 proceeding and the hourly rate were reasonable. Accordingly, respondent is awarded $1,000.00 in attorney’s fees for services rendered in opposing the petition.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED and ADJUDGED and the petition to vacate the arbitration award (Motion Seq. No. 001) is DENIED, and it is further

ADJUDGED that the award of the master arbitrator Robert Trestman, dated March 24, 2020 rendered in favor of respondent Mark S. McMahon MD P.C. a/a/o Rubin Gomez against petitioner American Transit Insurance Company, affirming the award of the no-fault arbitrator Marice Glasser issued on January 14, 2020 is confirmed; and it is further

ADJUDGED that respondent Mark S. McMahon MD P.C. a/a/o Rubin Gomez, having an address at 876 Park Avenue, New York, NY 10075, do recover from petitioner American Transit Insurance Company, having an address at 5 Broadway, Freeport, New York 11520, the amount of $4,702.03, plus interest at the rate of 2% per month from the date of 1/21/2019 until 1/14/2020, in the amount of $1,106.86, plus attorney’s fees in the amount $1,161.78, plus $40.00 as reimbursement for a fee previously paid by respondent, plus attorney’s fees incurred in the master arbitration in the amount of $195.00, plus attorney’s fees incurred in this proceeding in the amount of $1,000.00, together with costs of this proceeding in the amount of $50.00, for the [*9]total amount of $8,255.67, and that the respondent have execution therefor.

This constitutes the decision, order, and judgment of the court.

Dated: August 5, 2022
New York, New York
ENTER:

____________/s/__________________
RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1: Although not raised by petitioner, the court notes that the fact that the no-fault arbitration award did not specify an exact amount of interest or attorney’s fees awarded does not render the award indefinite, because the amounts may be ascertained through computation of simple arithmetic (see Matter of Hunter [Proser], 274 AD 311, 312 [1st Dept 1948], affd 298 NY 828 [1949]).

Footnote 2: “‘[P]olicy issues’ enumerated on the denial of claim form at bar are clearly limited to include only: (1) the policy was not in force on the date of the accident (box 3); (2) the injured person is excluded under policy conditions or exclusion (box 4); (3) the policy conditions were violated, which is limited to two categories involving late submission of a notice of claim (box 5); (4) the injured person is not an eligible injured person (box 6); (5) and the injuries did not arise out of use or operation of a motor vehicle (box 7)” (Kamara Supplies, 67 Misc 3d 129[A], 2020 NY Slip Op 50414[U], *1).

ATIC does not contend that the arbitration involved a “policy issue.” No “policy issues” were checked off as reasons for denial on the denial of claim form (see petitioner’s exhibit B).

Unitrin Safeguard Insurance Company, Plaintiff, against Advanced Recovery Solution, Inc., ALLURE RECOVERY, INC., AMSC, LLC, ARIS DIAGNOSTIC, PLLC, ATLAS PHARMACY, LLC, EASTGENE LABORATORY, INC., ENGLINTON MEDICAL, P.C., EXCELL CLINICAL LAB, INC., GREATER HEALTH THROUGH CHIRO, P.C., HEALTHY RX, INC., ICONIC WELLNESS SURGICAL SERVICES, LLC, ISLAND AMBULATORY SURGERY CENTER, LLC, JSJ ANESTHESIA AND PAIN MANAGEMENT, PLLC, LENCO DIAGNOSTIC LABORATORY, LOMIS ACUPUNCTURE, P.C., MK DME, INC., MIDDLE VILLAGE DIAGNOSTIC IMAGING, NOAM KURTIS, M.D., PHOENIX MEDICAL SERVICES, PROTECHMED, INC, QUALITY ORTHO COMPLETE JOINT CARE, P.C., DR. SHIARREE S. EVARISTO, THOMPSON MEDICAL, P.C., TOPLAB, UNICAST, INC., OSCAR GALEAS, MILTON PARRA, JAIRO RUALES, and DANIEL ESPINOZA, Defendants.

Index No. 160339/2020

Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber and Lindsay A. Padover of counsel), for plaintiff.

Samandarov & Associates, P.C., Floral Park, NY (David M. Gottlieb of counsel), for defendant Quality Ortho Complete Joint Care, P.C.

Gerald Lebovits, J.

In this no-fault insurance coverage action, plaintiff, Unitrin Safeguard Insurance Company, moves for default judgment under CPLR 3215 against no-fault claimants Oscar Galeas and Jairo Ruales. Unitrin also moves for default judgment against a number of medical providers who are benefits assignees of Galeas and Ruales (or assignees of two other defendants, no-fault claimants Milton Parra and Daniel Espinoza).^[FN1] Answering defendant Quality Ortho Complete Joint Care, P.C., cross-moves to dismiss under CPLR 3215 (c) and CPLR 3211 (a) (4).

Unitrin’s motion for default judgment is granted without opposition. Quality Ortho’s cross-motion to dismiss Unitrin’s claims against it is granted only to the extent of directing consolidation of this action with the parallel action brought by Unitrin against Quality Ortho.

With respect to Unitrin’s default-judgment motion, Unitrin has sufficiently established service on the defendants that are the subject of its motion, and those defendants’ defaults. And the affidavit of Unitrin’s no-fault claims representative (as supported by the accompanying police report) shows that Unitrin had a founded belief that the claimants’ injuries (and ensuing benefits claims for medical treatment) did not arise from a covered collision. (See NYSCEF Nos. 52-53.) Unitrin is therefore entitled to default judgment against these defendants.

Quality Ortho’s cross-motion to dismiss is based on two independent grounds. Quality Ortho contends first that Unitrin’s action must be dismissed as against it under CPLR 3215 (c) because Unitrin failed to take proceedings for the entry of default judgment against other defendants within one year of those defendants’ defaults. But it is undisputed that Quality Ortho timely answered.^[FN2] This court sees no basis on which Quality Ortho—as opposed to a different, defaulting defendant—may even seek dismissal under CPLR 3215 of Unitrin’s claims against it.^[FN3] Nor does Quality Ortho supply any authority for the proposition that a plaintiff’s failure to seek default judgment within a year against a defaulting defendant requires dismissal of the plaintiff’s claims as against a different, answering defendant. In any event, this court concludes that given the numerous defendants in the action, Unitrin’s active prosecution of its claims against some of the defendants, and its active settlement negotiations with other defendants, Unitrin has established good cause for its brief delay in bringing this motion for default judgment. (See NYSCEF No. 51 at &para 32.) The court declines to dismiss Unitrin’s claims against Quality Ortho on this ground.

Quality Ortho also argues that Unitrin’s claims against it must be dismissed under CPLR 3211 (a) (4). Quality Ortho contends that Unitrin’s claims here impermissibly duplicate claims asserted in a de novo challenge to an arbitration award, also pending in Supreme Court, New [*2]York County.^[FN4] This court is unpersuaded that Unitrin’s claims against Quality Ortho in this action should be dismissed. Unitrin filed this action 10 months before the parallel de novo action, seeking broader relief against more parties; and this action has progressed materially farther (including through the assignment of the undersigned pursuant to Unitrin’s RJI). Dismissal of Unitrin’s claims against Quality Ortho here would be inappropriate under the first-in-time rule that generally governs motions to dismiss under CPLR 311 (a) (4).^[FN5] (See National Union Fire Ins. Co. of Pittsburgh, Pa. v Jordache Enters., 205 AD2d 341, 343 [1st Dept 1994].)

At the same time, it is undisputed that the two actions each feature Unitrin as the plaintiff and Quality Ortho as a defendant and involve closely overlapping questions of fact and law, such that leaving the two actions to run along separate, parallel tracks could lead to needless duplication of judicial effort and inconsistent results. This court holds that the de novo action, Index No. 158403/2021, should be consolidated into this action under CPLR 3211 (a) (4) and CPLR 602.^[FN6]

Settle Order.

DATE 6/17/2022

Footnotes

Footnote 1:Unitrin represents that defendants Parra and Espinoza have not yet been located for purposes of service. (See NYSCEF No. 51 at 2 n 1.)

Footnote 2:Indeed, Unitrin acknowledges this timely answer in explaining why its motion does not seek default judgment against Quality Ortho. (See NYSCEF No. 51 at 2 n 1.)

Footnote 3:To be clear, Quality Ortho may, under the language of CPLR 2215, cross-move against Unitrin although it was not a subject of Unitrin’s initial motion. This court holds only that Quality Ortho may not cross-move to dismiss under CPLR 3215 (c) when it did not default.

Footnote 4:See Unitrin Safeguard Insurance Company v Quality Orthopedics & Complete Joint Care, PC, Index No. 158403/2021 (Sup Ct, NY County).

Footnote 5:Quality Ortho has not moved to dismiss under CPLR 3211 (a) (4) in the parallel de novo action.

Footnote 6:This court may properly order consolidation sua sponte in the exercise of its authority under CPLR 3211 (a) (4) to “make such order as justice requires.” Thus, for example, in John J. Campagna, Jr., Inc. v Dune Alpin Farm Assocs. (81 AD2d 633, 634 [2d Dept 1981]), the Appellate Division, Second Department held that the motion court properly applied the first-in-time rule in denying dismissal under CPLR 3211 (a) (4). But the Second Department went on to hold that “to best serve the interests of judicial economy while still preserving the rights of the parties, the [motion] court should have sua sponte ordered consolidation of these actions,” and itself directed consolidation on appeal. (Id.)

American Transit Insurance Company, Plaintiff, against Jose A Marte Lopez, AMERICAN ACUPUNCTURE PC, CLASSIC MEDICAL DIAG REHAB PC, COLUMBUS IMAGING CENTER LLC, EDWARD RASKIN LAC, LONGEVITY MEDICAL SUPPLY INC, LUMINARY ACUPUNCTURE PC, METRO PAIN SPECIALISTS PC, NILE REHAB PHYSICAL THERAPY PC, SCARBOROUGH CHIROPRACTIC PC, SONO RX INC, and VITRUVIAN REHAB PT PC, Defendants.

Index No. 652582/2019

Larkin Farrell LLC, New York, NY (William Larkin of counsel), for plaintiff.

The Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Columbus Imaging Center, LLC and Metro Pain Specialists, P.C.

Gerald Lebovits, J.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85 were read on this motion for SUMMARY JUDGMENT.

This motion concerns the potential obligation to pay no-fault insurance benefits of plaintiff American Transit Insurance Company. Defendant Jose Marte Lopez was in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by American Transit. Lopez assigned the right to collect no-fault benefits under that policy to [*2]various treating medical providers. American Transit denied those providers’ applications for no-fault benefits.

American Transit brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Lopez or to Lopez’s medical-provider assignees (the other defendants here). Lopez and a number of the medical-provider defendants did not appear. This court previously granted default judgment against those defendants, without opposition, on March 25, 2021. (See NYSCEF No. 60 [granting motion and directing American Transit to settle order]; NYSCEF No. 64 [granting judgment].) American Transit now moves for summary judgment against the remaining answering defendants.^[FN1] The motion is denied.

American Transit premises its claim for declaratory judgment on Lopez’s failure twice to appear for independent medical examinations (IMEs) scheduled under the terms of the underlying no-fault insurance policy. But a no-fault insurer seeking a declaration of no coverage due to the claimant’s failure to appear for an IME required under the no-fault policy must first demonstrate that it complied with the procedural and timeliness requirements of 11 NYCRR § 65-3.5, governing the handling of no-fault claims. (See American Transit Ins. Co. v. Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) If an insurer receives NF-3 verification forms from treating providers and then wishes to request additional verification of the no-fault claim in the form of an IME, that IME must be (i) requested within 15 business days of the receipt of an NF-3 form, and (ii) scheduled to be held within 30 calendar days of receipt of the NF-3 form. (See 11 NYCRR 65-3.5 [b], [d]; American Transit Ins. Co. v Acosta, 2022 NY Slip Op 01097 [1st Dept Feb. 17, 2022].)

American Transit has concededly not provided copies of NF-3 verification forms submitted by the remaining medical-provider defendants.^[FN2] American Transit therefore cannot show that it timely requested the IME at issue—as needed to obtain its requested declaratory judgment. (See Acosta, 2022 NY Slip Op 01097, at *1 [reversing grant of summary judgment to American Transit; accord American Transit v Alcantara, 2022 NY Slip Op 01871, at *1 [1st Dept Mar. 17, 2022] [same].)

American Transit advances several arguments for why it is nonetheless entitled to summary judgment. (See NYSCEF No. 85 at 1-15.) But this court has repeatedly rejected these same arguments before when made on behalf of American Transit by the same attorney who makes them here. (See American Transit Ins. Co. v Romero-Richiez, 2020 NY Slip Op 51181[U] [Sup Ct, NY County Oct. 9, 2020]; American Transit Ins. Co. v Martinez, 2020 NY Slip Op 50930[U] [Sup Ct, NY County Aug. 21, 2020]; American Transit Ins. Co. v Wildex, 2020 NY Slip Op 50929[U] [Sup Ct, NY County Aug. 21, 2020]; accord American Transit Ins. Co. v Rodriguez, 2020 WL 7692216 [Sup Ct, NY County Dec. 23, 2020]; American Transit Ins. Co. v Johnson, 2020 WL 7692201 [Sup Ct, NY County Dec. 23, 2020]; American Transit Ins. Co. v City Wide Health Facility Inc., 2020 WL 6440760 [Sup Ct, NY County Oct. 14, 2020]; American Transit Ins. Co. v Reynoso, 2020 WL 5524771 [Sup Ct, NY County Sept. 11, 2020]; [*3]American Transit Ins. Co. v. Schenck, 2020 WL 5290820 [Sup Ct, NY County Sept. 2, 2020]; American Transit Ins. Co. v Fermin, 2020 WL 5105760 [Sup Ct., NY County Aug. 27, 2020].)

American Transit’s papers on this motion do not even acknowledge these numerous prior decisions, much less put forward reasons why they might be mistaken. That counsel evidently does not agree with this court’s prior decisions and reasoning does not explain counsel’s choice to ignore them altogether. Nor, in any event, can American Transit’s position on this motion be reconciled with the recent decisions of the Appellate Division, First Department, in Acosta and Alcantara.^[FN3]

Accordingly, for the foregoing reasons, American Transit’s motion for summary judgment is denied.

DATE 3/22/2022

Footnotes

Footnote 1:American Transit previously settled with answering defendant Longevity Medical Supply, Inc. (See NYSCEF No. 61.)

Footnote 2:Nor does American Transit contend that it requested the IME before receiving any NF-3 verification forms from those defendants. Had it done so, the 15-day and 30-day deadlines would not apply. (See Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 469-470 [1st Dept 2016].)

Footnote 3:American Transit’s counsel here also represented it in the trial court in Acosta and Alcantara—i.e., he obtained the grants of summary judgment that the First Department reversed in those cases. (American Transit did not file a brief on appeal in either case.) Although defendants’ opposition papers on this motion cite the First Department decision in Acosta as an additional reason for denying American Transit’s motion (see NYSCEF No. 75 at 4), American Transit’s reply does not address Acosta’s implications for this motion. Instead, the reply cites only the trial-court ruling in Acosta, without acknowledging its reversal. (See NYSCEF No. 85 at 11.) (The First Department decided Alcantara on March 17, 2022, after this motion was fully submitted.)

American Transit Insurance Company, Plaintiff, against Erika Rivera, ACCU REFERENCE MEDICAL LAB LIMITED LIABILITY COMPANY, D.H. CHIROPRACTIC, P.C., FAST CARE MEDICAL DIAGNOSTICS, PLLC, GLOBAL SURGERY CENTER LLC, HUDSON TRANSPORTATION LLC, LIBERTY RHEA RANADA EBARLE, PT, P.C., MOUNT SINAI ST. LUKE’S HOSPITAL, MOUNT SINAI ST. LUKES ADULT ED, PRECISION PAIN MANAGEMENT P.C., REBOUND ACUPUNCTURE P.C., SAFE ANESTHESIA AND PAIN, LLC, SHIBRAH M. JAMIL, MD, P.C., SIXTH BOROUGH MEDICAL, UNIVERSITY SPINE CENTER, P.C., and VOK MEDICAL INC, Defendants.

Index No. 150343/2021

The Law Office of Daniel J. Tucker, Brooklyn, NY (Fotini Lambrianidis of counsel), for plaintiff.

The Tadchiev Law Firm, P.C., Fresh Meadows, NY (Simon B. Landsberg of counsel), for defendants Global Surgery Center LLC and Safe Anesthesia and Pain LLC.

Gerald Lebovits, J.

This motion concerns the potential obligation to pay no-fault insurance benefits of plaintiff American Transit Insurance Company. Defendant Erika Rivera was in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by American Transit. Rivera assigned the right to collect no-fault benefits under that policy to various treating medical providers. American Transit denied those providers’ applications for no-fault benefits.

American Transit brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Rivera or to Rivera’s medical-provider assignees. Only Rivera and defendants Global Surgery Center LLC and Safe Anesthesia and Pain LLC answered.^[FN1]

American Transit now moves for default judgment under CPLR 3215 against the various defaulting defendants, and moves for summary judgment under CPLR 3212 against Global Surgery Center LLC and Safe Anesthesia and Pain LLC. The motion is denied.

DISCUSSION

A no-fault insurer seeking a declaration of no coverage due to asserted violations of the terms of the policy must first demonstrate that it complied with each of the procedural and timeliness requirements of 11 NYCRR § 65-3.5, governing the handling of no-fault claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].)

Under these regulations, a no-fault insurer’s request for additional verification in the form of an independent medical examination (IME) must be made within 15 business days of receiving claimant’s verification forms. (See 11 NYCRR § 65-3.5 [b].) The IME must be held within 30 calendar days from receipt of the verification forms. (See id. § 65-3.5 [d].) If the claimant does not appear for the IME, the insurer must send a letter rescheduling the IME within 10 calendar days of the nonappearance. (See 11 NYCRR 65-3.6 [b].)

American Transit has not established that it satisfied these timeframes, as required to establish the facts constituting its claim under CPLR 3215 and to establish prima facie its entitlement to judgment as a matter of law under CPLR 3212.

American Transit has submitted on this motion Rivera’s NF-2 benefits application, dated October 29, 2019. (See NYSCEF No. 19.) American Transit has not, however, submitted any NF-3 verification forms. American Transit thus cannot establish that the first IME here was timely requested or timely scheduled under § 65-3.5. Indeed, the record as it stands casts considerable doubt on the timeliness of the IME: American Transit’s first request, sent on February 13, 2020, scheduled an IME for March 3, 2020—fully 126 calendar days after the date of the NF-2 application. (See NYSCEF No. 17 at ¶ 3; NYSCEF No. 20 at 7.)

American Transit’s papers also reflect that it did not timely reschedule the IME. The IME first scheduled in the February 13, 2020, request letter was rescheduled several times due to the COVID-19 pandemic, and ultimately postponed to June 23, 2020. Rivera did not appear for the June 23 IME date. American Transit did not, however, then reschedule the IME again within 10 days. Its papers reflect instead that it sent a follow-up letter on July 14, 2020—21 calendar days after Rivera failed to appear, not 10. (See NYSCEF No. 17 at ¶ 8; NYSCEF No. 20 at 2.)

American Transit’s motion papers suffer from additional defects. American Transit’s proof that Rivera did not appear for the June 23, 2020, IME date, or the rescheduled August 4, 2020, IME date, is a boilerplate affidavit from its IME physician.^[FN2] But that affidavit is not signed. (See NYSCEF No. 17 at 4.) Moreover, the notary’s stamp states that the notary is “Qualified in Suffolk County” while the top of the affidavit reflects that it was prepared in the “County of Nassa [sic].”^[FN3] (Id.) This document is not competent evidence of Rivera’s asserted failure to appear for IMEs.

Minor delays in requesting additional verification (or following-up on verification requests) may constitute “a technical defect excusable under 11 NYCRR 65-3.5 (p).” (Kemper Independence Ins. Co. v. Cornerstone Chiropractic, P.C., 185 AD3d 468, 469 [1st Dept 2020] [internal quotation marks omitted]). But American Transit’s outright failure to establish when it first requested an IME relative to when it received provider bills or other verification forms, coupled with the absence of a competent affidavit to establish Rivera’s failure to appear at the rescheduled IMEs, far exceeds the “nonsubstantive technical or immaterial defect or omission” that § 65-3.5 (p) excuses. (See American Transit Ins. Co. v Foster, 2019 NY Slip Op 30746[U], at *4 [Sup Ct, NY County Mar. 26, 2019] [holding substantial and repeated delays in seeking verification not excusable under § 65-3.5 [p]].)

Further, Global Surgery and Safe Anesthesia represent in opposition to summary judgment that American Transit has not yet responded to their discovery requests, rendering the summary judgment motion against them premature under CPLR 3212 (f). (See NYSCEF No. 28 at 14-16.) American Transit has not controverted that representation.

American Transit has thus failed to establish either that it is entitled to default judgment against the defaulting defendants under CPLR 3215, or that it is entitled to summary judgment against the answering defendants under CPLR 3212. It is somewhat doubtful that plaintiff can make out the necessary showings. But this court elects to afford American Transit one more opportunity to do so, rather than dismiss the action outright at this time.

Accordingly, for the foregoing reasons it is

ORDERED that the branch of American Transit’s motion under CPLR 3215 seeking default judgment against the defaulting defendants is denied; and it is further

ORDERED that the branch of American Transit’s motion under CPLR 3212 seeking summary judgment against Global Surgery and Safe Anesthesia is denied; and it is further

ORDERED that American Transit shall, within 30 days of entry of this order, respond to the discovery requests served by Global Surgery and Safe Anesthesia on September 24, 2021 [*2](see NYSCEF No. 11); and it is further

ORDERED that if American Transit does not serve a renewed motion for default judgment and for summary judgment within 60 days of entry of this order, the action will be administratively dismissed; and it is further

ORDERED that Global Surgery and Safe Anesthesia shall serve a copy of this order with notice of its entry on all parties.

DATE 3/8/2022

Footnotes

Footnote 1:American Transit settled with Rivera and two of her treating providers. (See NYSCEF Nos. 3, 6, 8.)

Footnote 2:The affidavit appears to be a generic form document in which the names of the examining physician and the claimant, and the address of the physician’s office, are filled in using a word-processing macro or the equivalent. (See NYSCEF No. 17 at 4.) It states that on the two IME dates at issue, “Erika Rivera never checked in, never had his/her file pulled, [and] was never examined.” (Id. at 4 ¶ 6.)

Footnote 3:It is also unclear why a physician with an office in Manhattan, referred by a company with an office in Nassau County to conduct an examination on behalf of a company that is located in Brooklyn and is represented by counsel located in Brooklyn, would be executing an affidavit before a Suffolk County notary. (See generally NYSCEF Nos. 17, 20; see also NYSCEF No. 16 at 11.)

[*1]

American Tr. Ins. Co. v Reyes

2022 NY Slip Op 50013(U) [73 Misc 3d 1237(A)]

Decided on January 10, 2022

Supreme Court, New York County

Lebovits, J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 10, 2022

Supreme Court, New York County

American Transit Insurance Company, Plaintiff, against Samuel Reyes, CAREPOINT ACUPUNCTURE, P.C., COMMUNITY MEDICAL IMAGING P.C., DIAGNOSTIC ACCUTOX M., EXCELL CLINICAL LAB, INC., ILANA’S PHARMACY, LEV AMINOV, INTERNAL MEDICINE, P.C., MLJ CHIROPRACTIC P.C., PHOENIX MEDICAL SERVICES, P.C., RICHARD M. SELDES, M.D., P.C., TIM CANTY M.D. PLLC, UNION SCRIPTS, and WESTCHESTER MEDICAL CARE P.C., Defendants.

Index No. 160996/2020

Law Office of Daniel J. Tucker, Brooklyn, NY (Jaimie L. Boyd of counsel), for plaintiff.

No appearance for defendants.

Gerald Lebovits, J.

Plaintiff moves for a default judgment against the no-fault claimant and some of his treating medical providers; and moves for summary judgment against appearing defendants [*2]Community Medical Imaging P.C. and Lev Aminov Internal Medicine, P.C. The motion is denied in its entirety.

Plaintiff has not established that it complied with the regulatory timeliness requirements for the processing of no-fault insurance claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) When the additional verification that the insurer seeks from an applicant for no-fault benefits takes the form of an independent medical examination (IME), the IME must be scheduled to be held within 30 calendar days from receipt of the verification forms. (See 11 NYCRR 65-3.5 [d].) Here, the IME was scheduled to be held 33 calendar days after the IME request, and thus necessarily more than the 30-day limit set by § 65-3.5 (d). (See NYSCEF No. 15 at 1.)

Thus, if plaintiff were required to satisfy § 65-3.5’s timeliness requirements, the record demonstrates that it failed to do so—and thus that it was not entitled to deny the claims of the no-fault claimant and his assignees on the ground that the claimant failed to appear for the requested IME. (See Longevity Medical Supply, 131 AD3d at 841.) That said, when an insurer requests additional verification before receiving any claims for benefits, § 65-3.5’s scheduling deadlines do not apply. (See Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018].) Neither plaintiff’s attorney affirmation on this motion nor the affirmation’s supporting exhibits disclose when plaintiff received benefits claims or verification forms from the no-fault claimant’s provider assignees. (See NYSCEF No. 11 at ¶ 12; NYSCEF No. 14.) Thus, it is at least possible that plaintiff’s IME request was timely; and that plaintiff could still be entitled to the default and declaratory judgments that it seeks (assuming plaintiff also satisfies the other elements of its claim).

Accordingly, it is hereby

ORDERED that plaintiff’s motion under CPLR 3215 for default judgment against the defaulting defendants is denied; and it is further

ORDERED that if plaintiff does not bring a renewed default-judgment motion within 30 days of entry of this order, the action will be dismissed as to the defaulting defendants; and it is further

ORDERED that plaintiff’s motion under CPLR 3212 for summary judgment against the appearing defendants is denied.

DATE 1/10/2022

In the Matter of the Arbitration of certain controversies between Hereford Insurance Company, Petitioner, against Corona Medical PC and MVAIC, Respondents.

Index No. CV 13288/21

GOLDBERG, MILLER & RUBIN P.C.
Attorneys for Petitioner
By: Harlan R. Schreiber, Esq.
1501 Broadway, Suite 715
New York, New York 10036
646.863.1531

ISRAEL, ISRAEL & PURDY, LLP
Attorneys for Respondent Corona Medical P.C.
By: Michael Hoenig, Esq.
11 Grace Avenue – Suite 11021
Great Neck, New York 11001
516.829.0363

MARSHALL & MARSHALL, PLLC
Attorneys for Respondent MVAIC
By: Jeffrey Kadsushin, Esq.
30 Jericho Executive Plaza, Suite 100 West
Jericho, New York 11753
516.997.6000

Sabrina B. Kraus, J.

BACKGROUND

Mostafa Hekal (Assignor), a 29 year old male, was injured in a motor vehicle accident on March 8, 2019. Assignor was driving a 2018 Ford, with New Jersey plate L62KUG, when it was involved in a collision on the Southern State Parkway in Hempstead, New York. The 2018 Ford was a rental car owned by AutoTeam, Inc. and insured under New Jersey code 989, by Unitrin Preferred Insurance Company.

Assignor maintained a business policy in New York through Hereford, which is a New York State livery insurer. Assignor submitted the claim to Hereford and Hereford denied the claim, because the rental car was not an insured vehicle under the Hereford policy.

Assignor then submitted the claim to MVAIC who denied the claim because AutoTeam has a policy which covered the vehicle.

The amount in dispute was $550.00.

The parties submitted to arbitration to resolve the underlying dispute regarding no fault benefits. Corinne Pascariu (CP), the Arbitrator, held a hearing on June 29, 2020 and October 22, 2020 and issued a decision finding that MVAIC was not liable for the claim as a policy existed. CP further found:

… where, as here, there may be more than one insurer — the insurer providing coverage to the vehicle Assignor had been renting and the insurer providing for hire coverage to the vehicle Assignor had been driving — liable for providing first-party No-Fault benefits, and “a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first party benefits then the first insurer to whom notice of claim is given…shall be responsible for payment….

CP went on to find that as Hereford was the first to receive the notice of claim, it was responsible for processing the claim and its assertion that AutoTeam Inc is the insurer responsible must be resolved through intercompany arbitration.^[FN1]

The award was confirmed by Victor J. D’Ammora (VD), a Master Arbitrator pursuant to decision dated March 1, 2021. VD agreed with CP’s analysis and conclusions and found that CP’s decision was neither arbitrary and capricious nor incorrect as a matter of law.

THE PETITION

Hereford filed the petition commencing this proceeding on May 14, 2021. MVAIC and Corona Medical both appeared by counsel and filed opposition and cross-petitions. On October 14, 2021, the papers were fully submitted, and on October 15, 2021, the case was assigned to this court for determination.

The petition and cross-petitions are consolidated herein for determination.

For the reasons stated below, the petition to vacate the award is granted and the cross-petitions are denied.

There Was No Basis in the Record to Find Coverage by Hereford Existed

CPLR § 7511(b)(1)(iii) provides for an application for a party to vacate an arbitration [*2]award, where the arbitrator exceeded her power. While judicial review of arbitration awards is limited to the grounds set forth in CPLR 7511, an award that is the product of compulsory arbitration, such as the case at bar, has an additional layer of review to insure that the award is supported by evidence in the record and that the award is not arbitrary and capricious (Liberty Mutual Fire Insurance Co v Global Liberty Insurance Co. of NY 144 AD3d 1160, 1161).

In this case, the insurance policy issued by Hereford clearly on its face indicates it covers only the automobile owned by Assignor, and therefore provides no coverage for the vehicle Assignor rented and was driving when he got into the accident. The vehicle covered by Hereford is a 2015 Chevrolet, specifically identified by a PIN number on the declaration page of the policy issued by Hereford. The issue below was not one of priority of payment, as ruled on by the Arbitrator, but a lack of coverage defense, which the Arbitrator did not rule on, noting only that there “may” be coverage under the policy issued by Hereford without citing any evidence for this conjecture.

It is well settled that where an insurance company made no contract of insurance with the person and for the vehicle involved in the accident, liability is properly denied (Zappone v Homes Ins. Co. 55 NY2d 131, 136). In such a situation “… although the carrier may have some other relationship with the owner or driver of the vehicle, it has no contract with that person with respect to the vehicle involved and, there being no contractual relationship with respect to the vehicle, is not required to deny coverage or otherwise respond to a claim arising from an accident involving that vehicle except as statute mandates or courtesy suggests (Id at 136-137).” The court in Zapone further noted that the purpose of requiring company’s disputing priority of payment to go to intercompany arbitration was “.. to avoid prejudice to the injured claimant … not, however to provide an added source of indemnification which had never been contracted for and for which no premium had ever been paid (Id at 137).” Additionally, a lack of coverage defense may be raised regardless of whether the insurer’s denial was timely or in proper form [Gentlecare Ambulatory Anesthesia Services v Hereford 69 Misc 3d 144(A)].

Under these circumstances, and given the lack of evidence in the record for any finding that coverage by Herford exists, the award is arbitrary and capricious and must be vacated (Global Liberty Insurance Co. v Medco Tech, Inc. 170 AD3d 558; Progressive Cas. Ins.. Co. v New York State Ins. Fund 850 NYS2d 478; Allstate Insurance Co v Countrywide Insurance Co. 2002 NY Slip Op 40177(U)).

The cross-petition of Corona Medical PC is denied for the reasons stated above.

The cross-petition of MVAIC is also denied. Although, the court agrees with that portion of the arbitrator’s decision which found that there was no liability as pertains to MVAIC, because AutoTeam, Inc. had a policy, the court can not both vacate the award as against Hereford and confirm the award as to MVAIC. To do so would constitute a modification of the award, and there is no applicable basis under CPLR 7511( c) for this court to issue a modification.^[FN2]

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that the petition is granted to the extent of vacating and setting aside the award of Victor J’ D’Ammora, The Mater Arbitrator, dated March 1, 2021 with AAA [*3]Assessment Number 17-20-1157-8170, and the award of Corinne Pascariu, the Lower Arbitrator, dated October 28, 2020, upon the grounds that the award was arbitrary and capricious and exceeded the Master Arbitrator’s authority; and it is further

ORDERED that the cross-petitions of MVAIC and Corona Medical PC are denied in their entirety; and it is further

ORDERED that the Clerk of the Court shall enter judgment accordingly.

This constitutes the decision and order of this court.

New York, New York
October 20, 2021
Hon. Sabrina B. Kraus,
JCC

Footnotes

Footnote 1:CP also made a finding that Allstate’s denial was timely issued although Allstate does not appear to have been a party to the arbitration.

Footnote 2:Neither AutoTeam Inc, nor its insurer, Unitrin were party to the underlying arbitration. There is no discussion of why this party was not joined in the arbitrator’s decision.