In the Matter
of the Application of the arbitration between Global Liberty Insurance Co., Petitioner,
-and-
Professional Chiropractic Care, P.C. As Assignee of
Thomas Yanick,
Respondent.
|
261079/2014
Attorney for Petitioner
Jason Tenenbaum, Esq.
The Law Office of Jason Tenenbaum, P.C.
595 Stewart Avenue, Suite 400
Garden City, New York 11530
Attorney for Respondent
Ralph C. Caio, Esq.
The Law Offices of Sukhbir Singh
95-18 130 Street
South Richmond Hill, New York 11419
Kenneth L. Thompson Jr., J.
The following papers numbered 1 to 3 read on this motion to
vacate
NoOn Calendar of April 30, 2015PAPERS NUMBER
Notice of Motion-Order to Show Cause - Exhibits and Affidavits
Annexed————————&
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Answering Affidavit and Exhibits————
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Replying Affidavit and
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Affidavit——————————
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Pleadings —
Exhibit————————&md
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Memorandum of
Law———————————
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#151;—————- ______ Stipulation —
Referee's Report
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Upon the foregoing papers and due deliberation thereof, the Decision/Order
on this motion is as follows:
Petitioner seeks judgment pursuant to CPLR 7511(b), vacating the master
arbitration
award dated November 18, 2014, that granted respondent, Professional
Chiropractic Care, P.C.,
(Care), an award of $9,221.79, and reinstating the decision of the no-fault
arbitrator who
dismissed the no-fault claims.
As a result of a motor vehicle accident, respondent/assignor, Thomas Yanick,
(Yanick),
underwent three days of manipulation under anesthesia. Yanick applied for
no-fault
benefits, and failed to appear for scheduled IMEs. The arbitrator, in a
decision dated August 16,
2014, denied Care's claim for no-fault benefits. Care appealed to a master
arbitrator, and the
master arbitrator reversed the arbitrator's award and in its place, awarded
Care, $9,221.79, on
the grounds that petitioner did not inform Care with sufficient specificity
that the denial of
Care's claim was the result of Yanick's failure to appear for IMEs.
The award of an arbitrator shall be vacated pursuant to CPLR 7511(b) under the
following circumstances:
1. The award shall be vacated on the application of a party who either
participated in the arbitration or was served with a notice of intention to arbitrate if the
court finds that the rights of that party were prejudiced by:
(i) corruption, fraud or misconduct in procuring the award; or
(ii) partiality of an arbitrator appointed as a neutral, except where the award
was by confession; or
(iii) an arbitrator, or agency or person making the award exceeded his power
or so imperfectly executed it that a final and definite award upon the subject matter
submitted was not made; or
(iv) failure to follow the procedure of this article, unless the party applying
to vacate the award continued with the arbitration with notice of the defect and without
objection.
CPLR 7511(b).
"In addition, article 75 review questions whether the decision was rational or had
a
plausible basis. (Caso v Coffey, 41 NY2d 153, 158, supra.)."
(Matter of Petrofsky (Allstate Ins.
Co.), 54 NY2d 207, 211 [1981]). In reply papers, petitioner limits the
petition to "whether the
master arbitrator's basis in reversing the findings of the lower arbitrator was
irrational." (reply,
par. 17). Petitioner then cites to Unitrin Advantage Ins. Co. v Bayshore
Physical Therapy,
PLLC, 82 AD3d 559, [1st Dept 2011], to support its argument that
Unitrin dictates a different
result from the master arbitrator's award in this case.
In his award the master arbitrator cited to General Acc. Ins. Group v Cirucci,
46 NY2d
862 [1979], for the following: "although an insurer may disclaim coverage
for a valid reason
(Insurance Law, § 167, subd 8) the notice of disclaimer must promptly
apprise the claimant with
a high degree of specificity of the ground or grounds on which the
disclaimer is predicated." Id.
at 864. There is no dispute and the arbitrator acknowledged that the denial of
coverage
referenced an incorrect date for an allegedly missed IME and EUO
providing a rational basis for
the master arbitrator's award.
While petitioner states that the master arbitrator's award is irrational, petitioner's
arguments center on the master arbitrator having made an error of law in
failing to apply Unitrin
to the facts of this case. "The master arbitrator's determination of the law
need not be correct;
mere errors of law are insufficient to warrant setting aside the master
arbitrator's award, and on
questions of substantive law, the determination should be upheld if there is a
rational basis for it
(see Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294
AD2d 574, 576-577 [2002])."
(101 Acupuncture,
P.C. v Utica Mut. Ins. Co., 16 Misc 3d 132(A), (App. Term 2d Dept
2007]).
Finally, petitioner cites to 11NYCRR 65-4.10 (a) (4) for the proposition that the
Codes
Rules and Regulation of the State of New York allow this court to vacate the
master arbitrator's
award as "incorrect as a matter of law." However, 11 NYCRR 65-4.10 (a)
(4) only permits a
master arbitrator to vacate or modify an arbitrator. 11NYCRR 65-4.10 (a). A
court may not
vacate or modify a master arbitrator's or an arbitrator's award on grounds that
the award is
incorrect as a matter of law.
Accordingly, the petition is denied, and judgment is rendered in favor of
respondent.
The foregoing shall constitute the decision and order of the Court.
Dated:
_____________________________________________KENNETH L.
THOMPSON JR. J.S.C.