Opinion
Index No. 656334/2022 Motion Seq. No. 001 NYSCEF DOC. No. 17
08-31-2022
COUNTRY-WIDE INSURANCE COMPANY Petitioner, v. COMFORT CHOICE CHIROPRACTIC P.C., Respondent.
Unpublished Opinion
MOTION DATE 05/17/2022
DECISION + ORDER ON MOTION
LYLE E. FRANK, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 9, 10, 11, 12, 13, 14, 15, 16 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.
Petitioner, Country-Wide Insurance Company ("CWI"), seeks an order pursuant to CPLR § 751 l(b)(1)(iii) to vacate a No-Fault Master Arbitrator's decision, dated October 11, 2021, on the basis that the lower arbitrator exceeded his/her powers, alleging that the award was so imperfectly executed that a final award upon the subject matter submitted was not made, and that the Master Arbitrator erred in affirming the decision. For the reasons set forth below the petition is denied and respondents' cross-petition to confirm the decision is granted.
Background
An underlying accident occurred on March 10, 2019, involving a vehicle registered in New York State and insured by CWI. Edwin Durazno ("Edwin") was the passenger of the vehicle insured by CWI that was involved in the motor accident. Following the accident, Edwin allegedly received healthcare services from respondent Comfort Choice Chiropractic P.C., which later submitted medical bills for reimbursement for alleged healthcare services provided to Edwin. This matter then proceeded to arbitration on September 27, 2021, before Arbitrator Debbie Kotin Insdorf, Esq.
Arbitrator Insdorf held Respondent CWI could not sustain the IME No Show defense. Arbitrator Insdorf stated that the Respondent CWFs IME No Show evidence was insufficient as there was no proof submitted that the scheduling letters were mailed. CWI then pursued Master Arbitration, on the grounds that the award of the No-Fault Arbitrator was not rationally based upon the evidence presented below, was arbitrary and capricious, and the policy was exhausted. The Master Arbitrator affirmed the lower arbitration award, holding that the arbitrator's review of the facts was not incorrect as a matter of law.
Petitioner now appeals to this Court and reasserts its position that the award should be vacated on the grounds that the lower arbitrator exceeded his power and the Master Arbitrator erred in affirming the award. Respondent cross-petitions to confirm the decision and for attorney's fees pursuant to 11 NYCRR 65-4.10(j)(4) and 11 NYCRRR 65-4.10(j)(2)(i).
Discussion Applicable Law
Pursuant to CPLR §7511(b)(1), an arbitration award can be vacated or modified on the grounds that:
(i) corruption, fraud, or misconduct in procuring the award;
(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession;
(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.
To be upheld, the award must have evidentiary support or other basis in reason, appear in the record, and not be arbitrary or capricious (Motor Veh. Ace. Indem. Corp. v Aetna Cas. & Sur. Co., 89 N.Y.2d 214 [1996]; Mount St. Mary's Hosp. v Catherwood, 26 N.Y.2d 493 [1970]).
Discussion
The Court decides this matter on narrow grounds. The respondent argues that 11 NYCRR 65-4.10 (a)(2) does not permit Master Arbitrator review of the possible exhaustion of the policy unless the amounts that were not above the policy limits are paid prior to such review.
The Court agrees with that interpretation. As such, since there were amounts not in dispute as being above the policy limits that should have been paid prior to the Master Arbitrator's review, the Master Arbitrator was correct in not reviewing the issue of policy exhaustion. As the petitioner admits in its papers that the policy was not exhausted at the time of the petition, saying $69/42 remained on the policy, then at the time of the submission of this matter to the Master Arbitrator, there were funds left on the policy. Thus, in order to have raised the issue of exhaustion with the Master Arbitrator, some money must have been paid which was not. As such, the Master Arbitrator was correct in not granting an exhaustion defense.
Based on this finding, the Court need not reach the remaining contentions of the parties, except as to the issue of attorney's fees, discussed below.
Attorney's fees
Respondent seeks an award of attorney's fees pursuant to 11 N.Y.C.R.R. §65-4.10(j)(4). In support, Respondent submitted an affirmation detailing the hours spent by its counsel preparing the opposition to Petitioner's petition and the cross-petition for confirmation (see NYSCEF doc No. 5). In the affirmation, Respondent' counsel avers that they spent a total of 4 hours of legal work. Respondent seeks attorney's fees in the amount of $2,000 pursuant to counsel's billing rate of $500 an hour. The Court finds that Respondent is entitled to attorney's fees. In Matter of Country-Wide Ins. Co. v. Bay Needle Care Acupuncture, P.C, 162 A.D.3d 407 [1st Dept 2018], the court held that the "Supreme Court has authority to award attorney's fees as this is an appeal from a master arbitration award pursuant to 11 NYCRR 65-4.10 (j) (4), which, in pertinent part, provides: "The attorney's fee for services rendered in connection with ... a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter." (see also Matter of GEICO Ins. Co. v. AAAMG Leasing Corp., 148 A.D.3d 703 [2d Dept 2017]). Respondent also seeks Attorney's fees of $260.00 pursuant to 11 NYCRRR 65-4.10(j)(2)(i). Thus, Respondent's application for attorney's fees in the total amount of $2,260 is granted. Based on the foregoing, it is hereby
ORDERED that the petition of Petitioner Country-Wide Insurance (Motion Seq. 001) is denied in its entirety; and the Award of the Lower Arbitrator, as affirmed by the Master Arbitrator, is confirmed; and it is further
ORDERED that Respondent's cross-petition for attorney's fees in the total amount of $2,260 is granted; and it is further
ORDERED that the Clerk shall enter judgment accordingly.