Opinion
2006-2069 K C.
Decided April 29, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered October 17, 2006. The order denied the petition to vacate a master arbitrator's award.
Order reversed without costs, awards of the master arbitrator and arbitrator vacated, and matter remitted to the arbitrator for further proceedings consistent herewith.
PRESENT: WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
RJ Professional Acupuncturist, P.C. (RJ) commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator's award which upheld the arbitrator's denial of petitioner's claim for assigned first-party no-fault benefits. MVAIC (Motor Vehicle Accident Indemnification Corporation) opposed the petition, asserting, inter alia, that the arbitrator properly found that RJ's claims were not ripe for arbitration because petitioner's assignor failed to provide MVAIC with verification requested by MVAIC to ascertain whether petitioner's assignor was a "qualified person" pursuant to Insurance Law article 52. The court denied the petition and this appeal by RJ ensued.
The standard applicable to judicial review of a compulsory arbitration proceeding is whether the award was "supported by a reasonable hypothesis' and was not contrary to what could be fairly described as settled law" ( Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co. , 18 AD3d 762 , 763, citing Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. Sur. Co., 89 NY2d 214, 224; see Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533, 534; Matter of Adams v Allstate Ins. Co., 210 AD2d 319, 320). Applying this standard to the instant proceeding, we find that the master arbitrator's award and the arbitrator's award were irrational ( see Matter of State Farm Mut. Auto. Ins. Co., 18 AD3d at 763; Matter of Hanover Ins. Co., 226 AD2d at 534) since they were contrary to settled law.
In New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. ( 12 AD3d 429 , 429-430), the Appellate Division, Second Department, "reject[ed MVAIC's] contention that the 30-day time requirement contained in 11 NYCRR 65.15 (g) (3) does not apply to it until after it has qualified' an injured party." Notwithstanding the foregoing, the arbitrator held that RJ's claims were premature because RJ's assignor did not provide verification which MVAIC requested, in order to determine whether RJ's assignor was eligible for no-fault benefits from MVAIC. However, since MVAIC did not request verification until more than one year after it received petitioner's claims, the 30-day claim determination period was not tolled and petitioner's claims were overdue ( see Fair Price Med. Supply Corp. v Travelers Indem. Co. , 42 AD3d 277 , 280; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. , 12 AD3d 429 , supra; Ocean Diagnostic Imaging P.C. v Travelers Indem. Co. , 7 Misc 3d 133[A], 2005 NY Slip Op 50644 [App Term, 2d 11th Jud Dists 2005]). Consequently, the court should have granted the petition.
Since the arbitrator never ruled on the merits of petitioner's claims, the matter must be remitted to the arbitrator for a determination upon them ( see Matter of Health Endurance Med., P.C. v Deerbrook Ins. Co. , 44 AD3d 857 ).
Weston Patterson, J.P., and Rios, J., concur.
Golia, J., concurs in the result only, in the following memorandum:
I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.