Summary
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."
Summary of this case from Country-Wide Ins. Co. v. Comfort Choice Chiropractic P.C.Opinion
6725–6726 Index 651942/15
06-05-2018
In re COUNTRY–WIDE INSURANCE COMPANY, Petitioner–Appellant, v. BAY NEEDLE CARE ACUPUNCTURE, P.C., as assignee of Rosa Corona, Respondent–Respondent.
Thomas Torto, New York (Jason Levine of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for respondent.
Thomas Torto, New York (Jason Levine of counsel), for appellant.
Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Mazzarelli, Gesmer, Oing, JJ.
Judgment, Supreme Court, New York County (Joan M. Kenney, J.), entered February 23, 2017, in favor of respondent, unanimously affirmed, without costs, and the matter is remanded for a determination of respondent's reasonable attorney's fees for this appeal. Appeal from judgment entered February 14, 2017, unanimously dismissed, without costs, as superseded by the appeal from the February 23, 2017 judgment.
Respondent commenced an arbitration against petitioner seeking reimbursement of bills for health care services it had rendered to an individual injured in a motor vehicle accident. Petitioner asserted a Mallela defense (see State Farm Mut. Auto. Ins. Co. v. Mallela, 4 N.Y.3d 313, 794 N.Y.S.2d 700, 827 N.E.2d 758 (2005) ), i.e., that it could withhold payment for the services because respondent was fraudulently incorporated. After a hearing, an arbitrator found that petitioner failed to meet its burden of providing clear and convincing evidence of fraudulent incorporation, and awarded respondent full reimbursement. The award was affirmed by the master arbitrator.
Petitioner argues that it was held to an incorrect standard of proof and that the correct standard is a preponderance of the evidence. However, the award is not subject to vacatur under either standard (see Country–Wide Ins. Co. v. TC Acupuncture, P.C., 140 A.D.3d 643, 33 N.Y.S.3d 713 [1st Dept. 2016] ; Nationwide Affinity Ins. Co. of Am. v. Acuhealth Acupuncture, P.C., 155 A.D.3d 885, 886–887, 64 N.Y.S.3d 688 [2d Dept. 2017] ). Petitioner failed to present any evidence that respondent was fraudulently incorporated.
We reject petitioner's contention that the master arbitrator's determination affirming the award was irrational because the arbitrator's failure to set forth his reasons for rejecting petitioner's Mallela defense precluded meaningful review of the award (see Matter of Guetta [Raxon Fabrics Corp.], 123 A.D.2d 40, 510 N.Y.S.2d 576 [1st Dept. 1987] ; Matter of Nationwide Mut. Ins. Co. v. Steiner, 227 A.D.2d 563, 643 N.Y.S.2d 373 [2d Dept. 1996] ; see also Purpura v. Bear Stearns Cos., 238 A.D.2d 216, 656 N.Y.S.2d 253 [1st Dept. 1997], lv denied 90 N.Y.2d 806, 663 N.Y.S.2d 511, 686 N.E.2d 223 [1997] ). In any event, the master arbitrator's determination, which considered the arbitrator's familiarity with similar cases and past decisions on the issues presented, was rational.
Respondent is entitled to reasonable attorney's fees for this appeal. Supreme Court has authority to award attorneys 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, 51 N.Y.S.3d 93 [2d Dept. 2017], recalling and vacating Matter of GEICO Ins. Co. v. AAAMG Leasing Corp., 139 A.D.3d 947, 32 N.Y.S.3d 584 [2d Dept. 2016] ). Accordingly, we remand the matter to Supreme Court for a determination of respondent's reasonable attorney's fees for this appeal. To the extent Country–Wide Ins. Co. v. Valdan Acupuncture, P.C., 150 A.D.3d 560, 561, 57 N.Y.S.3d 9 (1st Dept. 2017) takes a different approach to calculating attorneys' fees, we decline to follow it.