Opinion
December 11, 1989
Appeal from the Supreme Court, Queens County (DiTucci, J.).
Ordered that the order is reversed, on the law, with costs, the defendant's motion for summary judgment is granted, it is declared that the plaintiff is not entitled to a de novo adjudication of the no-fault claim in question pursuant to Insurance Law § 5106 (c), the matter is remitted to the Supreme Court, Queens County, for a determination of the amount of counsel fees to be awarded to the defendant, and the complaint is otherwise dismissed.
We find that the Supreme Court erred in concluding that the plaintiff insurer was entitled to commence an action for de novo adjudication of a no-fault claim pursuant to Insurance Law § 5106 (c). This statute permits de novo adjudication where the master arbitrator's award is $5,000 or greater (see also, 11 NYCRR 65.18 [i]). The record reveals that the master arbitrator denied the plaintiff's request for review of the arbitration award on the ground that the plaintiff failed to comply with applicable insurance regulations in seeking such review (see, 11 NYCRR 65.18 [d]). Since the master arbitrator did not issue any monetary award, the statutory predicate for de novo court adjudication has not been satisfied (see, Matter of Greenberg [Ryder Truck Rental], 70 N.Y.2d 573, 577; Aetna Life Cas. Co. v Duthie, 107 A.D.2d 1009, appeal dismissed 65 N.Y.2d 898; Government Employees Ins. Co. v Arvelo, 76 A.D.2d 854; see also, 11 NYCRR 65.18 [c] [4]).
We further find that the defendant is entitled to counsel fees pursuant to 11 NYCRR 65.18 (k) (4). Accordingly, the matter is remitted to the Supreme Court, Queens County, for a determination as to a proper counsel fee award.
Finally, we note that the defendant's request for an award of costs, pursuant to CPLR 8303-a, was not ruled upon by the Supreme Court. As a result, the matter technically remains pending and undecided (see, Katz v Katz, 68 A.D.2d 536). However, in view of the fact that the plaintiff was successful before the court of first instance, an assessment of costs, under the criteria set forth in CPLR 8303-a, does not appear to be warranted. Thompson, J.P., Eiber, Sullivan and Harwood, JJ., concur.