Opinion
2019-807 N C
08-27-2020
Matter of ADVANCED ORTHOPAEDICS, PLLC, as Assignee of Lisa Jones, Appellant, v. UNITRIN ADVANTAGE INSURANCE COMPANY, Respondent.
Law Offices of Jonathan B. Seplowe, Esq. (Alan M. Elis of counsel), for appellant. Goldberg, Miller & Rubin, P.C. (Timothy R. Bishop of counsel), for respondent.
Law Offices of Jonathan B. Seplowe, Esq. (Alan M. Elis of counsel), for appellant.
Goldberg, Miller & Rubin, P.C. (Timothy R. Bishop of counsel), for respondent.
PRESENT: THOMAS A. ADAMS, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ.
ORDERED that the order is modified by adding thereto a provision confirming the master arbitrator's award; as so modified, the order is affirmed, without costs.
Petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitrator's award dated September 12, 2018, which upheld the award of an arbitrator, rendered pursuant to Insurance Law § 5106 (b), denying petitioner's claim to recover assigned first-party no-fault benefits. The District Court denied the petition.
We initially note that, contrary to respondent's contention, it is well settled that arbitration under the no-fault law is compulsory (see Matter of Bay Needle Care Acupuncture, P.C. v. Country Wide Ins. Co. , 176 A.D.3d 695 [2019] ; Barry Rubin, M.D., P.C. v. Met Life Auto & Home Ins. Co. , 26 Misc 3d 138[A], 2010 NY Slip Op. 50223[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010] ). "A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75, which include, in this compulsory arbitration, the question of whether the determination had evidentiary support, was rational, or had a plausible basis (see Matter of Petrofsky [Allstate Ins. Co.] , 54 N.Y.2d 207, 212 [1981] )" (Matter of Acuhealth Acupuncture, P.C. v. Country-Wide Ins. Co. , 176 A.D.3d 800, 802 [2019] ). Applying this standard, we find a rational basis for the determination of the master arbitrator upholding the arbitrator's award (see Matter of Motor Veh. Acc. Indem. Corp. v. Aetna Cas. & Sur. Co. , 89 N.Y.2d 214 [1996] ; Matter of Petrofsky [Allstate Ins. Co.] , 54 N.Y.2d 207 ). Consequently, the Civil Court properly denied the petition to vacate the master arbitrator's award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v. Government Empls. Ins. Co. , 306 A.D.2d 476 [2003] ).
Accordingly, the order is modified by adding thereto a provision confirming the master arbitrator's award.
We note that a proceeding to vacate or to confirm an arbitrator's award is a special proceeding brought pursuant to CPLR article 4 and should, therefore, terminate in a judgment rather than an order (see CPLR 411 ).
ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.