Opinion
Index No. 500651/2023
04-24-2023
American Transit Insurance Company, Petitioner, v. Gentle Care Acupuncture, P.C., a/a/o ERIK ROBINSON, Respondent.
HON. DEBRA SILBER, J.S.C.
Papers NYSCEF Doc.
Notice of Petition and Petition and Exhibits Annexed 1-12
Affirmation in Opposition, Cross-Petition and Exhibits Annexed 13-16
Opposition to Cross-Petition and Reply 17
Upon the foregoing cited papers, the Decision/Order on this motion is as follows:
This is a special proceeding - pursuant to CPLR Article 75 - commenced by American Transit Insurance Company (ATIC) seeking an order and judgment vacating a No-Fault Insurance master arbitrator award [Doc 4], which affirmed the hearing arbitrator's award dated 7/15/2022 [Doc 3], and granted respondent Gentle Care's claim for No-Fault insurance benefits for acupuncture treatments provided to their assignor. The arbitrator awarded the sum $4,416.52 of the respondent's claim for $5,690.37, plus interest from 11/3/2020, statutory attorneys' fees and the $40 filing fee. Respondent's assignor was a pedestrian injured in a motor vehicle accident on October 13, 2019. For the reasons which follow, the petition is denied and the cross-petition is granted.
The arbitration was held by the American Arbitration Association (AAA), which has been designated by the New York State Department of Financial Services to coordinate the mandatory arbitration provisions of Insurance Law § 5106 [b], which provides: "Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer's liability to pay first party ["No-Fault insurance"] benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent."
At oral argument before this court on March 30, 2023, petitioner ATIC appeared by counsel and argued that the above-referenced arbitration awards should be vacated as they are not supported by settled law. Respondent appeared by counsel and submitted an answer, opposition and a cross petition for a judgment confirming the award and for an award of attorneys' fees pursuant to 11 NYCRR 65-4.10(j)(4).
Petitioner argues that "the arbitrator's decision was arbitrary and capricious, without rational basis and is incorrect as a matter of law because the arbitrator ignored Petitioner's evidence and/or well settled legal precedent in order to justify a determination in favor of Applicant. As a result, Petitioner's rights were prejudiced by the partiality of the arbitrator and the arbitrator exceeded his/her power and failed to make a final and definite award and the decision must be vacated." Counsel continues "In order for an applicant to prove that the services were medically necessary, it must meaningfully refer to, or rebut, the conclusions set forth in the peer review of Dr. Peter Chiu," citing Pan Chiropractic, P.C. v Mercury Ins. Co. (24 Misc.3d 136 [A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2009]), and argues that respondent here failed to offer any rebuttal at all, and certainly did not 'meaningfully refer' to petitioner's peer review, as was required by Pan Chiropractic, P.C. and the more than 100 published decisions citing to it" [Doc 1 ¶47].
Petitioner also claims that "respondent in the case at bar failed to offer an adequate rebuttal that 'meaningfully refer[ed]' to Petitioner's peer review and/or IME report as required by Pan Chiropractic, Eastern Star Acupuncture, Jaga Med. Servs., and the more than 100 other published decisions that cite to Pan Chiropractic. The 'rebuttal' offered by Respondent does not address the issues raised by the peer review." Petitioner claims that "[t]he 'rebuttal' offered by respondent merely lists the claimant's subjective complaints, assumes that the claimant was not exaggerating the injuries for financial gain, does not offer objective findings to support the medical justification and does not address the arguments offered by petitioner's experts." The main point of the expert's peer review, by Dr. Peter Chiu, is that there was no medical necessity for the treatments provided by Gentle Care. He also states, in his six-page single spaced affirmed report, that there is scientific support that acupuncture is effective to treat chronic pain, but not acute pain, and that the claimant was receiving concurrent care. He notes, however, that "there remains considerable controversy as to its value."
Respondent actually did provide a rebuttal, from Arkady Kiner, a licensed acupuncturist and principal of respondent to the arbitrator [Doc 5]. Petitioner avers that the respondent's rebuttal affidavit claims that the peer review doctor is incorrect in concluding that acupuncture is only effective for treating chronic pain and not acute pain, and that acupuncture is effective in treating pain in general. Petitioner's counsel argues that "there was no cite to the alleged study. We don't know who did the study and cannot find it to research the conclusions. Additionally, the rebuttal does not address the other point made by the peer doctor; that the claimant was already receiving concurrent care and that the acupuncture treatment would not have added a benefit above and beyond the physical therapy and chiropractic treatment the claimant was already receiving."
Respondent's answer/opposition (Docs 13-15) contends that there is no basis to vacate the award, arguing that "[t]he award by Paul Keenan, the lower arbitrator, was based on his meticulous review of the medical evidence and his factual determination based on that review. Therefore, Master Arbitrator Toby DeSimone could not overturn it. Originally in dispute in this case were three bills in the total amount of $5,690.37 for acupuncture services from 10/21/19 through 1/31/20. Petitioner denied all of the bills on the basis of a peer review by Dr. Peter Chiu MD. The lower arbitrator awarded the amount of $4,416.52 and denied the remainder on fee schedule grounds. The lower arbitrator thoroughly reviewed all of the medical evidence and concluded: 'The rebuttal is sufficient to refute the peer review.' There is nothing arbitrary or capricious about this determination, and it is in accord with appliable case law and regulations. The fact that the arbitrator disagreed with the carrier's doctor is not a basis for appeal" [Doc 13 Pages 3-4]. The respondent also argues that the "[t]he award by Arbitrator Keenan is neither arbitrary and capricious nor incorrect as a matter of law. Therefore, the master arbitrator was required to affirm it. Master Arbitrator DeSimone wrote: 'Based on the foregoing, I find the lower arbitrator decided this claim based upon his review and evaluation of the record, as well as case law. I find the award below was clearly articulated and had a rational and plausible basis in the evidence. There was no evidence presented which would establish any valid ground to set aside the award of the lower arbitrator. I see no reason to disturb the arbitrator's decision. The award is therefore affirmed in its entirety'" [Doc 13 Page 4].
A copy of his peer review is provided by petitioner at Document 6, Page 48 of 383. It is described as "Exhibit D, letter of AAA." The court suggests that counsel not electronically file important documents this way. Not only does the description in e-file not describe it correctly, but the court was unable to open the file during oral argument, as it was so large it took a long time to load.
In support of its cross petition (MS No.2) the respondent argues that "when the court denies the petition, it must affirm the arbitration award. Moreover, because a cross petition is a special proceeding pursuant to CPLR article 4, it must terminate in a judgment, not an order to confirm the award". Finally, respondent argues that it's entitled to attorneys' fees pursuant to 11 NYCRR 65-4.10 (j)(4), which it contends provides for mandatory attorneys' fees to the prevailing party in connection with post-arbitration Article 75 petitions filed in court. Respondent seeks $1,000 "for the 2.5 hours worked in securing a resolution," plus costs and disbursements.
In opposition to the cross-petition, the petitioner argues (Doc 17) that "Arbitrator Paul Keenan, Esq. exceeded the powers of an arbitrator by failing to follow well settled law in rendering the decision. Likewise, Master Arbitrator Toby Susan DeSimone, Esq. exceeded the powers of a master arbitrator by failing to vacate an arbitration award that was contrary to well settled caselaw. Petitioner offered the opinion of its medical expert, Dr. Chiu, to establish that the services were not medically necessary. The evidence offered by petitioner satisfied its burden of proof. The burden then shifted to respondent to prove that the services were medically necessary. It is ultimately the medical provider [respondent] who must prove, by a preponderance of the evidence, that the services were reasonable and necessary." Finally, the petitioner argues that the attorneys' fees requested by respondent are excessive.
Discussion
Insurance Law § 675 provides:
An award by an arbitrator may be vacated or modified by a master arbitrator in accordance with simplified procedures to be promulgated or approved by the superintendent [of insurance]. The grounds for vacating or modifying an arbitrator's decision by a master arbitrator shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules. The decision of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator's award is five thousand dollars or greater, exclusive of interest and attorneys' fees, the insurer or the claimant may institute an action in a court of competent jurisdiction to adjudicate the dispute de novo.
Insurance Law § 5106 subdivisions (b) and (c) provide:
(b) Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer's liability to pay first party benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent. Such simplified procedures shall include an expedited eligibility hearing option, when required, to designate the insurer for first party benefits pursuant to subsection (d) of this section. The expedited eligibility hearing option shall be a forum for eligibility disputes only, and shall not include the submission of any particular bill, payment or claim for any specific benefit for adjudication, nor shall it consider any other defense to payment.
(c) An award by an arbitrator shall be binding except where vacated or modified by a master arbitrator in accordance with simplified procedures to be promulgated or approved by the superintendent. The grounds for vacating or modifying an arbitrator's award by a master arbitrator shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules. The award of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator's award is five thousand dollars or greater, exclusive of interest and attorneys' fees, the insurer or the claimant may institute a court action to adjudicate the dispute de novo.
The No-Fault Insurance Regulations promulgated by the Superintendent of Insurance provide that a master arbitrator may vacate or modify a hearing arbitrator's award where it "was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground)" (11 NYCRR 65.18 [a] [4]). A master arbitrator may also vacate or modify a hearing arbitrator's award under certain other grounds (see 11 NYCRR 65-4.10 (a)).
The provision in the regulations that a master arbitrator may vacate or modify a hearing arbitrator's award due to an error of law is the focus of ATIC's petition.
ATIC argues that in finding medical necessity for the services rendered, Arbitrator Paul Keenan failed to follow well-settled law that a health services provider opposing an insurer's prima facie case of lack of medical necessity must submit a rebuttal "meaningfully referring to and rebutting" the insurer's peer reviewer's conclusions. As such, ATIC argues, affirmance by Master Arbitrator DeSimone was improper and both awards should be vacated pursuant to CPLR § 7511 (b) (1) (iii). ATIC also argues that Arbitrator Keenan's award "was arbitrary and capricious, without rational basis and incorrect as a matter of law because zero evidence simply cannot outweigh evidence" (NYSCEF Doc No. 1, petition, ¶ 61).
ATIC's claim that the necessity for a "rebuttal meaningfully referring to" the peer reviewer's conclusions derives from a long line of decisions of the Appellate Term, 2d Dept, 2nd, 11th & 13th Judicial Districts, over a period of many years. These cases are discussed at length in a recent decision by a colleague, Am. Tr. Ins. Co. v Right Choice Supply, Inc., ____ Misc.3d ____, 2023 NY Slip Op 23039, [Sup Ct Kings Co 2023]. The court agrees with Justice Maslow's conclusion that these cases, and the principles of law therein, are inapplicable in the manner ATIC seeks to apply them.
Specifically, the cases cited by petitioner are all Appellate Term decisions which decided appeals of lower court decisions that had determined summary judgment motions in lawsuits for payment of medical bills pursuant to the No-Fault Law. Motions for summary judgment require the submission of admissible evidence.
In these decisions, regarding summary judgment motions, the analysis is that once the insurer makes out a prima facie case of entitlement to summary judgment dismissing the complaint on the ground of lack of medical necessity through its submission of an affirmed IME or peer review, the burden of proof then shifts to the health service provider to raise a triable issue of fact. An affidavit of medical necessity from a health service provider is "sufficient to raise a triable issue of fact as to the medical necessity of the services rendered" (Quality Psychological Services, P.C. v Mercury Ins. Group, 27 Misc.3d 129 [A], [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2010]). In Gentle Care Acupuncture, P.C. v Geico Ins. Co. (30 Misc.3d 126 [A] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2010]), the court acknowledged that the health service provider had submitted an affidavit of medical necessity for the purpose of rebutting the insurer's IME report, but rejected it because the affidavit did not "meaningfully refer to, let alone rebut, the IME reports' conclusions" (see also Gentle Care Acupuncture, P.C. v Geico Ins. Co., 30 Misc.3d 131[A] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2012]). This is the underpinning of ATIC's arguments here. ATIC argues that not only must a health service provider's rebuttal refer to the insurer's peer review or IME report, but the rebuttal component must not be conclusory (Flushing Traditional Acupuncture, P.C. v Geico Ins. Co., 36 Misc.3d 156[A] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2012]), arguing that "from this, one can infer that the rebutting evidence must also discuss the IME report's conclusions."
Petitions to vacate arbitration awards, however, are not appeals, the arbitrators are not bound by the same rules of evidence as a court is, and the grounds to vacate an arbitrator's award are statutorily proscribed and are very limited.
Here, Dr. Chiu's peer review and Gentle Care's rebuttal affirmation were submitted to Arbitrator Kennan and were considered by him, as reflected in his determination. However, the issue presented to this court does not concern a motion for summary judgment, but a petition to vacate an arbitration award. And that triggers an inquiry, based upon ATIC's petition, into whether Arbitrator Keenan's fact-finding determination to accord probative value to Gentle Care's rebuttal evidence was incorrect as a matter of law (11 NYCRR 65-4.10 [a] [4]), and whether in turn, Master Arbitrator DeSimone's affirmance must be vacated.
An error of law in a hearing arbitrator's decision can be the basis for reversal - by a master arbitrator. This is because, in the No-Fault Insurance Regulations, at 11 NYCRR 65-4.10 (a) (4), "incorrect as a matter of law" is listed as a basis for a master arbitrator's vacating or modifying a hearing arbitrator's award. In that sense, the master arbitrator's review is broader than that of a court, since a court may not vacate an arbitration award due to an error of law (see Matter of Petrofsky v Allstate Ins. Co., 54 N.Y.2d 207, 211-212, 429 N.E.2d 755, 445 N.Y.S.2d 77 [1981]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 A.D.3d 800, 802 [2d Dept 2019]).
With regard to petitioner's argument that the arbitrator's decision was "incorrect as a matter of law," this court holds that the phrase "incorrect as a matter of law" in 11 NYCRR 65-4.10 (a) (4) is to be construed to refer to settled and established court decisions on issues which do not relate to the admissibility, probative value, credibility, or evaluation of evidence when analyzing issues of fact. Thus, "[I]ncorrect as a matter of law" (11 NYCRR 65-4.10 [a] [4]) refers to substantive issues, not fact-finding ones.
This court's determination is also based on the provision in 11 NYCRR 65-4.10 (a) (4) which states that "procedural or factual errors committed in the arbitration below are not encompassed within this ground." The reference to "factual errors" means that when it comes to assessing evidence for the purpose of fact-finding, an arbitrator has wide latitude and is not required to follow any case law or rules of evidence. The admissibility of evidence at the arbitration hearing and the determination of issues of fact are thus left to the arbitrator's discretion (s ee Wien & Malkin LLP v Helmsley-Spear, Inc., 6 N.Y.3d 471, 483, 846 N.E.2d 1201, 813 N.Y.S.2d 691 [2006] ["Manifest disregard of the facts is not a permissible ground for vacatur of an award...."]; Central Square Teachers Association v Board of Education of the Central Square Central School District, 52 N.Y.2d 918, 919, 419 N.E.2d 341, 437 N.Y.S.2d 663 [1981] ["The path of analysis, proof and persuasion by which the arbitrator reached this conclusion is beyond judicial scrutiny."]; Matter of Lipson v Herman, 189 A.D.3d 440, 441, 137 N.Y.S.3d 324 [1st Dept 2020] ["error of fact... will not result in the vacatur of an arbitrator's award"]; Matter of Bernstein v On-Line Software International, Inc., 232 A.D.2d 336, 338, 648 N.Y.S.2d 602 [1st Dept 1996] ["It is well established, however, that arbitrators are not bound by the rules of evidence and may admit or deny exhibits on an equitable basis."]). In light of this case law with respect to the consideration of evidence and the determination of issues of fact in arbitration, 11 NYCRR 65-4.10 (a) (4)'s phrase "matter of law" is clearly limited in its breadth.
The interpretation that "incorrect as a matter of law" (11 NYCRR 65-4.10 [a] [4]) refers to substantive issues - not evidentiary ones - is supported by case law. "If, however, the master arbitrator vacates the arbitrator's award based upon an alleged error of a rule of substantive law, the determination of the master arbitrator must be upheld unless it is irrational [citations omitted]" (Golden Earth Chiropractic & Acupuncture, PLLC v Global Liberty Ins. Co. of New York, 54 Misc.3d 31, 44 N.Y.S.3d 842 [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2016] [emphasis added]). In Matter of Global Liberty Ins. Co. v McMahon (172 A.D.3d 500, 99 N.Y.S.3d 310 [1st Dept 2019]), the court held that it was incorrect as a matter of law for the hearing arbitrator to not consider the American Medical Association's CPT Assistant newsletter, which is incorporated by reference in the New York Workers' Compensation Medical Fee Schedule, in determining whether the No-Fault insurer paid the proper fee to the medical provider. Issues regarding use of the applicable fee schedules in No-Fault arbitration clearly are substantive. A hearing arbitrator's determination that the service was not medically necessary in the absence of a denial of claim asserting a lack of medical necessity was held to be incorrect as a matter of law (see Matter of Liberty Mutual Ins. Co. v Spine Americare Medical, P.C., 294 A.D.2d 574, [2d Dept 2002]), and this too is a substantive issue. As is applicable here, in contrast, a hearing arbitrator's task of determining whether a service provided was medically necessary when the insurer says no and the provider says yes, entails the making of a finding of fact - not a conclusion of law. A substantive legal issue is not involved.
As the phrase "incorrect as a matter of law," as argued by petitioner, refers solely to issues of substantive law, not to the admissibility, probative value, or credibility, of the evidence which an arbitrator may consider when analyzing issues of fact. This court holds that, when determining an issue of medical necessity, a No-Fault hearing arbitrator is not required to apply the case law for summary judgment motions, which holds that a health service provider must submit an expert's affidavit which "meaningfully refers to and either discusses or rebuts the conclusions of the insurer's expert witness" (see Am. Tr. Ins. Co. v Right Choice Supply, Inc., - Misc.3d -, 2023 NY Slip Op 23039, [Sup Ct Kings Co 2023]).
Accordingly, in this Article 75 proceeding, Arbitrator Keenan's award, which summarizes the peer review report and the medical provider's rebuttal, and concludes that "the rebuttal is sufficient to refute the peer review" [Doc 3 Page 5], was not incorrect "as a matter of law" within the purview of 11 NYCRR 65-4.10 (a) (4).
The court must next determine whether to sustain Master Arbitrator's DeSimone's award. The standard for Article 75 court scrutiny of a master arbitrator's review of a hearing arbitrator's award in terms of whether there was an error of law is whether the award is so irrational as to require vacatur (see Matter of Smith v Firemen's Ins. Co., 55 N.Y.2d 224, 232, 433 N.E.2d 509, 448 N.Y.S.2d 444 [1982]; Matter of Acuhealth Acupuncture, PC v Country-Wide Ins. Co., 170 A.D.3d 1168 [2d Dept 2019]; Matter of Acuhealth Acupuncture, P.C. v New York City Transit Authority, 167 A.D.3d 314 [2d Dept 2018]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 A.D.3d 828 [2d Dept 2017]). In the case at bar, the court finds that Master Arbitrator DeSimone's review of the legal issues presented by ATIC was not irrational.
With respect to the factual issues reviewed by Master Arbitrator DeSimone, the proper standard of her review was whether Arbitrator Keenan reached his decision in a rational manner, i.e., whether it was arbitrary and capricious, irrational, or without a plausible basis. The master arbitrator may not engage in an extensive factual review, such as weighing the evidence, assessing the credibility of the medical reports, or making independent findings of fact (Matter of Petrofsky v Allstate Ins. Co., 54 N.Y.2d 207, 429 N.E.2d 755, 445 N.Y.S.2d 77 [1981]). Here, with respect to the acupuncture bills, Master Arbitrator DeSimone notes that the hearing arbitrator considered Dr. Chiu's peer review. The services were nonetheless found to be medically necessary, and the hearing arbitrator allowed the claim. Ms. DeSimone concludes:
"Determinations of fact, the weight and credibility of the evidence, and the light in which the evidence is viewed, are purely discretionary matters. The Master Arbitrator cannot conduct a de novo review of the above nor can the Master Arbitrator review errors of fact. Since the claims raised by Respondent/Appellant in their appeal were addressed by the arbitrator below, the arguments are outside the scope of a Master review and therefore are denied. Moreover, it is beyond a Master review of a master arbitrator to make her own factual determination of the facts in evidence reviewed by the lower arbitrator or procedural errors committed by the lower arbitrator or to determine the weight of the evidence. Mott v State Farm Ins. Co., 77 A.D.2d 488, Smith v Fireman's Ins. Co., 55 N.Y.2d 244. Therefore, Respondent/Appellant's argument is outside the scope of a Master review and therefore is denied.
Based on the foregoing, I find the lower arbitrator decided this claim based upon his review and evaluation of the record, as well as case law. I find the award below was clearly articulated and had a rational and plausible basis in the evidence. There was no evidence presented which would establish any valid ground to set aside the award of the lower arbitrator. I see no reason to disturb the arbitrator's decision. The award is therefore affirmed in its entirety." (NYSCEF Doc No. 4, master arbitration award, at Page 3).
Judicial review of a master arbitrator's determination not to vacate a hearing arbitrator's award derives from the Insurance Law as set forth above, and involves the question of whether the master arbitrator exceeded his or her power (Matter of Smith v Firemen's Ins. Co., 55 N.Y.2d 224, 231, 433 N.E.2d 509, 448 N.Y.S.2d 444 [1982]). Here Master Arbitrator DeSimone did not exceed her power when she reviewed the factual findings of Arbitrator Keenan. She applied the correct standard of review when she wrote, "I cannot conclude on the basis of the record before me that Arbitrator Keenan's decision was incorrect as a matter of law or arbitrary and capricious" (NYSCEF Doc No. 4, at Page 1).
ATIC's petition in this Article 75 proceeding cites the four applicable grounds delineated in CPLR 7511 for vacating an arbitration award where a party has participated in an arbitration:
if the court finds that the rights of that party were prejudiced by:
(i) corruption, fraud or misconduct in procuring the award; or
(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or
(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 (NYSCEF Doc No. 1, petition, ¶ 33).
ATIC argues that the award here should be vacated because it was "arbitrary and capricious, irrational and without a plausible basis because an arbitration award must be vacated by the Master Arbitrator if the decision was incorrect as a matter of law" [Doc 1 ¶35].
Here, the court finds that ATIC has failed to establish that the decision was incorrect as a matter of law, or that there was corruption, fraud, or misconduct in procuring the award; or that there was partiality on the part of either arbitrator; or that either arbitrator exceeded his or her power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or that there was a failure to follow the procedures of Article 75.
The court finds that Master Arbitrator DeSimone's review was not arbitrary, capricious, irrational, or without a plausible basis (see Matter of Petrofsky v Allstate Ins. Co., 54 N.Y.2d 207, 211-212, 429 N.E.2d 755, 445 N.Y.S.2d 77 [1981]).
Cross-Petition
In addition to seeking to confirm Master Arbitrator DeSimone's award, respondent seeks additional attorney fees, costs and disbursements.
After calculating the total of the first-party benefits awarded in this arbitration plus interest thereon, ATIC was directed in the arbitrator's award to pay respondent an attorneys' fee equal to 20 percent of that total sum, subject to a maximum fee of $1,360.00, as provided for in 11 NYCRR 65-4.6 [d].
Additionally, pursuant to 11 NYCRR 65-4.10 [j] [4], having successfully prevailed in this Article 75 proceeding, respondent is entitled to an additional attorneys' fee (see Global Liberty Ins. Co. of New York v North Shore Family Chiropractic, 178 A.D.3d 525 [1st Dept 2019]; GEICO Ins. Co. v AAAMG Leasing Corp., 148 A.D.3d 703 [2d Dept 2017]).
Naomi Cohn, Esq., submitted an affirmation in support with regard to this Article 75 proceeding (NYSCEF Doc No. 14). In pertinent part, she states that she is of counsel to Ursulova Law Office P.C., attorneys for respondent. She avers that she has provided valuable and necessary services on behalf of respondent, for which she is requesting compensation pursuant to 11 NYCRR 65-4.10(j)(4). She states that her usual billing rate is $400.00 per hour, which she states "takes into account over a decade of experience specializing primarily in no-fault litigation and arbitration." Ms. Cohn states that the total time required to provide these legal services to the client was 2.5 hours "including case review, research, drafting, exhibit preparation, and e-filing. Based upon the above calculations, respondent seeks an attorneys' fee of $1,000.00 (2.5 x 400) for the services performed in this matter."
Considering the applicable factors, this court awards respondent $1,000.00 for the work performed by respondent's counsel on this Article 75 proceeding.
As the prevailing party, respondent is entitled to its costs and disbursements, to be taxed by the County Clerk, should a judgment be entered.
Conclusions of Law
Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED that:
(1) ATIC's petition to vacate the master arbitration award of Toby DeSimone is dismissed.
(2) Gentle Care's cross-petition to confirm the master arbitration award is granted.
(3) The master arbitration award is confirmed in its entirety.
(4) Gentle Care is awarded the principal amount of $4,416.52 as No-Fault insurance benefits, along with simple interest thereon (i.e., not compounded) at two per cent per month on a pro rata basis, using a 30-day month, computed from November 3, 2020 to the date of payment of the principal amount of $4,416.52.
(5) After calculating the total of the principal amount of $4,416.52 plus the interest thereon, to the date of entry of this order, ATIC shall pay Gentle Care an attorneys' fee equal to 20 percent of that sum total, subject to a maximum fee of $1,360.00.
(6) ATIC shall pay Gentle Care an additional attorneys' fee of $130.00 as awarded by the Master Arbitrator.
(7) ATIC shall pay Gentle Care an additional attorneys' fee of $400.00 per hour for work performed by counsel on this Article 75 proceeding, in the sum of $1,000.00.
(8) ATIC shall pay Gentle Care $40 to reimburse respondent for the fee to AAA, as awarded by the arbitrator.
(9) Gentle Care shall recover from ATIC costs and disbursements as allowed by law, to be taxed by the County Clerk if a judgment is entered, pursuant to the Bill of Costs submitted by counsel.
This shall constitute the decision, order and judgment of the court.