Opinion
879 Index No. 654892/22 Case No. 2023–03262
10-24-2023
In the Matter of NEW MILLENNIUM PAIN & SPINE MEDICINE, P.C. etc., Petitioner–Appellant, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Respondent–Respondent.
Roman Kravchenko, Melville (Jason Tenenbaum of counsel), for appellant. McCormack & Mattei, P.C., Garden City (Jamila Shukry of counsel), for respondent.
Roman Kravchenko, Melville (Jason Tenenbaum of counsel), for appellant.
McCormack & Mattei, P.C., Garden City (Jamila Shukry of counsel), for respondent.
Manzanet–Daniels, J.P., Rodriguez, Pitt–Burke, Higgitt, Rosado, JJ.
Order, Supreme Court, New York County (John J. Kelley, J.), entered June 28, 2023, which denied petitioner's application pursuant to CPLR article 75 to vacate a master arbitration award, dated December 1, 2022, affirming an arbitrator's award denying petitioner's claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.
The court correctly denied the petition to vacate the master arbitration award. "Generally, a court will not set aside an arbitrator's award for errors of law or fact unless the award is so irrational as to require vacatur" ( Matter of Carty v. Nationwide Ins. Co., 212 A.D.2d 462, 622 N.Y.S.2d 947 [1st Dept. 1995] ). Here, petitioner does not dispute that the subject policy was exhausted prior to the underlying arbitration, but argues that its claim for no-fault compensation, which was submitted and denied prior to the exhaustion of the policy, should retain priority of payment. The fact that the arbitrator followed First Department precedent in ( Harmonic Physical Therapy, P.C. v. Praetorian Ins. Co., 47 Misc.3d 137[A], 2015 N.Y. Slip Op. 50525[U], 2015 WL 1649002 [App.Term, 1st Dept. 2015] ) rather than Second Department precedent in ( Alleviation Med. Servs., P.C. v. Allstate Ins. Co., 55 Misc.3d 44, 49 N.Y.S.3d 814 [App.Term, 2d Dept. 2017], affd on other grounds 191 A.D.3d 934, 143 N.Y.S.3d 395 [2d Dept. 2021] ) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer's duties cease upon the insurer's payment of the contractual limit on its no-fault policy (see Matter of DTR Country–Wide Ins. Co. v. Refill Rx Pharm., Inc., 212 A.D.3d 481, 181 N.Y.S.3d 252 [1st Dept. 2023], lv denied 40 N.Y.3d 904, 2023 WL 6153360 [2023] ).