Better Health Med. P.C. v MVAIC
Annotate this CaseDecided on January 11, 2005
Civil Court of the City of New York, Kings County
BETTER HEALTH MEDICAL P.C., as assignee of CHRISTOPHER WALA, Petitioner,
against
MVAIC, Respondent.
105048/04
Donald Scott Kurtz, J.
In this proceeding to recover first-party no-fault benefits, petitioner moves, pursuant to CPLR §7511, for an order vacating a no-fault master arbitration award.
Petitioner filed a request for arbitration with the American Arbitration Association. Petitioner's claim was heard and on April 5, 2004, a decision was rendered denying petitioner's claim. The date of mailing stamped on the [*2]decision is April 16, 2004. Petitioner requested a review by a master arbitrator, pursuant to 11 NYCRR §§65-4.10(d)(2) and 65-4.10. The case was assigned to a master arbitrator who affirmed the lower arbitrator's decision. The master arbitrator found that petitioner's request for review of the lower arbitrator's decision was submitted on May 10, 2004 and was, therefore, untimely pursuant to §65-4.10(d)(2).
A precondition to judicial review pursuant to CPLR article 75 is review of a no-fault arbitrator's award by a master arbitrator. See Insurance Law 5106(c); Custen v. General Acc. Fire and Life Ins. Co.,126 AD2d 256 (2d Dept 1987). Therefore, a party to no-fault arbitration must exhaust administrative remedies by timely appealing an arbitrator's award to a master arbitrator or be precluded from obtaining judicial review of the arbitrator's award. See id.
Furthermore, before a master arbitrator may consider whether an award is incorrect as a matter of law, pursuant to §65-4.10(a)(4), a master arbitrator must determine whether a request for review is timely made. See §65-4.10(c)(4); Calandro v. Home Ins. Co., 199 AD2d 262, 263 (2d Dept 1993), lv denied, 84 NY2d 844 (1994). A request for review is timely if it is in writing and "mailed or delivered to the designated organization's master arbitration administrative office within 21 calendar days of the mailing of the award." §65-4.10(d)(2).
Petitioner argues that the master arbitrator deprived petitioner of its right to procedural due process and that the arbitrator's award was incorrect as a matter of law. However, before the court may consider the substance of the arbitrator's decision, it must first find that petitioner exhausted administrative remedies by timely appealing to a master arbitrator. At oral argument, petitioner maintained that it received the arbitrator's decision well after the April 16, 2004 mailing date stamped on the decision and that, in fact, the decision was not mailed on said date. Petitioner maintained that as soon as it received the decision, it requested a review by the master arbitrator and was assigned a master arbitrator and dates for submissions of legal briefs. Petitioner maintains that its constitutional right to procedural due process was denied in that its request for appeal was granted and retroactively denied by the master arbitrator.
Respondent argues that the master arbitrator's finding should be upheld because petitioner's request for review was indeed untimely. Moreover, in a letter dated June 15, 2004, the master arbitrator informed petitioner's attorney that it appeared that petitioner's letter requesting a review was filed late. The letter further stated that prior to reviewing the matter on the merits, the master arbitrator will make a determination as to whether petitioner has satisfied the time requirements of §65-4.10(d)(2). Finally, the letter stated "please submit any legal basis that you feel would justify the extension of the time requirement....before July 12, 2004." Respondent contends and petitioner does not dispute that petitioner did not submit anything in response to the master arbitrator's letter, and he, therefore, denied petitioner's application on July 14, 2004.
It is undisputed that a master arbitrator has the authority to deny a request for review upon the ground that it was untimely and shall, in lieu of rendering an award, deny the request for review. See 11 NYCRR §65-4.10; Berent v. County of Erie, 86 AD2d 764 (4th Dept 1982). Petitioner contends that the lower arbitrator's decision was not mailed on April 16, 2004 and that it received the lower arbitrator's decision well past the mailing date stamped on it. However, petitioner does not submit evidence to support its position, such as an affidavit by the person who received the decision. See §65-4.10(d)(3) (which provides that "the designated organization shall note on such award or transmittal letter thereof the date of mailing and keep a record of same (emphasis added)." Moreover, petitioner does not contend that it responded to the master arbitrator's letter which gave petitioner a chance to advance its argument for an extension of time. Petitioner may not now advance arguments concerning proof, or lack thereof, of mailing if such arguments were not raised before the master arbitrator. See Calandro v. Home Ins. Co., 199 AD2d at 263. Therefore, petitioner's contention that it was denied its right to procedural due process is without merit. The Court finds that petitioner failed to exhaust administrative remedies by timely appealing to the master arbitrator and, therefore, the Court may not consider whether the lower arbitrator's award was incorrect as a matter of law.
In view of the foregoing, the petition to vacate the master arbitrator's award is dismissed.
The foregoing shall constitute the Decision and Order of the Court.
[*3]Dated: January 11, 2005
DONALD SCOTT KURTZ
Judge, Civil Court
ASN by__________ on __________
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
