L & b Med., P.C. v Eveready Ins. Co.

[*1] L & b Med., P.C. v Eveready Ins. Co. 2010 NY Slip Op 51725(U) [29 Misc 3d 127(A)] Decided on October 1, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 1, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-935 K C. NO. 2009-935 K C

L & B Medical, P.C. as Assignee of Uvaldo Cerrato, Respondent,

against

Eveready Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 8, 2008. The order denied a petition to vacate a master arbitrator's award and confirmed the award.

ORDERED that the order is affirmed without costs.

In this proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator which upheld an award of an arbitrator rendered pursuant to Insurance Law § 5106 (b), respondent opposed the petition, asserting that the master arbitrator had properly upheld the award. The Civil Court denied the petition and confirmed the award. The instant appeal by petitioner ensued.

"Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and
narrowly applied" (Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2009]). In the instant case, petitioner failed to demonstrate the existence of any of the statutory grounds for vacatur of the master arbitrator's award. Moreover, the determination of the master arbitrator upholding the arbitrator's award "had evidentiary support and a rational basis, and was not arbitrary and capricious" (id.; see also Matter of Smith [Firemen's Ins. Co.], 55 NY2d 224 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 70 AD3d 1043 [2010]; Matter of American Express Prop. Cas. Co. v Vinci, 63 AD3d 1055 [2009]; Matter of Fireman's Fund Ins. Co. v Allstate Ins. Co., 46 AD3d 560 [2007]). Accordingly, the Civil Court properly denied the petition to vacate the master arbitrator's award, and the order is affirmed. [*2]

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am in complete disagreement with the findings of the arbitrator and the master arbitrator, in that they improperly imposed an additional requirement for a sufficient peer review report, which requirement is neither mandated by the no-fault regulations nor supported by authoritative case law. However, notwithstanding the error in their application of the law, such error does not here rise to the level of being arbitrary and capricious.
Decision Date: October 01, 2010