Advanced Orthopaedics, PLLC, Matter of, v Unitrin Advantage Ins. Co.

[*1] Advanced Orthopaedics, PLLC, Matter of, v Unitrin Advantage Ins. Co. 2020 NY Slip Op 51017(U) Decided on August 27, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 27, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : THOMAS A. ADAMS, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
2019-807 N C

Matter of Advanced Orthopaedics, PLLC, as Assignee of Lisa Jones, Appellant,

against

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.

Appeal from an order of the District Court of Nassau County, First District (Ignatius L. Muscarella, J.), dated April 11, 2019. The order denied a petition to vacate a master arbitrator's award, dated September 12, 2018, in a CPLR 7511 proceeding. The appeal was taken to the Appellate Term, Second, Eleventh and Thirteenth Judicial Districts and was transferred to this court by a decision and order on motion of that court dated January 23, 2020 (2020 NY Slip Op 61944[U]).

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 AD3d 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 NY2d 207, 212 [1981])" (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 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 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207). Consequently, the Civil Court properly denied the petition to vacate the master arbitrator's award.However, upon [*2]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 AD2d 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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 27, 2020