By Mastro, J.P.; Roman, Hinds-Radix and Maltese, JJ. PNC Bank, NA, etc., ap, v. Shahana Islam, res, et al., def — (Index No. 702210/14) In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), dated November 3, 2016. The order denied the plaintiff’s motion for summary judgment on the complaint insofar as asserted against the defendant Shahana Islam, to strike the amended answer of that defendant, and to direct the appointment of a referee, on the ground that the motion was untimely. ORDERED that the order is reversed, on the law, with costs, and the plaintiff’s motion for summary judgment on the complaint insofar as asserted against the defendant Shahana Islam, to strike the amended answer of that defendant, and to direct the appointment of a referee is granted. On or about April 7, 2011, the plaintiff commenced an action, inter alia, to foreclose a mortgage on property owned by the defendant Shahana Islam (hereinafter the defendant). In October 2013, the plaintiff moved to discontinue that action. In April 2014, the plaintiff commenced the instant action, inter alia, to foreclose the mortgage. A note of issue was filed on August 10, 2015. In September 2015, the plaintiff moved, inter alia, to strike the defendant’s answer and for summary judgment on the complaint insofar as asserted against the defendant. The defendant opposed the motion and cross-moved for leave to amend her answer to assert a twelfth affirmative defense, alleging that the plaintiff violated RPAPL 1301(3) by commencing the instant action while the prior action was still pending. In an order entered March 2, 2016, the Supreme Court denied the plaintiff’s motion and granted the defendant’s cross motion. On March 22, 2016, the plaintiff moved to strike the defendant’s amended answer, for summary judgment on the complaint insofar as asserted against the defendant, and to direct the appointment of a referee. In the order appealed from, dated November 3, 2016, the Supreme Court denied the plaintiff’s motion on the ground that the time to move for summary judgment had expired on or about December 8, 2015, which was 120 days after the filing of the note of issue on August 10, 2015 (see CPLR 3212[a]). Initially, since the defendant’s cross motion to amend the answer was not granted until March 2, 2016, there was good cause for the plaintiff’s delay in moving for summary judgment on the complaint and on the matters alleged in the amended answer, including the twelfth affirmative defense (see Brill v. City of New York, 2 NY3d 648, 652). On the merits, the plaintiff established its prima facie entitlement to summary judgment on the complaint insofar as asserted against the defendant by submitting the note endorsed in blank, the mortgage, and evidence of the defendant’s default (see Zarabi v. Movahedian, 136 AD3d 895, 895-896). In opposition, the defendant failed to raise a triable issue of fact. With respect to the defendant’s twelfth affirmative defense, “RPAPL 1301(3) provides that ‘[w]hile [an] action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought.’ The purpose of this statute is to protect the mortgagor ‘from the expense and annoyance’ of simultaneously defending against two independent actions to recover the same mortgage debt” (Old Republic Natl. Tit. Ins. Co. v. Conlin, 129 AD3d 804, 804-805, quoting Central Trust Co. v. Dann, 85 NY2d 767, 772). Here, the plaintiff moved to discontinue the prior action months before commencing the instant action. Thus, the defendant did not have to defend against more than one lawsuit, and any failure by the plaintiff to strictly comply with RPAPL 1301(3) should have been disregarded as a mere irregularity which did not prejudice a substantial right of any party (see Wells Fargo Bank, N.A. v. Irizarry, 142 AD3d 610, 611). Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant’s amended answer, and to direct the appointment of a referee. MASTRO, J.P., ROMAN, HINDS-RADIX and MALTESE, JJ., concur.
By Balkin, J.P.; Roman, Nelson and Christopher, JJ. MATTER of Acuhealth Acupuncture, P.C., etc., res, v. Country-Wide Ins. Co., ap — (Index No. 3132/16) In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated February 25, 2016, Country-Wide Ins. Co. appeals from a judgment of the Supreme Court, Kings County (Kathy J. King, J.), dated October 27, 2016. The judgment, upon an order of the same court dated October 26, 2016, granting the petition, vacating the master arbitrator’s award dated February 25, 2016, and confirming the original arbitrator’s award dated December 4, 2015, is in favor of the petitioner and against Country-Wide Ins. Co. in the total sum of $13,864.96. ORDERED that the judgment is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of an additional attorney’s fee to be awarded to the petitioner pursuant to Insurance Department Regulations (see 11 NYCRR 65-4.10[j][4]). Acuhealth Acupuncture, P.C. (hereinafter Acuhealth), is the assignee of a claim for no-fault benefits for treatment it rendered to Massiel Olsen. After the carrier, Country-Wide Ins. Co. (hereinafter Country-Wide), denied the claim, Acuhealth submitted the claim to arbitration. The arbitrator, upon refusing to consider Country-Wide’s defenses on the ground that Country-Wide’s submissions to the arbitrator were late, with no excuse for their lateness, found in favor of Acuhealth. On Country-Wide’s appeal, the master arbitrator vacated the award and issued a new award in favor of Country-Wide based on the defense that Acuhealth was fraudulently incorporated, which the original arbitrator had refused to consider on the ground that it was untimely submitted. Acuhealth then commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The Supreme Court granted Acuhealth’s petition, vacated the master arbitrator’s award in favor of Country-Wide, and confirmed the original arbitrator’s award in favor of Acuhealth. Country-Wide appeals. An arbitrator acts within his or her discretionary authority by refusing to entertain late submissions (see Matter of Global Liberty Ins. Co. v. Coastal Anesthesia Servs., LLC, 145 AD3d 644, 645; Matter of Mercury Cas. Co. v. Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017; Matter of Green v. Liberty Mut. Ins. Co., 22 AD3d 755, 756). Here, in rejecting the original arbitrator’s proper exercise of his discretionary authority, and in passing, de novo, upon factual questions concerning the validity of Country-Wide’s defense that Acuhealth was fraudulently incorporated (see State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313, 320-321), the master arbitrator exceeded his power (see Matter of Smith [Firemen's Ins. Co.], 55 NY2d 224, 230-231; Matter of Allstate Ins. Co. v. Keegan, 201 AD2d 724, 725). Accordingly, we agree with the Supreme Court’s determination to vacate the master arbitrator’s award and confirm the original arbitrator’s award in favor of Acuhealth. Moreover, as Acuhealth contends and Country-Wide concedes, Acuhealth is entitled to an attorney’s fee for this appeal pursuant to 11 NYCRR 65-4.10(j), to be fixed by the Supreme Court (see Matter of Country-Wide Ins. Co. v. Bay Needle Acupuncture, P.C., 167 AD3d 404, 405; Matter of Country-Wide Ins. Co. v. Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408; Matter of GEICO Ins. Co. v. AAAMG Leasing Corp., 148 AD3d 703, 706). The matter is therefore remitted to the Supreme Court, Kings County, for that purpose. Acuhealth’s remaining contention is without merit. BALKIN, J.P., ROMAN, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.
