The following numbered papers were read on this special proceeding: NYSCEF Document Numbers 1-20 ORDER & JUDGMENT IN ARTICLE 75 SPECIAL PROCEEDING Upon the foregoing papers, this matter being determined on the submissions of the parties, and due deliberation having been had thereon, The proper standard of review by a No-Fault insurance master arbitrator is whether the hearing arbitrator’s determination was arbitrary and capricious, irrational, or without a plausible basis, or incorrect as a matter of law; the master arbitrator may not engage in an extensive factual review, which includes weighing the evidence, assessing the credibility of various medical reports, or making independent findings of fact (Matter of Petrofsky (Allstate Ins. Co.), 54 NY2d 207 [1981]). The standard for Article 75 court scrutiny of a master arbitrator’s review of a hearing arbitrator’s award in terms of whether there was an error of law is whether it was so irrational as to require vacatur (see Matter of Smith (Firemen’s Ins. Co.), 55 NY2d 224, 232 [1982]; Matter of Acuhealth Acupuncture, PC v. Country-Wide Ins. Co., 170 AD3d 1168 [2d Dept 2019]; Matter of Acuhealth Acupuncture, P.C. v. New York City Transit Authority, 167 AD3d 869 [2d Dept 2018]; Matter of Acuhealth Acupuncture, P.C. v. Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]). The master arbitrator’s determination of the law need not be correct, and mere errors of law are insufficient to set aside the master arbitrator’s award; on questions of substantive law, the master arbitrator’s determination must be upheld if there is a rational basis for his determination; if the master arbitrator’s errors on a matter of law are irrational, his award may be set aside (see Matter of Liberty Mut. Ins. Co. v. Spine Americare Med., P.C., 294 AD2d 574 [2d Dept 2002]). Judicial review of a master arbitrator’s factual determination in an arbitration appeal is limited to whether the master arbitrator exceeded his or her power, for instance by impermissibly weighing the credibility of a witness, by reviewing the hearing arbitrator’s factual determination, or by reviewing medical reports de novo (see Matter of Allstate Ins. Co. v. Keegan (201 AD2d 724 [2d Dept 1994]). Here, the Master Arbitrator assessed the evidence submitted de novo to him in support of a defense by the No-Fault insurer that the subject policy had exhausted (the grounds for vacatur raised by the No-Fault insurer herein). He found it deficient. “In this case, a review of Modria and the papers submitted by the parties finds only a bare payment ledger. Thus, there was insufficient evidence before the arbitrator to sustain an exhaustion defense,1 and there is likewise insufficient evidence before this master arbitrator.” (NYSCEF Doc No. 4 at 2.) His legal and factual conclusions were neither arbitrary, capricious, irrational, without a plausible basis, or incorrect as a matter of law. As for the No-Fault insurer being compelled to pay above the policy limit, said determination is not incorrect as a matter of law (see Nyack Hospital v. General Motors Acceptance Corp., 8 NY3d 294 [2007]; Quality Health Supply Corp. v. Amica Mutual Ins. Co., 73 Misc 3d 1231[A], 2021 NY Slip Op 51187[U] [Civ Ct, Kings County 2021]; Country-Wide Ins. Co. v. Excel Surgery Ctr., LLC, 2018 NY Slip Op 33351[U] [Sup Ct, NY County 2018]; Country-Wide Ins. Co. v. Excel Surgery Ctr., LLC, 2018 NY Slip Op 33260[U] [Sup Ct, NY County 2018]). As for the No-Fault insurer’s deficient evidence in support of a policy exhaustion defense, the master arbitrator did not exceed his powers (see Alleviation Medical Serv., P.C. v. Allstate Ins. Co., 191 AD3d 934 [2d Dept 2021]); JPF Med. Serv., P.C. v. Nationwide Ins., 69 Misc 3d 127[A], 2020 NY Slip Op 51122[U] [App Term, 2d, 11th & 13th Dists 2020]; Metro Pain Specialist, P.C. v. Hertz Co., 66 Misc 3d 129[A], 2019 NY Slip Op 52047[U] [App Term, 2d, 11th & 13th Dists 2019]; Island Life Chiropractic, P.C. v. Commerce Ins. Co., 56 Misc 3d 129[A], 2017 NY Slip Op 50856[U] [App Term, 2d, 11th & 13th Dists 2017]; Country-Wide Ins. Co. v. CPM Med Supply, Inc., 2022 NY Slip Op 30193[U], *3 [Sup Ct, NY County 2022]; MVAIC v. Metro Pain Specialists, PC, 2020 NY Slip Op 30808[U] [Sup Ct, NY County 2020]; Island Life Chiropractic Pain Care PLLC v. Amica Mut. Ins. Co., 65 Misc 3d 1212[A], 2019 NY Slip Op 51589[U] [Civ Ct, Kings County 2019]; All Healthy Style Med., P.C. v. ELRAC, Inc., 61 Misc 3d 1203[A], 2018 NY Slip Op. 51333[U] [Civ Ct, Kings County 2018]; Westchester Med. Ctr. v. Liberty Mut. Ins. Co., 2010 NY Slip Op 30649[U] [Sup Ct, Nassau County 2010]); cf. Ameriprise Ins. Co. v. Electrodiagnostic & Physical Med., P.C., 2020 NY Slip Op 33246[U] [Sup Ct, NY County 2020]. Furthermore, none of the grounds specified in CPLR 7511 (b) for vacating an arbitration award have been established. It is hereby ORDERED and ADJUDGED that the within special proceeding is determined as follows: The within petition of Petitioner herein is DENIED, and the special proceeding is DISMISSED. The master arbitration award in American Arbitration Association Case No. 99-21-1194-3799 of Master Arbitrator Richard B. Ancowitz, which affirmed the award of Arbitrator Yael Aspir, is confirmed in its entirety. Respondent herein is awarded the principal amount, interest, attorney’s fees, and return of filing fee as determined in the arbitration (see the arbitration award and the master arbitration award). The interest shall accrue from February 18, 2021, which is the arbitration filing date (see 11 NYCRR 65-4.5 [s] [3], 65-3.9 [c]; Canarsie Med. Health, P.C. v. National Grange Mut. Ins. Co., 21 Misc.3d 791, 797 [Sup Ct, NY County 2008]), at the rate of two percent per month, simple, calculated on a pro-rata basis using a 30-day month (see 11 NYCRR 65-3.9 [a]). Petitioner herein shall pay Respondent herein an attorney’s fee of $325.00 for work performed by counsel on this Article 75 proceeding, in the absence of evidence from Respondent herein as to the dates and hours during which work was performed (see 11 NYCRR 65-4.10 [j] [4]). Based on a review of Respondent’s opposition papers and presuing that five hours work was performed, this Court applies the $65.00 per hour fee provided for in 11 NYCRR 65-4.10 [j] [2]; see American Tr. Ins. Co. v. Nexray Med. Imaging P.C., ___ Misc. 3d ___[A], 2023 NY Slip Op 51311[U] [Sup Ct, Kings County 2023]). Respondent herein shall recover from Petitioner herein the costs and disbursements as allowed by law to be taxed by the Clerk. Dated: December 8, 2023
