The following numbered papers were used on this petition: Submitted by Petitioner Petition (NYSCEF Doc No. 1) Notice of Petition (NYSCEF Doc No. 2) Exhibit A — Petitioner’s Arbitration Submission (NYSCEF Doc No. 3) Exhibit B — Respondent’s Arbitration Submission (NYSCEF Doc No. 4) Exhibit C — Arbitration Award (NYSCEF Doc No. 5) Exhibit D — Master Arbitration Award (NYSCEF Doc No. 6) Affirmation of Naomi Cohen, Esq. in Support (“Cohn Aff”) (NYSCEF Doc No. 7) Exhibit E — Proof of Mailing (NYSCEF Doc No. 8) Request for Judicial Intervention (NYSCEF Doc No. 9) Affidavit of Service (NYSCEF Doc No. 10) Filed by Court Interim Order (NYSCEF Doc No. 11) DECISION, ORDER and JUDGMENT Questions Presented Should a No-Fault insurance arbitration determination be vacated where the hearing arbitrator found that the respective bill was mailed past the 45-day deadline for submitting proof of claim based on the lack of an affidavit describing mailing procedures or confirming the actual mailing of the bill, and Petitioner’s sole evidence on the issue was a USPS certificate of mailing found to contain an illegible postmark? Must a No-Fault insurance arbitrator apply case law governing evidence introduced in court with respect to proof of mailing? Background Petitioner Community Medical Imaging P.C. (“Petitioner”) commenced this CPLR Article 75 proceeding by notice of petition, seeking an order and judgment vacating a No-Fault insurance master arbitration award of Alana Barran, Esq. (dated October 24, 2023), which affirmed the hearing arbitration award of Stacey Charkey, Esq. (dated July 25, 2023). The hearing arbitrator had denied Petitioner’s claim against Respondent American Transit Insurance Company (“Respondent”) for No-Fault insurance compensation in the amount of $1,728.98 for performing cervical and lumbar MRIs.1 These medical services were provided to Derick Mantuano, who claimed to have been injured in a motor vehicle accident on September 29, 2021. He had assigned his No-Fault insurance benefits to Petitioner.2 (See generally NYSCEF Doc No. 1, Petition.) Respondent did not submit any papers in opposition. This special proceeding was scheduled on the Court’s March 21, 2024 calendar. On March 19, 2024, the Court issued an interim order informing the parties that the special proceeding would be determined on the submissions pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), Section 6 (Personal Appearances) (“All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.).” This Court has considered the petition on the papers submitted (see Buckley v. Zoning Bd. of Appeals of City of Geneva, 189 AD3d 2080, 2081 [4th Dept 2020]; Matter of Dandomar Co., LLC v. Town of Pleasant Val. Town Bd., 86 AD3d 83 [2d Dept 2011]; Matter of Javarone, 76 Misc 2d 20, 21 [County Ct, Fulton County 1973] [special proceeding may be summarily determined by the court solely on the pleadings and other papers submitted], affd 49 AD2d 788 [3d Dept 1975]). A court should review an Article 75 petition to vacate an arbitration award even in the absence of opposing papers (see American Tr. Ins. Co. v. NextStep Healing, Inc., 79 Misc 3d 1203[A], 2023 NY Slip Op 50521 [U] [Sup Ct, Kings County 2023]). The underlying arbitration which is the subject of this proceeding was organized by the American Arbitration Association (“AAA”), which assigned Case No. 17-22-1246-9231 to it. When master arbitration was commenced. Case No. 99-22-1246-9231 was then assigned. The AAA has been designated by the New York State Department of Financial Services to coordinate the mandatory arbitration provisions of Insurance Law §5106 (b): Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party ["No-Fault insurance"] benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent. Insurance Law Article 51 provides for the payment of basic economic loss incurred by persons injured in motor vehicle accidents. Included within basic economic loss are first-party benefits for medical and other professional health services.3 First-party benefits are more commonly known as “No-Fault benefits”4 or “personal injury protection (PIP) benefits”5. In furtherance of the statutory scheme, a comprehensive set of No-Fault Regulations was promulgated by the Superintendent of Insurance (presently Superintendent of Financial Services). They are contained at 11 NYCRR Part 65. Said part is subdivided into five subparts which encompass the following topics: prescribed policy endorsements (11 NYCRR Subpart 65-1), rights and liabilities of self-insurers (11 NYCRR Subpart 65-2), claims for personal injury protection benefits (11 NYCRR Subpart 65-3), arbitration (11 NYCRR Subpart 65-4), and unauthorized providers of health services (11 NYCRR Subpart 65-5). Part 65 is also known as Insurance Regulation 68. Generally, the claims process for health service bills6 for No-Fault insurance compensation begins with the submission by a health service provider of a claim form (usually, but not always, a Form NF-3 verification of treatment by attending physician or other provider of health service).7 Besides providing information regarding the injured person, the accident, the subject insurance policy, the billing health service provider, diagnoses, and projected treatment, the claim form includes a bill for services performed. The claim form can be submitted directly by the injured person to the No-Fault insurer but over many decades a practice developed whereby the health service providers submit the claim forms. As noted in footnote 1, supra at 2, they possess standing to do so by virtue of having received signed assignments of benefits from the injured persons.8,9 The insurer must then either pay or deny the bill within 30 days, or seek additional verification within 15 business days. If it denies payment, it must issue a Form NF-10 denial of claim10 explaining why the bill was not paid. (See Insurance Law §5106 [a]; Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498, 505 [2015].) The record evidence submitted in this Article 75 proceeding revealed that the underlying arbitration involved one claim form covering services on December 13, 2021, as per the Form AR1 Arbitration Request (see NYSCEF Doc No. 3, Petitioner’s Arbitration Submission at 611). The following chart provides pertinent information concerning the bill and how Respondent dealt with it: Dates of Service Amount Respondent’s Actions 12/13/21 $1,728.98 Denial of claim asserted untimely proof of claim (“45-day rule”); fees not in accordance with fee schedule (see NYSCEF Doc No. 4, Respondent’s Arbitration Submission at 7-9). Hearing Arbitrator’s Award The record evidence reveals further that on June 28, 2023, Arbitrator Stacey Charkey, Esq. (“hearing arbitrator”), conducted a hearing at which Nadezhda Ursulova., Esq., from Ursulova Law Offices P.C., appeared for Petitioner, and Jeffrey Siegel, Esq. appeared for Respondent (see NYSCEF Doc No. 5, Arbitration Award at numbered p 1). The American Arbitration Association maintains an online platform for documents filed by parties to No-Fault insurance arbitrations. It is called Modria12. The submissions on Modria for the arbitration at issue are contained in NYSCEF Document Nos. 3 and 4 submitted by Petitioner. With respect to the defense of fees not being in accordance with fee schedule, apparently the defense was not pursued by Respondent during arbitration and the only issue was Respondent’s invocation of the 45-day rule. Addressing that issue, the hearing arbitrator wrote in her award that 11 NYCRR 65-1.1 (d) (Conditions) requires that proof of claim of health service expenses be submitted to the insurer as soon as reasonably practicable but no later than 45 days after the date that services are rendered. She continued: Based upon my review of the submitted documentation, I find that the applicant has failed to show actual mailing of a properly addressed bill sufficient to create a presumption of receipt of the bills by the respondent. No proof of mailing has been supplied. There is no question but that where a claimant has failed to submit its claim within 45 days after the rendition of medical services, the claim must be denied. St. Vincent’s Hosp. & Medical Center v. County Wide Insurance Co., 24 A.D.3d 748, 809 N.Y.S.2d 88 (2d Dept. 2005). An insurer does not even have to show that it was prejudiced by the submission of an untimely claim. Bronx Expert Radiology, P.C. v. Great Northern Ins. Co., 24 Misc.3d 134(A), 2009 N.Y. Slip Op. 51474(U), 2009 WL (App. Term 1st Dept. July 13, 2009). The services were provided on 12/13/2021. The submitted bill is dated 1/13/2022. The bill was acknowledged to have been received by respondent on 2/22/2022. It is Applicant’s burden to demonstrate timely submission of its bills. Applicant submits a USPS Certificate to demonstrate mailing of the bill. Applicant does not submit an affidavit with respect to mailing procedures generally or the actual mailing of this bill from someone with personal knowledge. Inasmuch as the postage cancellation is illegible, (I can discern a “9″ and year, “2022″, but no month or full day) it is impossible to determine when the bill was actual received by the Post Office. The postage meter only demonstrates when the postage was purchased (1/19/2022) -not when the item was received by the Post Office. Indeed, the item could have been mailed on 1/19/2022, 2/9/22, or even 2/19/2022. Therefore, it is my finding of fact that the subject bills were mailed more than 45 days after the dates of service and Respondent’s denial of claim forms embodying the defense of the 45-day rule is sustained. Applicants claim for reimbursement is, therefore, denied in its entirety as being untimely submitted (Id. at numbered pp 2-3 [emphasis added].) Master Arbitrator’s Award Its claim having been denied by the hearing arbitrator, Petitioner appealed by filing for master arbitration. Master Arbitrator Alana Barran (“master arbitrator”) affirmed the hearing arbitrator’s award. After setting forth a summary of the law concerning master arbitration review, the master arbitrator addressed the points asserted on appeal: Applicant/Appellant states in its brief that the Respondent/Appellee denied the claim based on the 45-day rule, that the bill was timely mailed on 1/19/2022 or less than 45 days after the date of service, that the NFA is factually and legally incorrect in finding that the proof of mailing was insufficient as “the postage meter stamp, dated 1/19/2022, shows the date this mail was received by the post office. This is not a Pitney Bowes postage stamp. It states on its face that it is a ‘United States Postal Service’ postage stamp. Therefore, January 19th is the date that the envelop[e] was entered into the custody and control of the United States Postal Service. The lower arbitrator’s award is arbitrary, capricious, and incorrect as a matter of law. Accordingly, the decision of the lower arbitrator must be vacated…Community produced actual proof of mailing from the United States Postal Service. The carrier failed to submit a copy of the bill date-stamped when received…[The NFA] failed to review and weigh the evidence and failed to note that the postage stamp is marked United States Postal Service and reflects the date mailed.” The Respondent/Appellee’s brief states that “In support of its contention that the claim was timely mailed, the plaintiff attached a bill and a self-generated facsimile of a USPS Form 3877 that lacks a legible USPS stamp…American Transit argued that it first received the claim on 02/22/22 and that the claim was properly denied on the grounds that the claim was submitted untimely…In her award dated 07/25/23, [the NFA] denied the claim finding the Applicant’s evidence to be insufficient…Here, the Applicant is either seeking a usurpation of [the NFA's] conclusions regarding the credibility of the evidence or a de novo review of the evidence underlying this dispute…Accordingly, the award appealed from should be affirmed.” (NYSCEF Doc No. 6, Master Arbitration Award at numbered pp 2-3.) Considering that her determination in this case implicated an issue of fact resolved by the hearing arbitrator, the master arbitrator then reasoned the following: The arbitrator is free to choose between the experts’ testimony and evaluate the evidence. See Bilotta v. Chevrolet-Tonawanda Division GMC, 81 AD2nd 718 (3rd Dept. 1981). Additionally, the fact that a different conclusion could have been reasonably reached is not sufficient ground to set aside the determination. See Matter of Steinberg v. DiNapoli, 93 AD3d 1068, 1069, 941 NYS2d 300 [2012]; Matter of Holmstrand v. Board of Regents of Univ. of State of N.Y., 71 AD2d 725, 726, 419 NYS2d 223 [1979]); Matter of Cohn Chemung Props., Inc. v. Town of Southport, 108 AD3d 928, 929 [3rd Dept. 2013]). Again, 11 N.Y.C.R.R. §65-4.5 (o) (1) provides, in part, as follows: “(o) Evidence. (1) The arbitrator shall be the judge of the relevance and materiality of the evidence offered, and strict conformity to legal rules of evidence shall not be necessary. The arbitrator may question any witness or party and independently raise any issue that the arbitrator deems relevant to making an award that is consistent with the Insurance Law and department regulations”. (Id. at numbered p 3.) The master arbitrator held that the hearing arbitrator provided a rational basis for her factual finding that Petitioner’s evidence was insufficient to establish timely submission of the bill. She concluded: The NFA’s factual finding here related to the Applicant/Appellant’s proof of mailing of the claim is not disturbed. Upon a reading of the record, I am satisfied that there was sufficient evidence relied upon by the NFA and based on which the NFA rationally found in favor of Respondent/Appellee. I find that the NFA’s determination definite and final, and that the NFA’s decision was not irrational, arbitrary, capricious or incorrect as a matter of law. (Id. at numbered p 4.) Petition to Vacate & Petitioner’s Arguments Although brief, the petition to vacate filed by Petitioner disputes the arbitration determination that it failed to submit proof of claim within the 45-day deadline. The master arbitrator’s award was asserted to be “arbitrary, capricious, irrational, and in violation of No-Fault law” (NYSCEF Doc No. 1, Petition 16). In further explication of its petition to vacate the arbitration determination, Petitioner submitted an attorney affirmation of Naomi Cohn, Esq. She argued that the hearing arbitrator’s analysis of the proffered USPS certificate of mailing was irrational and wrong. In particular, counsel took issue with the hearing arbitrator’s finding that the postmark date was not completely legible. While the hearing arbitrator could make out a 9 and the year 2022, she could not discern a month or complete date. Counsel argued that “The proof of mailing is not illegible. It clearly shows [in the attached Exhibit E (NYSCEF Doc No. 8)] that the bill was timely mailed on January 19, 2022″ (NYSCEF Doc No. 7, Cohn Aff 8). Instead of finding the hearing arbitrator’s determination irrational in accordance with Matter of Petrofsky (Allstate Ins. Co.) (54 NY2d 207 [1981]), the master arbitrator “rubber-stamped” it (id.
9-10). Counsel cited to case law regarding the presumption of receipt of mail and mere denials of receipt being insufficient (see id.
