American Tr. Ins. Co. v. Nexray Med. Imaging PC

American Tr. Ins. Co. v Nexray Med. Imaging PC 2025 NY Slip Op 31611(U) April 11, 2025 Civil Court of the City of New York, New York County Docket Number: Index No. CV-701110-22/NY Judge: Wendy C. Li Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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CIVIL COURT CIVIL OF THE COURT OF THE CITY OF NEW CITY OF NEW YORK YORK COUNTY OF NEW COUNTY OF NEW YORK YORK ---------------------------------------------------------------------X ---------------------------------------------------------------------X No.: CV-701110-22/NY Index No.: Index AMERICAN AMERICAN TRANSITINSURANCE TRANSIT INSURANCE COMPANY, COMPANY, Petitioner, Petitioner, -against- -against- Decision and Order Decision Order Motion Motion Sequence Sequence #1, #1, #² NEXRAY NEXRA Y MEDICAL MEDICAL IMAGING IMAGING PC PC D/B/A SOUL RADIOLOGY D/B/A SOUL RADIOLOGY Al A/O DAVID A/A/O DA YID CLARKE, CLARKE, Respondent. Respondent. ---------------------------------------------------------------------X _____________________________________________________________________Ç

LI, J.C.C. LI, J.C.C.

I. Recitation I. Recitation of the papers of the papers considered considered in the review in the review of of this this

Motion Motion as required by CPLR required by CPLR 2219(a) 2219(a)

Upon Upon reviewing reviewing Petitioner's Petitioner' s Petition to vacate Petition to vacate the arbitration award ("Motion the arbitration ("Motion #1") #1 ") and

Respondent's Respondent' s opposition opposition and cross motion ("Opposition" cross motion ("Opposition" or or "Motion "Motion #2"), together with #2"), together with allall

supporting documents, Motion supporting documents, Motion #1 #1 isis decided decided as as follows. follows.

II. Background II. Background

The The instant action concerns instant action concerns a no-fault benefits reimbursement no-fault benefits for MRI reimbursement for MRI testing testing services services

sought sought by by Respondent, arising from Respondent, arising from an an automobile automobile accident occurred on accident occurred on May May 27, 27, 2018, 2018, where

Respondent's assignor, David Respondent' s assignor, David Clarke Clarke ("Clarke"), sustained ("Clarke"), sustained injuries. Petitioner injuries. Petitioner denied the denied the

reimbursement based on reimbursement based lack of on lack of medical necessity and medical necessity and Respondent's Respondent's alleged alleged failure failure to to provide provide a

response response to to verification requests pursuant verification requests to 11 NYCRR pursuant to 65-3.8(b). The NYCRR 65-3.8(b). total amount The total amount inin dispute dispute

was was $3,075.34. $3,075 .34. Thereafter, matter atat hand the matter Thereafter, the hand was was submitted submitted to to arbitration arbitration before before Arbitrator Arbitrator Lucille Lucille

S. DiGirolomo S. ("DiGirolomo") on DiGirolomo ("DiGirolomo") on July 2021 , who July 8,8, 2021, who issued an award issued an award inin favor of Respondent favor of Respondent

("Award"), which ("Award"), which was was subsequently affirmed inin aa Master subsequently affirmed Arbitration Award Master Arbitration by Master Award by Master Arbitrator Arbitrator

Richard B. Ancowitz Richard B. ("Ancowitz") on Ancowitz ("Ancowitz") on October October 25, 25 , 2021. 2021 .

eJ 1 of 6 [* 1]

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On On February February 7, 7, 2022, 2022, Petitioner Petitioner filed filed the the instant instant petition petition to to vacate vacate the arbitration award the arbitration

pursuant to CPLR pursuant to CPLR 751 7 511l(b)(1)(iii), (b )(1 )(iii), asserting that both asserting that the Award both the A ward and the the Master Arbitration Award Master Arbitration Award

were arbitrary, capricious and incorrect arbitrary, capricious matter of incorrect as a matter of law and without without a rational rational basis. basis. Petitioner Petitioner

alleged alleged that that the arbitrators ignored the arbitrators the evidence ignored the evidence submitted submitted by by Petitioner, Petitioner, failed failed to to apply the proper apply the proper

burdens and rendered evidentiary burdens evidentiary rendered an award that that was not not a final definite, which final and definite, which was prejudicial prejudicial

to Petitioner. On to Petitioner. On March March 21, 2022, Respondent opposed, 21 , 2022, opposed, contending contending that that the Petition must be the Petition

dismissed as itit was untimely dismissed as untimely and improper improper and failed to demonstrate failed to any of demonstrate any the grounds of the for vacatur grounds for vacatur

set forth set CPLR forth inin CPLR 7511. Additionally, Respondent cross-moved 7511 . Additionally, cross-moved in its Opposition in its to confirm Opposition to confirm the the

Award the amount Award inin the amount of of$3,075.34, plus statutory $3,075.34, plus statutory interest, interest, attorney's attorney's fees, costs and disbursements, fees , costs disbursements,

and and sought sought reasonable reasonable attorney's fees pursuant attorney' s fees to 11 NYCRR pursuant to in connection 65-4.1 O(i)(4) in NYCRR 65-4.10(j)(4) connection with with the the

instant proceeding. Motion instant proceeding. Motion #1 and Motion Motion #2 were subsequently subsequently assigned assigned to this Court to this for a Court for

determination. determination.

III. Discussion III. Discussion

Petitioner's Petition 1. Petitioner's 1. to vacate Petition to vacate the arbitration award the arbitration award

"[J]udicial review of "[J]udicial review of arbitration extremely limited" arbitration awards isis extremely limited" (see & Malkin LLP vv (see Wien & Malkin

Inc., 6 NY3d Helmsley-Spear, Inc., Helmsley-Spear, NY3d 471, 479, 846 N.E.2d 471 , 479, N .E.2d 1201, 813 N.Y.S.2d 1201 , 813 N.Y.S.2d 691 [2006]). "CPLR 691 [2006]). "CPLR

arbitration" article 75 article codifies a limited 75 codifies limited role role for for the the judiciary (see American judiciary inin arbitration" (see American Intl. Specialty Lines Intl. Specialty Lines

Co. vvAllied Ins. Co. Ins. Allied Capital Corp., 35 Capital Corp., NY3d 35 NY3d 64, 70, 125 N.Y.S.3d 64, 70, N.Y.S.3d 340, 149 N.E.3d 340, 149 N.E.3d 33 33 [2020]). [2020]).

In In that that regard, CPLR regard, CPLR 751l(b)(1) 751 l(b)(l) sets forth narrow sets forth narrow circumstances circumstances for judicial review for judicial review of of a

master master arbitrator's arbitrator's award, including when award, including rights of when rights of the petitioner were prejudiced the petitioner by an "arbitrator prejudiced by "arbitrator

the award making the making award exceeded his power exceeded his power or or so imperfectly executed so imperfectly executed itit that final and definite that a final definite award

upon upon the subject matter the subject not made" submitted was not matter submitted (see CPLR made" (see 7511 [b ][1 ][iii]). "It CPLR 7511[b][1][iii]). " It isis well-settled well-settled

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FILED: NEW YORK CIVIL COURT - CIVIL 05/01/2025 01:23 INDEX PM NO. CV-701110-22/NY NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/01/2025

Footnotes

[2] of 6 [* 2] Index CV-701110-22/NY No.: CV-701110-22/NY Index No.: that an arbitrator that arbitrator 'exceed[s] 'exceed[s] his power' his power' under of the the meaning of under the statute where the statute his 'award where his 'award violates violates a strong strong public public policy, irrational policy, isis irrational or clearly or exceeds a specifically clearly exceeds specifically limitation enumerated limitation on the on the power'" [New York State arbitrator's arbitrator's (see Matter power"' (see of Kowaleski Matter of Kowaleski [New Dept. of State Dept. Correctional of Correctional Servs.}, Servs.], 16 NY3d NY3d 85, 90-91, 942 N.E.2d 85, 90-91, 291, 917 N.Y.S.2d N.E.2d 291,917 N.Y.S.2d 82 [2010], quoting Matter [2010], quoting of New Matter of New York City City Tr. Tr. Workers' Auth. Transport Workers' Union of Auth. v Transport of Am., Local JOO, Am., Local 100, AFL-CIO, NY3d 332, AFL-CIO, 6 NY3d 336, 845 N.E.2d 332, 336, N.E.2d 1243, 812 N.Y.S.2d 1243, [2005]). N.Y.S.2d 413 [2005]). Here, the issue Here, the issue in in dispute dispute during the initial during the initial arbitration arbitration proceeding in relation proceeding was in relation to whether to whether Petitioner's Petitioner's denials of the denials of MRI testing the MRI testing performed Clarke on June 29, performed on Clarke 2018 and 29, 2018 and July July 9, 9, 2018, 2018, which were based which peer review based on a peer review report Peter Chiu, report by Peter Chiu, M.D., could be sustained M.D., could (Motion # sustained (Motion 1, #1, Exhibit Exhibit A, p. p. 1). Upon a review 1). Upon of the review of the peer review report peer review Peter Chiu, report by Peter Chiu, M.D., Arbitrator M.D., Arbitrator DiGirolomo found that DiGirolomo that Petitioner Petitioner failed to failed to sufficiently sufficiently meet its its burden and concluded burden and concluded that the peer that the review report review not persuasive report was not persuasive as the peer reviewer's the peer reviewer's rationale rationale failed to failed disprove the to disprove medical the medical records, records, not explain not explain how Clarke's how Clarke's condition condition was purely purely pre-existing pre-existing not exacerbated and not exacerbated or or aggravated in aggravated in any way by the automobile accident. the automobile accident. Thereafter, Thereafter, Arbitrator Master Arbitrator Ancowitz upheld Ancowitz upheld the lower Award, the lower Award, finding finding "no infirmity infirmity in in [A]ward" and that the [A]ward" and the that the Award was the Award was "well "well within within the arbitrator's the arbitrator's discretion discretion in in weighing the weighing the evidence, evidence, as was done, and coming done, and conclusion that coming to a conclusion that [Petitioner] [Petitioner] had not had not met their of burden of their burden defenses" sustaining their defenses" (see sustaining their Motion #1, (see Motion Exhibit B, p. #1, Exhibit p. 2). 2). "[U]nless there "[U]nless there is proof whatever is no proof whatever to to justify justify the award so as to the render it to render it entirely entirely oversight" irrational...the irrational ... the arbitrator's arbitrator's finding finding is not subject is not judicial subject to judicial oversight" (see Matter of (see Matter of Peckerman v D& D &D D Assoc., Assoc., AD2d 289,

[165] AD2d 567 N.Y.S.2d 289, 567 [1" N.Y.S.2d 416 [Pt 1991]). It Dept 1991]). It is in what way unclear in is unclear way Petitioner Petitioner construed the construed Award and the Award and the Master Arbitrator the Master Arbitrator Award to be "arbitrary, Award "arbitrary, capricious capricious [and] [and] basis" incorrect incorrect as a matter of law and matter of and without without a rational rational basis" (see Motion #1, (see Motion #1, ,i ¶ 6). While Petitioner 6). While Petitioner 33 . 3 of 6 [* 3] Index No.: CV-701110-22/NY Index No.: CV-701110-22/NY argued that argued that the the instant petition was not instant petition not a request for a de novo review, request for review, stating stating that that "the "the arbitrator arbitrator Master Arbitrator and Master Arbitrator both both failed failed to to even conduct initial review conduct an initial of the review of the evidence, prejudicing the evidence, prejudicing the [P]etitioner" [P]etitioner" (see Motion (see #1, ,r Motion #1, ¶ 63), 63), it appears that it appears that Petitioner Petitioner is, in is, in essence, improperly seeking essence, improperly seeking a review of de novo review of the the instant matter. Based on the instant matter. the submission, appears that submission, itit appears that the Award set the Award set forth forth Arbitrator DiGirolomo's Arbitrator examination of DiGirolomo ' s examination of the evidence provided, the evidence provided, notably notably the peer review the peer review report of report of Peter Chiu, Peter M.D., , which Chiu, M.D. Master Arbitrator which Master Arbitrator Ancowitz Ancowitz affirmed. affirmed. It is beyond the It is the scope of this scope of Court this Court to to "the path examine "the of analysis, path of analysis, proof proof and persuasion which the persuasion by which arbitrator the arbitrator reached this reached this conclusion" in an Article conclusion" in Article 75 proceeding (see Matter proceeding (see Matter of Cherrington v New of Cherrington New York City City Tr. Auth., Tr. Auth., AD3d 539,

[203] AD3d 539, 165 N.Y.S.3d [1st 1 N.Y.S.3d 492 [l5 Dept 2022] 2022] quoting AD2d 289, quoting Peckerman, 165 AD2d 289, 567 [1st 1 N.Y.S.2d N.Y.S .2d 416 [l5 Dept 2018]), Dept 2018]), unless unless Petitioner Petitioner sufficiently sufficiently establishes establishes the Award violated the Award violated a strong public strong public policy, policy, and was irrational irrational or clearly or exceeded a specifically clearly exceeded specifically limitation enumerated limitation on the the arbitrator's arbitrator's power (see power (see Matter of Kowaleski Matter of [New York State Kowaleski [New Dept. of State Dept. Correctional Servs.}, of Correctional Servs.], 16 NY3d NY3d 85, 90-91, 942 N.E.2d 85, 90-91, N.E.2d 29 291, N.Y.S.2d 82 [2010]). l , 917 N.Y.S.2d [2010]). ""Indeed, Indeed, 'the ultimate disposition 'the ultimate disposition of the of the merits merits is of course is of course reserved reserved for for the the arbitrators arbitrators and the the courts courts are are expressly expressly prohibited prohibited from considering considering whether the whether claim with the claim with respect respect to which arbitration to which arbitration is sought is is sought is tenable, tenable, or otherwise or otherwise dispute'" passing upon the passing of the merits of the merits the dispute"' (see (see Peckerman, 165 AD2d 289,567 I65 AD2d 289, 567 N.Y.S.2d [1st 1 N.Y.S.2d 416 [l5 Dept 2018] Dept quoting Matter 2018] quoting of Nationwide Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. Investors Ins. NY2d 91 Co., 37 NY2d Ins. Co., 91,, 95 95,, 332 N.E.2d 333, 371 N.Y.S.2d N.E.2d 333, N.Y.S.2d 463 [1975] [1975] [Internal [Internal quotation quotation marks and brackets brackets omitted]). omitted]). In In fact, fact, even in even circumstances where misapplication in circumstances misapplication of substantive of substantive rules of law or rules of or error of fact error of fact were committed by arbitrators, committed arbitrators, the the courts have upheld courts have upheld and not not disturbed disturbed the of such awards the outcome of (see (see Wien & Malkin Wien & LLP, 6 NY3d Malkin LLP, NY3d 471 at 479-480). at 479-480). As such, As such, this Court finds this Court finds Petitioner's Petitioner's contention contention that that the Award was irrational the Award irrational to to be unavailing, unavailing, and therefore, therefore, the the Petitioner' Petitioner's s Petition Petition to to vacate vacate the the arbitration arbitration award is is denied. denied. 4 . 4 of 6 [* 4] Index No.: CV-701110-22/NY Index No.: 2. Respondent's 2. Respondent's Cross-Motion to confirm Cross-Motion to confirm the arbitration award the arbitration Pursuant to CPLR Pursuant to CPLR 7510, 7510, "[t]he "[t]he court court shall confirm an award upon application shall confirm application of of a party party made within within one year year after after its its delivery delivery to to them, them, unless the award isis vacated unless the vacated or modified upon a or modified ground ground specified specified in in section section seventy-five eleven of seventy-five hundred eleven of this this article [Emphasis added]" article [Emphasis added]" (see (see CPLR CPLR 7510;

[751] 0; see generally Matter see generally of Bernstein Matter of Bernstein Family Family Ltd. Ltd. P'ship P 'ship vv Sovereign Sovereign Partners, L.P. 66 Partners, L.P. A.D.3d A.D.3d 1,1, 883 N.Y.S.2d 101 [1St N.Y.S.2d 101 [1 st Dept 2009];; Matter Dept 2009] of New Matter of New York Tr. Auth. v American Tr. Auth. American Tr. Tr. Ins. Ins. [1st 211 A.D.3d Co, 211 643 , 181 N.Y.S.3d A.D.3d 643, N.Y.S.3d 218 [1 st Dept Dept 2022]). 2022]). Here, Here, the signed Master the signed Master Arbitration Arbitration Award by Master Award by Arbitrator Ancowitz Master Arbitrator Ancowitz was on mailed mailed on October 25, 2021 and Petitioner October 25, Petitioner filed filed itsits cross-motion to confirm cross-motion to confirm the arbitration award on March the arbitration March 21, 21 , 2022, within one year 2022, within year of of the the delivery delivery on the the award. award. In In addition, addition, Petitioner's Petitioner's Petition Petition to to vacate vacate the arbitration award pursuant the arbitration to CPLR pursuant to CPLR 7511 7511 isis denied. denied. Accordingly, the Accordingly, favor of the Award inin favor of Respondent isis confirmed. confirmed. 2. Reasonable 2. Reasonable attorney's connection with fees inin connection attorney's fees with the the instant instant court court proceeding proceeding Pursuant Pursuant to Insurance Law to Insurance 5106(a), ifif a valid Law §§ 5106(a), valid claim claim or portion of or portion of a claim claim for for no-fault no-fault benefits isis overdue, benefits "the claimant overdue, "the claimant shall also be shall also be entitled to recover entitled to recover his his [or [or her] her] attorney's attorney's reasonable reasonable fee, for fee, for services necessarily performed services necessarily performed inin connection connection with securing payment with securing payment of of the the overdue overdue claim, claim, subject to subject to the limitations promulgated the limitations promulgated by by the the superintendent superintendent inin regulations". regulations". Since Since Petitioner Petitioner seeks seeks to to vacate the master vacate the arbitration award master arbitration award pursuant pursuant to to 11 NYCRR 65-4.1 0(j)(4), Respondent 11 NYCRR 65-4.10(j)(4), Respondent isis entitled entitled to to attorney's fees which attorney's fees "shall be which "shall be fixed fixed by by the the court court adjudicating the matter" adjudicating the matter" (see NYCRR (see 11 NYCRR 65- 65- 4.10 4.10 [j][4]; Li][4]; see also Matter see also ofCountry-Wide Matter of Country-Wide Ins. Ins. Co. Bay Needle Co. vv Bay Needle Care Care Acupuncture, Acupuncture, P.C., P.C., 162 162 55 5 of 6 [* 5] Index No.: Index CV-701110-22/NY No.: CV-701110-22/NY AD3d 407, AD3d 407, 408, N. Y .S.3d 321 [[1" 408, 78 N.Y.S.3d Dept 2018)). 151 Dept 2018]). Respondent's request Accordingly, Respondent's Accordingly, for request for reasonable attorney's reasonable attorney's fees fees it incurred it incurred in defending in defending the is granted. the award is granted. 3. The issue 3. The issue of whether the of whether the Petition Petition was timely was timely In light In of the light of Court's denial the Court's of Petitioner's denial of Petitioner's to vacate Petition to Petition vacate the arbitration the arbitration award in award the in the foregoing, foregoing, the branch the of Respondent's branch of Respondent's contention contention that Petitioner's that Petitioner's petition was untimely petition was untimely is is academic. academic. Order IV. Order IV. Accordingly, Accordingly, it it is is ORDERED ORDERED Motion #1, that Motion that #1, Petitioner's Petitioner's Petition Petition to vacate the to vacate arbitration the arbitration award ts award is and it DENIED; and is further it is further ORDERED ORDERED that the that the clerk clerk is directed is directed calendar Respondent's to calendar to Respondent's opposition and cross opposition and cross motion as Motion motion Motion #2; #2 ; and it is further it is further ORDERED ORDERED Motion #2, that Motion that Respondent's cross-motion #2, Respondent's cross-motion to confirm the to confirm the arbitration arbitration award, award, plus statutory plus statutory interest, interest, reasonable attorney's reasonable attorney's fees, fees, costs and disbursements costs and disbursements is GRANTED. is GRANTED. This constitutes This constitutes DECISION and the DECISION the ORDERof and ORDER of the the Court. Court. . Dated: April Dated: April 11, 11, 2025 County of County NewYork of New York Honorable Li, Honorable J.C.C. . Li, J.C.C .SON. WENDY liON. WENDY C. u C. Li Entered ,...__..JUDGE JUDGE APRIL 11 2025 NEWYORKCOUNTY CMLCOURT 66 6 of 6 [* 6]