Submitted by Petitioner NYSCEF Doc No. 1: Petition NYSCEF Doc No. 2: Notice of Petition NYSCEF Doc No. 3: Exhibit A — Arbitration Award NYSCEF Doc No. 4: Exhibit B — Master Arbitration Award NYSCEF Doc No. 5: Exhibit C — Respondent’s Arbitration Request Form and Arbitration Submission NYSCEF Doc No. 6: Exhibit D — Petitioner’s Arbitration Submission and Master Arbitration Appeal NYSCEF Doc No. 7: Statement of Authorization for Electronic Filing NYSCEF Doc No. 8: Request for Judicial Intervention NYSCEF Doc No. 9: Proof of Service NYSCEF Doc No. 10: Statement of Authorization for Electronic Filing NYSCEF Doc No. 11: Affidavit of Service NYSCEF Doc No. 12: Statement of Authorization for Electronic Filing Submitted by Respondent NYSCEF Doc No. 13: Notice of Cross-Petition NYSCEF Doc No. 14: Cross-Petition Submitted by Petitioner NYSCEF Doc No. 15: Affirmation in Opposition to Cross-Motion and in Reply in Support of Petition NYSCEF Doc No. 16: Exhibit A — Order & Judgment in Kings Co. Index No. 530086/22 DECISION, ORDER and JUDGMENT Respondent’s reply affirmation in support of the cross-petition (NYSCEF Doc No. 17) filed on September 7, 2023 (19 days after oral argument while the matter was sub judice, is not considered inasmuch as it was not timely filed and no application to accept it or proffer explaining its untimeliness was submitted to this Court (see CPLR 402, 2214, 3012; 22 NYCRR 202.8, 202.9; Aneke v. Parks, 197 AD3d 601 [2d Dept 2021]; Garner v. Rosa Coplon Jewish Home & Infirmary, 189 AD3d 2105 [4th Dept 2020]; Evans v. Perl, 19 Misc 3d 1119[A], 2008 NY Slip Op 50775[U], *5 n 2 [Sup Ct, NY County 2008]; cf. Wilcox v. Newark Valley Cent. School Dist., 107 AD3d 1127 [3d Dept 2013]). Introduction Petitioner American Transit Insurance Company (“ATIC”) submitted a notice of petition and petition via an Article 75 proceeding under the CPLR. ATIC requests the Court to vacate the Master Arbitrator’s award in a No-Fault insurance arbitration in favor of the Respondent herein, Nexray Medical Imaging PC (“Nexray”). (See NYSCEF Doc No. 1, Petition; NYSCEF Doc No. 2, Notice of Petition.) Background ATIC seeks to vacate the $1,790.67 award rendered by Master Arbitrator A. Jeffrey Grob, Esq., in American Arbitration Association (“AAA”) Case No. 99-20-1166-0711, in favor of Nexray (see NYSCEF Doc No. 1, Petition 3; NYSCEF Doc No. 2, Notice of Petition at 1). Nexray had performed MRIs (lumbar spine on July 13, 2019, and left shoulder on July 19, 2019) on policyholder Carlos Colon (“Assignor”) to diagnose any injuries resulting from a motor vehicle accident on May 2, 2019 (see NYSCEF Doc No. 5, Nexray’s Arbitration Request Form and Arbitration Submission at 12-15 [Form NF-3 claim form re lumbar spine MRI], 16-19 [Form NF-3 claim form re left shoulder MRI]). ATIC denied payment of the No-Fault insurance medical bills for the said services (see NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Appeal at 3-4 [Form NF-10 denial of claim re lumbar spine MRI], 5-6 [Form NF-10 denial of claim re left shoulder MRI]). Nexray initiated arbitration, claiming entitlement to $1,790.67 for the medical care rendered to Assignor (see NYSCEF Doc No. 5, Nexray’s Arbitration Request Form and Arbitration Submission at 1-1422). ATIC submitted its papers in opposition for the arbitration (see NYSCEF Doc No. 6, ATIC’s Arbitration Submission and Master Arbitration Appeal at 1-192). Bernadette Connor, Esq. was assigned to arbitrate the matter by the AAA. She awarded Nexray the $1,790.67 at issue in its billing. She noted that each of the two bills was denied on several grounds by ATIC: (1) Assignor was eligible for Workers’ Compensation, having been in the course of employment; (2) Assignor failed to appear at scheduled IMEs (independent medical examinations); and (3) lack of medical necessity based on a peer review by Dr. Peter Chiu. Arbitrator Connor reasoned that the Form NF-10 denials of claim were untimely, i.e., past Insurance Law §5106 (a)’s 30-day deadline based on deficiencies in ATIC’s evidence regarding seeking additional verification to toll said deadline. With the denials of claim being late, the defenses of Assignor being injured in the course of employment and having missed IMEs were precluded. An IME no-show defense could be maintained even when there is a late denial of claim, she wrote, citing to Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011]). However, ATIC failed to prove that Assignor did not attend the IMEs, she found. Besides the principal sum of $1,790.67 as No-Fault medical benefits, Arbitrator O’Connor awarded Nexray interest, attorney’s fees, and return of the arbitration filing fee. (See NYSCEF Doc No. 3, Arbitration Award at 1-6.) ATIC filed with the AAA for a master arbitrator to review the issues, and Master Arbitrator A. Jeffrey Grob, Esq. upheld Arbitrator Connor’s arbitration award (see NYSCEF Doc No. 1, Petition
3, 83). After ATIC commenced this Article 75 proceeding, Nexray filed a cross-petition in support of Master Arbitrator Grob’s award (see NYSCEF Doc No. 13, Notice of Cross-Petition; NYSCEF Doc No. 14, Cross-Petition). Nexray sought confirmation of the arbitration award and attorney’s fees, costs, and disbursements with respect to this proceeding. Petitioner ATIC’s Arguments Petitioner ATIC argues that the master arbitrator’s award should be vacated as a matter of law. ATIC states the award issued to Nexray by Arbitrator Connor and later upheld by Master Arbitrator Grob is faulty, and relies upon Matter of Petrofsky [Allstate Ins. Co.] (54 NY2d 207 [1977]) for the argument that an arbitration award should be overturned when it is arbitrary and capricious, irrational or without a plausible basis (see NYSCEF Doc No. 1, notice of petition 34). It cited to various other court decisions ruling on the standard of review of No-Fault arbitration awards (see generally NYSCEF Doc No. 1, Petition). ATIC asserts the award should be vacated as Nexray’s claims (both bills) were properly denied. ATIC argues that the arbitrator and master arbitrator issued awards that conflicted with well-settled law. The denials of claim were appropriate as ATIC had reason to believe Assignor was working when the accident occurred. As such, Worker’s Compensation became primary. (See NYSCEF Doc No. 1, Petition
