The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 8, 9, 10, 11, 12, 13, 14 were read on this motion to/for VACATE — DECISION / ORDER / JUDGMENT / AWARD DECISION + ORDER ON MOTION Relevant Factual and Procedural History Petitioner Country-Wide Insurance (hereinafter “Petitioner”), an insurer, asserts that Vanessa Villaronga (hereinafter “Villaronga”) was the operator of a motor vehicle that was involved in a two-car collision on June 17, 2016. Villaronga’s vehicle was registered in New York State and insured by Petitioner. Respondent NJ Pain Solutions PC (hereinafter “Respondent”) asserts that following the accident, Villaronga received healthcare services from Respondent on February 2, 2017. Respondent billed $638.57 for the medical services rendered, and timely forwarded the bill to Petitioner. Petitioner denied these claims, stating that the medical services were not necessary based on the Independent Medical Examination (“IME”) report of Dr. John Vitolo (hereinafter “Dr. Vitolo”) and that the corresponding bill violated the governing fee schedule. Pursuant to the Rules for New York State No-Fault Arbitration, the case was designated by the American Arbitration Association (“AAA”) to Arbitrator Matthew J. Cavalier. Arbitrator Cavalier found that Respondent had established its prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received by Petitioner. Arbitrator Cavalier also found that payment of no-fault benefits was overdue, and that Respondent had demonstrated that the disputed ambulatory surgical services for the left shoulder surgery were medically necessary, based on review of the submitted evidence and the arguments of the parties at the hearing. Therefore, the burden shifted to Petitioner to establish its defense to the medical treatment. The Arbitrator found that Petitioner did not meet this burden, even after considering the IME report of Dr. Vitolo. Ultimately, by opinion and award dated December 19, 2019, the Arbitrator awarded Respondents $638.57, attorney’s fees in accordance with 11 NYCRR 65-4.6(d), and $40 in reimbursement for the fee paid to the AAA. The Arbitrator based his decision on the review of the record and the arguments and submitted evidence made by the representatives of the parties at the hearing. Petitioner then pursued master arbitration on the grounds that the hearing arbitrator’s award was arbitrary and capricious and incorrect as a matter of law in failing to sustain the denials based upon the IME of Dr. Vitolo. On May 3, 2020, the parties appeared before master arbitrator Jeffrey Grob. The master arbitrator found that Petitioner failed to meet its burden in showing that the hearing arbitrator’s award lacked evidentiary support and was arbitrary and capricious. Ultimately, by opinion and award dated May 3, 2020, the master arbitrator affirmed the award in its entirety, awarded Respondents attorney’s fees computed in accordance with 11 NYCRR 65-4.10(j), and further awarded Respondents $75 as reimbursement for the master arbitration filing fee. Petitioner commenced this special proceeding against Respondents seeking to vacate the arbitration award pursuant to CPLR §7511(b)(1)(iii). Respondents oppose the Petition and assert that if the Petition to vacate is denied, the arbitration award should be confirmed pursuant to CPLR §7511(e) and Petitioner must pay additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) for the work performed in conjunction with its petition. Discussion To confirm or vacate an arbitration award, parties must bring a special proceeding pursuant to Article 75 of the CPLR. Either party may seek judicial confirmation by either seeking to directly confirm the award or, in the alternative, seeking to vacate the award. See Blumenkopf v. Proskauer Rose LLP, 943 N.Y.S.2d 885 (1st Dept. 2012) (“The award should have been confirmed pursuant to CPLR §7511(e), which mandates confirmation upon denial of a motion to vacate or modify”). If a party is seeking to vacate the Arbitrator’s award, the party must bring their Article 75 proceeding within 90 days of the delivery. CPLR §7511. The standard of review in Article 75 proceedings differs depending on the amount awarded by the arbitrator. Where the amount in contention does not exceed five thousand dollars ($5,000.00), the courts grant deference to the findings of the arbitrators. Moreover, “[i]n cases of compulsory arbitration, this court has held that CPLR article 75 ‘includes review…of whether the award is supported by evidence or other basis in reason.’ This standard has been interpreted to import into article 75 review of compulsory arbitrations the arbitrary and capricious standard of article 78 review.” Petrofsky (Allstate Ins. Co.), In re, 429 N.E.2d 755, 757 (N.Y. 1981) (quoting Mount St. Mary’s Hosp. of Niagara Falls v. Catherwood, 260 N.E.2d 508 (N.Y. 1970)). Per CPLR §7511(b)(1)(iii), a party may seek to vacate the arbitrator’s award on the grounds that “the rights of that party were prejudiced by…an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter was not made[.]” CPLR §7511(b)(1)(iii). A court may only vacate an award pursuant to CPLR §7511(b)(1)(iii) when the petitioner demonstrates that, “ the arbitrator’s award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.” New York City Transit Auth. v. Transp. Workers’ Union of Am., 6 N.Y.3d 332, 336 (2005). Therefore, the question before this Court is whether the master arbitrator exceeded his powers in affirming the award of the arbitrator. See Petrofsky, 54 N.Y.2d at 757. In the present matter, Respondent’s award does not exceed the $5,000.00 limit. As such, the present review is limited to the factual determinations of the arbitrator, or the bases enumerated in CPLR §7511. Petitioner argues that the hearing arbitrator’s award was irrational, not supported by the evidence, and arbitrary and capricious. Petitioner further argues that the master arbitrator erred in affirming the award. Petitioner contends that the hearing arbitrator did not properly consider Dr. Vitolo’s IME in his determination of whether Villaronga’s medical care provided by NJ Pain Solutions was medically necessary. Petitioner premises their argument on the belief that the hearing arbitrator exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter was not made; however, Petitioner is actually challenging the hearing arbitrator’s credibility determinations, which does not constitute a ground for vacating an arbitration award. See Palencia v. New York City Bd./Dep’t of Educ., 929 N.Y.S.2d 201 (N.Y. Cty. Sup. Ct. 2011). “Further, ‘a court is bound by the arbitrator’s factual findings and interpretations of the contract,’ and it ‘cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one.’ The ‘arbitrator’s award will not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice.’” Metro. Transp. Auth. v. Westfield Fulton Ctr., LLC, No. 2023-03965, 2024 WL 2853484, at *1 (1st Dept. 2024) (internal citations omitted). The hearing arbitrator clearly articulated that the award was based upon the submitted evidence and the arguments of the parties at the hearing, and the disposition regarding Dr. Vitolo’s IME from an earlier proceeding from the Petitioner and Respondent about this accident. NYSCEF Doc No. 3 (Arbitrator Matthew Cavalier, Esq.’s Award). As noted above, this Court does not have the power to perform its own factual or credibility determination related to the IME report of Dr. Vitolo. Therefore, Petitioner’s argument is unconvincing. Because none of the grounds for vacating an award, as enumerated in CPLR §7511(b), are present in the record, and the hearing arbitrator, as affirmed by the master arbitrator, provided at least “a colorable justification for the outcome reached,” this Court must deny the petition to vacate the arbitration award. Wein & Malkin, LLP, 6 N.Y.3d at 479. Accordingly, the master arbitrator did not err in affirming the award. Thus, vacatur of the arbitration award is denied and the award is “confirmed pursuant to CPLR §7511(e), which mandates confirmation upon denial of a motion to vacate or modify.” Blumenkopf v. Proskauer Rose LLP, 95 A.D.3d at 648. Respondent filed a cross-petition in opposition to the petition seeking vacatur and further seeking attorneys’ fees for the present special proceeding. Title 11 of the New York Codes, Rules and Regulations notes, in relevant part, “[t]he attorney’s fee for services rendered in connection with a court adjudication of a dispute de novo, as provided in section 5106(c) of the Insurance Law, or in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter.” N.Y. Comp. Codes R. & Regs. tit. 11, §65-4.10(j)(4) (emphasis added). “ The term ‘court appeal’ applies to a proceeding taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award.” Country-Wide Ins. Co. v. TC Acupuncture P.C., 113 N.Y.S.3d 534, 535 (1st Dept. 2020). Respondent is therefore entitled to attorneys’ fees in connection with opposing petitions to vacate arbitration brought before this Court. See Am. Transit Ins. Co. v. Rutland Med. PC, 205 N.Y.S.3d 79 (1st Dept. 2024). As such, it is hereby ORDERED that the Petition is denied, and the award rendered in favor of Petitioner and against Respondent is confirmed; and it is further ORDERED that Respondent is to file: (1) an attorney affirmation detailing the efforts made by Respondent in connection with this special proceeding; (2) Respondent’s underlying billing entries, subject to redactions as is appropriate, such that the Court may assess the reasonableness of the attorneys’ fees; and (3) a proposed order thereto. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: July 16, 2024
