Country-Wide Ins. Co. v. AMSC, LLC

• Docket Number: Index No. 651546/2023,Motion Seq. No. 001
• Decision Date: 20 June 2023
• Citation: 2023 NY Slip Op 32091 (U)
• Parties: COUNTRY-WIDE INSURANCE COMPANY Petitioner, v. AMSC, LLC, Respondent.
• Court: New York Supreme Court

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2023 NY Slip Op 32091(U)

COUNTRY-WIDE INSURANCE COMPANY Petitioner,
v.
AMSC, LLC, Respondent.

Index No. 651546/2023, Motion Seq. No. 001

Supreme Court, New York County

June 20, 2023

Unpublished Opinion

MOTION DATE 07/08/2023

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PRESENT: HON. SABRINA KRAUS, Justice

DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 001)2, 11, 12, 13, 14, 15, 16,17,18,19,20,21,22,23 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.

BACKGROUND

Patricia Rivera (Assignor), was injured in a motor vehicle accident on October 18, 2019. As a result, Assignor suffered injuries, which required healthcare services. Respondent, AMSC, LLC provided Assignor with cervical epidural steroid injection, trigger point injection and epidurogram on October 5, 2020. Plaintiff, Geico Insurance Company, did not pay or deny the claim, as they assert they never received it.

The amount in dispute was $2249.59.

The parties submitted to arbitration to resolve the underlying dispute regarding no fault benefits. Tali Philipson (TP) the Arbitrator, held a hearing on October 12, 2022, and issued a decision on the same day. The decision found in favor of Respondent. Specifically, TP found, A review of the competent evidence in the record reveals that Applicant established a prima facie case of entitlement to reimbursement of its claim, by submitting evidence that the prescribed statutory billing form was mailed and received, and that the Respondent failed to either pay or deny the claim within the requisite 30-day period.

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Mary Immaculate Hospital v. Allstate Insurance Co., 5 A.D.3d 742, 774 N.Y.S.2d 564 (2nd Dept. 2004).

Respondent asserted that it never received the Applicant's claim. Respondent submitted an affidavit by No-Fault Litigation/Arbitration Supervisor Jessica Mena-Sibrian stating that she had personal knowledge of the procedures for processing incoming mail and there was no record of receiving this claim.

Applicant submitted proof of mailing PS Form 3877, identifying this Assignor, date of service, proper address for the Respondent and post office stamp showing the date of mailing (October 26, 2020) and postage paid. I find this sufficient proof to show that a proper mailing took place. I therefore find that Applicant established a prima facie case of entitlement to reimbursement of this claim.

Petitioner appealed to the Master Arbitrator on the grounds that the award by the Lower

Arbitrator was not rationally based upon the evidence presented and was arbitrary and capricious. Petitioner also argued, for the first time, that the Lower Arbitrator's award should not be sustained because the policy was exhausted.

On December 28, 2022, Jeffrey Grob (RT), the Master Arbitrator found Petitioner failed to meet the burden needed to vacate the lower Arbitrator's award. The decision provided:

Focusing initially on the asserted transmission of the underlying bill, a review of the Record demonstrates that the Arbitrator below assessed and evaluated the divergent positions of the respective parties, together with the evidence adduced in support thereof, and, based thereon resolved the issue in the provider's favor... !

Keeping in mind the relevant law and the limited scope of review available in this context, the undersigned finds that the Lower Arbitrator's determination on point rested on a foundation of substantial evidence in the Record and may not be disturbed.

Focusing next on the issue of policy exhaustion, the forum notes that while an award that exceeds the contractual limits of an insurance policy may be subject to vacatur on that ground (see, CPLR 7511 [b] [iii]; 11 NYCRR § 65-4.10 [a] [3]; Matter of Motor Veh. Acc. Indem. Corp, v American Country Ins. Co., 126 A.D.3d 657 [1 st Dept. 2015]; Spears v New York City Transit Auth., 262 A.D.2d 493, Iv den 94 N.Y.2d 761; see also, Countrywide Ins. Co. v Sawh, 272 A.D.2d 245 [1st Dept. 2000]), and while...