Opinion
05-23-2017
In re COUNTRY–WIDE INS. CO., Petitioner–Appellant, v. VALDAN ACUPUNCTURE, P.C., as assignee of Latonya Frazier, Respondent–Respondent.
Jaffe & Koumourdas, LLP, New York (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for respondent.
Jaffe & Koumourdas, LLP, New York (Jean H. Kang of counsel), for appellant.
Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for respondent.
ACOSTA, P.J., RENWICK, MAZZARELLI, ANDRIAS, MANZANET–DANIELS, JJ.
Judgment, Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about April 7, 2016, in respondent's favor, unanimously affirmed, with costs.
Petitioner failed to establish any of the grounds for vacating an arbitration award ( CPLR 7511[b], [c] ; see generally Azrielant v. Azrielant, 301 A.D.2d 269, 275, 752 N.Y.S.2d 19 [1st Dept.2002], lv. denied 99 N.Y.2d 509, 760 N.Y.S.2d 100, 790 N.E.2d 274 [2003] ).
Pursuant to Insurance Department Regulations ( 11 NYCRR) § 65–3.16(a)(12), "insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises to which patients have assigned their claims" ( State Farm Mut. Auto. Ins. Co. v. Mallela, 4 N.Y.3d 313, 794 N.Y.S.2d 700, 827 N.E.2d 758 [2005] ). Assuming without deciding that an insurer's defense of fraudulent incorporation cannot be precluded (see AVA Acupuncture, P.C. v. AutoOne Ins. Co., 28 Misc.3d 134[A], 2010 N.Y. Slip Op. 51350[U], 2010 WL 2990196 [App.Term 2d Dept.2010] ; Bath Med. Supply, Inc. v. Allstate Indem. Co., 27 Misc.3d 92, 95, 902 N.Y.S.2d 875 [App.Term 2d Dept.2010] ), we conclude that the master arbitrator properly confirmed the award of the arbitrator, who reviewed petitioner's submissions relating to the plea of guilty to no-fault insurance fraud by a man married to the owner of respondent, found that respondent was not mentioned once in the " hundreds of pages" submitted, and rejected petitioner's attempt to hold the owner "responsible by association." Petitioner's reliance on a subsequent arbitration (in 2014) is also misplaced; among other things, the later arbitration appears to have relied on documentation that was not submitted to the arbitrator in this case.
Contrary to petitioner's contention, there was no default in this case. In any event, any delay in opposing the petition to vacate the arbitration award was short and quickly corrected, and the explanation given for it—law office failure—was detailed and specific, and, in view of the strong public policy favoring resolution of litigation on the merits, constituted "good cause" for the delay (see Lamar v. City of New York, 68 A.D.3d 449, 888 N.Y.S.2d 883 [1st Dept.2009] ).
Respondent is entitled to attorneys' fees for this appeal ( 11 NYCRR 65–4.10(j)(4) ), calculated, in accordance with 11 NYCRR 65–4.6(b), as 20% of the no-fault benefits awarded.