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R.J. Professional Acupuncturist, P.C. A/A/O Suresh Khani v. Ny Central Mutual Fire Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 29, 2008

R.J. PROFESSIONAL ACUPUNCTURIST, P.C. A/A/O SURESH KHANI,
APPELLANT,
v.
NY CENTRAL MUTUAL FIRE INSURANCE COMPANY,
RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), dated July 13, 2006.

R.J. Professional Acupuncturist, P.C. v NY Cent. Mut. Fire Ins. Co.

Decided on April 29, 2008

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ

The order denied the petition to vacate a master arbitrator's award.

Order modified by adding thereto a provision confirming the master arbitrator's award; as so modified, affirmed without costs.

Upon a review of the record, we find that the determination of the master arbitrator upholding the arbitrator's award, which denied petitioner's claims for first-party no-fault benefits, had a rational basis and was not arbitrary and capricious (see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633 [2008]; Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see generally Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Indeed, until this court rendered its decision in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007], supra), there was no settled appellate law regarding an insurer's reduction of the amount of fees charged by a licensed acupuncturist for acupuncture services rendered. Accordingly, the court below properly denied the petition to vacate the master arbitrator's award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.

Decision Date: April 29, 2008

20080429

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