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Walton Medical Care, P.C. As Assignee of Mascimilano Aquino v. Travelers Insurance Company

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


October 12, 2011

WALTON MEDICAL CARE, P.C. AS ASSIGNEE OF MASCIMILANO AQUINO,
APPELLANT,
v.
TRAVELERS INSURANCE COMPANY,
RESPONDENT.

Walton Med. Care, P.C. v Travelers Ins. Co.

Decided on October 12, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and STEINHARDT, JJ

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered April 9, 2008. The order denied a petition to vacate a master arbitrator's award.

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

In this proceeding brought pursuant to CPLR article 75, petitioner seeks to vacate an award of a master arbitrator, which upheld the award of an arbitrator rendered pursuant to Insurance Law § 5106 (b), denying petitioner's claim for assigned first-party no-fault benefits. The Civil Court denied the petition.

Upon a review of the record, we find that the determination of the master arbitrator had a rational basis and was not arbitrary, capricious, or contrary to settled law (see e.g. 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]; Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633 [2008]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]; 101 Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 19 Misc 3d 145[A], 2008 NY Slip Op 51118[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, the Civil Court 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., Rios and Steinhardt, JJ., concur.

Decision Date: October 12, 2011

20111012

© 1992-2011 VersusLaw Inc.



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