This time Country-Wide gets the Appellate Division to reverse AAAFebruary 25, 2017
Country-Wide Ins. Co. v Radiology of Westchester, P.C., 2017 NY Slip Op 01461 (1st Dept. 2017)
“The master arbitrator’s award was arbitrary because it irrationally ignored petitioner’s uncontroverted evidence establishing that the assignor failed to appear at the three scheduled examinations under oath (cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U] [App Term, 1st Dept 2015]).”
Again, the blame on this goes to the master arbitration system that rubber stamps the awards of the lower arbitrators. I never read Petrofsky to require a master arbitrator to ignore evidence that proves a factual proposition or a well known legal principle. These master arbitration awards (and I master arbitrate a lot of cases) usually affirm arbitrator awards because they believe that most review is out of their hands. Read this case, Hillside, Professional Chiro and understand that legal challenges to lower arbitration awards are fair game. Factual challenges when there are no facts to support a key proposition of fact are fair game for review, but a closer call for affirmance than legal challenges. There are other cases that are escaping me – but those involve MVAIC.
As an aside, I have 7 masters on IME no shows (same date of loss and assignor/assignee) where the lower arbitrator misconstrued an IME letter and affidavit. The error is as clear as the day is long. That said, I am not going to blame the lower arbitrator because there was a lot going on in the file and he probably missed it. Mistakes happen and that is why we have appellate courts and a master arbitration tribunal. I have a feeling the master is going to affirm because of “Petrofsky” and it will take Supreme Court to vacate the awards.