Key Takeaway
Long Island attorney discusses Article 75 petition success against AAA master arbitrator decision in IME no-show case, highlighting systemic issues in no-fault arbitration.
Global Liberty Ins. Co. v. Electrophysiological Medical, P.C., Index #: 21167/2016E (Sup. Ct. Bronx Co. 2016)
I think one of the weakest parts of the AAA no-fault dispute resolution services is the lack of depth that exists within the pool of the master arbitration panel. With the death of Normal Dachs, Esq., I feel we are left with “rubber stamps” who cite Petrofsky and affirm awards that are legally infirm. This case is a prime example:
AAA case #:41-14-1002-2571. Standard IME no show case. Presented were affidavits of no show and affidavits of non-appearance. Applicant argued the affidavit of mailing was not specific enough. Lower arbitrator agreed. I shook my head in disgust and appealed. I was not surprised when the award was affirmed. Of course, the affirmance is sent to the lower arbitrator, Larry Fuchsberg and Chris Maloney, which makes me look like a consistent overzealous “appealer” of NFA awards. I filed an Article 75. Respondent sought an adjournment and then shrugged her shoulders. Court granted the Petition and said the following:
“he petitioner established without opposition that the decision of the master arbitrator, affirming the lower arbitrator, was arbitrary (see In re Petrofsky ; Auto One Ins. Co. v. Hillside Chiropractic, P.C., 126 A.D.3d 423 ). The affidavit of Karin Bruford adequately demonstrated that IME letters were mailed to the respondent assignor in accordance with the petitioner’s standing and appropriate office mailing practices and procedures (see Preferred Mut. Ins. Co. v. Donnelly, 22 N.Y.3d 1169 ). The master arbitration award dated January 19, 2016 is hereby vacated, and the petitioner is entitled to costs and disbursements, including petitioner’s $325 master arbitration fee.”
Since Judgment was granted, AAA will never know that their system failed again. Why do I post this? The system is broken. Do I have more of these in the Courts? Yes, too many. But, I will admit the petitions and appeals are entertaining and the vindication proves that I have not lost my mind totally.
I will condition the above statement on the fact that I have cases that are not as clear cut as this and a few others, and I cannot predict what the Appellate Division will do.
