Matter of Global Liberty Ins. Co. v Coastal Anesthesia Servs., LLC, 2016 NY Slip Op 08964 (1st Dept. 2016)
What’s interesting about this case is that the submissions were five days late (accompanied by a showing of law office failure in the moving memorandum of law) and Respondent provider did not object to the tardy submissions. Rather, Respondent provider sought time to put in a rebuttal. The arbitration was held 6 months following the uploading of the evidence.
Lower arbitrator Ann Lorraine Russo decided that rocket docket preclusion was proper and Master Arbitrator Donald DeCarlo gave his “Petrofsky” stamp of approval. Clearly, I was displeased by what I sensed as a complete perversion of the regulation.
Supreme Court without directly saying it wrote that it did not agree with the rulings of the lower arbitrator but would not disturb what amounted to a broken arbitration system on this issue. The Appellate Division did not want to get involved. “The decision of the Master Arbitrator in affirming the arbitration award had evidentiary support, a rational basis, and was not arbitrary and capricious (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 ). The original arbitrator properly acted within her discretionary authority to refuse to entertain any late submissions proffered by petitioner (see 11 NYCRR 65-4.2[b]; Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2d Dept 2009]).”
At the end of the day, AAA and DFS needs to take a hard look (and I have sources who have said they will) at the application of 11 NYCRR 65-4.2. This was the prototypical example of AAA just does not getting it and the courts turning a blind eye to a real problem. I sense needed regulatory change is on the horizon.
Also remember that you (the participant) have the right to rate the performance of an arbitrator. I just wish we could rate the performance of the master arbitrators. But does anyone read what I wrote after I get a decision like this one? smh.