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 [1981]). 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][3]; 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.
7 Responses
THIS DOES NOT MAKE AMERICA OR AAA GREAT AGAIN.
With all that needs to be done, like fixing the all caps while writing situation, do you think this is a real issue? Shouldn’t they focus on allowing affidavitless motions to prove no-shows, or removing this whole personal knowledge blah blah blah. Really JT focus on the important stuff.
I just want to return some integrity to this area of law. My biggest pet peeve is the”I don’t care” attitude and the “let’s file discovery motion/DJ/Appeal” for the primary purpose of billing. If only those firms would be irradiated.
Ah Hah! The Truth is revealed! you are exposed as one who believes that the other areas of the law treat things differently. While true they wear more expensive suits and stand in pre-war buildings, on the whole we treat each other with more respect than the other areas of the law. Sorry to be the one to tell you but they lied to us in Law School, I was once told when questioning billing we were doing that “if you do not bill they think you are not working, if they think you aren’t working they find someone else”. Carriers spend $1,500.00 for a doctor on a 114.00 case, DO you think they do not want us to bill? They want to know we are fighting the good fight, they want to be told they are right. Think about it, A major carrier bought the argument and paid for an attorney to attempt to argue for replacement doctors on IMES!!! I say bill, bill, bill, because the carriers want bad ideas.
“I just want to return some integrity to this area of law. My biggest pet peeve is the”I don’t care” attitude and the “let’s file discovery motion/DJ/Appeal” for the primary purpose of billing”
is that like asking for an EBT with every summary judgment motion then appealing when that EBT is properly denied?
And the Courts grant the appeal. Then when your doctor appears for deposition… well never mind. You know the narrative.
I told you that you were going to lose this case. Time frames are made for a reason and should be followed. I wholeheartedly and respectfully disagree with you on this one and the right decision was made.