IN RE: Lam QUAN (2024)

Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered May 8, 2023, which denied petitioner Quan's petition to vacate a master arbitrator's award, dated February 26, 2023, affirming a lower arbitrator's award, dated January 11, 2023, unanimously affirmed, without costs.

The motion court correctly upheld the master arbitrator's determination that there were no grounds to vacate the initial arbitration award, as the master arbitrator found that the no-fault arbitrator reached the decision in a rational manner and that the decision was not arbitrary and capricious, incorrect as a matter of law, in excess of policy limits, or in conflict with other no-fault arbitration proceedings (see Matter of Miller v. Elrac, LLC, 170 A.D.3d 436, 437, 95 N.Y.S.3d 172 [1st Dept. 2019]).  As stated in Matter of New Millennium Pain & Spine Medicine, P.C. v. Progressive Cas. Ins. Co. “[t]he fact that the arbitrator followed First Department precedent in Harmonic Physical Therapy, P.C. v. Praetorian Ins. Co., 47 Misc.3d 137[A], 2015 N.Y. Slip Op. 50525[U] [2015 WL 1649002] (App. Term, 1st Dept. 2015), rather than Second Department precedent in Alleviation Med. Servs., P.C. v. Allstate Ins. Co., 55 Misc.3d 44, 49 [49 N.Y.S.3d 814] (App. Term, 2d Dept. 2017), affd on other grounds 191 A.D.3d 934 [143 N.Y.S.3d 395] (2d Dept. 2021), does not warrant reversal.  To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer's duties cease upon the insurer's payment of the contractual limit on its no-fault policy” (220 A.D.3d 578, 578, 198 N.Y.S.3d 317 [1st Dept. 2023]).

Quan's argument that GEICO took the 20% wage offset twice—first, when issuing payment against gross wages;  and second, when taken against the no-fault personal injury protection limit of liability (see Insurance Law § 5102[b];  11 NYCRR 65–1.1) is unpreserved and, if considered (see Matter of DTR Country–Wide Ins. Co. v. Refill Rx Pharm., Inc., 212 A.D.3d 481, 181 N.Y.S.3d 252 [1st Dept. 2023], affd 40 N.Y.3d 904, 2023 WL 6153360 [2023]), is unavailing (see Normile v. Allstate Ins. Co., 87 A.D.2d 721, 448 N.Y.S.2d 907 [3d Dept. 1982], affd 60 N.Y.2d 1003, 471 N.Y.S.2d 550, 459 N.E.2d 843 [1983]).

Quan is not entitled to attorneys’ fees pursuant to 11 NYCRR 65–4.10(j)(4) (see Matter of Country–Wide Ins. Co. v. TC Acupuncture P.C., 179 A.D.3d 414, 414–415, 113 N.Y.S.3d 534 [1st Dept. 2020]).