| Matter of Health & Endurance Med., P.C. v Deerbrook Ins.Co. |
| 2007 NY Slip Op 07844 [44 AD3d 857] |
| October 16, 2007 |
| Appellate Division, Second Department |
| In the Matter of Health & Endurance Medical, P.C., as Assignee ofStanley Cummings, Appellant, v Deerbrook Insurance Company,Respondent. |
—[*1] Marshall & Marshall, Jericho, N.Y. (Craig B. Marshall of counsel), for respondent.
In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator datedSeptember 15, 2005, confirming an award of an arbitrator dated June 24, 2005 denying paymentof no-fault insurance benefits, the appeal is from an order of the Supreme Court, Kings County(Ruchelson, J.), dated June 22, 2006, which denied the petition and granted the respondent'scross petition to confirm the award of the master arbitrator.
Ordered that the order is reversed, on the law, with costs, the awards of the master arbitratorand arbitrator are vacated, and the matter is remitted to the arbitrator for further proceedingsconsistent herewith.
The petitioner, Health & Endurance Medical, P.C. (hereinafter HEM), as assignee, soughtpayment of no-fault insurance benefits from the respondent, Deerbrook Insurance Company(hereinafter Deerbrook) for medical services provided to an insured by an independentcontractor. After arbitration, payment was denied on the ground that HEM was not a provider ofhealth care services within the meaning of the no-fault regulations and, therefore, was notentitled to direct payment of such benefits. That award was confirmed by a master arbitrator. TheSupreme Court, inter alia, denied HEM's petition to vacate the award of the master arbitrator. Wereverse.
In relevant part, the no-fault regulations provide for direct payments of no-fault benefits to"providers of health care services" (11 NYCRR 65-3.11 [a]). Under the circumstances [*2]of this case, the applicability of 11 NYCRR 65-3.11 (a) wasimpermissibly raised, sua sponte, by the arbitrator (see 11 NYCRR 65-4.4 [e]). Since thearbitrator never ruled on the only issue raised by Deerbrook relating to the need for the servicesin question, this matter must be remitted to the arbitrator for a determination of this issue. Miller,J.P., Ritter, Goldstein and Dickerson, JJ., concur.