| Matter of Okslen Acupuncture P.C. v Dinallo |
| 2010 NY Slip Op 07241 [77 AD3d 451] |
| October 12, 2010 |
| Appellate Division, First Department |
| In the Matter of Okslen Acupuncture P.C. et al.,Appellants, v Eric R. Dinallo, Superintendent of Insurance of the State of New York, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York (Cecelia C. Chang of counsel), for Eric R.Dinallo, respondent. Rivkin Radler LLP, Uniondale (Harris J. Zakarin of counsel) for State Farm Mutual AutomobileInsurance Company, respondent. Cozen O'Connor, New York (Jacob C. Cohn of counsel) for Autoone Insurance Company andGeneral Assurance Company, respondents. Wiley Rein LLP, Washington, D.C. (Thomas W. Brenner of the bar of the District of Columbia,admitted pro hac vice, of counsel), and Littler Mendelson P.C., New York (Andrew P. Marks ofcounsel), for National Insurance Crime Bureau, respondent.
Orders, Supreme Court, New York County (Lewis Bart Stone, J.), entered July 2, 2009, which, ina CPLR article 78 proceeding brought by a medical provider assigned no-fault benefit claims and aninjured person eligible for no-fault benefits seeking, inter alia, (1) to compel respondent Superintendentof Insurance to audit and investigate the claims practices of respondent insurers, take appropriate actionto remedy misconduct, and publish all findings, (2) to compel respondent National Insurance CrimeBureau (NICB) to cease all investigative activities on behalf of respondent insurers until it becomeslicensed under General Business Law article 7, and (3) to compel respondent insurers to take actionnecessary to insure that their no-fault special investigative unit investigators are qualified under 11NYCRR 86.6 (c), granted respondents' cross motions to dismiss the petition and directed entry of ajudgment dismissing the proceeding, unanimously affirmed, without costs.
The petition was correctly dismissed as against respondent Superintendent on the ground that itseeks to compel discretionary acts (see Klostermann v Cuomo, 61 NY2d 525, 539 [1984];LMK Psychological Servs., P.C. v StateFarm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; Sightseeing Tours of Am., Inc. v Air Pegasus Heliport, Inc., 40 AD3d354 [2007], lv denied 9 [*2]NY3d 817 [2008]).Although Insurance Law § 309 requires the Superintendent to undertake periodic examinationsof insurance companies, it appears that the scope of an examination and remedies to be employed tocorrect misconduct are left entirely to the Superintendent's discretion (cf. Insurance Law§§ 310, 311); certainly, petitioner points to nothing in the Insurance Law requiring theSuperintendent to investigate particular matters or take specific remedial action based on the findings ofan examination. As against the insurers and NICB, a not-for-profit organization funded by the insuranceindustry, the petition was correctly dismissed in the absence of allegations that petitioners areemployees or members of these private parties affected by the discharge of their rules or bylaws(see Matter of De Petris v Union Settlement Assn., 86 NY2d 406, 411 n [1995]; cf.Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 536-537, 541-542 [1990]).We have considered petitioners' other arguments and find them unavailing. Concur—Mazzarelli,J.P., Sweeny, Moskowitz, Acosta and RomÁn, JJ. [Prior Case History: 25 Misc 3d637.]