

Auto One Ins. Co. v Hillside Chiropractic, P.C. (2015 NY Slip Op 01750)





Auto One Ins. Co. v Hillside Chiropractic, P.C.


2015 NY Slip Op 01750


Decided on March 3, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 3, 2015

Tom, J.P., Friedman, Renwick, Manzanet-Daniels, Feinman, JJ.


14398N 161419/13

[*1] Auto One Insurance Company, Petitioner-Appellant,
vHillside Chiropractic, P.C., Respondent-Respondent.


The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Order, Supreme Court, New York County (Peter H. Moulton, J.), entered July 2, 2014, which denied the petition seeking to vacate the determination of the Master Arbitrator, dated November 6, 2013, affirming the award of the lower arbitrator in this no-fault arbitration, unanimously reversed, on the law, without costs, the petition granted, the arbitration award vacated, and the matter remanded for a new arbitration hearing before a different arbitrator.
The no-fault arbitrator gave no weight to an independent medical examination (IME) report, prepared by a chiropractor and submitted by petitioner, because it was not notarized pursuant to CPLR 2106. The Master Arbitrator, in reviewing the award, deferred to the no-fault arbitrator's determination of the weight to be given to the evidence, as did the IAS court.
We find that the no-fault arbitrator's decision to adhere, with strict conformity, to the evidentiary rule set forth in CPLR 2106, although such conformity is not required (see  11 NYCRR § 65-4.5[o] [1] ["The arbitrator shall be the judge of the relevance and materiality of the evidence offered and strict conformity to legal rules of evidence shall not be necessary."], was arbitrary. Accordingly, the award must be vacated (see In re Petrofsky [Allstate Ins. Co.] , 54 NY2d 207, 211 [1981]). We note that since no substantive determination regarding the weight of the IME report was ever made, the Master Arbitrator and the IAS court erred in deferring to the no-fault arbitrator's determination.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 3, 2015
CLERK


