                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 3, 2015                    520244
________________________________

In the Matter of the
   Arbitration between
   MERCURY CASUALTY COMPANY,
                    Appellant,
      and
                                             MEMORANDUM AND ORDER
PATIENT CARE ASSOCIATES, as
   Assignee of FERNANDO
   THENESTEVEZ,
                    Respondent.
________________________________


Calendar Date:    October 19, 2015

Before:    McCarthy, J.P., Rose, Devine and Clark, JJ.

                              __________


      Law Offices of Jason Tenenbaum, Garden City (Eric Wahrburg
of counsel), for appellant.

      Eppinger, Reingold & Korder, Larchmont (Ronald M. Eppinger
of counsel), for respondent.

                              __________


Rose, J.

      Appeals (1) from an order and judgment of the Supreme Court
(O'Connor, J.), entered June 10, 2014 in Albany County, which
denied petitioner's application pursuant to CPLR 7511 to vacate
an arbitration award, and (2) from a judgment of said court,
entered December 31, 2014 in Albany County, which, among other
things, confirmed the award.

      Petitioner provided automobile liability insurance for
Fernando Thenestevez (hereinafter the insured), who was injured
in an automobile accident and applied for no-fault benefits by
                              -2-                520244

submitting to petitioner the requisite application form listing
his address as "521 W 189th St Apt 2d" (emphasis added). The
insured obtained treatment for his injuries from respondent, who,
in turn, sought payment from petitioner as the insured's
assignee. Petitioner, through its agent, then mailed letters on
three separate dates directing the insured to attend independent
medical examinations (hereinafter IMEs). All of the letters were
mailed to the insured, at "521 w 189th st apt 2" (emphasis added)
and to his attorney. The insured failed to attend any of the
scheduled IMEs, leading petitioner to deny respondent's claim.

      Respondent then filed a demand for arbitration. The
arbitrator found in respondent's favor, concluding that
petitioner wrongfully denied the claim because it failed to
demonstrate that it had properly notified the insured of the
IMEs. Upon petitioner's appeal, a master arbitrator affirmed the
arbitrator's award. Petitioner thereafter commenced this CPLR
article 75 proceeding to vacate the award. Supreme Court denied
petitioner's application, confirmed the award and entered
judgment in favor of respondent. Petitioner appeals.

      We cannot agree with petitioner's argument that it was
entitled to a presumption that the IME notification letters were
received by the insured. Our review of a master arbitrator's
award in an arbitration proceeding to resolve a disputed no-fault
insurance claim requires us to determine whether the award "was
arbitrary and capricious, irrational or without a plausible
basis" (Matter of Farrell [Allstate Ins. Co.], 232 AD2d 934, 935
[1996] [internal quotation marks and citation omitted]; accord
Matter of Steinauer [New York Cent. Mut. Fire Ins. Co.], 272 AD2d
771, 772 [2000]; see Matter of Petrofsky [Allstate Ins. Co.], 54
NY2d 207, 211 [1981]). The presumption of receipt of a properly
mailed item attaches only if the factfinder first determines that
sufficient evidence exists to show that the mailing was proper
(see e.g. Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169, 1170
[2014]; Matter of Gallahue [Sweeney], 234 AD2d 881, 881 [1996];
Matter of Rea [Hartnett], 175 AD2d 441, 442 [1991]). Here, the
arbitrator correctly declined to apply this presumption in light
of her rational factual determination that petitioner's evidence
was insufficient to show that the IME notices were properly
addressed. Indeed, none of the evidence related to the mailing
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correctly listed the insured's address.

      Petitioner also argues that, regardless of the fact that
the IME notices mailed to the insured were improperly addressed,
the insured still had adequate notice because the letters were
also sent to the insured's attorney. However, while petitioner
points to a recent First Department decision that suggests, in
dicta, that properly mailed IME notices to an insured's attorney
would suffice to give proper notice to the insured person (see
American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442, 442 [2013]),
such a non-binding statement can hardly be considered to
necessarily make an arbitrator's decision incorrect as a matter
of law. Nor, in our view, do the circumstances of this case
provide us with an appropriate occasion to depart from "the
fundamental principle that an arbitration award will generally
not be vacated because of a mistake of law and/or fact" (Matter
of Pierre [General Acc. Ins.], 100 AD2d 705, 706 [1984], lv
denied 63 NY2d 601 [1984]). Finally, we decline respondent's
request for counsel fees and sanctions over and above the amount
already awarded in the arbitration proceeding (see 22 NYCRR
130-1.1).

     McCarthy, J.P., Devine and Clark, JJ., concur.



      ORDERED that the order and judgment entered June 10, 2014
and the judgment entered December 31, 2014 are affirmed, with
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
