So too, “the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility.” James J. Kim, L.A.C., P.C. v Allstate Ins. Co. 2023 NY Slip Op 50587(U) App.

The Master Arbitrator, in accordance with the above legal standards upheld the Award stating, “the [No-Fault Arbitrator] NFA made a factual determination that Applicant’s evidence (including its peer review rebuttals) sustained its burden of persuasion in establishing medical necessity for all the disputed services” and thus, “Appellant is simply asking the undersigned to conduct an impermissible de novo review of the factual record in the hope that I weigh the evidence in its favor.” 45.

The Supreme Court has specifically rejected, numerous times, Petitioner’s current argument that arbitrators must adjudicate defenses of lack-of-medical-necessity consistent with the platform of judicial summary judgment.

As this Court noted in Fresh Meadows Medical Associates v. Liberty Mutual Ins., “[e]ffective December 1, 1977… the Insurance Law was amended to provide that the ‘claimant shall also be entitled to recover his attorney’s reasonable fee, which shall be subject to limitations promulgated by the superintendent in regulations.’” 65 A.D.2d 431 (footnote 2) App. Div.

Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney duly admitted to practice in the courts of the State of New York, certifies that, upon information and belief and reasonable inquiry, the contention contained in the annexed documents are not frivolous Dated: December 9, 2024

The plain text of Arbitrator Summa's decision demonstrates his consideration of the defense; therefore, it cannot be argued that the award was decided in an arbitrary or capricious manor.

Once made, or that the cause of action or defense this prima-facie showing "shifted the burden to plaintiff, which stands in the shoes of its assignor to raise a triable issue of fact in opposition to defendant's cross motion."

¹See also: Pan Chiropractic, P.C. v. Mercury Ins. Co., 24 Misc.3d 163(A) Appellant's legally incorrect argument that any peer review automatically warrants judgment within arbitration has been rejected by the court upon Article 75.

In fact, is a reversible it error for a court to require the applicant for beneñts produce, prima-facie, evidence of medical necessity: beneñts makes a prima seeking to recover assigned first-party a provider no-fault that a complete proof of claim setting showing by demonstrating the forth facie sustained was submitted fact and amount of and that the loss to the insurer beneñts was overdue payment of no-fault ... held that Metropolitan the arbitrator the foregoing, Notwithstanding make a prima facie submit showing because it did not sufñcient the medical of evidence the establish to services necessity and vacated the court granted the petition Consequently, properly award.

It has been held that the test for review where an error of law is an issue is: Whether any reasonable hypotheses can be found to support not set aside an arbitrator's a court will interpretation.

that upon the annexed Notice of Cross-Petition Opposition of Michael Hoenig, Esq., dated December 9, 2024, upon the within exhibits, and and upon the pleadings and proceedings Court, at the Courthouse located the undersigned will cross-move this had herein, heretofore at 100 Supreme Court Drive, Mineola, NewYork 11501, on January 21, 2025 at 9:30 o'clock in the forenoon of that day or as soon thereafter as counsel can be heard for an Order denying Petitioner's the No-Fault Arbitration to CPLR§7514 and; Awards pursuant for attorney's fees pursuant a No-Fault application vacate to Arbitration; to CPLR§7510 and entering judgment to 11 NYCRR§65-4.10(j)(4), as this Court maydeemjust and proper.

together with such other and further relief PLEASE TAKE FURTHERNOTICE that confirming thereon pursuant you are required to serve upon the undersigned your answering papers no later than seven (7) days before the return day of this application.

If service prior of opposing papers is madeby mail,

to the return date of this application.

PLEASETAKEFURTHERNOTICE that same must be mailed twelve (12) days in the event service is not made upon the undersigned as set forth in the preceding paragraph, the Court should not read nor hear any opposition set forth by the Petitioner and in no event give any consideration to same.

extent that Daniel Shapiro MD isa sole proprietor authorized to conduct businessin the State *$"#$%"#%%($)&&(6($ of New York and deny any knowledge or information sufficient to form a belief as to the ’ 7 9 & &2 2 97#&!

extent that Rana United Inc., is a domestic corporation authorized to conduct business in the *$& &%($)&&(6($ State of New York and deny any knowledge or information sufficient to form a belief as to ’ 7 9 & &2 2 97#&!

In contrast, the rebuttal from Dr. Perez specifically 5(6# #(8 $6(#’")%’##2 addresses these issues, establishing that the SAM unit can provide benefit for the &&$( 6#$!$$(%8&6’’$ Assignor's injuries.

determination ofa trier of fact as to issues of credibility is given substantial deference, as &’’’(’&6#2!8(6#&’ a trial court's opportunity to observe and evaluate the testimony and demeanor of the # (< %%(2 68 & 8#( $ 2 & & ’ $ witnesses affords it a better perspective from which to assess their credibility.” James J.

of the civil practice law and rules, and provided further that where the amount of such master arbitrator's award is ’$8#%#7&(# &%8&&’($$7$$(’($6<7& five thousand dollars or greater, exclusive of interest and attorney's fees, the insurer or the claimant may institute a ’8$(&&##!

CERTIFICATION PURSUANT TO 22 NYCRR § 202.8-b I, Michael Hoenig, an attorney duly admitted to practice law before the courts of the State of New York, hereby certify that this Cross-Petition and Opposition complies with the word count limit set forth 22 NYCRR § 202.8-b, because it contains 5,176 words, including the parts exempted by § 202.8-b(b).

In preparing this certification, I have relied on the word count of the word-processing system used to prepare this affidavit.

Dated: Great Neck, New York December 2, 2024

($9%%8&94(’(7(& The office of the undersigned employs standard procedures to ensure that the time spent $’’’$(&!&%#4&&%&(($$% working on matters billable per-hour is accurately and immediately recorded.

the appellate papers for this matter, I was personally responsible to accurately and $ %%## %% ’ $ 5 %##4 %9# (#4 & contemporaneously record the amount of time spent on each segment of writing and any %(#4 & $ ( ’ % $ !

& 4 ancillary time spent needed to obtain information necessary towardsthe creation of the appellate ##4%&&9’45&$’$%%## briefs and related documents.

The database contains a button, whenpressed, will export this data ’$%#&$&99( 5$%& 5##*%$& to a separate Excel spreadsheet which may be printed.

database regarding the time I spent and actions I took to create the appellate documents for this &9!&!$%&6$%%##&(’$ case is attachedto this affirmation.

involving no-fault Where parties submit to “compulsory arbitration insurance, the standard of review is whether the award is supported by evidence or other basis in reason.” Matter of Miller v Elrac, LLC, 2019 NY Slip Op 01544 (1st Dept 2019).

A true and correct copy of the data contained within the firm’s database regarding the time I spent and actions I took to create the appellate documents for this case is attached to this affirmation.

The amount of time spent on each task, documented below, was allocated beforehand based on my daily schedule, adjusted at near completion and, confirmed by measurement from a stopwatch or clock.

In support such contention, petitioner's of counsel submits affidavits from William Purdy, Jennifer Esq., and Justin each detailing Skaferowsky, Howard, Esq., Esq., legal work performed.

Petitioner's counsel also submits affidavits from Justin Esq., Mariel Dumas-Wenckebach, Esq,, Skaferowsky, Joshua Sussman, Esq., 9.5 hours work the of detailing legal performed the Article 75 proceeding.