The opinion
American Tr. Ins. Co. v Emuna Inc
2026 NY Slip Op 30745(U)
February 26, 2026
Supreme Court, New York County
Docket Number: Index No. 650780/2025
Judge: Emily Morales-Minerva
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.6507802025.NEW_YORK.001.LBLX049_TO.html[03/11/2026 3:45:53 PM]
FILED: NEW YORK COUNTY CLERK 02/27/2026 10:26 AM INDEX NO. 650780/2025
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 02/26/2026
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 42M
---------------------X
AMERICAN TRANSIT INSURANCE COMPANY, INDEX NO. 650780/2025
Petitioner,
MOTION DATE 04/01/2025
- V -
MOTION SEQ. NO. 001
EMUNA INC DBA VAVAR PHARMACY,
Respondent.
DECISION+ ORDER ON
MOTION
---------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 9, 10, 11, 12, 13,
14, 15, 16
were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD
APPEARANCES:
Larkin Farrell LLC, New York, New York (William Robert Larkin,
Esq., of counsel), for petitioner.
Gary Tsirelman, P. C. , Brooklyn, New York (Gary Tsirelman,
Esq., of counsel), for respondent.
EMILY MORALES-MINERVA, J.S.C.
In this special proceeding, petitioner AMERICAN TRANSIT
INSURANCE COMPANY moves, by notice of petition (motion sequence
number 01), pursuant to CPLR § 7511, to vacate the arbitration
award issued by Arbitrator Marianne C. Zack, Esq., and
subsequently confirmed by Master Arbitrator Robyn D. Weisman,
Esq., in favor of respondent EMUNA INC D/B/A VAVAR PHARMACY.
Respondent opposes and cross-petitions for confirmation of the
arbitration award, reasonable attorneys' fees, and costs.
650780/2025 AMERICAN TRANSIT INSURANCE COMPANY, vs. EMUNA INC DBA VAVAR Page 1 of 10
PHARMACY,
Motion No. 001
[* 1] 1 of 10
FILED: NEW YORK COUNTY CLERK 02/27/2026 10:26 AM INDEX NO. 650780/2025
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 02/26/2026
For the reasons explained below, petitioner's petition
(mot. seq. no. 01) is denied, and respondent's cross-petition is
granted, in part.
BACKGROUND
On October 25, 2022, non-party Nani Boichenko was injured
in a motor vehicle accident (see New York State Court Electronic
Filing System [NYSCEF] Doc. No. 01, petition). As a result of
the accident, Ms. Boichenko received medical treatment,
including prescribed medications from respondent EMUNA INC D/B/A
VAVAR PHARMACY during the period of March 17, 2023, through
April 15, 2023 (see id.; see also NYSCEF Doc. No. 03, lower
arbitration award, dated October 03, 2024).
Thereafter, respondent submitted no-fault benefit claims to
petitioner seeking reimbursement of the medical treatment
provided to Ms. Boichenko, but Petitioner denied reimbursement
of said claims based on lack of medical necessity (see NYSCEF
Doc. No. 01, complaint). Specifically, petitioner "rel[ied] on
the peer review report of Dr. Edward W. Weiland dated 6/23/2023
and the independent medical examination (IME) of Dr. Douglas
Unis dated 2/10/23" to support its denial (NYSCEF Doc. No. 03,
arbitration award, dated October 03, 2024, p 2). As a result of
the denial, respondent initiated arbitration with petitioner
650780/2025 AMERICAN TRANSIT INSURANCE COMPANY, vs. EMUNA INC DBA VAVAR Page 2 of 10
PHARMACY,
Motion No. 001
[* 2] 2 of 10
FILED: NEW YORK COUNTY CLERK 02/27/2026 10:26 AM INDEX NO. 650780/2025
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 02/26/2026
(see NYSCEF Doc. No. 05, motor vehicle no-fault insurance law
arbitration request form, dated June 19, 2023).
The American Arbitration Association (AAA) assigned the
action to Arbitrator Marianne C. Zack (Arbitrator Zack) pursuant
to AAA Case No. 17-23-1304-3361, and on September 09, 2024,
Arbitrator Zack conducted a hearing (see NYSCEF Doc. No. 03,
lower arbitration award). Arbitrator Zack reviewed two disputed
claims, one for $2,624.16 and the other for $1,877.04 (see id.) . 1
To support its denial of the claims, petitioner submitted the
peer review report of Dr. Edward W. Weiland, who concluded that
the medications were not medically necessary, as well as the IME
report of Dr. Douglas Unis (see id.). In rebuttal, respondent
submitted the report of Dr. Pervaiz Qureshi (see id.).
Upon conclusion of the hearing and in consideration of the
evidence and testimony submitted, Arbitrator Zack determined
that the peer review report submitted by petitioner established
that the prescribed medications were not medically necessary,
shifting the burden to respondent (see id., p 3). However, upon
consideration of respondent's "very comprehensive rebuttal" of
Dr. Pervaiz Qureshi, Arbitrator Zack found that respondent had
satisfied its "shifted burden", sufficiently proving that the
prescribed medications were medically necessary (see id.).
1 The third claim, for $4,501.20, was withdrawn without prejudice by
respondent (see NYSCEF Doc. No. 03, arbitration award).
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PHARMACY,
Motion No. 001
[* 3] 3 of 10
FILED: NEW YORK COUNTY CLERK 02/27/2026 10:26 AM INDEX NO. 650780/2025
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 02/26/2026
Accordingly, Arbitrator Zack awarded respondent $4,501.20, plus
statutory interest, attorneys' fees, and filing fees (see id.).
Petitioner appealed, and the matter was assigned to Master
Arbitrator Robyn Weisman (master arbitrator) pursuant to AAA.
Case No. 99-23-1304-3361 (see NYSCEF Doc. No. 04, master
arbitration award, dated December 04, 2024). The master
arbitrator affirmed Arbitrator Zack's decision, holding:
"The issue of medical necessity is a factual
issue. The arbitrator found sufficient
evidence to prove medical necessity. The
arbitrator awarded the amount after a
finding of medical necessity and discussed
the fact that she reviewed the evidence and
took into consideration the record and oral
arguments. The arbitrator held after
weighing the evidence submitted, the
[respondent's] evidence was more persuasive
and awarded accordingly. With respect to
the differing medical opinions, I must defer
to the Arbitrator as the arbitrator was
within her purview to weigh such evidence as
she deemed appropriate"
(id.) .
Further, the master arbitrator noted that master
arbitrators are not permitted to re-weigh evidence and may only
disturb a decision that is arbitrary, capricious, unsupported by
the record, or incorrect as a matter of law, none of which were
applicable here (see id.).
Despite the two-tier arbitration process, petitioner
commenced the instant Article 75 proceeding, seeking vacatur of
650780/2025 AMERICAN TRANSIT INSURANCE COMPANY, vs. EMUNA INC DBAVAVAR Page4of10
PHARMACY,
Motion No. 001
[* 4] 4 of 10
FILED: NEW YORK COUNTY CLERK 02/27/2026 10:26 AM INDEX NO. 650780/2025
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 02/26/2026
the $4,501.20 award pursuant to CPLR § 7511 (b) (1) (iii) 2 (see
NYSCEF Doc. No. 01, petitioner). Petitioner contends that the
"arbitrator's decision was arbitrary and capricious, without
rational basis and incorrect as a matter of law because the
arbitrator ignored petitioner's evidence" (id., p 13).
Respondent opposes and cross-petitions, seeking (1) a
confirmation of the arbitration award, (2) attorneys' fees
pursuant to 11 NYCRR § 65-4.l0(j) (4) [governing master
arbitrator procedures] in the amount of $600.00, and (3) costs
pursuant to CPLR § 8202 in the amount of $100.00 (see NYSCEF
Doc. No. 12, cross-petition).
ANALYSIS
"It is a bedrock principle of arbitration law that the
scope of judicial review of an arbitration proceeding is
extremely limited" (Frankel v Sardis, 76 AD3d 136, 139 [1st Dept
2010], citing Matter of Silverman [Benmor Coats], 61 NY2d 299
2Section 7511 of the CPLR provides, as relevant here:
"(a) An application to vacate or modify an award may be made by a party
within ninety days after its delivery to him.
"(b) Grounds for vacating.
1. The award shall be vacated on the application of a party who either
participated in the arbitration or was served with a notice of
intention to arbitrate if the court finds that the rights of that party
were prejudiced by:
(iii) an arbitrator, or agency or person making the award
exceeded his power or so imperfectly executed it that a final and
definite award upon the subject matter submitted was not
made . . . "
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PHARMACY,
Motion No. 001
[* 5] 5 of 10
FILED: NEW YORK COUNTY CLERK 02/27/2026 10:26 AM INDEX NO. 650780/2025
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[1984]). "Accordingly, an award will not be overturned unless
it is violative of a strong public policy, or is totally
irrational, or exceeds a specifically enumerated limitation on
the arbitrator's power" (Frankel, 76 AD3d at 139, quoting
Silverman, 61 NY2d at 308, and Board of Educ. of Dover Union
Free School Dist. V Dovr-Wingdale Teachers' Ass'n, 61 NY2d 913,
915 [1984]) .
An "arbitrator's interpretation of the issues and the scope
of their authority is accorded substantial deference, and [the]
Court will not overturn the decision unless there is no support
at all justifying the decision" (Roffler v Spear, Leeds &
Kellogg, 13 AD3d 308, 310 [1st Dept 2004] [emphasis added]).
Indeed, "a court cannot examine the merits of an arbitration
award and substitute its judgment for that of the arbitrator
simply because it believes its interpretation would be the
better one" (Matter of Arbitration Between Spence and State
Univ. of New York, 230 AD3d 1559, 1561 [4th Dept 2024], citing
Matter of New York State Correctional Officers & Police
Benevolent Ass'n, Inc. v State of New York, 94 NY2d 321, 326
[1999]). Therefore, "the party seeking to upset an arbitration
award bears a heavy burden" (Frankel, 76 AD3d at 140, citing
Lehman Bros., Inc. v Cox, 10 NY3d 743, 744 [2008]).
Here, the petition must be denied because petitioner has
failed to establish any cognizable ground for vacatur under CPLR
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PHARMACY,
Motion No. 001
[* 6] 6 of 10
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7511 (b) (1) (iii). Arbitrator Zack considered the evidence
submitted by both parties and concluded that the report
submitted by respondent "provide[d] a meaningful rebuttal as to
why the conclusions set forth in both [of petitioner's] reports
were incorrect, and why he believed each medication to be
necessary" (NYSCEF Doc. No. 03, arbitration award, p 3).
Thereafter, the master arbitrator appropriately determined
that Arbitrator Zack acted within her authority in weighing the
evidence and "giv[ing] greater weight to the evidence she fe[lt]
[was] most persuasive" (NYSCEF Doc. No. 04, master arbitration
award). Mere disagreement with an arbitrator's factual findings
or the manner in which the evidence was weighed does not
constitute a basis for vacatur of an arbitration award under
CPLR § 7 511 (b) ( 1) ( iii) .
The Court now turns to respondent's unopposed cross-
petition for attorneys' fees pursuant to 11 NYCRR
§ 64-4.lO(j) (4) 3 in the amount of $600.00, and costs pursuant to
CPLR § 8202 in the amount of $100.00 (see NYSCEF Doc. No. 12,
cross-petition).
3 11 NYCRR § 65-410 (j) provides: "The following limitations shall apply to
the payment by insurers of applicant's attorney's fees for services rendered
in a master arbitration to resolve a no-fault dispute: (4) The attorney's fee
for services rendered in connection with a court adjudication of a dispute de
nova [] or in a court appeal from a master arbitration award and any further
appeals, shall be fixed by the court adjudicating the matter" (emphasis
added).
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PHARMACY,
Motion No. 001
[* 7] 7 of 10
FILED: NEW YORK COUNTY CLERK 02/27/2026 10:26 AM INDEX NO. 650780/2025
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 02/26/2026
11 NYCRR § 65-4 .10 (j) (4) "allows the prevailing party to
recover attorneys' fees 'for services rendered . in a court
appeal from a master arbitration award and any further appeals'"
(American Tr. Ins. Co. v Rutland Med. PC, 224 AD3d 531, 532 [1st
Dept 2024], quoting 11 NYCRR § 65-4.l0(j) (4)]). This applies to
attorneys' fees for "work in Supreme Court in opposing the
petition to vacate the arbitration award" as well as work
involved in appeals to the Appellate Division (id., citing
Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d
414, 414-415 [1st Dept 2020]; see also Geico Ins. Co. v AAAMG
Leasing Corp., 148 AD3d 703, 705 [2d Dept 2017]).
Here, non-party Gary Tsierlman, Esq., attorney for
respondent, affirms that he expended 1 hour and thirty minutes
opposing the petition, at an hourly rate of $400.00 per hour,
reflecting no-fault specialization and 27 years of experience
(see NYSCEF Doc. No. 15, affirmation in support of attorneys'
fees by Gary Tsirelman, Esq. [affirming that the "total time
spent on case review, researching, and writing of this response
to the petition is one hour and thirty minutes"], dated March
24, 2025, and Doc. No. 16, time records). The Court finds this
time reasonable, and awards attorneys' fees in the amount of
$400.00 per hour, for a total amount of $600.00 reflective of
one hour and thirty minutes of work.
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PHARMACY,
Motion No. 001
[* 8] 8 of 10
FILED: NEW YORK COUNTY CLERK 02/27/2026 10:26 AM INDEX NO. 650780/2025
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 02/26/2026
The Court declines to award costs in the amount of $100.00,
as respondent does not present statutory or case specific
authority to support this application (see generally NYSCEF Doc.
No. 14, affirmation in support).
Accordingly, it is hereby
ORDERED that the petition of petitioner AMERICAN TRANSIT
INSURANCE COMPANY to vacate the arbitration award in AAA Case
No. 17-23-1304-3361 is denied in its entirety; it is further
ORDERED that respondent's EMUNA INC D/B/A VAVAR PHARMACY
cross-petition to confirm the master arbitration award of Master
Arbitrator Robyn Weisman, which affirmed the award of Arbitrator
Marianne c. Zack, is granted, and the award is confirmed in all
respects; it is further
ORDERED that respondent EMUNA INC D/B/A VAVAR PHARMACY is
awarded the full claim amount of $4,501.20, plus statutory
interest and fees; it is further
ORDERED that respondent's EMUNA INC D/B/A VAVAR PHARMACY
cross-petition for attorneys' fees is granted, and respondent is
awarded $600.00 in attorneys' fees; it is further
ORDERED that respondent's EMUNA INC D/B/A VAVAR PHARMACY
cross-petition for costs is denied; it is further
ORDERED that petitioner shall serve a copy of this decision
and order with notice of entry upon respondent within fifteen
days from the date of this decision and order; and it is further
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PHARMACY,
Motion No. 001
[* 9] 9 of 10
FILED: NEW YORK COUNTY CLERK 02/27/2026 10:26 AM INDEX NO. 650780/2025
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 02/26/2026
ORDERED that the Clerk of Court shall enter judgment
accordingly.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
02/26/2026
DATE
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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PHARMACY,
Motion No. 001
[* 10] 10 of 10