Government Employees Insurance Company, Respondent, v. Toby Margolis, Appellant

Government Employees Insurance Company, Respondent, v Toby Margolis, Appellant. [MAJORITY] — In a proceeding pursuant to CPLR article 75 to review a determination of a master arbitrator which vacated a decision of a health service arbitration panel finding that certain medical services received by the appellant were not causally related to her accident, the appeal is from a judgment of the Supreme Court, Kings County (Dowd, J.), dated May 21, 1986, which granted the petition and vacated the master arbitrator’s award. Ordered that the judgment is affirmed, with costs. We agree with the holding of the Supreme Court that "[a] review of the master arbitrator’s determination indicates that he reached his conclusion based upon an impermissible weighing of the evidence (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207; Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224)” (see, also, Matter of Aleman [Empire Mut. Ins. Co.], 62 NY2d 1017; cf., Matter of Allcity Ins. Co. v Puntorno, 114 AD2d 454). The appellant’s contention regarding the composition of the health service arbitration panel, which was not raised before the Supreme Court, is based upon matter dehors the record. Accordingly, the issue is not reviewable by this court. Brown, J. P., Lawrence, Weinstein and Eiber, JJ., concur.