Reported in New York Official Reports at American Tr. Ins. Co. v Excell Clinical Lab (2024 NY Slip Op 50820(U))
[*1]| American Tr. Ins. Co. v Excell Clinical Lab |
| 2024 NY Slip Op 50820(U) |
| Decided on June 28, 2024 |
| Civil Court Of The City Of New York, New York County |
| Li, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 28, 2024
American Transit Insurance Company, Petitioner,
against Excell Clinical Lab A/A/O VELOZ, Respondent. |
Index No. CV-003210-20/NY
Plaintiff’s counsel:
Peter Charles Merani
1001 Avenue of the Americas Ste 1800
New York, New York 10018-5460
Pro se Defendant Wendy Changyong Li, J.
Upon reading Petitioner’s unopposed Petition to Vacate Arbitration Award (“Petition“), the Petition is decided as follows.
II. Procedural History
On August 2, 2019, Arbitrator Taylor awarded Respondent $3,129.75 in No-Fault benefits relating to an alleged motor vehicle accident on October 18, 2017. Master Arbitrator Godson upheld the award in a decision dated December 24, 2019. On February 11, 2020, Petitioner’s filed the Petition. Respondents have not opposed or otherwise appeared in this Petition.
III. Discussion
Petitioner sought relief under CPLR 7511(b) which states that the grounds for vacating an arbitration decision are “(i) corruption, fraud or misconduct in procuring the award; or (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or (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; or (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection” [emphasis added].
The Petitioner asserted, having submitted a peer review by Dr. Polavarapu alleging that the disputed services provided by Respondent EXCELL CLINICAL LAB were medically unnecessary, that the “burden” was then on Respondents to establish medical necessity. Respondents allegedly failed to do so. Indeed, they did not offer any IME Report or peer review of their own. Petitioner asserted that Respondents’ “failure” to meet their “burden” meant that the Arbitrators’ decisions were not “final and definite”.
The Court disagrees. Petitioner’s outline of how the evidentiary burden shifts between Petitioner and Respondent properly describes the dynamics during a trial determining entitlement or a motion for summary judgment (see Citywide Social Work & Psychological Servs., PLLC v Allstate Ins. Co., 20 Misc 3d 1124[A], 1124A, 2008 NY Slip Op 51601[U], *1 [Sup Ct, Nassau County 2008]; Amaze Med. Supply, Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 128A, 2003 NY Slip Op 51701[U], *1 [App Term 2003]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 18 Misc 3d 1147[A], 1147A, 2008 NY Slip Op 50456[U], *1 [Civ Ct, Kings County 2008]). However, the same evidentiary standards do not apply to no-fault arbitrations (see Am. Tr. Ins. Co. v Right Choice Supply, Inc., 78 Misc 3d 890, 891 [Sup Ct, Kings County 2023]). “When determining an issue of medical necessity, a No-Fault hearing arbitrator is not required to apply the well-settled case law holding that the health service provider must submit expert opinion evidence which meaningfully refers to and either discusses or rebuts the conclusions of the insurer’s expert witness” (Id.).
“Judicial review of arbitration awards is extremely limited” (Matter of O’Neill v GEICO Ins. Co., 162 AD3d 776, 777 [2d Dept 2018]). “Vacatur of an award pursuant to [CPLR 7511(b)(iii)] is warranted only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Id. [internal citations omitted]). Petitioner here did not allege a violation of strong public policy or that the award clearly exceeded a specifically enumerated limit. The Court does not find either Arbitrator’s reasoning to be irrational. Arbitrator Taylor’s decision indicated a “close examination” of the materials submitted by Petitioner and discussed her reasoning. In particular, she found that an MRI report showing “interstitial tear of the ACL and focal vertical tear medial meniscus . . . reasonably establish a basis to perform surgery to repair the tears of the ACL and medial meniscus” (Exhibit A, Petition). Master Arbitrator Godson concurred.
On the topic of finality: “Nothing in the award would lead the parties to a new controversy or litigation, the rights and obligations of the parties are clearly established, and the controversy between the parties is clearly resolved. Accordingly, the arbitrator’s award is sufficiently final and definite” (Geico Indem. Co. v. Ace USA Grp., 2022 NYLJ LEXIS 1101, *7).
IV. Order
Accordingly, it is
ORDERED that the Petition to Vacate Arbitration Award is DENIED in its entirety.
Dated: June 28, 2024County of New York
Honorable Wendy Changyong Li, J.C.C.
Reported in New York Official Reports at UGP Acupuncture, P.C. v Progressive N. Ins. Co. (2024 NY Slip Op 50814(U))
[*1]| UGP Acupuncture, P.C. v Progressive N. Ins. Co. |
| 2024 NY Slip Op 50814(U) |
| Decided on June 26, 2024 |
| Civil Court Of The City Of New York, Kings County |
| Roper, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 26, 2024
UGP Acupuncture, P.C., A/A/O GEORGE, ESTEVEZ, Plaintiff(s),
against Progressive Northern Insurance Company, Defendant(s). |
Index No. CV-700545/21-KI
The Rybak Firm, PLLC
1810 Voorhies Ave.
3rd Floor, Suite 7
Brooklyn, NY 11235
(718) 975-2035
Counsel for Plaintiff
The Law Offices of Perry and Frankson
3 Dakota Drive
Suite 201
N. New Hyde Park, NY 11042
(516) 502-1390
Counsel for Defendant Sandra Elena Roper, J.
Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:
PapersNotice of Motion and Exhibits Annexed 1
INTRODUCTION
Plaintiff moves This Honorable Court by Notice of Motion to Amend Summons and Complaint and Add New Party pursuant to CPLR 305(c), CPLR 2001, and CPLR 3025(B) to remove Defendant Progressive Northern Insurance Company as outgoing defendant and to add [*2]Country Wide Insurance Company as incoming defendant, and for such other and further relief deemed just and proper.
PROCEDURAL AND FACTUAL HISTORY
Plaintiff medical provider UGP Acupuncture P.C. (hereinafter referred to as UGP) commenced this No-Fault action against Insurer Defendant Progressive Northern Insurance Company (hereinafter referred to as Progressive) for payment reimbursement for medical services rendered to alleged EIP-Assignor for injuries allegedly sustained as a result of a motor vehicle accident (hereinafter referred to as MVA) occurring on or about July 22, 2018. Summons and complaint filed with clerk of court on January 11, 2021. Defendant failed to serve Answer thus Plaintiff filed for Default Judgment on July 22, 2021, which was rejected by clerk of court on July 5, 2022. Thereafter, issue was joined on August 12, 2021, service of Defendant’s Answer, dated August 5, 2021, which was acknowledged as received by Plaintiff on August 16, 2021, and filed with clerk of court on or about October 14, 2021. The Parties executed Stipulation of Settlement and Discontinuance dated July 23, 2021 in which was contained: “The index number 700545/21 is preserved for Plaintiff to reserve the correct insurance carrier.” (NYSCEF document #4).
Thereabouts ten months after the execution of the Stipulation of Settlement and Discontinuance disposing the case, Plaintiff filed on May 28, 2022, the instant Motion to Amend to add new incoming Insurer Defendant Country Wide Insurance Company which was dated and served upon both outgoing No-Fault Insurer Defendant and purported incoming No-Fault Insurer Defendant on September 21, 2021, two months after the disposition of the case by the execution of the Stipulation of Settlement and Discontinuance. This instant motion to Amend was first on to be heard on June 30, 2022. On that date and continuing to the present, outgoing No-Fault Insurer Defendant did not file any responsive papers to the motion. After this first appearance on August 23, 2023, two years after the execution of the Stipulation of Settlement and Discontinuance disposing the case, it was uploaded to NYSCEF. The motion was adjourned to November 13, 2023, then to February 20, 2024. On February 20, 2024, This Court presided, upon which both Plaintiff and outgoing No-Fault Insurer Defendant did appear in which outgoing No-Fault Insurer Defendant asserted that it had no objection to the motion to amend, thereby in the routine matter of course, Interim Order was issued adjourning the motion to March 25, 2024 and ordering Plaintiff to mail the papers to incoming No-Fault Insurer Defendant with proof of its address within 20 days of the order. However, Plaintiff failed to state that incoming No-Fault Insurer Defendant had been previously served on September 21, 2021. More importantly, both Parties, more so particularly to the detriment of the outgoing No-Fault Insurer Defendant, failed to substantively convey to This Court’s attention the import of the August 31, 2023 NYSCEF filed Stipulation of Settlement which although unintended, was effectively nevertheless a de-facto and a de jure disposition of the case in its entirety. Having been adjourned from March 25, 2024 to May 22, 2024 then May 24, 2024, on which oral arguments were heard and decision was reserved.
Over the past year, This Court has presided over an exponentially rising trend of no-fault motions to amend to replace an incorrect outgoing No-Fault Insurer Defendant with an alleged purported incoming No-Fault Insurer Defendant, with cases having been filed many years [*3]previously. Many of these motions to amend at first blush ab initio evidenced various defenses available to the purported incoming No-Fault Insurer Defendant, i.e. statute of limitations as well as violations of the stringent no-fault insurance law timelines, inter alia. Nevertheless, This Court deemed it an unauthorized abuse of the exercise of judicial discretion to sua sponte address potential defenses of the incoming No-Fault Insurer Defendant. Most obviously, an outgoing No-Fault Insurer Defendant is incentivized and has a vested interest to either stipulate to such amendment, not oppose, or abstain for the amendment to be granted by the Court, which would relieve the outgoing No-Fault Insurer Defendant from further litigation of the case and the attendant costs thereof. In the interest of the administration of justice and judicial efficiency and economy, notwithstanding the No-Fault Plaintiff’s Bar objections, This Court devised an Interim Order, directing the plaintiffs to give notice by mailing a copy of the motion to amend to the purported incoming No-Fault Insurer Defendant within 20 days and motion adjourned to a date certain for oral argument and ultimate decision allowing incoming No-Fault Insurer Defendant to have an opportunity to be heard and present any of its dispositive defenses in opposition to the motion to amend.
At some point after This Court instituted the interim order procedure, plaintiffs and outgoing defendants of their own volition in attempt to circumvent court intervention would enter into stipulations to amend inuring to both their benefits in an attempt to bypass the court’s interim order, which This Court rejected. Similarly, albeit more so improperly, in this instant matter, Plaintiff and outgoing Defendant herein attempted to entirely bypass judicial intervention altogether and issue order and directive directly to the clerk of court. Here, Plaintiff filed motion to amend with clerk of court on May 28, 2022, although served September 21, 2021, upon outgoing No-Fault Insurer Defendant and purported incoming No-Fault Insurer Defendant Countrywide Insurance Company, of which parties failed to advise This Court at the February 20, 2024 appearance, which would have obviated the issuance of the Interim Order. It is a rarity for This Court to encounter the proposed incoming No-Fault Insurer Defendant having been served or given notice of the underlying motion to amend. On the contrary, plaintiffs have quite zealously argued against interim orders for providing notice to the purported incoming No-Fault Insurer Defendants since not yet a party and having no standing until the amendment is judicially granted. It is this lack of notice to the incoming No-Fault Insurer Defendant which propelled This Court to devise interim orders.
Here, since the parties failed to alert This Court that incoming No-Fault Insurer Defendant had been previously served thereby already being noticed, thus unnecessarily the interim order was issued accordingly as a matter of course for notice to incoming No-Fault Insurer Defendant Countrywide Insurance Company within 20 days and adjourned for oral argument, which occurred on May 24, 2024. It was at this time that Defendant first argued that it was no longer part of the case since it had previously settled with Plaintiff, notwithstanding that it full-well knew that it was not the proper Defendant-Insurer. In the interest of dispositive finality and reduction of litigation costs, nevertheless it settled for nuisance value for attorney fees and filing fee by Stipulation of Settlement and Discontinuance, fully executed, dated July 23, 2021. This Stipulation of Settlement and Discontinuance was not so ordered by any jurist. Therefore, this agreement was solely between the parties, without nary act of judicial intervention. Plaintiff woefully errs in its argument that the clause contained within the Stipulation of Settlement and Discontinuance, “1. The index number 700545/21 is preserved for Plaintiff to reserve the correct insurance carrier.” (NYSCEF document #4), binds the court to [*4]do what it says to do- namely to preserve the index number merely based on the agreement of litigating parties of their own volition without judicial intervention. Herein, based upon Plaintiff’s very argument that interim orders are procedurally improper since incoming No-Fault Insurer Defendant has no standing until amendment judicially granted, likewise, in the same vein, by virtue of settling and discontinuing with the sole party defendant with standing, the index number is thereby rendered extinguished and disposed.[FN1] As herein, an index number without any party defendant is a rudderless nullity that cannot be preserved by mere contract by the party litigants in the court’s administration of justice. Certainly, party litigants may contractually mutually agree by stipulation to all manners and variations of relief, however, the relief may not be sanctioned by, nor be binding upon, nor be abided by the Court. The marking of this index number as disposed and the acceptance of the filing of the motion to amend as being filed post-disposition are merely ministerial acts of the clerk of court which is devoid of discretion. The discretion herein lies with the court’s judicial intervention to rectify, nullify and invalidate the improper language Plaintiff seeks to enforce upon the clerk of court herein. This Court rejects Plaintiff’s argument and finds that the Stipulation of Settlement and Discontinuance dated July 23, 2021 renders the index number entirely disposed [FN2] .
Plaintiff’s further argument that despite the foregoing, This Court lacks the judicial discretion to sua sponte vacate its Interim Order dated February 20, 2024, is rejected. The court is vested with judicial discretion to be exercised scrupulously and providently. Although, such exercise is not unfettered and is limited particularly in granting dispositive relief sua sponte [FN3] . Most recently but a mere few months ago, it has been upheld : “Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” (Hersko v Hersko, 224 AD3d 810, 812-813 [2d Dept 2024] citing Newburgh Commercial Dev. Corp. v Cappelletti, 216 AD3d 978, 981 [2d Dept 2023] and Robinson v Big City Yonkers, Inc., 179 AD3d 961, 963 [2d Dept 2020]). Further, but a mere month ago, it was held:
“Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment”
(Am. Home Mtge. Servicing, Inc. v Kaplan, — AD3d —, 2024 NY Slip Op 02294 [2024] quoting Adams v Fellingham, 52 AD3d 443, 444 [2d Dept 2008] citing US Bank N.A. v Ashley, 202 AD3d 1142, 1144 [2d Dept 2022]; United Airconditioning Corp. v Axis Piping, 194 AD3d 981, 984-985 [2d Dept 2021]; JSO Assoc., Inc. v Price, 104 AD3d 737, 738 [2d Dept 2013]).
“[A] substantive change to a prior order or judgment . . . cannot be made under CPLR 5019(a), even with notice to the parties and an opportunity to be heard. Trial courts have no revisory or appellate authority to correct by amendments any errors of substance in prior orders or judgments”(Id. quoting Sokoloff v Schor, 176 AD3d 120, 132 [2d Dept 2019]; citing Herpe v Herpe, 225 NY 323, 327 [1919]).
Unbeknownst to This Court, it was based upon erroneous facts that the Interim Order was granted on an entirely disposed index number and that the incoming Defendant Countrywide Insurance Company had previously been provided notice by service on September 21, 2021. It was incumbent on the parties to have advised This Court of these two facts, which they failed to so do. Thus, the Interim Order should not have been issued ab initio and it is a provident exercise of judicial discretion in the justiciable administration of justice that it be vacated sua sponte. This is not dispositive judicial relief here, since this index number was previously disposed prior to the May 28, 2022 filing of the motion to amend by party litigants’ own volition by virtue of the mutually contractually agreed upon Stipulation of Settlement and Discontinuance. Rather, this is a judicial administrative rectification of the clerk of court files and records. The procedurally improper language as to the contradictory and incongruous attempted hybrid Stipulation of Settlement and Discontinuance yet reserving the preservation of the index number devoid of any party defendant by mere contract of party litigants without judicial intervention, is wholly procedurally improper and is thus rejected. Neither is it herein revisory or an exercise of appellate authority in the sua sponte vacating of the Interim Order. This Court’s sua sponte exercise of judicial discretion to vacate this February 20, 2024 Interim Order is warranted by the mistake and irregularity of the foundation underlying its issuance based upon the facts and proof plainly appearing in the clerk of court files and records, Plaintiff’s and Defendant’s papers; it is consistent with the relief sought in the motion to amend; it does not affect a substantial right nor prejudices neither party since they both of their own volition mutually contractually settled and discontinued this action no matter how in artfully drafted to their detriment in attempt to improperly impose directive without judicial intervention upon the clerk of court.
For the foregoing reasons, This Court Sua Sponte Vacates Interim Order dated February 20, 2024, and Plaintiff’s Motion to Amend Summons and Complaint and Add New Party pursuant to CPLR 305 (c), CPLR 2001, and CPLR 3025 (b) to remove outgoing No-Fault Insurer Defendant Progressive Northern Insurance Company as outgoing defendant and to add proposed incoming No-Fault Insurer Countrywide Insurance Company is hereby deemed moot as index number was disposed as of July 23, 2021 by Stipulation of Settlement and Discontinuance.
This constitutes the opinion, decision, and order of This Honorable Court.
Dated: June 26, 2024Brooklyn, New York
SO ORDERED:
______________________________
Hon. SANDRA ELENA ROPER
Judge of the Civil Court
Footnote 1:Barring of course, post-disposition motions to enforce stipulation of settlement and discontinuance or allegation of fraud or forgery in its inducement, inter alia.
Footnote 2:n 1.
Footnote 3:See Primavera Physical Therapy, P.C. v State Farm Ins. Co., 82 Misc 3d 1211 [A], 2024 NY Slip Op 50276 [U] (Civ Ct, Kings County 2024 [“This Court is mandated and shall take judicial notice Sua Sponte of any DJ actions duly entered in courts of superior jurisdiction, as is herein, that may be attendant or relevant to the instant action before it, from any source during its deliberation, whether neither party brings it to This Court’s attention.”].
Reported in New York Official Reports at Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50803(U))
[*1]| Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2024 NY Slip Op 50803(U) |
| Decided on June 14, 2024 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 14, 2024
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-558 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated February 16, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Sandra E. Roper, J.) granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross-motion for summary judgment while declining to consider additional papers submitted by plaintiff in support of what it denominated as an amended cross-motion for summary judgment and opposition to defendant’s motion.
The affidavit submitted by plaintiff in its initial opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, defendant’s motion, which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to respond to defendant’s timely requests for additional verification, should have been denied.
Contrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought by defendant herein in the Supreme Court, Nassau County, has no preclusive effect on this case, as it was not a final determination on the merits (see Queensboro Farm Prods. v General Acc. Ins. Co., 254 AD2d 341, 342 [1998]; Burke Physical Therapy, PC v State Farm Mut. Auto. Ins. Co., — Misc 3d —, 2024 NY Slip Op 24111, *3-4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]; Metro Health Prods., Inc. v [*2]Nationwide Ins., 48 Misc 3d 85, 86-87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the subsequent submission of that decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.
Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: June 14, 2024
Reported in New York Official Reports at Pak Hong Sik, MD, Med. Care, P.C. v Mid-Century Ins. Co. (2024 NY Slip Op 50804(U))
[*1]| Pak Hong Sik, MD, Medi. Care, P.C. v Mid-Century Ins. Co. |
| 2024 NY Slip Op 50804(U) |
| Decided on June 14, 2024 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 14, 2024
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-647 RI C
against
Mid-Century Insurance Company, Respondent.
Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered May 22, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Mary A. Kavanagh, J.) which granted defendant’s motion for summary judgment dismissing the complaint on the grounds that the policy limits had been exhausted and that, pursuant to the fee schedule, the provider could not recover upon the bills at issue.
Plaintiff correctly argues that defendant failed to lay a sufficient foundation for the payment log, upon which defendant relied, to prove that the payments to plaintiff listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co., 81 Misc 3d 145[A], 2024 NY Slip Op 50203[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). To the extent plaintiff argues on appeal that defendant also failed to establish that, pursuant to the fee schedule, plaintiff could not recover upon the bills at issue, such argument was improperly raised for the first time on appeal (see Healthplus Surgery Ctr., LLC v American Tr. Ins. Co., 204 AD3d 646 [2022]; Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]) and we do not consider it.
Plaintiff’s remaining contention lacks merit.
Accordingly, the order is affirmed.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: June 14, 2024
Reported in New York Official Reports at Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50803(U))
[*1]| Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2024 NY Slip Op 50803(U) [83 Misc 3d 130(A)] |
| Decided on June 14, 2024 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 14, 2024
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-558 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated February 16, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Sandra E. Roper, J.) granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross-motion for summary judgment while declining to consider additional papers submitted by plaintiff in support of what it denominated as an amended cross-motion for summary judgment and opposition to defendant’s motion.
The affidavit submitted by plaintiff in its initial opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, defendant’s motion, which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to respond to defendant’s timely requests for additional verification, should have been denied.
Contrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought by defendant herein in the Supreme Court, Nassau County, has no preclusive effect on this case, as it was not a final determination on the merits (see Queensboro Farm Prods. v General Acc. Ins. Co., 254 AD2d 341, 342 [1998]; Burke Physical Therapy, PC v State Farm Mut. Auto. Ins. Co., — Misc 3d —, 2024 NY Slip Op 24111, *3-4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]; Metro Health Prods., Inc. v [*2]Nationwide Ins., 48 Misc 3d 85, 86-87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the subsequent submission of that decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.
Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: June 14, 2024
Reported in New York Official Reports at Pak Hong Sik, MD, Med. Care, P.C. v Mid-Century Ins. Co. (2024 NY Slip Op 50804(U))
[*1]| Pak Hong Sik, MD, Medi. Care, P.C. v Mid-Century Ins. Co. |
| 2024 NY Slip Op 50804(U) [83 Misc 3d 130(A)] |
| Decided on June 14, 2024 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 14, 2024
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-647 RI C
against
Mid-Century Insurance Company, Respondent.
Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered May 22, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Mary A. Kavanagh, J.) which granted defendant’s motion for summary judgment dismissing the complaint on the grounds that the policy limits had been exhausted and that, pursuant to the fee schedule, the provider could not recover upon the bills at issue.
Plaintiff correctly argues that defendant failed to lay a sufficient foundation for the payment log, upon which defendant relied, to prove that the payments to plaintiff listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co., 81 Misc 3d 145[A], 2024 NY Slip Op 50203[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). To the extent plaintiff argues on appeal that defendant also failed to establish that, pursuant to the fee schedule, plaintiff could not recover upon the bills at issue, such argument was improperly raised for the first time on appeal (see Healthplus Surgery Ctr., LLC v American Tr. Ins. Co., 204 AD3d 646 [2022]; Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]) and we do not consider it.
Plaintiff’s remaining contention lacks merit.
Accordingly, the order is affirmed.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: June 14, 2024
Reported in New York Official Reports at American Tr. Ins. Co. v Jong Won Yom (2024 NY Slip Op 50723(U))
American Transit Insurance Company, Petitioner,
against Dr. Jong Won Yom, DC, LAC, RPH, MS a/a/o Mann Joung Chon, Respondent. American Transit Insurance Company, Petitioner, against Integrated Medicine of S.I., PC a/a/o Segundo Matute, Respondent. American Transit Insurance Company, Petitioner, against YD Medical Services PC a/a/o Stuart Simpson Keralyn, Respondent. |
Index Nos. 532051/2022, 500128/2023, 535310/2022
Manning & Kass, Ellrod, Ramirez, Trester, LLP, New York City (Jeanette L. Dixon and Ellen Burach-Zion of counsel), Larkin Farrell LLC, New York City (Joseph P. Farrell, III of counsel), and Morrison Mahoney, LLP New York City (James A. McKenney and Robert A. Stern of counsel), for petitioner.
Roman Kravchenko, Melville (Jason Tenenbaum of counsel), for respondents.
L’Abbate Balkan Colavita & Contini, LLP, Melville (James D. Spithogiannis of counsel), for Jason Tenenbaum and Roman Kravchenko, non-party attorneys.
Aaron D. Maslow, J.
The following NYSCEF Documents were used on these motions:[FN1]
American Transit Insurance Company v Dr. Jong Won Yom, DC, LAC, RPH, MS a/a/o Mann Joung Chon (Index No. 532051/2022)No. 1: Petition (filed by Petitioner, 11/3/2022)
No. 2: Notice of petition (filed by Petitioner, 11/3/2022)
No. 3: Exhibit A — Arbitration award (filed by Petitioner, 11/3/2022)
No. 4: Exhibit B — Master arbitration award (filed by Petitioner, 11/3/2022)
No. 5: Exhibit C — Respondent’s arbitration submission (filed by Petitioner, 11/3/2022)
No. 6: Exhibit D — Petitioner’s arbitration submission (filed by Petitioner, 11/3/2022)
No. 13: Notice of cross-petition (filed by Respondent, 1/20/2023)
No. 14: Cross-petition (filed by Respondent, 1/20/2023)
No. 15: Affirmation of William Larkin in opposition to cross-petition & reply in support of petition (filed by Petitioner, 1/23/2023)
No. 16: Reply in support of cross-petition (filed by Respondent, 5/3/2023)
No. 17: Order on petition & cross-petition (filed by clerk, 6/13/2023)
No. 19: Judgment (filed by clerk, 7/18/2023)
No. 20: Notice of motion to hold Petitioner in contempt (filed by Respondent, 9/8/2023)
No. 21: Affirmation in support of motion to hold Petitioner in contempt (filed by Respondent, 9/8/2023)
No. 22: Exhibit A — Information subpoena (filed by Respondent, 9/8/2023)
No. 23: Exhibit B — USPS receipt & proof of delivery (filed by Respondent, 9/8/2023)
No. 24: Letter from Petitioner’s counsel to Respondent’s counsel seeking withdrawal of information subpoena and motion to hold Petitioner in contempt (filed by Petitioner, 9/28/2023)
No. 25: Letter from Petitioner’s counsel to Respondent’s counsel asserting that Respondent’s counsel has conflict of interest and seeking withdrawal of their representation (filed by Petitioner, 11/20/2023)
No. 27: Notice of cross-motion by Petitioner for protective order and quashing subpoena (filed by Petitioner, 11/22/2023)
No. 28: Affirmation of William Larkin in opposition to motion to hold Petitioner in contempt & in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 29: Affidavit of Madanawelly Armogan in opposition to motion to hold Petitioner in contempt & in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 30: Exhibit A — checks (filed by Petitioner, 11/21/2023)
No. 31: Affirmation of Roman Kravchenko in opposition to cross-motion for protective order and quashing subpoena & in further support of motion to hold Petitioner in contempt (filed by Respondent, 11/21/2023)
No. 32: Letter from Petitioner’s counsel to Respondent’s counsel requesting satisfaction of judgment (filed by Petitioner, 11/21/2023)
No. 34: Affirmation of William Larkin in reply in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 12/6/2023)
No. 35: Proposed order to show cause on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 36: Emergency affirmation of William Larkin in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 37: Affirmation of William Larkin in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 38: Affidavit of Madanawelly Armogan in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 39: Exhibit A — checks (filed by Petitioner, 12/7/2023)
No. 40: Exhibit B — emails between Petitioner’s counsel and Respondent’s counsel (filed by Petitioner, 12/7/2023)
No. 41: Letter re proposed order to show cause (filed by Petitioner, 12/7/23).
No. 43: Amended affirmation of Roman Kravchenko in opposition to cross-motion for protective order and quashing subpoena & in further support of motion to hold Petitioner in contempt (filed by Respondent, 12/9/2023)
No. 44: Notice of appeal (filed by Respondent, 12/10/23)
No. 45: Signed order to show cause on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/13/2023)
No. 46: Affirmation of Roman Kravchenko in opposition to motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Respondent, 12/13/2023)
No. 47: Conformed copy of signed order to show cause and supporting papers on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by [*2]Petitioner, 12/14/2023)
No. 49: Affirmation of William Larkin in reply in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 1/16/2024)
No. 50: Interim order (filed by Court, 3/26/2024)
No. 52: Interim order (filed by Court, 4/15/2024)
No. 53: Letter from Respondent’s counsel to Court (filed by Respondent, 5/7/2024)
No. 54: Interim order (filed by Court, 5/13/2024)
No. 58: Satisfaction of judgment (filed by Respondent, 5/20/2024)
No. 59: Transcript of proceedings, 1/17/2024 (filed by Court, 5/26/2024)
No. 60: Transcript of proceedings, 5/20/2024 (filed by Court, 5/26/2024)
American Transit Insurance Company v Integrated Medicine of S.I., PC a/a/o Segundo Matute (Index No. 500128/2023)
No. 1: Petition (filed by Petitioner, 1/3/2023)
No. 2: Notice of petition (filed by Petitioner, 1/3/2023)
No. 3: Exhibit A — Arbitration award (filed by Petitioner, 1/3/2023)
No. 4: Exhibit B — Master arbitration award (filed by Petitioner, 1/3/2023)
No. 5: Exhibit C — Respondent’s arbitration submission (filed by Petitioner, 1/3/2023)
No. 6: Exhibit D — Petitioner’s arbitration submission (filed by Petitioner, 1/3/2023)
No. 13: Notice of cross-petition (filed by Respondent, 5/26/2023)
No. 14: Cross-petition (filed by Respondent, 5/26/2023)
No. 15: Affirmation of Anthony R. Troise in opposition to cross-petition & reply in support of petition (filed by Petitioner, 6/1/2023)
No. 16: Order on petition & cross-petition (filed by clerk, 6/23/2023)
No. 18: Judgment (filed by clerk, 7/18/2023)
No. 20: Notice of motion to hold Petitioner in contempt (filed by Respondent, 9/8/2023)
No. 21: Affirmation in support of motion to hold Petitioner in contempt (filed by Respondent, 9/8/2023)
No. 22: Exhibit A — Information subpoena (filed by Respondent, 9/8/2023)
No. 23: Exhibit B — USPS receipt & proof of delivery (filed by Respondent, 9/8/2023)
No. 24: Letter from Petitioner’s counsel to Respondent’s counsel seeking withdrawal of information subpoena and motion to hold Petitioner in contempt (filed by Petitioner, 9/28/2023)
No. 25: Letter from Petitioner’s counsel to Nassau County Sheriff (filed by Petitioner, 9/28/2023)
No. 26: Letter from Petitioner’s counsel to Respondent’s counsel asserting that Respondent’s counsel has conflict of interest and seeking withdrawal of their representation (filed by Petitioner, 11/17/2023)
No. 28: Notice of cross-motion by Petitioner for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 29: Affirmation of William Larkin in opposition to motion to hold Petitioner in contempt & in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 30: Affidavit of Madanawelly Armogan in opposition to motion to hold Petitioner in contempt & in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 31: Exhibit A — checks (filed by Petitioner, 11/21/2023)
No. 32: Affirmation of Roman Kravchenko in opposition to cross-motion for protective order [*3]and quashing subpoena & in further support of motion to hold Petitioner in contempt (filed by Respondent, 11/21/2023)
No. 33: Letter from Petitioner’s counsel to Respondent’s counsel requesting satisfaction of judgment (filed by Petitioner, 11/28/2023)
No. 35: Affirmation of William Larkin in reply in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 12/6/2023)
No. 36: Proposed order to show cause on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 37: Emergency affirmation of William Larkin in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 38: Affirmation of William Larkin in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 39: Affidavit of Madanawelly Armogan in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/7/2023)
No. 40: Exhibit A — checks (filed by Petitioner, 12/7/2023)
No. 41: Exhibit B — emails between Petitioner’s counsel and Respondent’s counsel (filed by Petitioner, 12/7/2023)
No. 42: Letter re proposed order to show cause (filed by Petitioner, 12/7/23).
No. 44: Amended affirmation of Roman Kravchenko in opposition to cross-motion for protective order and quashing subpoena & in further support of motion to hold Petitioner in contempt (filed by Respondent, 12/9/2023)
No. 45: Signed order to show cause on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/13/2023)
No. 46: Affirmation of Roman Kravchenko in opposition to motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Respondent, 12/13/2023)
No. 47: Conformed copy of signed order to show cause and supporting papers on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/14/2023)
No. 49: Affirmation of William Larkin in reply in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 1/16/2024)
No. 50: Interim order (filed by Court, 3/26/2024)
No. 52: Interim order (filed by Court, 4/22/2024)
No. 53: Letter from Respondent’s counsel to Court (filed by Respondent, 5/7/2024)
No. 54: Interim order (filed by Court, 5/13/2024)
No. 58: Satisfaction of judgment (filed by Respondent, 5/20/2024)
No. 59: Transcript of proceedings, 1/17/2024 (filed by Court, 5/26/2024)
No. 60: Transcript of proceedings, 5/20/2024 (filed by Court, 5/26/2024)
American Transit Insurance Company v YD Med. Services PC a/a/o Stuart Simpson Keralyn (Index No. 535310/2022)
No. 1: Petition (filed by Petitioner, 12/5/2022)
No. 2: Notice of petition (filed by Petitioner, 12/5/2022)
No. 3: Exhibit A — Arbitration award (filed by Petitioner, 12/5/2022)
No. 4: Exhibit B — Master arbitration award (filed by Petitioner, 12/5/2022)
No. 5: Exhibit C — Respondent’s arbitration submission (filed by Petitioner, 12/5/2022)
No. 6: Exhibit D-1 — Petitioner’s arbitration submission (filed by Petitioner, 12/5/2022)
No. 7: Exhibit D-2 — Petitioner’s arbitration submission (filed by Petitioner, 12/5/2022)
No. 8: Exhibit D-3 — Petitioner’s arbitration submission (filed by Petitioner, 12/5/2022)
No. 14: Notice of cross-petition (filed by Respondent, 3/6/2023)
No. 15: Cross-petition (filed by Respondent, 3/6/2023)
No. 16: Affirmation of David Fair in opposition to cross-petition & reply in support of petition (filed by Petitioner, 5/19/2023)
No. 17: Reply in support of cross-petition (filed by Respondent, 5/31/2023)
No. 18: Order on petition & cross-petition (filed by clerk, 6/13/2023)
No. 20: Judgment (filed by clerk, 7/31/2023)
No. 21: Notice of motion to hold Petitioner in contempt (filed by Respondent, 9/8/2023)
No. 22: Affirmation in support of motion to hold Petitioner in contempt — no signature (filed by Respondent, 9/8/2023)
No. 23: Exhibit A — Information subpoena (filed by Respondent, 9/8/2023)
No. 24: Exhibit B — USPS receipt & proof of delivery (filed by Respondent, 9/8/2023)
No. 25: Affirmation in support of motion to hold Petitioner in contempt — with signature (filed by Respondent, 9/16/2023)
No. 26: Letter from Petitioner’s counsel to Respondent’s counsel seeking withdrawal of information subpoena and motion to hold Petitioner in contempt (filed by Petitioner, 11/14/2023)
No. 27: Letter from Petitioner’s counsel to Respondent’s counsel asserting that Respondent’s counsel has conflict of interest and seeking withdrawal of their representation (filed by Petitioner, 11/17/2023)
No. 29: Notice of cross-motion by Petitioner for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 30: Affirmation of William Larkin in opposition to motion to hold Petitioner in contempt & in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 31: Affidavit of Madanawelly Armogan in opposition to motion to hold Petitioner in contempt & in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 11/21/2023)
No. 32: Exhibit A — checks (filed by Petitioner, 11/21/2023)
No. 33: Affirmation of Roman Kravchenko in opposition to cross-motion for protective order and quashing subpoena & in further support of motion to hold Petitioner in contempt (filed by Respondent, 11/21/2023)
No. 34: Letter from Petitioner’s counsel to Respondent’s counsel requesting satisfaction of judgment (filed by Petitioner, 11/28/2023)
No. 36: Affirmation of William Larkin in reply in support of cross-motion for protective order and quashing subpoena (filed by Petitioner, 12/7/2023)
No. 38: Proposed order to show cause on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/8/2023)
No. 39: Emergency affirmation of William Larkin in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/8/2023)
No. 40: Affirmation of William Larkin in support of motion to stay judgment execution, direct [*4]satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/8/2023)
No. 41: Affidavit of Madanawelly Armogan in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/8/2023)
No. 42: Exhibit A — checks (filed by Petitioner, 12/8/2023)
No. 43: Exhibit B — emails between Petitioner’s counsel and Respondent’s counsel (filed by Petitioner, 12/8/2023)
No. 44: Letter re proposed order to show cause (filed by Petitioner, 12/7/23).
No. 46: Amended affirmation of Roman Kravchenko in opposition to cross-motion for protective order and quashing subpoena & in further support of motion to hold Petitioner in contempt (filed by Respondent, 12/9/2023)
No. 47: Signed order to show cause on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/13/2023)
No. 48: Conformed copy of signed order to show cause and supporting papers on motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 12/14/2023)
No. 50: Affirmation of Roman Kravchenko in opposition to motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Respondent, 12/14/2023)
No. 51: Affirmation of William Larkin in reply in support of motion to stay judgment execution, direct satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (filed by Petitioner, 1/16/2024)
No. 52: Interim order (filed by Court, 3/26/2024)
No. 54: Interim order (filed by Court, 4/22/2024)
No. 55: Letter from Respondent’s counsel to Court (filed by Respondent, 5/10/2024)
No. 56: Interim order (filed by Court, 5/13/2024)
No. 60: Satisfaction of judgment (filed by Respondent, 5/20/2024)
No. 61: Transcript of proceedings, 1/17/2024 (filed by Court, 5/26/2024)
No. 62: Transcript of proceedings, 5/20/2024 (filed by Court, 5/26/2024)
Introduction
This decision and order concerns motions made in three special proceedings commenced by Petitioner American Transit Insurance Company (“Petitioner”) against Respondent medical providers (“Respondents”) to vacate No-Fault insurance arbitration determinations which Petitioner lost.[FN2] Motion Seq. 1 and Motion Seq. 2 in each special proceeding, respectively the original petition and cross-petition, were previously determined in 2023 in favor of the respective medical provider, with resulting judgments having been entered by the County Clerk after the petitions were denied and the cross-petitions granted.
The motions at issue before the Court which are the subject of this decision and order — Motion Seqs. 3, 4, and 5 — came about amidst the backdrop of hostility between Petitioner and the two attorneys representing the several medical providers herein (Respondents) and other providers of medical services who treated motor vehicle accident victims (respondents in other Article 75 special proceedings commenced by Petitioner herein), the providers having prevailed in No-Fault insurance arbitrations against Petitioner. Until more recently, when it retained additional counsel, Petitioner was represented by Larkin Farrell LLC. Respondents have been represented by Roman Kravchenko, Esq., who works together with Jason Tenenbaum, Esq.[FN3] In each special proceeding which is the subject of this decision and order, the respective medical provider, represented by Attorneys Kravchenko and Tenenbaum, moved for a contempt finding and the imposition of a fine against Petitioner for not responding to an information subpoena (Motion Seq. 3 in each one), and Petitioner moved for a protective order and to quash the information subpoena (Motion Seq. 4 in each one), and to stay judgment execution, direct a satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (Motion Seq. 5 in each one).[FN4]
The three special proceedings are captioned above. For purposes of facilitating clarity, they will be referred to by their index numbers.[FN5]
Background Information & Chronology of Proceedings
On May 26, 2022, Arbitrator Gregory Watford awarded Respondent Dr. Jong Won Yom, DC, LAC, RPH, MS $3,628.80 in No-Fault insurance compensation for performing acupuncture services on Mann Joung Chon, a patient allegedly injured in a motor vehicle accident on November 2, 2019 (see Index No. 532051/2022 Doc No. 3). His determination was affirmed by Master Arbitrator A. Jeffrey Grob on August 26, 2022 (see Index No. 532051/2022 Doc No. 4).
On August 17, 2022, Arbitrator Richard Martino awarded Respondent Integrated Medicine of S.I., PC $3,452.31 in No-Fault insurance compensation for performing EMG/NCV testing on Segundo Matute, a patient allegedly injured in a motor vehicle accident on November 18, 2019 (see Index No. 500128/2023 Doc No. 3). The arbitration determination was affirmed by Master Arbitrator Robyn D. Weisman on November 1, 2022 (see Index No. 500128/2023 Doc No. 4).
On July 20, 2022, Arbitrator John Hyland awarded Respondent YD Medical Services PC $4,716.48 in No-Fault insurance compensation for performing office visits and range of motion, muscle, physical performance, and outcome assessment testing on Stuart Simpson Keralyn, a patient allegedly injured in a motor vehicle accident on January 21, 2018 (see Index No. 535310/2022 Doc No. 3). The arbitration determination was affirmed by Master Arbitrator Robyn D. Weisman on September 29, 2022 (see Index No. 535310/2022 Doc No. 4).
In each of the aforementioned arbitrations, the respective medical provider was also awarded statutory interest, attorney’s fees, and the return of the filing fee (see Index No. 532051/2022 Doc Nos. 3-4; Index No. 500128/2023 Doc Nos. 3-4; Index No. 535310/2022 Doc Nos. 3-4).
After the master arbitration awards in the above three arbitrations were issued, Petitioner commenced the within Article 75 special proceedings to vacate them. The petitions were assigned Motion Seq. 1 in each special proceeding. Corresponding cross-petitions were assigned Motion Seq. 5. In each instance this Court ruled against Petitioner (see Index No. 532051/2022 Doc No. 17; Index No. 500128/2023 Doc No. 16; Index No. 535310/2022 Doc No. 18). Judgments then were entered against Petitioner by the respective Respondents in all three special proceedings, the amounts and dates of entry being $7,610.39, July 18, 2023 (see Index No. 532051/2022 Doc No. 19); $6,595.52, July 18, 2023 (see Index No. 500128/2023 Doc No. 18); and $8,945.13, July 31, 2023 (see Index No. 535310/2022 Doc No. 20). The judgment amounts continued to accrue interest until paid (see id.).
When the judgments were not paid within a short period of time, the respective Respondents issued information subpoenas with restraining notices. In Index No. 532051/2022, the information subpoena with restraining notice was issued on August 3, 2023 and served on August 4, 2023, the judgment having been entered on July 18, 2023; in other words, the information subpoena with restraining notice was issued 16 days after entry of judgment (see Index No. 532051/2022 Doc Nos. 19, 22). In Index No. 500128/2023, the information subpoena with restraining notice was issued on August 3, 2023 and served on August 4, 2023, the judgment having been entered on July 18, 2023; in other words, the information subpoena with restraining notice was issued 16 days after entry of judgment (see Index No. 500128/2023 Doc Nos. 18, 22). In Index No. 535310/2022, the information subpoena with restraining notice was issued on August 3, 2023 and served on August 4, 2023, the judgment having been entered on July 31, 2023; in other words, the information subpoena with restraining notice was issued three days after entry of judgment (see Index No. 535310/2022 Doc Nos. 20, 23).
Motions to hold Petitioner in contempt for failing to comply with the information subpoenas were filed and served by the respective Respondents on September 8, 2023 (see Index No. 532051/2022 Doc No. 20; Index No. 500128/2023 Doc No. 20; Index No. 535310/2022 Doc No. 21). In each special proceeding, the contempt motion was designated Motion Seq. 3. Thereafter, Petitioner’s counsel issued letters to the Respondents’ counsel requesting that the latter withdraw the information subpoenas and the concomitant motions seeking to hold Petitioner in contempt. In Index Nos. 532051/2022 and 500128/2023, Petitioner’s counsel’s letters were issued on September 26, 2023 (see Index No. 532051/2022 Doc No. 24; Index No. 500128/2023 Doc No. 24). In Index No. 535310/2022, Petitioner’s counsel’s letter was issued on November 14, 2023 (see Index No. 535310/2022 Doc No. 26).
The September 26, 2023 letters from Petitioner’s counsel to Respondents’ counsel, Roman Kravchenko, read as follows:
Dear Mr. Kravchenko, Esq.,
Please allow this to serve as our request that you withdraw your Information Subpoena, pursuant to CPLR § 2304, and the subsequent Motion for Contempt.
As you should already be aware, the claims that form the basis of the underlying action have already been paid. See the cashed checks attached.
As such, the information subpoena is not necessary to aid the judgment creditor in collecting on the judgment and is, therefore, moot.
Please withdraw the information subpoena and motion to avoid burdening the Court with unnecessary motion practice.
Sincerely,
/s/
William Larkin
(Index No. 532051/2022 Doc No. 24; Index No. 500128/2023 Doc No. 24.)
The November 14, 2023 letter from Petitioner’s counsel to Respondents’ counsel, Roman Kravchenko, read as follows:
Dear Mr. Kravchenko, Esq.,
Please allow this to serve as our request that you withdraw your Information Subpoena, pursuant to CPLR § 2304, and the subsequent Motion for Contempt.
Please also allow this to serve as our formal request to file a Satisfaction of Judgment with the clerk of the Court as required by CPLR § 5020(a).
As you should already be aware, the claims that form the basis of the underlying action have already been paid. See the cashed checks attached.
As such, the information subpoena is not necessary to aid the judgment creditor in collecting on the judgment and is, therefore, moot.
Your failure to acknowledge the payment and file the Satisfaction of Judgment with the clerk is prejudicial to my client.
Please file the Satisfaction of Judgment and withdraw the information subpoena and motion to avoid burdening the Court with unnecessary motion practice.
Sincerely,
/s/
William Larkin
(Index No. 535310/2022 Doc No. 26.)
In response to Respondents’ motions filed on September 8, 2023 to hold Petitioner in [*5]contempt for failing to comply with the information subpoenas, Petitioner claiming that the judgments were paid and Respondents did not file even partial satisfactions of judgment, on November 21, 2023, Petitioner filed cross-motions in each of the three special proceedings “for a PROTECTIVE ORDER pursuant to CPLR §3103, or in the alternative, for an Order, pursuant to CPLR §2304, to QUASH the Information Subpoena served on Petitioner by Respondent and for such other and further relief as this Court may deem just and proper” (Index No. 532051/2022 Doc No. 27; Index No. 500128/2023 Doc No. 28; Index No. 535310/2022 Doc No. 29). In each special proceeding, Petitioner’s motion was designated Motion Seq. 4 (see id.). Petitioner’s motion papers included, in each instance, an affidavit of merit from Madanawelly Armogan, an employee in its claims department, who attested to Petitioner’s payments toward the respective judgment. Copies of cleared checks were attached. Counsel’s affirmations claimed that the judgments were fully paid, that Respondents did not provide a satisfaction of judgment or even a partial satisfaction of judgment, that Respondents insisted on enforcing the information subpoena, and, upon information and belief, that Respondents referred the matter to a marshal for collection. (See Index No. 532051/2022 Doc Nos. 28-30; Index No. 500128/2023 Doc Nos. 29-31; Index No. 535310/2022 Doc Nos. 30-32.)
With respect to each of the three judgments, Petitioner’s counsel again wrote to Respondents’ counsel, seeking that he issue satisfactions of judgment. Dated November 28, 2023, the letters stated as follows:
Dear Mr. Kravchenko, Esq.,
We previously served your office via NYSCEF with a demand to withdraw you[r] Information Subpoena and Contempt Motion and provide a Satisfaction of Judgment.
We did not receive a response to that demand.
We produced the cancelled checks with that prior demand. A second copy of the checks is attached hereto.
Please note that CPLR § 5020(a) requires you to file a Satisfaction of Judgment. The production of the Satisfaction of Judgment is not optional.
It should be clear from the amount of the checks in comparison to the amount of the judgment that the judgment has been fully satisfied. Should you feel that any portion of the judgment is still owed, please note that CPLR § 5020(a) requires you to file a Partial Satisfaction of Judgment in that circumstance.
Your failure to produce the Satisfaction of Judgment, or Partial Satisfaction of Judgment, obviously prejudices my client. This is especially true considering your willingness to enforce information subpoenas, refer to the Marshal for collection, freeze bank accounts and utilize other enforcement tools to execute on judgments that have already been satisfied.
I’ve discussed this issue with Mr. Tenenbaum in the past. He seems to think that it is okay to require Petitioner to file the necessary paperwork to stay the execution of the judgment and seek the satisfaction of judgment from the Court. He also seemed amused by the fact that the additional motion practice would create additional fees that he could claim pursuant to 11 NYCRR 65-4.10(j)(4).
We urge you to consider that the obligation to file the Satisfaction of Judgment is an affirmative obligation required by CPLR § 5020(a). It is not okay for you to intentionally fail to file this document while also attempting to collect on amounts that were already paid.
We also urge you to consider your conduct in light of Rule 130-1.1. You have already been reprimanded by Judge Barry for similar conduct in American Transit [I]nsurance Company vs. YSC Trinity Acupuncture, PC a/a/o Shaba Hill, Index 502863/2022 and by Judge Sweeney in American Transit Insurance Company vs. Dr. Jong Won Yom, DC, LAC, RPH, MS a/a/o Mann Jouyng Chon, Index 532032/2022. It should be clear that the Court does not agree that this conduct is acceptable.
Please file the Satisfaction of Judgment and withdraw the information subpoena and motion to avoid burdening the Court with unnecessary motion practice.
Sincerely,
/s/
William Larkin
(Index No. 532051/2022 Doc No. 32; Index No. 500128/2023 Doc No. 33; Index No. 535310/2022 Doc No. 34.)
The record on these motions includes email correspondence between Petitioner’s counsel and Respondents’ two counsels from November 28, 2023. The Court herewith reproduces same:
From: William Larkin [email address omitted]
Sent: Tuesday, November 28, 2023 11:05 AM
To: [email address omitted]; Jason Tenenbaum [email address omitted]
Cc: Roman Kravchenko [email address omitted]
Subject: 2nd Demands for Satisfaction of Judgment
Roman/Jason,
See attached [presumably the letters dated November 28, 2023, seeking a satisfaction of judgment or a partial satisfaction of judgment]. I’m sending these as a courtesy. The Court has not been happy with contempt motions. I just wanted to make sure you are aware that the CPLR requires you to file the satisfaction of judgment. It’s an affirmative obligation. When I spoke to Jason on the phone a month or two ago he seemed to think it was optional and that he wasn’t doing anything wrong by making us file the papers. I strongly disagree with that position and I think it is clear now that the Court does as well.
I hope you will file the necessary Satisfactions of Judgment and withdraw the contempt motions.
I just received another 20 information subpoenas on judgments that, like these, were paid in full. Let me know if you will provide a satisfaction of judgment on those as well once I produce the checks.
Sincerely,
William R. Larkin, III
Larkin Farrell LLC
Attorneys at Law———————————————————————————————————————
From: Jason Tenenbaum [email address omitted]
Sent: Tuesday, November 28, 2023 11:44 AM
To: William Larkin [email address omitted]; [email address omitted]
Cc: Roman Kravchenko [email address omitted]
Subject: RE: 2nd Demands for Satisfaction of Judgment
Bill,
We are unable to oblige.
When someone at ATIC [American Transit Insurance Company] wants to have a serious discussion about resolving my cases, we will gladly have a discussion that involves post-judgment enforcement, interest reductions, attorney fee stipulations and waiver of my Article 52 remedies.
Until then, we will keep your staff busy for the holidays and for the better part of next year.
I have settled all my Merani cases without this litigation. Perhaps someone should find out how that happened.
Best,
Jason
————————————————————————————————————————–
From: William Larkin [email address omitted]
Sent: Tuesday, November 28, 2023 12:25 PM
To: Jason Tenenbaum [email address omitted]; [email address omitted]
Cc: Roman Kravchenko [email address omitted]
Subject: RE: 2nd Demands for Satisfaction of Judgment
Your settlement demands are unreasonable. The attorney fees you are requesting are highly inflated. We have discussed that. ATIC’s refusal to settle for the highly inflated numbers has nothing to do with your obligations on these cases. They paid the judgments and CPLR 5020(a) requires you to provide a satisfaction of judgment. You are abusing the post-judgment process. These tools are obviously designed to help judgment creditors collect. They are not supposed to be used to harass a judgment debtor because they won’t settle other cases with you.
Your email below regarding the settlement of the unrelated cases begs another question; Do your “clients” know that you are holding their principal and interest payments hostage in an effort to strong arm ATIC to pay these inflated attorney fees? Based on your testimony and Roman’s testimony in Hempstead, they don’t even know that you represent them on these cases so I’m not sure how they could approve of these settlement demands. Roman testified that his lack of contact with the client is not a problem because he does not settle…..and hear [sic] you are trying to settle.
I wasn’t kidding when I said below that I am sending this email as a courtesy. You are crossing lines and don’t seem to be aware that you are doing it or just can’t seem to put the emotions aside and act logically. As stated above, the settlement demands on the other cases has nothing to do with the Satisfaction of Judgment on these cases. You owe us the Satisfaction of Judgment and your refusal to provide it and your insistence that we file the Motions to Quash and the Orders to Show Cause for the satisfaction of judgment are forcing me to put your conduct before the Court. I’m trying to avoid that.
Sincerely,
William R. Larkin, III
Larkin Farrell LLC
Attorneys at Law———————————————————————————————————————————–
From: Jason Tenenbaum [email address omitted]
Sent: Tuesday, November 28, 2023 12:41 PM
To: William Larkin [email address omitted]; [email address omitted]
Cc: Roman Kravchenko [email address omitted]
Subject: RE: 2nd Demands for Satisfaction of Judgment
We are adults. Do as you may. But we will make one concession. We have done this in all of our papers:
Provide me with proof of full payment with 2% post-judgment interest on the entered judgment within 14-days of ATIC’s receipt of the information subpoena. If you do that instead of copying and pasting demands, we will then be ethically obliged to give you the full satisfaction you want.
You never make this calculation in any of your papers.
Absent that, we do not think the relief you are seeking — a full satisfaction — is appropriate to these facts. It is not emotion — it is holding your client to the letter of the law.
We are unsure how making ATIC pay every cent they owe and a reasonable attorney fee is crossing the line. Better minds than us may disagree.
Thank you.
We will not respond to any further emails on this subject.——————————————————————————————————————————-
From: William Larkin
Sent: Tuesday, November 28, 2023 12:51 PM
To: Jason Tenenbaum; [email address omitted]
Cc: Roman Kravchenko
Subject: RE: 2nd Demands for Satisfaction of Judgment
Each of these judgments was paid in full. If you add up the checks you will see that the checks total more than the face value of the judgment. The payments include the post judgment interest.
Even if it were true that it did not include the post judgment interest, you are still required to provide us with a partial satisfaction of judgment pursuant to CPLR 5020(a). If there was a legitimate claim to a few cents more then I would have that paid, but you are refusing to provide the satisfaction and refusing to tell us what you think is owed. Yesterday Roman argued $200 in one breath and then $500 in another breath on the same case. It is your obligation to provide the satisfaction. If it is paid in full, provide a full satisfaction. If you think it is partially paid provide a partial satisfaction and explain where you get the balance from.
Sincerely,
William R. Larkin, III
Larkin Farrell LLC
Attorneys at Law
(Index No. 532051/2022 Doc No. 40; Index No. 500128/2023 Doc No. 41; Index No. 535310/2022 Doc No. 43.)
As Petitioner’s counsel’s letters discussed above stated, attached were copies of cancelled checks. The following table compiled by the Court contains pertinent information concerning the judgments and the chronology of Respondent’s information subpoenas, Petitioner’s payments (all of which cleared), the amounts remaining to be paid (due to ongoing interest), the filing of Respondents’ contempt motions against Petitioner, and Petitioner’s letters concerning payments made and/or the need for Respondents to file satisfactions of judgment:
[*6]|
Index No. & Judgment |
Information Subpoena |
Petitioner’s Payments |
Remaining Unpaid |
Contempt Motion |
Petitioner’s Counsel’s Letters |
|
Index No. 532051/2022: $7,610.39, 7/18/23 |
8/3/23 (mailed 8/4/23) |
$613.85, 8/30/23 (cleared 9/6/23*); $3,628.80, 8/31/23 (cleared 9/6/23*); $2,278.89, 8/31/23 (cleared 9/6/23*); $1,221.53, 8/31/23 (cleared 9/6/23*) Total $7,743.07 |
$176.81 per Kravchenko aff (see Index No. 532051/2022 Doc No. 43 10); $84.98 per 1/17/24 oral argument (see Index No. 532051/ 2022 Doc No. 59 at 24); “probably about $10 or $15” per Tenenbaum at 5/20/24 hearing (Index No. 532051/ 2022 Doc No. 60 at 9); $16.92 as recalculated below |
9/8/23 |
9/26/23; 11/28/23 |
|
[*7]Index No. 500128/2023: $6,595.52, 7/18/23 |
8/3/23 (mailed 8/4/23) |
$646.35, 8/21/23 (cleared 8/31/23); $3,452.31, 8/31/23 (cleared 9/6/23*); $1,574.25, 8/31/23 (cleared 9/6/23*); $1,045.31, 8/31/23 (cleared 9/6/23*) Total $6,718.22 |
$65.60 per Kravchenko aff (see Index No. 500128/2023 Doc No. 44 14); $200.87 per 1/17/24 oral argument (see Index No. 500128/2023 Doc No. 59 at 75); $10 or $15, or as much as $50 per Tenenbaum at 5/20/24 hearing (Index No. 500128/ 2022 Doc No. 60 at 26); $12.82 as recalculated below |
9/8/23 |
9/26/23; 11/28/23 |
|
[*8]Index No. 535310/2022: $8,945.13, 7/31/23 |
8/3/23 (mailed 8/4/23) |
$130.00, 7/14/23 (cleared date unknown); $4,716.48, 7/21/23 (cleared date unknown); $2,188.45, 7/21/23 (cleared date unknown); $1,400.00, 7/21/23 (cleared date unknown); $516.35, 9/28/23 (cleared date unknown) Total $8,951.28 |
$13.92 per Kravchenko aff (see Index No. 535310/2022 Doc No. 46 11); $13.92 per 1/17/24 oral argument (see Index No. 535310/2022 Doc No. 61 at 79); “Ballpark figure, between $10 and $20, most likely” per Tenenbaum at 5/20/24 hearing (Index No. 5535310/2022 Doc No. 62 at 33); $240.47 as recalculated below |
9/8/23 |
11/14/23; 11/28/23 |
* Check endorsed by Roman Kravchenko, of of Respondents’ counsels.
(See Index No. 532051/2022 Doc Nos. 19, 20, 22, 24, 29, 30, 32; Index No. 500128/2023 Doc Nos. 18, 20, 22, 24, 30, 31, 33; Index No. 535310/2022 Doc Nos. 20, 21, 23, 26, 31, 32, 34.)
Contemporaneous with the dispute between counsel for Petitioner and counsel for Respondents concerning the non-provision of satisfactions of judgment, complete or partial, there was a dispute over Respondents’ counsel representing their clients in matters adverse to Petitioner. Attorney Jason Tenenbaum had previously represented Petitioner in hundreds of No-Fault insurance actions. In a No-Fault insurance action by an individual seeking to recover lost [*9]wage benefits, the Appellate Division affirmed the trial court’s disqualification of Attorney Tenenbaum. “Here, the defendant established that counsel for the plaintiff had a prior attorney-client relationship with the defendant, that the issues involved in his prior representation of the defendant were substantially related to the issues involved in his firm’s current representation of the plaintiff, and that the interests of the plaintiff and the defendant were materially adverse (see Rules of Prof Conduct [22 NYCRR 1200.0] rule 1.9; Delaney v Roman, 175 AD3d at 650)” (Sakandar v American Tr. Ins. Co., 217 AD3d 1005, 1006-1007 [2d Dept 2023]). Petitioner wrote letters dated November 15, 2023, to Roman Kravchenko, asking that he withdraw from representing the various Respondents (see Index No. 532051/2022 Doc No. 25; Index No. 500128/2023 Doc No. 26; Index No. 535310/2022 Doc No. 27.)
The last motion in the three special proceedings, designated Motion Seq. 5, was one made by Petitioner via order to show cause. The proposed orders to show cause were submitted to the Court on December 7 and 8, 2023, and signed December 13, 2023 (see 532051/2022 Doc Nos. 35, 45; Index No. 500128/2023 Doc Nos. 36, 45; Index No. 535310/2022 Doc Nos. 38, 47). This trio of motions sought:
1. STAY the execution of the judgment pursuant to CPLR §2201, and
2. For a SATISFACTION OF JUDGMENT pursuant to CPLR §5020(a) and CPLR 5021(a)(2), and
3. Costs pursuant to 22 NYCRR 130.1.1 [actually 130-1.1] for causing Petitioner to have to file this application, and
4. For such other relief that this Court deems just and proper.
(Index No. 532051/2022 Doc No. 45; Index No. 500128/2023 Doc No. 45; Index No. 535310/2022 Doc No. 47.)
As it did regarding Motion Seq. 4 in each special proceeding, Petitioner’s motion papers in support of Motion Seq. 5 included, in each instance, the affidavit of merit from Madanawelly Armogan, the employee in its claims department who attested to Petitioner’s payments toward the respective judgment. Copies of cleared checks were again attached. Counsel’s affirmations claimed that the judgments were fully paid, Respondents did not provide a satisfaction of judgment or even a partial satisfaction of judgment, Respondents insisted on enforcing the information subpoena, and, upon information and belief, Respondents referred the matter to a marshal for collection. (See Index No. 532051/2022 Doc Nos. 37-39; Index No. 500128/2023 Doc Nos. 38-40; Index No. 535310/2022 Doc Nos. 39-41.)
On January 17, 2024, this Court heard oral arguments in various special proceedings where American Transit Insurance Company was the Petitioner and Roman Kravchenko represented the respective Respondents. These three special proceedings herein were included among them. Motion Seqs. 4 and 5, as well as Motion Seq. 3, in these special proceedings were argued. Initially, decision was reserved. Later on, on March 26, 2024, the Court recalled that marking and adjourned the motions (also the Motion Seq. 3s, which were Respondents’ motions for contempt) to May 20, 2024 due to there being an issue in common with other cases, to wit, the disqualification of Respondents’ counsel sought by Petitioner: “The Court recalls the dispositions of reserved decision and submitted with respect to the nine motions herein, as indicated above, and the Clerk shall replace such dispositions with ones which adjourn the motions to May 20, 2024, at 10:00 a.m., the date on which the issue of disqualification of Respondents’ counsels had already been scheduled to be considered in the hearing to be conducted then” (Index No. 532051/2022 Doc No. 50; Index No. 500128/2023 Doc No. 50; [*10]Index No. 535310/2022 Doc No. 52).
Faced with an impending hearing on May 20, 2024, Attorneys Kravchenko and Tenenbaum attempted to withdraw their contempt motions in letters sent to the Court on May 7, 2024 (see Index No. 532051/2022 Doc No. 53; Index No. 500128/2023 Doc No. 53; Index No. 535310/2022 Doc No. 55).
On May 20, 2024, Petitioner and the respective Respondents appeared before the Court. Respondents withdrew Motion Seq. 3 in each special proceeding — the one seeking contempt against Petitioner for not responding to the respective information subpoenas (Index No. 532051/2022 Doc No. 60 at 4, 24, 31; Index No. 500128/2023 Doc No. 60 at 4, 24, 31; Index No. 535310/2022 Doc No. 62 at 4, 24, 31). After oral argument on Motion Seqs. 4 (for a protective order and to quash an information subpoena), and Motion Seqs. 5 (to stay judgment execution, direct a satisfaction of judgment, and for 22 NYCRR 130-1.1 costs), decision was reserved.
Later in the day, on May 20, 2024, the three Respondents filed complete satisfactions of judgment (see Index No. 532051/2022 Doc No. 58; Index No. 500128/2023 Doc No. 58; Index No. 535310/2022 Doc No. 60).
Arguments in Motion Papers
As discussed supra at 11, Petitioner’s counsel’s affirmations in the three Motion Seq. 4s claimed that the judgments were fully paid, Respondents did not provide a satisfaction of judgment or even a partial satisfaction of judgment, Respondents insisted on enforcing the information subpoena, and, upon information and belief, Respondents referred the matter to a marshal for collection (see Index No. 532051/2022 Doc No. 28; Index No. 500128/2023 Doc No. 29; Index No. 535310/2022 Doc No. 30.)
In opposition, Respondents’ counsel, Roman Kravchenko, submitted affirmations disputing the claim that Petitioner was entitled to a complete satisfaction of judgment. Still owed to the respective Respondents as of August 30, 2023 were $176.81, $65.60, and $13.92 in post-judgment interest, Petitioner should be held in contempt, and Respondents should be awarded an attorney’s fee for post-judgment work performed on the file, he maintained. (See Index No. 532051/2022 Doc No. 43; Index No. 500128/2023 Doc No. 44; Index No. 535310/2022 Doc No. 46.)
In the three Motion Seq. 5s, Petitioner again related allegations contained in its Motion Seq. 4s’ affirmations, as well as additional ones:[FN6]
14. Petitioner requested Respondent provide a satisfaction of judgment. Rather than provide said satisfaction as required by CPLR § 5020(a), or even credit the payments made and exchange a partial satisfaction of judgment, Respondent refused and instead sought to enforce the subpoena and, upon information and belief, as he has done in other cases, referred the judgment to the Marshal for collection.
15. CPLR §5020(a) provides:
§ 5020. Satisfaction-piece. (a) Generally. When a person entitled to enforce a judgment receives satisfaction or partial satisfaction of the judgment, he shall execute and file with [*11]the proper clerk pursuant to subdivision (a) of section 5021, a satisfaction-piece or partial satisfaction-piece acknowledged in the form required to entitle a deed to be recorded, which shall set forth the book and page where the judgment is docketed. A copy of the satisfaction-piece or partial satisfaction-piece filed with the clerk shall be mailed to the judgment debtor by the person entitled to enforce the judgment within ten days after the date of filing.
16. CPLR §5021(a)(2) provides:
§ 5021. Entry of satisfaction. (a) Entry upon satisfaction-piece, court order, deposit into court, discharge of compounding joint debtor. The clerk of the court in which the judgment was entered or, in the case of a judgment of a court other than the supreme, county or a family court which has been docketed by the clerk of the county in which it was entered, such county clerk, shall make an entry of the satisfaction or partial satisfaction on the docket of the judgment upon:
1. the filing of a satisfaction-piece or partial satisfaction-piece; or
2. the order of the court, made upon motion with such notice to other persons as the court may require, when the judgment has been wholly or partially satisfied but the judgment debtor cannot furnish the clerk with a satisfaction-piece or partial satisfaction-piece; or….
17. The judgment was clearly paid. Petitioner provided the checks and requested the Satisfaction of Judgment on numerous occasions. (see NYSCEF Doc ID 24 and 32 and the email attached hereto as Exhibit B)
18. Respondent failed to comply with the requirements of CPLR §5020(a) by failing to file the Satisfaction of Judgment with the clerk and by failing to exchange the Satisfaction with Petitioner.
19. Respondent has refused to acknowledge the payment without explanation.
20. It is respectfully requested that the Court order the Clerk of the Court to enter a Satisfaction of Judgment pursuant to CPLR §5021(a)(2).
21. Petitioner also requests costs pursuant to 22 NYCRR 130.1.1 [should read 130-1.1], which provides:
(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under article 3, 7 or 8 of the Family Court Act.
(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor’s office, legal aid society or public defender’s office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is [*12]associated.
(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
22. Counsel for Respondent is clearly harassing Petitioner.
23. As discussed on numerous occasions, Mr. Kravchenko’s business “partner,”1 Jason Tenenbaum, Esq. used to represent Petitioner. He has some sort of vendetta against the company.
24. He was removed as counsel in at least one case because the Court found that he was using information he gained in his representation against American Transit in the lawsuit as attorney for American Transit’s adversary. (see Supreme Court, Queens County Index 707562/2019) The Appellate Division, Second Department upheld the order removing him as counsel. (See Sakandar v Am. Transit Ins. Co., 217 AD3d [1005] (2d Dep’t 2023)
25. Mr. Tenenbaum, through his former employee and now “partner” Roman Kravchenko, Esq., has already harassed Petitioner on approximately 100 de novo actions by filing warrantless motion after motion requesting documents that are not relevant to the prosecution or defense of the action.
26. He has intentionally driven up the attorney fees on these de novo actions at the Court’s expense.
27. The information subpoena is just another tactic to harass Petitioner, his former client, as revenge for their falling out.
28. The Court agreed with Petitioner in a similar case involving similar circumstances. (see American Transit Insurance Company vs. YSC Trinity Acupuncture PC a/a/o Shaba Hill, Supreme Kings Index 502863/2022)
29. This Court has already determined that Respondent’s intentions by serving the subpoena and attempting to execute on the judgment after it was paid were done to harass Petitioner. (see Supreme Kings Index 502863/2022) There is no other explanation for their refusal to provide a Satisfaction of Judgment as required by CPLR §5020(a).
30. It should be noted that this is not the only case where counsel has sought to harass Petitioner by filing judgment on amounts already paid and attempting to execute on judgments that have been fully satisfied. The undersigned has 13 similarly situated cases with Motions for Contempt pending and recently received notice of another 20 cases where an information subpoena was served.
31. Respondent’s intention to harass is clear from Mr. Tenenbaum’s response to my recent email requesting a Satisfaction of Judgment. I explained in the email that he has an affirmative obligation to provide a Satisfaction of Judgment. Mr. Tenenbaum’s response was he would consider it if we settled all of the cases we have with his office (Mr. Kravchenko’s office) and that if we don’t settle “we [his office] will keep your [my] staff busy for the holidays and for the better part of next year.” (see attached at Exhibit B)
32. Respondent’s conduct is clearly harassing, repetitive and intentionally designed to waste our time and resources without any regard for the fact that he is doing the same to the Court.
33. As such, costs are warranted pursuant to 22 NYCRR 130.1.1 [actually 130-1.1].
1 We use the term “partner” loosely. Mr. Kravchenko and Mr. Tenenbaum have testified that they are “partners” with respect to the petitions and de novos they handle against American Transit Insurance Company but we believe that Mr. Kravchenko is really an employee of Mr. Tenenbaum and that the Cross-Petitions and Answers are only filed in Mr. Kravchenko’s name to hide a conflict that Mr. Tenenbaum [has] with American Transit Ins. Co.
(Index No. 532051/2022 Doc No. 37; Index No. 500128/2023 Doc No. 38; see Index No. 535310/2022 Doc No. 40.)
In opposition to Petitioner’s Motion Seq. 5s in the three special proceedings, Respondents’ counsel, Roman Kravchenko, did not address the additional allegations contained in the affirmations of William Larkin offered on behalf of Petitioner. Rather, Attorney Kravchenko merely wrote in Index Nos. 532051/2022 and 500128/2023 as follows:
1. I am a member of Ronan [sic] Kravchenko, counsel for Respondent, of counsel to Russell Friend Law Group, LLP[FN7] and, as such, am fully familiar with the facts and [*13]circumstances of the within matter.
2. I make this affirmation in opposition to the order to show cause.
3. We are relying upon our previously filed opposition to the motion to compel a satisfaction and in Reply to our contempt motion in herein opposing this order to show cause.
(Index No. 532051/2022 Doc No. 46; Index No. 500128/2023 Doc No. 46.)
In the third special proceeding, Attorney Kravchenko’s affirmation contained basically the same response:
1. I am a member of Roman Kravchenko, of counsel for Respondent and as such, am fully familiar with the facts and circumstances of this matter.
2. I make this affirmation in opposition to the order to show cause.
3. Our basis for opposing the order to show cause is found in our amended affirmation in opposition to the cross-motion seeking to quash the subpoena and compel issuance of a complete satisfaction of judgment.
(Index No. 535310/2022 Doc No. 50.)
(A) January 17, 2024
On January 17, 2024, when various special proceedings were before this Court, Petitioner, by its attorney, Joseph P. Farrell, argued:
I think you will see that a lot of what these cases all have is the same similar fact pattern. They are paid. No requests — we’re making requests for satisfactions of judgments, we are being told to file an order to show cause. They then are going to the Marshall and asking for the full amount of the bill even after payments are made. We’re being required to file order to show causes. And if you look they are paid. What is going on here, your Honor, and we can look at each one you will see it is going to have the same pattern, we’re creating work just to bill work. And it is very obvious what is going on when you see what is going on here.
(Index No. 532051/2022 Doc No. 59 at 7; Index No. 500128/2023 Doc No. 59 at 7; Index No. [*14]535310/2022 Doc No. 59 at 7)
Attorney Kravchenko argued that there was a fundamental difference between Petitioner and respective Respondents as to how interest is calculated on judgments in No-Fault insurance cases. He maintained that whereas Petitioner believed it is 9% annually the No-Fault Insurance Law, in § 5106 (a), provided for interest at 2% per month, thus superseding the general CPLR provision for 9% annually. (Id. at 13.)
In terms of Petitioner’s contempt in Index No. 532051/2022, Attorney Kravchenko argued that since Petitioner owed $84.98, it was in contempt of court, warranting a $50.00 penalty. “And while conceding, of course, that American Transit at the very least isn’t due a partial satisfaction of judgment for the amounts that they paid but they still owe the $84” (id. at 31). Asked why a partial satisfaction was not filed — the basis for Petitioner’s seeking to impose a penalty against Respondent’s attorneys — Attorney Kravchenko answered, “We don’t agree that we have done anything that should be sanctionable” (id. at 32). He added as an explanation for why no satisfaction was filed by him, “Because of the ongoing disagreement as to how the percentage is applied” (id. at 32). Asked by the Court whether one needs to know the exact amount still owed in order to issue a satisfaction once a check is received, Attorney Kravchenko claimed confusion when multiple checks are issued, as was the situation here. However, if full payment were made, then he withdraws (the subpoena or contempt motion) and files a satisfaction (see id. at 32-33). With the Court focusing on the issue of filing a partial satisfaction of judgment following receipt of any partial payment (“So if you get a couple of checks each time another check is issued don’t you think you have to file [a] partial satisfaction-piece?), Attorney Kravchenko conceded that one is entitled to a partial satisfaction (id. at 34). After earlier claiming that a difference of opinion in how interest is calculated led to no satisfaction being filed, he now claimed that it was due to “Difficulties of practice. Not intentional but it is difficult to — ” (id. at 34).
Attorney Kravchenko stated that he did not recall Petitioner seeking a partial satisfaction anywhere except in motion papers, but the Court called his attention to Petitioner’s November 28, 2023 letter seeking it if Respondent thought any further money was due (see id. at 36-37). Kravchenko maintained that as long as none was requested, a partial satisfaction of judgment did not have to be filed (see id. at 39-40). This was even though, as the Court pointed out, the CPLR required it (see id. at 40).
Attorney Farrell emphasized that while he was arguing interest should be calculated at 9% annually, Respondent refused to file a satisfaction of judgment. He took issue with Respondent’s treatment of the issue of the remaining amount claimed to be owed — that Respondent did not send a letter to collect the money, and went straight to an information subpoena for an amount owed which is now conceded to be $84.00. In other cases, Respondents represented by Attorney Kravchenko called in the marshal on the full amount owed, even if partially paid. (Id. at 47-50.) Attorney Farrell took issue with the strategy of Attorneys Kravchenko and Tenenbaum whereby Petitioner was compelled to go to court to fight information subpoenas and contempt motions over relatively small amounts rather than them sending a letter to Petitioner with the amount they claim was still owed (see id. at 52-53). Attorney Kravchenko conceded that “[T]his is the legal strategy of the Respondent’s counsel” (id. at 51-52).
Attorney Farrell argued in support of Petitioner’s motion to quash the information subpoena and issue a protective order (Mot. Seq. 4) (see id. at 57).
As for the motion to stay judgment execution, direct a satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (Motion Seq. 5), Attorney Farrell argued that he was still seeking a satisfaction of judgment on behalf of Respondent as well as a stay of execution. He also was seeking costs pursuant to 22 NYCRR 130-1.1. His firm charges Petitioner $210.00 per hour and close to three to four hours were spent. (See id. at 57-59.) Further, he added,
[Y]ou have to add up the checks, get the affidavit, you have to write up, give the breakdowns, the dates of the checks and the payments and the math on these I would wish these were templated work. Unfortunately, your Honor, they are very intricate. You have to be very specific on the dates, the amounts, the judgment amounts, the differentiation between the interest of the attorneys fees and the bill. I can honestly say this was the kind of work that we can only do department level at the firm because if you didn’t know no-fault well enough, you wouldn’t be able to grasp some of the concepts that we had to apply to the templates. You will see a lot of math and broken down work has to be done. (Id. at 59.)
Attorney Farrell emphasized that it burdens the Court to have to deal with an order to show cause every time someone has a dispute over less than $100.00 or 5% of a bill. It is burdensome to have to go to Court instead of receiving a satisfaction of judgment. (See id. at 60.) “I don’t think [the Court] is to hear $84 is owed on a $7,000 bill that nothing was done to really collect” (id. at 61). The Respondents represented by Attorneys Kravchenko and Tenenbaum are the first to challenge the interest paid. “This is in essence where there’s two routes here, your Honor, one route is to be amicable, send a letter. The other route is — creates work, creates legal fees, creates — just the route we’re taking just mysteriously creates an attorney fee that he is asking for. The other route that is taken he is more effective but that doesn’t give him attorney fees.” (Id. at 61.)
Attorney Kravchenko concluded with respect to Index No. 532051/2022:
First of all, as far as all actions taken by myself and attorneys that work with me on these cases, I fully stand behind our conduct and actions as being meritorious, lawful and reasonable under the circumstances. American Transit is not an individual person who is unrepresented, they are a sophisticated party, taking sophisticated legal positions in order to achieve a goal which is to pay as little as possible of what they actually do owe. And at any rate we — our strategy in getting American Transit to pay what it does owe is meritorious, lawful and reasonable. (Id. at 63.)
As for Index No. 500128/2023, the arguments were the same but Attorney Farrell still maintained that a partial satisfaction of judgment, if not a complete one, should have been issued and that 22 NYCRR costs should still be imposed (see Index No. 500128/2023 Doc No. 59 at 70-77).
Finally, on January 17, 2024, the Court dealt with Index No. 535310/2022. Here, Attorney Farrell added:
This case will show you exactly why a letter should have been mailed with the exact terms of what was owed. I’m sorry, but to tell my client you owe money, question mark. There’s not much more than a contentious relationship with Counsel of the other side. You can see by the amount of volume of paperwork that is before you today, that this not something where no-fault specifically says should not be adversarial. I can’t think anything more adversarial than to make someone spend legal fees, time and effort for $13. If a letter was sent to my client saying you owe $13 instead of an information [*15]subpoena, I think this would have taken a completely different route. In total we argued today over on Plaintiff saying he is owed about $300. You have seen 22 motions, you have seen three hours — (Index No. 535310/2022 Doc No. 61 at 80.)
Further emphasizing what he described as wasting time, Attorney Farrell stated:
Your Honor, we were still here on them. I had to still appear on them. You still had to be here and read them into the record. The whole morning was wasted on $300. It just behooves this kind of conduct for an attorney. Mr. Kravchenko not a rookie attorney, he has been doing this for a long time. I would think his experience level would be able to find a way to collect this money without taking this route. Mysteriously this route has led to him collecting attorney fees. A letter. All collection work begins with a letter 30 days notice. I don’t see why this collection didn’t take that route at all. (Id. at 81.)
As for a satisfaction of judgment, Attorney Farrell requested that the branch of one of Petitioner’s motions seeking it (Motion Seq. 5) should be granted. Of Attorney Tenenbaum’s attitude, he said,
Mr. Tannenbaum[FN8] laughed at it. Mr. Tannenbaum the e-mail and letter said, you know, oh, okay, we pleaded for in his letter. We sent to them the consequences. He said he was fine with it. I don’t think the Court should condone this kind of behavior. A satisfaction of judgment is not optional. It should have been given as soon as it was asked for in recognition of the money that was paid. The applicant — you didn’t see it in this case, but in other cases in the past has gone to the Marshall with this. And the fear that my client had that he would go to the Marshall, must be understood by this Court. There’s no reason why he could — he could give this Court why a satisfaction wasn’t given except to say that, you know, it just wasn’t in his legal strategy. (Id. at 83.)On that subject, Mr. Farrell added later on:
Mr. Tannenbaum, as told to you, Mr. Tannenbaum’s is hand-in-hand in this. Mr. Tannenbaum has been disqualified against American Transit. It seems to be a vendetta against American Transit. It seems to be this idea — that Mr. Tannenbaum has gone on social media and taken checks that he has received from American Transit and posted them. Hey, look what I got in cases. It has become quite interesting how Mr. Tannenbaum and Mr. Kravchenko — he said to you he is going to fight for every dollar that American Transit has. Well, that’s why he didn’t give the satisfaction of judgment. That’s why we have to worry that he is going to go to the Marshall. It is unconscionable to receive money and not credit that money as paid and to give an indication to the other side how much you are owed before going to the Court. My client received nothing that said that this payment is wrong. You owe us this much more. What they received was an information subpoena. What they received was a motion to be held in contempt. Okay, nothing was done — there was never a letter saying your calculation was this, my calculation was this, you owe this amount. (Id. at 89.)
Attorney Kravchenko in turn criticized Petitioner for filing Article 75 proceedings to vacate arbitration awards:
American Transit alleging that the situation should be non-adversarial is deeply sad for many respects given that they filed master arbitrations on all or a substantial majority or [*16]portion at any rate or the arbitrations that they filed that they then even on issues of medical necessity, which are clearly not going to be overturned by a Master, flood the Courts with hundreds, if not thousands, yearly petitions, trial de nova’s as a transparent attempt to not pay arbitrations which would never be reversed under any situation, only the — the only strategy for doing so is to bully under-supplied no-fault arbitration attorneys who have no recourse really other than to either settle for pennies on the dollar or else to retain me to represent their interest because I am the only person that is going to hold American Transit to account for every penny that they owe. And the Court can see transparently that American Transit knowing that their position is completely ludicrous, will just send a — short change you by a couple of bucks and say you just have to eat it, so it is entirely reasonable for myself and for the people that work with me to hold American Transit to account in the way that we have. (Id. at 84.)
The Court asked of Attorney Kravchenko a question which gets to the heart of the dispute between Petitioner and Respondents represented by Attorneys Kravchenko and Tenenbaum:
Is it your position, Mr. Kravchenko, that — you see, it is you, I can’t say your client, you are being criticized for pursuing this line of legal strategy for relatively small dollar amounts, is it your position that that strategy is justified in light of American Transit’s issuance of repeated denials — denials of claims and then after losing an arbitration pursuing — pursuing Master Arbitration and Article 75’s? (Id. at 86.)
Attorney Kravchenko responded: “Your Honor, yes, and not only is it justified in theory, but it is proven in result. Mr. Farrell’s firm no longer files trial de novo’s because I move to defend them” (id. at 86). He answered the Court’s hypothetical question whether an information subpoena was justified for a debt of five cents with a “Yes” (id. at 90).
(B) May 20, 2024
The three subject special proceedings appeared again on the Court’s calendar of May 20, 2024, to deal with the three motions within them (Motion Seqs. 3, 4, and 5) along with other cases where Petitioner and Respondents-clients of Attorneys Kravchenko and Tenenbaum disputed matters. Insofar as the three subject special proceedings are concerned, the respective Respondents withdrew Motion Seq. 3, which sought a contempt finding against Petitioner (see Index No. 532051/2022 Doc No. 60 at 4, 24, 31; Index No. 500128/2023 Doc No. 60 at 4, 24, 31; Index No. 535310/2022 Doc No. 62 at 4, 24, 31. Remaining were Petitioner’s motions for a protective order and to quash an information subpoena (Motion Seq. 4 in each one), and to stay judgment execution, direct a satisfaction of judgment, and for 22 NYCRR 130-1.1 costs (Motion Seq. 5 in each one).
In Index No. 532051/2022, Attorney Jason Tenenbaum stated: “[The judgment] was paid. There was an issue as to post-judgment interest, that two percent per month versus nine percent per year. But we are withdrawing the application and, on the record, stating that the judgment, for purposes of today, has been paid, and there’s no other action left on this case.” (Id. at 5.) He withdrew the information subpoena “if it is indeed, outstanding” (id. at 5-6). Counsel for Petitioner objected to Respondent’s withdrawing the subpoena in Index No. 532051/2022 because Attorney Tenenbaum had not yet issued a satisfaction of judgment, and she still wanted attorney’s fees (see id. at 6).
The Court noted that “costs” as defined in 22 NYCRR 130-1.1 included sanctions in addition to attorney’s fees (id. at 7, 27). Attorney Tenenbaum responded that his client’s motion [*17]“has merit, and, if it were to be decided, would likely prevail, so it was not frivolous” (id. at 8). He claimed that “probably about $10 or $15 was owed,” and that he pursued this
to make sure that the two-percent interest is faithfully paid, Judge. That’s something that the insurance company should be doing when they’re paying judgments and paying overdue benefits. And in fact, Judge, we’ve succeeded, because based upon the recent checks we’ve received, American Transit does pay the two percent. So these applications have, at least from a company policy, of succeeding, ensuring that American Transit’s in compliance with the regulation and the Appellate Division and Appellate Term Second Department case law. (Id. at 9.)
Petitioner’s counsel countered that “So for him, today, still not having filed a satisfaction of judgment, to come before the Court today to say it’s because of interest — I find that to be frivolous, in fact” (id. at 11). Attorney Tenenbaum agreed that a CPLR 5020 satisfaction of judgment has to be provided when there is either a partial payment or full payment of a judgment (see id. at 12). Attorney Tenenbaum disagreed that 22 NYCRR 130-1.1 costs should be imposed for not having filed a satisfaction — not even a partial satisfaction. “But the response to the order to show cause agreed there’s contentions. To the extent that a partial satisfaction was not issued, that was an oversight, Judge. But we clearly, upon receipt of the papers, agreed with the contention that payment was received, Judge.” (Id. at 12.)
It was even after January 17, 2024, when the Court went through the math with the parties in terms of what was still owed, and still, as of May 20, 2024, that there was no partial satisfaction filed “for the amount that they paid, even after this was an issue that was discussed on January 17” (id. at 13). “Well, Judge, that issue was not raised to me,” replied Attorney Tenenbaum. “We have issued scores of satisfaction for American Transit cases which we are handling. So this would be an outlier, Judge. But the majority of them — almost all of the payments have been made at this juncture, satisfactions have been made. And like I said, we would do it by the end of business today, Judge.” (Id. at 13.) There ensued the following colloquy:
THE COURT: They were entitled for four months to have a satisfaction filed.
MR. TENENBAUM: I understand, Judge. But there wouldn’t be any prejudice to the extent that any judgment that was issued was stayed.
THE COURT: But they had to come here today to pursue this to get a satisfaction.
MR. TENENBAUM: Judge, again, what I’m indicating to you is that it will be issued today. And we were here on a whole litany of issues, also, Judge.
(Id. at 13-14.)
Petitioner’s counsel emphasized that in all three cases the situation was the same:
So I would like to raise the fact that this isn’t just a slight oversight, the fact that Counsel was given a letter requesting that he withdraw, given the copy of the checks in this case, was told that, you know, they had, in fact, been paid, and still today no judgment. We even asked that they file partial satisfaction of judgment for the amounts paid and those were, in fact, not even entered. (Id. at 15.)
Attorney Tenenbaum charged anywhere from $350.00 an hour to $500.00, depending on the type of work (see id. at 15). Attorney Joseph Farrell said he charged Petitioner $210.00 an hour (see id. at 20).
Attorney Farrell stated that the work involved here
would require an affidavit. An affidavit would require that to be drafted and then sent to [*18]the client to be proofread and then executed. That alone could take, possibly, two to three hours. It has to be drafted from scratch. And if you look at these particular ones, the affidavits were very, very particular as to check numbers, check times, check dates. These were not just templated. These all had to be drafted from scratch. Further than the affidavit, that motion would be done in order to show cause. The order to show cause would have to be filed with the court, a copy would then have to be taken and served, and there would be costs incurred. I would say that a minimum of eight to ten hours would be a minimum of what these would entail as far as between the service, between the drafting, and, you know, the e-mails going back and forth as far the, you know, the particularities, the checks that have to be acquired, the foundations that have to be laid for the checks. This was not simple work by any means. And at the end of it all, at every motion, we requested just to get a satisfaction of judgment. We asked for that before we underwent any of this work. And it all could have not been performed if we got that satisfaction of judgment at that time. (Id. at 16-17.)When the Court raised an issue of repetitiveness in the papers submitted, Attorney Farrell responded:
Your Honor, for most of no fault, I would agree with you. The only reason I would disagree with you is these have specific check numbers and dates and payments. These were not something that is — all of them were different. The math that had to be done — you had to sit down in the same way we did it on those days and we had to work out the math, and that had to be done on these. These were not templated work. These were done with particularity. Because, again, the burden was on us to establish the dates that these payments were made, how much they were made, and how it was broken up. That did not lend itself to templated work, your Honor. (Id. at 17-18.)
Pressed by the Court, Attorney Farrell said that six to eight hours would have been spent on Motion Seqs. 4 and 5 (see id. at 19). Attorney Tenenbaum claimed that one hour would be more accurate (see id. at 20). Then he conceded, “Maybe three hours, Judge” (id. at 21).
Again, with regard to not having any satisfaction of judgment, “Final words, Mr. Tenenbaum, on not having filed a satisfaction after payments were made in August of 2023 up to today, May 20, 2024, and four months past the hearing that we had on the motions in January? Any final words as to why the satisfaction — a partial satisfaction was not filed?” Attorney Tenenbaum answered, “All I can indicate, Judge, is we’ll file it by the end of business today. And there’s been no objection to that. That’s my final word.” (Id. at 21.)
The next case that was dealt with was Index No. 500128/2023.
MR. TENENBAUM: Your Honor, it was the same issue as the prior case where it’s two-percent post-judgment interest that runs on the judgment. And, again, up until recently, American Transit only paid judgment rate interest at best. So I do not believe that our application is frivolous in that we were underpaid a sum of money that would be set forth in the motion papers that were previously argued by Mr. Kravchenko on January — the date that was earlier this year. To the extent — (Id. at 25.)Attorney Tenenbaum estimated that $10.00 or $15.00 was owed, but that it could be as much as $50.00 (see id. at 26):
I would estimate that would be the sum. Because my recollection is that was — with the exception of only one case that’s not before this Court, that was roughly the sums of money were underpaid. It could be as much as $50. But the majority were $10 to $15. [*19](Id. at 26.)
Petitioner’s counsel emphasized again, as in the prior case, that
I just want to, again, reiterate to the Court that on September 26th, 2023, well after these payments were issued, a letter was issued, again, to Mr. Tenenbaum and Mr. Kravchenko, requesting that they withdraw their contempt motion and that was not done. To this day, no satisfaction of judgment was done. At that time when the letter was issued, the checks were provided to Counsel, and they were fully aware that this judgment was more than satisfied.(Id. at 27.)
Attorney Farrell estimated time spent as six hours (see id. at 27):
And, your Honor, that would entail — because the affidavit would have to be done on top of the fact that you have to get the math and all that kind of stuff. Affidavits have to go back and forth, they have to be proofread, they have to be drafted from scratch, a lot of it with the math. And further, with the service, that kind of adds a little bit more to just the drafting of the papers. This entailed more than just drafting. You have to serve and you have to serve different entities. There’s just a little more to it than just the affidavits being sent back and forth. (Id. at 27-28.)
Attorney Tenenbaum maintained with respect to this case,
Again, your Honor, in light of the fact that there was outstanding interest that was outstanding, I do believe that our application had merit. I don’t believe that anything that our firm did lacked merit or was frivolous. The issue we’re having here was the lack of filing a partial satisfaction. But in terms of the application before this Court, nothing we did was frivolous. And, again, we did the math and came to a total in our papers. (Id. at 28-29.)
Asking for a response to an information subpoena for $50.00 was appropriate, claimed Attorney Tenenbaum (see id. at 29). Petitioner replied that Attorney Tenenbaum was at fault for not sending a letter asking for the $50.00 before issuing the information subpoena (see id. at 29).
Finally, the Court dealt with Index No. 535310/2022. Petitioner’s counsel argued:
Well, I would like to say, as in the prior two matters, once again, counsel — Mr. Tenenbaum was well aware that the checks had, in fact, been issued. He, in fact, negotiated those checks. He also received a letter asking him to withdraw his motion and he failed to do so. He also failed to file either a satisfaction of judgment in full or partial. You know, the definition of frivolous here is the intent to harass, and we believe that his filing of his motions with the information on the subpoenas was nothing more than to harass his prior client. And we’d like to bring that to the Court’s attention, especially since they have not filed a satisfaction of judgment through today’s date after being told by the Court back in January that that was, in fact, something they should do, and, in fact, that they should have filed them when they received a letter from Counsel without having Counsel pursue these motions. (Id. at 32.)
According to Attorney Tenenbaum, “Ballpark figure, between $10 and $20, most likely” was owed. “Could be more. Probably wasn’t less.” (Id. at 33.) Attorney Joseph Farrell estimated time spent as five hours at $210.00 an hour (see id. at 33). Attorney Tenenbaum thought three hours was more appropriate (see id. at 34).
Discussion
In each of the three special proceedings, Motion Seq. 4, filed by Petitioner, sought a protective order regarding the respective information subpoena pursuant to CPLR 3103 or to [*20]quash it pursuant to CPLR 2304 (see Index No. 532051/2022 Doc No. 27; Index No. 500128/2023 Doc No. 28; Index No. 535310/2022 Doc No. 29).
Attorney Tenenbaum represented to the Court on May 20, 2024 that the information subpoena in Index No. 532051/2022 was being withdrawn “if it is indeed, outstanding” (Index No. 532051/2022 Doc No. 60 at 5-6; Index No. 500128/2023 Doc No. 60 at 5-6; Index No. 535310/2022 Doc No. 62 at 5-6), as related supra at 29. He did not make the same representation with respect to Index Nos. 500128/2023 and 535310/2022. Perhaps he forgot to do so or assumed that his statement applied to all three information subpoenas. In any event, the Court views the issue as academic inasmuch as complete satisfactions were filed by the respective Respondents in all three cases.
Counsel for Petitioner objected to Respondent’s withdrawing the subpoena in Index No. 532051/2022 because Attorney Tenenbaum had not yet issued a satisfaction of judgment, and she still wanted costs (see supra at 29). However, by now the satisfactions have been filed (see Index No. 532051/2022 Doc No. 58; Index No. 500128/2023 Doc No. 58; Index No. 535310/2022 Doc No. 60). The issue of costs still remains regardless of whether the information subpoenas were withdrawn or not.
“Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy (see Karger, Powers of the New York Court of Appeals § 71[a], at 426—429 [3d ed.])” (Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 172 [2002]). Since Respondents have acknowledged that the judgments were satisfied, there is no need to issue a protective order to Petitioner concerning the information subpoenas, and nothing would be accomplished by quashing the now-academic subpoenas. In each proceeding, Motion Seq. 4 is denied.
In each of the three special proceedings, Motion Seq. 5 sought in part to stay execution of the respective judgment pursuant to CPLR 2201 and to direct Respondent to file a satisfaction of judgment pursuant to CPLR 5020 (a) and 5021 (a) (2) (see Index No. 532051/2022 Doc No. 45; Index No. 500128/2023 Doc No. 45; Index No. 535310/2022 Doc No. 47). These requests too are academic as satisfactions of judgment were filed by Respondents. Those branches of Motion Seq. 5 seeking such relief are denied.
Remaining for disposition are those branches of Petitioner’s motions (Motion Seq. 5, brought on by order to show cause, in each special proceeding), for the imposition of “Costs pursuant to 22 NYCRR 130.1.1 [actually 130-1.1] for causing Petitioner to have to file this application” (id. at 1).
Said provision of the Rules of the Chief Administrator of the Courts provides in pertinent part as follows:
Section 130-1.1. Costs; sanctions
(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart. This Part shall not apply to town or village courts, to proceedings in a small claims part of any [*21]court, or to proceedings in the Family Court commenced under article 3, 7 or 8 of the Family Court Act.
(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor’s office, legal aid society or public defender’s office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.
(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
(d) An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.
(Rules of Chief Admr of Cts [22 NYCRR] § 130-1.1.)
Further relevant are the provisions of the following sections of 22 NYCRR Subpart Part 130-1:
Section 130-1.2. Order awarding costs or imposing sanctions
The court may award costs or impose sanctions or both only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate. An award of costs or the imposition of sanctions or both shall be entered as a judgment of the court. In no event shall the amount of sanctions imposed exceed $10,000 for any single occurrence of frivolous conduct.
Section 130-1.3. Payment of sanctions
Payments of sanctions by an attorney shall be deposited with the Lawyers’ Fund for Client Protection established pursuant to section 97-t of the State Finance Law. Payments of sanctions by a party who is not an attorney shall be deposited with the clerk of the court for transmittal to the Commissioner of Taxation and Finance. The court shall give notice to the Lawyers’ Fund of awards of sanctions payable to the fund by sending a copy of the order awarding sanctions, or by sending other appropriate notice, to the Lawyers’ Fund for Client Protection, 119 Washington Avenue, Albany, NY 12210.
(Id. §§ 130-1.2; 130-1.3.)
In reviewing appellate case law, this Court endeavored to locate precedent on the issue of whether § 130-1.1. costs should be imposed as a consequence of failing to issue satisfactions of judgment. In Solow v Bethlehem Steel Corp. (204 AD2d 227 [1st Dept 1994]), the Court held, “Nor do we find that an award of attorney’s fees was warranted by appellant’s refusal to issue an immediate Satisfaction of Judgment in exchange for uncertified checks. Indeed, the acceptance by an attorney of uncertified checks would, under the circumstances of this case, have been most surprising, particularly in light of respondent’s failure to offer any explanation for its failure to have the checks certified.” Unlike in Solow, where the judgment creditor delayed filing a satisfactory judgment until the judgment debtor’s uncertified checks had cleared, here Respondents’ counsel never issued partial satisfactions of judgment after the checks cleared and, complete satisfactions of judgment were not issued until after the second court hearing was held eight months after the last payment. Thus, in the absence of guidance from appellate authority directly on point with respect to § 130-1.1 costs, this Court must determine whether, the failure of Respondents’ counsel to issue partial satisfactions of judgment constituted frivolous conduct, within the meaning of § 130-1.1.
In doing so, this Court notes that issuing a partial satisfaction of judgment is not discretionary. As CPLR 5020 (a) provides: “When a person entitled to enforce a judgment receives satisfaction or partial satisfaction of the judgment, he shall execute and file with the proper clerk pursuant to subdivision (a) of section 5021, a satisfaction-piece or partial satisfaction-piece acknowledged in the form required to entitle a deed to be recorded, which shall set forth the book and page where the judgment is docketed. A copy of the satisfaction-piece or partial satisfaction-piece filed with the clerk shall be mailed to the judgment debtor by the person entitled to enforce the judgment within ten days after the date of filing.” “Since it is undisputed that the bank has successfully collected an amount of money toward the judgment, the appellants are entitled to a partial satisfaction-piece in that amount (see generally, 5 Weinstein-Korn- Miller, NY Civ Prac ¶¶ 5020.01, 5020.03, 5020.05, 5021.05; Matter of Quiggle v Quiggle, 144 AD2d 1011; Conticommodity Servs. v Haltmier, 67 AD2d 480, 482)” (National Bank of NY City v ESI Group, 201 AD2d 469, 471 [2d Dept 1994]).
“A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1(c) has the burden of demonstrating that the conduct of the opposing party was frivolous within the meaning of the rule (Matter of Miller v Miller, 96 AD3d 943, 944; see Brin v Shady, 179 AD3d 760, 763; Matter of Lebron v Lebron, 101 AD3d 1009, 1010-1011)” (Matter of Edwin C. v Fenny C., — AD3d —, 2024 NY Slip Op 02700 [2d Dept 2024] [internal quotation marks omitted]).
It is within the court’s discretion to award attorney’s fees to a party who has partially complied with a stipulation and has had to defend against a motion by the other party, who failed to comply with its obligations (see Colon v Crespo, 223 AD3d 645, 648 [2d Dept 2024]). Similarly here, Petitioner partially complied with payment of the judgment — near totally complied — yet Respondents failed to file partial satisfactions of judgment.
“Making claims of colorable merit can constitute frivolous conduct within the meaning of 22 NYCRR 130-1.1 if undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another (Stow v Stow, [262 AD2d] at 551, quoting 22 NYCRR 130-1.1 [c] [2]; see also Matter of Gordon v Marrone, [202 AD2d 104]; Tyree Bros. Envtl. Servs. v Ferguson Propeller, [247 AD2d 376])” (Ofman v Campos, 12 AD3d 581, 582 [2d Dept [*22]2004] [internal quotation marks omitted]). Even assuming that a party’s claim possesses prima facie merit, where its litigation tactics are designed primarily to harass, sanctions are appropriate (see Ferraro v Gordon, 1 AD3d 595, 598 [2d Dept 2003]).
In contention here is whether the conduct of Attorneys Roman Kravchenko and Jason Tenenbaum, in issuing the information subpoenas, making the contempt motions, and refusing to issue partial satisfactions of judgment — resulting in Petitioner’s making motions to deal with the situation and sending letters protesting Kravchenko’s and Tenenbaum’s actions — constituted frivolous conduct.
Determining this issue rests upon an underlying dispute of how much interest was owed in each proceeding on the respective judgment. At times, calculating interest can be a vexatious conundrum, due to complex mathematical complications. Already, it has been indicated above that conflicting amounts were arrived at for each judgment. This is due to partial payments being made on different dates by Petitioner (within close proximity to each other), as necessitated by the No-Fault Insurance Regulations, which themselves require that insurers separately identify interest [FN9] and attorney’s fees and segregate attorney’s fees.[FN10] Moreover, for interest purposes, said Regulations define a month — overdue claims bearing interest at two percent per month — as comprising 30 days (see 11 NYCRR 65-3.9 [a]), regardless of how many days actually comprise a particular month. Additionally, the parties possessed different views as to whether post-judgment interest accrued at the CPLR 5004 rate of nine percent per annum or Insurance Law § 5106 (a)’s “two percent per month.” While Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co. (197 AD3d 144 [2d Dept 2021]) held that post-judgment interest on court judgments accrued at two percent per month in No-Fault insurance actions, it did involve a claim interposed when the No-Fault Insurance Regulations provided that interest compounded monthly, a provision subsequently modified by the Department of Insurance to provide for straight interest.
In any event, regardless of the different results from undertaking the interest calculations, ultimately Petitioner did not owe that much money in interest. What is questionable are the aggressive tactics Respondents’ attorneys utilized in their efforts to secure every last penny in interest from Petitioner.
In assessing whether the attorneys’ conduct was frivolous, this Court views it necessary to once more attempt a calculation of the amounts of interest due in each special proceeding. In engaging in this effort, the Court recognizes the following case law. “[P]ostjudgment interest under CPLR 5003 is computed on the total amount of the judgment, which includes the prejudgment interest (see generally David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5003)” (Mahoney v Brockbank, 142 AD3d 200 [2d Dept 2016]). [*23]“Logic dictates where interest is allowed from and after the date of entry of a money judgment (CPLR 5003) said judgment will not be satisfied until interest had been collected from date of entry to date of final payment” (Matter of Beneficial Discount Co. of NY v Spike, 91 Misc 2d 733, 735-736 [Sup Ct, Yates County 1977]). “The court properly determined that plaintiff is entitled to post-judgment interest on the outstanding portion of the money judgment from the time of entry of the judgment until full satisfaction (see CPLR 5003, 5519 [a] [2]; Wiederhorn v Merkin, 106 AD3d 416, 416-417 [1st Dept 2013], lv denied 21 NY3d 864 [2013]; HGCD Retail Servs., LLC v 44-45 Broadway Realty Co., 12 Misc 3d 1166[A], 2006 NY Slip Op 51082[U] [Sup Ct, NY County 2006])” Coffey v CRP/Extell Parcel I, L.P., 122 AD3d 504, 504-505 [1st Dept 2014]). “Interest due and owing shall be computed at the statutory rate . . . on the declining balance due, calculated from and after each periodic payment when received by the respondent Sheriff” (Matter of Beneficial Discount Co. of NY, 91 Misc 2d at 736).
In other words, while post-judgment interest includes a component of interest upon interest (the pre-judgment part), after entry of judgment, post-judgment interest must be calculated only on the judgment amount, and where there are partial payments made, there must be a recalculation as to the declining balance of principal and remaining interest due. A judgment is not completely satisfied until the judgment is paid in full and the interest amount due is also paid. Moreover, as partial payment of a judgment is made, a partial satisfaction-piece is required to be filed by the judgment creditor (see CPLR 5020 [a]).
On January 17, 2024, when this Court performed calculations of the amounts owed on the judgments when final payment was made by Petitioner, it did not take into account that No-Fault insurance interest of two percent per month should be applied only on the balance of the principal, which would comport with the text of Insurance Law § 5106: “Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained. If proof is not supplied as to the entire claim, the amount which is supported by proof is overdue if not paid within thirty days after such proof is supplied. All overdue payments shall bear interest at the rate of two percent per month.” This Insurance Law provision of two percent per month does not apply to anything other than the principal balance of first party benefits, i.e., the health service benefits which were overdue. The remainder of each judgment amount which was comprised of accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements should have accrued post-judgment interest at the CPLR 5004 rate of nine percent per annum. Therefore, in decreeing that interest on the respective total judgments accrued at the rate of two percent per month (see Index No. 532051/2022 Doc No. 19 at 2; Index No. 500128/2023 Doc No. 18 at 2; Index No. 535310/2022 Doc No. 20 at 2), the County Clerk erred. In each proceeding, the County Clerk should have decreed a separate percentage of two-percent-per-month post-judgment interest applicable to the principal balance of first party benefits, and nine percent per annum to the remainder.
The Court now rectifies this error and makes the following recalculations.
Index No. 532051/2022Judgment date 7/18/23 — $7,610.39, comprised of $3,628.80 in first party benefits and $3,981.59 in accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements.
30-day monthly post-judgment interest on $3,628.80 in first party benefits @ 2% per month = $72.58.
Daily interest ($72.58 / 30) = $2.42
365-day yearly post-judgment interest on $3,981.59 in accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements @ 9% per annum = $358.34.
Daily interest ($358.34 / 365) = $0.98
Total daily interest = $3.40
8/30/23 — Petitioner paid $613.85 (principal only, no interest); remaining balance due of principal $6,996.54.
8/31/23 — Petitioner paid $7,129.22 ($6,996.54 allocated to principal, which is now completely paid, leaving difference of $132.68 allocated to interest); due accrued interest of $149.60 (44 days x $3.40); $149.60 minus $132.68 paid toward interest = $16.92 owed in interest.
Index No. 500128/2023
Judgment date 7/18/23 — $6,595.52, comprised of $3,452.31 in first party benefits and $3,143.21 in accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements.
30-day monthly post-judgment interest on $3,452.31 in first party benefits @ 2% per month = $69.05.
Daily interest ($69.05 / 30) = $2.30
365-day yearly post-judgment interest on $3,143.21 in accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements @ 9% per annum = $282.89.
Daily interest ($282.89 / 365) = $0.78
Total daily interest = $3.08
8/21/23 — Petitioner paid $646.35 (principal only, no interest); remaining balance due of principal $5,949.17.
8/31/23 — Petitioner paid $6,071.87 ($5,949.17 allocated to principal, which is now completely paid, leaving difference of $122.70 allocated to interest); due accrued interest of $135.52 (44 days x $3.08); $135.52 minus $122.70 paid toward interest = $12.82 owed in interest.
Index No. 535310/2022
Judgment date 7/31/23 — $8,945.13, comprised of $4,716.48 in first party benefits and $4,228.65 in accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements.
30-day monthly post-judgment interest on $4,716.48 in first party benefits @ 2% per month = $94.33.
Daily interest ($94.33 / 30) = $3.14
365-day yearly post-judgment interest on $4,228.65 in accrued pre-judgment interest, attorney’s fees, the arbitration filing fee, court costs, and disbursements @ 9% per annum = $380.58.
Daily interest ($380.58 / 365) = $1.04
Total daily interest = $4.18
7/14/23 — Petitioner paid $130.00 (principal only, no interest); remaining balance due of principal $8,815.13.
7/21/23 — Petitioner paid $8,304.93 (principal only, no interest); remaining balance due of principal $510.20.
9/28/23 — Petitioner paid $516.35 (510.20 allocated to principal, which is now completely paid, leaving difference of $6.15, allocated to interest); due accrued interest of $246.62 (59 days x $4.18); $246.62 minus $6.15 paid toward interest = $240.47 owed in interest.
Taking into account the differing calculations of how much interest remained due after [*24]Petitioner’s last payment toward each bill — between Roman Kravchenko’s amounts set forth in his affirmations, this Court’s January 17, 2024 calculations, Jason Tenenbaum’s estimated amounts at the May 20, 2024 hearing, and this Court’s present calculations — the fact remains that a small amount was due with respect to each judgment. The most that would be owed as of the date of Petitioner’s last payment would be $240.47 per this Court’s present calculation for Index No. 535310/2022. The least that would be due as of the date of Petitioner’s last payment would be $12.82 per this Court’s present calculation for Index No. 500128/2023. In any event, on May 20, 2022, Attorney Tenenbaum estimated the amounts due as “probably about $10 or $15” or “Ballpark figure, between $10 and $20, most likely.” Per Attorney Kravchenko’s affirmations in the three cases, the amounts were $176.81 (see Index No. 532051/2022 Doc No. 43 ¶ 10); $65.60 (see Index No. 500128/2023 Doc No. 44 ¶ 14); and $13.92 (see Index No. 535310/2022 Doc No. 46 ¶ 11).
At the time the information subpoenas were issued by Attorneys Kravchenko and Tenenbaum on August 3, 2023, the judgment amounts due were $7,610.39; $6,595.52; and $8,945.13 respectively. Petitioner made its earliest payment, of $130.00 (toward Index No. 535310/2022’s judgment), even before the information subpoenas were issued. The next payments were made by Petitioner on July 21, 2023 in the same case. Payments of the judgment principal amounts themselves were complete by August 31, 2023 in Index Nos. 532051/2022 and 500128/2023; and the judgment principal in Index No. 535310/2022 was completely paid by September 28, 2023. Therefore all that remained were interest amounts, concerning which there were disputes over the exact amounts due. Yet Respondents, acting through Attorneys Kravchenko and Tenenbaum filed the contempt motions on September 8, 2023, when the principal amounts were paid off in two cases, the remaining one’s principal amount being paid off on September 28, 2023.
After Petitioner’s counsel wrote to Respondents’ counsel in September 2023 and November 2023, claiming that the judgments were paid and asking the latter to withdraw the information subpoenas, withdraw the contempt motions, and issue satisfactions of judgment or, at least, partial satisfactions of judgment, Respondents’ counsel refused to do so, even though Petitioner’s counsel stated that their actions prejudiced Petitioner and the Court should not be burdened with unnecessary motion practice.
Going into the January 17, 2024 oral argument, Attorneys Kravchenko and Tenenbaum insisted on maintaining the contempt motions despite the only issue being how much exactly was due in interest in these three special proceedings. And despite the discussion at the hearing — attended by Attorney Kravchenko — of the issue of the partial satisfactions of judgment, Respondents’ counsel did not file partial satisfaction-pieces as called for by the CPLR in the days, weeks, and months thereafter.
It was not until early May 2024 that Attorneys Kravchenko and Tenenbaum sought to withdraw their contempt motions, faced with an impending hearing on May 20, 2024. And even then, as of the morning of May 20, 2024, no satisfaction of judgment — be it partial or complete — had been filed by Attorneys Kravchenko and Tenenbaum, despite the entire principal amount of each judgment having been paid by late summer or early fall of 2023.
What was the motivation behind the conduct of Attorneys Kravchenko and Tenenbaum in maintaining contempt motions to enforce relatively small amounts, refusing to state with specificity how much interest remained due — minute amounts in two of the cases — and refusing to file at least partial satisfactions of judgment? The answer lies in the November 28, 2023 [*25]11:44 a.m. and 12:41 p.m. email correspondence from Jason Tenenbaum to William Larkin of the Larkin Farrell law firm. At 11:44 a.m., he wrote:
We are unable to oblige.
When someone at ATIC [American Transit Insurance Company] wants to have a serious discussion about resolving my cases, we will gladly have a discussion that involves post-judgment enforcement, interest reductions, attorney fee stipulations and waiver of my Article 52 remedies.
Until then, we will keep your staff busy for the holidays and for the better part of next year.
I have settled all my Merani cases without this litigation. Perhaps someone should find out how that happened.
Best,
Jason
(Index No. 532051/2022 Doc No. 40; Index No. 500128/2023 Doc No. 41; Index No. 535310/2022 Doc No. 43.)
At 12:41 p.m., he wrote:
Provide me with proof of full payment with 2% post-judgment interest on the entered judgment within 14-days of ATIC’s receipt of the information subpoena. If you do that instead of copying and pasting demands, we will then be ethically obliged to give you the full satisfaction you want.
You never make this calculation in any of your papers.
Absent that, we do not think the relief you are seeking — a full satisfaction — is appropriate to these facts. It is not emotion — it is holding your client to the letter of the law.
We are unsure how making ATIC pay every cent they owe and a reasonable attorney fee is crossing the line. Better minds than us may disagree.
Thank you.
We will not respond to any further emails on this subject.
(Id.)
Notably, Attorney Tenenbaum never offered to file a partial satisfaction of judgment, nor did he inform Petitioner’s counsel of the amount of interest he claimed was still due and owing, even though he insisted on the last cent. But the 11:44 a.m. email evidences that Attorney Tenenbaum intended to keep Petitioner’s counsel’s staff busy during the holiday season and beyond because Petitioner refused to settle his other cases. In other words, Attorney Tenenbaum wielded the information subpoenas, contempt motions, and failures to file partial satisfactions of judgment as a litigation cudgel in some cases to achieve successful results in other cases, i.e., to obtain a tactical advantage in representing clients in other legal disputes with Petitioner. In so doing, he intentionally caused Petitioner to incur further legal fees, and sought to increase his legal fees pursuant to the No-Fault Insurance Regulations provisions regarding legal fees in post-arbitration litigation (see 11 NYCRR 65-4.10 [j] [4]). He caused public records to reflect that nothing was paid toward any of the judgments in these special proceedings, potentially affecting Petitioner’s financial status in the insurance industry.
Perhaps there is bad blood between Attorney Tenenbaum and Petitioner dating back to when he parted company as an attorney for them or due to Petitioner’s efforts to have him disqualified from now representing medial providers against them in litigation over No-Fault [*26]insurance disputes. But if anything is clear it is that Attorney Tenenbaum’s phrase, “We are unable to oblige,” meant that he refused to issue ANY satisfactions of judgment even as to partial amounts paid, despite CPLR 5020 (a)’s mandate that partial ones be filed. No one associated with Respondents can claim lack of knowledge of the partial payments. All checks in the three cases were deposited (see Index No. 532051/2022 Doc No. 30); Index No. 500128/2023 Doc No. 31); Index No. 535310/2022 Doc No. 32); Roman Kravchenko endorsed checks paid toward the judgments in Index Nos. 532051/2022 and 500128/2023 (see id.); and the payments were acknowledged in Roman Kravchenko’s December 9, 2023 amended affirmations in support of the contempt motions and in opposition to Petitioner’s motions for protective orders and to quash the information subpoenas (see Index No. 532051/2022 Doc No. 43 ¶ 9); Index No. 500128/2023 Doc No. 44 ¶ 14); Index No. 535310/2022 Doc No. 46 ¶¶ 5, 10).
As this Court was reminded many years ago by the Court of Appeals, “the law will not bother with trifles” (Matter of Staber v Fidler, 65 NY2d 529, 534 [1985]). The doctrine is known in Latin as “de minimis non curat lex,” described as a “familiar maxim” (Lounsbery v Snyder, 31 NY 514 [1865]). “Under the de minimis doctrine, ‘the law does not concern itself with trifles,’ 1 Am.Jur.2d Actions § 58 (1994); ‘the law does not care for, or take notice of, very small or trifling matters,’ Black’s Law Dictionary (6th ed. 1979)” (People v Gonzalez, 163 Misc 2d 950, 959 n 8 [Sup Ct, Bronx County 1995]). “[A] strictness of construction beyond that necessary for the effectuation of those policies can also lead to injustice” (Matter of Staber, 65 NY2d at 534). As applied to the present situation, it means that with trifling amounts of interest due, in comparison to the original judgment amounts, the utilization of information subpoenas and contempt motions was overkill and totally unnecessary. All Attorneys Kravchenko and Tenenbaum had to do was file partial satisfactions of judgment and contact Petitioner’s counsel and explain how they arrived at their calculations of small amounts of overdue interest. There is no question but that Petitioner would have paid the miniscule interest amounts due just to end the matters completely, avoid further motion practice, and compel Attorneys Kravchenko and Tenenbaum to file complete satisfactions of judgment. This was not the route Attorneys Kravchenko and Tenenbaum took. Thus, Petitioner had to file another motion in each case (Motion Seq. 5) to enlist the Court’s aid in procuring either a partial satisfaction or a complete one.
On January 17, 2024 and May 20, 2024, various reasons were proffered by Respondents’ counsel for not issuing partial satisfactions of judgment. On January 17, 2024, Attorney Kravchenko offered the following explanations:
• “American Transit at the very least isn’t due a partial satisfaction of judgment for the amounts that they paid but they still owe the $84.”
• “We don’t agree that we have done anything that should be sanctionable.”
• “Because of the ongoing disagreement as to how the percentage is applied.”
• Confusion when multiple checks are issued, as was the situation here. However, if full payment were made, then he would withdraw the subpoena or contempt motion and file a satisfaction.
• One is entitled to a partial satisfaction.
• “Difficulties of practice. Not intentional but it is difficult to — “
• Petitioner did not seek a partial satisfaction anywhere except in motion papers (not true).
• “[W]e our strategy in getting American Transit to pay what it does owe is meritorious, [*27]lawful and reasonable.”
(Supra at 25-26.)
On May 20, 204, Attorney Tenenbaum offered the following explanations:
• “To the extent that a partial satisfaction was not issued, that was an oversight, Judge. But we clearly, upon receipt of the papers, agreed with the contention that payment was received, Judge.”
• “Well, Judge, that issue was not raised to me,” . . . “We have issued scores of satisfaction for American Transit cases which we are handling. So this would be an outlier, Judge. But the majority of them — almost all of the payments have been made at this juncture, satisfactions have been made. And like I said, we would do it by the end of business today, Judge.”
• “Judge, again, what I’m indicating to you is that it will be issued today. And we were here on a whole litany of issues, also, Judge.”
• “All I can indicate, Judge, is we’ll file it by the end of business today. And there’s been no objection to that. That’s my final word.”
• “I don’t believe that anything that our firm did lacked merit or was frivolous. The issue we’re having here was the lack of filing a partial satisfaction. But in terms of the application before this Court, nothing we did was frivolous. And, again, we did the math and came to a total in our papers.”
(Supra at 29-32.)
This Court finds the justifications offered by Attorneys Kravchenko and Tenenbaum to be insufficient and unsatisfactory. CPLR 5020 (a) mandates the filing of a partial satisfaction-piece by a judgment creditor when partial payment toward a judgment is made. There is no condition precedent to filing same that the judgment debtor has to request it. Despite Petitioner’s counsel’s correspondence, Attorney Kravchenko’s acknowledgments of partial payment in his own motion papers, additional motion practice by Petitioner’s counsel to compel the filings, and the Court’s January 17, 2024 observations concerning the partial satisfactions of judgment, the necessary satisfactions were not filed. In Index No. 532051/2022 and 500128/2023, partial satisfactions of judgment should have been issued on September 6, 2023 (Index No. 532051/2022) and August 31, 2023 (Index No. 500128/2023), when the first checks from Petitioner cleared.[FN11] Partial satisfactions of judgment should have been issued in Index No. 535310/2022 a few days after receipt of checks dated July 14, 2023; July 21, 2023; and September 28, 2023 (clearance dates unknown). (See Index No. 532051/2022 Doc No. 30; Index No. 500128/2023 Doc No. 31; Index No. 535310/2022 Doc No. 32.) Attorneys Kravchenko’s and Tenenbaum’s excuses lacked “colorable merit” (Ofman, 12 AD3d at 582). Even if they did possess a right to collect ever last penny in interest the way they went about it was sanctionable (see Ferraro, 1 AD3d at 598).
This Court finds that the only logical explanation for this situation, in light of Attorney Tenenbaum’s email insistence that Petitioner settle his other cases and that counsel’s staff would be busy during the holiday season and beyond, is that the non-filing of partial satisfactions was a deliberate strategy to maliciously harass Petitioner, affect its financial reputation, prolong the [*28]resolution of the litigation, and compel it to pay additional legal fees to both its own counsel and to Respondents’ counsel.
Moreover, to persist in enforcing information subpoenas when the amounts of interest were negligible in light of the total amounts of the judgments is abusive. Simple discussions with opposing counsel could have achieved payment of what remained due and owing.
Petitioner’s counsel’s arguments on both January 17, 2024 and May 20, 2024 concerning Attorneys Kravchenko’s and Tenenbaum’s actions are found meritorious:
• The legal strategy of Respondents’ counsel was to compel Petitioner to go to court rather than resolve the matters without motion practice.
• It is burdensome for the Court to deal with motions over less-than-$100.00 or less-than-5% disputes.
• “I don’t think [the Court] is to hear $84 is owed on a $7,000 bill that nothing was done to really collect.”
• Partial satisfactions were due.
• “I can’t think anything more adversarial than to make someone spend legal fees, time and effort for $13. If a letter was sent to my client saying you owe $13 instead of an information subpoena, I think this would have taken a completely different route. In total we argued today over on Plaintiff saying he is owed about $300.”
• “Your Honor, we were still here on them. I had to still appear on them. You still had to be here and read them into the record. The whole morning was wasted on $300. It just behooves this kind of conduct for an attorney. Mr. Kravchenko not a rookie attorney, he has been doing this for a long time. I would think his experience level would be able to find a way to collect this money without taking this route. Mysteriously this route has led to him collecting attorney fees. A letter. All collection work begins with a letter 30 days notice. I don’t see why this collection didn’t take that route at all.”
• “A satisfaction of judgment is not optional. It should have been given as soon as it was asked for in recognition of the money that was paid. The applicant — you didn’t see it in this case, but in other cases in the past has gone to the Marshall with this. And the fear that my client had that he would go to the Marshall, must be understood by this Court. There’s no reason why he could — he could give this Court why a satisfaction wasn’t given except to say that, you know, it just wasn’t in his legal strategy.”
• “It is unconscionable to receive money and not credit that money as paid and to give an indication to the other side how much you are owed before going to the Court.”
• “So I would like to raise the fact that this isn’t just a slight oversight, the fact that Counsel was given a letter requesting that he withdraw, given the copy of the checks in this case, was told that, you know, they had, in fact, been paid, and still today no judgment. We even asked that they file partial satisfaction of judgment for the amounts paid and those were, in fact, not even entered.”
• “I just want to, again, reiterate to the Court that on September 26th, 2023, well after these payments were issued, a letter was issued, again, to Mr. Tenenbaum and Mr. Kravchenko, requesting that they withdraw their contempt motion and that was not done. To this day, no satisfaction of judgment was done.”
• “Well, I would like to say, as in the prior two matters, once again, counsel — Mr. Tenenbaum was well aware that the checks had, in fact, been issued. He, in fact, negotiated those checks. He also received a letter asking him to withdraw his motion and [*29]he failed to do so. He also failed to file either a satisfaction of judgment in full or partial. You know, the definition of frivolous here is the intent to harass, and we believe that his filing of his motions with the information on the subpoenas was nothing more than to harass his prior client. And we’d like to bring that to the Court’s attention, especially since they have not filed a satisfaction of judgment through today’s date after being told by the Court back in January that that was, in fact, something they should do, and, in fact, that they should have filed them when they received a letter from Counsel without having Counsel pursue these motions.”
(Supra at 25-28, 30-33.)
The Court finds that Petitioner has borne its burden of demonstrating that the conduct of Attorneys Roman Kravchenko and Jason Tenenbaum in the three special proceedings at bar was frivolous within the meaning of 22 NYCRR 130-1.1 in that their refusal to issue partial satisfactions of judgment and file same with the County Clerk was undertaken primarily to delay or prolong the resolution of the litigation, and to harass or maliciously injure Petitioner — to intentionally yield extra attorney’s fees for themselves pursuant to the No-Fault Insurance Regulations, to cause Petitioner to incur additional attorney’s fees, to injure Petitioner’s financial reputation, to gain a tactical advantage over Petitioner in other disputes between their clients and Petitioner, to cause Petitioner’s counsel and its staff to perform unnecessary work, including unnecessary motion practice, and to subject the Court to having to determine unnecessary motions. Said conduct was completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law which includes, inter alia, that a partial satisfaction-piece must be issued and filed by a judgment creditor upon receipt of a partial payment toward a judgment.
The Court finds likewise with respect to the conduct of Attorneys Roman Kravchenko and Jason Tenenbaum in the three special proceedings at bar in terms of pursuing contempt motions at the January 17, 2024 return date when very small amounts of outstanding interest were due.
There is no question but that Respondents, as judgment creditors, were entitled to the exact amount of interest on their judgments to which they were entitled from Petitioner, as the judgment debtor in the three special proceedings herein. Nonetheless, as it has been held, a colorable claim does not excuse litigation tactics which are designed primarily to harass the other party:
Litigants who use our court system for improper purposes, such as for retribution and harassment, may be sanctioned under the rules designed to deter frivolous conduct. The Supreme Court dismissed the proceeding here, on the merits, although it determined that the petitioner had raised a “colorable” claim. The court imposed a sanction against the petitioner, finding that the litigation had been brought primarily for improper purposes. The issue on appeal, one of first impression, is whether the prosecution of a colorable claim for primarily improper purposes constitutes frivolous conduct sanctionable under the court’s rules. We hold that the imposition of a sanction by the court here was proper. (Matter of Gordon v Marrone, 202 AD2d 104, 105-106 [2d Dept 1994].)
Matter of Gordon involved a repeat Article 75 proceeding commenced by a landowner against an adjacent nature preserve and the local tax assessor to challenge the tax assessor’s granting of a real property tax-exempt status for the nature preserve’s property. The nature preserve had previously opposed the landowner’s proposal to subdivide his property when it came before the [*30]town planning board. Despite the landowner’s colorable standing to challenge the nature preserve’s tax-exempt status, it was held that the primary purpose of the landowner’s lawsuit was to harass and punish the nature preserve because of its opposition to his subdivision plan. (See Matter of Gordon, 202 AD2d at 110.) Likewise here, although Respondents were entitled to the exact amount of interest on their judgments, their attorneys misused the legal process to pursue that objective. As the Court in Matter of Gordon held, the two definitions of frivolous conduct stand in the alternative. A party seeking costs need not prove that conduct was both “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” and “it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another,” as set forth in 22 NYCRR 130-1.1 (c). Merely engaging in conduct “primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” suffices per 22 NYCRR 130-1.1 [c] [2]. (See Matter of Gordon, 202 AD2d at 110; accord Ofman, 12 AD3d at 582; Ferraro, 1 AD3d at 598.) Such conduct was engaged in by Respondents’ counsel, Attorneys Kravchenko and Tenenbaum.
Therefore, this Court awards attorney’s fees to Petitioner. The law firm representing Petitioner in No-Fault insurance litigation in the Supreme Court, Larkin Farrell LLC, charges $210.00 per hour (see supra at 26, 30, 33). A legal fee of $210.00 is found reasonable by this Court. The work here was not in the nature of challenging a No-Fault arbitration award, concerning which this Court has awarded less to attorneys representing health care providers opposing CPLR petitions to vacate (e.g. American Tr. Ins. Co. v Nexray Med. Imaging P.C., 81 Misc 3d 1210[A], 2023 NY Slip Op 51311[U] [Sup Ct, Kings County 2023]). Rather the work was of more significance, to wit, opposing efforts to maintain unnecessary information subpoenas and attempting continuously to procure satisfactions of judgment. The Court takes into account the time and labor required, the difficulty of the questions involved, the skill required to handle the problems presented, the lawyer’s experience and ability, and the results obtained. Petitioner’s experience and ability was ably demonstrated in how they patiently dealt with Respondents’ counsel’s vexatious conduct (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839 [2d Dept 2016]; Diaz v Audi of Am., Inc., 57 AD3d 828, 830 [2d Dept 2008]). While there was no evidence of Petitioner’s counsel reputation, the Court notes that the Larkin Farrell LLC firm has appeared before it on numerous occasions since this Court took office in January 2023. Although there was no evidence of the customary fee charged in the local community for similar legal services, the Court notes that it has not encountered such vexatious conduct as transpired here, such as pursuing information subpoenas and contempt motions for small overdue double-digit interest amounts rather than thousands or tens of thousands of dollars. Thus, lack of evidence of the customary fee charged for opposing a law firm pursuing trifling amounts does not preclude a finding that $210.00 is reasonable. It certainly is reasonable considering that Respondents’ counsel claims to charge $450.00 per hour (see NYSCEF Doc No. 18, Kravchenko aff ¶ 12, in American Tr. Ins. Co. v Nexray Med. Imaging P.C., Sup Ct, Kings County, Index No. 504585/2023).
In terms of the time consumed, Attorney Joseph P. Farrell, III stated on January 17, 2024 that three to four hours were spent dealing with Respondents’ conduct in attempting to collect interest on the judgment in Index No, 532051/2022 (see supra at 26); on May 20, 2024, he stated that it was six to eight hours (see supra at 31). As for Index Nos. 500128/2023 and 535310/2022, he stated on May 20, 2024 that six hours and five hours were respectively spent [*31](see supra at 32-33). Attorney Tenenbaum questioned how much time it should have taken for Petitioner’s attorneys, claiming that it should have been three hours (see supra at 31, 33).
This Court has extensively reviewed Petitioner’s papers on the three motions dealt with on May 20, 2024, Motion Seq. 3 in each case being withdrawn by Respondents. While there is duplication in a lot of the content, nonetheless Petitioner’s counsel did have to deal with different payments in each case and did have to prepare papers in nine motions — opposing Respondents’ contempt motions and in support of their own motions. The Court also takes into consideration the letters sent by Petitioner’s counsel to Respondents’ counsel in the attempt to avoid more motion practice and Respondents’ counsel issue at least partial satisfactions of judgment. There is also the email correspondence of November 28, 2023, wherein Attorney Tenenbaum conceded that
When someone at ATIC [American Transit Insurance Company] wants to have a serious discussion about resolving my cases, we will gladly have a discussion that involves post-judgment enforcement, interest reductions, attorney fee stipulations and waiver of my Article 52 remedies.
Until then, we will keep your staff busy for the holidays and for the better part of next year.
I have settled all my Merani cases without this litigation. Perhaps someone should find out how that happened.
(Supra at 13.)
This Court finds that Petitioner’s counsel spent more than five and a half hours on each of the three special proceedings in countering the vexatious conduct of Attorneys Kravchenko and Tenenbaum in pursuing excessive litigation despite Petitioner’s payment of the judgment principal and much of the accrued interest, with only small amounts of interest remaining due and owing, and in refusing to issue at least partial satisfactions of judgment. Said calculation encompasses the paperwork, correspondence with opposing counsel, working with the client, and filing documents. The Court adds one and a half hour to each special proceeding for the court appearances and travel time [FN12] on January 17, 2024 and May 20, 2024. The total for each proceeding is seven hours.
The product of $210.00 multiplied by seven hours is $1,470.00. The Court allocates this sum between Roman Kravchenko and Jason Tenenbaum at $735.00 apiece for each proceeding.
As for sanctions, this Court notes that the main gravamen of Petitioner’s complaint concerning Attorneys Kravchenko’s and Tenenbaum’s conduct was in abusing the litigation process to deprive Petitioner of at least partial satisfactions of judgment — that said attorneys engaged in overly aggressive debt collection tactics more suitable to large judgment interest amounts rather than miniscule amounts where the principal amounts were satisfied. Therefore, in fashioning the amount of sanctions to be imposed, the Court takes into account how much was owed in interest, at least from Attorney Tenenbaum’s perspective. On May 20, 2022, Attorney Tenenbaum estimated the amounts due as “probably about $10 or $15” or “Ballpark figure, between $10 and $20, most likely” (supra at 29, 33, 40).
The Court finds that a daily sanction is appropriate (see New York City Hous. Auth. v [*32]Marrero, 64 Misc 3d 1228[A], 2019 NY Slip Op 51337[U] [Civ Ct, Bronx County 2019] [$50.00 per day sanction when plaintiff failed to notify marshal of vacatur of warrant of eviction]). It will apply a $10.00 per day sanction, $10.00 being at the law end of Attorney Tenenbaum’s estimates as to how much interest was due and owing in each of the three special proceedings.
In Index No. 532051/2022, all checks (total $7,743.07) issued by Petitioner cleared on September 6, 2023 (see supra at 16). That is when Respondents’ attorneys should have first issued a partial satisfaction of judgment in the case. A satisfaction of judgment — a complete satisfaction — was issued and filed on May 20, 2024. Thus, it took 257 days before Respondents’ attorneys performed their legally required duty. In this case, Attorneys Kravchenko and Tenenbaum are sanctioned a total of $2,570.00, representing $10.00 daily multiplied by 257 days. The sanctions shall be apportioned among them at $1,285.00 apiece in this case.
In Index No. 500128/2023, Petitioner’s first check ($646.35) cleared on August 31, 2023 (see supra at 16). That is when the first partial satisfaction of judgment in the case should have been issued. The satisfaction of judgment — a complete satisfaction — was issued and filed on May 20, 2024. Thus, it took 263 days before Respondents’ attorneys performed their legally required duty. In this case, Attorneys Kravchenko and Tenenbaum are sanctioned a total of $2,630.00, representing $10.00 daily multiplied by 263 days. The sanctions shall be apportioned among them at $1,315.00 apiece in this case.
In Index No. 535310/2022, the earliest check, in the amount of $130.00, was dated July 14, 2023 (see supra at 17). While the clearance dates are unknown, Madanawelly Armogan, Petitioner’s employee, attested to their being mailed on the dates of issuance (see Index No. Index No. 535310/2022 Doc No. 31 ¶ 27). The first check in Index No. 500128/2023 ($646.35) took ten days after the date of issuance to clear. The Court will similarly apply a ten-day period for the first-issued check here, so the presumed date of clearance is determined to be July 24, 2023. The satisfaction of judgment — a complete satisfaction — was issued and filed on May 20, 2024. Thus, it took 301 days before Respondents’ attorneys performed their legally required duty. In this case, Attorneys Kravchenko and Tenenbaum are sanctioned a total of $3,010.00, representing $10.00 daily multiplied by 301 days. The sanctions shall be apportioned among them at $1,505.00 apiece in this case.
Accordingly, it is hereby ORDERED as follows:
American Transit Insurance Company v Dr. Jong Won Yom, DC, LAC, RPH, MS a/a/o Mann Joung Chon (Index No. 532051/2022)(1) Respondent Dr. Jong Won Yom, DC, LAC, RPH, MS’s motion for a contempt finding and the imposition of a fine against Petitioner for not responding to an information subpoena (Motion Seq. 3) is found to have been WITHDRAWN and rendered academic.
(2) Petitioner American Transit Insurance Company’s motion for a protective order and to quash an information subpoena (Motion Seq. 4) is DENIED as academic.
(3) Those branches of Petitioner American Transit Insurance Company’s motion brought on by order to show cause (Motion Seq. 5) which sought a stay of execution on the respective judgments pursuant to CPLR 2201 and to direct Respondent to file satisfactions of judgment pursuant to CPLR 5020 (a) and 5021 (a) (2) are DENIED as academic.
(4) That branch of Petitioner American Transit Insurance Company’s motion brought on by order to show cause (Motion Seq. 5) seeking costs pursuant to 22 NYCRR 130-1.1 is [*33]GRANTED to the extent of awarding Petitioner $735.00 as an attorney’s fee from Roman Kravchenko and $735.00 as an attorney’s fee from Jason Tenenbaum, and declaring that Roman Kravchenko and Jason Tenenbaum shall each separately pay a sanction of $1,285.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.
(5) Petitioner American Transit Insurance Company shall have judgment against Roman Kravchenko in the amount of $735.00 plus interest, costs, and disbursements as allowed by law.
(6) Petitioner American Transit Insurance Company shall have judgment against Jason Tenenbaum in the amount of $735.00, plus interest, costs, and disbursements as allowed by law.
(7) Roman Kravchenko shall pay $1,285.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.
(8) Jason Tenenbaum shall pay $1,285.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.
American Tr. Ins. Co. v Integrated Medicine of S.I., PC a/a/o Segundo Matute (Index No. 500128/2023)
(1) Respondent Integrated Medicine of S.I., PC’s motion for a contempt finding and the imposition of a fine against Petitioner for not responding to an information subpoena (Motion Seq. 3) is found to have been WITHDRAWN and rendered academic.
(2) Petitioner American Transit Insurance Company’s motion for a protective order and to quash an information subpoena (Motion Seq. 4) is DENIED as academic.
(3) Those branches of Petitioner American Transit Insurance Company’s motion brought on by order to show cause (Motion Seq. 5) which sought a stay of execution on the respective judgments pursuant to CPLR 2201 and to direct Respondent to file satisfactions of judgment pursuant to CPLR 5020 (a) and 5021 (a) (2) are DENIED as academic.
(4) That branch of Petitioner American Transit Insurance Company’s motion brought on by order to show cause (Motion Seq. 5) seeking costs pursuant to 22 NYCRR 130-1.1 is GRANTED to the extent of awarding Petitioner $735.00 as an attorney’s fee from Roman Kravchenko and $735.00 as an attorney’s fee from Jason Tenenbaum, and declaring that Roman Kravchenko and Jason Tenenbaum shall each separately pay a sanction of $1,285.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.
(5) Petitioner American Transit Insurance Company shall have judgment against Roman Kravchenko in the amount of $735.00 plus interest, costs, and disbursements as allowed by law.
(6) Petitioner American Transit Insurance Company shall have judgment against Jason Tenenbaum in the amount of $735.00, plus interest, costs, and disbursements as allowed by law.
(7) Roman Kravchenko shall pay $1,315.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.
(8) Jason Tenenbaum shall pay $1,315.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.
American Tr. Ins. Co. v YD Med. Services PC a/a/o Stuart Simpson Keralyn (Index No. 535310/2022)
(1) Respondent Integrated Medicine of S.I., PC’s motion for a contempt finding and the imposition of a fine against Petitioner for not responding to an information subpoena (Motion Seq. 3) is found to have been WITHDRAWN and rendered academic.
(2) Petitioner American Transit Insurance Company’s motion for a protective order and to quash an information subpoena (Motion Seq. 4) is DENIED as academic.
(3) Those branches of Petitioner American Transit Insurance Company’s motion brought [*34]on by order to show cause (Motion Seq. 5) which sought a stay of execution on the respective judgments pursuant to CPLR 2201 and to direct Respondent to file satisfactions of judgment pursuant to CPLR 5020 (a) and 5021 (a) (2) are DENIED as academic.
(4) That branch of Petitioner American Transit Insurance Company’s motion brought on by order to show cause (Motion Seq. 5) seeking costs pursuant to 22 NYCRR 130-1.1 is GRANTED to the extent of awarding Petitioner $735.00 as an attorney’s fee from Roman Kravchenko and $735.00 as an attorney’s fee from Jason Tenenbaum, and declaring that Roman Kravchenko and Jason Tenenbaum shall each separately pay a sanction of $1,505.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.
(5) Petitioner American Transit Insurance Company shall have judgment against Roman Kravchenko in the amount of $735.00 plus interest, costs, and disbursements as allowed by law.
(6) Petitioner American Transit Insurance Company shall have judgment against Jason Tenenbaum in the amount of $735.00, plus interest, costs, and disbursements as allowed by law.
(7) Roman Kravchenko shall pay $1,505.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.
(8) Jason Tenenbaum shall pay $1,505.00 to the Lawyers’ Fund for Client Protection, at 119 Washington Avenue, Albany, NY 12210.
Dated: June 12, 2024HON. AARON D. MASLOW
Justice of the Supreme Court of the State of New York
Footnotes
Footnote 1:Besides documents filed specifically in support of or in opposition to the motions determined, the Court has also considered certain other relevant documents contained within the electronic case folders for these special proceedings (see Khatibi v Weill, 8 AD3d 485 [2d Dept 2004]).
Footnote 2:For a further description of the No-Fault arbitration process and issues that arise therein see past decisions of this Court (e.g. Community Med. Imaging P.C. v American Tr. Ins. Co., 82 Misc 3d 1213[A], 2024 NY Slip Op 50301[U] [Sup Ct, Kings County 2024]); American Tr. Ins. Co. v PDA NY Chiropractic, P.C., 80 Misc 3d 1208[A], 2023 NY Slip Op 50938[U] [Sup Ct, Kings County 2023]); American Tr. Ins. Co. v U.S. Med. Supply Corp., 79 Misc 3d 1209[A], 2023 NY Slip Op 50560[U] [Sup Ct, Kings County 2023]; American Tr. Ins. Co. v Right Choice Supply, Inc., 78 Misc 3d 890 [Sup Ct, Kings County 2023]).
Footnote 3:While this Court is unable to ascertain an exact number of Article 75 special proceedings commenced by Petitioner in attempts to vacate the results of No-Fault insurance arbitrations successfully won by medical providers over the last few years in which Attorneys Kravchenko and Tenenbaum represented the respondent medical providers in opposing the petitions to vacate the arbitration determinations, there appear to have been several hundred of such special proceedings. This estimate is based on the Court’s own motion calendars which included such special proceedings as well as its observations of other Justices’ calendars.
Footnote 4:While the reference to 22 NYCRR 130-1.1 costs is specifically contained only within Petitioner’s Motion Seq. 5s, the Court deems it to refer to all activity engaged in by Respondents’ counsel to enforce the information subpoenas in these three cases and seek contempt orders against Petitioner, and to their non-issuance of any partial satisfactions of judgment. Petitioner’s motion papers in the Motion Seq. 5 series refer to Respondents’ enforcement efforts. For example, the November 28, 2023 email correspondence quoted herein referring to the contempt motions is included as an exhibit in each Motion Seq. 5. Petitioner’s attorney’s affirmation in each Motion Seq. 5 refers to Respondents’ enforcement of the information subpoena. Claims are harassment are detailed. (See generally Index No. 532051/2022 Doc Nos. 35-41, 49; Index No. 500128/2023 Doc Nos. 36-42, 49; Index No. 535310/2022 Doc Nos. 38-44, 51). Moreover, Petitioner’s Motion Seq. 4 series included a request for “other and further relief as this Court may deem just and proper” (Index No. 532051/2022 Doc No. 27; Index No. 500128/2023 Doc No. 28; Index No. 535310/2022 Doc No. 29). It is clear that Petitioner sought attorney’s fees and sanctions for the entire course of conduct of Attorneys Kravchenko and Tenenbaum in these proceedings by quoting the relevant provisions of 22 NYCRR 130-1.1 pertaining to same in the affirmations in support of Motion Seqs. 5 amidst the description of the conduct (see Index No. 532051/2022 Doc No. 37; Index No. 500128/2023 Doc No. 38; Index No. 535310/2022 Doc No. 40).
Footnote 5:Likewise, references to NYSCEF documents will be to the document numbers within the special proceedings referred to by index number.
Footnote 6:This quoted series of allegations is contained in William Larkin’s affirmations in Index Nos. 532051/2022 and 500128/2023. Mr. Larkin’s affirmation filed in Index No. 535310/2022 is nearly identical.
Footnote 7:The Court is mystified at this reference to Russell Friend Law Group, LLP.
In Index No. 500128/2023, the notice of cross-petition, Respondent’s earliest-filed document, lists only Roman Kravchenko as “Counsel for Respondent” (Index No. 500128/2022 Doc No. 13). In that case, nobody from The Russell Friedman Law Group, LLC or any similar name is listed as a contact for Respondent in NYSCEF; rather there is an April S. Mittleman listed in “Case Detail,” but not on court papers (see https://iapps.courts.state.ny.us/nyscef/CaseDetails?docketId=ZXMIpPzJLtSwd9DpsPMu6w== [last accessed May 27, 2024]), which puzzles the Court because Mr. Kravchenko’s affirmation refers to being of counsel to the Friend law firm.
Footnote 8:Court reporter’s spelling; name is “Tenenbaum.”
Footnote 9:“The insurer shall separately identify any interest payment on an overdue claim from benefit payments. This may be done by issuing separate drafts for each amount or by an accompanying statement that clearly and separately identifies the components of the draft.” (11 NYCRR 65-3.9 [e] [emphasis added].)
Footnote 10:“The insurer shall segregate any attorney’s fee on an overdue claim from the loss and interest payments, either through issuance of separate drafts or through an accompanying statement which clearly and separately identifies the components of the draft.” (11 NYCRR 65-3.10 [c] [emphasis added].)
Footnote 11:In fact, all checks, totaling $7,743.07, in Index No. 532051/2022 cleared on September 6, 2023.
Footnote 12:Travel time is compensable (see Rourke v New York State Dept. of Correctional Services, 245 AD2d 870 [3d Dept 1997]).
Reported in New York Official Reports at Akai Acupuncture, P.C. v Foremost Prop. & Cas. Ins. Co. (2024 NY Slip Op 50630(U))
[*1]| Akai Acupuncture, P.C. v Foremost Prop. & Cas. Ins. Co. |
| 2024 NY Slip Op 50630(U) |
| Decided on May 17, 2024 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 17, 2024
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-130 K C
against
Foremost Property and Casualty Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rothenberg & Romanek (Kenneth F. Popper of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), entered December 7, 2022. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint and implicitly denied plaintiff’s cross-motion for summary judgment.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits for services rendered to its assignor as a result of a motor vehicle accident that occurred on April 23, 2014, plaintiff appeals from so much of an order of the Civil Court (Rupert V. Barry, J.) as granted the branch of defendant’s motion seeking to dismiss the complaint and implicitly denied plaintiff’s cross-motion for summary judgment.
It is undisputed that the vehicle in question was insured by defendant under a Florida automobile insurance policy. According to an affidavit submitted by an employee of defendant, the policy had been cancelled, prior to the accident at issue, by letter sent to the insured on February 24, 2014, effective March 8, 2014, for nonpayment of the premium.
On appeal, neither party disputes that Florida law applies, which law requires that a notice of cancellation of a policy for nonpayment of an insurance premium be “mailed or delivered” to the insured 10 days prior to the effective cancellation date (see Fla Stat Ann § 627.728 [3] [a]). In 2014, Florida Statutes § 627.728 (5) provided as follows:
“United States postal proof of mailing or certified or registered mailing of notice of cancellation, of intention not to renew, or of reasons for cancellation, or of the intention of the insurer to issue a policy by an insurer under the same ownership or management, to the first-named insured at the address shown in the policy shall be sufficient proof of notice.”
For purposes of this statute, “United States postal proof of mailing . . . means a United States postal proof of mailing which conforms to the requirements of United States postal regulations” (Aries Ins. Co. v Cayre, 785 So 2d 656, 658 [Fla Dist Ct App, 3d Dist 2001]).
In support of its motion, defendant submitted a “Certificate of Mail List” which lists various mailings, including one to the insured; however, that list is not date-stamped or signed or otherwise marked in any way by the USPS. The only proof of mailing submitted by defendant that was certified by the USPS is a Certificate of Bulk Mailing, which shows that over 2,000 pieces of mail were sent on the day in question. Defendant failed to show that this form constituted “proof of mailing which conforms to the requirements of United States postal regulations” (Aries Ins. Co., 785 So 2d at 658). Indeed, according to the USPS website, a Certificate of Bulk Mailing “is used to specify only the number of identical-weight pieces mailed; it does not provide evidence that a piece was mailed to a particular address” (see Munger v Infinity Ins. Co., 2015 WL 5922185, *6, 2015 US Dist LEXIS 138294, *14-15 [MD Fla, Oct. 9, 2015, No. 8:14—cv—914—T—36JSS] [“a Certificate of Bulk Mailing for the Nonpay Notice . . . does not qualify as a United States postal proof of mailing, since it only acknowledges that a certain number of pieces of mail were included in a particular bulk mailing”]). Similarly, the affidavit submitted by defendant in support of its claim of having provided notice to its insured failed to demonstrate actual mailing or that defendant had mailed the cancellation notice in accordance with its standard office practices and procedures (see Aries Ins. Co., 785 So 2d at 660; see also St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, the Civil Court should have denied the branch of defendant’s motion which sought to dismiss the complaint on the ground that defendant had properly cancelled the policy and that there was, therefore, no coverage at the time of the accident at issue.
Plaintiff’s cross-motion for summary judgment was properly denied, as the affidavit plaintiff submitted in support of its cross-motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued denials that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint is denied.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: May 17, 2024
Reported in New York Official Reports at Community Med. Imaging P.C. v American Tr. Ins. Co. (2024 NY Slip Op 50301(U))
[*1]| Community Med. Imaging P.C. v American Tr. Ins. Co. |
| 2024 NY Slip Op 50301(U) |
| Decided on March 21, 2024 |
| Supreme Court, Kings County |
| Maslow, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 21, 2024
Community Medical Imaging P.C. a/a/o Derick Mantuano, Petitioner,
against American Transit Insurance Company, Respondent. |
Index No. 500379/2024
Ursulova Law Offices, P.C., Brooklyn, for Petitioner.
Aaron D. Maslow, J.
The following numbered papers were used on this petition:
Submitted by PetitionerPetition (NYSCEF Doc No. 1)
Notice of Petition (NYSCEF Doc No. 2)
Exhibit A — Petitioner’s Arbitration Submission (NYSCEF Doc No. 3)
Exhibit B — Respondent’s Arbitration Submission (NYSCEF Doc No. 4)
Exhibit C — Arbitration Award (NYSCEF Doc No. 5)
Exhibit D — Master Arbitration Award (NYSCEF Doc No. 6)
Affirmation of Naomi Cohen, Esq. in Support (“Cohn Aff”) (NYSCEF Doc No. 7)
Exhibit E — Proof of Mailing (NYSCEF Doc No. 8)
Request for Judicial Intervention (NYSCEF Doc No. 9)
Affidavit of Service (NYSCEF Doc No. 10)
Filed by Court
Interim Order (NYSCEF Doc No. 11)
Should a No-Fault insurance arbitration determination be vacated where the hearing arbitrator found that the respective bill was mailed past the 45-day deadline for submitting proof of claim based on the lack of an affidavit describing mailing procedures or confirming the actual mailing of the bill, and Petitioner’s sole evidence on the issue was a USPS certificate of mailing found to contain an illegible postmark?
Background
Petitioner Community Medical Imaging P.C. (“Petitioner”) commenced this CPLR Article 75 proceeding by notice of petition, seeking an order and judgment vacating a No-Fault insurance master arbitration award of Alana Barran, Esq. (dated October 24, 2023), which affirmed the arbitration award of Stacey Charkey, Esq. (dated July 25, 2023) denying Petitioner’s claim against Respondent American Transit Insurance Company (“Respondent”) for No-Fault insurance compensation in the amount of $1,728.98 for performing cervical and lumbar MRIs.[FN1] The services at issue were provided to Derick Mantuano, who claimed to have been injured in a motor vehicle accident on September 29, 2021. He assigned his No-Fault insurance benefits to [*2]Petitioner.[FN2] (See generally NYSCEF Doc No. 1, Petition.)
Respondent did not submit any papers in opposition. This special proceeding was scheduled on the Court’s March 21, 2024 calendar. On March 19, 2024, the Court issued an interim declaring that the special proceeding would be determined on the submissions pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), Section 6 (Personal Appearances) (“All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.).”
This Court has considered the petition on the papers submitted (see Buckley v Zoning Bd. of Appeals of City of Geneva, 189 AD3d 2080, 2081 [4th Dept 2020]; Matter of Dandomar Co., LLC v Town of Pleasant Val. Town Bd., 86 AD3d 83 [2d Dept 2011]; Matter of Javarone, 76 Misc 2d 20, 21 [County Ct, Fulton County 1973] [special proceeding may be summarily determined by the court solely on the pleadings and other papers submitted], affd 49 AD2d 788 [3d Dept 1975]). A court should review an Article 75 petition to vacate an arbitration award even in the absence of opposing papers (see American Tr. Ins. Co. v NextStep Healing, Inc., 79 Misc 3d 1203[A], 2023 NY Slip Op 50521[U] [Sup Ct, Kings County 2023]).
The underlying arbitration which is the subject of this proceeding was organized by the American Arbitration Association (“AAA”), which assigned Case No. 17-22-1246-9231 to it. When master arbitration was commenced, Case No. 99-22-1246-9231 was then assigned. The AAA has been designated by the New York State Department of Financial Services to coordinate the mandatory arbitration provisions of Insurance Law § 5106 (b):
Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party [“No-Fault insurance”] benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent.
Insurance Law Article 51 provides for the payment of basic economic loss incurred by persons injured in motor vehicle accidents. Included within basic economic loss are first-party benefits for medical and other professional health services.[FN3] First-party benefits are more [*3]commonly known as “No-Fault benefits”[FN4] or “personal injury protection (PIP) benefits”[FN5] .
In furtherance of the statutory scheme, a comprehensive set of No-Fault Regulations was promulgated by the Superintendent of Insurance (presently Superintendent of Financial Services). They are contained at 11 NYCRR Part 65. Said part is subdivided into five subparts which encompass the following topics: prescribed policy endorsements (11 NYCRR Subpart 65-1), rights and liabilities of self-insurers (11 NYCRR Subpart 65-2), claims for personal injury protection benefits (11 NYCRR Subpart 65-3), arbitration (11 NYCRR Subpart 65-4), and unauthorized providers of health services (11 NYCRR Subpart 65-5). Part 65 is also known as Insurance Regulation 68.
Generally, the claims process for health service bills [FN6] for No-Fault insurance compensation begins with the submission by a health service provider of a claim form (usually, but not always, a Form NF-3 verification of treatment by attending physician or other provider of health service).[FN7] Besides providing information regarding the injured person, the accident, the subject insurance policy, the billing health service provider, diagnoses, and projected treatment, the claim form includes a bill for services performed. The claim form can be submitted directly by the injured person to the No-Fault insurer but over many decades a practice developed whereby the health service providers submit the claim forms. As noted in footnote 1, supra at 2, they possess standing to do so by virtue of having received signed assignments of benefits from [*4]the injured persons.[FN8] ,[FN9] The insurer must then either pay or deny the bill within 30 days, or seek additional verification within 15 business days. If it denies payment, it must issue a Form NF-10 denial of claim [FN10] explaining why the bill was not paid. (See Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505 [2015].)
The record evidence submitted in this Article 75 proceeding revealed that the underlying arbitration involved one claim form covering services on December 13, 2021, as per the Form AR1 Arbitration Request Form (see NYSCEF Doc No. 3, Petitioner’s Arbitration Submission at 6 [FN11] ). The following chart provides pertinent information concerning the bill and how Respondent dealt with it:
|
Dates of Service |
Amount |
Respondent’s Actions |
|
12/13/21 |
$1,728.98 |
Denial of claim asserted untimely proof of claim (“45-day rule”); fees not in accordance with fee schedule (see NYSCEF Doc No. 4, Respondent’s Arbitration Submission at 7-9.). |
Hearing Arbitrator’s Award
The record evidence reveals further that on June 28, 2023, Arbitrator Stacey Charkey, Esq. (“hearing arbitrator”), conducted a hearing at which Nadezhda Ursulova., Esq., from Ursulova Law Offices P.C., appeared for Petitioner, and Jeffrey Siegel, Esq. appeared for Respondent (see NYSCEF Doc No. 5, Arbitration Award at numbered p 1).
The American Arbitration Association maintains an online platform for documents filed by parties to No-Fault insurance arbitrations. It is called Modria [FN12] . The submissions for the [*5]arbitration at issue are contained in NYSCEF Doc Nos. 3 and 4 submitted by Petitioner.
With respect to the defense of fees not being in accordance with fee schedule, apparently the defense was not pursued by Respondent during arbitration and the only issue was Respondent’s invocation of the 45-day rule. Addressing that issue, the hearing arbitrator wrote in her award that 11 NYCRR 65-1.1 (d) (Conditions) requires proof of claim of health service expenses shall be submitted to the insurer as soon as reasonably practicable but no later than 45 days after the date that services are rendered. She continued:
Based upon my review of the submitted documentation, I find that the applicant has failed to show actual mailing of a properly addressed bill sufficient to create a presumption of receipt of the bills by the respondent. No proof of mailing has been supplied.
There is no question but that where a claimant has failed to submit its claim within 45 days after the rendition of medical services, the claim must be denied. St. Vincent’s Hosp. & Medical Center v. County Wide Insurance Co., 24 AD3d 748, 809 N.Y.S.2d 88 (2d Dept. 2005). An insurer does not even have to show that it was prejudiced by the submission of an untimely claim. Bronx Expert Radiology, P.C. v. Great Northern Ins. Co., 24 Misc 3d 134(A), 2009 NY Slip Op. 51474(U), 2009 WL (App. Term 1st Dept. July 13, 2009).
The services were provided on 12/13/2021. The submitted bill is dated 1/13/2022. The bill was acknowledged to have been received by respondent on 2/22/2022. It is Applicant’s burden to demonstrate timely submission of its bills. Applicant submits a USPS Certificate to demonstrate mailing of the bill. Applicant does not submit an affidavit with respect to mailing procedures generally or the actual mailing of this bill from someone with personal knowledge. Inasmuch as the postage cancellation is illegible, (I can discern a “9” and year, “2022”, but no month or full day) it is impossible to determine when the bill was actual received by the Post Office. The postage meter only demonstrates when the postage was purchased (1/19/2022) -not when the item was received by the Post Office. Indeed, the item could have been mailed on 1/19/2022, 2/9/22, or even 2/19/2022.
Therefore, it is my finding of fact that the subject bills were mailed more than 45 days after the dates of service and Respondents denial of claim forms embodying the defense of the 45-day rule is sustained. Applicants claim for reimbursement is, therefore, denied in its entirety as being untimely submitted
Its claim having been denied by the hearing arbitrator, Petitioner filed for master [*6]arbitration to appeal. Master Arbitrator Alana Barran (“master arbitrator”) affirmed the hearing arbitrator’s award. After setting forth a summary of the law concerning master arbitration review, the master arbitrator addressed the points asserted on appeal:
Applicant/Appellant states in its brief that the Respondent/Appellee denied the claim based on the 45-day rule, that the bill was timely mailed on 1/19/2022 or less than 45 days after the date of service, that the NFA is factually and legally incorrect in finding that the proof of mailing was insufficient as “the postage meter stamp, dated 1/19/2022, shows the date this mail was received by the post office. This is not a Pitney Bowes postage stamp. It states on its face that it is a ‘United States Postal Service’ postage stamp. Therefore, January 19th the date that the envelop[e] was entered into the custody and control of the United States Postal Service. The lower arbitrator’s award is arbitrary, capricious, and incorrect as a matter of law. Accordingly, the decision of the lower arbitrator must be vacated…Community produced actual proof of mailing from the United States Postal Service. The carrier failed to submit a copy of the bill date-stamped when received…[The NFA] failed to review and weigh the evidence and failed to note that the postage stamp is marked United States Postal Service and reflects the date mailed.”
The Respondent/Appellee’s brief states that “In support of its contention that the claim was timely mailed, the plaintiff attached a bill and a self-generated facsimile of a USPS Form 3877 that lacks a legible USPS stamp…American Transit argued that it first received the claim on 02/22/22 and that the claim was properly denied on the grounds that the claim was submitted untimely…In her award dated 07/25/23, [the NFA] denied the claim finding the Applicant’s evidence to be insufficient…Here, the Applicant is either seeking a usurpation of [the NFA’s] conclusions regarding the credibility of the evidence or a de novo review of the evidence underlying this dispute…Accordingly, the award appealed from should be affirmed.”(NYSCEF Doc No. 6, Master Arbitration Award at numbered pp 2-3.)
Considering that her determination in this case implicated an issue of fact resolved by the hearing arbitrator, the master arbitrator then reasoned the following:
The arbitrator is free to choose between the experts’ testimony and evaluate the evidence. See Bilotta v. Chevrolet-Tonawanda Division GMC, 81 AD2nd 718 (3d Dept. 1981).
Additionally, the fact that a different conclusion could have been reasonably reached is not sufficient ground to set aside the determination. See Matter of Steinberg v DiNapoli, 93 AD3d 1068, 1069, 941 NYS2d 300 [2012]; Matter of Holmstrand v Board of Regents of Univ. of State of NY, 71 AD2d 725, 726, 419 NYS2d 223 [1979]); Matter of Cohn Chemung Props., Inc. v Town of Southport, 108 AD3d 928, 929 [3rd Dept. 2013]).
Again, 11 N.Y.C.R.R. § 65-4.5 (o) (1) provides, in part, as follows:
“(o) Evidence. (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. The arbitrator may question any witness or party and independently raise any issue that the arbitrator deems relevant to making an award that is consistent with the Insurance [*7]Law and department regulations”.(Id. at numbered p 3.)
The master arbitrator held that the hearing arbitrator provided a rational basis for her factual finding that Petitioner’s evidence was insufficient to establish timely submission of the bill. She concluded:
The NFA’s factual finding here related to the Applicant/Appellant’s proof of mailing of the claim is not disturbed. Upon a reading of the record, I am satisfied that there was sufficient evidence relied upon by the NFA and based on which the NFA rationally found in favor of Respondent/Appellee.
I find that the NFA’s determination definite and final, and that the NFA’s decision was not irrational, arbitrary, capricious or incorrect as a matter of law.(Id. at numbered p 4.)
Petition to Vacate & Petitioner’s Arguments
Although brief, the petition to vacate filed by Petitioner disputes the arbitration determination that it failed to submit proof of claim within the 45-day deadline. The master arbitrator’s award was asserted to be “arbitrary, capricious, irrational, and in violation of No-Fault law” (NYSCEF Doc No. 1, Petition ¶ 16.)
In further explication of its petition to vacate the arbitration determination, Petitioner submitted an attorney affirmation of Naomi Cohn, Esq. She argued that the hearing arbitrator’s analysis of the proffered USPS certificate of mailing was irrational and wrong. In particular, counsel took issue with the hearing arbitrator’s finding that the postmark date was not completely legible. While the hearing arbitrator could make out a 9 and the year 2022, she could not discern a month or complete date. Counsel argued that “The proof of mailing is not illegible. It clearly shows [in the attached Exhibit E (NYSCEF Doc No. 8)] that the bill was timely mailed on January 19, 2022” (NYSCEF Doc No. 7, Cohn Aff ¶ 8). Instead of finding the hearing arbitrator’s determination irrational in accordance with Matter of Petrofsky (Allstate Ins. Co.) (54 NY2d 207 [1981]), the master arbitrator “rubber-stamped” it (id. ¶¶ 9-10). Counsel cited to case law regarding the presumption of receipt of mail and mere denials of receipt being insufficient (see id. ¶¶ 11-12), and maintained that Petitioner’s evidence (the legible USPS certificate of mailing) “shows clearly that the bill was timely mailed on January 19, 2022” (id. ¶ 13). There being insufficient evidence from Respondent to rebut that from Petitioner on the mailing of the bill, “the award [was] incorrect as a matter of law” (id. ¶ 14).
No-Fault Insurance Arbitration
When the No-Fault Law was first enacted by the Legislature in Chapter 13 of the Laws of 1973 to take effect February 1, 1974, § 675 of the Insurance Law was added. In subdivision 2 thereof, insurers were required to provide claimants with an arbitration option for disputes involving liability for first-party benefits. This provision was amended in Chapter 892 of the [*8]Laws of 1977, when several changes were made to the 1973 version.[FN13] The provision regarding arbitration in § 675 was amended to add the following language:
An award by an arbitrator may be vacated or modified by a master arbitrator in accordance with simplified procedures to be promulgated or approved by the superintendent [of insurance]. The grounds for vacating or modifying an arbitrator’s decision by a master arbitrator shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules. The decision of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator’s award is five thousand dollars or greater, exclusive of interest and attorney’s fees, the insurer or the claimant may institute an action in a court of competent jurisdiction to adjudicate the dispute de novo.[FN14]
The provisions regarding No-Fault insurance arbitration remained in the recodification of the Insurance Law enacted in Chapters 367 and 805 of the Laws of 1984. The arbitration provisions were set forth in § 5106, and subdivisions (b) and (c) now read as follows:
(b) Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent. Such simplified procedures shall include an expedited eligibility hearing option, when required, to designate the insurer for first party benefits pursuant to subsection (d) of this section. The expedited eligibility hearing option shall be a forum for eligibility disputes only, and shall not include the submission of any particular bill, payment or claim for any specific benefit for adjudication, nor shall it consider any other defense to payment.
(c) An award by an arbitrator shall be binding except where vacated or modified by a [*9]master arbitrator in accordance with simplified procedures to be promulgated or approved by the superintendent. The grounds for vacating or modifying an arbitrator’s award by a master arbitrator shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules. The award of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator’s award is five thousand dollars or greater, exclusive of interest and attorney’s fees, the insurer or the claimant may institute a court action to adjudicate the dispute de novo.
Insofar as is here relevant, the No-Fault Insurance Regulations promulgated by the Superintendent of Insurance provided that a master arbitrator may vacate or modify a hearing arbitrator’s award where it “was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground)” (11 NYCRR 65.18 [a] [4]). This regulatory language was carried over into the revised Regulations promulgated in 2002, in 11 NYCRR 65-4.10 (a) (4).[FN15] A master arbitrator may also vacate or modify a hearing arbitrator’s award under certain other grounds also (see 11 NYCRR 65-4.10 [a]).[FN16]
Discussion
(A) Standard of Review
The proper standard of review by a No-Fault insurance master arbitrator is whether the hearing arbitrator’s determination was arbitrary and capricious, irrational, or without a plausible basis, or incorrect as a matter of law; the master arbitrator may not engage in an extensive factual review, which includes weighing the evidence, assessing the credibility of various medical reports, or making independent findings of fact (Matter of Petrofsky [Allstate Ins. Co.]), 54 NY2d 207 [1981]).
The standard for Article 75 court scrutiny of a master arbitrator’s review of a hearing arbitrator’s award in terms of whether there was an error of law is whether it was so irrational as to require vacatur (see Matter of Smith (Firemen’s Ins. Co.), 55 NY2d 224, 232 [1982]; Matter of Acuhealth Acupuncture, PC v Country-Wide Ins. Co., 170 AD3d 1168 [2d Dept 2019]; Matter of Acuhealth Acupuncture, P.C. v New York City Transit Authority, 167 AD3d 869 [2d Dept 2018]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]). The master arbitrator’s determination of the law need not be correct, and mere errors of law are insufficient to set aside the master arbitrator’s award; on questions of substantive law, the master arbitrator’s determination must be upheld if there is a rational basis for his determination; if the master arbitrator’s errors on a matter of law are irrational, his award may be set aside (see Matter of Liberty Mut. Ins. Co. v Spine Americare Med., P.C., 294 AD2d 574 [2d Dept 2002]).
Judicial review of a master arbitrator’s factual determination in an arbitration appeal is limited to whether the master arbitrator exceeded his or her power, for instance by impermissibly weighing the credibility of a witness, by reviewing the hearing arbitrator’s factual determination, or by reviewing medical reports de novo (see Matter of Allstate Ins. Co. v Keegan (201 AD2d 724 [2d Dept 1994].
It is important to again state that arbitration of No-Fault compensation claims is compulsory against insurers (see n 14, supra at 8). A health service provider who possesses standing via an assignment of benefits makes the election of whether to litigate its claim in court or in arbitration, which is binding upon the insurer (see Insurance Law § 5106 [b]). Such compulsory arbitration awards are held to higher level of scrutiny (see Matter of Motor Veh. Acc. Indemn. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Smith, 55 NY2d 224; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493 [1970]; Matter of GEICO Gen. Ins. Co. v Wesco Ins. Co., 211 AD3d 729 [2d Dept 2022]).
(B) 45-Day Rule Issue
As noted above, Petitioner’s petition to vacate the master arbitrations award is predicated on the assertion that in affirming the hearing arbitrator there was an irrational error in considering the evidence on the issue of mailing the bill. The Court finds that this implicated a credibility determination, i.e., the hearing arbitrator was called upon to make a factual finding as to whether Petitioner proved timely mailing of its bill to Respondent, the No-Fault insurer, and the master arbitrator had to review that credibility determination.
However, this was not an issue of law, despite counsel’s advocacy that the legal issue here is the alleged insufficient evidence from Respondent to rebut that from Petitioner on the mailing of the bill (see supra at 8). The case law cited by Petitioner concerns proving a mailing as an evidentiary matter in court. Among the cases that counsel cited for the proposition that Respondent’s mere denial of timely receipt was insufficient were Compas Med., P.C. v Farm Family Cas. Ins, Co. (38 Misc 3d 142[A], 2013 NY Slip Op 50254[U] [App Term, 2d, 11th & 13th Dists 2013]) and Top Choice Med., P.C. v GEICO Gen. Ins. Co. (33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d, 11th & 13th Dists 2011]). Counsel also cited to Appellate Division decisions regarding how a presumption of a proper mailing is created: New York & Presbyt. Hosp. v Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006]) and Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (25 NY3d 498 [2015][FN17] ). (See NYSCEF Doc No. 7, Cohn Aff ¶¶ 11-12.) None of these discussed evidence in arbitrations.
The rules of evidence do not apply in arbitration and especially in No-Fault insurance arbitration due to the regulation providing, “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” (11 NYCRR 65-4.5 [o] [1]), as cited to by the master arbitrator (see NYSCEF Doc No. 6, master arbitration award at numbered p 2).
This Court has previously discussed the issue of factual determinations in No-Fault arbitration. In the context of evidence submitted on an issue of medical necessity, this Court wrote:
In part, this Court’s present determination is based on the additional provision in 11 NYCRR 65-4.10 (a) (4) which provides that “procedural or factual errors committed in the arbitration below are not encompassed within this ground.” The reference to “factual errors” conveys impliedly that when it comes to assessing evidence for the purpose of fact-finding, an arbitrator has wider latitude and should not be required to comply with settled or established law concerning what specific evidence suffices to refute the opposing party’s evidence. This Court also takes into account the general proposition that the admissibility of evidence and the determination of issues of fact are left to the arbitrator’s discretion (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 483 [2006] [“Manifest disregard of the facts is not a permissible ground for vacatur of an award. . . .”]; Central Square Teachers Association v Board of Education of the Central Square Central School District, 52 NY2d 918, 919 [1981] [“The path of analysis, proof and persuasion by which the arbitrator reached this conclusion is beyond judicial scrutiny.”]; Matter of Lipson v Herman, 189 AD3d 440, 441 [1st Dept. 2020] [“error of [*10]fact . . . will not result in the vacatur of an arbitrator’s award”]; Matter of Bernstein v On-Line Software International, Inc., 232 AD2d 336, 338 [1st Dept. 1996] [“It is well established, however, that arbitrators are not bound by the rules of evidence and may admit or deny exhibits on an equitable basis.”]). In light of this case law with respect to the admissibility of evidence and the determination of issues of fact in arbitration, 11 NYCRR 65-4.10 (a) (4)’s “matter of law” should be limited in its breadth.
That “incorrect as a matter of law” (11 NYCRR 65-4.10 [a] [4]) refers to substantive issues — not evidentiary ones — is supported by case law. “If, however, the master arbitrator vacates the arbitrator’s award based upon an alleged error of a rule of substantive law, the determination of the master arbitrator must be upheld unless it is irrational [citations omitted]” (Golden Earth Chiropractic & Acupuncture, PLLC v. Global Liberty Ins. Co. of New York, 54 Misc 3d 31, 44 N.Y.S.3d 842 [App. Term, 2d Dept., 2d, 11th & 13th Dists. 2016] [emphasis added]).(American Tr. Ins. Co. v Right Choice Supply, Inc., 78 Misc 3d 890, 909-910 [Sup Ct, Kings County 2023].)
The issue of whether Petitioner mailed the bill to Respondent and, if so, when was a factual one. The hearing arbitrator was not bound to follow the case law regarding proving a mailing took place. Her finding was subject to master arbitration review only for whether it was arbitrary and capricious, irrational or without a plausible basis (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207). In fact, among the cases cited for her standard of review, the master arbitrator cited to Matter of Petrofsky (see NYSCEF Doc No. 6, master arbitration Award at numbered pp 1-2). Not only that, the master arbitrator cited to the following cases for the standard of review:
A party seeking vacatur bears a “heavy burden” [Scollar v Cece, 28 AD3d 317 (1st Dept. 2006]), and generally, the award under review must be upheld where the arbitrator ” ‘offer[s] even a barely colorable justification for the outcome reached’ (Matter of Andros Cia Maritima, S.A. [Marc Rich & Co., A.G.], 579 F.2d 691, 704 [2d Cir 1978]).” See Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479 [2006], cert dsmd 548 US 940 [2006]).
It is within the province of the lower arbitrator to determine what evidence to accept or reject and what inferences should be drawn based on the evidence. See Mott v State Farm, 55 NY2d 224. In Petrofsky v Allstate, 54 NY2d 207, the Court of Appeals held that a master’s powers of review do not encompass a de novo review of the matter presented to the lower arbitrator not do they authorize the master arbitrator to determine the weight or credibility of the evidence.
(See NYSCEF Doc No. 6, master arbitration award at numbered p 2.) Therefore, in conducting her review, the master arbitrator applied settled case law governing the No-Fault arbitration appellate process as well as that applying to other types of arbitration.
As for accepting the hearing arbitrator’s factual finding that Petitioner did not prove a timely mailing of the bill, the master arbitrator was correct that the finding was neither arbitrary and capricious, irrational or without a plausible basis. It was within the discretion of the hearing arbitrator to reject the proffered USPS certificate of mailing and to require an affidavit of [*11]mailing with respect to mailing procedures generally or concerning the mailing of the particular bill. If the hearing arbitrator was not certain of the date printed on the USPS certificate of mailing postmark or was of the opinion that evidence beyond a USPS certificate of mailing needed to be presented to firmly establish when a claim form was mailed, it was within her discretion to rule as such. It was not within the master arbitrator’s province to perform an independent de novo review of the evidence or assess the credibility of documents (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207).
As an Article 75 court, this Court finds that the master arbitrator correctly affirmed the factual findings as to the bill’s mailing. Whether and when a bill was mailed entails a factual determination, the hearing arbitrator assessed the facts in a manner in which she applied her discretion, and the master arbitrator conducted a proper appellate review. The master arbitration review was not irrational in reviewing the hearing arbitrator’s factual determination. To the extent that the master arbitrator relied on case law governing a factual review, her analysis was not erroneous as a matter of law (see Matter of Smith, 55 NY2d 224, 232; Matter of Acuhealth Acupuncture, PC, 170 AD3d 1168; Matter of Acuhealth Acupuncture, P.C., 167 AD3d 869; Matter of Acuhealth Acupuncture, P.C., 149 AD3d 828).
CPLR 7511 (b) provides:
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:
(i) corruption, fraud or misconduct in procuring the award; or
(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or
(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; or
(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.
This Court finds no corruption, fraud or misconduct in procuring the arbitration awards. Nothing submitted by Petitioner herein contains even a hint of arbitrator partiality. A final and definite award was made by each arbitrator. Finally, there is no showing of a failure to follow Article 75’s procedure.
“[U]pon the denial of a motion to vacate or modify, [the Court] shall confirm the award” (CPLR 7511 [e]).
Conclusion
The question posed at the outset of this decision, “Should a No-Fault insurance arbitration determination be vacated where the hearing arbitrator found that the respective bill was mailed past the 45-day deadline for submitting proof of claim based on the lack of an affidavit describing mailing procedures or confirming the actual mailing of the bill, and Petitioner’s sole evidence on the issue was a USPS certificate of mailing found to contain an [*12]illegible postmark?” is answered by this Court in the negative. In assessing evidence for the purpose of making a finding regarding a mailing, a No-Fault insurance arbitrator may insist on an affidavit relating general mailing procedures or confirming the specific mailing at issue where the proffered documentary evidence is found inconclusive or unpersuasive or there is a functional equivalent of no documentary evidence.[FN18]
Since none of CPLR 7511 (b)’s grounds for vacating an arbitration award were established, and the law governing the No-Fault insurance arbitration process was complied with, it is hereby ORDERED, ADJUDGED, and DECREED that (1) the within petition to vacate the master arbitration award of Alana Barran, Esq., dated October 24, 2023, in AAA Case No. 99-22-1246-9231, which affirmed the hearing arbitration award of Stacey Charkey, Esq., dated July 25, 2023, in AAA Case No. 17-22-1246-9231, is hereby DENIED, (2) this special proceeding is dismissed, and (3) said master arbitration award is CONFIRMED in its entirety.
E N T E RHON. AARON D. MASLOW
Justice of the Supreme Court of the State of New York
Footnote 1:The notice of petition seeks an order “1) vacating a master arbitrator’s award pursuant to CPLR 7511; and 2) vacating the lower arbitration award” (NYSCEF Doc No. 2, Notice of Petition), but it must be deemed to seek vacatur of just the master arbitration award inasmuch as the latter is the final determination of the arbitration process. The No-Fault Regulations provide that “court review pursuant to an article 75 proceeding” is from the “decision of a master arbitrator” (11 NYCRR 65-4.10 [h] [1] [i]; see also Insurance Law § 5106 [c]). In fact, a party may not appeal from a hearing arbitration award (see Matter of Staten Is. Hosp. v USAA, 103 AD2d 744 [2d Dept 1984]; Matter of Griffith v Home Indem. Co., 84 AD2d 332 [1st Dept 1982]; Matter of Lampasona v Prudential Prop. & Cas. Ins. Co., 111 Misc 2d 623 [Sup Ct, Kings County 1981]). “[T]he Legislature intended the provision of CPLR article 75 to apply only to the review of the awards of master arbitrators (see, Insurance Law § 5106[c])” (Matter of Custen v General Acc. Fire and Life Ins. Co., 126 AD2d 256 [2d Dept 1987]). It follows that if the hearing arbitrator’s award is imperfect, this can affect judicial review of a master arbitration award affirming it.
Footnote 2:Health service providers obtain standing to pursue No-Fault insurance compensation in arbitration by virtue of having received an assignment of benefits from the respective person claiming to have been injured in a covered motor vehicle accident; such person is often denoted as an “assignor.”
Footnote 3:This statutory scheme was developed by New York’s legislature in 1973, as part of a tradeoff whereby lawsuits for pain and suffering resulting from personal injuries in motor vehicle accidents were limited to instances of serious injury (see generally Insurance Law art 51; L 1973, ch 13, as amended L 1977, ch 892; John R. Dunne, New York’s No-Fault Automobile Insurance Law A Glimpse of the Past and a Glance at the Future, 50 NY St BJ 284 [June 1978]; J. Benedict, New York Adopts No-Fault: A Summary and Analysis, 37 Albany L Rev 662 [1973]).
Footnote 4:Although Insurance Law Article 51 does not mention the term “No-Fault,” shortly after the post-motor vehicle accident economic loss compensation system was enacted in 1973, the appellation “No-Fault” was adopted in common parlance to describe it.
Footnote 5:The term “personal injury protection benefits” is a creature of the No-Fault Regulations (see 11 NYCRR Subpart 65-3) and does not appear in the statute.
Footnote 6:This Court uses the term “health service bills” instead of “medical bills” because the No-Fault Law provides for reimbursement of “(i) medical, hospital . . . , surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical therapy . . . and occupational therapy and rehabilitation . . . and (iv) any other professional heath services” (Insurance Law § 5102 [b] [1]). Hence, the No-Fault insurance system encompasses not just “medical” services. In the instant case, the services at issue were chiropractic office visits and treatment.
Footnote 7:The prescribed claim forms are included within 11 NYCRR Part 65 (Regulation 68) Appendix 13. Besides Form NF-3 (verification of treatment by attending physician or other provider of health service), Appendix 13 contains Form NF-4 (verification of hospital treatment) and Form NF-5 (hospital facility form). Not every No-Fault insurance provider uses the prescribed forms; some utilize a HICF (Health Insurance Claim Form) or a UB-04 form more commonly used for inpatient and outpatient claims billed by hospitals, healthcare facilities, and surgical facilities.
Footnote 8:There is a prescribed assignment of benefits form (Form NF-AOB) in 11 NYCRR Part 65 (Regulation 68) Appendix 13.
Footnote 9:The process of submitting a No-Fault claim to the insurer is governed by 11 NYCRR Subpart 65-3, which contains §§ 65-3.1 et seq.
Footnote 10:Form NF-10 is also included within 11 NYCRR Part 65 (Regulation 68) Appendix 13.
Footnote 11:References to page numbers in NYSCEF filings lacking specified page numbers are to the PDF page numbers.
Footnote 12:This is the AAA’s electronic case management and filing platform maintained on the Internet; it is known as “Modria,” which was the name of the company which developed it for the AAA (see Liveblogging #ODR2014: The Developing Field of Online Dispute Resolution, https://civic.mit.edu/index.html%3Fp=1452.html [last accessed Mar. 19, 2023]; Welcome to the Modria Resolution Center for the American Arbitration Association, https://aaa-nynf.modria.com/ [last accessed Mar. 19, 2023]).
Footnote 13:Among the more substantial changes in the 1977 legislation were the adoption of fee schedules to limit health service expenses and modifying the threshold categories for suing for noneconomic loss, i.e., pain and suffering.
Footnote 14:Nothing in the Governor’s Bill Jacket for Chapter 13 of the Laws of 1977 or other contemporary records comments on the provision adopting master arbitration review of hearing arbitrators’ decisions, so it is not known why the master arbitration process was created (see Matter of Bamond v Nationwide Mut. Ins. Co., 75 AD2d 812, 813 [2d Dept 1980], affd 52 NY2d 957 [1981]). This Court speculates that at least one reason was that No-Fault arbitration was compulsory and the Legislature desired to permit a party to an arbitration to seek review of the hearing arbitrator’s award on the basis of an assertion of an error of law, which traditionally was not a basis for review in an Article 75 proceeding (see Mott v State Farm Ins. Co., 77 AD2d 488 [3d Dept 1980], revd sub nom. on other grounds Matter of Smith v Firemen’s Ins. Co., 55 NY2d 224 [1982]).
Footnote 15:Most non-No-Fault insurance arbitration awards cannot be vacated due to an error of law (see Matter of Sprinzen v Nomberg, 46 NY2d 623, 629-630 [1979]). No-Fault insurance arbitrations are different; an error of law can be the basis for reversal — by a master arbitrator.
Footnote 16:11 NYCRR 65-4.10 (a) provides as follows:
Grounds for review. An award by an arbitrator rendered pursuant to section 5106(b) of the Insurance Law and section 65-4.4 or 65-4.5 of this Subpart may be vacated or modified solely by appeal to a master arbitrator, and only upon one or more of the following grounds:
(1) any ground for vacating or modifying an award enumerated in article 75 of the Civil Practice Law and Rules (an article 75 proceeding), except the ground enumerated in CPLR subparagraph 7511(b)(1)(iv) (failure to follow article 75 procedure);
(2) that the award required the insurer to pay amounts in excess of the policy limitations for any element of first-party benefits; provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of an appeal, as provided for in section 65-4.4 or 65-4.5 of this Subpart;
(3) that the award required the insurer to pay amounts in excess of the policy limitations for any element of additional first-party benefits (when the parties had agreed to arbitrate the dispute under the additional personal injury protection endorsement for an accident which occurred prior to January 1, 1982); provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of the appeal, as provided for in section 65-4.4 or 65-4.5 of this Subpart;
(4) that an award rendered in an arbitration under section 65-4.4 or 65-4.5 of this Subpart, was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground);
(5) that the attorney’s fee awarded by an arbitrator below was not rendered in accordance with the limitations prescribed in section 65-4.6 of this Subpart; provided that, as a condition precedent to review by a master arbitrator, the insurer shall pay all other amounts set forth in the award which will not be the subject of the appeal, as provided for in section 65-4.4 or 65-4.5 of this Subpart.
Footnote 17:Counsel cited to the Appellate Division opinion at 114 AD3d 33 (2d Dept 2013), but it was affirmed by the Court of Appeals, who set forth its own ratio decidendi.
Footnote 18:In so holding, this Court’s decision does not conflict with Auto One Ins. Co. v. Hillside Chiropractic, P.C. (126 AD3d 423 [1st Dept 2015]), which held that an arbitrator’s decision to adhere, with strict conformity, to the evidentiary rule set forth in CPLR 2106(1) and give no weight to an IME report prepared by a chiropractor because it was not notarized, is arbitrary; such conformity is not required by 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.”). The hearing arbitrator in the case at bar rejected the proffered USPS certificate of mailing as being inconclusive and then concomitantly in effect found that there was a need for an affidavit. In Auto One Ins. Co., the arbitrator failed to independently assess the affirmation without reference to the statutorily prescribed rule of evidence.
Reported in New York Official Reports at Hereford Ins. Co. v Physio Care Physical Therapy, PC (2024 NY Slip Op 24083)
[*1]| Hereford Ins. Co. v Physio Care Physical Therapy, PC |
| 2024 NY Slip Op 24083 |
| Decided on March 18, 2024 |
| Supreme Court, New York County |
| Schumacher, J. |
| 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 printed Official Reports. |
Decided on March 18, 2024
Hereford Insurance Company, Plaintiff,
against Physio Care Physical Therapy, PC et al., Defendants. |
Index No. 154199/2021
Goldberg, Miller & Rubin (Harlan R. Schreiber of counsel) for Plaintiff Eric Schumacher, J.
NYSCEF doc nos. 58-67 were read on this motion for an order directing the entry of a default judgment.
Motion by plaintiff pursuant to CPLR 3215 for an order directing the entry of a default judgment on the amended complaint in favor of plaintiff and against defendant Shekima Roberts (hereinafter defendant [FN1] ) granted, there being no opposition submitted.Plaintiff commenced this action on April 29, 2021, by filing a summons and complaint (see NYSCEF doc no. 1). Plaintiff subsequently filed an amended summons and amended complaint on April 30, 2021 (see NYSCEF doc nos. 2-3). The amended complaint alleges, in sum and substance, that defendant was allegedly injured while a passenger in a vehicle insured by plaintiff (see id. ¶¶ 12-14). The complaint further alleges that the subject insurance policy covers any occupants of the insured vehicle for any medical necessity and causally related medical expenses arising out of the use or operation of the insured vehicle as a result of an accidental collision (see id. ¶ 16). The complaint further alleges that tens of thousands of dollars in no-fault claims for treatment allegedly provided to defendant have been submitted to plaintiff (see id. ¶ 17). The complaint further alleges that defendant’s testimony at an examination under oath raised issues about the legitimacy and necessity of such medical treatments (see id. ¶ 28). [*2]The complaint further alleges that defendant failed to subscribe and return her examination under oath transcript and appear for independent medical examinations, as duly requested by plaintiff (see id. ¶¶ 29-30). The complaint further alleges that, based on plaintiff’s investigation into the collision and defendant’s noncompliance with its requests, plaintiff believes defendant’s alleged injuries and no-fault treatment were not causally related to the subject collision and did not arise from an insured event (see id. ¶ 31). Plaintiff seeks relief in the form of a judgment declaring that it owes no duty to pay the claims regarding the subject collision (see id. ¶¶ 38, 41). The amended complaint is verified by plaintiff’s attorney, only (see id. at 12).
In the court’s September 22, 2023 decision and order on motion seq. no. 002, the court extended the time for plaintiff to serve the complaint on defendant to 60 days from the date of the order (see NYSCEF doc no. 54). On October 26, 2023, plaintiff filed an affidavit of service of process indicating that, on October 6, 2023, a process server delivered the amended summons and amended complaint to a person of suitable age and discretion at defendant’s residence and mailed a copy of process to the residence (see NYSCEF doc no. 56).
On February 5, 2024, plaintiff filed this motion for an order directing the entry of a default judgment in favor of plaintiff and against defendant (see NYSCEF doc no. 58). In support of the merits, plaintiff submits an unsworn statement, styled as an affidavit, allegedly of a senior no-fault adjuster assigned to defendant’s claim number and familiar with the facts of the case based on their personal handling and review of the file (see affirmation of Schreiber, exhibit A ¶¶ 1-2, 6). The statement asserts, in sum and substance, that plaintiff maintains a founded belief that defendant’s injuries and treatment did not arise from an insured event (id. ¶ 16).
DISCUSSION
CPLR 3215(a) provides, in pertinent part, that “[w]hen a defendant has failed to appear, plead or proceed to trial . . . the plaintiff may seek a default judgment against them.” On a motion pursuant to CPLR 3215, a plaintiff demonstrates entitlement to a default judgment by submitting proof of: (1) service of the summons and complaint; (2) the defendant’s default in answering, appearing, or otherwise responding to the complaint; (3) the facts constituting the claim; and (4) the amount due (see CPLR 3215[f]; Gordon Law Firm, P.C. v Premier DNA Corp., 205 AD3d 416, 417 [1st Dept 2022]; Gantt v N. Shore-LIJ Health Sys., 140 AD3d 418, 418 [1st Dept 2016]; Merchants Mut. Ins. Co. v Dunham Piping & Heating Corp., 203 AD3d 543, 544 [1st Dept 2022]).
The court finds based on the papers submitted that plaintiff has shown prima facie good service of process on defendant pursuant to CPLR 308(2) by means of the affidavit of service, that defendant has failed to answer, appear, or otherwise respond to the amended complaint, and that the time to do so has expired. The court further finds that plaintiff has submitted adequate proof of the facts constituting the claims by means of the unsworn statement submitted.
Effective January 1, 2024, the recently amended CPLR 2106 now provides:
“[t]he statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:
“I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.
“(Signature)”
CPLR 2106 concerns the affirmation of the truth of statements. Prior to the recent amendment, the permissible use of unsworn statements with the same force and effect as affidavits was much more limited than it is now. Section (a) concerned only New York attorneys and certain health care practitioners, while section (b) concerned persons “physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.” Both deprecated sections required the unsworn statement be subscribed and affirmed by the person making the statement “to be true under the penalties of perjury.” The current statute removes section (a) entirely along with the geographic restrictions in (b), permitting such statements “wherever made.”
Here, the unsworn submission states, “I affirm this 25th day of January, 2024, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law” and is signed with the same name as the person identified in the body as making the statement (affirmation of Schreiber, exhibit A, at 4). The court finds that the statement submitted satisfies the requirements of CPLR 2106 as amended and must be regarded as having the same force and effect as an affidavit. The court finds further that the statement submitted is adequate proof of the facts constituting the claims for the purpose of demonstrating entitlement to the entry of a default judgment. As such, plaintiff is entitled to a default judgment.
CONCLUSION
Accordingly, it is
ORDERED that the motion by plaintiff pursuant to CPLR 3215 for an order directing the entry of a default judgment on the complaint in favor of plaintiff and against defendant Shekima Roberts is granted, there being no opposition submitted; and it is further
ADJUDGED that plaintiff is not required to pay any sums, monies, damages, awards, or benefits to Shekima Roberts, including but not limited to Mandatory Personal Injury Protection (No-Fault), any uninsured, underinsured, supplementary uninsured, or supplementary underinsured motorist benefit claims, any medical payment claims, any property damage claims, and any bodily injury liability benefits, in connection with the alleged incident of July 28, 2020, claim number 91306; and it is further
ORDERED that, within five days of entry, plaintiff shall serve a copy of this order with notice of entry on Shekima Roberts and on the clerk, who shall enter judgment accordingly.
The foregoing constitutes the decision, order, and judgment of the court.
DATE 3/18/2024Eric Schumacher, J.S.C.
Footnote 1:The complaint has been entirely resolved as to all other defendants by stipulations of discontinuance (see NYSCEF doc nos. 24, 44, 47) and the entry of default judgments before the prior motion court (see NYSCEF doc no. 41). Roberts is the only remaining defendant.