Matter of American Tr. Ins. Co. v Community Med. Imaging, P.C. (2026 NY Slip Op 01351)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Community Med. Imaging, P.C. (2026 NY Slip Op 01351)

Matter of American Tr. Ins. Co. v Community Med. Imaging, P.C.

2026 NY Slip Op 01351 [247 AD3d 877]

Decided on March 11, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, May 6, 2026

March 11, 2026

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated March 26, 2023, Community Medical Imaging, P.C., appeals from an order of the Supreme Court, Kings County (Anne J. Swern, J.), dated June 27, 2024. The order, insofar as appealed from, granted the motion of Community Medical Imaging, P.C., for an award of an attorney’s fee pursuant to 11 NYCRR 65-4.10 (j) (4) only to the extent of awarding an attorney’s fee in the sum of $750.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the amount of an attorney’s fee to be awarded pursuant to 11 NYCRR 65-4.10 (j) (4) in accordance herewith.

The petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated March 26, 2023, which confirmed an arbitration award against the petitioner and in favor of Community Medical Imaging, P.C. (hereinafter Community). Community filed a cross-petition, inter alia, to confirm the master arbitration award. In an order dated October 10, 2023, the Supreme Court denied the petition and granted that branch of the cross-petition which was to confirm the master arbitration award.

Community then moved for an award of an attorney’s fee pursuant to 11 NYCRR 65-4.10 (j) (4) for services rendered in this proceeding in the sum of $2,200. In support of the motion, Community submitted an affirmation of services by its attorney. The petitioner opposed the motion, arguing, among other things, that an award of an attorney’s fee was limited by 11 NYCRR 65-4.6 (d) and that the amount of the attorney’s fee sought was excessive as to the hourly rate and the time purportedly spent on the petition and the cross-petition. In an order dated June 27, 2024, the Supreme Court granted the motion to the extent of awarding Community an attorney’s fee in the sum of $750. Community appeals.

Pursuant to Insurance Law § 5106 (a), if a valid claim or a portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the [*2]overdue claim, subject to [the] limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or confirm a master arbitration award (see 11 NYCRR 65-4.10 [j] [4]; Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783 [2025]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2017]). Contrary to the petitioner’s contention, the amount of the attorney’s fee for services rendered in connection with a CPLR article 75 proceeding is not controlled by 11 NYCRR 65-4.6 (d), but rather, “shall be fixed by the court” (id. § 65-4.10 [j] [4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d at 783; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705).

“[A] reasonable attorney’s fee is commonly understood to be a fee which represents the reasonable value of the services rendered” (Diaz v Audi of Am., Inc., 57 AD3d 828, 830 [2008]; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839 [2016]). In determining the reasonable value of the services rendered, “the court may consider a number of factors, including . . . the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented, the lawyer’s experience, ability, and reputation, the customary fee charged for similar services, and the results obtained” (Diggs v Oscar De La Renta, LLC, 169 AD3d 1003, 1005 [2019]; see Matter of Freeman, 34 NY2d 1, 9 [1974]; RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 839). “While a hearing is not required in all circumstances, the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered” (Citicorp Trust Bank, FSB v Vidaurre, 155 AD3d 934, 935 [2017] [internal quotation marks omitted]; see Sterling Natl. Bank v Alan B. Brill, P.C., 186 AD3d 515, 520 [2020]).

Here, the parties submitted conflicting evidence as to the customary fee charged for similar services and the reasonable amount of time required to defend the petition and support the cross-petition. Markedly, the evidence submitted by the petitioner suggested that the customary fees were higher than that awarded by the Supreme Court here, and in the order appealed from, the court provided no explanation for the determination of the award of an attorney’s fee, and the basis for that determination is not evident from the record. Under the circumstances, the matter must be remitted to the Supreme Court, Kings County, for a new determination of the amount of the award of an attorney’s fee pursuant to 11 NYCRR 65-4.10 (j) (4), stating the evidentiary basis for the award (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 706).

The parties’ remaining contentions either need not be reached in light of our determination or are not properly before this Court. Brathwaite Nelson, J.P., Ford, Voutsinas and Love, JJ., concur.

Matter of American Tr. Ins. Co. v YSC Trinity Acupuncture, P.C. (2026 NY Slip Op 01354)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v YSC Trinity Acupuncture, P.C. (2026 NY Slip Op 01354)

Matter of American Tr. Ins. Co. v YSC Trinity Acupuncture, P.C.

2026 NY Slip Op 01354 [247 AD3d 883]

Decided on March 11, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, May 6, 2026

March 11, 2026

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated August 31, 2022, YSC Trinity Acupuncture, P.C., appeals from a judgment of the Supreme Court, Kings County (Lisa S. Ottley, J.), dated August 27, 2024. The judgment, insofar as appealed from, in effect, denied that branch of the cross-petition of YSC Trinity Acupuncture, P.C., which was for an award of an attorney’s fee pursuant to 11 NYCRR 65-4.10 (j) (4).

Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, that branch of the cross-petition of YSC Trinity Acupuncture, P.C., which was for an award of an attorney’s fee pursuant to 11 NYCRR 65-4.10 (j) (4) is granted, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of the attorney’s fee.

YSC Trinity Acupuncture, P.C. (hereinafter YSC), is a medical provider that made a claim for no-fault benefits from the petitioner, an insurance carrier. The petitioner denied the claim, and YSC sought arbitration of the claim. In an arbitration award dated June 9, 2022, the arbitrator, inter alia, awarded YSC the amount claimed. The petitioner sought review of the arbitration award by a master arbitrator. In a master arbitration award dated August 31, 2022, the master arbitrator, among other things, confirmed the arbitration award.

The petitioner commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitration award. YSC filed a cross-petition to confirm the master arbitration award and for an award of an attorney’s fee pursuant to 11 NYCRR 65-4.10 (j) (4) for the representation in this proceeding. In opposition to the cross-petition, the petitioner contended, inter alia, that any award of an attorney’s fee was limited by 11 NYCRR 65-4.6 (d). In a decision dated June 4, 2024, the Supreme Court determined, among other things, that the petition should be denied, the cross-petition should be granted, and YSC was entitled to an award of an attorney’s fee pursuant to 11 NYCRR 65-4.10 (j) (4), to be determined by the court upon submission of an affirmation of services. Subsequently, YSC submitted an affirmation of services, seeking the sum of $5,020 as an attorney’s fee. In a judgment dated August 27, 2024, the court, inter alia, denied the petition, granted that branch of the cross-petition which was to confirm the master arbitration award, and, in effect, denied that branch of the cross-petition which was for an award of an attorney’s fee pursuant to 11 NYCRR [*2]65-4.10 (j) (4). YSC appeals from so much of the judgment as, in effect, denied that branch of the cross-petition which was for an award of an attorney’s fee pursuant to 11 NYCRR 65-4.10 (j) (4).

“The general rule is that in proceedings involving arbitration, as in other litigation, an attorney’s fee is not recoverable unless provided for by agreement or statute” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2017]; see generally Congel v Malfitano, 31 NY3d 272, 291 [2018]). Pursuant to Insurance Law § 5106 (a), if a valid claim or a portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations.” As applicable here, the superintendent’s regulations provide that an “attorney’s fee for services rendered . . . in a court appeal from a master arbitration award . . . shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10 [j] [4]). A “court appeal from a master arbitration award” includes a proceeding pursuant to CPLR article 75 to vacate or confirm a master arbitration award (see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783 [2025]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705).

Here, YSC sought an award of an attorney’s fee for services rendered in connection with the court proceedings on the petition to vacate the master arbitration award and the cross-petition, among other things, to confirm the master arbitration award. Having prevailed in this CPLR article 75 proceeding, YSC was entitled to an award of a reasonable attorney’s fee pursuant to 11 NYCRR 65-4.10 (j) (4) (see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d at 783; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 706). Thus, the Supreme Court erred by, in effect, denying that branch of the cross-petition which was for an award of an attorney’s fee pursuant to 11 NYCRR 65-4.10 (j) (4).

Contrary to the petitioner’s contention, the amount of the attorney’s fee awarded for services rendered in this proceeding is not controlled by 11 NYCRR 65-4.6 (d). The superintendent’s regulations provide that the amount awarded pursuant to 11 NYCRR 65-4.10 (j) (4) “shall be fixed by the court” (id.; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d at 783; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705).

Accordingly, we remit the matter to the Supreme Court, Kings County, for a determination of the amount of a reasonable attorney’s fee to which YSC is entitled, stating the evidentiary basis for the award (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 706).

The parties’ remaining contentions either need not be reached in light of our determination or are without merit. Brathwaite Nelson, J.P., Ford, Voutsinas and Love, JJ., concur.

Healthwise Med. Assoc., P.C. v Safe Auto Ins. Co. (2026 NY Slip Op 50986(U))

Reported in New York Official Reports at Healthwise Med. Assoc., P.C. v Safe Auto Ins. Co. (2026 NY Slip Op 50986(U))

Healthwise Med. Assoc., P.C. v Safe Auto Ins. Co.

2026 NY Slip Op 50986(U) [89 Misc 3d 1217(A)]

Decided on March 5, 2026

Civil Court of the City of New York, Kings County

Rena Malik, J.

As corrected in part through July 06, 2026; it will not be published in the printed Official Reports.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

Civil Court of the City of New York, Kings County

Decided on March 5, 2026

Index No. CV-725627-21/KI

Rena Malik, J.

[*1]

Plaintiff commenced the instant action on June 4, 2021 seeking to recover no-fault benefits for medical treatment rendered to plaintiff’s assignor Donte Sinclair allegedly as a result of a motor vehicle accident that occurred on November 18, 2019.

On or about August 8, 2022, defendant filed a motion to dismiss the complaint (motion sequence no. 001). On or about May 11, 2023, plaintiff moved for leave to enter default judgment (motion sequence no. 002).^FN1 On or about August 29, 2023, plaintiff “cross-moved” pursuant to [*2]CPLR 3211 (c) to treat [presumably defendant’s] motion as one for summary judgment, and for leave to enter default judgment, and limiting the issues for trial pursuant to CPLR 3212(g) (see NYSCEF Doc No 10) (motion sequence no. 003).

In the motion to dismiss the complaint pursuant to CPLR 3211, defendant did not reference any subdivision. The Court presumes the motion is made pursuant to subdivisions (a) (1), (7), and/or (8) based on the arguments raised in the papers, which claim, inter alia, a lack of personal jurisdiction due to improper service of process and lack of long-arm jurisdiction as defendant is allegedly not an authorized New York insurer and not authorized to do business in New York.

“[W]here, as here, a defendant seeking to vacate a default raises a jurisdictional objection pursuant to CPLR 5015 (a) (4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default” (Rattner v Fessler, 202 AD3d 1011, 1015 [2d Dept 2022]; see SOS Capital v Recycling Paper Partners of PA, LLC, 220 AD3d 25, 31 [1st Dept 2023] [discretionary vacatur pursuant to CPLR 5015 (a) (1) “assumes personal jurisdiction exists over a defaulting defendant”; thus, a court “must first resolve the issue of personal jurisdiction over the individual defendants before determining whether it [is] appropriate” to consider discretionary vacatur]).

Lack of Personal Jurisdiction: Service of Process

Defendant argues that service of process was improper per BCL 307. However, the manner of service was not attempted through that statute (see NYSCEF Doc No 14, affidavit of service) and defendant ignores that service appeared to have been achieved by CPLR 311 (a) (1). “An affidavit of service constitutes prima facie evidence of proper service” (Ocwen Loan Servicing, LLC v Ali, 180 AD3d 591 [1st Dept 2020]) and “[t]o rebut this prima facie showing, defendant was required to submit a sworn, nonconclusory denial of service or swear to specific facts to rebut the statements in the process server’s affidavit” (JP Morgan Chase Bank v Dennis, 166 AD3d 530, 530-31 [1st Dept 2018]). Defendant failed to do so (see, e.g., Rattner, 202 AD3d at 1016–17; U.S. Bank N.A. v Telford, 153 AD3d 881, 881-82 [2d Dept 2017]). Accordingly, that branch of the motion is denied.

Lack of Personal Jurisdiction: CPLR 302 New York’s Long-Arm Statute

“[A] New York court may not exercise personal jurisdiction over a non-domiciliary unless two requirements are satisfied: the action is permissible under the long-arm statute (CPLR 302) and the exercise of jurisdiction comports with due process” (SOS Capital, 220 AD3d at 32, quoting Williams v Beemiller, Inc., 33 NY3d 523, 528 [2019] [internal quotations omitted]; see Aybar v US Tires and Wheels of Queens, LLC, 211 AD3d 40, 52 [2d Dept 2022] [“When all the requirements of CPLR 302 are met, the exercise of personal jurisdiction still must comport with constitutional due process requirements”]).

CPLR 302 (a) (1) provides, in relevant part, that “a court may exercise personal jurisdiction over any non-domiciliary” who “transacts any business within the state or contracts anywhere to supply goods or services in the state.” “[L]ong-arm jurisdiction over a nondomiciliary exists where (i) a defendant transacted business within the state and (ii) the cause of action arose from that [*3]transaction of business. If either prong of the statute is not met, jurisdiction cannot be conferred under CPLR 302 (a) (1)” (Johnson v Ward, 4 NY3d 516, 519 [2005]; Fanelli v Latman, 202 AD3d 758, 760 [2d Dept 2022] [CPLR 302 (a) (1)’s “jurisdictional inquiry is twofold: under the first prong the defendant must have conducted sufficient activities to have transacted business in the state, and under the second prong, the claims must arise from the transactions”], quoting Rushaid v Pictet & Cie, 28 NY3d 316, 323 [2016]; see Aybar, 211 AD3d at 48–49). By “transact[ing] any business,” “[t]he statute requires ‘[p]urposeful activities,’ i.e., ‘those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'” (PC-16 Doe v Hill Regional Career High School, 223 AD3d 518, 518-20 [1st Dept 2024], quoting Fischbarg v Doucet, 9 NY3d 375, 380 [2007]). Even “proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]).

“The ultimate burden of proving a basis for personal jurisdiction rests with the party asserting jurisdiction” (Fanelli, 202 AD3d at 759; see SOS Capital, 220 AD3d at 33). “When opposing a motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of jurisdiction, a plaintiff ‘need only make a prima facie showing’ that personal jurisdiction over the moving defendant exists” (Fanelli, 202 AD3d 758, 759 [2d Dept 2022], quoting Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2d Dept 2005]; see Aybar, 211 AD3d at 49). “The facts alleged in the complaint and affidavits in opposition to such a motion to dismiss are deemed true and construed in the light most favorable to the plaintiff, and all doubts are to be resolved in favor of the plaintiff” (Fanelli, 202 AD3d at 759, quoting Nick v Schneider, 150 AD3d 1250, 1251 [2d Dept 2017] [internal quotations omitted]).

In support of the motion arguing the lack of personal jurisdiction, defendant submitted, inter alia, an affidavit from Scott Spiers, the litigation manager of defendant, which states:

8. On June 1, 2021, Safe Auto Insurance Company agreed to be acquired by The Allstate Corporation through Allstate subsidiary National General Insurance (hereinafter “the acquisition”).

9. I am familiar with claim number [XXXXX]-354-926 related to Policy Number [XXXXXXXX]99A-00.

10. Policy Number [XXXXXXXX]99A-00 was issued to Donte Sinclair in the State of Pennsylvania through Safe Auto Insurance Company with a relevant policy period of August 5, 2019 to February 5, 2020.

11. Claim number [XXXXX]-354-926 related to Policy Number [XXXXXXXX]99A-00, was submitted to Safe Auto Insurance Company prior to its acquisition by The Allstate Corporation.

12. Prior to the acquisition, Safe Auto Insurance Company was not an “authorized insurer” and did not hold a Certificate of Authority to transact insurance in the State of New York.

13. Prior to the acquisition, Safe Auto Insurance Company did not have any insurance agents appointed to act on its behalf in the State of New York.

14. Prior to the acquisition, Safe Auto Insurance Company did not target the State of New York with advertisements.

15. Prior to the acquisition, Safe Auto Insurance Company did not own any real property in the State of New York.

16. Prior to the acquisition, Safe Auto Insurance Company had not filed a statement with the Superintendent of Insurance agreeing that its automobile insurance policies sold in any other state or Canadian province will be deemed to satisfy the financial security requirements of Article VI or VIII of the New York Vehicle and Traffic Law.

17. Prior to the acquisition, Safe Auto Insurance Company did not underwrite insurance policies in the State of New York and did not issue insurance policies in the State of New York.

18. Prior to the acquisition, Safe Auto Insurance Company did not adhere to the New York State No-Fault guidelines.

19. Prior to the acquisition, Safe Auto Insurance Company did not control any insurers authorized to transact or transacting business in the State of New York, was not controlled by any insurers authorized to transact or transacting business in the State of New York and was not under common control by or with any insurers authorized to transact or transacting business in the State of New York.

20. Further, Safe Auto Insurance Company was not an “authorized insurer” in the State of New York at the time claim number [XXXXX]-354-926 related to Policy Number [XXXXXXXX]99A-00 was submitted (NYSCEF Doc No 5 [policy numbers redacted]).

In light of above, the Court finds that defendant demonstrated that it did not engage in any transaction to conduct business or supply services or insurance coverage in New York and the Court lacks personal jurisdiction over it (see, e.g., Flatlands Med., P.C. v AAA Ins., 43 Misc 3d 49, 51 [App Term, 2d 11th & 13th Jud Dists 2014]; Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., 65 Misc 3d 143[A], 2019 NY Slip Op 51736[U], *1–2 [App Term, 2d 11th & 13th Jud Dists 2019]; see also Lancaster v Colonial Motor Frgt. Line, Inc., 177 AD2d 152, 157-59 [1st Dept 1992] [where a vehicle accident occurred in South Carolina and the “accident is not alleged to be, nor can it in any way be said to be, related to any possible business contacts or transactions which defendant corporation may have been engaged in at that time in the State of New York”]; Johnson, 4 NY3d at 520 [“Plaintiffs’ cause of action arose out of defendant’s allegedly negligent driving in New Jersey, not from the issuance of a New York driver’s license or vehicle registration”]; Fanelli, 202 AD3d at 758-61; Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489, 491 [2d Dept 2005] [“Contrary to Eagle’s contention, the mere unilateral act of Young, AIIC’s alleged insured, in driving into New York State, without more, was insufficient to permit the court to exercise long-arm jurisdiction over AIIC under the CPLR”]).

Plaintiff’s arguments in opposition that rely on Clarke are misplaced. The trial court in Clarke acknowledged that it may be possible for an out-of-state insurer to provide New York mandated insurance if it had filed a certificate regarding proof of financial responsibility under VTL § 344 (a) or perhaps if a court were to interpret policy language in such a way that “would make it fair and equitable to deem the insurer to be in compliance and conformity with New York law” (Property & Cas. Ins. Co. of Hartford v Clarke, 7 Misc 3d 358, 361 [Sup Ct, Kings County 2005]). However, such policy language was lacking in Clarke and in this case, plaintiff, without any first-hand knowledge whatsoever, speculates and surmises that defendant’s policy has some other specific language that would bring defendant within the jurisdiction of the state (see NYSCEF Doc No 11 at ¶¶ 55, 63). The Court finds such speculation as insufficient to meet its burden to prove general or specific jurisdiction, and failed to at least make a “sufficient start” to show that the alleged personal jurisdiction over defendant could exist and is not a “frivolous” “position” (cf. Peterson v Spartan Indus., Inc., 33 NY2d 463, 467 [1974]; Stardust Dance Prods., Ltd. v Cruise Groups Intl., [*4]Inc., 63 AD3d 1262, 1265 [3d Dept 2009] [where conflicting affidavits warranted discovery under CPLR 3211 [d] and/or a hearing on personal jurisdiction]). While plaintiff argues that defendant failed to submit all sorts of evidence (see NYSCEF Doc No 11 at ¶ 70), or that the Court needs to determine whether defendant is under the control of an authorized insurer (id. at ¶ 81), this is insufficient to meet its burden in opposing defendant’s motion. Plaintiff’s unsubstantiated and speculative allegations are insufficient (see, e.g., Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., 2019 NY Slip Op 51736[U], *2 [“neither the unverified complaint nor the conclusory affirmation of plaintiff’s counsel in opposition to defendant’s motion constituted the ‘tangible evidence’ necessary to substantiate plaintiff’s allegations that jurisdiction could exist, thereby demonstrating that plaintiff’s assertion of the existence of a jurisdictional predicate was not ‘frivolous'” [citations omitted]; Metro Health Products, Inc. v Maryland Auto Ins. Fund, 66 Misc 3d 146[A], 2020 NY Slip Op 50229[U], *2 [App Term 2d 11th & 13th Jud Dists 2020] [plaintiff failed to meet burden contesting personal jurisdiction where “[p]laintiff’s opposition papers consisted only of the affidavit of its owner attesting to the mailing policies and procedures of plaintiff, and the affirmation of its counsel, who had no personal knowledge of the underlying facts. Plaintiff failed to produce evidence showing a jurisdictional basis for the service”]).

In light of the above, the Court need not address the parties’ remaining arguments.

Accordingly, it is hereby ORDERED that defendant’s motion is granted (motion sequence no. 001) and the Clerk is directed to enter judgment in defendant’s favor dismissing the complaint; and it is further

ORDERED that the judgment entered July 15, 2022 is vacated as null and void (see supra, note 1); and it is further

ORDERED that plaintiff’s motion for default judgment (motion sequence no. 002) and cross-motion (motion sequence no. 003) are denied as moot; and it is further

ORDERED that the Clerk is directed to amend the caption in the court’s records to reflect the proper assignor name as Donte Sinclair in the place and stead of Rosa Rios.

This constitutes the decision and order of the Court.

DATE March 5, 2026

ENTER:

RENA MALIK

Judge of the Civil Court

Elite Psychological Servs., P.C. v Country-Wide Ins. (2026 NY Slip Op 50678(U))

Reported in New York Official Reports at Elite Psychological Servs., P.C. v Country-Wide Ins. (2026 NY Slip Op 50678(U))

Elite Psychological Servs., P.C. v Country-Wide Ins.

2026 NY Slip Op 50678(U) [88 Misc 3d 135(A)]

Decided on February 27, 2026

Appellate Term, Second Department

As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on February 27, 2026

2024-1184 Q C

Present: : Wavny Toussaint, P.J., Marina Cora Mundy, Lisa S. Ottley, JJ

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Andrea S. Ogle, J.), dated October 7, 2024. The order granted defendant’s motion to vacate a judgment entered November 20, 2023 pursuant to a settlement.

[*1]

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 (Andrea S. Ogle, J.) dated October 7, 2024 granting defendant’s motion to vacate a judgment entered pursuant to CPLR 5003-a (e) on November 20, 2023 based on defendant’s alleged failure to pay a settlement. In its motion, defendant contended, among other things, that it was not in default of paying the settlement as plaintiff had failed to tender a duly executed release and stipulation discontinuing the action pursuant to CPLR 5003-a (a), and, therefore, defendant’s obligation to pay the settlement had not been triggered.

For the reasons stated in Elite Psychological Servs., P.C., as Assignee of Anel Toussaint-Fils v Country-Wide Ins. Co. (— Misc 3d —, 2026 NY Slip Op — [appeal No. 2025-466 Q C], decided herewith), the order is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: February 27, 2026

Biofeedback & Psychological Servs. v Country-Wide Ins. Co. (2026 NY Slip Op 50685(U))

Reported in New York Official Reports at Biofeedback & Psychological Servs. v Country-Wide Ins. Co. (2026 NY Slip Op 50685(U))

Biofeedback & Psychological Servs. v Country-Wide Ins. Co.

2026 NY Slip Op 50685(U) [88 Misc 3d 135(A)]

Decided on February 27, 2026

Appellate Term, Second Department

As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on February 27, 2026

2025-383 Q C

Present: : Wavny Toussaint, P.J., Marina Cora Mundy, Lisa S. Ottley, JJ

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Andrea S. Ogle, J.), dated October 8, 2024. The order granted defendant’s motion to vacate a judgment entered October 10, 2023 pursuant to default under a settlement.

[*1]

ORDERED that the order is modified by granting defendant’s motion only to the extent of vacating so much of the October 10, 2023 judgment as awarded plaintiff $850 in attorney’s fees; 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 (Andrea S. Ogle, J.) dated October 8, 2024 granting the branch of defendant’s motion seeking to vacate a judgment entered pursuant to CPLR 5003-a (e) on October 10, 2023 based on defendant’s alleged failure to pay a settlement and implicitly denying, as moot, the branch of defendant’s motion seeking the alternative relief of resettling and recalculating the judgment to eliminate the awards for attorney’s fees and interest.

Plaintiff correctly argues that the Civil Court should not have granted defendant’s motion on the ground that plaintiff failed to prove that the case had settled or that plaintiff had failed to prove that it had tendered a duly executed release and stipulation discontinuing the action [*2]pursuant to CPLR 5003-a (a), as defendant did not move on those grounds, and did not deny that the action had settled or claim that it had not received a release or stipulation of discontinuance.

We further find that defendant’s remaining grounds for vacating the judgment lack merit.

However, we find that the clerk improperly awarded $850 in attorney’s fees to the plaintiff since CPLR 5003-a (e) does not provide for such an award (see Liss v Bringham Park Coop. Apts. Sec. No. 3, 264 AD2d 717, 718 [1999]).

Accordingly, the order is modified by granting defendant’s motion only to the extent of vacating so much of the October 10, 2023 judgment as awarded plaintiff $850 in attorney’s fees.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: February 27, 2026

Orthotics & Professional Supply, Ltd. v Country-Wide Ins. Co. (2026 NY Slip Op 50680(U))

Reported in New York Official Reports at Orthotics & Professional Supply, Ltd. v Country-Wide Ins. Co. (2026 NY Slip Op 50680(U))

Orthotics & Professional Supply, Ltd. v Country-Wide Ins. Co.

2026 NY Slip Op 50680(U) [88 Misc 3d 135(A)]

Decided on February 27, 2026

Appellate Term, Second Department

As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on February 27, 2026

2024-1249 Q C

Present: : Wavny Toussaint, P.J., Marina Cora Mundy, Lisa S. Ottley, JJ

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Andrea S. Ogle, J.), dated October 9, 2024. The order granted defendant’s motion to vacate a judgment entered November 20, 2023 pursuant to a default under a settlement.

[*1]

ORDERED that the order is modified by granting defendant’s motion only to the extent of vacating so much of the November 20, 2023 judgment as awarded plaintiff $850 in attorney’s fees; 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 (Andrea S. Ogle, J.) dated October 9, 2024 granting the branch of defendant’s motion seeking to vacate a judgment entered pursuant to CPLR 5003-a (e) on November 20, 2023 based on defendant’s alleged failure to pay a settlement and implicitly denying, as moot, the branch of defendant’s motion seeking the alternative relief of resettling and recalculating the judgment to eliminate the awards for attorney’s fees and interest.

For the reasons stated in Biofeedback & Psychological Servs., as Assignee of Chrysoula Karametros v Country-Wide Ins. Co., — Misc 3d —, 2026 NY Slip Op — [appeal No. 2025-383 Q C], decided herewith), the order is modified by granting defendant’s motion only to the extent [*2]of vacating so much of the November 20, 2023 judgment as awarded plaintiff $850 in attorney’s fees.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: February 27, 2026

Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2026 NY Slip Op 50681(U))

Reported in New York Official Reports at Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2026 NY Slip Op 50681(U))

Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co.

2026 NY Slip Op 50681(U) [88 Misc 3d 135(A)]

Decided on February 27, 2026

Appellate Term, Second Department

As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on February 27, 2026

2024-1399 K C

Present: : Chereé A. Buggs, J.P., Marina Cora Mundy, Lisa S. Ottley, JJ

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered September 23, 2024. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and denied, as moot, plaintiff’s motion to compel discovery and dismiss defendant’s affirmative defenses.

[*1]

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) dated September 18, 2024 as granted defendant’s motion for summary judgment dismissing the complaint and denied, as moot, plaintiff’s motion to compel discovery and dismiss defendant’s affirmative defenses. Plaintiff argues on appeal that the order should be reversed, the matter should be remitted to the Civil Court to decide plaintiff’s amended cross-motion for summary judgment or, in the alternative, defendant’s motion should be denied and plaintiff’s motion to compel discovery and dismiss defendant’s affirmative defenses should be, in effect, remitted for a determination on the merits.

For the reasons stated in Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co.[*2](85 Misc 3d 130[A], 2025 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]), the order, insofar as appealed from, is affirmed.

BUGGS, J.P., MUNDY and OTTLEY, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: February 27, 2026

Air Plus Surgical Supply, Inc. v Country Wide Ins. Co. (2026 NY Slip Op 50684(U))

Reported in New York Official Reports at Air Plus Surgical Supply, Inc. v Country Wide Ins. Co. (2026 NY Slip Op 50684(U))

Air Plus Surgical Supply, Inc. v Country Wide Ins. Co.

2026 NY Slip Op 50684(U) [88 Misc 3d 135(A)]

Decided on February 27, 2026

Appellate Term, Second Department

As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on February 27, 2026

2025-87 Q C

Present: : Chereé A. Buggs, J.P., Lisa S. Ottley, Joanne D. Quiñones, JJ

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ira R. Greenberg, J.), dated July 9, 2024. The order granted defendant’s motion to vacate a judgment entered June 7, 2023 pursuant to a default under a settlement.

[*1]

ORDERED that the order is modified by granting defendant’s motion only to the extent of vacating so much of the June 7, 2023 judgment as awarded plaintiff $850 in attorney’s fees; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits for an accident which occurred in 2000, the parties entered into a settlement in May 2008, which provided that defendant would pay plaintiff the total sum of $1,030.20. Approximately eight years later, plaintiff moved to enter a judgment due to defendant’s failure to pay pursuant to the settlement. Defendant opposed this motion, on the ground that plaintiff was not entitled to recover accrued compound interest. Plaintiff subsequently withdrew this motion. However, on June 7, 2023, pursuant to an ex parte application, a judgment was entered which awarded plaintiff, insofar as is relevant, the principal sum of $1,030.20, plus accrued compound interest, plus $850 in attorney’s fees, for a total sum of $29,087.

Defendant moved to vacate the judgment arguing, among other things, that plaintiff had [*2]failed to provide defendant with 14 days’ notice, as required by an alleged modification of the settlement agreement, before seeking entry of a judgment based upon defendant’s failure to make payment. The motion also sought, in the alternative, to vacate so much of the judgment as awarded compound interest and $850 in attorney’s fees. By order dated July 9, 2024, the Civil Court (Ira R. Greenberg, J.) granted the branch of defendant’s motion seeking to vacate the judgment, finding that plaintiff had accepted defendant’s modification of the settlement agreement and that plaintiff did not establish that it had provided defendant with the requisite 14 days’ notice before entry of the judgment, and denied, as moot, the branches of defendant’s motion seeking alternative relief.

As defendant’s motion concedes, defendant was served with plaintiff’s motion to enter judgment in 2016 due to defendant’s failure to pay in accordance with the settlement. Thus, even if the alleged modification of the settlement agreement is enforceable, the prior motion was sufficient to satisfy the requirement that defendant receive written notice 14 days prior to the entry of judgment. Upon receiving the 2016 motion, defendant could have paid plaintiff in accordance with the settlement, but it apparently chose not to do so. As a result, the branch of defendant’s motion seeking to vacate the June 7, 2023 judgment on that ground should have been denied.

Defendant’s contention that plaintiff was not entitled to recover compound accrued interest lacks merit. The claims in this case are “governed by the former regulations providing for compound interest because the accident occurred prior to the effective date of the current regulations, which now provide for a simple rate of interest” (New Life Acupuncture, P.C. v Country Wide Ins. Co., 81 Misc 3d 142[A], 2024 NY Slip Op 50120[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]; see 11 NYCRR 65-3.9 [a], effective April 5, 2002; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 155-156 [2021]; Health Value Med., P.C. v Country Wide Ins. Co., 66 Misc 3d 127[A], 2019 NY Slip Op 52036[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

However, the branch of defendant’s motion seeking to vacate the $850 award of attorney’s fees set forth in the judgment should have been granted, as CPLR 5003-a (e) does not provide for attorney’s fees to be separately awarded in a judgment entered upon a settling defendant’s failure to pay the settlement amount (see Liss v Brigham Park Coop. Apts. Sec. No. 3, 264 AD2d 717 [1999]).

Defendant’s remaining bases to vacate the judgment lack merit (see Mundel v Harris, 199 AD3d 814, 815 [2021]; Arguelles, M.D., P.C. v AIG Natl. Ins. Co., 86 Misc 3d 132[A], 2025 NY Slip Op 51142[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; Seaside Rehabilitation v Allstate Ins. Co., 62 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is modified by granting defendant’s motion only to the extent of vacating so much of the June 7, 2023 judgment as awarded plaintiff $850 in attorney’s fees.

BUGGS, J.P., OTTLEY and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: February 27, 2026

Health Value Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 50677(U))

Reported in New York Official Reports at Health Value Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 50677(U))

Health Value Med., P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 50677(U) [88 Misc 3d 134(A)]

Decided on February 27, 2026

Appellate Term, Second Department

As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on February 27, 2026

2024-780 Q C

Present: : Wavny Toussaint, P.J., Marina Cora Mundy, Lisa S. Ottley, JJ

Thomas Torto, Esq., for appellant. Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ira R. Greenberg, J.), dated July 9, 2024. The order denied defendant’s motion to vacate a judgment entered September 13, 2023 pursuant to a default under a settlement.

[*1]

ORDERED that the order is modified by granting defendant’s motion to the extent of vacating so much of the September 13, 2023 judgment as awarded plaintiff $850 in attorney’s fees and by providing that statutory no-fault interest shall accrue from December 1, 2011 at a compound rate; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on September 13, 2023, pursuant to CPLR 5003-a (e), awarding plaintiff $911.26 as the principal sum, plus $850 in attorney’s fees, $30,415.80 in statutory no-fault interest from October 24, 2008 at a compound rate, and additional costs, for a total of $32,402.06. Defendant appeals from an order of the Civil Court (Ira R. Greenberg, J.) dated July 9, 2024 denying the branch of defendant’s motion seeking to vacate the September 13, 2023 judgment entered pursuant to CPLR 5003-a (e) and denying the branch of defendant’s motion seeking the alternative relief of resettling and recalculating the judgment to eliminate the awards for [*2]attorney’s fees and interest.

Contrary to defendant’s argument, it did not establish that there was no enforceable settlement between the parties in this action. We further find that defendant’s remaining grounds for vacating the judgment lack merit.

Defendant’s argument that the judgment should be recalculated to toll interest based on plaintiff’s delay in entering judgment after the October 24, 2008 settlement also lacks merit (see CPLR 5003-a [e]; Berenblit v Country Wide Ins. Co., 85 Misc 3d 135[A], 2025 NY Slip Op 50487[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; Metro Med. Diagnostics, P.C. v Country Wide Ins. Co., 81 Misc 3d 142[A], 2024 NY Slip Op 50119[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]; Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). However, we find that the clerk should not have awarded interest from October 24, 2008, the date of settlement, but from December 1, 2011, the date the settlement documents were tendered to defendant (see CPLR 5003-a [e]; J.D.T. v Chaimowitz, 218 AD3d 821, 823 [2023]).

Lastly, we find that the clerk improperly awarded $850 in attorney’s fees to plaintiff since CPLR 5003-a (e) does not provide for such an award (see Liss v Bringham Park Coop. Apts. Sec. No. 3, 264 AD2d 717, 718 [1999]).

Accordingly, the order is modified by granting defendant’s motion to the extent of vacating so much of the September 13, 2023 judgment as awarded plaintiff $850 in attorney’s fees and by providing that statutory no-fault interest shall accrue from December 1, 2011 at a compound rate.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: February 27, 2026

New Life Acupuncture, P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 50688(U))

Reported in New York Official Reports at New Life Acupuncture, P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 50688(U))

New Life Acupuncture, P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 50688(U) [88 Misc 3d 135(A)]

Decided on February 27, 2026

Appellate Term, Second Department

As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on February 27, 2026

2025-467 Q C

Present: : Wavny Toussaint, P.J., Marina Cora Mundy, Lisa S. Ottley, JJ

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Andrea S. Ogle, J.), dated October 7, 2024. The order granted defendant’s motion to vacate a judgment entered November 20, 2023 pursuant to a settlement.

[*1]

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 (Andrea S. Ogle, J.) dated October 7, 2024 granting defendant’s motion to vacate a judgment entered pursuant to CPLR 5003-a (e) on November 20, 2023 based on defendant’s alleged failure to pay a settlement. In its motion, defendant contended, among other things, that it was not in default of paying the settlement as plaintiff had failed to tender a duly executed release and stipulation discontinuing the action pursuant to CPLR 5003-a (a), and, therefore, defendant’s obligation to pay the settlement had not been triggered.

For the reasons stated in Elite Psychological Servs., P.C., as Assignee of Anel Toussaint-Fils v Country-Wide Ins. Co. (— Misc 3d —, 2026 NY Slip Op — [appeal No. 2025-466 Q C], decided herewith), the order is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: February 27, 2026