American Tr. Ins. Co. v Bronx Chiropractic Assoc. (2026 NY Slip Op 50180(U))

Reported in New York Official Reports at American Tr. Ins. Co. v Bronx Chiropractic Assoc. (2026 NY Slip Op 50180(U))

[*1]

American Tr. Ins. Co. v Bronx Chiropractic Assoc.

2026 NY Slip Op 50180(U) [88 Misc 3d 1223(A)]

Decided on February 6, 2026

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 2026

American Transit Insurance Company, Plaintiff, against Bronx Chiropractic Associate, A/A/O RAUL SANCHEZ, Defendant.

Index No. 502108/2023

Aaron D. Maslow, J.

The following papers were used on this motion: NYSCEF Document Nos. 58-62, 66-70, 72.

Upon the foregoing papers, the Court having elected to determine the within motion(s) on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part II (Motions & Special Proceedings), Subpart C (Appearances & Post-Order Matters), 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.”), and due deliberation having been had thereon,

It is hereby ORDERED as follows:

This is a de novo action commenced following the determination by a No-Fault insurance master arbitrator affirming an arbitrator’s determination in which Defendant herein was awarded $5,239.76 in health service benefits to be paid by Plaintiff herein. De novo actions in No-Fault insurance disputes where the amount in dispute equals or is greater than $5,000 are provided for in Insurance Law § 5106 (c):

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.

Defendant moves to dismiss on the asserted ground that the master arbitrator did not award an amount equal to or greater than $5,000 — that he merely affirmed the award of the hearing arbitrator, which happened to award $5,239.76. If this Court were to adopt Defendant’s position, then the only time one could commence a de novo action with respect to a No-Fault insurance arbitration would be when the master reverses or modifies and states specifically that a certain amount, which is at least $5,000, is awarded. Defendant’s position distorts the provision of Insurance Law § 5106 (c), which clearly affords any party in No-Fault insurance arbitration to seek relief in court on a de novo basis when the master arbitrator’s award results in the insurance company having to pay $5,000 or more in No-Fault benefits. Courts normally accord statutes their plain meaning, but will not blindly apply the words of a statute to arrive at an unreasonable or absurd result (see People v Santi, 3 NY3d 234, 242 [2004]). “[I]n the interpretation of statutes we must consider the main object in view, as well as the general scope of their leading provisions” (People ex rel. Wood v Lacombe, 99 NY 43, 55 [1885]).

Master arbitration was provided for in the 1977 amendment enacted in Chapter 892 of the Laws of 1977. The amendment followed court decisions which deprived parties of review of legal error in arbitration awards, based on Article 75’s standards for review. However, the newly created position of master arbitrator could reverse on an error of law. Enabling a party to commence a de novo action was a compromise to a situation where insurance companies were compelled to abide by arbitration determinations where court review in Article 75 proceedings was on limited grounds. For close to the 50 years since 1977, Insurance Law § 5106 (c) has been interpreted to mean that if as a result of master arbitration an insurance company is directed to pay $5,000 or more following participation in the arbitration process, a de novo action to adjudicate the No-Fault benefits dispute was available.

Accordingly, the within motion by Defendant to dismiss the complaint is DENIED.

Matter of American Tr. Ins. Co. v M EL Sayed Physical Therapy, P.C. (2026 NY Slip Op 00501)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v M EL Sayed Physical Therapy, P.C. (2026 NY Slip Op 00501)

Matter of American Tr. Ins. Co. v M EL Sayed Physical Therapy, P.C.

2026 NY Slip Op 00501 [246 AD3d 722]

February 4, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, April 8, 2026

[*1]

In the Matter of American Transit Insurance Company, Respondent, v M EL Sayed Physical Therapy, P.C., As Assignee of Carol McGee, Appellant.

Roman Kravchenko, Melville, NY, for appellant.

Short & Billy, P.C., New York, NY (Seok Ho [Richard] Kang of counsel), for respondent.

Appeal – Appeal as of Right – Order Not Deciding Motion Made on Notice

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated July 10, 2022, M EL Sayed Physical Therapy, P.C., appeals from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated March 18, 2024. The order, insofar as appealed from, denied the application of M EL Sayed Physical Therapy, P.C., for an additional award of attorneys’ fees.

Ordered that the appeal is dismissed, without costs or disbursements.

The appeal must be dismissed, as no appeal lies as of right from the portion of the order appealed from, which does not decide a motion made on notice, and we decline to grant leave to appeal (see CPLR 5701 [a] [2]; Kelsey v Rutledge, 214 AD3d 862, 862 [2023]; Gamman v Silverman, 135 AD3d 814, 815 [2016]). Genovesi, J.P., Brathwaite Nelson, Dowling and Hom, JJ., concur.

Metro Pain Specialists, P.C. v Russell Friedman Law Group LLP (2026 NY Slip Op 50113(U))

Reported in New York Official Reports at Metro Pain Specialists, P.C. v Russell Friedman Law Group LLP (2026 NY Slip Op 50113(U))

[*1]

Metro Pain Specialists, P.C. v Russell Friedman Law Group LLP

2026 NY Slip Op 50113(U) [88 Misc 3d 1216(A)]

Decided on January 29, 2026

Supreme Court, New York County

Ramseur, 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 January 29, 2026

Metro Pain Specialists, P.C., LEONID SHAPIRO,  NEUROLOGICAL DIAGNOSTIC P.C., Plaintiffs, against The Russell Friedman Law Group LLP, CHARLES HORN, NEIL FLYNN, PHILLIP KIM, RONALD WRIGHT, THE ESTATE OF RUSSELL C. FRIEDMAN,  Deceased, JOHN DOES, LAKE SUCCESS RECEIVABLES RECOVERY, INC., M & D CAPITAL PREMIER BILLING, LLC, DRACHMAN KATZ, LLP, REVAZ CHACHANASHVILI, and ASSOCIATES P.C., Defendants.

Index No. 155532/2023



For all plaintiffs: Andrew Lavoott Bluestone, Esq. of the law office of Andrew Lavoott Bluestone

For M &D Capital Premier Billing, LLC: Michele R. Levin, Esq., and Jenna L. Fierstein, Esq. of the law offices of Catalano Gallardo & Petropolous, LLP

For the Russel Friedman Law Group, LLP, Charles H. Horn, Esq., Neil Flynn, Esq., Phillip Hakyeon Kim, Esq., and Ronald Frederick Wright, Jr., Esq.: Jared M. Mogil, Esq. of the law offices of Gordon Rees Scully Mansukhani, LLP

For Drachman Katz, LLP and Revaz Chachanashvili and Associates, P.C.: Alexander F. Schwall, Esq., Eric J. Berger, Esq., and Meredith A. Renquin, Esq. of the law offices of Cozen O’Connor

For Lake Success Receivables Recovery, Inc.: Robert P. O’Brien, Esq. and Shannon D. O’Brien, Esq. of the law offices of Mahon, Mahon, Kerins & O’Brien LLC


Dakota D. Ramseur, J.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 42, 43, 44, 45, 46, 47, 85 were read on this motion to/for DISMISSAL.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 48, 49, 50, 84 were read on this motion to/for DISMISSAL.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 51, 52, 53, 54, 55, 56, 86 were read on this motion to/for DISMISSAL.

The following e-filed documents, listed by NYSCEF document number (Motion 008) 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 87 were read on this motion to/for DISMISSAL.

In motion sequences 005, 006, 007, and 008, defendants the Russell Friedman Law Group, LLP, Charles Horn, Esq., Neil Flynn, Esq., Phillip Hakyeon Kim, Esq., Ronald Frederick Wright, Jr. Esq., the Estate of Russell C. Friedman, deceased, Lake Success Receivables Recovery, Inc., M & D Capital Premier Billing, LLC, Drachman Katz, LLP, and Revaz Chachanashvili and Associates P.C. respectively move pursuant to CPLR 3211, 3013, and 3016 to dismiss plaintiffs Metro Pain Specialists, P.C. (“Metro Pain”), Leonid Shapiro, M.D. (“Shapiro”), and Neurological Diagnostic P.C.’s (“Neurological Diagnostics”) amended complaint.^[FN1] The motions to dismiss are collectively opposed, and plaintiffs filed a cross-motion pursuant to CPLR 3025 (b) for leave to file a second amended complaint. For the following reasons, the pre-answer motions to dismiss are granted, the cross-motion to amend is denied, and the complaint is dismissed.

In June 2023, plaintiffs Metro Pain, Shapiro, and Neurological Diagnostics commenced this action against multiple law firms, attorneys, and medical billing services providers, claiming breach of contract, legal malpractice, and breach of fiduciary duty. (See generally NYSCEF doc. no. 37, amended complaint.) Metro Pain is a corporation comprised of physicians rendering medical treatment to patients. Shapiro is a physician for and officer of Metro Pain. Metro Pain alleges it has contracted with funders or factoring companies which provided cash flow, billing, or collection services, which include collection of billings to patients and insurers, collection of patient payments, and collection of insurer payments and linked loans, as well as financing and factoring practices and charges concerning collection of medical billings arising from medical services rendered by Metro Pain. (Id.)

Defendants the Russel Fieldman Law Group LLP, Revaz Chachanashvili and Associates, P.C., and Drachman Katz, LLP are law firms which are alleged to have represented plaintiffs in various litigations consisting of collection practices by the filing of claims, filing of demands for arbitrations concerning no-fault claims, filing of demands for payment of no-fault medical billing claims on behalf of Metro Pain and Neurological with insurers and other payors of medical bill claims and no-fault claims. The individual attorney defendants, the Estate of Russel C. Friedman, deceased, Charles Horn, Neil Flynn, Phillip Kim, and Ronald Wright, are alleged to have been employed by or otherwise related to the Russel Fieldman Law Group LLP, rendering legal services to plaintiffs. Lake Success Receivables Recovery, Inc. (“Lake Success”) and M & D Capital Billing, LLC (“M&D Capital”) (together, “billing defendants”) are respective providers of medical billing services which have allegedly provided medical billing collection services to plaintiffs.

Plaintiffs allege that defendants the Russell Friedman Law Group LLP, Charles Horn, Neil Flynn, Phillip Kim, Ronald Wright, the Estate of Russell C. Friedman, deceased, Drachman Katz, LLP, and Revaz Chachanashvili and Associates P.C. (collectively, “law firm defendants”) failed to reasonably undertake attorney and collection services in representation of plaintiffs, but for which there would have been a better financial outcome for Plaintiff. As to the billing defendants, plaintiffs allege that they violated certain sections of the “Agreement” governing the collection services contracted for by engaging in practices that delayed collection of payments, increased the number and amounts of advances owed, and generated larger interests and charges in excess of limits set forth in the Agreement. It is further alleged that the billing defendants failed to seek, through their supervision of attorneys, the imposition of demands for payments.

The amended complaint contains allegations that the defendants, generally or otherwise collectively, violated agreements with plaintiffs by failing to follow up on demands, mishandling of collection, and failing to seek legal assistance in pursuing such collection through no-fault demands, arbitrations, or other legal proceedings. Further, plaintiffs allege, with little to no factual support, that the billing defendants and the law firm defendants were alter egos of each of other and that they represented plaintiffs while simultaneously doing business with them for collection services. Though plaintiffs claim that the defendants departed from either reasonable legal practice or the terms of the Agreement, plaintiffs do not allege any instance of same.

On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), courts afford the pleadings a liberal construction, accept the facts as alleged in the complaint as true, and give the plaintiff the benefit of every possible favorable inference. (Leon v Martinez, 84 NY2d 83, 87 [1994]; JF Capital Advisors, LLC v Lightstone Group, LLC, 25 NY3d 759, 764 [2015].) The court’s inquiry is limited to assessing the legal sufficiency of the plaintiff’s pleadings; accordingly, its only function is to determine whether the facts as alleged fit within a cognizable legal theory. (JF Capital Advisors, 25 NY3d at 764; Skill Games, LLC v Brody, 1 AD3d 247, 250 [1st Dept 2003].) “Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” (CPLR 3013.)

Motion Sequences 006 and 007: Dismissal under CPLR 3211 (a) (7) and CPLR 3013

In motion sequences 006 and 007, defendants the Russel Friedman Law Group, LLP, Charles H. Horn, Esq., Neil Flynn, Esq., Phillip Hakyeon Kim, Esq., and Ronald Frederick [*2]Wright, Jr., Esq., and defendants Drachman Katz, LLP and Revaz Chachanashvili and Associates P.C., respectively, move to dismiss plaintiffs’ first through sixth causes of action for legal malpractice and seventh cause of action for breach of contract, which the Court notes asserts claims sounding in breach of fiduciary. In the interests of judicial economy and consistency, both motions, which seek dismissal of functionally identical causes of action, are addressed jointly.

The law firm defendants argue, chiefly, that the legal malpractice claim is insufficient as a matter of law as the amended complaint contains no allegations as to a discrete instance of breach, that plaintiffs insufficiently pled proximate causation from attorneys’ negligence, and that the allegations as to a conflict of interest do not adequately form a basis for breach of fiduciary duty claims. Specifically, they argue that plaintiffs’ claims are premised upon the law firm defendants’ representation of plaintiffs in various undefined and unspecified “arbitrations and litigations.”^[FN2] Further, the allegations as to the individual attorneys and law firms are conclusory, as they lack specificity regarding the nature of the representation at issue or the actual transactions involved. Moreover, the law firm defendants argue that the alleged conflict of interest purported to form the basis of plaintiffs’ legal malpractice claims is similarly conclusory in that it consists of unsupported allegations that the law firms did business with plaintiffs under the guise of the billing defendants, M&D Capital and Lake Success, while simultaneously representing plaintiffs. Accordingly, the law firm defendants also refute the sufficiency of an alleged “ethics violation” based on conflict of interest as the basis for legal malpractice claims. Lastly, it is argued that the allegations as to the individual attorney defendants are likewise conclusory. Aside from asserting their place of business, claiming that they provided legal services to Metro Pain, and alleging that they engaged in unspecified departures from good practice, the complaint contains no allegations that form the basis for the legal malpractice and breach of fiduciary duty claims.

To sustain a cause of action for legal malpractice at the pleading stage, a plaintiff must show “(1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff’s losses; and (3) proof of actual damages.” (Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied, 6 NY3d 713 [2006].) The plaintiff must plead specific facts that, if true, demonstrate “that the attorney failed to exercise ‘the ordinary reasonable skill and knowledge’ commonly possessed by a member of the legal profession.” (Darby & Darby v VSI Int’l, 95 NY2d 308, 313 [2000].) Unsupported factual allegations and conclusory legal arguments do not suffice for pleading a legal malpractice cause of action. (Dweck Law Firm, LLP v Mann, 283 AD2d 292 [1st Dept 2001].)

Here, the amended complaint is bereft of allegations as to a discrete instance of attorney negligence — a departure from the exercise of ordinary reasonable skill and knowledge commonly possessed by an attorney — in the representation of plaintiffs. Specifically, plaintiffs allege that the law firm defendants failed to commence certain proceedings to the effect of delaying collection and billing practices. Yet, the amended complaint does not contain allegations that sufficiently support proximate causation and damages, as it merely asserts that [*3]such departures in legal representation caused unspecified financial damage to plaintiffs. Indeed, dismissal is warranted where a complaint merely alleges that, but for attorney defendants’ failure to provide timely and competent legal services, a plaintiff would have succeeded in underlying debt collection and mortgage foreclosure actions. (See Mid-Hudson Valley Federal Credit Union v Quartararo & Lois, PLLC, 155 AD3d 1218 [3d Dept 2017] affd 31 NY3d 1090 [2018].) In Mid-Hudson v Quartararo & Lois, PLLC, the Court observed that, like here, absent from the amended complaint is any mention of an instance of deficient representation or any example of erroneous advice by defendants. The Court thus held that merely alleging the elements of a legal malpractice claim in a general fashion, without more, does not satisfy the liberal pleading standard of CPLR 3211. This Court follows suit. Moreover, the Court is mindful that speculative and conclusory allegations of proximately caused damages cannot serve as a basis for a legal malpractice claim. (Freeman v Brecher, 155 AD3d 453, 453 [1st Dept 2017] citing Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 436 [1st Dept 2011].) Therefore, the Court finds the allegations in the complaint fails to state a cause of action against the law firm defendants on this grounds.

Similarly, plaintiffs’ legal malpractice claims premised on a conflict of interest are insufficiently pled. To plead liability for legal malpractice based upon an alleged conflict of interest, a plaintiff must allege a causal relationship between the conflict of interest and the damages sustained. (Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008].) To the extent plaintiffs allege that “there would have been a better financial outcome for Plaintiff” but for the law firm defendants’ departures, said claims for legal malpractice are, without more, too speculative to be ascertainable. (Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014].) In any event, the speculative nature of plaintiff’s claim of damages arising from the law firm defendants’ alleged conflicts of interest in representing plaintiffs while simultaneously doing business with them through the billing defendants cannot support a legal malpractice claim. (See e.g. Freeman v Becher, 155 AD3d 453, 454 [1st Dept 2017].) Neither does the alleged violation of the New York Rules of Professional Conduct, alone, suffice to support plaintiffs’ claims of legal malpractice. (Cohen v Kachroo at 513.)

Turning to plaintiffs’ breach of contract claim, herein addressed as, functionally, a breach of fiduciary duty claim, the Court finds same to be duplicative of the legal malpractice claims. New York courts have consistently held that breach of fiduciary duty claims, when premised on the same facts and seeking the identical relief as legal malpractice claims, are redundant and subject to dismissal. Weil, Gitshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [1st Dept 2004].) Here, the seventh cause of action against the law firm defendants clearly states that “[b]y reason of their attorney client relationships and other relationships as alleged herein, all attorney Defendants owed Plaintiffs the duties of a fiduciary.” (See NYSCEF doc. no. 37 at ¶ 149.) The breach of same duties is alleged to be the failure of the law firm defendants to manage filing dates, calendars, and deadlines, which is not distinct from the alleged departures from the reasonable skill and knowledge that form the basis for plaintiffs’ legal malpractice claims. (See Freeman v Brecher, 155 AD3d 453, 453 [1st Dept 2017] citing Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 436 [1st Dept 2011].) The Court has considered all remaining arguments and finds them to be unavailing. Thus, motion sequences 006 and 007, seeking dismissal of plaintiffs’ first through seventh causes of action are granted.

Motion Sequence 005 and 008: Dismissal pursuant to CPLR 3211 (a) (7), CPLR 3013, CPLR [*4]3016 (b)

In motion sequences 005 and 008, M&D Capital and Lake Success, respectively, move to dismiss plaintiffs’ eighth and ninth causes of action for breach of contract and breach of fiduciary duty. As both motions address the same causes of action and seek dismissal under nearly identical grounds, they are addressed jointly. For the following, both are granted.

In support of their motions, M&D Capital and Lake Success argue that the pleadings are insufficient under CPLR 3013, where the complaint merely alleges the existence of a contract for billing services but fails to allege the breach of a specific provision. Further, as a preliminary matter, the complaint appears to seek damages for the breach of a “contract for the provision of legal services” while simultaneously alleging that M&D Capital and Lake Success are corporations contractually retained for the provision of “various Collection Services.” (See generally NYSCEF doc. no. 37.) The billing defendants further argue that the complaint is otherwise replete with vague and conclusory allegations as to the breach of a contract and resulting damages, rendering any reasonable inference to the latter as unascertainable.

To plead a cause of action for breach of contract, a plaintiff must allege that: (1) a contract exists; (2) plaintiff performed in accordance with the contract; (3) defendant breached its contractual obligations; and (4) defendant’s breach resulted in damages. (34-06 73, LLC v Seneca Insurance Company, 39 NY3d 44, 52 [2022] [citations omitted].) Vague and conclusory allegations are insufficient to sustain a breach of contract cause of action. (Jones v Voskresenskaya, 125 AD3d 532, 533 [1st Dept 2015]; see also Gordon v Dino De Laurentiis Corp., 141 AD2d 435, 436 [1st Dept 1988].)

While plaintiffs have pled the existence of agreements with M&D Capital and Lake Success, the remaining elements required to assert a cause of action for breach of contract are absent from the amended complaint. Plaintiffs allege that Lake Success and M&D Capital, respectively, entered into agreements with plaintiffs in February 2019 for collection services. (See NYSCEF docs. no. 73, Lake Success “Financing Agreement,” and 76, M&D Capital “Service Agreement.”) Yet, plaintiffs premise their breach of contract claim upon a contract “for the provision of legal services.”^[FN3] Furthermore, though the breach of contract causes of action intend to state a claim on behalf of “plaintiffs” collectively, the agreements, as alleged and as filed in support of this motion, are signed only by plaintiff Shapiro on behalf of Metro Pain. (Id.) This notwithstanding, the allegations do not meet CPLR 3013 requirements. Although plaintiffs cite to “Article 1, Sections 1.1-1.5” as the sections allegedly breached by Lake Success, plaintiffs have yet to articulate the breach of any such provisions or terms. Notably, it appears from the complaint that the breaches, as alleged against the billing defendants, are premised upon their failure to supervise and/or seek through the attorneys engaged in collection services, demands for payments or legal assistance. Furthermore, that the billing defendants somehow were able to, and chose not to, supervise party or non-party attorneys’ functions to the effect of breaching their collection services agreements at the detriment of plaintiffs is conclusory and [*5]devoid of merit.^[FN4]

As to plaintiffs’ claims for breach of fiduciary duty against the billing defendants, these claims are likewise dismissed. Plaintiffs were required to allege (1) that the billing defendants owed a fiduciary duty to plaintiffs; (2) that the billing defendants committed misconduct; and (3) that plaintiffs suffered damages caused by said misconduct. (See Besen v Farhadian, 195 AD3d 548, 549 [1st Dept 2021].) A cause of action sounding in breach of fiduciary duty must be pled with particularity. (CPLR 3016 [b]; New York Marine & General Insurance Company v Wesco Insurance Company, 213 AD3d 461, 462 [1st Dept 2023].)

Here, the amended complaint is bereft of any factual support for the assertion that the billing defendants owed a fiduciary duty to plaintiffs, collectively or otherwise, aside from a conventional business relationship. (See Felman v Byrne, 210 AD3d 646, 650 [2d Dept 2022] [“a conventional business relationship, without more is insufficient to create a fiduciary relationship. Rather, a plaintiff must make a showing of ‘special circumstances’ that could have transformed the parties’ business relationship to a fiduciary one, such as control by one party of the other for the good of the other”]; see also Saul v Cahan, 153 AD3d 947, 949 [2d Dept 2017] [“A fiduciary relationship may exist when one party reposes confidence in another and reasonably relies on the other’s superior expertise or knowledge, but not in an arm’s-length business transaction involving sophisticated business people.”].) Indeed, “an arms-length business relationship does not give rise to a fiduciary obligation.” (WIT Holding Corp. v Klein, 282 AD2d 527, 529 [2d Dept 2001].)

Aside from alleging that the billing defendants were retained to provide collection services and the handling of confidential medical records, nothing in the amended complaint can be reasonably construed as supporting misconduct directly attributable to those defendants. As aforementioned, the alleged misconduct upon which these claims are based pertains, in turn, to the law firm defendants’ conduct found herein to be legally insufficient. Further, the lumping of M&D Capital and Lake Success on the breach of fiduciary duty cause of action is “impermissible” per CPLR 3016 (b). (See Jonas v National Life Ins. Co., 147 AD3d 610, 612 [1st Dept 2017].) The Court further finds there to be no basis for imputing fiduciary obligations based on the allegation that Revaz Chachanashvili and Associates P.C. and Drachman Katz, LLP are alter egos of Lake Success and M&D Capital, as this claim is wholly conclusory with no supporting facts alleged. (2406-12 Amsterdam Assoc. LLC v Alianza LLC, 136 AD3d 512, 512 [1st Dept 2016] [holding that plaintiffs must plead the elements of alter ego liability in a non-conclusory manner].) Therefore, motion sequences 005 and 008 are granted, and plaintiffs’ eighth and ninth causes of action are dismissed.

Cross-Motion: leave to file a second amended complaint pursuant to CPLR 3025 (b)

In their cross-motion, plaintiffs move pursuant to CPLR 3025 (b) for leave to file a second amended complaint, adding “The Russel C. Friedman Revocable trust and Elaine Friedman as Trustee of the Russel C. Friedman Revocable Trust” as a named defendant to the second, eighth, and ninth causes of action for legal malpractice, breach of contract, and breach of fiduciary duty, respectively. The cross-motion is opposed. As set forth below, same is denied.

However, “in determining whether to grant leave to amend the court must examine the [*6]underlying merits of the causes of action asserted therein, since, to do otherwise, would constitute a waste of judicial resources.” (Scott v Bell Atlantic Corp., 282 AD2d 180, 185 [1st Dept 2001] affd as modified sub nom. Goshen v Mut. Life Ins. Co. of New York, 89 NY2d 314 [2002].) Indeed, “[a] proposed amendment that cannot survive a motion to dismiss should not be permitted.” (Id.) Here, in support of their cross-motion, plaintiffs argue that the proposed amendments, aimed at refining the identity of the ownership interest in Lake Success, do not constitute prejudice to the defendants in this action. Yet, plaintiffs fail to cure any of the pleading deficiencies that form the bases of the defendants’ multiple motions to dismiss, even after having filed an amended complaint in response to the initial motions to dismiss. As the proposed second amended complaint cannot survive a motion to dismiss on the aforementioned grounds, the cross-motion for leave to file a second amended complaint is denied.

Accordingly, it is hereby.

ORDERED that defendants the Russell Friedman Law Group, LLP, Charles Horn, Esq., Neil Flynn, Esq., Phillip Hakyeon Kim, Esq., Ronald Frederick Wright, Jr. Esq., the Estate of Russell C. Friedman, deceased, Lake Success Receivables Recovery, Inc., M & D Capital Premier Billing, LLC, Drachman Katz, LLP, and Revaz Chachanashvili and Associates P.C.’s respective motions to dismiss under motion sequences 005, 006, 007, and 008 are granted in their entirety; and it is further

ORDERED that plaintiffs’ cross-motion for leave to file a second amended complaint is denied; and it is further

ORDERED that the amended complaint is hereby dismissed; and it is further

ORDERED that within ten (10) days of entry counsel for defendants shall file a copy of this Decision and Order, with notice of entry, upon all parties to this action via NYSCEF.

This constitutes the Decision and Order of the Court.

DATE 01/29/2026
DAKOTA D. RAMSEUR, J.S.C.

Footnote 1:Plaintiffs filed the amended complaint on December 7, 2023. (NYSCEF doc. no. 37.) Motion sequences 001, 002, 003, and 004, all motion to dismiss the original complaint, were withdrawn without prejudice. (See NYSCEF doc. no. 41.) The motions, refiled as seeking dismissal of the amended complaint, are addressed herein.

Footnote 2:From the allegations in the complaint, it is unclear whether the law firm defendants, collectively or otherwise, represented one or multiple plaintiffs and, if so, whether said representation was simultaneous.

Footnote 3:Indeed, the complaint alleges that “Plaintiffs had a valid and enforceable contract for Defendants’ provision of legal services, and as a result of the Retainer Agreement, there was privity between Plaintiffs and Defendants.” (NYSCEF doc. no. 37 at ¶ 155.)

Footnote 4:The amended complaint alleged that such conduct resulted in unspecified “lost revenue” that would otherwise have been avoided had the billing services defendants and law firm defendants “collected with adequate cooperative efforts.” (NYSCEF doc. no. 37.)Chapa Prods., Corp. v MVAIC (2026 NY Slip Op 00342)

Reported in New York Official Reports at Chapa Prods., Corp. v MVAIC (2026 NY Slip Op 00342)

Chapa Prods., Corp. v MVAIC

2026 NY Slip Op 00342 [245 AD3d 880]

January 28, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, March 11, 2026

[*1]

Chapa Products, Corp., as Assignee of Emmanuel Vidal, Respondent, v MVAIC, Appellant.

Marshall & Marshall, PLLC, Jericho, NY (David A. Gierasch of counsel), for appellant.

Insurance – Health and Accident Insurance – Denial of Claim – Failure to Include Time Limit to Issue Denial

In an action to recover no-fault benefits, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts dated November 1, 2019. The order, insofar as appealed from, modified an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), dated March 17, 2017, by providing that the defendant’s cross-motion for summary judgment dismissing the complaint is denied and, upon searching the record, the complaint is dismissed without prejudice.

Ordered that the order dated November 1, 2019, is reversed insofar as appealed from, on the law, with costs, and so much of the order dated March 17, 2017, as granted the defendant’s cross-motion for summary judgment dismissing the complaint is affirmed.

The plaintiff, a medical provider, commenced this action against the defendant insurer to recover assigned no-fault benefits for medical services provided to an insured. The plaintiff moved for summary judgment on the complaint. The defendant cross-moved for summary judgment dismissing the complaint, arguing, inter alia, that the plaintiff failed to provide requested verification within 120 days of the defendant’s initial verification request in violation of 11 NYCRR 65-3.8 (b) (3). In an order dated March 17, 2017, the Civil Court, among other things, denied the plaintiff’s motion and granted the defendant’s cross-motion.

In an order dated November 1, 2019, the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts modified the order dated March 17, 2017, by providing that the defendant’s cross-motion for summary judgment dismissing the complaint is denied and, upon searching the record, the complaint is dismissed without prejudice. The Appellate Term determined that the defendant, in failing to deny the plaintiff’s claim on the ground that the plaintiff failed to provide requested verification within 120 days of the defendant’s initial verification request, within 30 days of the expiration of the 120-day period, was precluded from asserting that defense. By order of the Appellate Term dated May 1, 2020, the defendant was granted leave to appeal to this Court.

11 NYCRR 65-3.8 (b) (3), the relevant regulation, unambiguously states that “an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.” The regulations do not [*2]specify a time frame under which the insurer must issue a denial following the 120-day period. Had the New York State Department of Financial Services intended to impose a mandatory 150-day time limit to issue a denial for failure to provide the requested verification, it would have included such language in the regulations (see Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 209 [1976]). Under these circumstances, the Appellate Term improperly determined that the defendant’s denial of the plaintiff’s claim was untimely because it was not within 150 days of the initial verification request. Accordingly, the Appellate Term should have affirmed so much of the Civil Court’s order as granted the defendant’s cross-motion for summary judgment dismissing the complaint. Genovesi, J.P., Ford, Wan and Love, JJ., concur.

New York Heritage Med Serv, PLLC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50099(U))

Reported in New York Official Reports at New York Heritage Med Serv, PLLC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50099(U))

[*1]

New York Heritage Med Serv, PLLC v Nationwide Affinity Ins. Co. of Am.

2026 NY Slip Op 50099(U) [88 Misc 3d 1215(A)]

Decided on January 28, 2026

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 January 28, 2026

New York Heritage Med Serv, PLLC, a/a/o HAYNES, VERNAL, Plaintiff, against Nationwide Affinity Insurance Company of America, Defendant.

Index No. CV-754273-21/KI



The Rybak Firm PLLC, Brooklyn, for Plaintiff.

Hollander Legal Group, P.C., Melville, for Defendant.
Sandra E. Roper, J.

Upon the foregoing cited papers, the Decision/Order on Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment is as follows:

After oral argument, Defendant’s Motion for Summary Judgment is GRANTED and Plaintiff’s Cross Motion for Summary Judgment is DENIED. Plaintiff established that it timely mailed the bills at issue to Defendant. After receiving the bills, Defendant timely noticed examinations under oath (“EUO”) of the Plaintiff by letters dated July 21, 2021, August 6, 2021, and September 24, 2021. Defendant further established that Plaintiff failed to appear for EUOs on September 23, 2021, after the previously agreed upon reschedule, and November 16, 2021. Plaintiff’s Second Request for a reschedule the day before the scheduled EUO on September 23, 2021 premised upon ongoing negotiations was not agreed upon by Defendant and thus not rescheduled. An EUO reschedule cannot be unilateral. Rather, it must be agreed upon, in which it was not so done here. Plaintiff contacted Defendant and requested the EUO be scheduled in [*2]September 2021 and then November 2021, of which Defendant agreed and accommodated to do so, accordingly scheduling the EUOs for September 23. 2021 and November 16, 2021, respectively. See MSB Physical Therapy, P.C. v. Nationwide Ins., 2022 NY Slip Op 50902(U).

Thus, the case is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Date: January 28, 2026
Brooklyn, New York
Honorable Sandra E. Roper
Judge, Civil Court, Kings CountyJPM Physical Therapy, P.C. v Foremost Prop. & Cas. Ins. Co. (2026 NY Slip Op 50089(U))

Reported in New York Official Reports at JPM Physical Therapy, P.C. v Foremost Prop. & Cas. Ins. Co. (2026 NY Slip Op 50089(U))

[*1]

JPM Physical Therapy, P.C. v Foremost Prop. & Cas. Ins. Co.

2026 NY Slip Op 50089(U) [88 Misc 3d 1213(A)]

Decided on January 27, 2026

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 January 27, 2026

JPM Physical Therapy, P.C., A/A/O Ricardo Suarez, Plaintiff(s), against Foremost Property and Casualty Insurance Company, Defendant(s).

Index No. CV-700147-21/KI



The Rybak Firm PLLC, Brooklyn, for Plaintiff.

Law Offices of Rothenberg & Romanek, Garden City, for Defendant. Sandra Elena Roper, J.

Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:

Papers
Notice of Motion and Affidavits Annexed 1-2
Answering Affidavits ___
Replying Affidavits ___
Exhibits ___
Other ___

Upon the foregoing papers, and after oral Argument on the record held January 22, 2026, the Decision and Order on Defendant’s Motion to Compel Acceptance of Answer and Plaintiff’s Cross-Motion for Default Judgment are hereby decided as follows:

Defendant’s Motion to Compel Acceptance of Answer is GRANTED and Plaintiff’s Cross-Motion is hereby DENIED. Plaintiff’s application for a traverse hearing to determine which of two affidavits of service should prevail is rejected. Of emphasis, both affidavits of service were provided by Plaintiff and neither one by Defendant. Arguendo, where Defendant had countered Plaintiff’s affidavit of service with a contradictory affidavit of service may have triggered a traverse hearing, this is not the facts herein. Most notably, Plaintiff’s Cross-Motion for Default Judgment appended to be considered as its Exhibit 2, affidavit of service stating served on “Wednesday, February 24, 2021, at Friday, March 12, 2021” which was notarized on Saturday, “March 13, 2021“. Whereas, not appended to Plaintiff’s moving papers is a second affidavit of service designated as NYSCEF 2 stating served on “February 24, 2021” which was notarized on “Thursday April 21, 2022“. Where there are two distinct dates of notarization, Plaintiff’s scrivener’s error argument that the actual date of service was on February 24,2021, its more favorable date, as opposed to March 12, 2021, fails.

Procedurally, it is the papers contained within the motion that are to be considered by the court notwithstanding other documents contained within the clerk of court records. Plaintiff cannot be prejudiced by its own contradictory evidence herein. Rather, the movant’s contradictory evidence inures to the benefit of and in the light most favorable to opposing respondent. Notwithstanding the contradictions, jurisdiction of This Court is established. Further, Plaintiff errs as it argues that the court lacks authority to make findings of fact herein because of contradictory language. On the contrary, not being considered is the prayer for relief for summary judgment, which would indeed bar court from engaging in fact finding as a matter of law. However, in both instant motions for default judgment and to compel acceptance of Answer, it is within This Court’s limited powers in equity to engage in some fact finding to make its decision.

Consequently, March 12, 2021, is deemed the service date, which upon calculation of the Answer served on April 22, 2021, results in being about seven days late. This Court finds this lateness di minimis in its exercise of its judicial discretion and thus in furtherance of the strong public policy favoring resolution of cases on the merits, Defendant’s Answer is deemed accepted non pro tunc.

This constitutes the Decision and Order of the Court.

Dated: January 27, 2026
Brooklyn, New York
Hon. Sandra Elena Roper, JCCAdvantage Radiology, P.C. v ACE Am. Ins. Co. (2026 NY Slip Op 50245(U))

Reported in New York Official Reports at Advantage Radiology, P.C. v ACE Am. Ins. Co. (2026 NY Slip Op 50245(U))

[*1]

Advantage Radiology, P.C. v ACE Am. Ins. Co.

2026 NY Slip Op 50245(U) [88 Misc 3d 1226(A)]

Decided on January 27, 2026

Civil Court Of The City Of New York, Richmond County

Helbock, 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 January 27, 2026

Advantage Radiology, P.C. As Assignee Of ATYBA OROSCO, Plaintiff(s) against ACE American Insurance Company, Defendant(s)

Index No. CV-723185-22/RI

Robert J. Helbock, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered
Order to show Cause/ Notice of Motion and
Affidavits /Affirmations annexed Motion #2, NYSCEF Doc#: 11-19
Answering Affidavits/ Affirmations NYSCEF Doc#: 21
Reply Affidavits/ Affirmations NYSCEF Doc#: 22-25
Memoranda of Law
Other

Upon the foregoing cited papers, the decision on Defendant’s Motion for Summary Judgment is as follows:

Plaintiff, Advantage Radiology, P.C. (hereafter referred to as “Plaintiff”), as assignee of Atyba Orosco (hereafter referred to as “Assignor”), commenced this action against the defendant, Ace American Insurance Company (hereafter referred to as “Defendant”), to recover assigned first-party automobile insurance (hereafter referred to as “No-Fault”) benefits for medical treatment provided to the Assignor pursuant to a No-Fault insurance policy issued by the Defendant.

The Defendant moves for an order (i) pursuant to CPLR §3211(a)(2), (5), and (7) dismissing the complaint on the grounds that the Court does not have subject jurisdiction because the N.Y.S. Workers’ Compensation Board has exclusive jurisdiction to decide the claim.

The complaint in this matter alleges the assignor was injured in a motor vehicle accident on May 6, 2022. The Plaintiff’s complaint alleges it provided medical treatment to the assignor on May 31, 2022 and billed the sum of $967.70. The complaint also alleges the Plaintiff [*2]provided medical treatment to the assignor on June 7, 2022 and billed the sum of $1,003.20 to the Defendant. The complaint alleges those sums remain unpaid.

The Defendant moves to dismiss the complaint on the grounds that the N.Y.S. Workers’ Compensation Board issued a decision the following year, on May 16, 2023 establishing that the assignor’s injuries were related to a work-related accident. The Defendant argues that since the Workers’ Compensation Board established that the workers’ compensation insurance carrier is liable for injuries to the assignor/claimant’s right hand, right foot and left knee, this Court does not have subject matter jurisdiction to determine if the Defendant No-Fault carrier failed to timely pay the bill.

The Plaintiff opposes the motion alleging the Defendant failed to issue a timely denial of the bill, and the defense of the assignor’s eligibility for workers’ compensation benefits is subject to preclusion. Therefore, the Defendant’s failure to timely deny the bill precludes the Defendant from raising the assignor’s eligibility for workers’ compensation benefits more than one year after the bill.

The N.Y.S. Workers’ Compensation Law (hereafter referred to as “WCL”) §20 directs that the N.Y.S. Workers’ Compensation Board (hereafter referred to as “NYSWCB”) “shall have full power and authority to determine all questions in relation to the payment of claims presented to it for compensation under the provisions of this chapter” (NY WCL §20). Therefore, the NYSWCB determines if the claim is covered by a worker’s compensation insurance carrier.

However, the N.Y.S. Court of Appeals ruled that the NYSWCB has “primary jurisdiction, but not necessarily exclusive jurisdiction” regarding issues involving the accident (Liss v Trans Auto Systems, Inc., 68 NY2d 15 [1986]). The Court said, “[N]o one should be precluded from relitigating those issues in a court of law who has not had the opportunity to participate in the compensation hearing.” (Liss v Trans Auto Systems, Inc., 68 NY2d 15, at P. 20 [1986]. “The [NYSWCB] thus has primary jurisdiction over the issue of availability of coverage (Id. Liss, citing, Botwinick v Odgen, 50 NY2d 9-9, 911, and Peckham v Peckham Materials Corp., 102 AD2d 884) and a plaintiff has no choice but to litigate this issue before the Board.” (Liss v Trans Auto Systems, Inc., 68 NY2d 15 at P. 20 [1986], citing Cunnigham v. State of New York, 60 M.Y.2d 248, and McMillan v. Notre Dame Residence Club, 33 Misc 2d 948).

The Defendant relies on Seigel v Garibaldi (158 AD3d 1049 [3d Dept, 2018]) to allege that this Court does not have jurisdiction over the No-Fault claim involving the accident. The movant quoted Seigel as stating, “Workers’ Compensation is plaintiff’s exclusive remedy, ‘in place of any other liability [whatsoever;’] see, Seigel v. Garibaldi, 158 AD3d 1049, 73 N.Y.S.3d 253.”^[FN1] Actually, the relevant quote from the Seigel decision is:

“There is no dispute that plaintiff and defendant were co-employees, that plaintiff was injured in the course of his employment and that he collected workers compensation benefits for his injuries. Pursuant to Workers Compensation Law §29(6), such benefits are the exclusive remedy for an employee injured ‘by the negligence or wrong of another in the same employ.’ The sole question presented is whether the defendant was acting [*3]within the scope of his employment at the time of the accident so as to trigger the exclusivity provisions of the Workers Compensation Law” (Siegel v. Garibaldi, 158.3d 1049, at P. 149 [3d Dept., 2018], citing NY WCL §29(6) and Maines v. Cronomer Val. Fire Dept., 50 NY2d 535, 544 [1980]).

So, the decision is ruling that the “exclusive remedy” pursuant to the workers’ compensation law relates to the determination of whether the accident was covered by the workers’ compensation law and policy. In this instance, the issue before the Court is to determine if the Defendant complied with the N.Y.S. Insurance Law pertaining to the timely payment or denial of the claim pursuant to the No-Fault insurance policy. This issue is distinguishable from the arguments raised by the Defendant and their reliance upon Seigel.

The Plaintiff’s opposition to the motion relies on Westchester Med. Ctr. v. American Tr. Ins. Co. (60 AD3d 848 [2d Dept., 2009]) to argue that that the Claimant must pay or deny the claim within 30 days. However, this Court finds that the Westchester decision did not reach that conclusion. Rather, the Court in Westchester Med. Ctr. ruled that American Transit Insurance Company’s timely verification request determined the claim was covered under a worker’s compensation policy and therefore, the denial of the No-Fault insurance claim was proper. In that instance, the insurer complied with the 30-day rule (11 NYCRR 65-[3.8])^[FN2] and the Court ruled in the insurer’s favor. That was not the case in this instance.

The Plaintiff’s opposition also argues that the Defendant failed to raise the defense of eligibility under the worker’s compensation policy in a timely denial.

The No-Fault regulations require the insurer to pay or deny a claim for No-Fault insurance benefits within 30-days of the receipt of the claim (11 NYCRR 65-3.8, referred to as the “30-day rule”). The Appellate Division, Second Department has ruled that the “defendant’s possible entitlement to offset any no-fault benefits it pays by any recovery pursuant to a workers compensation claim does not constitute a defense of lack of coverage, which is not subject to the requirement that there be a timely service of the disclaimer.” (Westchester Medical Center v. Lincoln General Ins. Co., 60 AD3d 1045 [2nd Dept., 2009], citing, 11 NYCRR §65-3.5[a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 N.Y3d 556, 663; remaining citations omitted). The Appellate Term ruled that, “since the defense of assignor’s eligibility for worker’s compensation benefits is subject to preclusion (citing, Westchester Med. Ctr. v Lincoln Gen,. Ins. Co.) defendant was required to demonstrate that it timely denied plaintiff’s claims on said grounds within 30 days of their receipt” (A.B. Medical Services, PLLC v. American Transit Ins. Co., 24 Misc 3d 127(A) [App Term, 9th and 10th J.D., 2009]; citing Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274 at P.282 [1997]).

This Court has the subject matter jurisdiction to determine if the Defendant complied with the No-Fault law and insurance policy. The NYSWCB has the primary jurisdiction to determine if an accident is work related and determine all claims made pursuant to the workers’ [*4]compensation insurance policy. The two are not mutually exclusive.

Pursuant to the No-Fault insurance regulations, the defense of workers’ compensation coverage to a claim for No-Fault insurance benefits must be raised within 30-days of the receipt of the No-Fault insurance claim (11 NYCRR §65-3.8). In this instance, the Defendant did not offer any evidence of a timely denial or verification request with the motion to dismiss. Therefore, the Defendant did not demonstrate that it timely complied with the 30-day rule (11 NYCRR §65-3.8). It is alleged that the first time the Plaintiff became aware of the workers’ compensation claim was in the Defendant’s answer to the complaint in this action. As a result, the Defendant has failed to meet its prima facie burden of proof for the motion to dismiss.

The Court notes that if, after trial, the Defendant is found liable for the bill, the Defendant has the remedy of recovery for the payment of the bill from the workers compensation insurance carrier pursuant to WCL §13(d)(1).

Accordingly, the Defendant’s motion to dismiss is denied, and the matter is referred for trial.

This is the decision and order of the Court.

Date: January 27, 2026
Hon. Robert J. Helbock
Judge, N.Y.C. Civil Court

Footnote 1:Affirmation in Support of Motion #2, NYSCEF Document #12, Page 3, Par. 6.

Footnote 2:The section of the regulations has been changed from §65-3.5(a) to §65-3.8 since the decision of the Court in Westchester Med. Ctr. v. American Tr. Ins. Co. Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50199(U))

Reported in New York Official Reports at Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50199(U))

[*1]

Healthway Med. Care, P.C. v MVAIC

2026 NY Slip Op 50199(U) [88 Misc 3d 129(A)]

Decided on January 23, 2026

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 January 23, 2026

PRESENT: : JOANNE D. QUIÑONES, J.P., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-51 K C

Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant.

The Rybak Firm, PLLC (Oleg Rybak, of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated October 9, 2024. The order, insofar as appealed from, in effect, denied defendant’s motion for summary judgment dismissing the complaint.

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 in the total amount of $2,289.13 for services rendered from October 2017 through April 2018, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground of exhaustion of available coverage. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. By order dated October 9, 2024, the Civil Court (Odessa Kennedy, J.), in effect, denied the motion and cross-motion, but found, in effect pursuant to CPLR 3212 (g), that “plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and defendant issued timely denials.” The court held that triable issues of fact remained as to MVAIC’s exhaustion of coverage and fee schedule defenses.

To obtain summary judgment on its asserted defense that the limits of any available coverage had already been exhausted, MVAIC had to prove that its payments exhausted the available coverage in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, the affidavit of MVAIC’s claims representative was sufficient to lay a [*2]foundation for MVAIC’s payment log to be admitted as a business record (see CPLR 4518 [a]). However, as the payment log does not set forth the dates on which MVAIC had received the various claims and the dates on which such claims became fully verified, MVAIC failed to demonstrate, as a matter of law, that the limits of the available coverage had been exhausted in accordance with 11 NYCRR 65-3.15. Consequently, MVAIC’s motion for summary judgment dismissing the complaint was properly denied (see JFL Med. Care, P.C. v MVAIC, 81 Misc 3d 145[A], 2024 NY Slip Op 50202[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

We note that, while the Civil Court held that a triable issue of fact exists as to MVAIC’s fee schedule defense, MVAIC did not raise a fee schedule defense in support of its motion for summary judgment.

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 23, 2026Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50200(U))

Reported in New York Official Reports at Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50200(U))

[*1]

Healthway Med. Care, P.C. v MVAIC

2026 NY Slip Op 50200(U) [88 Misc 3d 129(A)]

Decided on January 23, 2026

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 January 23, 2026

PRESENT: : JOANNE D. QUIÑONES, J.P., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-157 K C

Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated October 9, 2024. The order, insofar as appealed from, in effect, denied defendant’s motion for summary judgment dismissing the complaint.

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 in the total amount of $1,384.21 for services rendered from October 2017 to February 2018, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the first, third, fourth, fifth, and sixth causes of action on the ground of exhaustion of available coverage, dismissing the first cause of action on the additional ground of untimely submission of the claim underlying that cause of action, and dismissing the second cause of action on the ground of MVAIC having paid the claim underlying that cause of action in accordance with the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. By order dated October 9, 2024, the Civil Court (Odessa Kennedy, J.) denied the motion and cross-motion, finding, in effect, purportedly pursuant to CPLR 3212 (g), that plaintiff had “establishe[d] its prima face case of timely and properly submitting the bills” underlying causes of action two through six and that defendant had “issued timely denials.”

To obtain summary judgment on its asserted defense that the limits of any available [*2]coverage had already been exhausted, MVAIC had to prove that its payments exhausted the available coverage in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, the affidavit of MVAIC’s claims representative was sufficient to lay a foundation for MVAIC’s payment log to be admitted as a business record (see CPLR 4518 [a]). However, as the payment log does not set forth the dates on which MVAIC had received the various claims and the dates on which such claims became fully verified, MVAIC failed to demonstrate, as a matter of law, that the limits of the available coverage had been exhausted in accordance with 11 NYCRR 65-3.15. Consequently, the branch of MVAIC’s motion seeking summary judgment dismissing the first, third, fourth, fifth, and sixth causes of action on this ground was properly denied (see JFL Med. Care, P.C. v MVAIC, 81 Misc 3d 145[A], 2024 NY Slip Op 50202[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

The affidavit of defendant’s claims representative demonstrated that MVAIC did not receive the claim underlying the first cause of action within 45 days of the services rendered (see 11 NYCRR 65-2.4 [c]; 65-3.3 [e]). However, plaintiff submitted an affidavit from plaintiff’s billing clerk that was sufficient to give rise to a presumption that the claim form had been timely mailed to, and received by, MVAIC (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, contrary to MVAIC’s contention, there is an issue of fact as to whether the claim was timely submitted to MVAIC (see Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Contrary to MVAIC’s argument, it failed to sufficiently demonstrate, prima facie, that it had properly applied CPT code 95834 to the claim underlying the second cause of action that had been billed by plaintiff under CPT code 95831 (cf. Spineisland for Chiropractic, P.C. v 21st Century Advantage Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50598[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 23, 2026Acupuncture Now, P.C. v MVAIC (2026 NY Slip Op 50196(U))

Reported in New York Official Reports at Acupuncture Now, P.C. v MVAIC (2026 NY Slip Op 50196(U))

[*1]

Acupuncture Now, P.C. v MVAIC

2026 NY Slip Op 50196(U) [88 Misc 3d 128(A)]

Decided on January 23, 2026

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 January 23, 2026

PRESENT: : JOANNE D. QUIÑONES, J.P., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-47 K C

Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant.

The Rybak Firm, PLLC (Oleg Rybak, of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered October 12, 2024. The order, insofar as appealed from, in effect, denied defendant’s motion for summary judgment dismissing the complaint or, in the alternative, dismissing so much of the complaint as sought to recover sums that were in excess of $1,591.51.

ORDERED that the order, insofar as appealed from, is modified by granting the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of $1,591.51; 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 in the total amount of $2,016.60 for services rendered from October 2017 to February 2018, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground of exhaustion of available coverage or, in the alternative, dismissing so much of the complaint as sought to recover sums that were in excess of $1,591.51, the allowable amount permitted under the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. By order entered October 12, 2024, the Civil Court (Sandra E. Roper, J.), in effect, denied the motion and cross-motion, but found, in effect pursuant to CPLR 3212 (g), that both parties “had established their respective prima facie cases” and that a triable issue of fact remained only as to [*2]MVAIC’s exhaustion of coverage defense.

To obtain summary judgment on its asserted defense that the limits of any available coverage had already been exhausted, MVAIC had to prove that its payments exhausted the available coverage in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, as MVAIC failed to set forth the dates on which it had received the various claims and the dates on which such claims became fully verified, MVAIC failed to demonstrate, as a matter of law, that the limits of the available coverage had been exhausted in accordance with 11 NYCRR 65-3.15. Consequently, the branch of MVAIC’s motion seeking summary judgment dismissing the complaint on this ground was properly denied (see JFL Med. Care, P.C. v MVAIC, 81 Misc 3d 145[A], 2024 NY Slip Op 50202[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

The Civil Court implicitly denied the branch of MVAIC’s motion seeking summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of $1,591.51, the amount permitted by the workers’ compensation fee schedule. This court has repeatedly held that the workers’ compensation fee schedule for acupuncture services performed by chiropractors before October 1, 2020 is the appropriate fee schedule for insurers to use to determine the amount which a licensed acupuncturist is entitled to receive for acupuncture services (see e.g. Mind & Body Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 141[A], 2022 NY Slip Op 50603[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co., 69 Misc 3d 140[A], 2020 NY Slip Op 51337[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Jing Luo Acupuncture, P.C. v NY City Tr. Auth., 60 Misc 3d 136[A], 2018 NY Slip Op 51083[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 58 Misc 3d 137[A], 2017 NY Slip Op 51832[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; New Wave Oriental Acupuncture, P.C. v Government Empls. Ins. Co., 25 Misc 3d 133[A], 2009 NY Slip Op 52211[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Here, MVAIC conclusively established that, in accordance with the fee schedule for acupuncture services performed by chiropractors before October 1, 2020, each claim bearing code 97810 should have been billed at $20.52, each claim bearing code 97811 should have been billed at $17.57, each claim bearing code 97139 should have been billed at $16.70, and each claim bearing code 99212 should have been billed at $26.41. Consequently, MVAIC established, as a matter of law, that the fees plaintiff charged for those services rendered from October 2017 to February 2018 exceeded the amounts set forth in the workers’ compensation fee schedule by a total of $425.09 and that, therefore, so much of the complaint as sought to recover an amount in excess of $1,591.51 must be dismissed.

Accordingly, the order, insofar as appealed from, is modified by granting the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of $1,591.51.

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 23, 2026