Reported in New York Official Reports at Matter of Government Empls. Ins. Co. v Nunez (2026 NY Slip Op 50084(U))
[*1]| Matter of Government Empls. Ins. Co. v Nunez |
| 2026 NY Slip Op 50084(U) [88 Misc 3d 1212(A)] |
| Decided on January 23, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 January 23, 2026
In the Matter of the
Application of Government Employees Insurance Company, Petitioner,
against Alejandro Giron Nunez, EVELYN PEREZ DE GIRON, DMOORE ENTERPRISES LLC, MOOVERS INC., and PROGRESSIVE CASUALTY INSURANCE COMPANY, Respondents, and for an order staying uninsured motorist arbitration concerning a June 4, 2024 motor vehicle accident. |
Index No. 535220/2025
Aaron D. Maslow, J.
The following numbered papers were read on this petition: NYSCEF Document Numbers 1-28.
Upon the foregoing papers, the Court having heard oral argument on the record, and due deliberation having been had thereon, the within CPLR 7503 (c) petition in a special proceeding seeking a stay of uninsured motorist (UM) insurance arbitration is determined as follows.
” ‘The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay’ (Matter of Government Empls. Ins. Co. v Tucci, 157 AD3d 679, 680 [2018] [internal quotation marks omitted]; see Matter of AutoOne Ins. Co. v Umanzor, 74 AD3d 1335, 1336 [2010]). ‘Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing’ (Matter of [*2]Merchants Preferred Ins. Co. v Waldo, 125 AD3d 864, 865 [2015]). ‘Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue’ (Matter of Hertz Corp. v Holmes, 106 AD3d 1001, 1003 [2013]).” (Matter of Allstate Ins. Co. v Robinson, 188 AD3d 1186, 1188-1189 [2d Dept 2020.)
Here, Petitioner Government Employees Insurance Company (“GEICO”) demonstrated that Respondent filed a request for UM arbitration pertaining to a June 4, 2024 motor vehicle accident on Warwick Street, in Brooklyn, and that it served the petition herein within the requisite 20 days. Petitioner alleged:
3. Petitioner received a Demand for Arbitration filed by the attorneys for the respondent on or about 9/20/2025.[FN1]
4. This demand refers to an insurance policy issued by the petitioner providing uninsured motorist benefits. (A copy of the Demand for Arbitration is annexed as Exhibit “A”).
5. The Demand for Arbitration alleges that the respondent sustained injuries in an accident on June 4, 2024, allegedly involving an uninsured motorist. Pursuant to the MV104 signed by respondent, DMOORE ENTERPRISES LLC was the owner of the offending vehicle, a 2013 HINO Truck bearing plate number ZWK7935. (A copy of the MV-104 accident report is annexed as Exhibit “B”).
6. It is respectfully submitted that the respondent has failed to submit sufficient proof that the vehicle allegedly involved in this accident was, in fact, “uninsured” and such proof is a condition precedent to arbitration under the endorsement under which claim is made. In re Rosenbaum, 11 NY2d 310, 229 N.Y.S.2d 375 (1962); In re General Insurance Company, 100 AD2d 905, 474 N.Y.S.2d 792 (2d Dept. 1984).
7. A plate search conducted of the Pennsylvania Department of Motor Vehicle records further confirms that the offending vehicle was owned by DMOORE ENTERPRISES LLC and was insured by United Financial Casualty Company (hereinafter “PROGRESSIVE”). (See, Exhibit “C”).
8. Upon information and belief, DMOORE ENTERPRISES LLC, contends that they sold the 2013 HINO Truck. This contention directly contradicts the records maintained by the Pennsylvania Department of Motor Vehicle. DMOORE ENTERPRISES LLC has failed to provide any evidence to support the contention that they are/were no longer the owner of the vehicle involved in the subject accident.
9. On October 19, 2024, PROGRESSIVE issued a letter disclaiming coverage for the June 6, 2024 loss involving the respondents. In said letter, they refer to a policy issued to an entity called MOOVERS INC. The disclaimer concedes that there was a valid insurance policy issued to MOOVERS INC. from 11/30/2023 to 11/30/2024, during which the subject accident occurred. However, their disclaimer of coverage is based on the grounds that the 2013 HINO Truck bearing plate number ZWK7935 was not insured under that policy. (See Exhibit “D”).
10. Progressive Insurance had failed to come forward with any evidence to support their assertions that they did not insure the 2013 HINO Truck bearing plate number ZWK7935 [*3]that was involved in the subject accident.
11. Pursuant to the aforementioned records maintained by the Pennsylvania Department of Motor Vehicle records the 2013 HINO Truck bearing plate number ZWK7935 was owned by DMOORE ENTERPRISES LLC and was insured by United Financial Casualty Company also known as Progressive Insurance.
12. The only documentation submitted thus far by Progressive Insurance is a disclaimer of coverage under a policy of insurance issued to Moovers Inc. which pursuant to the evidence before the Court, at present, was not the owner of the subject vehicle. (NYSCEF Doc No. 1 ¶¶ 3-12.)
Also alleged is, “The petitioner, therefore, submits that the respondent has not fully complied with the condition precedent, to wit, proof that the offending vehicle was in fact ‘uninsured’, and may not proceed to arbitration. In the alternative, it is requested that arbitration be temporarily stayed pending a hearing on the issue of whether the offending vehicle was indeed ‘uninsured’ on the date of the accident, and that be joined as additional respondents to this proceeding.” (Id. ¶ 13).
Respondents Alejandro Giron Nunez and Evelyn Perez de Giron did not submit opposition. Other Respondents did. Progressive Casualty Insurance Company (“Progressive”) asserted that it did not insure the Hino truck involved in an accident on June 4, 2024. While United Financial Casualty Company, a Progressive company, did issue a commercial insurance policy to DMoore Enterprises LLC, the policy was not in effect on June 4, 2024. And, while Progressive did insure a Hino truck for Moovers Inc., it was for a truck with the New York license plate 39914NE, not the plate listed by Nunez and de Giron on their submitted MV-104 report. (See NYSCEF Doc No. 15.)
Respondent Moovers Inc. asserted that on June 4, 2024, it owned one truck, bearing New York plate 39914NE, which was booked for a junk removal job in Central Islip.
As per the case law cited above, Petitioner, who has sought a stay of UM arbitration, has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay. Petitioner relies on documents received from the Pennsylvania Department of Transportation [FN2] to show that the tortfeasor Hino truck was insured on the date of the accident, June 4, 2024. Reviewing these documents, however, establishes just the opposite. Nothing in the records shows that the Hino truck was insured on that date (see NYSCEF Doc No. 5). The only reference to insurance in them appears on a Pennsylvania Department of Transportation Applicant Summary Statement stating that the subject truck was insured with United Financial Casualty Company from May 31, 2023-May 31, 2024. This period of coverage was outside the date of the accident. This actually is consistent with the information provided by Respondent Progressive Casualty Insurance Company.
Petitioner’s petition attempts to place the burden of proof on Respondents, primarily Progressive, to come forward with evidence to support the assertion that the Hino truck bearing plate number ZWK7935 that was involved in the subject accident, was not insured. This misplaces the burden of proof. Under case law, it is the burden of Petitioner, who seeks the stay of UM arbitration, to show the existence of sufficient evidentiary facts in admissible form to [*4]establish a preliminary issue which would justify the stay (see Government Empls. Ins. Co. v Enriquez, 231 AD3d 724, 725 [2d Dept 2024]; Matter of Government Empls. Ins. Co. v Tucci, 157 AD3d 679, 680 [2d Dept 2018]; Matter of AutoOne Ins. Co. v Umanzor, 74 AD3d 1335, 1336 [2d Dept 2010]). Petitioner failed to submit any evidence tending to show that the truck was insured. “[I]t was not entitled to a framed-issue hearing, as it failed to meet its prima facie burden justifying a stay” (Matter of Allstate Fire & Cas. Ins. Co. v Rios, — AD3d —, 2026 NY Slip Op 00246, *2 [2d Dept 2026]).
Petitioner also seeks discovery from Respondent in the event the matter proceeds to arbitration. It asserted:
15. Finally, under the petitioner’s policy, the respondent is required to furnish the petitioner with a copy of all relevant medical records and authorizations, and to submit to an examination under oath and physical examinations prior to proceeding to arbitration. (See, page 14, paragraphs 2 and 3[FN3] of the petitioner’s policy entitled “Conditions”, annexed as Exhibit “E”).
16. Accordingly, if it is determined after a hearing that the respondent is entitled to proceed to arbitration under the petitioner’s policy, it is requested that respondent be directed to furnish petitioner with the disclosure required under the insurance contract. (NYSCEF Doc No. 1 ¶¶ 15-16.)
However, Petitioner has failed to inform the Court when the claim for UM benefits was submitted. While it provided the date that the request for arbitration was received, nothing here evidences whether a UM claim was submitted recently or earlier in time. The significance is that if the claim was submitted sufficiently earlier in time, then Petitioner has failed to demonstrate that it sought discovery which went unprovided. When there is ample time to obtain discovery of a UM claim and the insurer fails to seek it, it may not obtain it thereafter via a CPLR Article 75 proceeding to stay arbitration (see Matter of Government Empls. Ins. Co. v Eser, 215 AD3d 837 [2d Dept 2023]; Matter of Encompass Indem. Co. v Rich, 131 AD3d 476, 479 [2d Dept 2015]; Matter of State-Wide Ins. Co. v Womble, 25 AD3d 713 [2d Dept 2006]; Matter of Government Empls. Ins. Co. v Rosenfarb, 306 AD2d 478 [2d Dept 2003]; Matter of Allstate Ins. Co. v Miles, 280 AD2d 472 [2d Dept 2001]; Matter of Allstate Ins. Co. v Faulk, 250 AD2d 674 [2d Dept 1998]; Matter of Allstate Ins. Co. v Urena, 208 AD2d 623 [2d Dept 1994]).
Not having established that it sought discovery which was not provided, that branch of the petition seeking to stay arbitration for the purposes of obtaining discovery must be denied.
Accordingly, it is hereby ORDERED and ADJUDGED that the petition herein by GEICO seeking a CPLR 7503 (c) stay of UM insurance arbitration requested by Respondents Alejandro Giron Nunez and Evelyn Perez de Giron is DENIED, and the special proceeding is dismissed. The Clerk shall enter judgment accordingly. The arbitration request filed by Respondents Alejandro Giron Nunez and Evelyn Perez de Giron may proceed to adjudication.
Footnote 1:This special proceeding was commenced on October 8, 2025.
Footnote 2:Petitioner refers to this agency as the Pennsylvania Department of Motor Vehicle.
Footnote 3:The referenced paragraphs are on pages 26-27 of a 46-page New York Family Automobile Insurance Policy.Acupuncture Now, P.C. v MVAIC (2026 NY Slip Op 50197(U))
Reported in New York Official Reports at Acupuncture Now, P.C. v MVAIC (2026 NY Slip Op 50197(U))
[*1]| Acupuncture Now, P.C. v MVAIC |
| 2026 NY Slip Op 50197(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
2025-49 K C
against
MVAIC, Appellant.
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 or, in the alternative, dismissing so much of the complaint as sought to recover sums that were in excess of $1,580.80.
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 $1,580.80; 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 $2,373.20 for services rendered from March 2018 to 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 or, in the alternative, dismissing so much of the complaint as sought to recover sums that were in excess of $1,580.80, 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 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” and that [*2]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 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 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]).
However, the Civil Court erred in denying 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 $1,580.80, 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 its defense that, for claims bearing the code 97139, the fees charged for services rendered from March 2018 to April 2018 exceeded the amounts set forth in the workers’ compensation fee schedule for acupuncture services performed by chiropractors for a total of $792.40.
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 $1,580.80.
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 50198(U))
Reported in New York Official Reports at Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50198(U))
[*1]| Healthway Med. Care, P.C. v MVAIC |
| 2026 NY Slip Op 50198(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
2025-50 K C
against
MVAIC, Appellant.
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 and, upon denying plaintiff’s cross-motion for summary judgment, made an implicit CPLR 3212 (g) finding “that plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials” as to the first cause of action.
ORDERED that the order, insofar as appealed from, is modified by striking so much thereof as, upon denying plaintiff’s cross-motion for summary judgment, made an implicit CPLR 3212 (g) finding “that plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials” as to the first cause of action; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits in the total amount of $2,246.03 for services rendered from January 2018 to March 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 and dismissing the first cause of action on the ground that MVAIC had never received the claim underlying that cause of action. 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.) [*2]“granted” defendant’s motion and plaintiff’s cross-motion to the extent of finding, purportedly pursuant to CPLR 3212 (g), that plaintiff had “establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials” as to all causes of action and that “defendant’s defenses of fee schedule and policy exhaustion [were] triable issues.”
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 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 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]).
MVAIC correctly argues on appeal that it submitted sufficient proof to demonstrate that it had not received the claim form underlying the first cause of action (see SK Prime Med. Supply v MVAIC, 73 Misc 3d 141[A], 2021 NY Slip Op 51200[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). However, the affidavit of plaintiff’s billing clerk was sufficient to raise an issue of fact as to whether that claim had been mailed to MVAIC in accordance with a standard mailing practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Thus, there remains an issue of fact as to whether plaintiff properly submitted the claim form underlying the first cause of action to MVAIC (see Parisien v Travelers Ins. Co., 65 Misc 3d 154[A], 2019 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, MVAIC was not entitled to summary judgment dismissing the first cause of action (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), nor was plaintiff entitled to an implicit CPLR 3212 (g) finding that it “establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials” as to the first cause of action.
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 modified by striking so much thereof as, upon denying plaintiff’s cross-motion for summary judgment, made an implicit CPLR 3212 (g) finding “that plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials” as to the first cause of action.
QUIÑONES, J.P., MUNDY and OTTLEY, JJ., concur.
ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 23, 2026New Millennium Med. Imaging, P.C. v MVAIC (2026 NY Slip Op 50202(U))
Reported in New York Official Reports at New Millennium Med. Imaging, P.C. v MVAIC (2026 NY Slip Op 50202(U))
[*1]| New Millennium Med. Imaging, P.C. v MVAIC |
| 2026 NY Slip Op 50202(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: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-428 K C
against
MVAIC, Respondent.
Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Angelique Evangelista and David Gierasch of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered December 3, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint and implicitly denied, as moot, plaintiff’s cross-motion for summary judgment.
ORDERED that the order is reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court to determine plaintiff’s cross-motion for summary judgment.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Odessa Kennedy, J.) entered December 3, 2024 granting a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint, and implicitly denying, as moot, plaintiff’s cross-motion for summary judgment.
In support of its motion for summary judgment, MVAIC asserted that plaintiff’s assignor is not a “qualified person” (Insurance Law § 5202 [b]) because, under Vehicle and Traffic Law § 128, he was deemed to be an “owner” of the vehicle (see Insurance Law § 5102 [e]). Vehicle and Traffic Law § 128 provides that an “owner” is
“A person, other than a lien holder, having the property in or title to a vehicle or vessel. The term includes a person entitled to the use and possession of a vehicle or vessel subject to a security interest in another person and also includes any lessee or bailee of a [*2]motor vehicle or vessel having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days.”
Here, MVAIC’s motion failed to make a prima facie showing that plaintiff’s assignor had the exclusive use of the vehicle, either as a bailee or as a lessee, for a period greater than 30 days, or that he was entitled to the use and possession of the vehicle that was subject to a security interest in another person (see Vehicle and Traffic Law § 128; UCC 1-201 [b] [35]). Consequently, the Civil Court improperly deemed plaintiff’s assignor to be an “owner” of the vehicle and, thus, defendant’s motion should have been denied, as MVAIC failed to establish that the assignor was not a “qualified person” (see Vehicle and Traffic Law § 128; Insurance Law §§ 5102 [e]; 5202 [b]).
As the Civil Court implicitly denied plaintiff’s cross-motion for summary judgment as moot, in view of the foregoing, the matter must be remitted to the Civil Court for a determination of plaintiff’s cross-motion.
Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court to determine plaintiff’s cross-motion for summary judgment.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 23, 2026Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50184(U))
Reported in New York Official Reports at Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50184(U))
[*1]| Kalitenko v Nationwide Mut. Fire Ins. Co. |
| 2026 NY Slip Op 50184(U) [88 Misc 3d 127(A)] |
| Decided on January 16, 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 16, 2026
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-874 RI C
against
Nationwide Mutual Fire Insurance Company, Respondent.
Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor was ineligible to collect first-party no-fault benefits because he was operating a motorcycle at the time of the accident. In support of the motion, defendant submitted the transcript of plaintiff’s assignor’s examination under oath (EUO) in which he interchangeably referred to the motor vehicle he was operating at the time of the accident as a “moped” or “motorcycle.” He testified that the vehicle had a seat and a floorboard, but did not have pedals, and that the maximum speed of the vehicle was more than 40 miles per hour. Plaintiff’s assignor admitted that he did not have a driver’s license and that he had no insurance for the vehicle. Defendant also submitted a copy of the relevant insurance policy issued to the other individual involved in the accident, which policy stated that persons occupying a “[m]otorcycle, moped or similar-type vehicle” are not entitled to first-party benefits coverage. Plaintiff opposed the motion, arguing that the EUO transcript was inadmissible because it was not signed by the assignor and that, in any event, the vehicle that plaintiff’s assignor was driving did not qualify as a motorcycle under the Insurance Law. In an order dated August 15, 2024, the Civil Court (Robert J. Helbock, J.) granted defendant’s motion.
Contrary to plaintiff’s contention, the certified EUO transcript was admissible, even though it was not signed by plaintiff’s assignor (see American States Ins. Co. v Huff, 119 AD3d 478, 479 [2014]; Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc 3d 147[A], 2015 NY Slip Op 50756[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Compas Med., P.C. v ELRAC, Inc., 47 Misc 3d 143[A], 2015 NY Slip Op 50675[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Pursuant to Insurance Law § 5102 (j), a ” ‘[c]overed person’ means any pedestrian injured through the use or operation of, or any owner, operator or occupant of, a motor vehicle which has in effect the financial security required by article six or eight of the vehicle and traffic law or which is referred to in subdivision two of section three hundred twenty-one of such law; or any other person entitled to first party benefits.” Insurance Law § 5102 (f) specifically excludes motorcycles from the definition of a motor vehicle (see Insurance Law § 5102 [m]), and, thus, occupants of a motorcycle are not entitled to first-party no-fault benefits in New York (see Insurance Law § 5103 [a] [1], [2]; 11 NYCRR 65-1.1 [d]; Jung v Glover, 169 AD3d 782, 784 [2019]; Boyson v Kwasowsky, 129 AD3d 151, 152, 154 [2015]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 228 [2011]; Carbone v Visco, 115 AD2d 948 [1985]).
“A motorcycle is defined in the Insurance Law as ‘any motorcycle, as defined in [Vehicle and Traffic Law § 123], and which is required to carry financial security pursuant to article six, eight or forty-eight-A of the vehicle and traffic law’ (Insurance Law § 5102 [m] [emphasis added])” (Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d at 228). To the extent that plaintiff argues that the vehicle operated by plaintiff’s assignor did not qualify as a motorcycle required to carry financial security, we disagree. Upon a review of plaintiff’s assignor’s EUO testimony, we find that the vehicle plaintiff’s assignor was operating at the time of the accident was a motorcycle, as defined in Insurance Law § 5102 (m), because the vehicle had a seat, was operated using gas and electricity, and clearly had three or less wheels, given plaintiff’s assignor’s description of the vehicle as a “moped,” or “motorcycle” (see Vehicle and Traffic Law §§ 123, 125). Further, plaintiff’s assignor’s testimony regarding the speed of the vehicle demonstrates that the vehicle was required to carry financial security, as he testified that the vehicle had a maximum speed of more than 40 miles per hour (see Vehicle and Traffic Law §§ 121-b, 125, 311 [2]; 312 [1] [a]; 2265 [3]). Consequently, defendant met its prima facie burden of establishing that plaintiff’s assignor was ineligible to collect no-fault benefits under the insurance policy issued to the other individual involved in the accident (see Insurance Law §§ 5102 [j], [m]; 5103 [a] [1], [2]; 11 NYCRR 65-1.1 [d]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d at 228-229), and plaintiff failed to raise a triable issue of fact in opposition.
As defendant established that the accident was not a covered incident (see Insurance Law § 5102 [j]; Jung v Glover, 169 AD3d at 784), we need not pass upon plaintiff’s contention that the claim was not timely denied, as a defense of lack of coverage is not precluded even in the absence of a timely denial (see generally Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563-564 [2008]).
Accordingly, the order is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50185(U))
Reported in New York Official Reports at Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50185(U))
[*1]| Kalitenko v Nationwide Mut. Fire Ins. Co. |
| 2026 NY Slip Op 50185(U) [88 Misc 3d 127(A)] |
| Decided on January 16, 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 16, 2026
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-876 RI C
against
Nationwide Mutual Fire Insurance Company, Respondent.
Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Robert J. Helbock, J.) dated August 15, 2024 granting defendant’s motion for summary judgment dismissing the complaint.
For the reasons stated in Kalitenko, as Assignee of Wascar Gomez-Hernandez v Nationwide Mut. Fire Ins. Co. (— Misc 3d —, 2026 NY Slip Op — [appeal No. 2024-874 RI C], decided herewith), the order is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50186(U))
Reported in New York Official Reports at Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50186(U))
[*1]| Kalitenko v Nationwide Mut. Fire Ins. Co. |
| 2026 NY Slip Op 50186(U) [88 Misc 3d 127(A)] |
| Decided on January 16, 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 16, 2026
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-877 RI C
against
Nationwide Mutual Fire Insurance Company, Respondent.
Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Robert J. Helbock, J.) dated August 15, 2024 granting defendant’s motion for summary judgment dismissing the complaint.
For the reasons stated in Kalitenko, as Assignee of Wascar Gomez-Hernandez v Nationwide Mut. Fire Ins. Co. (— Misc 3d —, 2026 NY Slip Op — [appeal No. 2024-874 RI C], decided herewith), the order is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026Bridgeview Supply Corp. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 50190(U))
Reported in New York Official Reports at Bridgeview Supply Corp. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 50190(U))
[*1]| Bridgeview Supply Corp. v Nationwide Mut. Ins. Co. |
| 2026 NY Slip Op 50190(U) [88 Misc 3d 128(A)] |
| Decided on January 16, 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 16, 2026
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-36 Q C
against
Nationwide Mutual Insurance Company, Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Jay Koo and Koenig Pierre of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Sandra Perez, J.), dated October 29, 2024. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court (Sandra Perez, J.) entered October 31, 2024 as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found, in effect, pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and that plaintiff had failed to appear for the EUOs. The Civil Court further found that there was a “triable issue of fact surrounding the EUOs,” because “[p]laintiff . . . established that [it] objected to the reasonableness of each . . . request” for an EUO.
In order “to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insured need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground ‘following the [] failure to appear at the last scheduled EUO’ ” (Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am., 84 Misc 3d 136[A], 2024 NY Slip Op 51822[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud [*2]Dists 2024], quoting Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023]; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]). The Civil Court found, in effect, that the first two elements of defendant’s prima facie case had been established pursuant to CPLR 3212 (g). As part of this prima facie showing, an insurer is “not required to set forth objective reasons for requesting EUOs” (Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am., 2024 NY Slip Op 51822[U], *1-2; see Parisien v Ameriprise Auto & Home, 75 Misc 3d 138[A], 2022 NY Slip Op 50581[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; 21st Century Pharm., Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Bronx Chiropractic Care, P.C. v State Farm Ins., 63 Misc 3d 132[A], 2019 NY Slip Op 50423[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
The affidavits submitted by defendant constitute prima facie evidence that the denial of claim form had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff did not submit an affidavit to refute this evidence, nor did it challenge the implicit CPLR 3212 (g) findings in defendant’s favor with respect to the first two elements of defendant’s prima facie case. Plaintiff’s objection letters, in which plaintiff alleged that defendant did not have an objective basis for requesting an EUO, do not raise a triable issue of fact (see MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co., 77 Misc 3d 140[A], 2022 NY Slip Op 51384[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; NY Wellness Med., P.C. v Nationwide Mut. Ins. Co., 75 Misc 3d 126[A], 2022 NY Slip Op 50359[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; Bronx Chiropractic Care, P.C. v State Farm Ins., 2019 NY Slip Op 50423[U], *1-2; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As plaintiff failed to raise a triable issue of fact, defendant is entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026Circular Symmetry Acupuncture, P.C. v MTA Bus Co. (2026 NY Slip Op 50189(U))
Reported in New York Official Reports at Circular Symmetry Acupuncture, P.C. v MTA Bus Co. (2026 NY Slip Op 50189(U))
[*1]| Circular Symmetry Acupuncture, P.C. v MTA Bus Co. |
| 2026 NY Slip Op 50189(U) [88 Misc 3d 128(A)] |
| Decided on January 16, 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 16, 2026
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-19 K C
against
MTA Bus Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Gottlieb Ostrager, LLP (Dominick Giannotto of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Javier Ortiz, J.), entered August 23, 2024. The order, insofar as appealed from, denied plaintiff’s motion to enter a default judgment and granted the branch of defendant’s cross-motion seeking to compel plaintiff to accept its untimely answer.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s cross-motion seeking to compel plaintiff to accept its untimely answer is denied, and plaintiff’s motion for leave to enter a default judgment is granted.
In this action to recover assigned first-party no-fault benefits, defendant was served with the summons and complaint on April 21, 2022, and defendant answered on June 9, 2022. Six days later, plaintiff moved for leave to enter a default judgment pursuant to CPLR 3215 based upon defendant’s untimely answer. Defendant cross-moved for, among other things, an order compelling plaintiff to accept its untimely answer. Plaintiff appeals from so much of an order of the Civil Court (Javier Ortiz, J.) entered August 23, 2024 as denied its motion and granted that branch of defendant’s cross-motion seeking to compel plaintiff to accept its untimely answer.
“In order to be entitled to enter a default judgment upon a defendant’s failure to appear or answer the complaint, a plaintiff must submit evidence of service of the summons and complaint upon the defendant, evidence of a viable cause of action, and evidence of the defendant’s default in appearing or answering (see CPLR 3215 [f]; L & Z Masonry Corp. v Mose, 167 AD3d 728, 729 [2018]; Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1194 [2017]; Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969, 970 [2016])” (Glanz v Parkway Kosher Caterers, 176 [*2]AD3d 686, 688 [2019]). Here, plaintiff satisfied these requirements.
As plaintiff has established that defendant was in default, defendant was required to come forward with a reasonable excuse for its default and to demonstrate a meritorious defense to the action to avoid the entry of a default judgment (see Juseinoski v Board of Educ. of City of NY, 15 AD3d 353 [2005]). Defendant failed to demonstrate a reasonable excuse for its default because it did not provide an affidavit by anyone with personal knowledge addressing why defendant had failed to timely answer the complaint (see Modern Art Med., P.C. v M.V.A.I.C., 35 Misc 3d 134[A], 2012 NY Slip Op 50759[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Similarly, defendant’s counsel made no attempt to set forth a reasonable excuse in his affirmation. Defendant contends that plaintiff waived any objection to the answer’s untimeliness in that, while plaintiff alleged that it had mailed a letter to defendant on June 10, 2022 rejecting the answer as untimely, defendant claimed that it had not received that letter until March 2023. Plaintiff, however, moved for leave to enter a default judgment six days after receiving defendant’s untimely answer, thereby expeditiously objecting to defendant’s failure to serve a timely answer and bringing that objection to the attention of defendant and the court. Consequently, plaintiff cannot be deemed to have waived any objection to the untimeliness of the answer (see Katz v Perl, 22 AD3d 806 [2005]; J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 144[A], 2009 NY Slip Op 51089[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, we need not reach the issue of whether defendant established the existence of a meritorious defense.
Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant’s cross-motion seeking to compel plaintiff to accept its untimely answer is denied, and plaintiff’s motion for leave to enter a default judgment is granted.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026Matter of Progressive Cas. Ins. Co. v Lai (2026 NY Slip Op 00134)
Reported in New York Official Reports at Matter of Progressive Cas. Ins. Co. v Lai (2026 NY Slip Op 00134)
| Matter of Progressive Cas. Ins. Co. v Lai |
| 2026 NY Slip Op 00134 [245 AD3d 718] |
| January 14, 2026 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Progressive Casualty Insurance Company,
Appellant, v Grace Lai, Respondent. |
Jennifer S. Adams, Yonkers, NY (Michael A. Zarkower of counsel), for appellant.
Morgan & Morgan (Horn Appellate Group, Brooklyn, NY [Scott T. Horn and Ross S. Friscia] of counsel), for respondent.
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for supplementary underinsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Westchester County (Damaris E. Torrent, J.), dated August 9, 2023. The order denied the petition and, in effect, dismissed the proceeding.
Ordered that the order is reversed, on the law, with costs, and the petition to permanently stay arbitration is granted.
In May 2021, the respondent allegedly sustained injuries in a two-car accident. The respondent had automobile insurance pursuant to a policy, which included a supplementary uninsured/underinsured motorist (hereinafter SUM) endorsement, issued by Progressive Casualty Insurance Company (hereinafter Progressive). Exclusion 1 of the SUM endorsement provided that SUM coverage did not apply to an insured’s bodily injury if the insured or the insured’s legal representatives, “without our written consent, settles any lawsuit against any person or organization that may be legally liable for such injury.” Condition 9 of the SUM endorsement provided, in part, that if the insured “settles with any [negligent] party for the available limit of the motor vehicle bodily injury liability coverage of such party, release may be executed with such party after thirty (30) calendar days from our receipt of your written notice to us . . . . An insured shall not otherwise settle with any negligent party, without our written consent, such that our rights would be impaired.”
Following the accident, the respondent commenced an action against the owner and the operator of the other vehicle (hereinafter together the tortfeasors). In February 2022, the respondent advised Progressive that she had settled the action for $100,000, which was the limit of the tortfeasors’ insurance policy. By letter dated March 16, 2022, Progressive disclaimed coverage on the ground that the respondent had signed a release of her claims against the tortfeasors without its written consent.
Thereafter, the respondent demanded arbitration of her claim for SUM benefits. Progressive then commenced this proceeding pursuant to CPLR article 75 to permanently stay arbitration of the respondent’s claim for SUM benefits. In an order dated August 9, 2023, the Supreme Court denied the petition and, in effect, dismissed the proceeding. Progressive appeals.
[*2] “[T]he question of arbitrability is an issue generally for judicial determination in the first instance” (Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 45 [1997]; see Matter of Kent Waterfront Assoc., LLC v National Union Fire Ins. Co. of Pittsburgh, 174 AD3d 712, 713 [2019]). “Where [an] arbitration clause is limited in scope, claims outside that scope are not deemed arbitrable” (Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 177 AD2d 695, 696 [1991]; see Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 7 [1980]).
Contrary to the respondent’s contention, an arbitration clause in the policy issued to the respondent cannot be read to cover the issue of whether coverage exists due to the claimed applicability of a policy exclusion. Rather, the arbitration clause was “particular, not general,” and “made arbitrable two fact issues only,” that is, whether the respondent was entitled to recover from the uninsured/underinsured motorist and the amount of damages recoverable under the SUM endorsement (Matter of Rosenbaum [American Sur. Co. of N.Y.], 11 NY2d 310, 314 [1962]; see Matter of Liberty Mut. Fire Ins. Co. v Rothfeld, 101 AD3d 725, 726 [2012]; cf. Matter of Prudential Prop. & Cas. Ins. Co. [Hildalgo], 133 AD2d 87, 87 [1987]).
“Where an automobile insurance policy expressly requires the insurer’s prior consent to any settlement by the insured with a tortfeasor, failure of the insured to obtain such prior consent from the insurer constitutes a breach of a condition of the insurance contract” (Davis v New York Schs. Ins. Reciprocal, 224 AD3d 879, 881 [2024] [internal quotation marks omitted]; see Matter of Travelers Home & Mar. Ins. Co. v Delgado, 218 AD3d 688, 689 [2023]). “When an insured settles with a tortfeasor in violation of a condition requiring his or her insurer’s written consent to settle, and fails to preserve the insurer’s subrogation rights, the insurer is prejudiced, and the insured is precluded from asserting a claim for underinsured motorist benefits” (Matter of Travelers Home & Mar. Ins. Co. v Kanner, 103 AD3d 736, 738 [2013]). “ ’The failure to obtain such consent disqualifies the insured from availing himself or herself of the pertinent benefits of the policy, unless the insured can demonstrate that the insurer, either by its conduct, silence, or unreasonable delay, waived the requirement of consent or acquiesced in the settlement’ ” (Matter of New S. Ins. Co. v Gordon, 228 AD3d 942, 943 [2024] [internal quotation marks omitted], quoting Matter of Travelers Personal Ins. Co. v Hanophy-Ryan, 200 AD3d 695, 696-697 [2021]; see Matter of Travelers Home & Mar. Ins. Co. v Delgado, 218 AD3d at 689).
Where, as here, the existence of a release in settlement of the relevant tort claim is established, the burden is on the insured to establish, “ ’by virtue of an express limitation in the release, or of a necessary implication arising from the circumstances of its execution, that the release did not operate to prejudice the subrogation rights of the insurer’ ” (Davis v New York Schs. Ins. Reciprocal, 224 AD3d at 881-882, quoting Matter of State Farm Fire & Cas. Co. v McLaurin, 171 AD3d 1191, 1193 [2019]; see Weinberg v Transamerica Ins. Co., 62 NY2d 379, 384 [1984]). Here, the respondent failed to demonstrate that Progressive waived the requirement of consent or acquiesced in the settlement by conduct, silence, or unreasonable delay (see Matter of Travelers Personal Ins. Co. v Hanophy-Ryan, 200 AD3d at 697). Further, contrary to the respondent’s contention, she failed to establish that the settlement and release did not operate to prejudice Progressive’s subrogation rights (see id.; Matter of Travelers Home & Mar. Ins. Co. v Kanner, 103 AD3d at 738). The respondent did not establish that there was an express limitation in the release she executed in favor of the tortfeasors and their insurance carrier that preserved these subrogation rights (see Weinberg v Transamerica Ins. Co., 62 NY2d at 384; Davis v New York Schs. Ins. Reciprocal, 224 AD3d at 882). Moreover, the respondent did not establish that any circumstances surrounding the execution of the release gave rise to a necessary implication that the release did not operate to prejudice Progressive’s subrogation rights (see Davis v New York Schs. Ins. Reciprocal, 224 AD3d at 882).
Accordingly, the Supreme Court should have granted the petition to permanently stay arbitration.
In light of our determination, we need not reach Progressive’s remaining contentions. Genovesi, J.P., Chambers, Taylor and Hom, JJ., concur.