Pedro Torres-Jimenez, MD PC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50073(U))

Reported in New York Official Reports at Pedro Torres-Jimenez, MD PC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50073(U))

[*1]

Pedro Torres-Jimenez, MD PC v Nationwide Affinity Ins. Co. of Am.

2026 NY Slip Op 50073(U)

Decided on January 13, 2026

Civil Court Of The City Of New York, Kings County

Malik, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2026

Pedro Torres-Jimenez, MD PC AAO JESSICA BARROS, Plaintiff, against Nationwide Affinity Ins. Co. of America, Defendant(s).

Index No. CV-720286-21/KI



Attorneys for plaintiff
Oleg Rybak, Esq.
Richard Rozhik, Esq.
The Rybak Firm PLLC
1810 Voorhies Avenue
3rd Floor Suite 7
Brooklyn, New York 11235
Tel. (718)975-2035

Attorneys for defendant
Allan Scott Hollander, Esq.
Christopher J. Volpe, Esq.
Hollander Legal Group, PC
105 Maxess Road
Suite N109
Melville, New York 11747
Tel. (631) 333-1300


Rena Malik, J.

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

NYSCEF Doc Nos. 2-4, 29-34; 7-9, 11-28; 35-39; 40-46

Jessica Barros, plaintiff-assignor, was involved in a motor vehicle accident on July 2, 2020, and sought medical treatment from Pedro Torres-Jimenez, MD PC (plaintiff). Plaintiff commenced this action against Nationwide Affinity Insurance Company of America seeking to [*2]recover $3,228.78 representing the balance of alleged first-party no-fault benefits for medical services provided to plaintiff-assignor.

Upon the foregoing papers, plaintiff moves pursuant to CPLR 3211 (b) to dismiss defendant’s 36 affirmative defenses (motion sequence no. 001). Defendant opposes plaintiff’s motion and cross-moves for summary judgment (motion sequence no. 002).

Defendant’s Cross-Motion for Summary Judgment

Defendant seeks summary judgment on the grounds that plaintiff failed to provide verification of the claim within 120 days of the initial request pursuant to the no fault regulations.^[FN1] . In support of the cross-motion, defendant submits an attorney affirmation, the pleadings, affidavit of Claims Manager Lynn Ellis, EUO letter dated 10/9/2020, response dated 10/15/2020, amended EUO letter dated 10/16/2020, response dated 11/4/2020, EUO transcript dated 11/16/2020, post-EUO request for verification dated 11/23/2020, follow up request post-EUO for verification dated 12/29/2020, second follow up request post-EUO for verification dated 3/11/2021, attorney affidavit of merit, no-fault affidavit of merit, affidavit of merit by Linda Arnold, Claims Specialist III.

The movant on a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). CPLR 3212 provides that a summary judgment motion must be supported by an affidavit of a person with knowledge of the facts, as well as other admissible evidence (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-386 [2005]).

Once such a showing is made, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986], citing Zuckerman, 49 NY2d at 562).

The no fault insurance scheme is designed to provide a quick resolution of the reimbursement of claims, avoid litigation, and incentivize an insurer to seek verification of a claim, deny it, or pay it in short order (see Viviane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498, 506-07 [2015]; Matter of Med. Socy. of State v Serio, 100 NY2d 854, 860 [2003]). The procedure to verify, deny, or pay claims is codified and governed by Insurance Law 5106 (a).

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received” (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009]). If the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of receipt of the proof of claim (11 NYCRR 65—3.5[b]; see New York Univ. Hosp. Tisch Inst. v Govt. Employees Ins. Co., 117 AD3d 1012, 1014 [2d Dept 2014]).

“Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the [*3]expiration of that 30—day period, must follow up with a second request for verification (see 11 NYCRR 65—3.6 [b])” (Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 120 AD3d 561, 563 [2d Dept 2014]). The insurer may deny the claim if the applicant fails to provide the verification within 120 calendar days from the date of the initial request, unless the applicant provides written proof providing reasonable justification for the failure to comply (11 NYCRR 65-3.5 [o]).

To meet its prima facie burden, defendant must establish that “it had timely mailed initial and follow-up verification requests; that it had not received the requested verification; and that it had timely denied the claim on that ground” (Psychology YME, P.C. v Travelers Ins., 65 Misc 3d 146[A], 2019 NY Slip Op 51798[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Solution Bridge, Inc. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 152[A], 2018 NY Slip Op 51784[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Mailing and Follow Up for Verification Requests

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013], affd 25 NY3d 498 [2015] [internal quotation marks and citations omitted]). “‘The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]). “Actual mailing may be established by a proper ‘certificate [of mailing] or by [an] affidavit of one with personal knowledge'” (J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [citation omitted]). “However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]).

Here, the Court finds that defendant established its timely mailing of the initial and follow up verification requests for a provider EUO through the affidavit of Claims Manager Lynn Ellis, addressing defendant’s practices and procedures for processing no-fault claims, including verifications requests, letters and denials as well as her personal knowledge regarding this claim (NYSCEF Doc No. 15, Ellis aff). With respect to this particular claim, Ellis confirmed that the bill was received on September 21, 2020, defendant sent the initial verification within 15 business days on October 8, 2020, and a follow up was sent on November 10, 2020 — within 10 days from the 30th day after the initial verification request was mailed (id. at ¶ 31-33; NYSCEF Doc No 16).

The Ellis affidavit accordingly sufficiently establishes that the verification requests were mailed in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Blackman v Nationwide Ins., 66 Misc 3d 128[A], 2019 NY Slip Op 52038[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]) and in a timely manner as required by 11 NYCRR 65—3.6 (b).

Outstanding Verifications

Plaintiff-provider submitted to an examination under oath (EUO) on November 16, 2020.

Defendant claims that plaintiff’s testimony raised questions that could be relevant to a possible defense. Attorney Kaufman described that plaintiff’s principal could not answer or had [*4]difficulty answering questions regarding the formation of the professional corporation entity, its locations, whether it pays rent, where patients are seen, and the identity of medical providers and employees, affiliation with other entities and individuals and payment of taxes (NYSCEF Doc No. 12, Kaufman aff at ¶ 28). The affidavit of Linda Arnold, Claims Specialist III, who is responsible for investigating medical providers by verifying that they are licensed or ineligible to receive no-fault reimbursement, itemizes the specific additional verification sought from plaintiff post-EUO (NYSCEF Doc No. 28, Arnold aff at ¶ 7).

The post-EUO verification request was sent on November 23, 2020 and a follow up was sent on December 29, 2020 (NYSCEF Doc No. 12, Kaufman aff at ¶ 29-30). Plaintiff responded in part on March 3, 2021 and asserting its objection to the request for additional verification and scope of the discovery sought (NYSCEF Doc No. 12, Kaufman aff at ¶ 31 and NYSCEF Doc No. 24, exhibit L). Defendant followed up again noting deficiencies on March 11, 2021 (id. at ¶ 32 and NYSCEF Doc No. 25, exhibit M). Arnold specifies several items that remain outstanding to date in the verification request and references the corresponding portions of the EUO transcript (see NYSCEF Doc No. 28, Arnold aff, p. 4-10).

In opposition, plaintiff points to 11 NYCRR 65-3.8(a)(1), which states:

No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart. In the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day of the examination was performed.

Plaintiff argues that the verification was deemed “received” on the date of the EUO on November 16, 2020 and that the additional verification request sent post-EUO was untimely, as “11 NYCRR 65-3.5 (b) provides that “any additional verification . . . shall be requested within 15 business days of receipt of the prescribed verification forms” (Burke Physical Therapy, P.C. aao Rush v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024] [emphasis in original]; see also Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]; A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53 [2d Dept 2012]; Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

This Court agrees. Even when the time to pay or deny a claim has been tolled by a timely verification request, “the Regulations do not provide that such a toll grants an insurer additional opportunities to make requests for verification that would otherwise be untimely” (Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Defendant relies on Nationwide Affinity Ins. Co. v Gepp, 234 AD3d 1320 (4th Dept 2025), which permitted post-EUO verification requests that were otherwise untimely. In Gepp, the Fourth Department held that “[u]nder the specific facts of this case . . . post-EUO requests were proper” because the parties had “charted their own litigation course” — the court held the provider to the agreements they made at the EUO. Specifically, “[r]ather than continuing to request EUOs in the hope that defendants produced a knowledgeable representative,” counsel for the parties agreed that those issues would be best resolved by written demands and answers” (id. at 1323 [internal citation omitted]). Accordingly, Gepp was a very specific set of circumstances where the parties had agreed to conduct additional verification in writing rather than conduct an EUO of a different witness and the Gepp Court made clear that the post-EUO requests were [*5]proper “[u]nder the specific facts of this case” — it was not intending to expand the timeliness or scope of verifications otherwise mandated in the clearly written regulations.

Accordingly, based on these undisputed facts, the Court finds defendant failed to meet its prima facie burden on this defense and the “[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad, 64 NY2d at 853).

Plaintiff’s Motion to Dismiss Affirmative Defenses

In support, plaintiff submits an attorney affirmation, the pleadings, assignment of benefits, verification of treatment (NF-3), opinion of the NYS Department of Financial Services regarding billing codes and ICD diagnosis codes.

Upon a motion pursuant to CPLR 3211 (b), “the plaintiff bears the burden of demonstrating that the affirmative defense is ‘without merit as a matter of law'” (Greco v Christoffersen, 70 AD3d 769, 771 [2d Dept 2010], quoting Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]). “In reviewing a motion to dismiss an affirmative defense, this Court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference” (Greco, 70 AD3d at 771).

Defendant’s answer asserts 36 affirmative defenses that are pled in boilerplate fashion, which the Appellate Term has previously held is “not acceptable practice” (see Island Life Chiropractic Pain Care, PLLC v Zipcar, 72 Misc 3d 141[A], 2021 NY Slip Op 50844[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

At the same time, however, plaintiff’s motion, supported by a 53-page attorney affirmation “contained numerous misleading or erroneous statements of law,” which also should not be countenanced (see id.). For example, in seeking to dismiss the third affirmative defense, “[p]laintiff also ignored that ‘no motion by the plaintiff lies under CPLR 3211 (b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim'” (id., quoting Butler v Catinella, 58 AD3d 145 [2d Dept 2008]).

“This Court will not prune plaintiff’s motion and separate the potentially valid arguments from plaintiff’s numerous invalid or questionable arguments” (Island Life Chiropractic Pain Care, PLLC, 2021 NY Slip Op 50844[U], *2).

Finally, there is no basis to award attorneys’ fees as sanction under Rule 130-1.1. Therefore, plaintiff’s motion is denied in its entirety.

Accordingly, it is hereby ORDERED that plaintiff’s motion to dismiss defendant’s affirmative defenses and for sanctions (motion sequence no 001) is denied; and it is further

ORDERED that defendant’s cross-motion for summary judgment on its outstanding verification request (motion sequence no 002) is denied.

This constitutes the decision and order of the Court.

DATE January 13, 2026
ENTER:
RENA MALIK
Judge of the Civil Court

Footnote 1:The Court notes that these grounds are plead in defendant’s answer as its seventh, eighth and thirty-fifth affirmative defenses (NYSCEF Doc No 30).Integon Natl. Ins. Co. v Salazar-Ochoa (2026 NY Slip Op 50292(U))

Reported in New York Official Reports at Integon Natl. Ins. Co. v Salazar-Ochoa (2026 NY Slip Op 50292(U))

[*1]

Integon Natl. Ins. Co. v Salazar-Ochoa

2026 NY Slip Op 50292(U) [88 Misc 3d 1231(A)]

Decided on January 7, 2026

Supreme Court, Suffolk County

Liccione, 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 7, 2026

Integon National Insurance Company, and any and all its parent companies, affiliates and/or subsidiaries, Plaintiffs, against Alfredo Salazar-Ochoa, CARLOS QUEZADA-SANTANA, DIANA URENA ROMAN, ERNESTO FAJARDO-MORAN, FLAVIO GONZALEZ-FAJARDO, LEONARDO SABANDO-CEDENO, STEFANIA BACULIMA, WILSON F. CABRERA-ARIAS, The “Insured Claimant, Defendants,” ADONYS PAREDEZ YAGUANA, ANDY MEDINA CHUMCHO, ANDERSON RUDY MOLINA-GARSON, ANTHONY MANUEL PINELA-ROSADO, BARBARA YESENIA BARRETO, CESAR ANDRES TENESACA FIERRO, DENNYS ALBUJA, JEAN CARLOS FLORES PIVAQUE, JHON NOBOA PERALTA, JONATHAN CACHAGO-QUEZADA, KARLA AGUILAR-URENA, KLISMER A., PEREZ ARRIECHE, LUIS LOPEZ HERNANDEZ, VINCES CHRISTHAN TOMALA, WALTER RICARDO MERCHAN, YULEIDY MENDOZA, The “Passenger Claimant Defendants,” and  CAROLINA VERONICA RODRIGUEZ-MORAN, RUTH STEFANY RODRIGUEZ-MORAN, MANSI INTERNATIONAL, LLC, The “Facilitator Defendants,” and ALEXI PERALTA, ALFONSO PAVIA BRAVO, EDWARD EDISON CRUZADO, FRANKLIN D. PICHARDO, HORACIO LOPEZ, RICHARD KHUSAIL, TERRANCE RUSSELL, JR., TONY G. LIEN, The “Adverse Vehicle Defendants,” and 3RD AVENUE CHEMISTS, INC., ABU MUHAMMAD M. HAQUE, M.D., P.C., ACTIVE LIFE CHIROPRACTIC, P.C., ADVANCED HEALING, INC., ADVANCED ORTHOPAEDICS, PLLC, ADVANCED ORTHOPEDICS & JOINT PRESERVATION, P.C., ADVANCED RECOVERY SOLUTION, INC., AHAVA MEDICAL SUPPLY CORP., ALL CITY FAMILY HEALTHCARE CENTER, INC., AMERICAN MEDICAL INITIATIVES, P.C., ANDREW A MEROLA, M.D., ATLANTIC MEDICAL & DIAGNOSTIC, P.C., AXION MED., INC., BIANCA JULIEN, FNP-BC, BNT-AMS CORP., BROOKLYN MEDICAL PRACTICE, P.C., BSD OS, LLC, BUFFALO CHIROPRACTIC SERVICES, P.C., BV NASSAU COUNTY PHYSICAL THERAPY, P.C., CENTURION ANESTHESIA SURGICAL CENTERS, LLC, CHIROPRACTIC EXAM WORKS, P.C., CITIMED COMPLETE MEDICAL CARE, P.C., CLARITY PSYCHIATRY MEDICAL SERVICES, P.C., CLIFFSIDE PARK IMAGING & DIAGNOSTIC CENTER, LLC, COMFORT CARE NP IN FAMILY HEALTH, P.C., COMFORT THERAPY SOLUTIONS, INC., COMPREHENSIVE DIAGNOSTICS AND IMAGING, P.C., COMPREHENSIVE MEDICAL CARE AT 3RD AVENUE, P.C., CORONA CHIROPRACTIC, P.C. DIAGNOSTIC NEUROLOGY, P.C., DR. MANASHEROV MEDICAL, P.C., DR. SIMEION ISAACS, DPM, EDX MEDICAL SUPPLY, INC., ELECTROMEG SUPPLY CORP., ELITE CARE TECH, INC., ELMHURST HOSPITAL, ELMHURST PHARMACY CORP., EMED PHARMACY CORP., ETMC PHARMACY, INC., EXPRESS RECOVERY, INC., FIFTH AVENUE SURGERY CENTER, LLC, FIRST SUPPLY, INC., FIVE TOWNS PHYSICIANS, P.C., FLEXMED SUPPLY, INC., FLUSHING HOSPITAL, FLUSHING HOSPITAL ER DEPARTMENT, FUTURE REHAB PHYSICAL THERAPY, P.C., GAETAN JEAN MARIE, DNP-FNP, GLEN COVE HOSPITAL, GLOBAL ORTHO, INC., GLOBAL SUPPLY & TECH, INC., GLOBAL SURGERY CENTER, LLC, GLOBAL VERSUS, INC., GUR MEDCIAL SUPPLIES, INC., HARVEY LEVITAN MEDICAL, P.C., HEALING SERVICES, INC., HEALTHY ELITE, INC., HERSCHEL KOTKES, M.D., P.C., HFP CHIROPRACTIC, P.C., HUDSON REGIONAL HOSPITAL, HUDSON TRANSPORTATION, LLC, INNA LEVTSENKO NURSE PRACTITIONER IN ADULT HEALTH, P.C., INTEGRATED SPECIALTY ASC, LLC, IN TRAILS MED, INC., JAMAICA HOSP ER DEPARTMENT., JAMAICA HOSPITAL MEDICAL CENTER, JPRL, INC., JUAN D. DELACRUZ, KAMM MED SUPPLIES, INC., K DRUG DEPOT, INC., KTJ PHYSICAL THERAPY, P.C., LABORATORY CORP. OF AMERICA HOLDINGS, MANAMIM MS, INC., MED DURABLE, INC. MEDEX SUPPLIES, INC., MEDICAL MRI, P.C., MEDIHEALTH MEDICAL SUPPLY, INC., MEDISOURCE MEDICAL, INC., METROPOLITAN MEDICAL AND SURGICAL, P.C., METRO SCRIPTS, PLLC, MK DME, INC., MKTM PHYSICAL THERAPY, P.C., MOSAIC DIAGNOSTIC IMAGING, PLLC, MULTIWAVE DIAGNOSTIC, INC., NEW ARENA P.T., P.C., NEW YORK CITY FIRE DEPARTMENT EMS, NEW YORK PRESBYSTERIAN HOSPITAL, NIMBLE SOLUTION, INC., NORTH COAST PHYSICAL THERAPY & REHAB, P.C., NORTH SHORE LIJ MEDICAL, P.C., NORTH SHORE UNIVERSITY HOSPITAL, OCEAN MEDICAL OFFICE, P.C., OLD STYLE PHARMACY, INC., OPAQUE NY, INC., ORTHO CHOICE, INC., ORTHO FLEX MED SUPPLY, INC., PALMIRA AP, INC., PARKSIDE MEDICAL CARE, P.C., PREMIATA-MS CORP., PROVISTA MED, INC., PURE ELITE MEDICO, INC., QUEENS EMERGENCY MEDICAL ASSOCIATES, PLLC, RAIA MEDICAL SERVICES, P.C., RIDGEWOOD DRUG, INC., RIGHT CHOICE SUPPLY, INC., ROCKAWAYS ASC DEVELOPMENT, LLC, ROXBURY ANESTHESIA, LLC, SAFE ANESTHESIA AND PAIN, LLC, SCARLET SUPPLY, INC., SCOB, LLC, SEDATION VACATION PERIOPERATIVE MEDICINE, PLLC, SERENE ACUPUNCTURE, PLLC, SHARSHAM CORP. D/B/A WILLIS PHARMACY, SHOP RX PHARMACY, INC., SINAI DIAGNSOTICS, LLC, SMK PHARMACY CORP. D/B/A NATURE’S FIRST LONG TERM CARE AND COMPOUNDING, SOUTH MEDICAL SERVICES NY, P.C., SOUTH SHORE FAMILY HEALTH NP, P.C., STAR MEDICAL IMAGING, P.C., ST. THOMAS PHYSICAL THERAPY, P.C., SUNFARM ENTERPRISES, INC., SURGICORE OF JERSEY CITY, LLC, TARGET CHIROPRACTIC, P.C., THERAPY ZONE RENTALS, INC., TIMOTHY J. HENDERSON, M.D., TOPAZ V, INC., TRI-BOROUGH NY MEDICAL PRACTICE, P.C., TRIBOROUGH ASC, LLC. TSENOVOY MEDICAL, P.C., TWELVE STEPS CHIROPRACTIC, P.C., U.K. SINHA PHYSICIAN, P.C., ULTIMATE RX PHARMACY, INC., UNICORN ACUPUNCTURE, P.C., UNION RX PHARMACY, INC., UPTOWN HEALTHCARE MANAGEMENT, INC. D/B/A AMBULATORY SURGICAL CENTER OF EAST TREMONT MEDCIAL CENTER, VELVET BK CORP., VIOTEK MED SUPPLIES, INC., VR ORTHO, INC., VUE SUPPLY, INC., and WINSTON SUPPLY CORP., ZAS SPINAL CHIROPRACTIC CARE, P.C., The “Healthcare Provider Defendants.”

Index No. 601531/2024



PLAINTIFFS’ ATTORNEY
HOLLANDER LEGAL GROUP, PC
105 Maxess Road
Melville, NY 11747

DEFENDANTS’ ATTORNEYS AND PRO SE DEFENDANTS
See Service List Maureen T. Liccione, J.

Upon the e-filed documents numbered 496 to 770 and due deliberation, it is determined as follows:

ORDERED that plaintiff’s motion for summary judgment is granted in its entirety; and it further

ORDERED that plaintiff shall submit a proposed judgment to the Court within twenty (20) days of the posting of this Order on NYSCEF.

This is an action for a declaratory judgment pursuant to CPLR 3001 in which Integon National Insurance Company (Integon or plaintiff) seeks, inter alia, a determination that it is not legally obligated to provide any coverage, reimbursements, or pay any monies, sums, or funds to any of the defendants in relation to eight alleged automobile accidents that Integon contends were staged as a large scale “ring” in order to defraud it.

Integon commenced this action by filing a summons and verified complaint on January 18, 2024. Integon claims that the automobile incidents of March 17, 2023 (Claim No. 9XINY03320), March 24, 2023 (Claim No. 9XINY03316), March 25, 2023 (Claim No. 9XINY03328), April 6, 2023 (Claim No. 9XINY04277), April 22, 2023 (Claim No. 9XINY04296), April 26, 2023 (Claim No. 9XINY04229), May 26, 2023 (Claim No. 9XINY05447) and July 7, 2023 (Claim No. 9XINY07145) (collectively Eight Incidents) were staged and/or intentional events and not the result of a legitimate occurrence, and thus not covered under the respective policies of insurance. Integon alleges that the Insured Claimant Defendants and the Passenger Claimant Defendants (collectively Staged Loss Defendants) staged the Eight Incidents with the intent to obtain insurance benefits to which the Staged Loss Defendants would not otherwise be entitled.

In its complaint, Integon explains that its investigation into the Eight Incidents revealed several red flags, like for example, that each Insured Claimant Defendant who applied for a [*2]policy of insurance from Integon was from Ecuador, each loss involved three occupants in the vehicle, nearly all the losses occurred in the same area, each insured vehicle was allegedly rear-ended by a box truck, or similar commercial vehicle, each loss occurred shortly after the policy of insurance was issued and before any policy premiums were paid (apart from the initial premium paid at the broker’s office), nearly every Staged Loss Defendant went to one of two specific medical offices for treatment, each Staged Loss Defendant (except one) retained the same attorney for legal representation, and each policy of insurance was cancelled shortly after each accident for non-payment of insurance premiums.

According to the complaint, each Insured Claimant Defendant was steered and or/directed by Carolina Veronica Rodriguez-Moran and Ruth Stefany Rodriguez-Moran (Facilitator Defendants) to the same insurance broker to obtain a temporary policy of insurance from Integon, and to the same two medical offices for medical treatment. Integon alleges that the Staged Loss Defendants agreed to treat with the Healthcare Provider Defendants because the fraudulent scheme presented an opportunity to realize financial benefits they would not have otherwise realized — by way of either receiving cash kickbacks for treatment or building a bodily injury case to be presented to Integon for a speedy settlement, or both.

Integon alleges that the Healthcare Provider Defendants often subjected the Staged Loss Defendants to various forms of therapy and medically useless and expensive diagnostic tests, and inexplicably prescribed medically unnecessary and expensive “prescription only” medications and durable medical equipment to the Staged Loss Defendants. Integon claims that it has received multiple claims from the Healthcare Provider Defendants stemming from the Eight Incidents, seeking tens of thousands of dollars for medical and other services purportedly rendered to the Staged Loss Defendants by the Healthcare Provider Defendants. Integon seeks a determination that it is not legally obligated to provide any coverage, reimbursements, or pay any monies to the Healthcare Provider Defendants since they each took an assignment of benefits from one or more of the Staged Loss Defendants and are therefore subject to all defenses that Integon asserts against the Staged Loss Defendants.

On January 15, 2025, this Court granted Integon’s motion for default judgment against the Insured Claimant Defendants, the Passenger Claimant Defendants, the Defaulting Facilitator Defendants, the Defaulting Adverse Vehicle Defendants, but for defendants Chiropractic Exam Works PC, EDX Medical Supply Inc, First Supply Inc, Gur Medical Supplies Inc, In Trails Med Inc, Manamim MS Inc, Medex Supplies Inc, Provista Med Inc, Therapy Zone Rentals Inc, Viotek Med Supplies Inc., Anthony Manuel Pinela-Rosado, Cesar Andres Tenesaca Fierro, and Tony G. Lien (Excluded Defendants). The Court found that the Excluded Defendants were subject to stipulations/notices accepting their late answer, withdrawing the default motion against them, or discontinuing claims against them. A judgment was thereafter signed and entered by the Suffolk County Clerk against the defaulting defendants in accordance with the January 15, 2025 Order.

Plaintiff now moves for summary judgment against the answering individual defendants and the answering healthcare providers. In support of its motion, plaintiff included numerous exhibits, including certified copies of the subject policies, the affidavit of Renato Pedro, the management adjusting CSL associate manager employed by Assigned Risk Solutions, LTD., a third-party administrator handling and managing claims on behalf of Integon, the affidavit of Edward Block, a claims-field auto NG-Cons II investigator employed by National General Insurance Company, claims administrator for Integon, transcripts from examinations under oath [*3](EUOs), no-fault insurance law denial of claim forms (NF10), affidavits from the adverse drivers involved in the underlying accidents, uncertified police accident reports, ISO claims search results, and different medical records and medical bills.

Defendants Cesar Tenesaca-Fierro and Anthony Pinela-Rosado, who are Passenger Claimant Defendants (Opposing Passenger Defendants), and were involved in the April 22, 2023 loss, oppose the motion. The Opposing Passenger Defendants provided the ambulance call reports, the bill of particulars and supplemental bill of particulars in connection with the lawsuit they filed in Queens Supreme Court (Index No.: 713051/2023) against the adverse driver involved in the accident, and their own affidavits.

Defendants All City Family Health Care Center Inc., Andrew A Merola, MD, Citimed Complete Medical Care, P.C., Fifth Avenue Surgery Center LLC, Integrated Specialty Asc, LLC, Rockaways ASC Development LLC, SCOB LLC, Surgicore of Jersey City, LLC, Triborough NY Medical Practice, P.C. (collectively Rybak Defendants) also oppose the motion, as do the defendants Global Surgery, LLC, Parkside Medical Care, P.C., Right Choice Supply, Inc., Shop RX Pharmacy, Inc. and Harvey Levitan Medical, P.C. (collectively Tsirelman Defendants), defendant Comprehensive Medical Care at 3rd Avenue, P.C. (Comprehensive), and defendant Advanced Orthopedics, PLLC (Advanced). None of these health care provider defendants provided their own affidavits, but just their attorneys’ affirmations and some other documents or cases. The Opposing Passenger Defendants, Rybak Defendants, Tsirelman Defendants, Comprehensive, and Advanced will be referred collectively as Opposing Defendants.

The Court will preface this summary judgment analysis with the statement that insurance fraud is not a victimless crime. Because premium increases partly incorporate fraud costs, insurance fraud hurts all policyholders, not just insurers (Robert W. Emerson, Insurance Claims Fraud Problems and Remedies, 46 U Miami L Rev 907, 913 [1992]). According to the Coalition Against Insurance Fraud, the U.S. loses approximately $308.6 billion in insurance fraud. Compounding the problem is the involvement, in some claims, of unscrupulous professionals, such as medical, legal, or other experts (Robert W. Emerson, Insurance Claims Fraud Problems and Remedies, 46 U Miami L Rev at 913).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issues of fact are presented (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 403 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (id.). Once such proof has been offered, the burden then shifts to the opposing party, which, inorder to defeat the motion for summary judgment, must proffer evidence in admissible form and must “show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d at 324).

An intentionally caused or staged vehicular collision is not a covered accident under an insurance policy (Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905 [2d Dept 2023]; National Gen. Ins. Online, Inc. v Blasco, 210 AD3d 786, 787 [2d Dept 2022]; see Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691, 692 [2d Dept 2016]). When a collision is intentionally caused, the insurer is not obligated to provide coverage, even to innocent third [*4]parties (Adirondack Ins. Exch. v Rodriguez. 215 AD3d at 905; Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040, 1041 [2d Dept 2014]). Moreover, it does not matter “whether the intentional collision was motivated by fraud or malice” (GEICO v Shaulskaya, 302 AD2d 522, 523 [2d Dept 2003]; see Travelers Indem. Co. v Cruz, 40 AD3d 362, 363 [1st Dept 2007]).

“To interpose a defense of staged-accident fraud , [the insurer] must establish ‘the fact or founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident'” (Webster Diagnostic Medicine, P.C. v State Farm Ins. Co., 15 Misc 3d 97, 98 [App Term, 2d Dept, 9th & 10th Jud Dists 2007], quoting Cent. Gen. Hosp. v Chubb Group of Ins. Companies, 90 NY2d 195, 199 [1997]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A] [App Term, 2d Dept, 9th & 10th Jud Dists 2005]). In meeting this burden, an insurer need only establish by a preponderance of the evidence that the collision was not an accident (V.S. Med. Services, P.C. v Allstate Ins. Co., 25 Misc 3d 39, 41 [App Term, 2d Dept, 11th & 13th Jud Dists 2009]). The insurer must demonstrate the facts elicited during an investigation that make up the founded belief (Am. Alternative Ins. Corp. v Washington, 60 Misc 3d 1222[A] [Sup Ct, New York County 2018]). While an insurer may put forth evidence of a fraudulent scheme in order to prove that a collision was not an accident, the insurer need not prove fraud (V.S. Med. Services, P.C. v Allstate Ins. Co., 25 Misc 3d at 40; see Matter of Eagle Ins. Co. v Davis, 22 AD3d 846, 803 [2d Dept 2005]).

Here, Integon established its prima facie entitlement to judgment as a matter of law by demonstrating, through admissible evidence, that the Eight Incidents were deliberately caused to fraudulently obtain insurance benefits (Natl. Gen. Ins. Online, Inc. v Blasco, 210 AD3d 786, 787 [2d Dept 2022]; State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 491 [2d Dept 2003]).

The affirmation of plaintiff’s investigator, Mr. Block, the EUOs of the individual defendants, and the numerous attached exhibits substantiated the investigator’s allegations of the insureds’ participation in a “ring” that stages traffic incidents to defraud insurers (Webster Diagnostic Medicine, P.C. v State Farm Ins. Co., 15 Misc 3d at 98). The affirmations from Mr. Block and Mr. Pedro, the verified complaint, the EUOs, the ISO reports, the affidavits from the adverse drivers, and the medical records contained sufficient non-conclusory factual allegations to support Integon “founded belief” that the Eight Incidents were intentional and staged to defraud the insurer (see Unitrin Safeguard Ins. Co. v Manuel, 236 AD3d 558, 559 [1st Dept 2025] [“plaintiff demonstrated a founded belief that claimants’ injuries did not arise out of the accident”]). Integon established that the Eight Incidents were not covered accidents by the preponderance of admissible evidence.

Plaintiff’s investigator, Mr. Block, affirmed that upon receiving notice of various accidents that occurred somewhat contemporaneous with each other, and which had common characteristics, Integon identified various “red flags” that necessitated further investigation into whether the subject losses were legitimate accidents or whether they were intentional acts designed to defraud Integon. According to Mr. Block, these factors included, but were not limited to, the following: (i) each loss involved an insured driver (Insured Claimant Defendants) and two passengers (Passenger Claimant Defendants) — all from Ecuador; (ii) each Insured Claimant Defendant applied for insurance through the same insurance broker, Mansi International, LLC (Mansi); (iii) although having no apparent relationship, one or more of the Insured Claimant Defendants utilized the same address on their respective policy applications; (iv) many of the Insured Claimant Defendants applied using an address that did not correspond [*5]to the address listed on the police reports or otherwise communicated to Integon after the alleged incident(s); (v) nearly all occupants lived in the same geographic area; (vi) nearly all the losses occurred in the same area and occurred under identical circumstances — a rear-ended collision with a commercial vehicle; (vii) each loss occurred within 45 days after Integon issued each policy of insurance, before any policy premiums were made (apart from the initial premium paid at the broker’s office); (viii) nearly every individual went to one of two specific medical offices for treatment, and each (except one) retained the same attorney for legal representation; and (ix) each policy of insurance was cancelled shortly after each incident for non-payment of insurance premiums and not a single cancellation was contested (NYSCEF Doc No. 564).

Mr. Block further affirmed that based on Integon’s investigation and the EUOs conducted, Integon concluded that not a single loss was a covered event, but rather was staged and/or intentional, each being a mere component of a larger scheme to defraud Integon. According to Mr. Block, nearly every Insured Claimant Defendant that appeared for an EUO purchased a vehicle with cash — some did not know from whom he/she purchased the vehicle or could not recall the details regarding the purchase, (ii) each vehicle was first purchased at auction (some on the same date) and subsequently sold to the Insured Claimant Defendant, (iii) each Insured Claimant Defendant was steered to the same insurance broker – Mansi (iv) each Insured Claimant Defendant was brought, in person, to the same broker’s office by the same individual(s), i.e., one or more of the Facilitator Defendants, (v) one or more of the Facilitator Defendants were, in the past, involved in independent motor vehicle incidents and treated at one of the medical offices where most of the Individual Defendants purportedly received medical treatment (NYSCEF Doc No. 564).

Mr. Block’s affirmation relies on the transcripts from the EUOs of the Insured Claimant Defendants and the Passenger Claimant Defendants. The EUOs submitted by Integon in support of its motion were mostly unsigned by the respective individual defendants. Integon provided affidavits and affirmations about the generation and mailing of the letters requesting signed copies of the respective transcripts and that most of the EUO transcripts were not returned (see NYSCEF Doc Nos. 728-729). Specifically, Integon presented the affirmation of Arthur DiMartini, which set forth the standard office practices and procedures related to the generation and mailing of letters (accompanied by the EUO transcripts), requesting that the transcripts be signed, executed and returned to the law office within 60 days. Integon also provided copies of the letters sent to each of the individual defendants who appeared at the EUOs.

While the Opposing Defendants challenge the admissibly of the EUO transcripts, the EUO transcripts are admissible as Integon demonstrated that the transcripts were sent to the witnesses to be reviewed for any corrections, and that sufficient time to do so has passed (see CPLR 3116 [a] [“The deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness before any officer authorized to administer an oath. If the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed”]; see also LM Gen. Ins. Co. v Bunting, 2024 NY Misc LEXIS 60645, at *11 [Sup Ct, Nassau County, Apr. 15, 2024, No. 602116/2023] [“in the absence of any indication that the [EUO] transcript was mailed to [the witness] and not returned within 60 days, the Court will not consider the transcript in deciding plaintiff’s motion”]; Suarez Med., PLLC v Nationwide Ins., 2025 NY Slip Op 51996[U] [Civ Ct, Kings County, Dec. 16, [*6]2025] [applying CLR 3116 (a) to EUO transcripts]; State Farm Fire & Cas. Co. v Quinones, 2025 NY Mis. LEXIS 1293, at *10 [Sup Ct, New York County Mar. 7, 2025, No. 152505/2021] [same]; Jiang Acupuncture PC v State Farm Ins. Co., 80 Misc 3d 1211[A] [Civ Ct, Queens County 2023] [same]). The Opposing Defendants cited to no authority stating that CPLR 3116 (a) is not applicable to EUO transcripts.

Furthermore, the unsigned EUO transcripts of the individual defendants are admissible, since they were certified by the court reporter (Am. States Ins. Co. v Huff, 119 AD3d 478, 479 [1st Dept 2014] [“EUO transcript of Huff was admissible evidence on the motion for summary judgment as it was certified by the court reporter and is considered a party admission”]; Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc 3d 147[A] [App Term, 2d Dept, 11th & 13th Jud Dists 2015]; Lifex Med. Care, P.C. v Safeco Nat. Ins. Co., 32 Misc 3d 126[A] [App Term, 2d Dept, 11th & 13th Jud Dists 2011]; see also MML Med. Care, P.C. v Praetorian Ins. Co., 46 Misc 3d 12 [A] [App Term, 2d Dept, 11th & 13th Jud Dists 2014]).

Based on the review of the admissible EUOs transcripts, Mr. Block revealed significant discrepancies in the accounts of the Insured Claimant Defendants and the Passenger Claimant Defendants regarding their activities before and after the accident, and irregularities with respect to the individuals’ various identities and addresses. Many Passenger Claimant Defendants were randomly called on the date of the respective loss, got into a vehicle not knowing one of the other passengers, were on the phone while the alleged incident occurred, and did not know exactly where they were going or why. Several of the Staged Loss Defendants were in some way contacted by “Carolina” or “Estefania” — either related to the purchase of the respective vehicle or referral to the respective medical office for treatment. The Court agrees with Integon that the transcripts of the EUOs reveal clear inconsistencies among the testimonies provided by the occupants of the vehicles involved in the eight losses as to how they each knew each other, who was in the vehicle and when, where they were going and why. Such “red flags” in the EUOs undermined the credibility of the accounts of the Insured Claimant Defendants and the Passenger Claimant Defendants (see Unitrin Safeguard Ins. Co. v Manuel, 236 AD3d at 559).

For example, regarding the March 17, 2023 loss, the insured driver Stefania Baculima testified that on the day of the alleged accident she and her passenger friend Dennys Albuja picked up Yuleidy Mendoza at a McDonalds somewhere in Queens and were driving to eat at another McDonalds off the Whitestone Expressway. Ms. Mendoza testified that she did not know where they were going, and that Mr. Albuja is Ms. Baculima’s cousin. Mr. Albuja testified that he is not Ms. Baculima’s cousin, and that Ms. Mendoza and Ms. Baculima were in the vehicle together when they picked him up.

Regarding the April 22, 2023 loss, the insured driver Alfredo Salazar-Ochoa testified that a week after the incident he began treatment at a therapy clinic in Queens, even though he lived in East Hampton because he apparently did not know of any other places to treat. Mr. Salazar-Ochoa also testified that both the passengers were sitting in the back of his vehicle. Passenger Anthony Pinela-Rosado testified that on the contrary he was sitting in the front passenger seat, and that the incident was the first time he met Mr. Fierro.

In another example, the May 26, 2023 loss, the insured Ernesto Fajardo-Moran testified that he purchased the subject vehicle in the Bronx with $5,000 in cash, without inspecting the vehicle and with no documents reflecting the purchase of the vehicle. Mr. Fajardo-Moran had no explanation as to why he sold his 2012 Nissan for $5,000 to a family member just prior to buying the Nissan that was involved in the loss for the same price. Although he had two friends [*7]in his vehicle when the loss occurred, Mr. Fajardo-Moran testified that he did not know either of their last names.

Significantly, Mr. Block’s affirmation does not only rely on the inconsistencies in the EUOs to demonstrate that the Eight Incidents were staged collisions. Integon also included affidavits from the drivers of the adverse vehicles attesting to the facts of the losses including the fact that the incidents were intentionally caused by the insured drivers. For example, Tony G. Lien who was involved in the April 22, 2023 loss with the insured driver Alfredo Salazar-Ochoa and the passengers Cesar Andres Tenesaca Fierro and Anthony Pinela-Rosado affirmed as to the following details:

I was headed eastbound in the right lane of the Brooklyn Queens Expressway, when a Ford vehicle from the middle lane suddenly cut over directly in front of my truck.

Prior to cutting over, I observed the occupants of that Ford staring into the cab of my truck.

After making eye contact with me, the Ford and its occupants swung in front of my truck from the middle lane and cut me off.

Once they cut over from the middle lane, the Ford immediately came to a dead stop directly in front of me for no rational reason.

I applied my brakes but the Ford left no room or time for me to avoid striking it in the rear.

(NYSCEF Doc No. 582).

Additionally, shortly before each alleged loss, each Insured Claimant Defendant procured from Integon a policy sold by the same broker. Each certified policy of insurance contained the Mandatory Personal Injury Protection (PIP) Endorsement, as well as an exclusion for personal injuries sustained by any person who intentionally causes his or her own personal injury.

Mr. Block also affirmed that Integon’s investigation determined that each individual loss was coordinated and directed by the Defaulting Defendants Carolina Veronica Rodriguez-Moran and Ruth Stefany Rodriguez-Moran (Morans). According to Mr. Block, Integon’s investigation revealed that the Morans are allegedly in the “business” of selling motor vehicles, however neither owns any legitimate business authorized to do business in New York, let alone sell motor vehicles. Each insured vehicle was purchased at auction, with considerably high mileage — some purchased on the same day and most of them purchased shortly before they were insured with Integon. ISO Claims Search results attached to Mr. Block’s affidavit show that the Morans were previously involved in similar incidents and used various social security numbers, some invalid. Carolina Veronica Rodriguez-Moran has submitted 8 separate and distinct motor vehicle accident claims — rear end “accidents” that occurred on the Long Island Expressway and the Van Wyck Expressway, the very same roads where many of the injured parties had their incidents. Based on Mr. Block’s investigation, the Morans sought and received medical treatment from various healthcare providers from which most injured parties received treatment.

According to Mr. Block, the Morans steered the insured injured parties to Mansi, an insurance brokerage firm, for vehicle insurance and registration. An affidavit from Ibrahim Mansi shows that despite the testimony provided by them at their respective EUOs, each Insured Claimant Defendant was personally escorted to Mansi by Carolina Veronica Rodriguez-Moran to purchase a policy of insurance.

Mr. Block also affirmed that based on his investigation predetermined medical treatment [*8]and referral patterns were indicative of the large scale fraudulent scheme. After the losses, each injured party went to one of two medical offices for physical therapy and other treatment and testing — one office located at 87-10 Northern Boulevard, Jackson Heights, New York 11372 (Jackson Heights Clinic) and one office located at 82-17 Woodhaven Boulevard, Glendale, New York 11385 (Glendale Clinic). Nearly each Individual Defendant was initially evaluated by defaulting defendant, Jean Marie Gaetan (Gaetan) or some other practitioner at the location, then systematically referred for physical therapy performed by the answering defendant Future Rehab Physical Therapy, P.C. at the Jackson Heights Clinic or the answering defendant New Arena, P.T., P.C. at the Glendale Clinic. Patients were also referred by Gaetan and other practitioners at each location to ancillary medical providers for durable medical equipment (DME), prescription medications, and diagnostic testing provided by one or more of the Healthcare Provider Defendants. Mr. Block submitted numerous delivery receipts for DME accompanied by pre-signed prescriptions with Gaetan’s signature, which he argues show that fraudulent prescriptions for DME were issued.

Regarding the involvement of the Healthcare Providers, Mr. Block also affirmed that whether evaluated by at the Jackson Heights Clinic or the Glendale Clinic — nearly every single Individual Defendant was referred to Medical MRI for imaging studies of multiple body parts. The MRI referrals provided by Integon confirm that. Mr. Block claims that like the referrals for DME, the referrals for this diagnostic testing were pre-determined, fraudulent prescriptions that were used by various Healthcare Provider Defendants to support their claims. For example, 5 individual referrals that were used by one or more Healthcare Provider Defendants to submit claims for transcranial doppler studies, videonystamography tests, musculoskeletal ultrasounds, carotid ultrasounds, were issued by the Glendale Clinic, bear the same purported signature of Gaetan, and 4 of them are exact photocopies of each other (with the exception patient information and date) designating the same body parts injured, same body parts to be tested, and same tests to be performed.

Lastly, Mr. Block added that nearly every loss was initially reported to Integon by the law firm of Goldin & Rivin.

Mr. Block concluded that Integon maintains a founded belief that any injuries allegedly sustained were not as a result of a covered event as defined in the applicable policies of insurance, and that each loss was a component of a larger scheme by the Staged Loss Defendants, the Facilitator Defendants, and the Healthcare Provider Defendants, to defraud Integon. Therefore, Integon demonstrated a “founded belief” that the Eight Incidents were not covered by no-fault insurance based on, among other things, the investigation undertaken by its investigator, the EUO testimony of the insureds and passengers, the affidavits/affirmations of the drivers in the opposing vehicles, the certified policies, the policy applications, and various medical records (see Nationwide Gen. Ins. Co. v South, 223 AD3d 411, 411 [1st Dept 2024]).

In opposition, the Opposing Defendants failed to raise a triable issue of fact as to whether the collisions were intentionally caused or staged. Although the Opposing Defendants make very similar arguments, mainly that Integon has failed to meet its burden of proof and that the motion is premature, the Court will address each of their oppositions separately.

a. Opposing Passenger Defendants – Cesar Tenesaca-Fierro and Anthony Pinela-Rosado

The Opposing Passenger Defendants argue that Integon has failed to meet its burden of proof, that whether an accident was staged is a triable issue of fact, that the motion is premature [*9]because discovery remains outstanding, and that they are eligible injured persons under the mandatory PIP endorsement.

The Opposing Passenger Defendants provided their own affidavits stating that the driver of their vehicle did not suddenly switch lanes, did not stop abruptly, slam on the brakes, or swerve the car in any fashion, but simply slowed the vehicle for obvious traffic conditions ahead on the expressway (NYSCEF Doc No. 735). The Opposing Passenger Defendants affirmed that the accident was genuine, unanticipated, and caused the actual injury, and that at no time did they conspire with any individual, nor did they participate in or consent to any intentional or staged event.

However, as it pertains to Opposing Passenger Defendants, this Court granted Integon’s default motion as to the insured/driver Alfredo Salazar Ochoa, and therefore the allegations that the insured purchased the policy of insurance and intentionally caused the accident, have been deemed admitted. Pursuant to the judgment issued by this Court on February 4, 2025, Integon established that the April 22, 2023 loss was staged as to the insured driver Alfredo Salazar Ochoa. Tellingly, the Opposing Passenger Defendants did not provide an affidavit from the insured driver Alfredo Salazar Ochoa with their opposition papers.

Additionally, the Opposing Passenger Defendants’ own affidavits are insufficient to raise a triable issue of fact as to whether Integon established a funded belief that the injuries sustained by them were not the products of a covered event. Just because the Opposing Passenger Defendants were injured in the incident and even had surgery, is not related to the fact the Alfredo Salazar Ochoa intentionally caused the incident as established by the default judgment. When a collision is intentionally caused, the insurer is not obligated to provide coverage, even to innocent third parties, which the Opposing Passenger Defendants might be (Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905 [2d Dept 2023]; see Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040,1040 [2d Dept 2014]; see also Matter of Govt. Employees Ins. Co. v Shaulskaya, 302 AD2d 522, 523 [2d Dept 2003] [passenger was not entitled to uninsured motorist coverage for injury sustained in deliberate crash]).

Furthermore, contrary to the position taken by the Opposing Passenger Defendants, Integon is not required to establish that the subject collision was a product of fraud or demonstrate a staged accident by clear and convincing evidence (V.S. Med. Services, P.C. v Allstate Ins. Co., 25 Misc 3d at 40; see Matter of Eagle Ins. Co. v Davis, 22 AD3d at 803). Rather, as fully discussed above, the insurer must demonstrate the facts elicited during an investigation that make up the founded belief that the incident was staged (see Webster Diagnostic Medicine, P.C. v State Farm Ins. Co., 15 Misc 3d at 98). And, here, as described in detail above, Integon has demonstrated a founded belief that the injuries sustained by the Opposing Passenger Defendants were not the products of a covered event and that no coverage can be afforded.

Also, the Opposing Passenger Defendants’ characterization that Mr. Block’s affirmation is based solely on the EUOs is inaccurate, in light of the numerous other documents that are referenced to and attached to such affirmation as discussed above.

Lastly, the Court rejects Opposing Passenger Defendants’ argument that summary judgment should not be granted as it is premature. “A party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant” (Everhome Mortg. Co. v Aber, 195 AD3d 682, 688 [2d [*10]Dept 2022], quoting Haidhaqi v Metro. Transp. Auth., 153 AD3d 1328, 1329 [2d Dept 2017]). “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” (Mahmud v Ouyang, 208 AD3d 861, 862 [2d Dept 2022]; Haidhaqi v Metro. Transp. Auth., 153 AD3d at 1329).

Here, Opposing Passenger Defendants failed to make the requisite showing. While they pointed to the outstanding discovery demands that they made, such discovery demands were only made after Integon filed its motion for summary judgment and they did not demonstrate that such additional discovery might lead to relevant evidence. “To speculate that something might be caught on a fishing expedition provides no basis pursuant to CPLR 3212(f) to postpone decision on [a] summary judgment motion” (Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d 684, 687 [2d Dept 2007]). The Opposing Passenger Defendants offered nothing beyond mere speculation and bald conjecture concerning what relevant evidence they hoped to uncover during discovery, which would bear on whether the incidents were staged (see Shah v MTA Bus Co., 201 AD3d 833, 834 [2d Dept 2022]).

b. Rybak Defendants – All City Family Health Care Center Inc., Andrew A Merola, MD, Citimed Complete Medical Care, P.C., Fifth Avenue Surgery Center LLC, Integrated Specialty Asc, LLC, Rockaways ASC Development LLC, SCOB LLC, Surgicore of Jersey City, LLC, Triborough NY Medical Practice, P.C.

The Rybak Defendants argue that Integon’s motion should be denied in its entirety because Integon failed to establish a prima facie entitlement to summary judgment as a matter of law, that substantial and necessary discovery remains outstanding making the motion premature, and that there are material triable issues of fact that are facially apparent in the record. For the reasons described above, these arguments are rejected.

The Rybak Defendants, which are medical provider defendants, failed to raise a triable issue of fact as to whether the collisions were intentionally caused or staged (Natl. Gen. Ins. Online, Inc. v Blasco, 210 AD3d at 788). In support of their opposition, the Rybak Defendants are relying solely on an affirmation of counsel who does not allege to have any personal knowledge of the facts. An attorney affirmation is insufficient to raise a triable issue of fact in opposition to Integon’s prima facie showing (Bank of New York Mellon v Aiello, 164 AD3d 632, 633 [2d Dept 2018]).

The Rybak Defendants argue that to disclaim coverage on the basis that the underlying collision ^[FN1] was not an “accident,” and that therefore Integon was not required to provide coverage to the Rybak Defendants, Integon would have to demonstrate that the Rybak Defendants submitted claims as assignors of someone that was a party to the collision. The Rybak Defendants contend that Integon’s failure to provide an assignment of benefits form for any of the individual defendants such that it could be determined whether the Rybak Defendants submitted claims on behalf of any individual who purportedly intentionally caused the incidents in question, is damning to Integon’s position. The Court disagrees.

In its verified complaint, Integon alleged that the Healthcare Provider Defendants purportedly received assignments of benefits (AOB) which transferred the rights, duties, obligations and liabilities of the individual patient to the respective healthcare providers. In their [*11]answer, the Rybak Defendants raised as an affirmative defense that they “have filed actions in the Civil Court of New York, Kings County prior to the present declaratory judgment action being filed” and that Integon “was and is still obligated to provide first-party no-fault benefits to the Answering Defendants” (NYSCEF Doc No. 40). Such defenses lead to the conclusion that the Rybak Defendants have admitted that they were assignees of individuals who were parties to the alleged incidents. The Rybak Defendants did not submit their own affidavits stating otherwise.

An assignee “stands in the shoes” of an assignor and thus acquires no greater rights than its assignor (Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2d Dept 2007] [internal citations omitted]). As the Healthcare Provider Defendants “stand in the shoes” of their assignors, any claims and defenses that can be asserted by Integon against the Staged Loss Defendants can in turn be asserted against the Healthcare Provider Defendants, including, of course, the Rybak Defendants. While it is unclear which of the eight accident or parties the Rybak Defendants refer to in their papers, each insured has defaulted in this action and the allegations that they staged the losses are deemed admitted.

Furthermore, Rybak Defendants failed to demonstrate that Integon’s motion was premature since they “were merely hopeful that further discovery would lead to evidence which would support their opposition to the motion” (Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905 [2d Dept 2023]).

c. Tsirelman Defendants – Global Surgery Center, LLC, Parkside Medical Care, P.C., Right Choice Supply, Inc., Shop RX Pharmacy, Inc., and Harvey Levitan Medical, P.C.

The Tsirelman Defendants incorporate by reference the arguments of the Opposing Passenger Defendants and the Rybak Defendants. The Tsirelman Defendants also “failed to raise an issue of fact, as they did not submit an affidavit of someone with personal knowledge of the legitimacy and circumstances of the accident or any other admissible evidence to rebut plaintiff’s showing” (Unitrin Safeguard Ins. Co. v Manuel, 236 AD3d at 559-560).

Contrary to the Tsirelman Defendants’ contention, Mr. Block’s affirmation is admissible given his personal knowledge and expertise in conducting investigations for more than ten years (see Ameriprise Ins. Co. v Hampton, 60 Misc 3d 1222[A] [Sup Ct, New York County 2018]. Mr. Block’s affidavit relies on admissible evidence — the signed policy applications, the certified policies, the signed EUO transcripts, the certified EUO transcripts, and the sworn affidavits/affirmations from the drivers of the adverse vehicles.

In focusing their opposition on arguing that the motion is premature, the Tsirelman Defendants cite to a number of cases, all distinguishable from this action. In State Farm Mut. Auto. Ins. Co. v Lifeline Med. Imaging, P.C., 237 AD3d 451, 451-452 (1st Dept 2025), one of the cases cited to by the Tsirelman Defendants, the Appellate Division, First Department denied the motion as premature, as the insurer failed to offer the defendant medical provider “an objective justification for requesting the EUOs, as required by the governing no-fault regulation.” In that case, State Farm sought a declaration that it was not obligated to provide no-fault coverage for various claims submitted by Lifeline, a medical provider, based on Lifeline’s failure to meet a condition precedent to coverage by failing to appear for duly scheduled EUOs. Such is clearly not the case here. In Liberty Mut. Ins. Co. v Valera, 208 AD3d 1104 (1st Dept 2022), another case cited to by the Tsirelman Defendants, the Appellate Division, First Department denied the insurers’ motion for summary judgment without prejudice since the insurer failed to prove that [*12]the alleged misrepresentation as to the correct address when procuring the insurance was a material misrepresentation and the affidavit of the insurers’ underwriter was conclusory and not supported by relevant documentary evidence. Here, Mr. Block’s affirmation is not conclusory and was supported by admissible evidence. In another example used by the Tisrelman Defendants, Lima v Ancona, 192 AD3d 1093 (2d Dept 2021), the Appellate Division, Second Department dealt with a claim involving coercion and mistake surrounding the validity of a release and permitted the plaintiff to obtain via a subpoena certain training materials and employee handbooks utilized by the insurance company to conclude the release was invalid. Here, Integon’s motion is not about quashing a subpoena as in Lima v Ancona.

Although the Tisrelman Defendants argue that Integon’s summary judgment motion was premature, they failed to demonstrate that any proof necessary for their opposition was exclusively within Integon’s possession or that they made further attempts to obtain that information (Unitrin Safeguard Ins. Co. v Manuel, 236 AD3d 558, 560 [1st Dept 2025]; see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557, 557 [1st Dept 2007]; see also CPLR 3212 [f]). Their attorney’s affirmation was insufficient in that regard (Unitrin Safeguard Ins. Co. v Manuel, 236 AD3d at 560; see 354 Chauncey Realty, LLC v Brownstone Agency, Inc., 213 AD3d 544, 545 [1st Dept 2023] [“plaintiff did not submit an affidavit to demonstrate that essential facts exist but cannot yet be stated, relying instead upon a nonprobative affirmation of counsel which asserts speculative arguments”]).

d. Defendant Comprehensive Medical Care at 3rd Avenue, P.C.

Comprehensive advances the same arguments as the other Opposing Defendants, that is that Integon failed to proffer sufficient admissible evidence to establish that the Eight Incidents were staged. Comprehensive also failed to raise an issue of fact and did not include any affidavits from someone with personal knowledge.

Comprehensive focuses on the alleged inadmissibility of various documents, primarily the EUO transcripts (which has been discussed at length above), the affidavits of the adverse drivers, and the police reports, and the ISO reports. The affidavits/affirmations of the adverse drivers are admissible, since they are properly notarized and/or affirmed by the adverse drivers and contain those individuals’ description of the facts leading up to the similar rear-end impacts and are based on those individuals’ personal knowledge. As to the uncertified police records, the Court agrees with Comprehensive that they are inadmissible and not to be considered (see Yassin v Blackman, 188 AD3d 62, 65 [2d Dept 2020] [internal citation omitted] [“A properly certified police accident report is admissible where ‘the report is made based upon the officer’s personal observations and while carrying out police duties'”]).

Additionally, Comprehensive’s contention that an award of summary judgment is premature because Integon has not yet provided discovery responses is without merit, because Comprehensive failed to demonstrate that “discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” (Queens Syndicate Co. v Daniarov, 240 AD3d 723, 724 [2d Dept 2025], quoting Leak v Hybrid Cars, Ltd., 132 AD3d 958, 959 [2d Dept 2015] [internal quotation marks omitted]).

e. Defendant Advanced Orthopaedics, PLLC

Advanced relies on and incorporates by reference, the arguments made by the other answering defendants. Similarly to the other opposing defendants, Advanced failed to raise any issues of fact.

Advanced claims that Integon has not submitted evidence of a person with knowledge as to whether all eight accidents were staged because neither Mr. Block nor Mr. Pedro witnessed the accidents themselves. However, Integon submitted affidavits from the adverse drivers involved in the incidents, albeit not from all Eight Incidents. Furthermore, since every single Staged Loss Defendant (other than the two Opposing Passenger Defendants) has defaulted, the statements he or she made at the EUOs as to how he or she allegedly operated their respective vehicles are to be construed as false and their injuries not the result of the incidents (see Unitrin Safeguard Ins. Co. v Manuel, 236 AD3d at 560 [“Insofar as claimants asserted in their EUOs that they were passengers in the vehicle at the time of the accident, the court properly construed claimants’ default as an admission that their EUO statements were false and their injuries were not the result of the accident, as alleged by plaintiff in the complaint”]).

In conclusion, the Opposing Defendants failed to raise an issue of fact as to whether the collisions were intentionally caused or staged. They did not submit any admissible evidence to rebut Integon’s prima facia showing, they failed to show that Integon did not establish a prima facie entitlement to summary judgment as a matter of law, and they also failed to demonstrate that this motion premature.

As it is well settled that an intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2d Dept 2006]) and Integon established that the eight collisions were staged and intentional, the eight collisions were not covered events under the respective policies and the Healthcare Provider Defendants equally are not afforded coverage under the applicable policies of insurance.

Consequently, the motion for summary judgment is granted in its entirety, including summary judgment on all declarations requested by Integon in its complaint. Integon has established as a matter of law that it is entitled to all the declarations it seeks in the complaint, including, but not limited to, declarations that the eight alleged automobile incidents were not products of covered events, that Integon is not obligated to provide first-party coverage, reimbursement, or pay any monies, sums, or funds, including but not limited to present and/or future claims for no-fault benefits, and/or uninsured/underinsured (SUM) benefits, to any of the defendants, or any other individual or entity, in connection with the alleged automobile incidents, and that Integon is not obligated to provide any coverage, reimbursement, or to pay any monies, sums or funds to any of the defendants, or any other individual or entity, for first-party no-fault benefits for any healthcare services rendered to any of the Staged Loss Defendants in connection with the alleged automobile incidents. Plaintiff is to submit a proposed judgment to the Court.

The foregoing constitutes the decision and Order of the Court.

ENTER
DATE: January 7, 2026
Riverhead, NY
MAUREEN T. LICCIONE, J.S.C.

Footnote 1:It is unclear which of the collisions the Rybak Defendants are referring to.Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C. (2025 NY Slip Op 07297)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C. (2025 NY Slip Op 07297)

Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C.

2025 NY Slip Op 07297

Decided on December 24, 2025

Appellate Division, Second Department

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

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 24, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
PAUL WOOTEN
BARRY E. WARHIT
DONNA-MARIE E. GOLIA, JJ.
2023-06054
(Index No. 527962/22)

Gary Tsirelman, P.C., Brooklyn, NY, for appellant.

Larkin Farrell, LLC, New York, NY (William R. Larkin III of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated June 27, 2022, in which Atlantic Medical Care, P.C., as assignee of Destiny Dixon, cross-petitioned to confirm the award of the master arbitrator and for an award of reasonable attorneys’ fees, Atlantic Medical Care, P.C., appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated April 20, 2023. The order granted the petition to the extent of remanding the matter to arbitration for further proceedings as set forth therein, and, in effect, denied the cross-petition.

ORDERED that the order is reversed, on the law, with costs, the petition is denied, the cross-petition is granted, the award of the master arbitrator is confirmed, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees to be awarded to the appellant.

Atlantic Medical Care, P.C. (hereinafter the provider), is the assignee of a claim for no-fault benefits for treatment it rendered to Destiny Dixon after Dixon was involved in a car accident. After the petitioner, American Transit Insurance Company (hereinafter the insurer), denied the claim, the provider submitted the claim to arbitration. In an award dated April 18, 2022 (hereinafter the April 2022 award), the arbitrator awarded the provider the full amount of its claim. The insurer appealed, and in an award of a master arbitrator dated June 27, 2022 (hereinafter the master arbitrator’s award), the master arbitrator confirmed the award.

The insurer commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The provider cross-petitioned to confirm the master arbitrator’s award and for an award of reasonable attorneys’ fees. In an order dated April 20, 2023, the Supreme Court granted the petition to the extent of remanding the matter to arbitration for the consideration of the effect of certain executive orders issued in connection with the COVID-19 pandemic and, in effect, denied the cross-petition. The provider appeals.

“[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534). “A court reviewing the award [*2]of a master arbitrator is limited to the grounds set forth in CPLR article 75″ (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802; see 11 NYCRR 65-4.10[h]). Significantly, a master arbitrator’s determination is not subject to vacatur by the courts on the basis of an error of law, including, “‘the incorrect application of a rule of substantive law,'” unless the master arbitrator’s determination is irrational (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d at 802, quoting Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232; see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 534).

Here, regardless of any errors of law the arbitrator and master arbitrator made regarding burdens of proof, the master arbitrator’s determination to affirm the April 2022 award to the provider was rationally based on the conclusion that Dixon’s minor delay in providing the insurer with notice of the accident was reasonably justified because she was a passenger in the vehicle involved in the accident and, thus, was not making a claim to her own insurance company (see 11 NYCRR 65-3.5[l]). Because the master arbitrator’s affirmance of the April 2022 award had a rational basis, and “‘[i]t is not for the court to decide whether the master arbitrator erred in applying the applicable law,'” the petition to vacate the master arbitrator’s award should have been denied and the master arbitrator’s award confirmed (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d 649, 650 [alterations and internal quotation marks omitted], quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 535; see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d at 802; Matter of Singh v Allstate Ins. Co., 137 AD3d 1046, 1047; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 70 AD3d 1043, 1043-1044).

Further, the provider is entitled to an award of reasonable attorneys’ fees (see 11 NYCRR 65-4.10[j][4]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705). Accordingly, we remit the matter to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees to be awarded to the provider (see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705).

In light of our determination, we need not reach the parties’ remaining contentions.

IANNACCI, J.P., WOOTEN, WARHIT and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Cuevas v Everest Denali Ins. Co. (2025 NY Slip Op 52120(U))

Reported in New York Official Reports at Cuevas v Everest Denali Ins. Co. (2025 NY Slip Op 52120(U))

[*1]

Cuevas v Everest Denali Ins. Co.

2025 NY Slip Op 52120(U) [87 Misc 3d 1263(A)]

Decided on December 23, 2025

Supreme Court, Bronx County

Wilson, 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 December 23, 2025

Rosa Cuevas, Plaintiff, against Everest Denali Insurance Company, Defendant.

Index No. 819776/2023E



Counsel for Plaintiff: Jason Stuart Firestein, Esq.; Zlotolow & Associates, P.C.; 58 South Service Road, Suite 130, Melville, NY 11747

Counsel for Defendant(s): Lester Xu, Esq.; Riker Danzig LLP; 489 Fifth Avenue 33rd Floor, New York, NY 10017

Kim Adair Wilson, J.

“NOTICE OF MOTION BY DEFENDANT TO DISMISS THE COMPLAINT” (NYSCEF Doc 4), dated and filed May 7, 2024, respectively, by Michael J. Rossignol, Esq. (Riker Danzig LLP), counsel for defendant, Everest Denali Insurance Company (“Everest”), seeking an Order “pursuant to CPLR § 3211 dismissing all claims in the Complaint as against Everest [;]” and “NOTICE OF CROSS-MOTION” (NYSCEF Doc 22), dated and filed May 30, 2024, by Jason S. Firestein (Zlotolow & Associates, P.C.), seeking an Order “pursuant to CPLR §3212 granting the plaintiff summary judgment on her Third Cause of Action which seeks a declaration that the claims submitted by the Plaintiff and/or her assignors did in fact arise out of use and operation of a vehicle and in particular, the vehicle insured by the Defendant herein [;]” are consolidated for the purpose of disposition and decided as set forth below.

On December 13, 2023, plaintiff commenced the instant action with the filing of her complaint seeking monetary damages for economic injuries allegedly sustained when defendant disclaimed coverage of No-Fault insurance benefits related to medical bills amounting to $25,000.00 plus interest, resulting from a vehicular accident on September 22, 2021, wherein plaintiff was the passenger of the insured’s vehicle. Plaintiff asserts that defendant has paid no portion of the due payments, having disclaimed coverage on the basis that plaintiff’s injuries did [*2]not arise out of use and occupation of a motor vehicle. Plaintiff’s complaint asserts three causes of action, namely, for monetary damages (First Cause of Action), attorney’s fees (Second Cause of Action), and for a declaratory judgment that Everest’s disclaimer was improper, and that plaintiff’s injuries did arise out of the use and operation of the insured’s vehicle (Third Cause of Action).

Everest now moves, pre-answer, to dismiss plaintiff’s complaint, pursuant to CPLR 3211. In support, movant submits its Memorandum of Law (NYSCEF Doc 5) and Affirmation in Support (NYSCEF Doc 6); and Arbitration Award (NYSCEF Doc 7); Everest’s arbitration papers (NYSCEF Docs 8 — 11); plaintiff’s arbitration papers (NYSCEF Doc 12); and an Affirmation in Opposition to plaintiff’s cross-motion (NYSCEF Doc 31).

Plaintiff cross-moves for a summary judgment granting a declaration that plaintiff’s injuries arose out of the operation and use of the insured’s motor vehicle. In opposition to the motion-in-chief, and in support of her cross motion, plaintiff submits her Affirmation in Opposition (NYSCEF Doc 15); complaint commencing lawsuit by EAN Holdings, LLC. (NYSCEF Doc 16); rental vehicle photographs (NYSCEF Docs 17 and 19); Affidavit of Jason Firestein (NYSCEF Doc 18); Affirmation of Mercedes Espinal (NYSCEF Doc 20); plaintiff’s deposition transcript from 2nd action (NYSCEF Doc 21); Affirmation in Support of Cross-Motion (NYSCEF Doc 23); the Affidavit of the defendant driver (NYSCEF Doc 24); plaintiff’s Examination Under Oath (“EUO”) transcript (NYSCEF Doc 25); Everest’s disclaimer of benefits (NYSCEF Doc 26); EUO transcript letter (NYSCEF Doc 28); and disclaimers to medical providers (NYSCEF Doc 29).

Movant contends, briefly, that the binding decision and award of the American Arbitration Association tribunal (NYSCEF Doc 7) ruled that defendant had sufficiently demonstrated that the accident did not transpire as alleged by plaintiff, and that plaintiff’s action should therefore be dismissed. Movant further asserts that, although plaintiff was not a litigant in the arbitration, plaintiff is nonetheless bound by collateral estoppel because she shares privity with the petitioner in that proceeding.

In opposition, plaintiff argues that she was not a participant in the arbitration proceedings, which were commenced in the absence of critical supporting evidence by then-petitioner Comprehensive MRI. Although plaintiff concedes that she assigned her claim to Comprehensive MRI, she insists that she lacked a full and fair opportunity to litigate that matter; ergo, neither claim preclusion nor collateral estoppel are properly applicable here. Additionally, plaintiff highlights that the defendant in the prior arbitration is listed as Rental Claims Services – ELRAC LLC, which is a different insurer from the defendant in the instant matter; and further, attests that ELRAC denied the claim on the grounds that it was the incorrect insurer for the accident. Plaintiff asserts that defendant’s disclaimer of coverage indicates, vaguely, that coverage was denied based on an EUO, without specifying to which examination it referred. Plaintiff’s own March 15, 2022, EUO testimony (NYSCEF Doc 25) deposed that the offending driver was operating a van when he backed out of the intersection at Trinity Avenue and Westchester Avenue, striking the elderly plaintiff and her companion as they traversed a crosswalk, before leaving the scene of the accident. The police report also provides a similar narrative of events. Although defendant’s Affidavit (NYSCEF Doc 24) states that his vehicle never struck any pedestrians at the time of the accident, plaintiff’s EUO testimony averred that the vehicle lacked a rear-view mirror or rear windows, by which plaintiff’s counsel infers that it is likely that the driver never became aware of his collision with plaintiff.

In support of her cross-motion plaintiff contends, inter alia, that defendant’s disclaimer was untimely, in that it was issued on November 2, 2022, almost eight months subsequent to plaintiff’s March 15, 2022, EUO, and in contravention of (i) Insurance Law §3420(d), which requires that insurers give the claimant written notice of a coverage disclaimer as soon as is reasonably possible; (ii) 11 NYCRR §65-3.8(a)(1), which deems No-Fault benefits to be overdue if not paid within 30 calendar days after receipt of proof of claim, which is deemed received on the date an EUO is conducted; and (iii) 11 NYCRR §65-3.8(c)(1), which requires either payment or the submission of a denial of claim form to the claimant within 30 days, where such claim involves elements of basic or extended economic loss. Plaintiff also posits that the decisional rule that arbitration rulings are binding upon parties in direct privity with the litigants is superseded in this instance by Insurance Law §5106(e), which prevents arbitration decisions from imparting any collateral estoppel effect in an action arising from the same underlying claim seeking damages for bodily injury, pain and suffering, medical care and loss of wages.

In reply, movant argues that plaintiff was not entitled to a detailed disclaimer of coverage because her claim does not fall within the terms of the policy. Everest also asserts that Insurance Law §5106(e) is inapplicable here, since the instant action does not seek damages for bodily injuries caused by one covered person against another covered person, pursuant to Insurance Law §5104, but instead seeks recovery of No-Fault medical benefits payments. Movant states that plaintiff has filed another matter under Bronx County Supreme Court index number 808777/2022E, wherein plaintiff seeks damages for personal injuries caused by the driver’s negligence during the alleged underlying accident. Finally, movant argues that the motion in chief should not be converted into a summary judgment motion without notice to the parties, and further, that outstanding issues of fact, including discrepancies between the driver’s and the plaintiff’s testimonies preclude summary judgment in this instance.

A. Everest’s Motion to Dismiss

This Court turns firstly to movant Everest’s motion to dismiss on the grounds that plaintiff’s cause of action may not be maintained because of collateral estoppel, pursuant to CPLR 3211(a)(5).

The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same. Ryan v. New York Tel. Co., 62 NY2d 494, 500 (1984). Privity is an amorphous concept that includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and those who are co-parties to a prior action. See Buechel v. Bain, 97 NY2d 295, 304 (2001). “In addressing privity, courts must carefully analyze whether the party sought to be bound and the party against whom the litigated issue was decided have a relationship that would justify preclusion, and whether preclusion, with its severe consequences, would be fair under the particular circumstances. Doubts should be resolved against imposing preclusion to ensure that the party to be bound can be considered to have had a full and fair opportunity to litigate.” Id. Moreover, collateral estoppel principles apply as well to awards in arbitration as they do to adjudications in judicial proceedings. See Feinberg v. Boros, 99 AD3d 219, 226 (1st Dept. 2012); Am. Ins. Co. v. Messinger, 43 NY2d 184, 189 (1977).

The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate. In re Dunn, 24 NY3d 699, 704 (2015). Once the issue of identity between the prior and pending actions is established, certain factors should be considered to determine whether a full and fair opportunity to litigate the issue at bar existed, including: “the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel, the availability of new evidence, the differences in the applicable law and the foreseeability of future litigation. Clemens v. Apple, 65 NY2d 746, 748 (1985); also see Ryan v. New York Tel. Co., 62 NY2d 494, 501 (1984). For instance, in Dunn, supra, the New York Court of Appeals held that a disciplinary proceeding commenced against an attorney respondent lacked collateral estoppel effect where that proceeding provided no opportunity to call witnesses or conduct cross-examination. In re Dunn, supra at 704. On the other hand, where a litigant knowingly eschewed a fair opportunity to present evidence in a prior proceeding, it cannot later present that evidence as “new evidence” to avoid preclusion by collateral estoppel. See Ryan v. New York Tel. Co., supra at 503.

Upon analysis and review of statutory authority, relevant case law, the papers submitted, and the record, this Court determines that movant has not established that collateral estoppel should bar plaintiff from commencing the instant action. This Court is cognizant that movant has met its burden to show (i) that the issue litigated in the arbitration was identical to that which forms the gravamen of plaintiff’s present suit, namely, whether plaintiff’s medical claims resulted from impact by the vehicle covered under the defendant’s issued policy; and (ii) that by assigning the rights to her claim to medical provider Comprehensive MRI, plaintiff established privity of contract with that entity, who subsequently consented to resolve the claim in arbitration. Nonetheless, plaintiff has sufficiently demonstrated that she lacked a full and fair opportunity to litigate the issue at bar. The decision issued by the American Arbitration Association (NYSCEF Doc 7) following a single hearing held on June 13, 2023, held that the tribunal’s determination rested primarily on the assertion of Steve Turner, the vehicle’s driver, that the covered vehicle had not been involved in an accident (see NYSCEF Doc 24), as well as the inconsistencies in plaintiff’s EUO testimony (NYSCEF Doc 25) as to the identifying features of the driver. The arbitration decision further noted that petitioner Comprehensive MRI had been unable to provide any additional evidence to refute respondent Everest’s contentions. Pertinently, plaintiff’s opposition papers assert that Comprehensive MRI commenced its proceeding without providing notice or invitation to the plaintiff, and without obtaining any of the evidence within her possession that could have established the identity of the covered vehicle. Such evidence includes the testimony of Mercedes Espinal who could have attested to her own involvement in the vehicular accident, as well as the photographs taken by Espinal at the time of the accident, which depict the vehicle and license plate (NYSCEF Doc 19). Additionally, as in Dunn, supra, the plaintiff lacked an opportunity to call or cross-examine witnesses which, pertinently, included the plaintiff herself. In Clemens v. Apple, the Court of Appeals denominated the availability of new evidence as among the factors to be weighed in assessing a party’s opportunity to fully and fairly litigate an issue in a prior action (see Clemens, supra at 748). Of course, new evidence rarely pops spontaneously into existence — rather, previously undiscovered evidence is generally designated as “new” based on its previous non-availability to the litigants in a prior proceeding.

This Court also finds the procedural history of the instant matter to be patently distinguishable from the circumstances presented in the decisional authority, Ryan v. New York Tel. Co., supra. In Ryan, the Court of Appeals held that the plaintiff had been afforded a full and fair opportunity in a prior administrative hearing to litigate the underlying issue of his misconduct and termination, having directly initiated and participated in the proceeding, testifying, and by cross-examining defendant’s witnesses through his union representative; and further, that the evidence later proffered as “new” on appeal had been available to plaintiff during the prior hearing, but was inexplicably not submitted for review. Conversely, here the record indicates that plaintiff had no knowledge of the arbitration proceeding, had been afforded no opportunity to provide evidence to the litigant representing her interests, and did not testify; further the record also shows that no cross-examination of the alleged driver was conducted during the arbitration proceeding. Even were this Court to accept the likely counter-argument that such evidence should have been uncovered by the due diligence of Comprehensive MRI’s counsel, that assertion directly calls into question the competence and expertise of that counsel, as contended in the Affidavit of plaintiff’s own counsel, Jason Firestein (NYSCEF Doc 18), and which also weighs against the application of estoppel here (see Clemens, supra).

This Court is also mindful of the Beuchel Court’s implicit admonition against imposing preclusion where doubts persist as to whether the prior proceeding conferred a full and fair opportunity to the litigant to be precluded (see Buechel v. Bain, supra at 304). As a result, it is determined that sufficient doubts exist as to whether plaintiff was afforded a full and fair opportunity to litigate the central issue in this action to avert her preclusion here, in light of the assignee’s non-possession of probative evidence during the prior arbitration, particularly where the availability of that evidence could have established the identity of the offending vehicle in the absence of plaintiff’s accurate description of the driver, or might have otherwise have permitted a sound rebuttal to the countervailing arguments.

Separately, this Court agrees with movant’s position that Insurance Law §5106(e) does not apply here, where plaintiff is not seeking monetary damages for personal injuries as authorized under Insurance Law §5104. Similarly, Insurance Law §3420(d) does not apply where the claimant is not explicitly covered by the policy (see Zappone v. Home Ins. Co., 55 NY2d 131, 135 [1982]).

Therefore, movant’s motion to dismiss plaintiff’s action as barred by collateral estoppel is DENIED.

B. Plaintiff’s Cross-Motion for Summary Judgment

We now turn to plaintiff’s cross-motion seeking summary judgment declaring that the claims submitted by plaintiff and her assignees arose through the use and operation of a motor vehicle covered by defendant Everest.

The proponent of a summary judgment motion has the burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing entitlement to judgment as a matter of law. Giuffrida v Citibank Corp., 100 NY2d 72 (2003); Alvarez v Prospect Hosp., 68 NY2d 320 (1986); Winegrad v New York University Medical Center, 64 NY2d 851 (1985). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. Winegrad, supra at 853. “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are [*3]insufficient” to rebut the movant’s claims and establish that triable issues of fact exist. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the non-moving party and should not pass on issues of credibility. Dauman Displays, Inc. v. Masturzo, 168 AD2d 204, 205 (1990); also see Latif v. Eugene Smilovic Hous. Dev. Fund Co., 147 AD3d 507, 508 (1st Dept. 2017), holding that where a plaintiff’s testimony contains inconsistencies, they are not appropriately resolved on a summary judgment motion.

Here, it is clear that the contradictory testimonies of Steve Turner (NYSCEF Doc 24), plaintiff (NYSCEF Docs 21 and 25), and Mercedes Espinal (NYSCEF Doc 20), highlight the existence of unresolved issues of fact that preclude summary judgment, particularly where the resolution of those questions require comparative assessments of various witness’ credibility (see Dauman Displays, Inc. v. Masturzo, supra at 205). In light of the above, plaintiff’s cross-motion for summary judgment is DENIED.

The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the parties was not addressed by the Court, it is hereby denied.

Accordingly, movant’s motion to dismiss plaintiff’s complaint, and plaintiff’s cross-motion for summary judgment, are both DENIED, as stated herein.

Plaintiff is directed to serve a copy of this decision and order with notice of entry, upon all parties within thirty (30) days of entry, and to upload proof of service onto the NYSCEF system.

This constitutes the decision and order of this Court.

Dated: December 23, 2025
Bronx, New York
Hon. Kim Adair Wilson, J.S.C.Longevity Med. Supply, Inc. v New York City Tr. Auth. (2025 NY Slip Op 52018(U))

Reported in New York Official Reports at Longevity Med. Supply, Inc. v New York City Tr. Auth. (2025 NY Slip Op 52018(U))

[*1]

Longevity Med. Supply, Inc. v New York City Tr. Auth.

2025 NY Slip Op 52018(U) [87 Misc 3d 1253(A)]

Decided on December 17, 2025

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 December 17, 2025

Longevity Medical Supply, Inc., a/a/o NIJ, ANDRES, Plaintiff, against New York City Transit Authority, Defendant.

Index No. CV-737529-17/KI



The Rybak Firm PLLC, Brooklyn, for Plaintiff

Gottlieb Ostrager LLP, Armonk, for Defendant
Sandra E. 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 NYSCEF 2-4
Answering Affidavit NYSCEF 8-10
Replying Affidavits
Exhibits
Other NYSCEF 16-17

Upon the foregoing cited papers, after oral argument on September 30, 2025, the Decision/Order on Plaintiff’s Motion for Summary Judgment, is as follows:

It is well established and incontrovertible, consistent with the legislative intent that the literal statutory interpretation as to 2% punitive interest is to be assessed to no-fault mandatory and additional personal injury protection benefits overdo and owing calculated upon the principal amount of benefits (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; NY Comp Codes R & Regs. Tit. 11, § 65-3.9 [a] [2005] [Regulation 68-C] see, (Matter of Lam Quan MD, P.C. v LM Gen. Ins. Co., 239 AD3d 654 [2d Dept 2025] citing (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 159 [2d Dept 2021]). Plaintiff relies heavily upon BZ in its argument that 2% interest is to be assessed for the amounts due and owing for pure-interest only in this instant matter. However, there is a significant distinguishing procedural distinction herein. In the case at bar, there is no judgment entered here. Rather, this is Plaintiff’s Motion for [*2]Summary judgment de novo. Defendant by its pure-principal total payment of the bill for benefits due in the amount of $1,309.27 on 6/17/2020 in full of the mandatory and additional personal injury protection benefits overdo and owing pre-judgment extinguishes the 2% penalty pursuant to the literal reading of the statute and is not contradicted by BZ since no judgment entered here. This Court acknowledges that the pre-judgment interest accrued from 9/16/2016 (the date no-fault benefits were due and owing for Defendant’s failure to pay, deny or toll) until 6/17/2020 (the date pure-principal payment of no-fault benefits due and owing were paid in full by Defendant) is to be assessed at the 11 NYCRR 65-3.9 (a) 2% penalty interest pre-judgment. Plaintiff errs in its argument that BZ considered pre-judgment interest as it states: “One reason for disagreement is that BZ would have had no reason to believe that it would receive interest, at whatever point in the postjudgment time line, other than at the 2% per month rate required as a matter of law by Insurance Law § 5106 and former 11 NYCRR 65.15 (h). The remedies of CPLR 5019 (a) were simply not required, whether the right to interest in the underlying action be cast as a substantive or a non-substantive right”(Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 157 [2d Dept 2021]). The BZ judgment was entered on November 15, 2001, and pure-principal no-fault benefits were paid without any interest post-judgment in 2015, which is inapposite here. Here, Defendant paid pure-principal benefits in full whereas it failed to pay any accrued pre-judgment penalty interest of 2%, which is statutorily deemed mandatory and non-waivable for any principal of no-fault benefits overdo and owing, which is Ordered to be paid upon calculation.

However, it is not so where pure-principal of no-fault benefits paid in full leaving only the 2% accrued pure-interest due and owing. This Court does not find that it is the legislative intent to assess compounded punitive 2% interest solely upon pure-interest due and owing after pure-principal payment of no-fault benefits paid in full pre-judgment. BZ is silent as to such a pre-judgment payment scenario as here. Rather, BZ addresses the issue as to whether payment in full of pure-principal no-fault benefits without any interest paid post-judgment renders 11 NYCRR 65-3.9 (a) punitive 2% interest controlling as opposed to CPLR 5004 general 9% interest. BZ held that punitive 2% interest is controlling as conceded by defendant’s own mathematical calculations of post-judgment interest paid at the 11 NYCRR 65-3.9 (a) punitive 2% interest although in contravention to its legal argument that post-judgment interest should be assessed at CPLR 5004 general 9% interest.

“Another equally important reason for our disagreement with our colleague involves an issue of mathematics rather than law. When Allstate paid the initial amount of $8,842.49, and made a subsequent payment of $14,157.21, to bring its combined total to $22,999.70, the interest paid at those times by Allstate reflects, by mathematical computation of dates and rates, a 2% per month rate of interest, compounded. Taking into account the judicially-imposed tolling period, there were 53 months for which interest was owed between the entry of the judgment on November 15, 2001, and November 1, 2005, and between June 19, 2015, and the payment of $14,157.21 on December 1, 2015, which was a pure-interest payment. Two percent interest for each of those months, with a modest additional sum for compounding, explains how the $14,157.21 payment was computed. This means that for many years prior to and into December 2015, there was never any controversy between the parties as to the proper rate of compounded interest that was to be applied to the judgment. By its actions, Allstate, in paying interest computed at 2% per month compounded, agreed with BZ that the proper rate was that required by [*3]Insurance Law § 5106 and former 11 NYCRR 65.15 (h). Had Allstate believed that the proper rate of post-judgment interest was 9% per year, it would have tendered a much smaller sum on December 1, 2015, representing the lesser annual 9% CPLR amount.

“Only after Allstate had paid BZ the interest of $14,157.21, computed at 2% per month compounded, did Allstate then file a motion in the Civil Court seeking to compel the filing of a satisfaction of judgment. The filing of a satisfaction of judgment raised nothing more than a procedural issue for the court. At that point in time, there was still no controversy between the parties about the rate of interest owed on the underlying judgment. BZ had no reason at that time to raise any issue about the rate of interest in the absence of any controversy over it. Indeed, it might have been frivolous for BZ to have raised at that time the issue of the rate of interest, as the interest had been paid by Allstate using the higher 2% per month rate compounded and represented no controversy. The applicable interest rate remained a nonissue as the parties’ litigation proceeded from the Civil Court to the Appellate Term over whether interest should have been equitably tolled, having nothing to do with the rate of its computation.

“Controversy over the proper rate of interest never arose until it was created, sua sponte, by the Appellate Term’s gratuitous advisory language in its decision and order dated August 18, 2017. As noted, the Appellate Term’s advisory language about its suggested rate of interest was incorrect as a matter of law. Upon the issuance of the August 18, 2017 decision and order, BZ promptly sought to litigate the point by filing a motion for a clarification, and prosecuted two motions at both the Appellate Term and this Court for leave to appeal to this Court. Therefore, and contrary to the view of our dissenting colleague, this is not a circumstance which is sometimes seen in the subject area of res judicata or collateral estoppel, where a party had an “opportunity” to litigate an issue so as to be precluded from doing so in a later proceeding. There was no dispute about the proper rate of interest for the parties to actually litigate until one was unnecessarily created by the Appellate Term on August 18, 2017. This Court denied leave to appeal on March 2, 2018. The first petition filed by BZ in the Supreme Court seeking, inter alia, a declaratory judgment as to the proper rate of interest was filed only 2½ months later” (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 157-158 [2d Dept 2021]).

Further, Plaintiff’s reliance on the holdings of 2% controlling interest in pre-judgment and post-judgment matters resulting from breach of stipulation of settlements, are similarly distinguishable from this instant matter. (Berenblit v Country Wide Ins. Co., 85 Misc 3d 135[A], 2025 NY Slip Op 50487[U] [App Term 2025] citing Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term 2019]); see CPLR 5003-a [e]; NCT Diagnostics, Inc. v Countrywide Ins. Co., 77 Misc 3d 133[A], 178 NYS.3d 367, 2022 NY Slip Op 51247[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)]. Unlike BZ and breach of settlement cases, in this instant matter the no-fault mandatory and additional personal injury protection benefits were not overdo nor owing, but rather paid in full, leaving exclusively pure-interest due and owing,

Upon no appellate authority which conclusively provides that the scenario herein warrants 11 NYCRR 65-3.9 (a) 2% penalty interest to be assessed compounded pre-judgment pure-interest, for the foregoing reasons, Plaintiff’s Motion for Summary Judgment is granted to [*4]the following extent: Defendant has established that the principal no fault benefits or the bill for which Plaintiff sought payment was paid in full on 06/17/2020, conceding no triable issue of fact and sole issue herein is the assessment of interest calculation and as such Plaintiff is limited to recovery as follows:

1. Pre-judgment Penalty of 2% simple interest pro-rated daily (30 day month) on the bill amount of $1,309.27 in suit due and owing from 09/16/2016 to 06/17/2020, ($1,309.27 x (.02 x (1,371/30))) = $1,196.67 in simple interest., which converts to the amount in controversy as the principal debt amount due and owing, upon which all further interest payments are to be calculated proceeding hereafter;

2. Pre-judgment 9% statutory interest from 06/17/2020 to 01/17/2021 on the due and owing principal of debt $1,196.97 x (.09 x (214/365)) = $63.16

3. Interest tolled from 01/18/2021 to 02/02/2023; Plaintiff’s inactivity in the exercise of judicial discretion;

4. Pre-judgment 9% statutory interest resuming from 02/03/2023 to 12/16/2025 on the due and owing principal of debt $1,196.97 x (.09 x (1,048/365)) = $309.31

5. Accrued due and owing amount in Favor of Plaintiff up to 12/16/2025, equals principal of $1,196.67 plus pre-judgment interest as of 12/16/2025 in the amount of $372.47 as calculated supra = $1,569.14.

6. ORDERED, Clerk to continue from 12/17/2025 to add pre-judgment per-diem 9% statutory interest on the principal amount of $1,196.67 up to entry of judgment, converting thereafter to post-judgment 9% statutory interest to be added to the amount of $1,569.14, with attorney fees, costs and disbursements.

For the foregoing reasons, Judgment Granted in favor of Plaintiff in the amounts as indicated.

This constitutes the Decision and Order of the Court.

DATE December 17, 2025
HON. SANDRA E. ROPERSuarez Med., PLLC v Nationwide Ins. (2025 NY Slip Op 51996(U))

Reported in New York Official Reports at Suarez Med., PLLC v Nationwide Ins. (2025 NY Slip Op 51996(U))

[*1]

Suarez Med., PLLC v Nationwide Ins.

2025 NY Slip Op 51996(U) [87 Misc 3d 1250(A)]

Decided on December 12, 2025

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 December 12, 2025

Suarez Medical, PLLC A/A/O ANDREW, AMANDA P., Plaintiff(s), against Nationwide Ins., Defendant(s).

Index No. CV-726274-22



The Rybak Firm PLLC, Brooklyn, for Plaintiff.

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

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

Papers
P’s motion for summary judgment 1
D’s XM for summary judgment 2
P’s opposition 3

Upon the foregoing cited papers, and after oral argument made on the Record on December 11, 2025, the Decision/Order on Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment is as follows:

Plaintiff’s motion is GRANTED to the extent that Plaintiff establishes its prima facie case for all purposes.

Defendant’s cross-motion is DENIED.

Under CPLR § 3212(b), a court may grant summary judgment only where the movant establishes its cause of action or defense sufficiently to warrant judgment as a matter of law, and must deny the motion if any party shows facts requiring a trial of any issue of fact (see CPLR § 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Summary judgment is a drastic remedy and should be granted only where no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The proponent bears the initial burden of making a prima facie showing of entitlement to judgment by tendering evidence that eliminates any material issues of fact; failure to do so requires denial regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). In deciding the motion, the court must view the evidence in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences (see Vega, 18 NY3d at 503; De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; Pearson v Dix McBride, LLC, 63 AD3d 895, 895 [2d Dept 2009]).

Defendant premises its argument on a transcript of the examination under oath (“EUO”) of Plaintiff Owner taken on September 16, 2019, that although unsigned was sent to the witness for execution on October 19, 2019 and November 15, 2019 in accordance with CPLR 3116(A). Defendant’s position that at the September 16, 2019 EUO, in lieu of completing the EUO and subjecting Plaintiff to the verification process afforded by the New York State No-Fault Statute, Plaintiff Owner, in his capacity as sole shareholder of Plaintiff, agreed to withdraw, “any and all claims that were submitted to Nationwide or any of its’ subsidiaries and affiliates with respect to any date of service September 16, 2019 or prior,” including “any claims . . . that currently have been submitted to Nationwide or may in the future be submitted to Nationwide ” (tr at 123, lines 3-24). However, on the very next page of the transcript it is indicated that a separate affidavit of waiver of previous claims or walk-away would be prepared afterward (tr at 123, lines 7-17). Defendant failed to proffer any such document to be considered herein.

Defendant’s sole reliance on the alleged admissions against interest contained within the transcript is misplaced. Most notably, contained therein was the reporter’s on the record notation as to an off the record discussion prior to Plaintiff Owner’s statements of withdrawal of claims, which in and of itself raises greater than a mere scintilla of a triable issue of fact to defeat judgment as a matter of law. Indeed, Plaintiff Owner’s assent to withdraw all prior claims is insufficient, particularly where the EUO was held for different and distinct claimants, claims and claim numbers than in this instant matter. Rather, it is Plaintiff Owner’s intent in making those statements which becomes the gravamen herein. It is well established, issues as to state of mind intent are issues of fact to be determined at trial and not determinable for judgment as a matter of law. Thus, Defendant failed to satisfy its burden for judgment as a matter of a law in the first instance. However, in response to Defendant’s further argument that in the Plaintiff Owner’s rebuttal affirmation he never addressed his admissions in the transcript, This Court arguendo hypothesized that if indeed Defendant had met its’ burden for judgment as a matter of law in the first instance, upon shifting of the burden in rebuttal, Plaintiff would have absolutely met its burden to defeat Defendant’s judgement as a matter of law, since his mere making of the affirmation and not the contents contained therein, is sufficient to show inconsistency of intent. Nevertheless, This Court reiterates its finding that Defendant failed to meet its burden in the first instance obviating the shifting of the burden of rebuttal to Plaintiff.

Accordingly, this matter is to proceed to trial as to Defendant’s prima facie and defenses.

This constitutes the decision and order of the Court.

The undersigned attorneys certify that none of the cases cited within this case or this motion were drafted using, in any capacity, generative artificial intelligence programs, pursuant to In Augustin v. Formula 3 Brook, Inc., 2025 NY Misc. LEXIS 6143, 2025 NY Slip Op 51113(U), 86 Misc 3d 1236(A) (Kings Co. Sup. Ct. July 26, 2025).

Counsel for Plaintiff – Printed Name and Initials: Richard Rozhik, RR.

Counsel for Defendant – Printed Name and Initials: Christopher Volpe, CV


DATE December 12, 2025
HON. SANDRA E. ROPERBalanced Channels Acupuncture, P.C. v USAA Cas. Ins. Co. (2025 NY Slip Op 51972(U))

Reported in New York Official Reports at Balanced Channels Acupuncture, P.C. v USAA Cas. Ins. Co. (2025 NY Slip Op 51972(U))

[*1]

Balanced Channels Acupuncture, P.C. v USAA Cas. Ins. Co.

2025 NY Slip Op 51972(U)

Decided on December 5, 2025

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 December 5, 2025

PRESENT: : CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, JOANNE D. QUIÑONES, JJ
2024-638 RI C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Marshall Dennehey Warner Coleman & Goggin (Aneshia Chintamani of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), dated June 6, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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 defendant had not issued an insurance policy covering plaintiff’s assignor and, thus, plaintiff’s assignor was not an eligible injured person entitled to receive no-fault benefits. By order dated June 6, 2024, the Civil Court (Mary A. Kavanagh, J.) granted defendant’s motion.

As plaintiff properly contends on appeal, defendant failed to establish its entitlement to summary judgment dismissing the complaint as the affidavit submitted by a claims adjuster from “USAA General Indemnity Company” was insufficient to establish, prima facie, defendant’s lack of coverage defense. Here, the claims adjuster did not establish that she was employed by defendant or how defendant and her employer were related to each other. Moreover, she failed to establish that she had personal knowledge of defendant’s standard practices and procedures for maintaining or searching for information related to policyholders and current or past policies. Indeed, the claims adjuster failed to set forth that a search of defendant’s records or databases was ever conducted for the instant case. Rather, she merely stated in her affidavit that “USAA General Indemnity Company” did not insure plaintiff’s assignor, his vehicle, nor anyone that resided with plaintiff’s assignor. This statement was insufficient, and, as a result, defendant failed to satisfy its prima facie burden entitling it to summary judgment dismissing the complaint (cf. Delta Diagnostic Radiology, P.C. v Am. Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op [*2]51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 31 Misc 3d 138[A], 2011 NY Slip Op 50743[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant’s motion should have been denied regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025LV Med. Diagnostic Servs., P.C. v Safe Auto Ins. Co. (2025 NY Slip Op 51974(U))

Reported in New York Official Reports at LV Med. Diagnostic Servs., P.C. v Safe Auto Ins. Co. (2025 NY Slip Op 51974(U))

[*1]

LV Med. Diagnostic Servs., P.C. v Safe Auto Ins. Co.

2025 NY Slip Op 51974(U)

Decided on December 5, 2025

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 December 5, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, JOANNE D. QUIÑONES, JJ
2024-893 K C

Alahverdian Van Leuvan, P.C. (Gerard R. Van Leuvan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lola Waterman, J.), entered May 21, 2024. The order denied the branch of defendant’s motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction.

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 to dismiss the complaint. In support of its motion, defendant argued that the Civil Court did not obtain personal jurisdiction over it because it is an Ohio company which is not authorized to do business in New York, and that it has not filed a statement with the Superintendent of Insurance agreeing that its automobile insurance policies will be deemed to satisfy the requirements of the New York Vehicle and Traffic Law; that the $5,000 limit of the insurance policy had been exhausted prior to plaintiff’s claims; and that it was not properly served with the summons and complaint. By order entered May 21, 2024, the Civil Court (Lola Waterman, J.) solely addressed, and denied, the branch of defendant’s motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction (see CPLR 3211 [a] [8]). The court found that defendant “failed to produce evidentiary proof in admissible form.” Specifically, the affidavit by defendant’s director of claims, which was signed and notarized in Ohio, lacked a certificate of conformity, and the insurance policy’s declaration page was not certified and lacked any foundation. The order concluded by noting that “issues of material fact exist as to whether defendant does not do business in the State of New York,” and that “This case shall proceed on to trial on the issue of personal jurisdiction.” On appeal, defendant contends that the Civil Court should have granted the branch of its motion seeking to dismiss the complaint on the ground of lack of jurisdiction.

In addition to its determination that there were various deficiencies in defendant’s [*2]submissions which required its motion to be denied, the court found that sufficient issues of fact existed “as to whether defendant does not do business in the State of New York” and, therefore, held that the issue of personal jurisdiction would be determined at trial. We find that this determination by the Civil Court was proper under the circumstances of this case.

Defendant’s remaining contentions either lack merit or are unpreserved for appellate review.

Accordingly, the order is affirmed.

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

ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025Prompt Med. Group, Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51977(U))

Reported in New York Official Reports at Prompt Med. Group, Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51977(U))

[*1]

Prompt Med. Group, Inc. v Foremost Signature Ins. Co.

2025 NY Slip Op 51977(U)

Decided on December 5, 2025

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 December 5, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, JOANNE D. QUIÑONES, JJ
2024-1129 RI C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

Upon a review of the record, we find that the papers defendant submitted in support of the branch of its motion seeking summary judgment dismissing the complaint failed to demonstrate by admissible proof, as a matter of law, that defendant provided the insured with proper notice of cancellation in accordance with Vehicle and Traffic Law § 313 (1) (a) (see Island Life Chiropractic Pain Care, PLLC v Allstate Ins. Co., 60 Misc 3d 132[A], 2018 NY Slip Op 51006[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In addition, we note that defendant, in any event, has not demonstrated that the alleged cancellation of the policy was effective with respect to plaintiff’s assignor, who was not the named insured or a member of the insured’s household (see Vehicle and Traffic Law § 313 [2] [a]; [3]; Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]; Matter of Progressive Northeastern Ins. Co. v Barnes, 30 AD3d 523 [2006]; Pravel, Inc. v State Farm Mut. Auto. Ins. Co., 67 Misc 3d 132[A], [*2]2020 NY Slip Op 50457[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Art of Healing Medicine, P.C. v Allstate Ins. Co., 54 Misc 3d 46 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Advanced Med. Care, P.C. v Allstate Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50130[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; GL Acupuncture, P.C. v Geico Ins. Co., 48 Misc 3d 141[A], 2015 NY Slip Op 51239[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint should have been denied.

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

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

ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025Medical Supply of NY Servs., Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51978(U))

Reported in New York Official Reports at Medical Supply of NY Servs., Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51978(U))

[*1]

Medical Supply of NY Servs., Inc. v Foremost Signature Ins. Co.

2025 NY Slip Op 51978(U)

Decided on December 5, 2025

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 December 5, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, JOANNE D. QUIÑONES, JJ
2024-1132 RI C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

For the reasons stated in Prompt Med. Group, Inc., as Assignee of Philippe F. Polidor v Foremost Signature Ins. Co. (— Misc 3d —, 2025 NY Slip Op — [appeal No. 2024-1129 RI C], decided herewith), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

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

ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025