21st Century Pharm., Inc. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51577(U))

Reported in New York Official Reports at 21st Century Pharm., Inc. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51577(U))

[*1]

21st Century Pharm., Inc. v State Farm Mut. Auto. Ins. Co.

2025 NY Slip Op 51577(U)

Decided on September 25, 2025

Civil Court Of The City Of New York, Kings County

Holaman, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2025

21st Century Pharmacy, Inc., Plaintiff, against State Farm Mutual Automobile Ins. Co., Defendant.

Index No. CV-730192-18/KI



Plaintiff’s Attorney: Gary Tsirelman, Esq.
Gary Tsirelman, PC
129 Livingston Street
Brooklyn, New York 11201

Defendant’s Attorney: Edward M. Ryan, Esq.
McDonnell Adels & Klestzick, PLLC
401 Franklin Avenue, Suite 200
Garden City, New York 11530

Monique J. Holaman, J.

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

Papers
Defendant’s Notice of Motion and Affidavits /Exhibits 1
Plaintiff’s Opposition and Affidavits/Exhibits 2
Defendant’s Reply and Affidavits/Exhibits 3

Upon review of the foregoing cited papers and after oral argument, Defendant’s Summary Judgment Motion (“motion sequence #3”) is DENIED.

In this action, Plaintiff 21st Century Pharmacy, Inc. (hereinafter “21st Century” or “Plaintiff”) seeks reimbursement of No-Fault benefits from Defendant State Farm Mutual Automobile Ins. Co. (hereinafter “State Farm” or “Defendant”) in the total amount of $1,529.00 for services rendered to its assignor, Aquiles Nunez. Defendant filed a timely answer to the complaint. Pursuant to CPLR § 3212, Defendant now moves for an order granting summary judgment. Defendant argues that Plaintiff’s complaint must be dismissed because Plaintiff’s [*2]assignor failed to appear for noticed Examinations Under Oath (“EUO’s”). Plaintiff opposes and argues that Defendant’s motion is untimely without “good cause” shown and must be denied regardless of the issues being raised.

Plaintiff states that they filed their Notice of Trial on August 4, 2020 and under CPLR § 3212(a), Defendant was required to move for summary judgment within 120-days. Defendant filed the motion on September 21, 2022, approximately 778-days later. Moreover, Plaintiff argues that Defendant has failed to make a showing of “good cause” for the delay that would allow the Court to consider an extension. In further opposition, Plaintiff proffers that the Court should not consider Defendant’s “good cause” rationale, as it was only raised for the first time in their reply papers.

Defendant, in their reply, claims that they were unaware that a Notice of Trial had been filed as there was no indication in the Court System ^[FN1] . Defendant argues that “good cause” is shown where there is a reasonable excuse for the delay, there is merit to the action and there is the absence of prejudice. Defendant maintains that they have satisfied all three elements and therefore, the Court should grant the extension, allow the summary judgment to be considered and ultimately granted.

The Court will address the merits of Plaintiff’s opposition and Defendant’s reply as it pertains to the timeliness of the instant motion. A determination on this issue must be resolved before addressing the merits of the summary judgment motion, as the Court will first need to grant an extension for the motion to be considered. Pursuant to CPLR § 3212:

“Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.”

(CPLR § 3212[a][emphasis added]). In Brill v City of New York, the Court of Appeals established that “good cause in CPLR 3212(a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy” (Brill v City of New York, 2 NY3d 648, 652, 814 NE2d 431, 781 NYS2d 261 [2004]).

Defendant filed the instant motion on or about September 21, 2022. Based on the court records, Plaintiff filed their Notice of Trial on or about August 4, 2020. Defendant argues that they have established good cause for the delay and relies on the ruling in Adika v Dramatinos, 74 AD3d 848, 904 NYS2d 461 (2d Dept 2010). However, there are significant distinguishing facts. In Adika, the summary judgment motion was filed five days after the 120-day deadline. Here, Defendant filed their motion for summary judgment motion more than two years after the Notice of Trial was filed. Additionally, in Adika, “the New York State Unified Court System’s public [*3]Web site ^[FN2] incorrectly stated that the note of issue was filed five days after it was in fact filed” (Adika, 74 AD3d at 849). In the instant case, Defendant relies on the Court system website and eLaw. It should be noted that the Defendant submitted a case summary from October 2, 2021 that allegedly did not reflect that Plaintiff filed a Notice of Trial. In any event, the instant motion was filed almost a year after this review of the Court System’s website. In Defendant’s more recent review of the case (March 22, 2022), Counsel only relied on eLaw ^[FN3] and failed to refer to the Court System website. The Court concludes that Defendant did not use due diligence in reviewing the status of the case prior to filing their summary judgment motion.

In addition, the substantive body of Defendant’s motion failed to include the request for an extension or explain their “good cause” arguments for their delay. Defendant’s summary judgment motion only addressed the merits of the Plaintiff’s failure to appear for EUO’s. The “good cause” arguments were raised for the first time in Defendant’s reply. As such, Plaintiff did not have an opportunity to adequately oppose the new arguments and relief requested in a sur-reply (see Matter of Harleysville Ins. v Rosario, 17 AD3d 677, 792 N.Y.S.2d 912 [2d Dept 2005]).

Defendant’s motion for summary judgment (motion sequence #3) is DENIED. This matter is set down for a bench trial on November 14, 2025, at 9:30AM in Part 15.

The foregoing constitutes the Decision and Order of this Court.

Date: September 25, 2025
Honorable Monique J. Holaman
Civil Court Judge (NYC)

Footnote 1: Defendant’s Exhibit 1 is a printout of the Case Summary as of October 2, 2021, and an eLaw printout dated March 21, 2022.

Footnote 2: Courts have held that judicial notice is taken where information is found on the New York State Unified Court System’s website (see L&Q Realty Corp. v. Assessor, 71 AD3d 1025, 896 N.Y.S.2d 886 [2d Dept 2010]).

Footnote 3: eLaw provides web-based docketing and calendaring software to legal professionals, allowing attorneys to search, monitor and manage active and archived cases, dockets and court calendars. However, it is not an official Court website.Queens Radiology Imaging v GEICO (2025 NY Slip Op 51823(U))

Reported in New York Official Reports at Queens Radiology Imaging v GEICO (2025 NY Slip Op 51823(U))

[*1]

Queens Radiology Imaging v GEICO

2025 NY Slip Op 51823(U) [87 Misc 3d 1238(A)]

Decided on September 21, 2025

Civil Court Of The City Of New York, Queens County

Torres, 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 September 21, 2025

Queens Radiology Imaging, a/a/o ANDREW COLE, Plaintiff, against GEICO, Defendant.

Index No. CV-700373-24


Raymond Mak, Esq. counsel plaintiff QUEENS RADIOLOGY IMAGING, PC

Lauren J Levine, Esq. counsel for defendant GEICO
Patrick Hayes Torres, J.

Upon the foregoing cited papers, the Decision and Order on defendant’s notice of motion for summary judgment seeking to dismiss plaintiff complaint for defendant’s failure to timely provide verification response within 120 days. Plaintiff opposes and cross moves seeking summary judgment claiming they submitted bills timely and defendant failed to pay the claims. For the reasons set forth below, the defendant’s motion for summary judgment is granted and plaintiff’s cross motion is denied.

Plaintiff commenced this action to recover No-Fault benefits as reimbursement for medical services it provided to the assignor. Defendant now moves for summary judgment on the grounds that plaintiff failed to respond to its verification requests.

Defendant in support of their summary judgment motion, submitted an affidavit from its Claim Supervisor outlining the claim procedures, verification requests, additional verification request and the mail processing procedures; and General Manager of Pitney Bowes, detailing the mail procedure from defendant to the Unites States Post Office. Defendant claimed plaintiff’s assignor failed to fully comply with a pre-Examination Under Oath (Herein referred as “EUO”) verification request and post EUO verification request that remains outstanding.

Defendant sent out an initial verification request on January 2, 2023, and January 27, 2023, along with EUO request from bills received on December 15, 2022, and January 5, 2023. After several adjournments the plaintiff appeared for an EUO on May 11, 2023, however, plaintiff at no time submitted a response to the initial verification request nor provided a reason for not submitting a response. As a result of the EUO, defendant on May 25, 2023, demanded plaintiff respond to the original verification request and also requested additional verification. Defendant again followed up with plaintiff on June 30, 2023, for the verifications. According to defendant, plaintiff partially responded to defendant’s verification request on September 1, 2023, and a letter was sent on September 11, 2023, detailing the deficiencies in plaintiff’s response to the verifications. Defendant failed to contest the partial verification. Thereafter, defendant issued a global denial on October 16, 2023, due to plaintiff’s failure to respond to defendant’s verification request within the statutory 120-day period pursuant to 11 NYCRR §65-3.5(o).

In opposition, plaintiff relied on a recent case Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41 (App Term, 2d, 11th & 13th Jud Dists 2024). Plaintiff [*2]argued that according to Burke, verification is deemed to have been received and completed on the day of the EUO which was May 11, 2023, and as such, the defendant would have had until June 10, 2023, to pay or deny the claim.

Generally, a carrier has 30 days to pay or deny a claim. A no-fault insurance carrier under the No-Fault statutory scheme may require an eligible injured person or assignee of the injured person, to submit a written proof of claim under oath; to submit to examinations under oath, and to request information that may assist the carrier in determining the claim. See 11 NYCRR §65-1.1. An EUO is a verification. Where a carrier properly demands an examination under oath, “the verification is deemed to have been received by the insurer on the day the examination was performed.” See 11 NYCRR §65-3.8(a)(1). Thus, the carrier’s 30—day period in which to pay or deny a claim may be extended where the insurer makes a request for additional information within 15 business days of its receipt of the claim (see 11 NYCRR §65—3.5[b]; New York & Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512, 513 [2d Dept 2006]; Hospital for Joint Diseases v. ELRAC, Inc., 11 AD3d 432, 434 [2d Dept 2004]; New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., 5 AD3d 568, 569 [2d Dept 2004]; New Millennium Med. Imaging v Geico, 76 Misc 3d 31, 33 (App Term 2d Dept, 2d, 11th & 13th Jud Dist 2022).

The Burke case is distinguishable to the circumstances to this case. Here, written verifications were requested pre EUO while in Burke written verification was not requested until after the EUO was completed. In the instant matter, the EUO was completed on May 11, 2023. Thus, defendant had until about June 10, 2023, to either deny or pay plaintiff ‘s claim. Defendant however requested additional verification on May 25, 2023, which was within the 15-day period of the EUO. Since defendant’s verification request was timely, the 30-day limit was tolled at the time of the verification, which was May 25, 2024. Defendant, on June 30, 2023, timely followed up by letter to plaintiff seeking the verification responses. See 11 NYCRR §65-3.6(b). an insurer is not obligated to pay or deny a claim until all demanded verification is provided (see Hospital for Joint Diseases v New York Central Mut. Fire Ins. Co., 44 AD3d 903, 904 (2d Dept 2007). Thereafter, defendant issued a global denial on October 16, 2023, due to plaintiff’s failure to respond to defendant’s verification request within the statutory 120-day period pursuant to 11 NYCRR §65-3.5(o).

As to defendant’s verification request defense, ultimately, the nature of a summary judgment motion is to ascertain whether triable issues of fact remain. Here, the court finds that the defendant established a prima facie case that the plaintiff failed to fully comply with the verification requests within the 120-day statutory period and that additional verification remained outstanding. Plaintiff neglected to contest defendant’s claim that plaintiff partially responded to their verification. The burden shifted to plaintiff who failed to create a triable issue of fact as to defendant’s affirmative defense. See Zuckerman v. City of New York, 49 NYS2d 577 (1980). Moreover, plaintiff in their cross motion for summary judgment failed to submit an affidavit of personal knowledge that the bills were submitted timely and that they were overdue.

Considering the foregoing, the defendant’s motion for summary judgment is granted and plaintiff’s cross-motion for summary judgment is denied as moot given the Court’s decision. Any relief not expressly addressed herein has nonetheless been considered and is denied.

This constitutes the decision and order of the court.

Dated: September 21, 2025
Queens, New York
Hon. Patrick Hayes Torres, J.C.CABV Med. Supplies Inc. v MTA Bus – LaGuardia (2025 NY Slip Op 51476(U))

Reported in New York Official Reports at ABV Med. Supplies Inc. v MTA Bus – LaGuardia (2025 NY Slip Op 51476(U))

[*1]

ABV Med. Supplies Inc. v MTA Bus – LaGuardia

2025 NY Slip Op 51476(U) [87 Misc 3d 1206(A)]

Decided on September 18, 2025

Civil Court Of The City Of New York, Kings County

Oguntunde-Waterman, 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 September 18, 2025

ABV Medical Supplies Inc. AAO Edith Reed, Plaintiff(s), against MTA Bus – LaGuardia, Defendant(s).

Index No. CV-707910-22/KI

Olufunmilola Oguntunde-Waterman, 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
Answering Affidavit . . . NYSCEF
Replying Affidavits . . . NYSCEF
Exhibits
Other

Upon the foregoing cited papers, after oral argument on September 11, 2025, the Decision/Order on Defendant’s Motion to Dismiss and Plaintiff’s Cross-Motion to Amend and Substitute, is as follows:

Defendant’s motion to dismiss the complaint as against Defendant, MTA Bus — LaGuardia (“Defendant MTA Bus”) is granted. Defendant MTA Bus has established that it has no obligation to provide No-Fault coverage for the subject claim, as no vehicle owned, operated, or insured by Defendant MTA Bus was involved in the underlying accident. Moreover, the agencies of the Metropolitan Transportation Authority are not responsible for each other’s claims. Accordingly, the Complaint is dismissed with prejudice as against Defendant MTA Bus.

Plaintiff’s cross-motion to amend the caption and substitute the New York City Transit Authority (“NYC Transit Authority”) as a party defendant is granted. CPLR 1003 expressly permits the addition of parties “at any stage of the action by leave of court,” and CPLR 3025(b) authorizes amendments to pleadings “at any time by leave of court,” which shall be “freely given upon such terms as may be just.” Leave to amend should therefore be liberally granted where necessary for a complete determination of the issues, provided that no undue prejudice or surprise results. CPLR 1003.

Here, Plaintiff’s request satisfies this standard, as it seeks to join the proper party in interest for adjudication of the issues already presented in the pleadings. Based on the record presently before the Court, there is no perceived prejudice at this stage of the litigation to adding [*2]the proposed party, and any potential element of surprise is mitigated by Plaintiff’s representation that the bills at issue were submitted to NYC Transit Authority before Plaintiff inadvertently commenced this action against the wrong defendant.

The Court is mindful that leave to amend may be denied where it is clear from the record that the statute of limitations has expired against the proposed new defendant (see, C-Kitchens Assocs. v. Travelers Ins. Cos., 15 AD3d 905 (4th Dept., 2005), citing, Citibank [NY State] v. Suthers, 68 AD2d 790 (1979); Liverpool v. Arverne Houses, 67 NY2d 878, (1986); cf. Levykh v. Laura, 274 AD2d 418 (2000); see also, 3 New York Civil Practice: CPLR P 1003.07 (2025); Brenon v. County of Oneida, 124 AD2d 464 (3rd Dept., 1986). On the present record, however, it is not apparent that the statute of limitations has expired. The Court further notes the statute of limitations was tolled when Plaintiff filed its motion to add NYC Transit Authority, together with a supplemental summons and amended complaint (see, Perez v. Paramount Communications, 92 NY2d 749 [1999])[“Where the motion, including the proposed supplemental summons and amended complaint, is filed with the court within the applicable limitations period, but the ruling by the court does not occur until after expiration, dismissal is inappropriate and would offend the CPLR’s liberal policies of promoting judicial economy and preventing a multiplicity of suits”]).

To the extent that Plaintiff’s failure to file an affidavit of service of its cross-motion constitutes a procedural irregularity, the Court deems it nonprejudicial as this is a NYSCEF case and disregards it pursuant to CPLR 2001.

Accordingly, it is hereby,

ORDERED, that Defendant MTA Bus’s motion to dismiss is granted in its entirety, with prejudice as solely against it; and it is further

ORDERED, that Plaintiff’s cross-motion to amend the caption and join NYC Transit Authority as a party defendant is granted; and it is further

ORDERED, that this action shall bear the following caption: “ABV MEDICAL SUPPLIES INC., AAO EDITH REED, Plaintiff, against NYC TRANSIT AUTHORITY, Defendant. Index No.: CV-707910-22/KI“; and it is further

ORDERED, that the Clerk of the Court is directed to amend the caption as directed herein; and it is further

ORDERED, that Plaintiff shall serve the supplemental summons and amended complaint upon the newly added defendant, New York City Transit Authority, within twenty (20) days from the date of entry of this Decision and Order, pursuant to CPLR 308; and it is further

ORDERED, that the newly added defendant, NYC Transit Authority, shall thereafter appear in accordance with CPLR 320.

This constitutes the Decision and Order of the Court.

Date: September 18, 2025
Brooklyn, New York
Hon. Olufunmilola Oguntunde-Waterman, JCCBrefni Chiropractic Diagnostics, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51518(U))

Reported in New York Official Reports at Brefni Chiropractic Diagnostics, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51518(U))

[*1]

Brefni Chiropractic Diagnostics, P.C. v State Farm Mut. Auto. Ins. Co.

2025 NY Slip Op 51518(U)

Decided on September 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 September 5, 2025

PRESENT: : MARINA CORA MUNDY, J.P., WAVNY TOUSSAINT, JOANNE D. QUIÑONES, JJ
2024-1292 K C

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered May 31, 2024. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) entered May 31, 2024 as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). As relevant here, the Civil Court found, pursuant to CPLR 3212 (g), that defendant had timely and properly mailed the letters scheduling plaintiff’s EUOs and the denial of claim forms, and limited the issues for trial to whether plaintiff failed to appear for the EUOs. The Civil Court held that defendant had not made a prima facie showing of plaintiff’s failure to appear for the scheduled EUOs because defendant did not submit the EUO transcripts to corroborate the attorney’s affirmation that was proffered to demonstrate plaintiff’s failures to appear.

Defendant demonstrated, prima facie, that plaintiff failed to appear for duly scheduled EUOs by submitting the affirmation of an attorney averring that he was present in his firm’s office, where the EUOs were scheduled to take place, on the dates on which the EUOs were scheduled; that he would have either conducted the EUOs himself or assigned another attorney to [*2]do so had plaintiff appeared for either scheduled EUO; and that plaintiff did not appear on either date (see e.g. MAZ Chiropractic, P.C. v State Farm Ins. Co., 85 Misc 3d 135[A], 2025 NY Slip Op 50492[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; SVP Med Supply, Inc. v GEICO, 76 Misc 3d 134[A], 2022 NY Slip Op 50931[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; SVP Med Supply, Inc. v GEICO, 76 Misc 3d 127[A], 2022 NY Slip Op 50775[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Parisien v Ameriprise Auto & Home, 75 Misc 3d 138[A], 2022 NY Slip Op 50581[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). To the extent that plaintiff contends that an issue exists with respect to defendant’s counsel’s recollection of plaintiff’s failure to appear, such a contention lacks merit, as, on its face, counsel’s affirmation was not “unworthy of belief or incredible as a matter of law” (Joseph-Felix v Hersh, 208 AD3d 571, 573 [2022]; see e.g. MAZ Chiropractic, P.C. v State Farm Ins. Co., 2025 NY Slip Op 50492[U], *1-2; SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50931[U], *2). Consequently, this affirmation, standing alone, was sufficient proof of plaintiff’s failure to appear for the EUOs, and, contrary to the determination of the Civil Court, submission of the EUO transcripts was unnecessary (see e.g. Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2020]; SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50931[U]; SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50775[U]; Parisien v Ameriprise Auto & Home, 2022 NY Slip Op 50581[U]).

As plaintiff failed to raise a triable issue of fact regarding its failure to appear for either scheduled EUO or challenge the CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 5, 2025Matter of Fill Rx NY, Inc. v LM Gen. Ins. Co. (2025 NY Slip Op 04785)

Reported in New York Official Reports at Matter of Fill Rx NY, Inc. v LM Gen. Ins. Co. (2025 NY Slip Op 04785)

Matter of Progressive Ins. Co. v Service (2025 NY Slip Op 04652)

Reported in New York Official Reports at Matter of Progressive Ins. Co. v Service (2025 NY Slip Op 04652)

Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51513(U))

Reported in New York Official Reports at Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51513(U))

[*1]

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

2025 NY Slip Op 51513(U)

Decided on August 8, 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 August 8, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-70 K C

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 12, 2024. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking to open its default and to compel plaintiff to accept defendant’s amended answer.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) as granted the branches of defendant’s motion seeking to open its default and to compel plaintiff to accept defendant’s amended answer.

Contrary to plaintiff’s contentions, we find that the Civil Court did not improvidently exercise its discretion in granting the branches of defendant’s motion seeking to open its default and to compel plaintiff to accept defendant’s amended answer (see Arroyo v Starrett City, Inc., 170 AD3d 929 [2019]; Lyubomirsky v Lubov Arulin, PLLC, 125 AD3d 614 [2015]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 8, 2025Right Aid Med. Supply Corp. v New York City Tr. Auth. (2025 NY Slip Op 51514(U))

Reported in New York Official Reports at Right Aid Med. Supply Corp. v New York City Tr. Auth. (2025 NY Slip Op 51514(U))

[*1]

Right Aid Med. Supply Corp. v New York City Tr. Auth.

2025 NY Slip Op 51514(U) [87 Misc 3d 128(A)]

Decided on August 8, 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 August 8, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-487 K C

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Foley, Smith, O’Boyle & Weisman (Eric W. Ostrager and Anastasiya Nabatova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), dated January 14, 2022. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross-motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Rupert V. Barry, J.) dated January 14, 2022, which denied plaintiff’s motion for summary judgment and granted defendant’s cross-motion for summary judgment dismissing the complaint.

In support of its cross-motion for summary judgment dismissing the complaint on the ground of lack of coverage, defendant, a self-insurer, relied on the assignor’s sworn application for no-fault benefits (NF-2) and on a search of defendant’s own records. Together they demonstrated, prima facie, that none of defendant’s vehicles were involved in an accident with plaintiff’s assignor on the day in question (see Jesa Med. Supply, Inc. v NYC Tr. Auth., 38 Misc 3d 138[A], 2013 NY Slip Op 50188[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) and that plaintiff’s assignor was driving a vehicle which was not owned by defendant. In opposition, plaintiff failed to demonstrate the existence of a triable issue of fact. Consequently, defendant, a self-insurer, was entitled to summary judgment dismissing the complaint (see Insurance Law § 5103 [a] [1]; 11 NYCRR § 65-2.2 [a], [j] [3]; Complete Med. Care Svcs of NY, P.C. v N.Y.C. Tr. Auth., 49 Misc 3d 10 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Jesa Med. Supply, Inc., 2013 NY Slip Op 50188[U]).

In view of the foregoing, plaintiff’s remaining contentions lack merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 8, 2025Masigla v MVAIC (2025 NY Slip Op 51515(U))

Reported in New York Official Reports at Masigla v MVAIC (2025 NY Slip Op 51515(U))

[*1]

Masigla v MVAIC

2025 NY Slip Op 51515(U) [87 Misc 3d 128(A)]

Decided on August 8, 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 August 8, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-597 K C

Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered August 16, 2023. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,186.72.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $4,186.72.

At the outset of the trial, the parties agreed that the sole issue for trial would be limited to whether plaintiff’s assignor was a “qualified person” for there to be coverage of plaintiff’s claims by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC).

Proof that a claimant is a resident of the State of New York who is not the owner of the uninsured motor vehicle involved in the accident is a condition precedent to the claimant being a “qualified person” (Insurance Law § 5202 [b]) and, thus, potentially eligible to be deemed to be a “covered person” (Insurance Law § 5221 [b] [2]) who would be entitled to recover no-fault benefits from MVAIC. Here, plaintiff did not establish that its assignor was not the owner of the uninsured vehicle he was driving when the accident occurred, as we reject plaintiff’s contention that the parties’ stipulation at trial did not express that the assignor had exclusive possession of the uninsured vehicle for more than 30 days at the time of the accident. Consequently, pursuant to Vehicle and Traffic Law § 128, plaintiff’s assignor was the “owner” of the uninsured vehicle.

In view of the foregoing, plaintiff failed to establish its prima facie case and, thus, the [*2]Civil Court should have dismissed the complaint (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]; Island Life Chiropractic, P.C. v MVAIC, 68 Misc 3d 131[A], 2020 NY Slip Op 50995[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Maiga Prods. Corp. v MVAIC, 68 Misc 3d 131[A], 2020 NY Slip Op 50993[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; see also Barillas v Rivera, 32 AD3d 872 [2006]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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

OTTLEY, J, taking no part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 8, 2025Matter of Liberty Mut. Ins. Co. v McCormack (2025 NY Slip Op 04571)

Reported in New York Official Reports at Matter of Liberty Mut. Ins. Co. v McCormack (2025 NY Slip Op 04571)