Reported in New York Official Reports at Shamrock Med., P.C. v Personal Serv. Ins. Co. (2025 NY Slip Op 51175(U))
[*1]| Shamrock Med., P.C. v Personal Serv. Ins. Co. |
| 2025 NY Slip Op 51175(U) |
| Decided on July 18, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 July 18, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-858 K C
against
Personal Service Insurance Company, Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered June 4, 2024. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.
ORDERED that the appeal is dismissed.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court (Edward H. King, J.) entered June 4, 2024 as granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.
No appeal lies as of right from an order setting a matter down for a traverse hearing (see CCA 1702 [a] [2]; State Farm Mut. Auto. Ins. Co. v Omezie, 54 Misc 3d 136[A], 2017 NY Slip Op 50110[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Wheeler v McCreight, 34 Misc 3d 144[A], 2012 NY Slip Op 50143[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Citibank, N.A. v S & J Inzlicht, Inc., 8 Misc 3d 134[A], 2005 NY Slip Op 51174[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005]; see also Frost v Halvorsen, 100 AD2d 608 [1984]), and we decline to grant leave to appeal therefrom.
Accordingly, the appeal is dismissed.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 18, 2025LVOV Acupuncture, P.C. v Personal Serv. Ins. Co. (2025 NY Slip Op 51176(U))
Reported in New York Official Reports at LVOV Acupuncture, P.C. v Personal Serv. Ins. Co. (2025 NY Slip Op 51176(U))
[*1]| LVOV Acupuncture, P.C. v Personal Serv. Ins. Co. |
| 2025 NY Slip Op 51176(U) |
| Decided on July 18, 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 July 18, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-879 K C
against
Personal Service Insurance Company, Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered June 4, 2024. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.
ORDERED that the appeal is dismissed.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court (Edward H. King, J.) entered June 4, 2024 as granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.
For the reasons stated in Shamrock Med., P.C., as Assignee of Rexford Bishop v Personal Serv. Ins. Co. (___ Misc 3d ___, 2025 NY Slip Op _____ [appeal No. 2024-858 K C], decided herewith), the appeal is dismissed.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: July 18, 2025Hand By Hand PT, P.C. v Personal Serv. Ins. Co. (2025 NY Slip Op 51177(U))
Reported in New York Official Reports at Hand By Hand PT, P.C. v Personal Serv. Ins. Co. (2025 NY Slip Op 51177(U))
[*1]| Hand By Hand PT, P.C. v Personal Serv. Ins. Co. |
| 2025 NY Slip Op 51177(U) |
| Decided on July 18, 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 July 18, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-880 K C
against
Personal Service Insurance Company, Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered June 4, 2024. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.
ORDERED that the appeal is dismissed.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court (Edward H. King, J.) entered June 4, 2024 as granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.
For the reasons stated in Shamrock Med., P.C., as Assignee of Rexford Bishop v Personal Serv. Ins. Co. (___ Misc 3d ___, 2025 NY Slip Op _____ [appeal No. 2024-858 K C], decided herewith), the appeal is dismissed.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 18, 2025GAO Acupuncture, P.C. v MVAIC (2025 NY Slip Op 51173(U))
Reported in New York Official Reports at GAO Acupuncture, P.C. v MVAIC (2025 NY Slip Op 51173(U))
[*1]| GAO Acupuncture, P.C. v MVAIC |
| 2025 NY Slip Op 51173(U) [86 Misc 3d 135(A)] |
| Decided on July 18, 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 July 18, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-501 K C
against
MVAIC, Appellant.
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 an amended order of the Civil Court of the City of New York, Kings County (Delsia G. Marshall, J.), entered November 25, 2024. The amended order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the amended 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 Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals, as limited by the brief, from so much of an amended order of the Civil Court (Delsia G. Marshall, J.) entered November 25, 2024 as denied defendant’s motion for summary judgment dismissing the complaint.
Since plaintiff’s assignor was aware of the identity of the owner of the vehicle in which plaintiff’s assignor was a passenger at the time of the accident, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from defendant (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Compas Med., P.C. v MVAIC, 42 Misc 3d 150[A], 2014 NY Slip Op 50414[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see BLR Chiropractic, P.C. v MVAIC, 33 Misc 3d 131[A], 2011 NY Slip Op 51878[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also BLR Chiropractic, P.C. v MVAIC, 36 Misc 3d 129[A], 2011 NY Slip Op 52517[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]) and, thus, defendant’s motion for summary judgment [*2]should have been granted.
In light of the foregoing, we reach no other issue.
Accordingly, the amended order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
BUGGS and OTTLEY, JJ., concur.
TOUSSAINT, P.J., taking no part.
ENTER:Paul Kenny
Chief Clerk
Decision Date: July 18, 2025New York Recovery PT, P.C. v American Tr. Ins. Co. (2025 NY Slip Op 25166)
Reported in New York Official Reports at New York Recovery PT, P.C. v American Tr. Ins. Co. (2025 NY Slip Op 25166)
[*1]| New York Recovery PT, P.C. v American Tr. Ins. Co. |
| 2025 NY Slip Op 25166 |
| Decided on July 17, 2025 |
| Appellate Term, 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 printed Miscellaneous Reports. |
Decided on July 17, 2025
PRESENT: : JERRY GARGUILO, P.J., TIMOTHY S. DRISCOLL, ELENA GOLDBERG-VELAZQUEZ, JJ
2024-887 N C
against
American Transit Insurance Company, Respondent.
Roman Kravchenko (Jason Tenenbaum of counsel), for appellant. Bruno, Gerbino. Soriano & Aitken, LLP (Vince Gerbino and Alfred Polidore of counsel), for respondent.
Appeal from an order of the District Court of Nassau County, First District (Robert E. Pipia, J.), dated July 31, 2024. The order, insofar as appealed from, denied the branch of petitioner’s motion seeking an award of attorney’s fees.
ORDERED that the order, insofar as appealed from, is reversed, without costs, the branch of petitioner’s motion seeking an award of attorney’s fees is granted and the matter is remitted to the District Court to determine the amount of attorney’s fees to which petitioner is entitled, in accordance with this decision and order.
After the provider’s claims for assigned first-party no-fault benefits were denied, the parties proceeded to arbitration and the no-fault arbitrator made an award in favor of the provider, which award was upheld by a master arbitrator. As the insurer did not timely satisfy the award (see 11 NYCRR 65-4.10 [e] [4]), the provider commenced this proceeding to confirm the master arbitration award (see CPLR 7510). The provider moved to confirm the master arbitrator’s award and, insofar as is relevant here, for an award of attorney’s fees. Shortly thereafter, the insurer paid petitioner the amount of the master arbitration award. By order dated July 31, 2024, the District Court (Robert E. Pipia, J.) granted the branch of the motion seeking to confirm the master arbitration award but denied the branch of the motion seeking attorney’s fees, finding that, notwithstanding 11 NYCRR 65-4.10 (j) (4), the provider was not entitled to an award of additional attorney’s fees because “the instant proceeding is a special proceeding that was commenced for the sole purpose of confirming a master arbitration award. It was not commenced to resolve a dispute de novo, nor was it brought to appeal the underlying master arbitration award.”
“The attorney’s fee for services rendered . . . in a court appeal from a master arbitration [*2]award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10 [j] [4]). “The term ‘court appeal’ applies to a proceeding taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award” (Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414 [2020]; see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2017]). As the Court of Appeals has stated with regard to the No-Fault Law (see Insurance Law article 51), “[t]o implement [the] legislative aim of curtailing delay and reducing expense in the adjustment of motor vehicle accident claims, the regulations are written to encourage prompt payment of claims, to discourage investigation by insurers, and to penalize delays” (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986] [emphasis added] [citation omitted]). Consequently, where, as here, the insurer failed to timely (see 11 NYCRR 65-4.10 [e] [4]) pay the amounts set forth in the master arbitration award and the provider commenced a proceeding pursuant to CPLR 7510 to confirm the master arbitration award so that it could be reduced to a judgment, the provider is entitled to an award of attorney’s fees, fixed by the court, for the District Court proceeding as well as for fees incurred on this appeal (see 11 NYCRR § 65-4.10 [j] [4]; Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168, 1169 [2019]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703; Matter of Metro Pain Specialist, P.C., v Country-Wide Ins. Co., 66 Misc 3d 135[A], 2020 NY Slip Op 50014[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]). In view of the foregoing, the matter is remitted to the District Court to determine the amount of reasonable attorney’s fees to which the provider is entitled.
Accordingly, the order, insofar as appealed from, is reversed, the branch of petitioner’s motion seeking an award of attorney’s fees is granted and the matter is remitted to the District Court to determine the amount of attorney’s fees to which petitioner is entitled, in accordance with this decision and order
GARGUILO, P.J., DRISCOLL and GOLDBERG-VELAZQUEZ, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: July 17, 2025Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y. (2025 NY Slip Op 51164(U))
Reported in New York Official Reports at Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y. (2025 NY Slip Op 51164(U))
[*1]| Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y. |
| 2025 NY Slip Op 51164(U) |
| Decided on July 11, 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 July 11, 2025
PRESENT: : MARINA CORA MUNDY, J.P., WAVNY TOUSSAINT, JOANNE D. QUIÑONES, JJ
2024-257 RI C
against
Erie Insurance Company of New York, Respondent.
Gary Tsirelman, P.C. (Galina Feldsherova of counsel), for appellant. Law Office of Robyn M. Brilliant (Robyn M. Brilliant 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 February 1, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that, on the court’s own motion, the notice of appeal from a “judgment” purportedly entered February 1, 2024 is deemed a notice of appeal from the order dated February 1, 2024 (see CPLR 5520 [c]); and it is further,
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, plaintiff appeals from an order of the Civil Court (Mary A. Kavanagh, J.) dated February 1, 2024 granting defendant’s motion for summary judgment dismissing the complaint on the ground that the vehicle insured by defendant (the insured vehicle), was not involved in the accident.
In support of its motion, defendant relied on the truth of statements made in a police report regarding the accident. While the police report was certified, the statements within the report attributed to the driver of an unrelated vehicle, a witness and plaintiff’s assignor were inadmissible hearsay, as no exception to the hearsay rule was established for the statements (see Yassin v Blackman, 188 AD3d 62, 66 [2020]; New York Hosp. Med. Ctr. of Queens v Utica Mut. Ins. Co., 38 Misc 3d 128[A], 2012 NY Slip Op 52388[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). The statement in a purported transcript of a call with the owner of the insured vehicle, which defendant offered for its truth, was also inadmissible hearsay. In any event, defendant’s own papers demonstrated that there are conflicting accounts as to how the alleged accident occurred and whether the insured vehicle was involved. Thus, defendant’s motion failed to demonstrate, as a matter of law, that there are no material issues of fact to be determined.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
MUNDY, J.P., TOUSSAINT and QUIÑONES, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 11, 2025NY Wellness Med., P.C. v MVAIC (2025 NY Slip Op 51165(U))
Reported in New York Official Reports at NY Wellness Med., P.C. v MVAIC (2025 NY Slip Op 51165(U))
[*1]| NY Wellness Med., P.C. v MVAIC |
| 2025 NY Slip Op 51165(U) [86 Misc 3d 134(A)] |
| Decided on July 11, 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 July 11, 2025
PRESENT: : MARINA CORA MUNDY, J.P., WAVNY TOUSSAINT, JOANNE D. QUIÑONES, JJ
2024-502 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant. Petre and Associates, PC (Damin Toell 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 3, 2024. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims totaling $12,617.21.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court (Lola Waterman, J.) entered May 3, 2024 as denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims totaling $12,617.21.
Contrary to MVAIC’s contention, its motion papers do not demonstrate, prima facie, that plaintiff’s assignor was insured under an insurance policy issued to him by Integon National Ins. Co. or that he resided in a household with someone who had an insurance policy issued by another insurance company. While MVAIC contends that an “Insurance Activity Expansion Search” document, which it obtained from “ISO,” establishes that plaintiff’s assignor was covered by an insurance policy, MVAIC is mistaken. Even if that somewhat illegible document constituted evidence in admissible form, it indicates that the insurance policies issued to plaintiff’s assignor, or to someone who may have been a member of the assignor’s household, were canceled when the license plates were voluntarily surrendered more than two months prior to the subject accident. Consequently, MVAIC’s contention that it was entitled to summary judgment on the ground that plaintiff, as assignee, was required to exhaust its remedies by seeking coverage under those insurance policies before seeking relief from MVAIC lacks merit [*2](cf. Bell Air Med. Supply, LLC v MVAIC, 77 Misc 3d 131[A], 2022 NY Slip Op 51233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).
As the proof submitted by MVAIC in support of its alternate ground for summary judgment does not establish that MVAIC issued timely and proper denial of claim forms within 30 days of the last scheduled examination under oath (EUO), MVAIC failed to demonstrate that it is not precluded from raising its defense that plaintiff’s assignor failed to appear at duly scheduled EUOs (see Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013 [2023]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Thus, MVAIC’s contention that it was entitled to summary judgment on this ground similarly lacks merit (see Bronx Chiropractic Rehabilitation, P.C. v MVAIC, 83 Misc 3d 129[A], 2024 NY Slip Op 50799[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). MVAIC’s remaining contention is also devoid of merit.
Accordingly, the order, insofar as appealed from, is affirmed.
MUNDY, J.P., TOUSSAINT and QUIÑONES, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 11, 2025State Farm Mut. Auto. Ins. Co. v Rubel (2025 NY Slip Op 25186)
Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Rubel (2025 NY Slip Op 25186)
State Farm Mutual Automobile Insurance Company
As Subrogee of ALBERT UZAMERE, Plaintiff(s), against Ahmed Syed Rubel AKA SYED AHMED, |
Index No. CV-024183-24/QU
Vince A. Sabella, Esq., of Nicolini, Paradise, Ferretti & Sabella, attorneys for Plaintiff; Elena Schachner, Esq. of Nicoletti Spinner Ryan Gulino Pinter LLP, attorneys for Uber et al.
Soma S. Syed, J.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this Motion:
Notice of Motion and Affidavits Annexed 1Affidavits in Opposition Annexed 2
Reply 3
Others
Upon the foregoing cited papers, oral argument, and due deliberation, the pre-answer motion by Defendants Uber USA, LLC, Raiser, NY LLC, Raiser CA LLC, and Uber Technologies, Inc., (collectively, “Defendant Uber”), seeking to dismiss the complaint, pursuant to CPLR 3211(a)(1) and 3211 (a)(7), is DENIED.
On October 8, 2024, Plaintiff commenced this action by filing a summons and complaint, seeking to recover property damages they sustained as a result of a motor vehicle accident that occurred on Fulton Street and Utica Avenue in Kings County on January 5, 2024. On December 10, 2024, Defendant Ahmed Syed Rubel AKA Syed Ahmed (“Defendant Driver”) interposed an answer. On February 7, 2025, Defendant Uber filed the instant motion, moving to dismiss the case on the grounds that Defendant Uber was not vicariously liable for Defendant Driver’s actions as he is an independent contractor and that Defendant Uber did not owe or had no control over the vehicle involved in the accident (“the Vehicle”). Defendant Uber maintains that they are a technology company “that uses its proprietary technology to develop and maintain digital multi-sided marketplace platforms.” Ryan Aff., ¶25. In support and in pertinent part, Defendant Uber provided a certified copy of the DMV abstract of title record, a copy of Defendant Driver’s Taxi and Limousine Commission license, and a copy of Defendant Uber’s platform access agreement (essentially the contract between Defendant Driver and Defendant Uber).
In opposition, Plaintiff contends, inter alia, that Defendant Uber exerted exclusive control over Defendant Driver via its platform or app and urges the Court to deny Defendant Uber’s motion during the pre-answer and pre-discovery stage. In support and in pertinent part, [*2]Plaintiff provided an uncertified copy of the police accident report and a transcript of Defendant Driver’s recorded statements made to Plaintiff.
Defendant Driver did not respond to the motion.
“On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff’s allegations are accepted as true and accorded the benefit of every possible favorable inference.” See, Granada Condominium III Ass’n v. Palomino, 78 AD3d 996, 996 (2d Dept 2010).
To grant a motion to dismiss the complaint pursuant to CPLR 3211(a)(1), a defendant must submit documentary evidence that “utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law.” Id. “In order for the evidence to qualify as documentary evidence, it must be unambiguous, authentic and undeniable, such as judicial records and documents reflecting out-of-court transactions, such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable.” See, Rosenfeld v. Brody, 238 AD3d 1084, 1085 (2d Dept 2025).
With respect to CPLR 3211(a)(7), it is well settled law that a court may “freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.” See, Leon v. Martinez, 84 NY2d 83, 88 (1994) (internal quotation marks omitted). “Dismissal is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.” Pascall v. New York City Transit Authority, 230 AD3d 1246, 1248 (2d Dept 2024) (internal quotation marks omitted). “Pursuant to the doctrine of respondeat superior, an employer is vicariously liable for torts committed by an employee within the scope of employment and in furtherance of the employer’s business.” Id. (Internal quotation marks omitted). “The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means used to achieve the results. Control over the means is the more important consideration.” Id. (Internal quotation marks omitted). “Whether an employee was acting within the scope of his and her employment is generally a question of fact for the jury.” See, Camisa v. Rosen, 150 AD3d 809, 810-11 (2d Dept 2017). Generally, “a party who retains an independent contractor is not liable for the negligence of the independent contractor because it has no right to supervise or control the work.” See, Sultan v. 6810 Wai, Inc., 237 AD3d 773, 773 (2d Dept 2025).
Here, assuming arguendo that all the documents submitted by Defendant Uber are deemed documentary under CPLR 3211(a)(1), they failed to utterly refute the Plaintiff’s allegation that Defendant Uber was Defendant driver’s employer and/or had control over Defendant Driver’s actions. While the DMV abstract proves that Defendant Uber did not own the Vehicle and the platform access agreement explicitly defines the relationship between Defendant Uber and Defendant Driver as “independent business enterprises” (1.1 Company’s Relationship with Uber), they are not dispositive of the employer-employee relationship inquiry. See, Defendant Uber’s Motion, Exhibit I, Platform Access Agreement; See also, Hernandez v. Chefs Diet Delivery, LLC, 81 AD3d 596, 599 (2d Dept 2011) (“The fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive.”) The platform access agreement indicates that Defendant Uber exerts some control over Uber drivers. For example, the agreement has compliance protocols (2.2 Compliance), requires background checks and vehicle standards on its drivers (2.5 Background Checks and Licensing, [*3]Vehicle Standards), allows its drivers to “use, wear or display Uber’s name or logo” (2.7 Use of Uber Branded Materials), and maintains a rating system of its drivers (2.8 Ratings). See, Defendant Uber’s Motion, Exhibit I. Giving the pleading a liberal construction and accepting the Plaintiff’s allegations as true with the benefit of every possible favorable inference, the Court finds that Defendant Uber’s documentary evidence fails to utterly refute the alleged employment relationship between Defendant Uber and Defendant Driver.
In addition, the Court is unpersuaded by numerous trial court decisions and arbitration decisions provided by Defendant Uber, as the Second Department has not ruled that there is no employment relationship between Defendant Uber and its drivers as a matter of law. See, Uy v. A. Hussein, 186 AD3d 1567 (2d Dept 2020) (the court denied Uber’s summary judgment motion because of “questions of fact as to whether Hussein was acting within the scope of his alleged employment with Uber at the time of the incident.”)
In light of the foregoing, Defendant Uber’s pre-answer motion to dismiss pursuant to CPLR 3211 (a)(1) and 3211 (a)(7) is DENIED. Any relief not expressly addressed herein has nonetheless been considered and is denied. Defendant Uber’s proposed answer or affirmation in support of the motion is deemed the filing and interposition of an answer in the matter, and Defendant Uber may file a more detailed answer with the Clerk within thirty (30) days of the date of entry of this Order.
This constitutes the Decision and Order of the Court.
Dated: July 9, 2025Hon. Soma S. Syed
Judge of Civil Court
Reported in New York Official Reports at Medtech Med. Supply, Inc. v Liberty Mut. Ins. Co. (2025 NY Slip Op 51150(U))
[*1]| Medtech Med. Supply, Inc. v Liberty Mut. Ins. Co. |
| 2025 NY Slip Op 51150(U) |
| Decided on June 20, 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 June 20, 2025
PRESENT: : MARINA CORA MUNDY, J.P., CHEREÉ A. BUGGS, JOANNE D. QUIÑONES, JJ
2024-480 Q C
against
Liberty Mutual Insurance Company, Appellant.
Martyn, Smith, Murray & Yong (Thomas M. Martyn of counsel), for appellant. Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ira R. Greenberg, J.), dated April 12, 2024. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking to vacate a judgment of that court entered September 14, 2023.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
Plaintiff commenced this action in 2000 to recover assigned first-party no-fault benefits. The parties agreed to settle the matter, and plaintiff’s counsel tendered to defendant’s counsel a letter dated March 30, 2006, to which a general release and a stipulation of discontinuance were appended. After plaintiff applied to the clerk for the entry of a judgment pursuant to CPLR 5003-a (e) in June 2023, predicated upon the alleged failure of defendant to make prompt payment (see CPLR 5003-a [a]), a judgment was entered against defendant on September 14, 2023.
In October 2023, defendant moved to, among other things, vacate the judgment. One of defendant’s arguments in support of its motion was that plaintiff failed to satisfy its CPLR 5003-a (a) obligations before entering judgment. Plaintiff opposed the motion, to which defendant replied. As limited by its brief, defendant appeals from so much of an order of the Civil Court (Ira R. Greenberg, J.) dated April 12, 2024 as denied the branch of defendant’s motion seeking to vacate the judgment.
“The purpose of CPLR 5003-a is to encourage the prompt payment of damages in settled actions” (Pitt v New York City Hous. Auth., 106 AD3d 797, 797-798 [2013]). CPLR 5003-a (a) requires a settling defendant to “pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff” (see Orthotics & [*2]Professional Supply, Ltd. v Country-Wide Ins. Co., 77 Misc 3d 130[A], 2022 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). In the context of CPLR 5003-a (a), “tender . . . shall mean either to personally deliver or to mail, by registered or certified mail, return receipt requested” (CPLR 5003-a [g]; see J.D.T. v Chaimowitz, 218 AD3d 821, 823 [2023]; DJS Med. Supplies, Inc. v American Tr. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52456[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). “If the settling defendant fails to pay the sum due under the settlement agreement within 21 days of tender of [a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff], the statute authorizes the plaintiff to enter, without further notice, a judgment in the amount of the settlement, which is to include interest, costs, and disbursements” (Klee v Americas Best Bottling Co., Inc., 76 AD3d 544, 545 [2010]; see CPLR 5003-a [e]).
While defendant contends that the judgment was improperly entered because plaintiff failed prove on its application to the clerk for the entry of a judgment pursuant to CPLR 5003-a (e) that it tendered to defendant the executed release and stipulation of discontinuance by personal delivery or by registered or certified mail, return receipt requested (see CPLR 5003-a [a], [g]), it was defendant’s burden on its motion to vacate the judgment to show plaintiff’s noncompliance with CPLR 5003-a (see Medtech Med. Supply, Inc. v Country-Wide Ins. Co., 74 Misc 3d 137[A], 2022 NY Slip Op 50304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). However, defendant submitted no evidence to show that plaintiff failed to tender the requisite documents to defendant in accordance with CPLR 5003-a.
Accordingly, the order, insofar as appealed from, is affirmed.
MUNDY, J.P., BUGGS and QUIÑONES, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 20, 2025Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51152(U))
Reported in New York Official Reports at Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51152(U))
[*1]| Burke 2 Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2025 NY Slip Op 51152(U) |
| Decided on June 20, 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 June 20, 2025
PRESENT: : MARINA CORA MUNDY, J.P., CHEREÉ A. BUGGS, JOANNE D. QUIÑONES, JJ
2024-946 K C
against
State Farm Mutual Automobile Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered July 16, 2024. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) entered July 16, 2024 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification. While plaintiff does not argue that its cross-motion should have been granted, on appeal, plaintiff argues that the order, insofar as appealed from, should be reversed and the matter remitted to the Civil Court for consideration of what plaintiff denominated as an amended cross-motion, which the court declined to consider, rejecting that submission as an improper surreply. In the alternative, plaintiff argues that defendant’s motion should have been denied.
Contrary to plaintiff’s contention, it was not improper for defendant to seek, during the claim verification stage, information—such as management agreements, W-2 forms, business-related bank records and lease agreements—for the purpose of determining whether plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16 [a] [1]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Burke Physical Therapy, P.C., v State Farm Mut. Auto. Ins. Co., 85 Misc 3d 130[A], 2025 NY Slip Op 50196[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).
Plaintiff also argues that the instant action cannot be maintained, as collateral estoppel effect should be given to an order of the Supreme Court, Nassau County, in a declaratory judgment action brought by defendant herein in that court, denying defendant’s motion for [*2]summary judgment (see State Farm Mut. Auto. Ins. Co. v Burke Physical Therapy, P.C., 2022 NY Slip Op 30580[U] [Sup Ct, Nassau County 2022]). However, this court has previously held that the denial of that motion by the Supreme Court “has no preclusive effect . . . as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). Thus, we need not address plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider plaintiff’s subsequent submission of that Supreme Court decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.
Accordingly, the order, insofar as appealed from, is affirmed.
MUNDY, J.P., BUGGS and QUIÑONES, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: June 20, 2025