Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered July 25, 2013. The order granted defendant’s motion to dismiss the complaint.

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

In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for services it provided to its assignor, who had sustained injuries in a motor vehicle accident that occurred on February 5, 2010. After this action had been commenced in the Civil Court, defendant instituted a declaratory judgment action in the Supreme Court, Onondaga County, against various medical providers and their assignors, including plaintiff herein and its assignor. By order dated April 2, 2012, the Supreme Court granted a motion therein for a default judgment, which order stated that defendant “is not required or obligated to provide no-fault benefits to the defendants SHIM KARA [sic] BLAKE . . . [and] GBI ACUPUNCTURE . . . under NATIONWIDE GENERAL INSURANCE COMPANY policy number 6631 U 001752 . . . resulting from a motor vehicle accident of February 5, 2010.” Nationwide served plaintiff with a copy of the April 2, 2012 Supreme Court order, with notice of entry, in May 2012.

In January 2013, defendant moved to dismiss the Civil Court complaint pursuant to CPLR 3211 (a) (5), on the ground that the April 2, 2012 Supreme Court order in the declaratory judgment action barred the instant action pursuant to the doctrines of res judicata and collateral estoppel. By order entered July 25, 2013, the Civil Court granted defendant’s motion.

Contrary to plaintiff’s contention, the Civil Court correctly determined that the instant action is barred under the doctrine of res judicata by virtue of the April 2, 2012 Supreme Court order (see Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Moreover, the Supreme Court’s order is a conclusive final determination notwithstanding that it was entered on default, and res [*2]judicata applies to an order or judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]).

Accordingly, the order is affirmed.

Aliotta, J.P., Solomon and Elliot, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 8, 2013. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking to compel disclosure.

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, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity, based upon a peer review, and served its motion upon plaintiff’s counsel on August 20, 2012. While defendant’s motion was pending, plaintiff moved, pursuant to CPLR 3124, to compel disclosure, or for alternative relief. By order entered February 8, 2013, the Civil Court granted plaintiff’s motion to the extent that defendant was directed to provide verified written discovery responses within 45 days of the date of the order or be precluded from offering the evidence at issue. Defendant appeals from this order. The Civil Court subsequently denied defendant’s motion for summary judgment with leave to renew upon determination of the present appeal.

Service of a notice of motion pursuant to CPLR 3212 automatically stays disclosure until determination of the motion, unless the court orders otherwise (CPLR 3214 [b]; see John Eric Jacoby, M.D., P.C. v Loper Assoc., 249 AD2d 277 [1998]). A court may direct otherwise if there is a legitimate need for discovery (see Reilly v Oakwood Hgts. Community Church, 269 AD2d 582 [2000]). Thus, when defendant moved for summary judgment dismissing the complaint, an automatic stay of disclosure went into effect pursuant to CPLR 3214 (b) (see Arts4All, Ltd. v Hancock, 54 AD3d 286 [2008]), and remained in effect (see Rockaway Med. & Diagnostic, P.C. v Utica Mut. Ins. Co., 19 Misc 3d 142[A], 2008 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2008]) until February 8, 2013, when the Civil Court directed defendant to provide verified responses to plaintiff’s demands for discovery. Plaintiff demonstrated that there was a legitimate need for discovery with respect to defendant’s defense of lack of medical necessity (see Reilly, 269 AD2d at 582; Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., 42 Misc 3d 133[A], 2013 NY Slip Op 52246[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). “Therefore, the court properly considered [plaintiff’s motion] during the pendency of [defendant’s] motion for summary judgment” (Reilly, 269 AD2d at 582).

Defendant does not deny that it received plaintiff’s demand for verified written interrogatories and notice for discovery and inspection, and defendant does not deny that it failed to respond to the demands. CPLR 3101 (a) directs “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in finding that there was a legitimate need for discovery to respond to defendant’s summary judgment motion (see e.g. CPLR 3212 [f]) and directing defendant to respond to plaintiff’s written demands for discovery (see Metropolitan Diagnostic Med. Care, P.C., 42 Misc 3d 133[A], 2013 NY Slip Op 52246[U]). Consequently, under the circumstances, the court properly granted plaintiff’s motion to compel disclosure.Accordingly, the order, insofar as appealed from, is affirmed.

Aliotta, J.P., Solomon and Elliot, JJ., concur.

Decided on July 7, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

[*1]

Burke, Gordon, Conway & Loccisano, White Plains (Philip J. Dillon of counsel), for appellants.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered September 4, 2014, which, to the extent appealed from, denied plaintiffs’ motion for a default judgment seeking a declaration that they were not obligated to pay defendant for the submitted claims at issue, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiffs are not obligated to pay defendant for the claims at issue.

Plaintiffs are no-fault automobile insurers in New York State. Defendant is a provider of durable medical equipment in New York City. Defendant provides such equipment to claimants under plaintiffs’ policies. Plaintiffs came to suspect that defendant was over-billing them for the equipment. Accordingly, as was their right under the policy and the relevant regulations (11 NYCRR 65-1.1 et seq.), plaintiffs requested an examination under oath (EUO) of defendant in order to verify the billings.

Defendant never appeared for the scheduled EUOs. Plaintiffs then commenced this declaratory judgment action. Defendant never answered or appeared. Plaintiffs then moved for a default judgment. Defendant failed to oppose the motion. The IAS court denied plaintiffs’ motion for a default judgment, concluding that plaintiffs had not submitted sufficient proof of mailing the letters notifying defendant of the scheduled EUOs. We note that defendant has not submitted opposition to the instant appeal.

We reverse. The affirmation of plaintiffs’ counsel submitted in support of plaintiffs’ motion for default clearly set forth the mailing procedures to defendant. Indeed, counsel represented, under penalty of perjury, that he personally verified the mailing process for every EUO letter sent. This was adequate proof that the EUO letters were mailed to defendant (see e.g. Olmeur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Concur—Tom, J.P., Andrias, Feinman, Gische and Kapnick, JJ.

[*1]

Civil Court of the City of New York, Kings County, July 1, 2015

APPEARANCES OF COUNSEL

Deirdre J. Tobin & Associates, Garden City, for defendant.

Gary Tsirelman P.C., Brooklyn (Stefan Belinfanti of counsel), for plaintiff.

Plaintiff AR Medical Rehabilitation P.C., a medical services provider, seeks to recover no-fault benefits for services it provided to its assignors. Defendant State-Wide Insurance Co. moves to dismiss the claim on the ground that plaintiff failed to establish its prima facie case by offering proof of mailing. The issue is whether a plaintiff may offer an NF-10 denial of claim form into evidence to prove that it mailed the subject claim form and that the insurer received it.

The Second Department has repeatedly held that a plaintiff no-fault provider establishes its prima facie entitlement to judgment by submitting proper evidentiary proof that it generated and mailed the prescribed statutory billing forms to the defendant insurer, that the defendant [*2]received it, and that the no-fault benefits were overdue. (Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082 [2d Dept 2011]; see New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648 [2d Dept 2014]; Lexington Acupuncture PC v MVAIC, Civ Ct, Kings County, 2012, index No. 13328/09; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2d Dept 2004]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2d Dept 2004].)

In Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (25 NY3d 498, 506 [2015]), the Court of Appeals affirmed the aforementioned precedent, stating that in a no-fault summary judgment motion where benefits are overdue, the plaintiff must prove that the “statutory claim forms were mailed to and received by the insurer,” citing with approval New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp. Amplifying on this standard, the Court ruled that a medical provider must “submit proof of mailing through evidence in admissible form,” which proof may include “the verification of treatment form and/or an affidavit from a person or entity (1) with knowledge of the claim and how it was sent to the insurer or (2) who has relied upon the forms in the performance of their business.” (Id. at 507.)

{**49 Misc 3d at 920}In affirming the Second Department holding, the Court of Appeals also upheld the lower court’s holding that the burden of proving submission is generally met by an affidavit of a billing agent or an employee averring that he or she personally mailed the claim forms to the insurer or averring that a standard office practice or procedure designed to ensure that items were properly addressed and mailed was followed. (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 45 [2d Dept 2013]; see also NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043, 1043-1044 [2d Dept 2011] [Plaintiff established its prima facie case by submitting, among other things, the certified mail receipt, and the signed return receipt card referencing the patient and the forms, which demonstrated that the plaintiff mailed the necessary billing documents to the defendant]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001] [“The presumption (of mailing) 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”].) The Court of Appeals emphasized that affidavits in support of the motion for summary judgment, which presumably would include affidavits of mailing, must fall within the business record exception in CPLR 4518 to the rule against hearsay.

Neither the Court of Appeals nor the Second Department in Viviane Etienne addressed whether at trial a medical provider could forgo evidentiary proof of its mailing procedure by relying upon its receipt of a denial form from the insurer. Prior to Viviane Etienne, the Appellate Term, Second Department found that a medical provider’s receipt of an NF-10 denial form from the insurer was sufficient to establish that the claim form was sent by the medical provider and received by the insurer. (See Eagle Surgical Supply, Inc. v Allstate Ins. Co., 42 Misc 3d 145[A], 2014 NY Slip Op 50343[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; Accessible & Advance Med. P.C. v Allstate Ins. Co., 12 Misc 3d 147[A], 2006 NY Slip Op 51599[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co., 13 Misc 3d 127[A], 2006 NY Slip Op 51672[U], {**49 Misc 3d at 921} *2 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see also AR Med. Rehabilitation, P.C. v State-Wide Ins. Co., 47 Misc 3d 1215[A], 2015 NY Slip Op 50631[U] [Civ Ct, Kings County 2015].) This is because plaintiff is not trying to use the denial as its own business record pursuant to CPLR 4518 (a) but rather as an admission by defendant that the claim form has been received. (Eagle Surgical, 2014 NY Slip Op 50343[U], *1; EMC Health Prods., 2014 NY Slip Op 50786[U], *1 [“Defendant’s denials admitted the receipt of the bills at issue . . . and plaintiff was not required to establish a CPLR 4518 foundation for the bills”]; King’s Med. Supply Inc. v Country-Wide Ins. Co., 5 Misc 3d 767, 770 [Civ Ct, Kings County 2004].)

Accordingly, a plaintiff may establish its prima facie case by submitting a copy of its proof of claim form accompanied by an affidavit or testimony of its billing manager as to his personal knowledge of the issuance of the claim and a copy of the defendant’s denial form indicating when defendant received the claim and when it denied it. (Oleg Barshay; King’s Med. Supply at 770.) The Viviane Etienne ruling does not alter this equation since the NF-10 is not being admitted for the truth of the matters asserted therein and therefore does not need to fall within the business records exception delineated in the Etienne decisions.

In light of the above, the court finds that plaintiff’s submission into evidence of the NF-10 denial is sufficient to establish that defendant received the claim. Plaintiff therefore established its prima facie case. As defendant did not present any witnesses to establish its defense, judgment is awarded to plaintiff.

[*1]

Argued February 12, 2015; reargued June 2, 2015; decided July 1, 2015

Matter of State Farm Mut. Auto. Ins. Co. v Fitzgerald, 112 AD3d 166, reversed.

More than a quarter-century ago, in Matter of State Farm Mut. Auto. Ins. Co. v [*2]Amato (72 NY2d 288 [1988]), we squarely “h[e]ld” that “Insurance Law § 3420 (f)—providing that all ‘motor vehicle’ insurance policies must contain uninsured motorist coverage—has no application to police vehicles” (id. at 295). Nonetheless, in this case, the Appellate Division deemed that holding inapplicable to supplementary uninsured/underinsured motorist (SUM) coverage mandated by Insurance Law § 3420 (f) (2). Distinguishing Amato on its facts, the Appellate Division proceeded to define “motor vehicle” for purposes of statutorily required SUM coverage as inclusive of police vehicles.

This was error. With respect to the statutory definition of the critical term “motor vehicle,” there is no material distinction between the uninsured motorist coverage at issue in Amato and the disputed SUM coverage here, and the factual differences between this case and Amato do not compel a different result. Consequently, a police vehicle is not a “motor vehicle” covered by a SUM endorsement under Insurance Law § 3420 (f) (2) (A). Furthermore, to the extent there is any question of the continuing precedential force of Amato—and the parties here have not raised such a question—the language and legislative history of Insurance Law § 3420, as well as the doctrine of stare decisis, fully support our retention of Amato as binding precedent in this matter of statutory interpretation.

I

While riding in a police vehicle driven by fellow Officer Michael Knauss, respondent Police Officer Patrick Fitzgerald was injured when the allegedly intoxicated driver of an underinsured vehicle struck the police car. At the time, Knauss maintained an automobile liability insurance policy issued by appellant State Farm Mutual Automobile Insurance Company, and the policy included a SUM endorsement. In addition to covering Knauss as the named insured and his family, the SUM endorsement insured against injuries to “any other person while occupying” Knauss’s personal vehicle or “any other motor vehicle while being operated by [the named insured] or [the{**25 NY3d at 802} named insured’s] spouse” (some emphasis added and some emphasis omitted). The policy did not define the term “motor vehicle.”^[FN1]

On or before July 25, 2011, GEICO, the insurer for the underinsured motorist who had hit Knauss’s car, tendered payment to Fitzgerald in the amount of $25,000, which was the limit of the underinsured motorist’s policy. On August 18, 2011, based on the injuries he received while occupying Knauss’s police vehicle during the accident, Fitzgerald made a demand upon State Farm for underinsured motorist arbitration under the SUM endorsement of Knauss’s [*3]policy. State Farm refused to make any payment to Fitzgerald on the ground that he had occupied a police vehicle at the time of the accident, which was not a covered “motor vehicle” within the meaning of the SUM endorsement. State Farm then filed a petition to permanently stay arbitration based on the asserted unavailability of SUM benefits for Fitzgerald.

Supreme Court granted State Farm’s petition to permanently stay arbitration. As relevant here, the court held that, although an individual who is the principal insured can receive benefits under his or her own insurance policy when he or she is in a police vehicle during an accident, that rule does not apply to an individual such as Fitzgerald, who seeks coverage under a SUM endorsement in someone else’s insurance policy. Citing Amato, the court determined that Insurance Law § 3420 (f) (2) (A), which controls the SUM endorsement in Knauss’s policy, incorporates Vehicle and Traffic Law § 388 (2)’s definition of a covered “motor vehicle,” which specifically excludes police vehicles such as the one containing Fitzgerald at the time of the accident. Thus, the court concluded that Knauss’s policy does not cover Fitzgerald, and it permanently stayed arbitration on Fitzgerald’s claim for coverage. Fitzgerald appealed.

The Appellate Division unanimously reversed Supreme Court’s order and denied the petition to permanently stay arbitration, holding that the police car in which Fitzgerald had been riding at the time of the accident constituted a “motor vehicle” under the SUM endorsement in Knauss’s automobile insurance policy (see 112 AD3d 166, 167-170 [2d Dept 2013]). In that regard, since neither the SUM endorsement itself nor{**25 NY3d at 803} Insurance Law § 3420 (f) defines the term “motor vehicle,” the Appellate Division looked to the provisions of the Vehicle and Traffic Law defining that term (see id. at 168). In that Court’s view, since Vehicle and Traffic Law § 125 sets forth the general definition of a “motor vehicle” to be used throughout the Vehicle and Traffic Law, that statute provides the most widely applicable definition of the term, which encompasses all motor-powered vehicles and includes police vehicles (see id. at 168-169). Thus, the Court opined, Vehicle and Traffic Law § 125 “should be used to define the term ‘motor vehicle,’ as it appears in the uninsured/underinsured motorist endorsement,” because “Vehicle and Traffic Law § 125 is a general provision that defines the relevant terminology for the entire Vehicle and Traffic Law” (id. at 169). Citing its prior decision in Matter of Progressive Northeastern Ins. Co. v Scalamandre (51 AD3d 932 [2d Dept 2008]) and the Fourth Department’s decision in Matter of Liberty Mut. Fire Ins. Co. v Rondina (32 AD3d 1230 [4th Dept 2006]), the Court said, “Additionally, it has been recognized that uninsured motorist coverage extends to all ‘motor vehicles,’ as defined by Vehicle and Traffic Law § 125” (id.).

The Court noted that Vehicle and Traffic Law § 388 (2) defines the term “vehicle” for purposes of civil liability as “a ‘motor vehicle,’ as defined in [Vehicle and Traffic Law § 125] . . . , except fire and police vehicles,” but the Court found that definition inapplicable because Vehicle and Traffic Law § 388 (2) does not feature the most common general definition of “vehicle” and defines the term “vehicle” rather than the critical term “motor vehicle” at issue here (id. at 168-169). The Court attempted to distinguish Amato, positing that, there, this Court decided only that New York City as a self-regulating insurer did not have to provide liability coverage for police vehicles under Insurance Law § 3420 (e) and (f) (1) because a [*4]police vehicle does not qualify as a “motor vehicle” under those statutes, whereas here the issue is whether a separate statutory subsection, Insurance Law § 3420 (f) (2), classifies a police car as a “motor vehicle” (see id.). Given that Vehicle and Traffic Law § 125’s definition of “motor vehicle” applies to Insurance Law § 3420 (f) (2) and encompasses police vehicles, the Court maintained, “the police vehicle at issue here falls within the definition of a ‘motor vehicle’ under the uninsured/underinsured motorist endorsement,” and consequently, respondent was entitled to SUM benefits under the policy that State Farm issued to Knauss (id. at 170).{**25 NY3d at 804}

Upon State Farm’s application, we granted a stay of the Appellate Division’s order and leave to appeal (22 NY3d 1168 [2014]). We now reverse.

II

Principles of Interpretation, Insurance Law § 3420 and Amato

Although provisions of an insurance policy drafted by the insurer are generally construed against the insurer if ambiguous (see Dean v Tower Ins. Co. of N.Y., 19 NY3d 704, 708 [2012]), a policy provision mandated by statute must be interpreted in a neutral manner consistently with the intent of the legislative and administrative sources of the legislation (see Matter of Country-Wide Ins. Co. v Wagoner, 45 NY2d 581, 586-587 [1978]). Since State Farm did not choose the terms of the SUM endorsement here of its own accord but, rather, was required to offer SUM coverage in compliance with the terms of Insurance Law § 3420 (f) (2) (A) and Department of Insurance regulations (see 11 NYCRR 60-2.3 [f]), we must interpret the SUM endorsement and the language of the statute in the manner intended by the neutral sources of that enactment (see generally Governor’s Approval Mem, Bill Jacket, L 1977, ch 892; see also Bill Jacket, L 1958, ch 759; Letter from Executive Secretary of NY Law Rev Commn to Governor’s Counsel, Mar. 28, 1958, Bill Jacket, L 1958, ch 577).

Insurance Law § 3420 specifies the standard forms of coverage that must be included in a liability insurance policy. Subsection (e) requires automobile insurance policies to insure against civil liability for the negligence of those who drive the principal insured’s car with his or her permission, saying:

“No policy or contract of personal injury liability insurance or of property damage liability insurance, covering liability arising from the ownership, maintenance or operation of any motor vehicle or of any vehicle as defined in section three hundred eighty-eight of the vehicle and traffic law, or an aircraft, or any vessel as defined in section forty-eight of the navigation law, shall be issued or delivered in this state . . . unless it contains a provision insuring the named insured against liability for death or injury sustained . . . as a result of negligence in the operation or use of such vehicle, aircraft or vessel” (Insurance Law § 3420 [e] [emphasis added]).

{**25 NY3d at 805}Subsection (f) (1) mandates that automobile insurance policies feature uninsured motorist coverage, which covers liability arising from an accident involving the named insured [*5]and a motorist who has no applicable insurance coverage. Thus, subsection (f) (1) states that

“[n]o policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any natural person arising out of the ownership, maintenance and use of a motor vehicle by the insured shall be issued or delivered . . . unless it contains a provision whereby the insurer agrees that it will pay to the insured, as defined in such provision . . . all sums . . . which the insured or his legal representative shall be entitled to recover as damages from an owner or operator of an uninsured motor vehicle.” (Insurance Law § 3420 [f] [1] [emphasis added].)

Subsection (f) (2) (A) declares that “[a]ny such policy shall, at the option of the insured, also provide supplementary uninsured/underinsured motorists insurance for bodily injury,” which is a species of uninsured motorist insurance that covers liability stemming from accidents involving the named insured and a motorist who possesses automotive insurance with limits or other restrictions that are inadequate to cover the full extent of the loss. The statute further states that SUM coverage is triggered “if the limits of liability under all bodily injury liability bonds and insurance policies of another motor vehicle liable for damages are in a lesser amount than the bodily injury liability insurance limits of coverage provided by such policy” (Insurance Law § 3420 [f] [2] [A]). Insurance Law § 3420 (f) (2) does not use the term “motor vehicle,” but because that subsection applies to “[a]ny such policy,” referring to a policy of the kind described in Insurance Law § 3420 (f) (1), Insurance Law § 3420 (f) (2) necessarily restricts SUM coverage to “motor vehicle[s]” in the same manner as subsection (f) (1).

As noted, Insurance Law § 3420 (e) and (f) (1) do not directly define “motor vehicle” in so many words, but Insurance Law § 3420 (e) does refer to “a[ ] motor vehicle or . . . a[ ] vehicle {**25 NY3d at 806}as defined in [Vehicle and Traffic Law § 388 (2)].” Vehicle and Traffic Law § 388 is the sole provision of Vehicle and Traffic Law article 11, which governs civil liability for negligence in the operation of vehicles. Vehicle and Traffic Law § 388 (2) states, “As used in this section, ‘vehicle’ means a ‘motor vehicle’, as defined in [Vehicle and Traffic Law § 125], except fire and police vehicles,” and certain other vehicles not relevant here. The Vehicle and Traffic Law also includes a definition of the term “motor vehicle” in Vehicle and Traffic Law § 125, which is part of the article defining terms of general use in the Vehicle and Traffic Law. Under that statute, “motor vehicle” means “[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power,” with exceptions for all-terrain vehicles, snowmobiles and mobility aids for the disabled (Vehicle and Traffic Law § 125). Vehicle and Traffic Law § 125 exempts police vehicles from registration requirements under title IV of the Vehicle and Traffic Law, but does not otherwise list any exclusion for police vehicles. Other provisions of the Vehicle and Traffic Law and the Insurance Law also set forth definitions of the term “motor vehicle,” often exempting police vehicles (see Vehicle and Traffic Law § 311 [2]; Insurance Law § 5202 [a]).

In Amato, this Court resolved two consolidated cases by specifying the types of vehicles that, when involved in an accident, can trigger uninsured motorist coverage under [*6]Insurance Law § 3420 (f). In one case, Police Officer Amato had uninsured motorist coverage for his personal vehicle under a policy issued by State Farm (see Amato, 72 NY2d at 291). The City insured any police vehicles used by Amato, but it did not provide uninsured motorist coverage under its policy (see id. at 290-291). While Amato was riding on his police scooter, he was struck by a stolen taxicab, which was not covered by the cab owner’s insurance (see id. at 290). When Amato filed a claim with State Farm, State Farm petitioned for a permanent stay of arbitration under the policy, asserting that Amato had to look to the City for uninsured motorist coverage because the City was required by statute to provide such coverage (see id. at 291). Special Term denied the petition, reasoning that the City did not have to give Amato uninsured motorist coverage and that therefore State Farm was responsible for covering Amato’s loss (see id.).

In the companion case, a motorist, who ultimately turned out not to have active insurance coverage, ran into the rear of Police Officer Rutherford’s police car (see id. at 291). Rutherford filed a claim with State Farm, which, as in Amato’s case, denied coverage, citing the City’s status as the primary insurer and its supposed statutory obligation to provide uninsured motorist coverage for police vehicles (see id. at 292). In a consolidated{**25 NY3d at 807} appeal in Amato’s and Rutherford’s cases, the Appellate Division reversed and held that the City had the primary obligation to grant uninsured motorist coverage to the officers pursuant to Insurance Law § 3420 (f) (see id. at 292; Matter of State Farm Mut. Auto. Ins. Co. v Amato, 129 AD2d 221, 225-227 [2d Dept 1987]).

On further appeal, this Court reversed (72 NY2d 288, 290-292 [1988]). The Court began its opinion by describing the statutory provisions, such as Vehicle and Traffic Law articles 6 and 7, which reflect the legislature’s desire to ensure that motorists have sufficient financial security to cover the consequences of an accident, and the Court explained that Insurance Law § 3420 (f) mandates the inclusion of uninsured motorist coverage in every automobile insurance policy issued in New York addressing the “use of a motor vehicle by the insured” (id. at 292-293, quoting Insurance Law § 3420 [f]).^[FN2]

The Court agreed with the Appellate Division that self-insurers, such as the City, “generally have the same statutory responsibility as other insurers to provide uninsured motorist coverage,” but it found that point irrelevant to the question at hand because no liability coverage existed at all, regardless of the insurer, if the liability does not arise from the use of a “motor vehicle” within the meaning of Insurance Law § 3420 (e) (id. at 294). And, the Court determined, Insurance Law § 3420 (e) excludes police vehicles from the term “motor vehicle,” [*7]for that statute cites Vehicle and Traffic Law § 388 (2), which governs civil liability for negligence in the use of motor vehicles and explicitly excludes police vehicles from its scope (see id.). “Although this exclusionary language is not repeated in the uninsured motorist provision of the Insurance Law (Insurance Law § 3420 [f]),” the Court concluded that “it would be illogical to assume that, while there is no legal obligation to insure police vehicles for death or bodily injury in the first instance, the City is nevertheless required to provide uninsured motorist coverage for its police vehicles” (id.).

Thus, the Court stated that, in light of the “need to interpret the statutes relating to uninsured motorist coverage as a whole and in a way consistent with their legislative purpose,” “we hold that Insurance Law § 3420 (f)—providing that all ‘motor {**25 NY3d at 808}vehicle’ insurance policies must contain uninsured motorist coverage—has no application to police vehicles” (id. at 295). The Court further “h[e]ld” that “there is no such statutory obligation” for the City, as an unregulated self-insurer, to insure police officers against injuries caused by an uninsured motorist hitting their police vehicles (id. at 290). Accordingly, the Court decided that the City had no statutory obligation to provide uninsured motorist coverage for Amato’s and Rutherford’s police vehicles (see id. at 290, 294). Two Judges dissented because, in their view, the legislature’s failure to create an express exemption for police vehicles within the text of Insurance Law § 3420 (f) reflected a legislative intent to place all motor vehicles, including police vehicles, within the scope of statutory uninsured motorist coverage (see id. at 295-296 [Wachtler, Ch. J., dissenting]).

The Parties’ Contentions

With this legal background in mind, we turn to the arguments advanced by the parties here. In this case, State Farm and Fitzgerald agree that the disputed SUM endorsement’s coverage of accidents involving a “motor vehicle” must use the same definition of that term employed by Insurance Law § 3420 (f), and Fitzgerald has not proceeded under any other statute, such as the No-Fault Law. However, the parties dispute whether that definition includes police vehicles like the one occupied by Fitzgerald.

State Farm contends that, because Insurance Law § 3420 (e) refers to Vehicle and Traffic Law § 388 (2)’s definition of “vehicle,” which in turn incorporates Vehicle and Traffic Law § 125’s definition of “motor vehicle” and yet also excludes police vehicles, the closely related provisions of Insurance Law § 3420 (f) should be read to similarly define “motor vehicle” in accordance with Vehicle and Traffic Law § 388 (2), thereby excluding police vehicles from SUM coverage. According to State Farm, Amato adopted this approach, as the Amato Court interpreted the term “motor vehicle” in Insurance Law § 3420 (f) (1) to have the same meaning as it does in Insurance Law § 3420 (e), i.e., to exclude police vehicles. By logical extension, State Farm urges, “motor vehicle” must mean the same thing under Insurance Law § 3420 (f) (2) as it does in subsections (e) and (f) (1) because the statute must be interpreted as a cohesive whole.

In response, Fitzgerald does not argue that Amato was wrongly decided or should be altered in any way, but instead{**25 NY3d at 809} tries to parse that decision and the statutory text in a manner favorable to him. Fitzgerald asserts that Insurance Law § 3420 (f) must be read to incorporate the most common and generalized statutory meaning of the term “motor vehicle,” and that therefore one must look to the general definition of “motor vehicle” in Vehicle and Traffic Law § 125 to define the same term in the insurance statute. Because Vehicle and Traffic Law § 125 defines a “motor vehicle” as essentially any powered vehicle, including a police vehicle, Fitzgerald posits that Insurance Law § 3420 (f) provides SUM coverage for accidents involving police vehicles via its inherent incorporation of the Vehicle and Traffic Law § 125 definition of “motor vehicle.” In Fitzgerald’s view, it does not matter that Insurance Law § 3420 (e) covers accidents arising from the operation “of any motor vehicle or of any vehicle as defined in [Vehicle and Traffic Law § 388 (2)]” (emphasis added) because that statute only references Vehicle and Traffic Law § 388 (2) to define the distinct term “vehicle,” and it does not define the separate term “motor vehicle.” That being so, Fitzgerald says, Insurance Law § 3420 (f) does not adopt Vehicle and Traffic Law § 388 (2)’s exclusion of police vehicles from the definition of “vehicle” because Insurance Law § 3420 (f) does not use the term “vehicle” at all, instead using the entirely different term “motor vehicle” as defined in Vehicle and Traffic Law § 125 to establish the breadth of its coverage. According to Fitzgerald, Amato is factually distinguishable because that case involved the liability of an unregulated self-insurer for uninsured motorist coverage under Insurance Law § 3420 (f) (1), whereas the issue here is whether a private insurer must provide SUM coverage under Insurance Law § 3420 (f) (2).

The simple answer to Fitzgerald’s claims, and hence to this whole case, is that Amato means what it says: “Insurance Law § 3420 (f)—providing that all ‘motor vehicle’ insurance policies must contain uninsured motorist coverage—has no application to police vehicles” (Amato, 72 NY2d at 295). Just as the term “motor vehicle” in Insurance Law § 3420 (f) generally, and paragraph (1) in particular, does not encompass police vehicles, that same term in paragraph (2) likewise does not bring police vehicles within its scope. Therefore, both uninsured motorist coverage under paragraph (1) and SUM coverage under paragraph (2) clearly exclude police vehicles in accordance with subsection (f) (1)’s reference to Vehicle and Traffic Law § 388 (2).

{**25 NY3d at 810}Indeed, as we have noted post-Amato, SUM coverage under Insurance Law § 3420 (f) (2) is a subspecies of uninsured motorist coverage under Insurance Law § 3420 (f) (1), and the reach of the two statutory subsections is essentially coterminous, except that Insurance Law § 3420 (f) (2) covers accidents involving underinsured motorists and can provide for a higher limit on the amount of recovery (see Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 204-205 [2007]). In light of the similarities between the two paragraphs of Insurance Law § 3420 (f), the term “motor vehicle” must have the same definition under those paragraphs and limit the benefits they provide in the same manner. Given that police vehicles do not fall within the ambit of Insurance Law § 3420 (f) (1) and (2), State Farm rightly declined to cover Fitzgerald, who was a passenger in a police vehicle at the time of the crash.

Fitzgerald seeks to distinguish Amato, observing that Amato involved the priority of coverage to be provided by a self-insurer, the City of New York, and an automobile insurance company, State Farm. But, in Amato, we never suggested that we were limiting our holding to a self-insurer or to situations involving the priority or “stacking” of coverage. In fact, we specifically noted that, under prior precedent, “self-insurers generally have the same statutory responsibility as other insurers to provide uninsured motorist coverage,” and thus, our decision turned not on the City’s status as a self-insurer but instead on the definition of the term “motor vehicle” under Insurance Law § 3420 (f), which we found to exclude police vehicles (Amato, 72 NY2d at 294-295). Nor does it make sense to conclude that the term “motor vehicle” in Insurance Law § 3420 (f) means one thing when the priority of coverage must be determined and yet means something completely different when the scope of coverage is at issue. Surely, a term in a single undivided subsection of a statute—here subsection (f) (2) (A)—cannot have more than one definition depending on the facts of the case to which it is applied.^[FN3]

{**25 NY3d at 811}Fitzgerald also points out that Insurance Law § 3420 (e) applies to a policy that covers any “motor vehicle” as well as any “vehicle as defined in [Vehicle and Traffic Law § 388 (2)],” whereas Insurance Law § 3420 (f) applies to a policy that covers only “motor vehicles” without mentioning “vehicles” under Vehicle and Traffic Law § 388 (2). Fitzgerald takes this as proof that Insurance Law § 3420 (f), unlike Insurance Law § 3420 (e), extends coverage to cases involving any “motor vehicle” as that term is defined in Vehicle and Traffic Law § 125, including police vehicles.

But we essentially rejected that notion in Amato. There, we noted, as Fitzgerald does now, that Insurance Law § 3420 (e)’s “exclusionary language” and citation to Vehicle and Traffic Law § 388 (2) are “not repeated in the uninsured motorist provision of the Insurance Law (Insurance Law § 3420 [f])” (Amato, 72 NY2d at 294). Nonetheless, we determined that the legislature intended to carry the exclusion of police vehicles from Insurance Law § 3420 (e) over to Insurance Law § 3420 (f) because “it would be illogical to assume that, while there is no legal obligation to insure police vehicles for death or bodily injury in the first instance, the City is nevertheless required to provide uninsured motorist coverage for its police vehicles” (id.).

Even without the benefit of Amato‘s binding precedent, Fitzgerald’s attempt to import Vehicle and Traffic Law § 125’s definition of “motor vehicle” into Insurance Law § 3420 (f), but not into Insurance Law § 3420 (e), would make no sense. After all, Insurance Law § 3420 (e) and (f) do not mention Vehicle and Traffic Law § 125 at all, and as a result, there is no reason to suppose, as Fitzgerald does, that the legislature meant to incorporate Vehicle and Traffic Law § 125’s broad definition of “motor vehicle” into either of those insurance statutes. Rather, the only Vehicle and Traffic Law provision cited by the relevant{**25 NY3d at 812} statutes is Vehicle and Traffic Law § 388 (2), which explicitly exempts police vehicles from the definition of “motor vehicle.” Accordingly, the legislature presumably meant to exclude police vehicles from coverage under the interrelated provisions of Insurance Law § 3420 (e), (f) (1) and (2), and the SUM endorsement here necessarily features that same exclusion. For that reason, we have never looked to Vehicle and Traffic Law § 125 for guidance as to the meaning of the term “motor vehicle” under Insurance Law § 3420 (f), instead relying on the use of comparable terms in Vehicle and Traffic Law § 388 (2) (see Amato, 72 NY2d at 293-294) and the MVAIC Act (Insurance Law art 52) (see Wagoner, 45 NY2d at 586-588).

While Insurance Law § 3420 (e)’s use of the phrase “of any motor vehicle or of any vehicle as defined in [Vehicle and Traffic Law § 388 (2)]” may be confusing insofar as the terms are inherently conflicting in their scope under the Vehicle and Traffic Law, it appears that the legislature chose those words as an imprecise expression of its intent to incorporate Vehicle and Traffic Law § 388 (2)’s limitations into the relevant sections of the Insurance Law. Significantly, Vehicle and Traffic Law § 388 (2)’s definition of “vehicle” is narrower than that of “motor vehicle” under Vehicle and Traffic Law § 125 in most respects. Vehicle and Traffic Law § 388 (2) incorporates nearly all of the exclusions listed in Vehicle and Traffic Law § 125 by defining “vehicle” as a “motor vehicle” within the meaning of Vehicle and Traffic Law § 125, and adding extra exclusions for a variety of agricultural equipment, fire vehicles, police vehicles and onsite construction vehicles. Vehicle and Traffic Law § 388 (2)’s only additional inclusions are for trailers and for vehicles used on roads other than highways.

As a result, a literal reading of Insurance Law § 3420 (e)’s reference to the negligent operation “of any motor vehicle or of any vehicle as defined in [Vehicle and Traffic Law § 388]” would be largely self-contradictory. It would suggest that the statute covers “[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power,” including police vehicles, agricultural vehicles and the like (Vehicle and Traffic Law § 125), or, somewhat paradoxically, a motor vehicle, excluding police vehicles, agricultural vehicles, and onsite construction equipment, but including non-highway vehicles and trailers. Of course, had the legislature wished for the broader definition of Vehicle and Traffic Law § 125 to apply to Insurance Law § 3420 (e) and (f), it could {**25 NY3d at 813}have easily referred to Vehicle and Traffic Law § 125 alone. And if the legislature was solely concerned about placing trailers and vehicles on non-public roads in the ambit of the insurance statute, it could have directly referred to those minor differences between the inclusions of the two Vehicle and Traffic Law statutes without citing Vehicle and Traffic Law § 388 (2). Since the legislature did not refer to Vehicle and Traffic Law § 125 at all in drafting Insurance Law § 3420 (e), did not indicate a desire to define “motor vehicle” without limitation in that section and directly cited the narrow provisions of Vehicle and Traffic Law § 388, it plainly intended to narrow the definition of “motor vehicle” for purposes of Insurance Law § 3420 (e).^[FN4]

Legislative History Supporting Amato

The legislative history of these statutes buttresses our conclusion, as previously stated in Amato, that Insurance Law § 3420 (f) does not define “motor vehicle” to include police vehicles. In that regard, even at time of the passage of the Vehicle and Traffic Law, the general definition of “motor [*10]vehicle” in that statutory scheme excluded police vehicles, and the original civil liability provision of the Vehicle and Traffic Law imposed such liability only for the negligent operation of “motor vehicles,” excluding police vehicles (see L 1936, ch 911, § 1; L 1929, ch 54 [enacting Vehicle and Traffic Law §§ 2 (8); 59]; Letter from Commr of Highways, St Dept of Pub Works, to Governor’s Counsel, Mar. 6, 1929, Bill Jacket, L 1929, ch 54 at 8; see also Arnold W. Wise, The History of the Vehicle and Traffic Law, McKinney’s Cons Laws of NY, Book 62A at xv [1960 ed]). Hence, from its inception, the Vehicle and Traffic Law did not provide for civil liability arising out of the negligent operation of police vehicles.{**25 NY3d at 814}

Later, when the legislature amended the predecessor to Insurance Law § 3420, it used language that paralleled the civil liability provisions of the Vehicle and Traffic Law, and it used the term “motor vehicle” to define the scope of statutorily required automobile liability insurance, thereby presumably excluding police vehicles in a similar way (see L 1939, ch 882 [enacting Insurance Law § 167]). Accordingly, at the time the predecessors to Vehicle and Traffic Law § 125, Vehicle and Traffic Law § 388 and Insurance Law § 3420 (e) were enacted, the relevant laws had these salient features: (1) the term “motor vehicle” in general excluded police vehicles; (2) statutory civil liability did not lie for the negligent use of police vehicles; and (3) insurers were not statutorily required to cover vicarious liability with respect to vehicles that were not “motor vehicles,” which term was continued in the Insurance Law at a time when the only statute defining it, Vehicle and Traffic Law § 2 (8), clearly excluded police vehicles (see L 1938, ch 183, § 1).

When Vehicle and Traffic Law § 125 was enacted, it did not contain the police vehicle exclusion in its definition of “motor vehicle,” but that was of no moment because Vehicle and Traffic Law § 125 did not apply to the civil liability statute within the Vehicle and Traffic Law (see L 1957, ch 698 [adding Vehicle and Traffic Law §§ 125, 100]). Likewise, after the predecessor to Vehicle and Traffic Law § 388 was amended to define the scope of civil liability based on the operation of “vehicles” rather than “motor vehicles,” a 1958 bill ensured that it still referred to a section of the Vehicle and Traffic Law that incorporated the police vehicle exclusion, thereby maintaining that limitation (see L 1958, ch 577, § 1).

The same bill made a “conformity amendment” to the predecessor to Insurance Law § 3420 (e) to “make it clear that the term ‘motor vehicle’ as used in that section includes all vehicles as defined in section 59 [the predecessor to Vehicle and Traffic Law § 388]” (Recommendation of Law Rev Commn to Legislature, Bill Jacket, L 1958, ch 577 at 45). Maintaining the consistency between the predecessors to Vehicle and Traffic Law § 388 and Insurance Law § 3420 (e), the legislature added a citation to Vehicle and Traffic Law § 388’s predecessor and its terminology to define the coverage of the requisite liability insurance policy. To the existing clause of Insurance Law § 3420 (e)’s predecessor that said, “No policy or contract of personal {**25 NY3d at 815}injury liability insurance . . . covering liability arising from the ownership, maintenance or operation of any motor vehicle,” the legislature appended the phrase “or of any vehicle as defined in section fifty-nine of the vehicle and traffic law” (L 1958, ch 577, § 3). As the Bar Association of the City of New York noted, this change was “a source of confusion” insofar as the terms “vehicle” and “motor vehicle” were conflicting under the Vehicle and Traffic Law, but it was nonetheless “underst[oo]d” that “the intended application of Section [*11]167(2) [the predecessor to Insurance Law § 3420 (e)] [wa]s only to the liability arising under Vehicle and Traffic Law § 59” (Mem of Assn of Bar of City of NY Comm on St Legis, Bill Jacket, L 1958, ch 577 at 19 [emphasis added]). The Law Revision Commission, which proposed the legislation, essentially confirmed this understanding of the reach of the predecessor to Insurance Law § 3420 (e) (see Recommendation of Law Rev Commn to Legislature, Bill Jacket, L 1958, ch 577 at 38-39). Therefore, in enacting the 1958 amendments to Vehicle and Traffic Law § 388’s and Insurance Law § 3420 (e)’s antecedents, the legislature adopted legislation meant to continue to exclude police vehicles from the ambit of the predecessor to Insurance Law § 3420 (e) (see also Mem of Assistant Director of Research of Law Rev Commn, Bill Jacket, L 1962, ch 825 at 19 [“section 167(2) of the Insurance Law . . . now require(s) coverage of the insured’s liability under section 388 of the Vehicle and Traffic Law,” which was the successor to Vehicle and Traffic Law § 59 and still exempted police vehicles]).

1958 also brought the advent of uninsured motorist coverage. The legislature sought to guarantee that all owners of covered vehicles had uninsured motorist coverage from one of two sources: (1) automobile insurance policies including that coverage; or (2) uninsured motorist benefits paid by the Motor Vehicle Accident Indemnification Corporation to those who did not have such insurance (see generally L 1958, ch 759). Accordingly, the legislature crafted a new article 17-A of the Insurance Law, establishing MVAIC and directing it to process all claims for uninsured motorist benefits, regardless of whether the claims ultimately were to be paid by an insurance company or by MVAIC itself (see id.). Under that article, a “motor vehicle” to which uninsured motorist benefits applied was not{**25 NY3d at 816} inclusive of police vehicles (see L 1958, ch 759, § 2; see also former Vehicle and Traffic Law § 2 [1958]).^[FN5]

The legislature also amended Insurance Law § 167 (2), the predecessor to Insurance Law § 3420 (e), to compel insurers to add uninsured motorist endorsements to automobile insurance policies. The legislature placed the uninsured motorist provision in a new subsection (2-a) immediately following subsection (2) of Insurance Law § 167 (see L 1958, ch 759, § 4). Like its modern counterpart, Insurance Law § 167 (2-a) mandated that uninsured motorist coverage be contained in any “policy insuring against loss resulting from liability imposed by law for bodily injury or death . . . arising out of the ownership, maintenance and use of a motor vehicle by the insured,” and that the policy had to establish that coverage either through the insurer itself or through MVAIC (L 1958, ch 759, § 4 [emphasis added]). Tellingly, although the statute did not define “motor vehicle,” it was placed immediately following Insurance Law § 167 (2) and its incorporation of a definition of “motor vehicle” that exempts police vehicles. Indeed, the legislature saw the relationship between these two statutory subsections as quite close, for Insurance Law § 167 (2-a) was meant to fill what were simply “loopholes” (Sponsor’s Mem, Bill Jacket, L 1958, ch 759 at 6) or “gaps” (Governor’s Open Letter to Legislature, Bill Jacket, L 1958, ch 759 at 11) in the compulsory insurance statutes and Insurance Law § 167 (2), merely adding an uninsured motorist subdivision as an appendage to the existing law.

Along those lines, uninsured motorist endorsements under Insurance Law § 167 (2-a) were also intended to extend the same coverage as the MVAIC statute, and nothing more, because the statutory uninsured motorist endorsements and MVAIC were regarded as related “prong[s]” of the same “attack” {**25 NY3d at 817}on the problem of uninsured motorists (Mem of Supt, St Ins Dept, Bill Jacket, L 1958, ch 759 at 23; see also McCarthy v Motor Veh. Acc. Indem. Corp., 16 AD2d 35, 38-42 [4th Dept 1962] [“The MVAIC Law was not designed to supplement the insurance coverage of insured automobiles or to protect injured persons against risks which were not covered by the standard automobile liability policies” because “(t)hey are, and under the scheme of the statute, they must be, coextensive,” and certain terms in policies under Insurance Law § 167 (2-a) must be given the same meaning as under the MVAIC Law], affd 12 NY2d 922 [1963]; Moffitt v Moffitt, 46 AD2d 944, 945 [3d Dept 1974] [in the context of uninsured motorist accident, “MVAIC coverage is coextensive with that of a standard policy and article 17-A of the Insurance Law does not supplement the coverage of insured automobiles or protect insured persons against risks not covered by a standard policy”]). So it was that, in Wagoner (45 NY2d 581), we looked to the definitions section of the MVAIC Law as authority for the proposition that a “motorcycle” was a “motor vehicle” under Insurance Law § 167 (2-a), which was section 3420 (f)’s predecessor, because it was defined as such for purposes of the MVAIC Law (see id. at 586-588). This suggests that, just as MVAIC did not generally define a “motor vehicle” as inclusive of police vehicles, the uninsured motorist statute likewise removed police vehicles from the ambit of that term. And, the state of affairs remained the same [*12]following the passage of the legislation that rearranged and renumbered portions of the Vehicle and Traffic Law into its modern configuration (see L 1959, ch 775 [adding Vehicle and Traffic Law §§ 125, 125-a, 388 (2)]; L 1960, ch 608, § 4; L 1967, ch 139, § 1).

SUM coverage became compulsory in 1977 via an amendment to Insurance Law § 167 (2-a). This combined uninsured motorist/SUM coverage statute retained the original language of the uninsured motorist provision and added within that same undivided subsection the following:

“Any such policy shall, at the option of the insured, also provide supplementary uninsured motorists insurance for bodily injury, in an amount up to the bodily injury liability insurance limits of coverage provided under such policy, subject to a maximum of [$100,000 due to bodily injury or death per accident].” (L 1977, ch 892, § 3.)

{**25 NY3d at 818}As we have recognized, these statutory SUM benefits were “designed to give insureds the same level of protection that would have been available to others under the policy if the insureds were the tortfeasors who caused personal injuries,” and the legislature first addressed SUM coverage and general uninsured motorist coverage in the same statutory section because “both paragraphs of section 167 (2-a) related to uninsured motorist benefits and supplementary coverage was framed as an extension of the mandatory coverage outlined in the first paragraph” (Raffellini, 9 NY3d at 204-205). Therefore, SUM coverage was an extension of uninsured motorist coverage that generally applied in the same situations, just with different policy limits.

Finally, in 1984, the Insurance Law was renumbered in its entirety, resulting in the transfer of the old SUM, uninsured motorist and general liability coverage provisions into new Insurance Law § 3420. As a result, the requirements of general liability insurance policies are now outlined in Insurance Law § 3420 (e), uninsured motorist coverage requirements can be found in Insurance Law § 3420 (f) (1), and SUM coverage provisions are in Insurance Law § 3420 (f) (2) (A) (see L 1984, ch 367). Despite the separation of the uninsured motorist and SUM measures into distinct subsections (f) (1) and (f) (2), “[t]his recodification was not meant to effect a substantive change in the law—certainly, there is no reason to conclude that the Legislature split the two paragraphs into separate subsections to create a distinction between the two types of coverages that did not already exist” (Raffellini, 9 NY3d at 205; see Letter from Supt of Ins to Governor’s Counsel, July 13, 1984, Bill Jacket, L 1984, ch 367 at 7).

When Amato arrived in this Court, the law stood as follows: New York had traditionally exempted police vehicles from statutes dealing with civil liability under the Vehicle and Traffic Law; the legislature had long bound the Vehicle and Traffic Law civil liability statute and the predecessors to Insurance Law § 3420 (e) together, making their coverage coextensive; the legislature had also created essentially coterminous MVAIC and uninsured motorist statutes, the former of which defined “motor vehicle” to exclude police vehicles; the legislature had expressed a desire to maintain [*13]consistency in the scope of coverage of general automobile liability insurance and uninsured motorist coverage; and statutory uninsured motorist coverage and SUM coverage gave rise to matching benefits and limitations, such that if one excluded police vehicles, the other logically did so as well.{**25 NY3d at 819}

Against this backdrop, the Amato Court had every reason to conclude that, because the liability insurance provision of Insurance Law § 3420 (e) had traditionally dovetailed with the coverage of Vehicle and Traffic Law § 388 and its predecessors, Insurance Law § 3420 (e) employed the phrase “of a motor vehicle or of a vehicle as defined in [Vehicle and Traffic Law § 388]” as an imprecise way of incorporating the limitations of Vehicle and Traffic Law § 388 into Insurance Law § 3420 (e). In other words, Insurance Law § 3420 (e) used Vehicle and Traffic Law § 388 (2) to redefine “motor vehicle” as exempting police vehicles from the automobile insurance sections of Insurance Law § 3420. Given that the uninsured motorist and SUM coverage sections of Insurance Law § 3420 had originated as outgrowths designed to simply fill the uninsured or underinsured motorist “gaps” in the compulsory insurance statute and Insurance Law § 3420 (e), rather than to expand the class of covered vehicles, the Court rightly decided that Insurance Law § 3420 (f) (1) and (2) logically applied to the limited category of “motor vehicles” referenced in Insurance Law § 3420 (e), thus also excluding police vehicles. Since SUM coverage under Insurance Law § 3420 (f) (2) was just a variant of uninsured coverage under subsection (f) (1) of the same statute, the Court appropriately found that SUM coverage was likewise limited to non-police vehicles. Accordingly, the Amato Court properly interpreted Insurance Law § 3420 (f) (2) in a manner fully consistent with the legislature’s intent.

Stare Decisis and Developments Post-Amato

Even if we were to disagree with our holding in Amato, we would nonetheless be bound to follow it under the doctrine of stare decisis. “ ’Stare decisis is the doctrine which holds that common-law decisions should stand as precedents for guidance in cases arising in the future’ and that a rule of law ‘once decided by a court, will generally be followed in subsequent cases presenting the same legal problem’ ” (People v Peque, 22 NY3d 168, 194 [2013], quoting People v Damiano, 87 NY2d 477, 488 [1996, Simons, J., concurring]). Even under the most flexible version of the doctrine applicable to constitutional jurisprudence, prior decisions should not be overruled unless a “compelling justification” exists for such a drastic step (People v Lopez, 16 NY3d 375, 384 n 5 [2011]; see People v Silva, 24 NY3d 294, 300 [2014]). As we recently reiterated, an even more extraordinary and compelling justification is needed to{**25 NY3d at 820} overturn precedents involving statutory interpretation, such as Amato, because unlike in constitutional cases, “if the precedent or precedents have misinterpreted the legislative intention [embodied in a statute], the Legislature’s competency to correct the misinterpretation is readily at hand” (Palladino v CNY Centro, Inc., 23 NY3d 140, 151 [2014] [internal quotation marks and citations omitted]). Indeed, in Palladino, we upheld a statutory interpretation precedent that we found to [*14]be riddled with shortcomings both at the time it had been decided and thereafter. While we openly “question[ed]” the “utility or wisdom” of that precedent, we nonetheless followed it (id. at 150; see also id. at 147-150).

Here, Fitzgerald does not so much as ask us to overturn Amato, much less advance any compelling justification for disturbing that precedent. Nor do we find it appropriate to discard Amato on our own initiative, as there is no evidence that it has become unworkable, is unjust or has created an irreconcilable conflict in our case law. Certainly, legislative developments since our decision in Amato have not cast doubt on its validity, for the legislature has repeatedly amended Insurance Law § 3420 after Amato without making any effort to undo that decision (see L 2013, ch 11, § 1; L 2012, ch 496, § 1; L 2008, ch 388, §§ 2-6; L 2002, ch 584, §§ 1-2; L 1997, ch 568, § 1; L 1997, ch 547, § 2; L 1995, ch 305, § 1; L 1994, ch 425, § 2; see generally Bill Jacket, L 2013, ch 11; Bill Jacket, L 2012, ch 496; Bill Jacket, L 2008, ch 388; Bill Jacket, L 2002, ch 584; Bill Jacket, L 1997, ch 547; Bill Jacket, L 1995, ch 305). This is true even with respect to the specific amendments altering the limits of SUM coverage, and even at times when the legislature made efforts to overturn other pertinent judicial decisions with which it disagreed (see L 2012, ch 496, § 1; L 1997, ch 568, § 1; L 1997, ch 547, § 2; see e.g. Sponsor’s Mem, Bill Jacket, L 1997, ch 547 at 6-7 [seeking to expedite disclosure of coverage of SUM policies in response to Appellate Division case law strictly construing timing requirements for filing of SUM claims, and also citing this Court’s decision in Maurizzio v Lumbermens Mut. Cas. Co. (73 NY2d 951 [1989])]; Mem of NY Law Rev Commn, Bill Jacket, L 2002, ch 584 at 9 [calling legislature’s attention to need for amendment to overrule Black v Allstate Ins. Co. (274 AD2d 346 [1st Dept 2000])]).

Therefore, stare decisis compels retention of Amato. Because there is no basis for distinguishing that case from the one before us, Fitzgerald’s status as a passenger of a police vehicle{**25 NY3d at 821} at the time of the accident dooms his claim under Amato and Insurance Law § 3420 (f) (2) (A).

III

An unbroken line of historical practice, legislative history, statutory text and precedent establishes that a SUM endorsement prescribed by Insurance Law § 3420 (f) (2) (A) exempts police vehicles from its definition of the term “motor vehicle” absent a specific provision to the contrary in a given SUM endorsement. Since there is no contrary provision in the SUM endorsement here, it does not cover liability for injuries arising from the use of a police vehicle of the sort occupied by Fitzgerald during his accident. While Fitzgerald may pursue the available remedies, if any, under the No-Fault Law, a lawsuit or any insurance policy he has purchased for himself, he cannot recover under the SUM endorsement of Knauss’s policy, and the Appellate Division erred in overturning the stay of arbitration under that policy. Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition for a permanent [*15]stay of arbitration granted.

Pigott, J. (dissenting).

The issue in this case is simple: whether plaintiff can recover from State Farm, the carrier that issued a SUM endorsement to Knauss’s personal motor vehicle insurance policy. Plaintiff, a person injured while occupying a motor vehicle driven by Knauss, is entitled to recover under the SUM endorsement.

In Matter of State Farm Mut. Auto. Ins. Co. v Amato (72 NY2d 288 [1988]), this Court was asked to decide whether the City of New York, as an unregulated self-insurer, was statutorily required to provide uninsured motorist coverage to two of its police officers who were injured when their police vehicles were struck by uninsured motor vehicles (Amato, 72 NY2d at 294). The officers each filed uninsured motorist claims with State Farm, their insurance carrier, to recover for their personal injuries (see id.). When State Farm denied their claims, both officers sought to arbitrate their uninsured motorist claims, and, in both cases, State Farm petitioned to stay the arbitration (see id.). State Farm argued that it was not obligated to provide uninsured motorist coverage because the City of New York, “as owner of the host vehicle, had the primary obligation to provide uninsured motorist coverage” (id. at 292 [internal quotation marks omitted]). This Court rejected that{**25 NY3d at 822} contention, holding that, as an unregulated self-insurer, the City was not statutorily required to provide uninsured motorist coverage to its officers (id. at 290). The Amato Court recognized nonetheless that the officers may make a claim against their own uninsured motorist policy (id. at 293 n 1; see also Williams v City of New York, 144 AD2d 553 [2d Dept 1988] [finding that while the City had no obligation to provide uninsured motorist benefits to the police officer plaintiff, she was entitled to summary judgment against the insurer of her personal vehicle]).

Here, plaintiff is not seeking uninsured motorist coverage from the City, as it is settled under Amato that the City has no obligation to provide the plaintiff with uninsured motorist benefits. It therefore follows, as in our prior precedent, that plaintiff is entitled to coverage under the Knauss’s SUM endorsement.

The legislature intended to make compensation available in cases in which insured persons suffer automobile accident injuries at the hands of financially irresponsible motorists. As this Court recognized in Amato, “[The] Legislature has specifically declared its grave concern that motorists who use the public highways be financially responsible to ensure that innocent victims of motor vehicle accidents be recompensed for their injuries and losses” (Amato, 72 NY2d 288, 292, citing Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818, 819 [1980]). Under the majority’s holding, plaintiff is left without uninsured motorist coverage altogether. Clearly, neither the legislature nor this Court would ever intend such a result.

For these reasons, I dissent and would affirm the order of the Appellate Division.

Judges Read, Stein and Gonzalez^[FN*] concur; Judge Pigott dissents and votes to affirm in an opinion in which Chief Judge Lippman and Judge Fahey concur; Judge Rivera taking no part.

Order reversed, with costs, and petition for a permanent stay of arbitration granted.

Footnotes

Footnote 1:The record does not disclose whether Fitzgerald had automobile insurance or liability insurance at the time of the accident. In his motion papers and correspondence with State Farm, Fitzgerald did not discuss his own insurance status, and he did not claim to be uninsured.

Footnote 2:At the time of the Court’s decision in Amato, Insurance Law § 3420 (f) had already been divided into paragraphs (1) and (2) (see L 1984, ch 367), though the Court did not distinguish between those two paragraphs for purposes of its analysis.

Footnote 3:The dissent opines that we should direct State Farm to extend coverage to Fitzgerald because, in Amato, we noted that the officers there could receive SUM coverage under their own insurance policies (see dissenting op at 822). But that aspect of Amato is of no help to Fitzgerald. In Amato, we commented that the officers could not receive Motor Vehicle Accident Indemnification Corporation (MVAIC) benefits because they were designated “beneficiaries” of the particular “uninsured motorist indorsement contained in their respective policies with State Farm” (Amato, 72 NY2d at 293 n 1). In other words, the officers in Amato could still receive uninsured motorist benefits because, presumably, they were named insureds under State Farm’s policy, and State Farm extended uninsured motorist coverage to them regardless of the type of vehicle they occupied. In fact, here, Officer Knauss was covered for the same reason: the SUM indorsement expressly identified him as a named insured entitled to such coverage under any circumstances. By contrast, Fitzgerald was not a named insured under Knauss’s policy, and hence he could not receive coverage on the same grounds that Knauss or the officers in Amato could. Rather, Fitzgerald could only qualify for SUM coverage under the statutorily required SUM clause in Knauss’s policy, which limited coverage to occupants of statutory “motor vehicles.” As we have explained, Fitzgerald was not occupying a “motor vehicle” at the time of his accident, and he was not entitled to SUM coverage.

Footnote 4:When confronted with another phrase in this statute joined by a similarly perplexing coordinating conjunction, we have previously declined to construe the phrase literally to create an expansion of coverage not otherwise clearly contemplated by the legislature (see Matter of Allstate Ins. Co. v Libow, 65 NY2d 807, 809 [1985] [affirming “for the reasons stated in the opinion” of the Appellate Division, which refused to interpret literally a clause in former Insurance Law § 3420 (f), which requires payment of “all sums, not exceeding a maximum amount or limit of ten thousand dollars exclusive of interest and costs, on account of injury to and all sums, not exceeding a maximum amount or limit of fifty thousand dollars exclusive of interest and costs, on account of death of one person, in any one accident” because the literal reading would have permitted the unintended aggregation of certain claims under that statute]; see also Matter of Allstate Ins. Co. v Libow, 106 AD2d 110, 116-118 [2d Dept 1984]).

Footnote 5:Today, the MVAIC statute still defines “motor vehicle” as “exclud[ing] fire and police vehicles” (Insurance Law § 5202 [a]). The Amato Court stated that “the uninsured occupant of a police vehicle may file a claim with the MVAIC for injuries sustained in an accident caused by an uninsured motor vehicle,” but that “police vehicles are exempted from the provisions of the MVAIC statute to the extent that otherwise eligible claimants are barred from filing a claim for injuries caused by the negligent operation of a police vehicle” (Amato, 72 NY2d at 294 n 2). Thus, the Court seems to have found that, although a police vehicle is not a “motor vehicle” under the MVAIC Law, it can still be involved in an actionable “motor vehicle accident” under that statutory scheme (Insurance Law § 5208 [a] [1]), as long as its operation is not the cause of the accident.

Footnote *:Presiding Justice of the Appellate Division, First Department, designated pursuant to NY Constitution, article VI, § 2 to serve as an Associate Judge of the Court of Appeals.

Decided on June 25, 2015

261079/2014

Attorney for Petitioner

Jason Tenenbaum, Esq.

The Law Office of Jason Tenenbaum, P.C.

595 Stewart Avenue, Suite 400

Garden City, New York 11530

Ralph C. Caio, Esq.

The Law Offices of Sukhbir Singh

95-18 130 Street

South Richmond Hill, New York 11419

The following papers numbered 1 to 3 read on this motion to vacate

NoOn Calendar of April 30, 2015PAPERS NUMBER

Notice of Motion-Order to Show Cause – Exhibits and Affidavits Annexed————————& mdash;____1___

Answering Affidavit and Exhibits———— —————————&mdas h;—————————&md ash;—————————___ 2___

Replying Affidavit and Exhibits————————&m dash;—————————& mdash;————————— ——————-____3___

Affidavit—————————— ;——————————— 51;———————————& #151;—————————______

Pleadings — Exhibit————————&md ash;—————————& mdash;————————— —————————&mdas h;————_______

Memorandum of Law——————————— ——————————— 51;———————————& #151;—————- ______ Stipulation — Referee’s Report —Minutes———————&mdash ;—————————&mda sh;—————————&m dash;—________Filed papers————————— —————————&mdas h;—————————&md ash;—————————& mdash;———-_______________

Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:

Petitioner seeks judgment pursuant to CPLR 7511(b), vacating the master arbitration

award dated November 18, 2014, that granted respondent, Professional Chiropractic Care, P.C.,

(Care), an award of $9,221.79, and reinstating the decision of the no-fault arbitrator who

dismissed the no-fault claims.

As a result of a motor vehicle accident, respondent/assignor, Thomas Yanick, (Yanick),

underwent three days of manipulation under anesthesia. Yanick applied for no-fault

benefits, and failed to appear for scheduled IMEs. The arbitrator, in a decision dated August 16,

2014, denied Care’s claim for no-fault benefits. Care appealed to a master arbitrator, and the

master arbitrator reversed the arbitrator’s award and in its place, awarded Care, $9,221.79, on

the grounds that petitioner did not inform Care with sufficient specificity that the denial of

Care’s claim was the result of Yanick’s failure to appear for IMEs.

The award of an arbitrator shall be vacated pursuant to CPLR 7511(b) under the

following circumstances:

1. The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

CPLR 7511(b).

“In addition, article 75 review questions whether the decision was rational or had a

plausible basis. (Caso v Coffey, 41 NY2d 153, 158, supra.).” (Matter of Petrofsky (Allstate Ins.

Co.), 54 NY2d 207, 211 [1981]). In reply papers, petitioner limits the petition to “whether the

master arbitrator’s basis in reversing the findings of the lower arbitrator was irrational.” (reply,

par. 17). Petitioner then cites to Unitrin Advantage Ins. Co. v Bayshore Physical Therapy,

PLLC, 82 AD3d 559, [1st Dept 2011], to support its argument that Unitrin dictates a different

result from the master arbitrator’s award in this case.

In his award the master arbitrator cited to General Acc. Ins. Group v Cirucci, 46 NY2d

862 [1979], for the following: “although an insurer may disclaim coverage for a valid reason

(Insurance Law, § 167, subd 8) the notice of disclaimer must promptly apprise the claimant with

a high degree of specificity of the ground or grounds on which the disclaimer is predicated.” Id.

at 864. There is no dispute and the arbitrator acknowledged that the denial of coverage

referenced an incorrect date for an allegedly missed IME and EUO providing a rational basis for

the master arbitrator’s award.

While petitioner states that the master arbitrator’s award is irrational, petitioner’s

arguments center on the master arbitrator having made an error of law in failing to apply Unitrin

to the facts of this case. “The master arbitrator’s determination of the law need not be correct;

mere errors of law are insufficient to warrant setting aside the master arbitrator’s award, and on

questions of substantive law, the determination should be upheld if there is a rational basis for it

(see Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 576-577 [2002]).”

(101 Acupuncture, P.C. v Utica Mut. Ins. Co., 16 Misc 3d 132(A), (App. Term 2d Dept 2007]).

Finally, petitioner cites to 11NYCRR 65-4.10 (a) (4) for the proposition that the Codes

Rules and Regulation of the State of New York allow this court to vacate the master arbitrator’s

award as “incorrect as a matter of law.” However, 11 NYCRR 65-4.10 (a) (4) only permits a

master arbitrator to vacate or modify an arbitrator. 11NYCRR 65-4.10 (a). A court may not

vacate or modify a master arbitrator’s or an arbitrator’s award on grounds that the award is

incorrect as a matter of law.

Accordingly, the petition is denied, and judgment is rendered in favor of respondent.

The foregoing shall constitute the decision and order of the Court.

Dated: _____________________________________________KENNETH L. THOMPSON JR. J.S.C.

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for plaintiff-appellant.

Appeal from an order and judgment (one paper) of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered April 24, 2014. The order and judgment, among other things, denied that part of plaintiff’s motion for leave to enter a default judgment against defendants Bushra Naz, Cliffside Park Imaging & Diagnostic Center and Kimba Medical Supply, LLC.

It is hereby ordered that the order and judgment so appealed from is unanimously modified on the law by granting that part of the motion for leave to enter a default judgment against defendant Cliffside Park Imaging & Diagnostic Center and as modified the order and judgment is affirmed without costs.

Memorandum: Plaintiff appeals from an order and judgment that, inter alia, denied its motion pursuant to CPLR 3215 for leave to enter a default judgment against defendants Bushra Naz, Cliffside Park Imaging & Diagnostic Center (Cliffside), and Kimba Medical Supply, LLC (Kimba). Defendants Naz and Fatima Tahir made claims for no-fault benefits arising from injuries they allegedly sustained in an automobile accident covered by an insurance policy issued to plaintiff’s policyholder. Naz and Tahir assigned their rights to collect no-fault benefits to certain medical providers, including Cliffside and Kimba, each of which made claims for services rendered to Naz and Tahir as a result of the alleged accident. Plaintiff disclaimed coverage based on the failure of Naz and Tahir to provide timely written notice of the accident pursuant to the insurance policy, and thereafter commenced this action seeking a declaration that there is no coverage. Plaintiff subsequently moved for leave to enter a default judgment against each defendant on the ground that the summons and verified complaint had been properly served and defendants did not timely serve an answer or otherwise appear in the action. Supreme Court denied the motion with respect to Naz, Cliffside, and Kimba, and otherwise granted the motion.

“On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party’s default in answering or appearing” (Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651 [2011]; see CPLR 3215 [f]). Here, plaintiff submitted sufficient proof of the facts constituting its claim through the affidavit of a claims representative establishing that Tahir and Naz failed to satisfy the notice requirement of the insurance policy, which constitutes a failure to comply with a condition precedent and vitiates the contract as a matter of law (see generally New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592-593 [2011]; Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]; Matter of Progressive Northeastern Ins. Co. [Heath], 41 AD3d 1321, 1322 [2007]). Plaintiff also submitted proof of default in the form of “an affirmation from its attorney regarding . . . defendant[s’] default in appearing and answering” (599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726, 726 [2006]).

[*2] We further conclude, however, that plaintiff submitted sufficient proof of service of process, the remaining required element of proof, only with respect to Cliffside, a corporation, and thus the court erred in denying plaintiff’s motion to that extent. We therefore modify the order and judgment accordingly. Pursuant to CPLR 311 (a), “personal service on a corporation may be accomplished by, inter alia, delivering the summons ‘to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service’ ” (Rosario v NES Med. Servs. of N.Y., P.C., 105 AD3d 831, 832 [2013]). Here, “[t]he process server’s affidavit, which stated that the corporate defendant was personally served by delivering a copy of the summons and complaint to its ‘[authorized] agent’ and provided a description of that person, constituted prima facie evidence of proper service pursuant to CPLR 311 (a) (1)” (McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d 562, 562 [2007]; see Miterko v Peaslee, 80 AD3d 736, 737 [2011]; see generally Halas v Dick’s Sporting Goods, 105 AD3d 1411, 1413-1414 [2013]).

Contrary to plaintiff’s contention, the court properly denied its motion with respect to Naz, who was allegedly served by the “nail and mail” method of service. CPLR 308 (4) allows that method of service only “when service pursuant to CPLR 308 (1) and (2) cannot be made with due diligence” (Austin v Tri-County Mem. Hosp., 39 AD3d 1223, 1224 [2007]) and, although a process server’s affidavit of service ordinarily constitutes prima facie evidence of proper service, here the process server’s affidavit submitted by plaintiff fails to demonstrate the requisite due diligence (see D’Alesandro v Many, 137 AD2d 484, 484 [1988]; see generally Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929-930 [2008]). The affidavit failed to indicate whether there was an attempt to effectuate service at Naz’s actual “dwelling place or usual place of abode” (CPLR 308 [4]), and there is no indication that the process server made genuine inquiries to ascertain Naz’s actual residence or place of employment (see Prudence v Wright, 94 AD3d 1073, 1074 [2012]; Earle v Valente, 302 AD2d 353, 353-354 [2003]).

We also reject plaintiff’s contention that the court erred in denying its motion with respect to Kimba, a limited liability company. Plaintiff alleged that Kimba was served pursuant to Limited Liability Company Law § 304. That statute is substantively identical to Business Corporation Law § 307, and both statutes apply to foreign business entities not authorized to do business in New York. We conclude that, just as strict compliance with the procedures set forth in Business Corporation Law § 307 is required pursuant to Flick v Stewart-Warner Corp. (76 NY2d 50, 54-55, 57 [1990], rearg denied 76 NY2d 846 [1990]), strict compliance is likewise required for the procedures set forth in Limited Liability Company Law § 304 (see Elzofri v American Express Co., 29 Misc 3d 898, 901 [2010]). Here, plaintiff failed to establish that it strictly complied with the filing requirements of Limited Liability Company Law § 304 (e). Present—Smith, J.P., Peradotto, Carni, Valentino and Whalen, JJ.

CV-9502-14/HU
C. Stephen Hackeling, J.

Petitioner moves, “pursuant to CPLR §7511 (b)(1)”, to vacate the award of Master Arbitrator Godson (petitioner’s Exhibit A), which upheld the arbitration award of arbitrator Thomas (petitioner’s Exhibit B).

Specifically, petitioner argues that the arbitrator “exceeded its power or so imperfectly executed it that a final and definite award on the subject matter submitted was not made”. Petitioner also requests a rehearing, [pursuant to CPLR §7511(d)] in the event the award is vacated, while respondent requests the award be confirmed. Upon denial of an application to vacate or modify an [*2]award, the Court is required automatically to confirm the award, eliminating the need for the party opposing such application to cross-move for confirmation. See, e.g., Blumenkopf v. Proskauer Rose, LLP, 2012, 95 AD3d 647 (N.Y.A.D. 1st Dept.); CPLR § 7511.

Subjection of this no-fault action to the arbitral process was semi-consensual, not compulsory. Under this process, the arbitrator’s award “is reviewed by the Master Arbitrator, under internal procedures promulgated or approved by the Superintendent of Insurance and such review is not restricted to the grounds of CPLR § 7511. The (subsequent) decision of the Master Arbitrator was then reviewed. Under Article 75 of the CPLR, the limited review grounds of CPLR §7511 do apply. “The rationale of the no-fault award . . . while a matter of primary concern to a Master Arbitrator, is of no moment to the Court and cannot be reviewed by it.” Seigel, NY Prac. § 601.

1-

CPLR § 7511 (b)(1) sets forth the exclusive grounds for vacating an arbitration award. Grounds to vacate under CPLR § 7511 (b)(1) are few and are narrowly applied. (See CPLR § 7511, Commentary C 7511:2). The specific list of grounds includes “corruption, fraud or misconduct . . . partiality of an arbitrator appointed as neutral, an arbitrator’s excess of power or imperfect execution such that a final an definite award. . . was not made (and) . . . failure to follow procedure [CPLR § 7511 (b)(1)]. Outside of the narrowly circumscribed exceptions . . . the Court lacks authority to review arbitration decisions, even where an arbitrator has made an error of law or has misapplied substantive law. Matter of Kowaleski v. New York State Dept. of Correctional Services, 16 NY3d 85 (NY 2010).

Errors of law and misapplication of substantive law generally do not suffice to permit the Court to disturb the arbitrator’s decision , Matter of Falzone v. New York Central Mutual Fire Ins. Co., 15 NY3d, 530 (NY 2010). Unless the parties’ agreement provides otherwise, an arbitrator need not apply the rules of evidence and is not bound by principles of substantive law . . . he may do justice as he sees it, applying his own sense of law and equity . . . to the facts as he finds them to be. Matter of Falzone v. New York Central Mutual Fire Ins. Co., supra. Even if an arbitrator “has made an error of law, Court’s generally may not disturb the arbitrator’s decision . . . Court’s are obligated to give deference to the decision of the arbitrator. . .” Matter of Falzone, supra. Accordingly, judicial review of arbitration awards is extremely limited. “An arbitrator’s award should not be vacated for errors of law and fact committed by the arbitrator and the Court’s should not assume the role of overseers to mold the award to conform to their sense of justice” (Matter of MBNA Am. Bank v. Karathanos, 65 AD3d 688, 883 NYS 2d 917, 918 (N.Y.A.D. 2nd Dept., 2009). “A Court may not usurp the arbitrator’s role by imposing its concept of a just and equitable result”. Matter of Local 345 of Retail Store Empls. Union v. Heinrich Motors, Inc.,

81 AD2d 1021 (N.Y.A.D., 4th Dept. 1981).

Manifest disregard of the law is not a basis [under CPLR § 7511 (b)] to vacate an arbitration award. Banc. of America Securities v. Knight, 4 Misc 3d 756 (Sup. Ct. NY County, 2004). “While irrationality’ is not explicitly set forth in CPLR § 7511(b) as a ground for vacating an award, the Court of Appeals recognizes it as a kind of adjunct of the excess of power provision”. Siegel, NY Prac. §602. An award that is contrary to settled law may be vacated, however same “will be upheld if there is any reasonable hypothesis to support it, such as where the issue is unsettled is subject to conflicting Court decisions”. RDK MEd., P.C. v. General Assur. Co., 8 Misc 3d 1025 (NY City Civ. Ct., 2005). A non mandatory arbitration award will be upheld unless it violates a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation of the arbitrator’s powers . . . the arbitrator’s determination on issues of law, such as application of the statute of limitations as well as on issues of fact is conclusive, in absence of proof of fraud, corruption or other misconduct”. State Farm Auto Ins. Co. V. Harco Nat. Ins. Co., 29 Misc 3d 1229 (NY City Civ. Ct. 2010).

Upon review of the papers submitted including the arbitration transcript (provided by respondent), the Court finds no basis for disturbing the award. There was sufficient evidence in the record to support the award and a rational hypothesis to support the award, which found that the respondent established its defense [that provider, New Century Acupuncture, P.C. was not entitled to obtain payment for services by reason of violation of statutes regarding ownership and control of medical provider’s offices]. Petitioner has not established, as it contends, the grounds alleged in its Notice of Petition that “the arbitrator exceeded his power or so imperfectly executed it (such that) . . . a final and definite award . . . was not made”, nor has it shown entitlement for vacatur of the award for any of the specific grounds contained in CPLR § 7511.

2-

The Court specifically rejects petitioner’s argument that the arbitrator improperly applied the “preponderance” standard of proof to the respondent’s defense of improper licensing/control. Petitioner argues that the higher “clear and convincing” standard of proof should have been applied. “The essence of this defense (is that ) petitioner is ineligible to recover no-fault benefits due to petitioner’s failure to comply with New York State’s licensing requirements) . . . based on (petitioner’s) failure as a professional corporation to be owned and controlled only by licensed professionals . . .” Carothers v. Progressive Ins. Co., 42 Misc 3d 30 (App. Term, 2d, 11th & 13th Jud. Dists., 2013). The fact finder focuses on factors which determine whether the provider’s company is actually owned, co-owned or controlled by unlicensed individuals. 11 NYCRR 65 3.16(a)(12) provides that a health care provider is not eligible for reimbursement under section 1507 of the BCL if it fails to meet any applicable licensing requirement, whether at the time of its incorporation or thereafter. Although this defense is called “fraudulent incorporation”, it “truly poses [*3]an issue of the provider’s “ineligibility” to receive reimbursement, rather than fraud”. Tahir v. Progressive Cas. Ins. Co., 12 Misc 3d 657, 663, (NY City Civ. Ct. 2006). “While the word fraud is commonly used todescribe a Mallela defense, Mallela has nothing to do with common law fraud . . . In reality Mallela is akin to piercing the corporate veil”. Concourse Chiropractic, PLLC v. Sate Farm Ins. Co., 35 Misc 3d 1213 (Dist. Ct., Nassau, 2012).

In V.S. Medical Services, P.C., 11 Misc 3d 334 (NY City Civ. Ct. 2006), Judge Bluth rejected the application of the clear and convincing evidence standard to the respondent’s defense of lack of coverage/staged accident, stating that the respondent “need only come forward with evidence that rebuts (the) presumption of coverage . . . that is once the petitioner has made out its prima facie case, the burden of production ( also called the burden of going forward) on the issue of coverage falls upon the respondent and the respondent must demonstrate that it has a founded basis for believing that the alleged collision was intentionally caused. The burden of persuasion, however, remains on the petitioner who must prove its case by a fair preponderance of credible evidence . . . How much evidence must respondent produce to satisfy its burden of production? There is no magic formula, but it clearly must be enough to rebut the presumption that the injuries were caused by a covered accident, that is, a true accident . . . After all the evidence has been presented, the Court must decide whether the evidence of coverage preponderates in favor of the petitioner, the party who bears the burden of persuasion. V.S. Medical Services, P.C., supra. In Universal Open MRI of the Bronx, P.C. v. State Farm Mut. Auto Ins., 12 Misc 3d 1151 (A), (NY City Civ. Ct., 2006), Judge Velasquez also applied the preponderance of the evidence standard of proof to respondent’s evidence of a staged accident, and stated that although “our Appellate Courts commonly invoke the term “fraud” when discussing the defense of “staged accident” (which is actually a defense of lack of coverage), they are not necessarily discussing fraud.

The petitioner also argues that M.A. Godson “made his own factual determination regarding respondent’s EUO no show defense ” and “that M.A. Godson decided the EUO issue de novo”, as this issue was “never decided in the first instance” by arbitrator Thomas. Arbitrator Thomas’ report made factual findings that “respondent . . . sent the applicant two requests to appear for an EUO. . . and that respondent failed to appear thereat”. The arbitrator also discussed the timeliness of respondent’s EUO requests. The arbitration report failed to explicitly state that her award was based on respondent’s failure to appear at the EUO’s. Rather, her determination explicitly stated that respondent sufficiently established petitioner’s ineligibility to receive reimbursement by reason of petitioner’s fraudulent incorporation. Said report denied plaintiff’s claim in its entirety. The arbitrator, found that the respondent proved its complete defense justifying her award which denied petitioner’s claim entirely on said ground alone. It may have been clearer had the arbitrator explicitly stated that failure to attend the EUO’s was the second ground on which her report was based, however, it was unnecessary. The Court is of the opinion that this conclusion on the part of the arbitrator is implicit in her report and that the Master Arbitrator properly reviewed thethis issue but did not determine it factually, de novo.

3-

The Master Arbitrator’s award states one of the two issues it was reviewing was whether the no-fault arbitrator’s findings justified a conclusion that respondent properly denied applicant’s claims on the basis of failure to attend two EUO’s. The Master Arbitrator clearly found that the failure to attend the EUO’s was an appropriate reason for the no-fault arbitrator to have sustained the respondent’s denials. The Master Arbitrator also affirmed the arbitrator’s report in its entirety; finding that the arbitrator did not act in a arbitrary, capricious or irrational manner or contrary to law in denying the claim on the grounds of petitioners’ fraudulent incorporation.

In any event, even had the arbitrator held that respondent appeared at the EUO’s, and had it stated this in its report, and had the Master Arbitrator upheld such a finding, the ultimate result is unchanged, as the respondent prevailed entirely its fraudulent incorporation defense.

Petitioner’s final argument, regarding collateral estoppel was withdrawn by petitioner, at a conference with both counsel and the jurist present. Petitioner’s motion, based on this and other grounds, is denied.

Accordingly, the petition is denied. (CPLR §7511 (e)). The award is confirmed. The respondent may enter judgment pursuant to CPLR § 7514. Submit judgment.

________________________________

J.D.C.

Dated: June 18, 2015

4