Baldwin Med. Servs., P.C. v Maya Assur. Co (2026 NY Slip Op 51329(U))

Reported in New York Official Reports at Baldwin Med. Servs., P.C. v Maya Assur. Co (2026 NY Slip Op 51329(U))

Baldwin Med. Servs., P.C. v Maya Assur. Co

2026 NY Slip Op 51329(U) [89 Misc 3d 1248(A)]

Decided on August 19, 2026

Civil Court of the City of New York, Bronx County

Eric J. Wursthorn, J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Bronx County

Decided on August 19, 2026

Index No. CV-721510-22/BX

Eric J. Wursthorn, J.

[*1]

Plaintiff Baldwin Medical Services, P.C. (“Baldwin”), as assignee of Ana Lopez, seeks reimbursement from defendant Maya Assurance Co. (“Maya”) for medical services provided by it in accordance with New York State No-Fault Law. Maya now moves for summary judgment, arguing that Baldwin’s failure to respond to additional verification requests warrants dismissal (CPLR 3212). Baldwin opposes the motion. Issue has been joined and the motion was timely brought after notice of trial was filed. For the reasons that follow, Maya’s motion for summary judgment is denied.

Relevant facts

On 3/2/22, Ana Lopez was allegedly injured in an automobile accident. On 5/17/22, Baldwin allegedly provided medical services to Ms. Lopez and now seeks reimbursement for those services from Maya, Ms. Lopez’s insurer. Specifically, Baldwin billed $408.16 for bilateral paravertebral facet joint injections to the cervical and thoracic spine with image guidance, and arthrocentesis to the left shoulder rendered on 5/17/22.

By letter dated 6/15/22, Sanders Grossman Aranova, PLLC (“SGA PLLC”) advised Maya that the firm had been retained by Baldwin and submitted the subject claim for reimbursement. The 6/15/22 letter further provides that “[p]ursuant to New York State Insurance Law, all requests for additional verification, denials and explanations of benefits must be mailed both to the above-referenced provider and this office” (emphasis in original). The claim form submitted by SGA PLLC lacked Ms. Lopez’s signature in the portions authorizing release of information, requesting payment of benefits, and assigning benefits to the provider. Instead, the form stated that her signature was ‘on file.’

Maya claims that it then sent an additional verification request on 7/7/22 and a second additional verification request on 8/5/22 seeking an NF-3 completed and signed by the provider and a completed and signed Assignment of Benefits. Copies of verification requests addressed to Baldwin care of SGA PLLC at SGA PLLC’s mailing address have been provided to the Court.

Meanwhile, while the additional verification was still pending, Baldwin commenced this action on 8/23/22. Baldwin alleges in its complaint that it did not receive requests for additional verification from defendant (see Summons and Complaint, ¶ 21 [NYSCEF Doc. No. 1]). Defendant does not argue in this motion that this action was prematurely commenced, although defendant has preserved this defense in its answer (fourth and seventh affirmative defenses).

On 1/25/23, Maya sent Baldwin an NF-10 Denial of Claim Form which denied payment for the subject claim on the grounds that Maya requested, but never received, additional information which it needed to verify Baldwin’s claim or reasonable justification for the failure to comply with the verification request. The Explanation of Benefits attached to the Denial of Claim Form specifically states: “Our 1st verification letter was mailed out on 07/08/22 which 120 days have passed.”

Parties’ arguments

Defendant seeks summary judgment on the grounds that it properly denied plaintiff’s bill based on plaintiff’s failure to provide additional verification requested. Maya contends that after receiving the claim, it mailed the initial request for additional verification on 7/7/22 and a second additional verification request on 8/5/22, and that Baldwin did not respond to either. Maya further argues that because no verification or reasonable justification was provided within 120 days of the initial verification request, it properly issued an NF-10 denial on 1/25/23 pursuant to 11 NYCRR 65-3.5 (o).

Plaintiff does not dispute verifications were not answered. Rather, plaintiff argues in opposition that defendant failed to establish the verification requests were timely and properly mailed, or at least a triable issue of fact remains as to such. Plaintiff further argues that defendant failed to establish that it complied with applicable No-Fault regulations by mailing its [*2]verification requests to both plaintiff and plaintiff’s attorney and that defendant has failed to demonstrate a “good reason” for delaying plaintiff’s claim.

Discussion

On a motion for summary judgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor, without the need for a trial (CPLR 3212; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If the proponent fails to make out its prima facie case for summary judgment, however, then its motion must be denied, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Ayotte v Gervasio, 81 NY2d 1062 [1993]).

Granting a motion for summary judgment is the functional equivalent of a trial, therefore it is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). The court’s function on these motions is limited to “issue finding,” not “issue determination” (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

Pursuant to the No-Fault regulations, generally, an insurer must pay or deny a claim for medical services within 30 calendar days after proof of the claim is received (11 NYCRR 65-3.8 [a] [1]). However, an insurer may toll the 30-day period to pay or deny a claim by requesting additional verification to establish proof of the claim within 15 business days of receipt of the claim (11 NYCRR 65-3.5 [b]). If the insurer has not received the requested verification within 30 days of the initial request, then it “shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call or by mail. At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” (11 NYCRR 65-3.6 [b]).

An insurer shall not issue a denial of claim form prior to its receipt of verification of all relevant information requested by the insurer (11 NYCRR 65-3.8 [b] [3]; see Omega Diagnostic Imaging, P.C. v MVAIC, 32 Misc 3d 128(A) [App Term, 1st Dept 2011]). However, pursuant to 11 NYCRR 65-3.5(o), an insurer may deny the claim after 120 calendar days if the party from whom verification is requested does not provide all the requested verification under its control or possession, or written proof providing reasonable justification for its failure to comply.

The information sought in a verification request “must have some rational relationship to the specific claims” (see Medical Supply of NY Direct Servs. Corp. v State Farm Ins. Co., 88 Misc 3d 1252(A) [Civ Ct, Richmond County 2026]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 9th & 10th Jud Dists 2007]). At the outset, the Court rejects Baldwin’s argument that Maya lacked a good reason for seeking the requested information. An NF-3 signed by the provider and proof of assignment from Ms. Lopez are plainly rationally related to the claim and facially reasonable given the claim form submitted by SGA PLLC lacked the relevant information.

However, for an insurer to succeed on a motion for summary judgment based upon the failure to respond to verification requests, there must be evidence the requests were sent and that the party failed to provide the information and failed to provide any reasonable justification for noncompliance (Burke Physical Therapy P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143(A) [App Term, 2d Dept, 9th & 10th Jud Dists 2022]). Proof that a letter was properly mailed creates a rebuttable presumption that the letter was received by the addressee (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). One way such proof can be established is through proof of office practices and procedures that ensure items are properly addressed and mailed (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2d Dept 2006]).

Defendant submitted the affidavit of Ryan Donnelly, a claims adjuster employed by Maya as proof of its mailing practices. Mr. Donnelly states that he has been employed by Maya since February 8, 2021, and that it is his duty to ensure compliance with the procedures described in his affidavit (see Affidavit of Ryan Donnelly, ¶ 16).

The Court finds that no presumption of mailing is created for the 7/7/22 verification request. Mr. Donnelly’s affidavit does not describe the office’s mailing practices and procedures applicable to the initial request. While Mr. Donnelly is the person who prepared both verification requests and his affidavit details Maya’s office mailing practices and procedures for the second additional verification request dated 8/5/22 (see Affidavit of Ryan Donnelly, ¶ 10 [NYSCEF Doc. No. 10]), Mr. Donnelly does not state that the same procedures were followed with respect to mailing of the initial request, describe what standard mailing practices were in place on the relevant date nor does Mr. Donnelly state that Maya followed uniform mailing practices during the relevant period.

Regarding the initial request, Mr. Donnelly states only that he “placed the window envelope containing the duplicate verification request letter in the ‘out’ box for the support department to process,” without detailing the steps taken by the support department to process the letter to ensure proper mailing and receipt (emphasis added). Moreover, the use of the word duplicate in relation to the first verification request is unexplained by Mr. Donnelly or defense counsel. Thus, Mr. Donnelly’s affidavit is insufficient to establish the presumption of mailing with respect to defendant’s initial verification request.

Further, even if Donnelly’s affidavit were sufficient, the NF-10 states that the first verification request was sent on 7/8/22, not 7/7/22 as Maya contends. This inconsistency itself raises a triable issue of fact as to when the first verification request was mailed.

Therefore, the Court finds that Maya failed to meet its burden of establishing its prima facie defense that it timely and properly mailed its requests for additional verification, thereby tolling the 30-day period in which to pay or deny plaintiff’s claim.

Baldwin’s remaining arguments

Having determined that Maya has not proven its timely and proper mailing of the [*3]verification requests, the Court will address Baldwin’s remaining argument that the additional verification was not properly sent to both Baldwin and its attorney. Plaintiff cites 11 NYCRR 65-3.6 (b), which requires the insurer to follow up with the party from whom the verification was requested, either by telephone call or by mail, and “[a]t the same time inform the ‘applicant’ and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested” (see e.g. Doshi Diagnostic Imaging Services v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d Dept, 9th and 10th Jud. Dists. 2007]). As the Court explained in Doshi, “[w]here verification is sought from a party other than the applicant, the applicant is entitled to be timely informed of the nature of the verification sought and from whom it is requested when, after an initial verification request remains unsatisfied, a follow-up request is necessary.”

Plaintiff’s counsel misconstrues 11 NYCRR 65-3.6 (b), which does not stand for the proposition that Maya’s verification requests were not properly sent because they were not separately sent to both Baldwin and SGA PLLC. This No-Fault regulation only requires notice to the applicant (the party seeking payment on a claim) and its attorney where the verification request is sent to a third party, not where the verification request is sent to the applicant itself (GNK Medical Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138(A) [App Term, 1st Dept 2012]). Here, the verification request was directed to Baldwin, through its attorney, who had filed the claim. Nor does section 65-3.6 (b) require Maya to send two separate verification requests to both Baldwin and its attorney when Baldwin’s claim was filed by its attorney who clearly stated in the 6/15/22 letter that it was retained by Baldwin in connection with the underlying claim. This Court is unaware of any other court that has reached such a holding, and such a requirement would be manifestly unfair where it is not only undisputed that Baldwin did not respond to Maya’s verification requests, but Baldwin does not claim any prejudice resulting from Maya sending its verification requests to Baldwin’s attorney.

Baldwin’s attorney clearly put Maya on notice that it was the agent for Baldwin with respect to the claim submitted and thus “sending the verification request to the attorneys was the same as sending the request to the principal,” regardless of whatever directions Baldwin’s attorney puts in their pro forma letters (Lenox Hill Radiology v Global Liberty Ins. Co. of NY, 20 Misc 3d 434 [Civ Ct, NY County 2008] quoting Bauer v CS-Graces, LLC, 48 AD3d 922 [3d Dept 2008] [“The law is well settled that, unless obtained confidentially, ‘knowledge acquired by an agent acting within the scope of [their] agency is imputed to [their] principal and the latter is bound by such knowledge'”]).

Moreover, “[a]ny confusion on the part of the plaintiff as to what was being sought should have been addressed by further communication, not inaction” (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept 1999]; see also Advantage Radiology, P.C. v Nationwide Mut. Ins. Co., 55 Misc 3d 91 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). Therefore, plaintiff’s argument that Maya’s denial was improper because copies of Maya’s verification requests were not sent to both Baldwin and Baldwin’s attorney is rejected. Thus, it remains for trial to determine whether Maya timely and properly mailed its verification requests. If that defense is proven, then this action was prematurely commenced since Maya’s verification requests were still outstanding at the time Baldwin filed its summons and complaint.

[*4]Conclusion

In accordance herewith, it is hereby

ORDERED that defendant’s motion for summary judgment is denied.

This action is ready for trial and remains on the Court’s calendar for a virtual appearance on September 9, 2026 at 11:00AM.

Any requested relief not expressly addressed herein has nonetheless been considered and is hereby denied.

This constitutes the decision and order of the Court.

Date: 08/19/2026

Hon. Eric J. Wursthorn

Civil Court Judge (NYC)

Syed Asim Maqsood Med. PC v MVAIC (2026 NY Slip Op 51401(U))

Reported in New York Official Reports at Syed Asim Maqsood Med. PC v MVAIC (2026 NY Slip Op 51401(U))

Syed Asim Maqsood Med. PC v MVAIC

2026 NY Slip Op 51401(U) [89 Misc 3d 1256(A)]

Decided on August 18, 2026

Civil Court of the City of New York, Kings County

Sandra E. Roper, J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Kings County

Decided on August 18, 2026

Index No. 747951/21

Sandra E. Roper, J.

[*1]

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

Papers

Notice of Motion and Affidavits Annexed 1

Answering Affidavits 2

Replying Affidavits 3

Upon the foregoing cited papers and after oral argument, Defendant’s Motion for Summary Judgment is granted to the following extent:

Defendant failed to meet its burden for judgment as a matter of law for non-receipt of alleged bills: DOS 3/31/21, 5/19/21 and 6/23/21, each in the amount of $367.92. Defendant failed to provide affidavits of its business practices and procedures as to receipt of bills by fax transmission. Defendant is correct as it argues that it is not subject to 11 NYCRR 65-3.5 (k) requiring “Every insurer, which writes more than 1,000 motor vehicle liability policies in this state, shall establish procedures for the receipt of all claims, notices and verification, subject to this Part, by facsimile and/or electronic data transmittal.” Nevertheless, Plaintiff proffered [*2]affidavits of fax transmissions of those purported bills to the conceded Defendant’s fax number is sufficient to defeat Defendant’s judgment as a matter of law, herein. It is of no moment that the bills subject to the defense of non-receipt were not appended thereto. The mere proffer by Plaintiff of its affidavits of bill submission by fax transmission established that Defendant received bill submissions by fax and thus was mandated to provide affidavits of its business practices and procedures as to faxed bill submissions and receipt. Or, alternatively, provide affidavits that Defendant business policy and procedure did not accept bill submissions by fax nor any other electronic vehicle but solely by mail. Defendant did neither. Moreover, where the defense is non-receipt of bill, it is incumbent on Defendant as movant to proffer affidavits of its exhaustive business practices and procedures for submission and receipt of bills in full by any and all methods, by mail, by any and all electronic vehicles, including fax transmissions. In this instant matter, Defendant failed to so do. Rather, Defendant solely proffered affidavit of receipt of bills by mail, but not by fax nor any other electronic means, which is not exhaustive. Thus, Defendant failed to meet its burden for judgment as a matter of law, obviating the shifting of the burden to Plaintiff to meet the burden of rebuttal.

Notably, Plaintiff’s argument that its proffered affidavits of bill submission by fax proves that the bills at issue were submitted timely is rejected. Although its affidavits are sufficient to defeat Defendant’s judgment as a matter of law, arguendo if there had been a shifting of the burden to rebut to the Plaintiff, its barebones affidavit without attachment of the actual bills at issue would have failed to satisfy its shifted burden. It is untenable to allege that the purported bills are being referenced within multi-paged faxed documents and intentionally omitted to include the actual bills at issue in any of its opposition papers. The bill is the sine quanon of any No-Fault case. The only entity that has access to the bill is the Plaintiff in a non-receipt of bill case, not the Defendant nor This Court. The burden is upon Plaintiff seeking reimbursement of fees for services to produce its bills at issue in a non-receipt case in its earliest of pleadings and not amorphously allude to bills cloaked in mystery. Such self-defeating litigation tactics and strategy provide legitimacy to Defendant’s argument as to the non-existence of the alleged bills. Thus, these alleged three bills premised on non-receipt shall proceed to Trial as to the submission and receipt of the bills.

Further, in connection with the remaining bills at issue: the bill for DOS 10/5/20, Plaintiff acknowledges payment in the amount of $203.76, reducing the amount in dispute for that bill to $870.33. For bill for DOS 11/25/20, Plaintiff acknowledges payment in the amount of $87.80, reducing the amount in dispute for that bill to $802.31. For bill for DOS 12/23/20, Plaintiff acknowledges payment in the amount of $87.80, reducing the amount in dispute to $280.12. For bill for DOS 1/20/21, Plaintiff acknowledges payment in the amount of $87.80, reducing the amount in dispute to $280.12. For bill for DOS 2/24/21, Plaintiff acknowledges payment in the amount of $87.80, reducing the amount in dispute to $280.12. As for the bill for DOS 11/2/20, the amount at issue remains $2,115.92. As to those six bills, both parties have established their respective prima facie cases. Through the rebuttal affidavit of Dr. Pervaiz Qureshi submitted by Plaintiff, a question of fact for Trial exists regarding the medical necessity of the services rendered for those six bills.

This constitutes the decision and order of the Court.

DATE August 18, 2026

HON. SANDRA E. ROPER

Parisien v ZipCar c/o Corp. Serv. Co. (2026 NY Slip Op 26130)

Reported in New York Official Reports at Parisien v ZipCar c/o Corp. Serv. Co. (2026 NY Slip Op 26130)

Parisien v ZipCar c/o Corp. Serv. Co.

2026 NY Slip Op 26130

Decided on August 7, 2026

Civil Court of the City of New York, Kings County

Javier Ortiz, J.

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

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

Civil Court of the City of New York, Kings County

Decided on August 7, 2026

Index No. CV-744763-18/KI

Javier Ortiz, J.

[*1]

Recitation as required by CPLR § 2219 [a], of the papers considered in review of Defendant’s motion for a directed verdict:

Papers Numbered

D’s Motion & Affirmation 51

P’s Memorandum of Law in Opposition 52

After trial proceedings held on February 9, 2026, and upon the foregoing cited papers submitted after trial proceedings concluded, the Decision and Order on Defendant Zipcar c/o Corporation Service Co.’s (“Zipcar”) motion for a directed verdict is as follows:

On or about September 27, 2018, Plaintiff Jules Francois Parisien, M.D. A/A/O Daniel Jones (“Parisien”) commenced this action for failure to pay No-Fault benefits and demanded $2,836.94, statutory interest, attorneys’ fees, costs, fees, and disbursements. Zipcar answered and [*2]issued discovery demands on or around February 28, 2019. The parties both moved for summary judgment. On October 19, 2021, the Honorable Nicholas W. Moyne granted Plaintiff’s motion only to the extent that Plaintiff had established its prima facie case for all purposes. Judge Moyne denied Defendant’s motion on the grounds that a Declaratory Judgment order issued by Justice Gerald Lebovits of the New York County Supreme Court under Index Number 150666/2015 was ambiguous regarding whether it applied to this action. The parties filed numerous other motions, but those motions were all ultimately withdrawn or denied. A notice of trial was filed on or about December 9, 2021.

The trial in this matter was assigned to Part 67 in December 2025. The parties submitted numerous trial exhibits to the Court. On December 30, 2025, I ordered a briefing schedule on a motion in limine that Plaintiff sought in order to preclude Defendant from introducing any declaratory judgment order at trial based on Judge Moyne’s order pertaining to the order issued by Justice Lebovits. That motion in limine was briefed in January 2026. On January 16, 2026, Parisien filed a trial memorandum pertaining to the October 22, 2021 declaratory judgment order of Justice Phillip Hom of the Supreme Court, New York County (“Justice Hom DJ Order”). On January 30, 2026, Defendant filed a trial memorandum discussing the Justice Hom DJ Order.

On February 4, 2026, this court held a virtual bench trial. At trial, Parisien presented Judge Moyne’s decision and order holding that Plaintiff had established their prima facie case for all purposes and rested. Defendant then offered the Justice Hom DJ Order. Plaintiff objected. Zipcar then orally moved for a directed verdict. Parisien opposed. A briefing schedule was set. Defendant filed a motion for a directed verdict to which Plaintiff objected.

For the following reasons, Defendant’s motion is GRANTED.

On or about February 7, 2019, an action was commenced in Supreme Court, New York County against Parisien, assignor Jones, and others under index number 151339/2019. The plaintiff in that action is “PV Holding Corp. including all of its subsidiaries and affiliates, including but not limited to . . . Zipcar, Inc.” On or around January 30, 2020, the plaintiff in that action, PV Holding Corp. (“PV”) filed a motion for a declaratory judgment against most of the named defendants in that action, including Parisien and assignor Jones. On April 23, 2020, the Honorable Kathryn E. Freed, J.S.C. denied that motion with leave to renew. PV then moved to reargue that motion. On October 22, 2021, upon re-argument, Justice Hom granted that motion, holding that “a default judgment against the medical provider[s] . . . acting as assignees for . . . Jones based on their failure to appear for [examinations under oath (EUOs)] and . . . there is no No-Fault coverage for their alleged claims involving the May 13, 2018 collision under Avis Claim Number 188021493.” That collision date and claim number are the same as alleged by Plaintiff here.

At trial, Defendant offered the Justice Hom DJ Order as its sole piece of evidence. This Court, over Plaintiff’s objection, took judicial notice of the decision and admitted it into evidence.

Defendant now moves for a directed verdict on the grounds that Parisien’s claims are barred under the doctrines of res judicata and collateral estoppel. Plaintiff opposes, arguing that Defendant failed to meet its burden of proof. Plaintiff maintains that this Court may not consider the Justice Hom DJ Order in determining the outcome of the present motion because Plaintiff says that it is inadmissible, irrelevant, improperly before the Court, and — if admitted it in evidence — ineffective.

Standard of Review

CPLR 4401 provides:

Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue, or at any time on the basis of admissions. Grounds for the motion shall be specified. . .

Analysis

i. CPLR 4511(b)

Plaintiff argues that the motion for a directed verdict should be denied because Defendant failed to abide by the requirements of CPLR 4511(b), thereby precluding this Court from taking judicial notice of the Justice Hom DJ Order.

“Judicial notice of law is the name given to the commonsense doctrine that the rules of evidence governing admissibility and proof of documents generally do not make sense to apply to statutes or judicial opinions—which are technically documents—because they are presented to the court as law, not to the jury as evidence.” (MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69, 74, 2011 NY Slip Op 21480 [App Term, 2d Dept 2011], quoting Getty Petroleum Mktg., Inc. v Capital Term. Co., 391 F3d 312, 322 [1st Cir. 2004].) CPLR 4511(b) states that a court shall take judicial notice of specified matters “if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. Notice shall be given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice.” (CPLR 4511(b); see also Edwards v Erie Coach Lines Co., 17 NY3d 306, 328 [2011] [finding that judicial notice was properly taken by the lower court where these conditions were complied with].)

In advance of trial, Defendant requested that the Court take judicial notice of the Justice Hom DJ Order, provided sufficient information to the Court, and noticed Parisien pre-trial in its motion in limine papers of its intent to use the order at trial. Therefore, the Court finds that Defendant complied with all requirements of CPLR 4511(b) and that notice was proper.

ii. Judicial Notice of an order from separate action.

Plaintiff argues that although this Court took judicial notice of the Justice Hom DJ Order, it is not admissible evidence. This argument is without merit. There has been no showing that the Justice Hom DJ Order is hearsay, opinion, or was disputed. Also, this is not a mere document present in the court file: it is a judicial decision. Additionally, Plaintiff has not disputed any of the factual findings made in the Justice Hom DJ Order. Justice Hom held that there is no No-Fault coverage for Parisien regarding the same transaction and occurrence that gave rise to the present action on the grounds that the relevant parties failed to appear for their EUOs. That decision clearly resolves all issues contested in this matter.

iii. Collateral Estoppel & Res Judicata

Plaintiff argues that the elements of collateral estoppel and res judicata have not been [*3]established. These arguments are also without merit.

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter.” (In re Hunter, 4 NY3d 260, 269 [2005].) Importantly here, “a judgment by default that has not been vacated is conclusive for res judicata purposes and encompasses the issues that were raised or could have been raised in the prior action.” (Matter of Hereford Ins. Co. v Shelly, 242 AD3d 986, 987 [2d Dept 2025].) Additionally, res judicata “is applicable to an order or judgment entered upon default that has not been vacated . . . .” (Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2d Dept 2006] [emphasis added]; see also Kerisli Chiropractic, P.C. v Am. Tr. Ins. Co., 61 Misc 3d 1004, 2018 NY Slip Op 28325 [Civ Ct, Kings County 2018] [“An order specifying the court’s declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default.”)

Meanwhile, as for collateral estoppel:

Collateral estoppel, or issue preclusion, is a corollary to the doctrine of res judicata and bars the relitigating of an issue which was actually and necessarily previously decided in a prior proceeding . . . . The issue must have been essential to the decision rendered in the first action and must be the point to be decided in the second action such that a different judgment in the second would destroy or impair rights or interests established in the first.

The proponent of collateral estoppel must show that (1) there was a full and fair opportunity to contest the decision that is alleged to be dispositive in the present action and (2) the issue in the present proceeding is identical to that decided in the present proceeding.

(Psychology YM P.C. v Travelers Prop. Cas. Ins. Co., 33 Misc 3d 1201(A), 2011 NY Slip Op 51744(U) [Civ Ct, Kings County 2011] [citations and internal quotations omitted].)

Here, Zipcar invokes res judicata and collateral estoppel against Plaintiff based upon the Justice Hom DJ order, which was decided on default and held that Plaintiff my not recover no-fault benefits for its or its assignors’ failing to appear for EUOs, a breach of a condition precedent under the applicable motor vehicle policy. Justice Hom’s decision holds that there is no no-fault coverage available for the collision at issue here.

Plaintiff argues that an issue is not “actually litigated” where the prior determination was issued upon a default. However, a “Supreme Court judgment is a conclusive final determination, notwithstanding that it was entered on default . . . , since res judicata applies to a judgment taken by default that has not been vacated.” (Altercare Acupuncture, P.C. v Utica Mut. Ins. Co., 32 Misc 3d 1239(A), 2011 NY Slip Op 51639(U) [Civ Ct, Kings County 2011]; see also Matter of Hereford, 242 AD3d at 987; Yardeny v Jordan, 118 AD3d 985, 985 [2d Dept 2014] [finding res judicata applicable where a default judgment was entered in a prior action]. Parisien has not moved to reargue, vacate, or appeal the Justice Hom DJ Order. In fact, no further litigation has ensued after Zipcar filed the Justice Hom DJ Order with notice of entry and affidavit of service on October 25, 2021. The “Case Status” in the Supreme Court action is marked as “Disposed.”

Further, to the extent there is any doubt that Plaintiff here had a full and fair opportunity to contest the Supreme Court decision, in that action, Parisien and assignor Jones were served with the summons and complaint as well as all relevant motions. Justice Freed specifically found that Parisien and assignor Jones “were served with process but failed to answer or otherwise appear in the matter.”

Plaintiff also points to some appellate term decisions that hold that a declaratory judgment order cannot be considered a conclusive final determination if such order does not “make a statement declaring the rights of the parties involved.” (Active Chiro., P.C. v 21st Century Ins. Co., 58 Misc 3d 156(A), 2018 NY Slip Op 50200(U) [App Term, 2d Dept 2018]; Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co., 50 Misc 3d 128(A), 2015 NY Slip Op 51886(U) [App Term, 2d Dept 2015].) However, as discussed above, the Justice Hom DJ Order does declare the rights of the parties involved and specifies that Plaintiff and its assignor here are not entitled to no-fault benefits on account of failure to attend EUOs. The situation presented here is just like the one before the Kings County Civil Court in Kerisli Chiropractic, P.C. v Am. Tr. Ins. Co., where this Court found:

In the instant no-fault action, contrary to Active Chiropractic P.C. and Promed Orthocare Supply Inc., the Supreme Court’s declaratory judgment order determines the rights of the parties and is thus preclusive as a final order. The Supreme Court’s order recites the specific declaratory relief requested by the insurer, and grants the motion on default, leaving no ambiguity as to the substance of the court’s declaration.

(61 Misc 3d at 1004.)

Accordingly, the Court finds that res judicata and collateral estoppel apply to the Justice Hom DJ Order and that Plaintiff’s claims are barred.

iv. Judgment Entered — CPLR §§3001, 5011, and 5016

Plaintiff also makes a related argument that the Justice Hom DJ Order should have no preclusive effect because it is not a final, entered judgment. Plaintiff’s argument is without merit. While an action is not concluded until a final judgment is entered, a decision granting a declaratory judgment which makes a statement declaring the rights of the parties has a preclusive effect even if it is an order and not final judgment, as discussed immediately above. (See Eagle Ins. Co. v Facey, 272 AD2d 399, 400 [2d Dept 2000].) Furthermore, “[t]he general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations” (Walsh v Andorn, 33 NY2d 503, 507 [1974].) The Justice Hom DJ Order clearly holds that Parisien has no right to recover for the claims asserted here.

v. Law of the Case

Parisien further argues that Judge Moyne’s 2021 decision and order is the law of the case and that, consequently, Defendant is prohibited from ever again arguing that Plaintiff’s claims are barred by the doctrines of res judicata and collateral estoppel. The Court disagrees.

The “law of the case doctrine operates to foreclose re-examination . . . absent a showing of subsequent evidence or change of law” (J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d 809, 809 [2d Dept 2007].) Importantly, the law of the case doctrine is secondary to res judicata and collateral estoppel: “Unlike res judicata (claim preclusion) and collateral estoppel (issue preclusion), which apply rigid rules of limitation after judgment and are codified, ‘law of the case’ is a judicially crafted policy that expresses the practice of courts generally to refuse to reopen what has been decided; as such, it is necessarily ‘amorphous’ in that it directs a court’s [*4]discretion, but does not restrict its authority.” (People v Evans, 94 NY2d 499, 500 [2000]; see also Frankson v Brown & Williamson Tobacco Corp., 67 AD3d 213, 218 [2d Dept 2009] [“while the law of the case doctrine is intended to foster orderly convenience, it is not an absolute mandate . . .”].)

Defendant’s motion here is based on a New York County Supreme Court decision from an action separate and apart from the Supreme Court action and decision reviewed by Judge Moyne. The Justice Hom DJ Order explicitly addresses the parties and claims presented here. The Court finds that Judge Moyne’s earlier decision in this matter does not prevent the otherwise applicable principles of res judicata and collateral estoppel from applying generally. Accordingly, Plaintiff’s argument here fails.

Conclusion

For the foregoing reasons, Defendant’s motion is GRANTED.

Accordingly, it is ordered that judgment is granted in favor of Defendant and against Plaintiff.This case is hereby dismissed.

This constitutes the Decision and Order of the Court.

Date: August 7, 2026

Brooklyn, NY

Hon. Javier Ortiz, JCC

AAPS Med. Supply Corp v Liberty Mut. Fire Ins. Co. (2026 NY Slip Op 51283(U))

Reported in New York Official Reports at AAPS Med. Supply Corp v Liberty Mut. Fire Ins. Co. (2026 NY Slip Op 51283(U))

AAPS Med. Supply Corp v Liberty Mut. Fire Ins. Co.

2026 NY Slip Op 51283(U) [89 Misc 3d 1247(A)]

Decided on August 5, 2026

Civil Court of the City of New York, Richmond County

Robert J. Helbock, J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Richmond County

Decided on August 5, 2026

Index No. CV-784563-24/RI

Robert J. Helbock, J.

[*1]

Upon the foregoing cited papers, the decision on Defendant’s motion to stay the trial scheduled in this matter is as follows:

AAPS Medical Supply Corp. (hereafter referred to as “Plaintiff”), as assignee of Daquon Gore (hereafter referred to as “Assignor”), commenced this action against Liberty Mutual Fire Insurance Company (hereafter referred to as “Defendant”), to recover assigned first-party automobile insurance (hereafter referred to as “No-Fault”) benefits for medical treatment provided to the Assignor pursuant to a No-Fault insurance policy issued by the Defendant.

The bill at issue, in the amount of $3,301.10, relates to medical supplies provided to the assignor on December 5, 2023. The Defendant issued a denial of the bill for the supplies on May 4, 2024 on the grounds that:

“Claim has been denied due to fraud. Further denial details will follow under separate cover. Therefore, all No-Fault benefits for the above applicant are denied effective 10/23/2023.”^FN1

The explanation provided on the “Explanation of Review” dated June 11, 2024 that was submitted with the NF-10 stated:

“All No-Fault benefits to this claimant are denied. Liberty mutual’s investigation has revealed false information submitted in support of this claimant’s claim revealing misrepresentations of material facts. Per the policy, Fraud ‘we do not provide coverage for any insured (“insured’) who has made fraudulent statements or engaged in fraudulent conduct in connection with any loss (“loss”) or damage for which coverage is sought under this policy.’ Accordingly, the claim is denied in its entirety.”^FN2

The summons and complaint were filed by the Plaintiff with the Clerk of the Court on December 4, 2024. The Defendant’s answer was filed on December 30, 2024, alleging inter alia, “The eligible injured parties breached the policy of insurance by making material misrepresentations in the presentation of the claim.”^FN3

The Plaintiff served and filed the Notice of Trial on June 27, 2025. The Defendant filed a motion for summary judgment on October 22, 2025. A motion briefing order was issued by the [*2]Court and the matter was adjourned to February 19, 2026 for the argument of the motion for summary judgment. After the argument, the decision on the motion was issued from the bench subject to an order settled by the parties. The Court’s Order, dated March 16, 2026, ruled there was insufficient evidence, in a form admissible at trial, to support a finding of judgment as a matter of law (CPLR §3212). The order was served on the parties via NYSCEF on March 18, 2026.

In the interim, the matter appeared on the Part 58 Trial calendar for conference on February 11, 2026. The parties were given a trial date of March 23, 2026, subject to the outcome of the pending summary judgment motion.

On December 10, 2025, the Defendant filed a lawsuit in Supreme Court, Nassau County, titled Liberty Mutual Fire Insurance Company v. Chelsee Ann Shanya Sutherland et. al. (hereafter referred to as “Liberty Mutual v. Sutherland“) (Index #626589/2025), seeking a declaration that Liberty Mutual is not responsible for payments under the No-Fault policy due to alleged misrepresentations by the “Individual Defendants.” The Plaintiff was named among those parties labeled “Healthcare Provider Defendants,” and the Assignor was named among those parties labeled “Individual Defendants.”^FN4

On March 20, 2026, the Friday before the scheduled trial on Monday March 23, 2026, the Defendant filed a motion by order to show cause in this N.Y.C. Civil Court action seeking relief:

“Pursuant to CPLR §§2201 and 6301, immediately staying the instant action entitled AAPS Medical Supply Corp., as assignee of Daquon Gore v. Liberty Mutual Fire Ins. Co. (Index No. CV-784563-24/RI), including, but not limited to, any trials, settlement conferences, motions, or any other matters, pending the hearing and resolution of the declaratory judgment action entitled Liberty Mutual Fire Insurance Company v. Chelsee Ann Shanya Sutherland, et. al. in the Supreme Court of the State of New York, county of Nassau, 626589/2025.^FN5

The relief requested would stay the trial in this matter re-scheduled for September 8, 2026.

Discussion

The affirmation by Steven Daniel Levy, Esq., in support of the motion, sets forth the sum and substance of the Defendant’s investigation and relies on the conclusions reached by the Defendant’s investigator, Amanda Semmel. Her affidavit, sworn to on October 21, 2025,^FN6 deduces that the Assignors made material misrepresentations regarding the policy.

Mr. Levy’s affirmation states that upon the completion of the investigation, the Defendant commenced the Declaratory Judgment action in Liberty Mutual v. Sutherland. The Court finds this statement to misrepresent the timing of the declaratory judgment action since that action was not filed until nearly 18 months after the Explanation of Review stated the results of the investigation revealed the alleged fraud. The Defendant’s motion does not include any [*3]representation or evidence to show any further investigation took place between June 11, 2024 (the date of the Explanation of Review) and December 10, 2025 (the date the declaratory judgment was filed).

The Court finds the timing relevant since many of both the Plaintiff’s and the Court’s resources were employed by the Defendant during this period. A declaratory judgment action and a motion for a stay filed in December of 2025 would have timely preserved those judicial resources. Instead, the Defendant delayed until the business day before the scheduled trial and seeks the remedy to prevent an “undue burden” to the Defendant.

Furthermore, the Defendant’s order to show cause also seeks equitable relief, namely a preliminary injunction pursuant to CPLR §6301. Mr. Levy’s affirmation contends that the Defendant can show immediate and irreparable injury, loss or damages unless the defendant is restrained before a hearing can be held. However, the Defendant’s motion does not address the jurisdiction of the N.Y.C. Civil Court to issue such an injunction in accordance with the N.Y.C. Civil Court Act. The Appellate Term has ruled that the N.Y.C. Civil Court “may not grant injunctive relief” (Green Lakeside Manor Home for Adults, Inc. 30 Misc 3d 16 [App Term, 2d Dept., 2010]; citing, Topaz Realty Corp. v. Morales, 9 Misc 3d 27, 28 [App Term, 2d &11th Jud. Dists., 2005]). Issuing preliminary injunctions is not one of the remedies authorized by the N.Y.C. Civil Court Act (CCA §§202, 203.). Therefore, while the Court is authorized to stay a proceeding in its court (CPLR §2201), it cannot issue any preliminary injunction. The Defendant would have to request that relief from the New York State Supreme Court (CPLR §6301).

The affirmation in support of the motion requesting a preliminary injunction expresses confidence in the defense’s success in proving the Assignor’s fraudulent acts sufficient to warrant precluding any recovery under the policy. However, the Defendant does not provide any justification why it cannot prove such a defense during a trial in the N.Y.C. Civil Court. The affirmation of Mr. Levy makes the conclusory statement that “litigating the underlying matter would create an undue burden on Liberty Mutual and create a multiplicity of decision relating to the issue of coverage.”^FN7 The motion does not present any evidence or testimony that explains what the undue burden is.

The Defendant does not provide the Court with the captions or index numbers of any other actions or arbitrations pending between the parties, other than the declaratory judgment. While the Court knows that, generally, claims that are made pursuant to No-Fault insurance policies arising from motor vehicle accidents involve multiple demands for payment by healthcare providers, the Court cannot make an assumption that there are a “multiplicity of other cases” pending involving this assignor when evaluating the request for a stay. The Defendant has named multiple parties (other than the Assignor) and listed multiple claim numbers in the declaratory judgment action but did not provide any information regarding other pending N.Y.C. Civil Court cases in this motion or in the declaratory judgment pleading. Therefore, the argument that litigating THIS matter would result in a multiplicity of decisions involving the other parties to the declaratory judgment action is an exaggerated statement without any foundation.

The Defendant’s motion also makes no mention of the prejudice to the Plaintiff by the [*4]request to stay this trial. The Defendant issued a delay letter dated January 19, 2024 acknowledging receipt of the Plaintiff’s bill and notifying the Plaintiff the bill was not being paid subject to the Defendant’s investigation. The Plaintiff has waited 2 years and 6 months to resolve the outstanding bill and now, based upon the Defendant’s argument, would wait indefinitely while the declaratory judgment action proceeds from initial filing to its conclusion.

In addition, the Defendant did not provide any explanation regarding the delay in applying for the stay until the day before the trial in this matter. The bill in this matter was denied on June 4, 2024 due to alleged “misrepresentations” in this claim determined by the Defendant’s investigation. Therefore, the Defendant knew of its defense of alleged fraud and did not file the declaratory judgment until nearly 18 months later, after the Defendant completed motion practice in this matter. It waited to move for the stay of the proceeding until the business day before the trial. The Defendant wasted the Court’s time by delaying its motion to stay the proceeding and should not benefit from the intentional delay.

This Court must weigh the due process to be afforded to the Plaintiff against the burden of defending the action and the serious nature of the allegations by the Defendant. Both parties have the right to have their claim heard by the Court in a timely manner. If the trial were to proceed in the N.Y.C. Civil Court action, the Defendant can still raise and prove its fraud defense. The Defendant has not offered an argument to suggest otherwise.

The matter before the bar involves one transaction between the parties. The Defendant’s motion alleges that the motor vehicle accident at issue was the “product of an intentional act” and that [the Assignor] intentionally materially misrepresented the facts of the subject incident in furtherance of the fraudulent scheme to obtain pecuniary gain at the expense of insurance companies and the public at large.”^FN8 As a result, the Defendant contends it is not responsible for the payment of the Plaintiff’s bill. The declaratory judgment alleges a far greater conspiracy involving multiple parties and much more than one bill. The Defendant has not identified a single other matter that is pending trial. Therefore, the Court finds the Defendant did not define, nor does the Court foresee, the irreparable harm alleged by trying this one claim.

The Defendant unjustifiably relies on the Appellate Division’s decisions in Agway Insurance v Alvarez, 258 AD2d 487 [2d Dept., 1000]) and Hout v Coffman, 126 AD2d 973 [4th Dept., 1987). The Court in Agway did not address the lower court’s stay of the trial, but rather affirmed the lower court ruling on other grounds. Therefore, the Defendant’s reliance upon that case is unfounded.

The Court in Hout v Coffman, id., affirmed the lower court’s stay of the underlying action pending the decision of the insurer’s duty to defend in that action, but found the lower court abused its discretion in staying the underlying action pending determination of the insurer’s duty to indemnify. In that matter, Colonial Cooperative Insurance Company was arguing that it did not have a duty to defend the party in the underlying lawsuit. The Appellate Division, Fourth Department affirmed the stay regarding the duty to defend because the litigation was premature, but there may be an issue of liability under the insurance policy that would invoke the duty to indemnify so that issue must proceed to litigation.

Compare that case to the Defendant in this case who is a party itself to the N.Y.C. Civil Court matter and argues to delay this action because if it is successful in the declaratory [*5]judgment action then its defense in the N.Y.C. Civil Court case will already be litigated. That is a different issue and standard altogether. There is a substantial distinction between the status of the insurer in Agway and Hout compared to the Defendant in this case. For these reasons, the Court does not find these cases are persuasive regarding the need for a stay of the trial in this matter.

The Defendant also argues that this Court has stayed or delayed trials in N.Y.C. Civil Court when there is a dispositive motion pending in the declaratory judgment action, therefore this case should also be delayed. While it is true that this Court has delayed litigation of Civil Court matters while awaiting a decision of a dispositive motion pending in a declaratory judgment action, there is no such motion pending in the declaratory judgment action at this time. In this instance, there is not a reasonable expectation of the amount of time that will pass before a decision is made in the declaratory judgment action. Therefore, the prejudice to the Plaintiff by delaying this litigation cannot be weighed against time for a decision in the declaratory judgment matter. This negates the Defendant’s argument.

Decision

The New York City Civil Court Act does not give this Court the jurisdictional authority to issue a preliminary injunction pursuant to CPLR §6301. Therefore, that portion of the Defendant’s motion must be denied.

Regarding the remainder of the motion, trial courts have broad discretion to stay their own proceedings (Merola v. Bell, 47 NY2d 985 [1979]). The Defendant’s motion for a stay did not provide any testimony or facts to support its allegation of an undue burden upon the Defendant. The Defendant has not justified the prejudice to the Plaintiff by seeking to stay this matter on the eve of trial for an indefinite period of time. The Court recognizes the serious nature of allegations of fraud raised by the defense in this matter, however, merely claiming fraud does not warrant delaying the trial. Rather, it justifies the opportunity to prove the defense.

Furthermore, the conclusory statement that proceeding in this matter may result in a multiplicity of decisions, is not persuasive when the Defendant did not produce any evidence of other cases pending. For these reasons, the Court finds the Defendant did not justify any basis to stay the trial.

Having considered the Defendant’s motion, its arguments and the applicable law, the Court finds a stay of the trial would contravene the Court’s obligation to promote the timely resolution of this case.

Accordingly, the Defendant’s motion to stay the trial is DENIED and the motion for a preliminary injunction is DENIED.

It is hereby:

ORDERED, that the trial of this matter is scheduled for September 8, 2026 at 9:30 A.M. via Microsoft TEAMS. All parties and witnesses may appear via TEAMS. Both parties are to pre-mark and upload all trial exhibits to NYSCEF no later than September 1, 2026 at 4:00 P.M. Any evidence received after that date and time may be subject to preclusion. Any request for a subpoena shall be filed with the Court no later than August 10, 2026. The Court will provide the parties with a separate video-conference link for the trial.

This is the decision and order of the Court.

Medical Supply of NY Corp. v State Farm (2026 NY Slip Op 51163(U))

Reported in New York Official Reports at Medical Supply of NY Corp. v State Farm (2026 NY Slip Op 51163(U))

Medical Supply of NY Corp. v State Farm

2026 NY Slip Op 51163(U) [89 Misc 3d 1235(A)]

Decided on July 28, 2026

Civil Court of the City of New York, Kings County

Sandra Elena Roper, J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Kings County

Decided on July 28, 2026

Index No. CV-719348-19/KI

Sandra Elena Roper, J.

[*1]

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

Papers

Notice of Motion & Aff Ann

Defendant’s MSJ:NYSCEF 4-14

Plaintiff’s Opp:NYSCEF 3

Defendant’s Reply: NYSCEF 15

Memoranda of Law: NYSCEF 17, 18

Upon the foregoing cited papers and pursuant to CPLR § 3212, the Decision and Order on Defendant’s Motion for Summary Judgment after oral argument is as follows:

Defendant’s motion for summary judgment is granted in its entirety, and Plaintiff’s complaint is dismissed with prejudice. Defendant demonstrated Plaintiff’s non-appearance at two duly scheduled EUOs, which Plaintiff failed to sufficiently rebut.

Plaintiff attempted to raise an issue of fact with respect to Defendant’s standard mailing procedure through three rebuttal affidavits submitted by Defendant in an unrelated matter. Plaintiff further submitted to the Court that the rebuttal affidavits were admissible pursuant to Wells Fargo Bank, N.A. v Ciurleo, 2025 NY Slip Op 07039 (2d Dep’t 2025) and could be used to impeach a witness on a prior inconsistent statement pursuant to CPLR § 4514. Plaintiff’s reliance thereto is misplaced.

In Wells Fargo, the plaintiff submitted an affidavit establishing possession of a mortgage note in order to demonstrate standing in a foreclosure proceeding. In response, the defendant submitted a lost note affidavit previously signed by the plaintiff related to the same exact property in order to defeat the plaintiff’s claim of standing. The Court accepted the extrinsic affidavit because it related to the same subject matter as the instant case (i.e. the plaintiff’s standing with respect to the same exact property at issue). Similarly, in Aspen Props. Grp., LLC v Santoro, 240 AD3d 839, 841, 241 NYS 3d 74, 76 (2025), the Second Department found that [*2]the summons and complaint from a prior action barred the plaintiff’s recovery in the present action because the document demonstrated that the same exact debt was at issue in both cases.

Here, Defendant satisfied its prima facie burden with its standard mailing procedure affidavits from Lisa Edwards to establish proof of mailing. Though the rebuttal affidavits proffered by Plaintiff may be admissible in form pursuant to CPLR § 3212 (b), they are irrelevant and insufficient to rebut that Defendant failed to mail the letters nor that the Provider or Assignee did not receive the letters. Plaintiff’s proffered rebuttal affidavits claiming inconsistent mailing procedures are for an unrelated case with a different set of facts and defenses – the instant case was predicated on EUO Non-appearance defense, while the Plaintiff’s proffered rebuttal affidavits were for defenses predicated upon wage claims, peer review claims, and “other” verification claims. Notably, when submitting the rebuttal affidavits, Plaintiff failed to append the pleadings and papers for the unrelated matter to authenticate the three affidavits.

Further, Plaintiff’s CPLR § 4514 argument is also rejected. Plaintiff admitted that the issue raised by the rebuttal affidavits was whether or not Defendant used Pitney Bowes Presort Services (“Pitney Bowes”) in order to impeach Defendant’s witness on a prior inconsistent statement. This purpose is explicitly prohibited by the Court of Appeals. In Badr v Hogan, 75 NY2d 629, 635, 554 NE2d 890, 893 (1990), the Court of Appeals prohibited the use of extrinsic evidence in order to impeach a witness on a collateral issue. There is no evidence before the Court that Pitney Bowes was used in the instant case to warrant the need of an affidavit from a Pitney Bowes representative. Moreover, Plaintiff failed to proffer direct evidence by affiant with personal knowledge that it did not receive the letters or denials at issue. Thus, the particular use of Pitney Bowes in relation to these letters and denials would be a collateral issue at best, making Plaintiff’s attempt to impeach the witness through these affidavits impermissible. Therefore, the Court rejects the rebuttal affidavits submitted by Plaintiff as meeting its shifted burden.

Insofar as Plaintiff has failed to provide admissible rebuttal evidence to bear its burden, the Court finds that Defendant has sufficiently met its prima facie burden for judgment as a matter of law, which is not rebutted. Thus, Plaintiff’s complaint is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Dated: July 28, 2026

Brooklyn, New York

Hon. SANDRA ELENA ROPER

Civil Court Kings County

Matter of Metropolitan Group Prop. & Cas. Ins. Co. v Newkirk (2026 NY Slip Op 04502)

Reported in New York Official Reports at Matter of Metropolitan Group Prop. & Cas. Ins. Co. v Newkirk (2026 NY Slip Op 04502)

Matter of Metropolitan Group Prop. & Cas. Ins. Co. v Newkirk

2026 NY Slip Op 04502 [251 AD3d 949]

Decided on July 22, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, September 9, 2026

July 22, 2026

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an insurance claim, Embark General Insurance Adjusters, LLC, appeals from (1) an order of the Supreme Court, Kings County (Loren Baily-Schiffman, J.), dated September 29, 2020, and (2) an order of the same court dated April 29, 2021. The order dated September 29, 2020, granted those branches of the amended petition which were to permanently stay arbitration and to add Embark General Insurance Adjusters, LLC, and John C. Chogllo as additional respondents in the proceeding and denied, as academic, that branch of the amended petition which was to temporarily stay arbitration pending discovery. The order dated April 29, 2021, insofar as appealed from, upon reargument, adhered to the prior determination in the order dated September 29, 2020.

Ordered that the appeal from the order dated September 29, 2020, is dismissed, as that order was superseded by the order dated April 29, 2021, made upon reargument; and it is further,

Ordered that the order dated April 29, 2021, is reversed insofar as appealed from, on the law, those branches of the amended petition which were to permanently stay arbitration and to add Embark General Insurance Adjusters, LLC, and John C. Chogllo as additional respondents in the proceeding are denied, and the matter is remitted to the Supreme Court, Kings County, for a new determination of that branch of the amended petition which was to temporarily stay arbitration pending discovery; and it is further,

Ordered that one bill of costs is awarded to the appellant.

The petitioner, Metropolitan Group Property & Casualty Co. (hereinafter Metlife), commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration [*2]of a claim by the respondent Tiffany Newkirk for uninsured motorist benefits in connection with a motor vehicle collision between Newkirk’s vehicle and a vehicle driven by the proposed additional respondent John C. Chogllo. The proposed additional respondent Embark General Insurance Adjusters, LLC (hereinafter Embark), which administered an insurance policy insuring Chogllo’s vehicle, opposed the amended petition. In an order dated September 29, 2020, the Supreme Court granted those branches of the amended petition which were to permanently stay arbitration and to add Embark and Chogllo as additional respondents in the proceeding and denied, as academic, that branch of the amended petition which was to temporarily stay arbitration pending discovery (hereinafter the September 2020 order). Embark moved for leave to reargue its opposition to the amended petition. In an order dated April 29, 2021, the Supreme Court, among other things, upon reargument, adhered to its prior determination (hereinafter the April 2021 order). Embark appeals from the September 2020 and April 2021 orders.

The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue that would justify the stay (see Matter of Government Empls. Ins. Co. v Sarmiento, 241 AD3d 1563, 1564 [2025]; Matter of Government Empls. Ins. Co. v Enriquez, 231 AD3d 724, 725 [2024]). Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing (see Matter of Government Empls. Ins. Co. v Enriquez, 231 AD3d at 725; Matter of Allstate Ins. Co. v Robinson, 188 AD3d 1186, 1188-1189 [2020]).

Pennsylvania law, which governs this action, gives an insurer a common-law right to rescind a policy of automobile insurance (see Erie Ins. Exch. v Lake, 543 Pa 363, 375, 671 A2d 681, 687 [1996]; Klopp v Keystone Ins. Cos., 528 Pa 1, 595 A2d 1 [1991]). The Pennsylvania Supreme Court has held, however, that while an automobile insurance policy may be retroactively rescinded as to an insured who has made a misrepresentation material to the acceptance of risk by the insurer, the policy may not be retroactively rescinded with respect to third parties “who are innocent of trickery, and injured through no fault of their own” (see Erie Ins. Exch. v Lake, 543 Pa at 375, 671 A2d at 687). Rescission of an insurance policy, as to third parties, has been precluded in instances beyond the 60-day period following the issuance of the policy (see Erie Ins. Exch. v Lake, 543 Pa at 375, 671 A2d at 687; Prime Ins. Syndicate v Philadelphia Motor World Auto Serv., 138 Fed Appx 436 [3d Cir 2005]).

Here, Embark’s submissions rebutted Metlife’s prima facie showing of a preliminary issue that would justify a stay. Embark established that it properly rescinded the policy at issue under Pennsylvania law with respect to Chogllo, based upon the material misrepresentations that Chogllo made in his application for insurance. Embark also established that such rescission was ab initio and occurred within the 60-day period after the issuance of the policy. As a result of that rescission, Newkirk was precluded from receiving protection under Embark’s policy (see Erie Ins. Exch. v Lake, 543 Pa at 375, 671 A2d at 687; Klopp v Keystone Ins. Cos., 528 Pa 1, 595 A2d 1), but she could seek coverage under Metlife’s policy insuring her own vehicle.

Accordingly, the Supreme Court should have denied those branches of the amended petition which were to permanently stay arbitration and to add Embark and Chogllo as additional respondents in the proceeding. Therefore, the court should not have denied, as academic, that branch of the amended petition which was to temporarily stay arbitration pending discovery. We remit the matter to the Supreme Court, Kings County, for a new determination of that branch of the amended petition. Duffy, J.P., Wooten, Landicino and Quirk, JJ., concur.

SCOB, LLC v Liberty Mut. Ins. Co. (2026 NY Slip Op 51484(U))

Reported in New York Official Reports at SCOB, LLC v Liberty Mut. Ins. Co. (2026 NY Slip Op 51484(U))

SCOB, LLC v Liberty Mut. Ins. Co.

2026 NY Slip Op 51484(U)

Decided on July 13, 2026

Civil Court of the City of New York, New York County

Wendy Changyong Li, J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, New York County

Decided on July 13, 2026

Index No. CV-708358-24/NY

Wendy Changyong Li, J.

[*1]

I. Recitation, as required by CPLR §2219(a), of the papers considered in review

of the Motion(s):

The following papers read herein: Numbered

Notice of Motion, Affidavit/Affirmation, and Exhibits 1

Affirmation in Opposition 2

II. Background

The matter at hand concerns a no-fault medical expenses incurred by Plaintiff, a healthcare provider arising from an automobile accident that occurred on January 26, 2023, where Plaintiff’s assignor, E. Boodhoo (“Assignor“) allegedly sustained injuries.

On December 18, 2024, Plaintiff commenced the instant action against Defendant by filing of a summons and complaint seeking to recover monetary damages in the amount of $5,971.11 plus statutory interest, statutory attorney’s fees, costs and disbursements. Defendant joined the action by interposing an answer. On March 3, 2025, Defendant moved pursuant to [*2]CPLR 3212 by motion for summary judgment to dismiss the complaint for Plaintiff’s alleged failure to appear for Independent Medical Examinations (hereinafter, “IME“) (“Motion #1“). Plaintiff opposed. Motion #1 was submitted and subsequently assigned to this Court for determination.

III. Discussion

To prevail on a motion for summary judgment, the movant must show that “there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law” (see Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007] quoting Winegrad v New York Univ Med Center, 64 NY2d 851, 853 [1985]; Ostrov v Rozbruch, 91 AD3d 147, 152 [1st Dept 2012]). The movant has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that there is no defense to the cause of action or that the cause of action or defense has no merit (CPLR 3212[b]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; see also Kershaw v Hospital for Special Surgery, 114 AD3d 75, 81-82 [1st Dept 2013]). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman, 49 NY2d 557, 562 [1980]).

Only when the movant meets this burden, does the burden shift to the opposing party to submit proof in admissible form that establishes a triable issue of fact (CPLR 3212[b]; see Zuckerman, 49 NY2d 557, 562 [1980]; Kosson v Algaze, 84 NY2d 1019 [1995]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 128-129 [2000]).

Summary judgment is a drastic remedy and should not be granted where there are material and triable issues of fact present (see Stillman v Twentieth Century Fox F. Corp., 3 NY2d 395 [1957]; F. Garofalo Elec Co v NY Univ, 300 AD2d 186 [1st Dept 2002]). The evidence must be viewed in the light most favorable to the party opposing the motion, including resolving all reasonable inferences in that party’s favor (see Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824, 833 [2014]). Where different conclusions may reasonably be drawn from the evidence, the motion must be denied (see Sommer v Federal Signal Corp., 79 NY2d 540 [1992]; Jaffe v Davis, 214 AD2d 330 [1st Dept 1995]).

It is well established that insurers must pay or deny No-Fault benefit claims “within thirty (30) calendar days after receipt of the proof of the claim” (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86).

11 NYCRR 65-3.5(c) states that “[t]he insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.” If an insurer seeks additional verification, the 30-day timeframe is tolled until it receives the relevant information requested (see 11 NYCRR 65-3.8[a][1]). “Upon receipt of one or more of the [*3]prescribed verification forms used to establish proof of claim . . . an insurer has 15 business days within which to request ‘any additional verification required by the insurer to establish proof of claim'” (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 quoting 11 NYCRR 65-3.5[b]). “At a minimum, if any requested verifications [have] not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested . At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested” (see 11 NYCRR 65-3.6[b]). Additionally, 11 NYCRR 65-3.2(c) dictates that insurance carriers not demand verification of facts unless there are good reasons to do so.

Where the additional verification sought is a medical examination, the insurer must schedule that examination to be held within 30 calendar days of receipt of the prescribed verification forms (see 11 NYCRR 65-3.5[d]). “[A]ppearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim form is submitted” (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [1st Dept 2006] [internal citation omitted]).

Upon review of the submissions, the Court finds that Defendant failed to establish its prima facie burden to demonstrate that the IME scheduling letters were properly mailed and served on the Assignor. As contended by Plaintiff, it appears that the IME scheduling letters were addressed to the Assignor at “101-24 114th St Jamaica, NY 11419” (see Exhibit E) while form NF-2 at issue indicate that the Assignor’s place of residence was located at “101-24 114th Street S Richmond Hill, NY 11419” (see Exhibit H). Defendant failed to address the said discrepancy in reply.

Moreover, Defendant failed to demonstrate that the Assignor failed to appear for the scheduled IMEs. The affirmation of Amit Khaneja, M.D. was insufficient to support Defendant’s motion as it failed to include the entire penalty clause within CPLR 2106 (see Matter of Grandsard v Hutchison, 227 AD3d 491 [1st Dept 2024] [affirming motion court’s decision denying and dismissing a defectively verified petition that simply affirmed under the penalty of perjury]).

CPLR 2106 mandates that affirmation made under the penalties of perjury “shall be substantially the following form: I affirm this ____ day of ________, ________ , under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, except as to matters alleged on information and belief and as to those matters I believe it to be true, and I understand that this document may be filed in an action or proceeding in a court of law.”

As the affirmation of Amit Khaneja, M.D. stated facts based on personal knowledge that the Assignor failed to appear for the scheduled IMEs, it was required to follow the above requirements set forth in CPLR 2106. But Defendant failed to do so. As Defendant failed to meet its prima facie burden, the burden does not shift to Plaintiff to submit proof in admissible form that establishes a triable issue of fact (CPLR 3212[b]).

Accordingly, Defendant’s motion for summary judgment to dismiss Plaintiff’s complaint is denied without prejudice.

IV. Order

Accordingly, it is hereby:

ORDERED that Defendant’s Motion for summary judgment to dismiss Plaintiff’s complaint is DENIED without prejudice.

This constitutes the DECISION and ORDER of the Court.

DATE July 13, 2026

HON. WENDY CHANGYONG LI, J.C.C.

Matter of American Tr. Ins. Co. v Heyligers (2026 NY Slip Op 04363)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Heyligers (2026 NY Slip Op 04363)

Matter of American Tr. Ins. Co. v Heyligers

2026 NY Slip Op 04363 [251 AD3d 414]

Decided on July 9, 2026

Appellate Division, First Department

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

As corrected through Wednesday, September 9, 2026

(July 9, 2026)

Order, Supreme Court, New York County (Jeffrey H. Pearlman, J.), entered October 8, 2025, which denied the petition brought pursuant to CPLR article 75 to vacate a master arbitration award, dated April 3, 2025, affirming an arbitrator’s award, dated January 6, 2025, awarding respondent Mark Heyligers, DC $3,568.50 for no-fault benefits for medical services he rendered to the insured, and to vacate the January 6th arbitration award, unanimously affirmed, with costs.

Initially, and contrary to Supreme Court’s finding, the petition was timely. The petition was filed July 1, 2025, and sought review of an arbitration award issued on January 6, 2025. However, before instituting this proceeding, petitioner appealed from the award to a master arbitrator, as was required before bringing this petition (see American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 11-12 [2d Dept 2025]; 11 NYCRR 65-4.10 [a]). The master arbitrator mailed his decision on April 7, 2025. Petitioner thus brought this action within the CPLR 7511 (a) 90-day window (see Matter of New York City Tr. Auth. v Heights Med. Care P.C., 52 Misc 3d 1214[A], 2016 NY Slip Op 51153[U], *3 [Sup Ct, NY County 2016]).

The court nevertheless properly denied the petition, as the arbitrators’ decisions were neither arbitrary, capricious, without rational basis, nor contrary to settled law. Petitioner contends that the no fault benefits owed to Heyligers, a chiropractor, were terminated on March 12, 2023, based on an independent medical examination (IME) report that nonparty Dr. Neil M. Ganz, D.C. issued on February 21, 2023. That report stated that the covered individual whom Heyligers was treating needed no further chiropractic care. However, the treatment cut-off date was not the date on which petitioner terminated the benefits (cf. Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), but the date on which Heyligers received notice of the termination, which was May 1, 2023. Petitioner did not address Heyliger’s argument, adopted by the initial arbitrator, regarding the May 1, 2023 cut-off date. Nor did petitioner address the finding of the master arbitrator that the arbitrator was entitled to rely on an opinion letter from the New York State Insurance Department Office of General Counsel, which provided that the IME would not take effect until the insurer sent the provider a timely denial based on that IME. Because petitioner has not undermined the basis for the arbitrators’ conclusions, it has not shown how either arbitration decision lacked a rational basis or was arbitrary and capricious or contrary to settled law (see Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2d Dept 2005]).

[*2]

Petitioner also contends that its verification requests, which were sent from July 2022 to July 2023, tolled the time within which petitioner needed to pay or deny Heyligers’ bills. However, with the exception of a July 17, 2023 verification request that Heyligers did not answer, petitioner does not contest that Heyligers furnished the requested verifications, thus requiring petitioner to pay or deny Heyligers’ bills within 30 days of the verifications (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2d Dept 2002]; 11 NYCRR 65-3.8 [a] [1]). As to the July 17, 2023 verification request, although Heyligers submitted his last verification in May 2023, petitioner does not address Heyligers’ argument, and the arbitrator’s finding, to the effect that the July 2023 request sought information that Heyligers had previously furnished. Accordingly, the arbitrator could reasonably find that Heyligers’ claims were no longer tolled (see 11 NYCRR 65-3.8 [a] [1]), rendering the master arbitrator’s affirmance of that award reasonable (see Lumbermens, 18 AD3d at 763). Concur—Renwick, P.J., Kapnick, Pitt-Burke, Rosado, Hagler, JJ.

Rahman v Allstate Ins. Servs., Inc. (2026 NY Slip Op 51108(U))

Reported in New York Official Reports at Rahman v Allstate Ins. Servs., Inc. (2026 NY Slip Op 51108(U))

Rahman v Allstate Ins. Servs., Inc.

2026 NY Slip Op 51108(U) [89 Misc 3d 1229(A)]

Decided on July 9, 2026

Supreme Court, Rockland County

John P. Collins, Jr., J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Supreme Court, Rockland County

Decided on July 9, 2026

Index No. 033748-2025

John P. Collins, Jr., J.

[*1]

The following papers numbered 1 — 3 were read and considered1 in connection with Defendant’s Notice of Motion (Motion Seq. No. 2) for an Order granting summary judgment to Defendant ALLSTATE INSURANCE SERVICES, INC [ALLSTATE], dismissing the Complaint, together with such other and further relief thus Court deems proper:

PAPERS NUMBERS

Notice of Motion (Motion Seq. No. 2)/Statement of Material Facts/ Memorandum of Law in Support/Affirmation in Support of Todd J. Manister, Esq./Defendant’s Exhibits A-B 1

Affirmation of Wayne M. Rubin, Esq. in Opposition 2

Affirmation of Todd J. Manister Esq. in Reply/Defendant’s Exhibit A 3

FACTS/PROCEDURAL HISTORY

To briefly recount the facts ^FN1, Plaintiffs allege in their complaint that they purchased an automobile liability insurance policy in 2012 from Defendant ALLSTATE with the insurance limits of $250,000/$500,000 in liability coverage and $100,000/$300,000 in supplemental uninsured/underinsured motorist (hereinafter SUM/UM) coverage, and an umbrella policy which provided the insured limits of $5 million in excess liability coverage and $25,000 in excess SUM/UM coverage.

Plaintiff SHAMA RAHMAN was struck by a vehicle while crossing West 29th Street in New York City and sustained serious injuries. The motorist tendered a total of $25,000 to the Plaintiff, SHAMA RAHMAN, and ALLSTATE paid Plaintiff SHAMA RHAMAN $25,000 pursuant to the subject insurance policy, but the Plaintiffs claimed they suffered damages in excess of all available insurance.

The Decision and Order on Motion Seq. No. 1 granting VITELLO’s and VITELLO INSURANCE AGENCY’s ^FN2 motion to dismiss was filed on November 11, 2025. See NYSCEF Doc. No. 21. Defendant ALLSTATE’s instant Notice of Motion and corresponding Affirmation, Exhibits, and Memorandum of Law in Support were submitted March 13, 2026. See NYSCEF Doc. No. 26-31. An Affirmation in Opposition by Plaintiffs was submitted April 23, 2026, and Defendant ALLSTATE’s reply was filed the same day. See NYSCEF Doc No. 36-37.

ARGUMENTS

A prior Decision and Order was issued by the Honorable Hal B. Greenwald, J.S.C. (retired) as to Defendants STEVEN P. VITIELLO INSURANCE AGENCY and STEVEN P. VITIELLO’s pre-answer motion to dismiss, pursuant to Civil Practice Law and Rules § 3211(a)(7). See NYSCEF Doc. No. 21. In that Decision, the Court dismissed Plaintiffs’ first cause of action for breach of contract, finding it was time-barred by the statute of limitations. Judge Greenwald concluded that the six (6) year statute of limitations began to run in 2021 and there was no contact between the Plaintiffs and the Defendant regarding the policy from 2012 to 2023. Plaintiffs also failed to present any evidence that an exception to the statute of limitations was applicable.

For the second cause of action alleging negligence, Judge Greenwald dismissed the Plaintiffs’ action as to the VITIELLO Defendants. The Court referred primarily to Murphy v. Kuhn, more specifically that “insurance agents have no duty to advise, guide, or direct a client to obtain additional coverage” in the absence of a special relationship. See Murphy v Kuhn, 90 NY2d 266, 270 [1997]. The Plaintiffs did not establish that such a special relationship existed, as the Plaintiff never inquired or openly discussed the possibility of increasing their policies with Defendants STEVEN P. VITIELLO INSURANCE AGENCY and STEVEN P. VITIELLO. See id. The Defendants therefore did not owe the Plaintiffs any duty that could be breached by allegedly failing to advise the Plaintiffs on the possibility of increasing the SUM/UM liability limits of their automobile policy.

Defendant ALLSTATE, in the instant motion, argues that the Decision and Order on [*2]Motion Seq. No. 1 has become the law of the case. Therefore, ALLSTATE contends that the Plaintiffs’ claim for breach of contract is similarly barred by the statute of limitations. Additionally, ALLSTATE also argues that it did not have any duty to educate or advise the Plaintiffs on a specific level of coverage. ALLSTATE refers to the policy ^FN3 that informs customers to contact Defendant itself or an agent of Defendant to retain the current coverage or make any coverage adjustments. On the second negligence claim, the Defendant argues that the negligence claim is duplicative of the breach of contract claim, and similarly, that ALLSTATE has no legal duty to advise customers of additional SUM/UM or excess umbrella coverage.

In opposition, the Plaintiffs argue that a distinction exists between the duties of the insurance company, ALLSTATE, and the insurance broker, VITELLO Defendants, namely that ALLSTATE had a continuing duty to advise the Plaintiffs that they could purchase additional SUM/UM coverage each time they renewed their policy, as set out in the Complaint. See NYSCEF Doc. 1. Specifically, the Plaintiffs refers to Insurance Law § 3420[f][2][B] and claims the subject policy does not offer this statutory notice in the October 30, 2023 policy.

In reply, the Defendant ALLSTATE argues that that the statutory notice of available SUM pursuant to Insurance Law § 3420[f][2][B] was already provided and refers to the policy endorsement in NYSCEF Doc. No. 29 and 37. Defendant ALLSTATE reasserts that Plaintiffs did not take the initiative to request additional SUM coverage, and argue that the Plaintiffs do not successfully raise any issue of fact or law that allows their claims to survive summary judgment.

LAW/ANALYSIS

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, by tendering sufficient evidence to eliminate any material issues of fact from the case and to warrant a court to direct judgment in its favor, as a matter of law. See Civil Practice Law and Rules 3212(b); See also Giuffrida v Citibank Corp., et al, 100 NY2d 72 [2003], citing Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]. If the moving defendant fails to meet this initial burden of setting forth evidentiary facts sufficient to establish an entitlement to judgment as a matter of law, the motion must be denied without considering the sufficiency of the opposing papers. See Stukas v Streiter, 83 AD3d 18 [2d Dept. 2011].

However, once the defendant successfully establishes their prima facie burden, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact. See Romana v NYRAC, Inc., 245 AD2d 498 [1997]; See also O’Lear v Boy Scouts of Am., 33 AD3d 685 [2006]; Vesligaj v PMT Forklift Corp., 222 AD2d 431 [1995]. Summary judgment will be granted only if there is no triable issue of fact and issue finding, rather than issue determination, is the key to summary judgment, and the papers on the motion should be scrutinized in the light most favorable to the party opposing [*3]the relief. See Judice v DeAngelo, 272 AD2d 583 [2d Dept 2000].

Regarding the first cause of action for breach of contract against Defendant ALLSTATE, the Defendant refers to the holding in the previous Decision and Order to argue that the Plaintiffs’ claims against ALLSTATE are time-barred by the same six (6) year statute of limitations. See New York Bus Operators Compensation Trust v American Home Assurance Co., 241 AD3d 563, 566 [2d Dept 2025]. There is no reason why the logic this Court employed in its previous Decision and Order is not applicable to Defendant ALLSTATE since the Plaintiffs’ claims arise from the same contract at issue with the VITIELLO Defendants. Here, the Plaintiffs do not contend that the statute of limitations does not apply to Defendant ALLSTATE. As such, the first cause of action for breach of contract as to Defendant ALLSTATE is time-barred and is dismissed.

Turning to the second cause of action for negligence, Defendant ALLSTATE refers to the “law of the case,” meaning the Court’s previous opinion in which the Court ruled that the VITELLO Defendants, as the insurance agents, did not develop a special relationship with the Plaintiffs. Consequently, there was no unique duty owed to the Plaintiffs that the VITELLO Defendants breached by not informing the Plaintiffs of additional coverage. See Murphy, 90 NY2d at 270.

However, the Court finds that Defendant ALLSTATE and Plaintiffs have a different relationship – which is between the insurer and the insured, not an agent and the insured – and the controlling case law used in this Court’s prior decision is not directly on point as to the instant relationship. Therefore, the Court is not precluded by the “law of the case” doctrine from considering whether additional or separate duties exist between the insured and the insurer. See RPG Consulting v Zormeti, 82 AD3d 739, 740 [2d Dept. 2011]; (“The doctrine applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision, and to the same questions presented in the same case.” [internal quotations omitted] Gilligan v Reers, 255 AD2d 486 [2d Dept. 1998]).

Plaintiffs assert that Insurance Law § 3420[f][2][A], creates a separate duty. Under Insurance Law § 3420[f][2][A], a SUM insurer is required to send an annual notification of availability of SUM coverage, but this annual notice “may be more simplified than the notice it must send to the customer when he or she first purchases SUM coverage. The annual notice must include: (1) ‘a concise statement that supplementary uninsured/underinsured motorist coverage is available (2) “an explanation of such coverage”; and (3) “the coverage limits that can be purchased from the insurer.” See 2 New Appleman New York Insurance Law § 28.08 (2026).

Defendant ALLSTATE refers to the Supplementary Uninsured/Underinsured Motorist Endorsement in the Plaintiffs’ policy as proof that Plaintiffs were provided with the required statutory notice. The definitions, availability and amount notices required by § 3420[f][2][A] are amply present in the endorsement and the declaration pages of the Plaintiffs’ policy. The Court notes that Defendant ALLSTATE is not required to advertise or advise the Plaintiffs of the possibility of purchasing additional SUM coverage, and the statute does not impose that duty on an insurer; such a view of the statute would be a misinterpretation of § 3420[f][2][A].

Plaintiffs’ insurance policy clearly delineates that the Plaintiffs had the responsibility to contact an agent if they desired additional SUM coverage, not vice-a-versa. As such, Defendant ALLSTATE has established its prima facie case for summary judgment and upon the shifting of the burden, the Plaintiffs have failed to raise any genuine issues of material fact.

In arriving at this decision, the Court has reviewed, evaluated, and considered all the [*4]issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that Defendant ALLSTATE’s Motion for Summary Judgment (Motion Seq.No. 2) is granted in its entirety and the matter is dismissed as to Defendant ALLSTATE.

The foregoing is the Court’s Decision and Order as to Motion Seq. No. 2.

Dated: July 9, 2026

New City, New York

Hon. John P. Collins, Jr., J.S.C.

Matter of Hereford Ins. Co. v Ramirez (2026 NY Slip Op 04303)

Reported in New York Official Reports at Matter of Hereford Ins. Co. v Ramirez (2026 NY Slip Op 04303)

Matter of Hereford Ins. Co. v Ramirez

2026 NY Slip Op 04303 [251 AD3d 697]

Decided on July 8, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, September 9, 2026

July 8, 2026

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, Victor Ramirez appeals from an order of the Supreme Court, Westchester County (Gretchen Walsh, J.), dated October 16, 2024. The order granted that branch of the petition which was to permanently stay arbitration.

Ordered that the order is affirmed, with costs.

On June 6, 2021, Victor Ramirez was the owner and operator of a taxicab insured by the petitioner, Hereford Insurance Company (hereinafter Hereford). A vehicle operated by Gabriel Pool collided with Ramirez’s taxicab. After the collision, Ramirez and Pool pulled over, Pool exited his vehicle, walked over to Ramirez’s taxicab, and allegedly struck Ramirez in the face with an ashtray while Ramirez was sitting inside his taxicab. Pool’s vehicle was uninsured.

Ramirez sought to recover under the uninsured motorist endorsement contained in his car insurance policy with Hereford. Hereford denied coverage, concluding, inter alia, that Ramirez’s injuries did not arise out of the use or operation of a motor vehicle, the motor vehicle was not the proximate cause of Ramirez’s injuries, and Ramirez’s injuries were solely the result of an assault by the adverse driver. Ramirez sought to arbitrate the matter, and Hereford thereafter commenced this proceeding pursuant to CPLR article 75, among other things, to permanently stay arbitration. Ramirez opposed the petition, contending, inter alia, that pursuant to State Farm Mut. Auto. Ins. Co. v Langan (16 NY3d 349 [2011]), the June 6, 2021 incident was an “accident” within the meaning of the uninsured motorist endorsement. The Supreme Court granted that branch of the petition which was to permanently stay arbitration. Ramirez appeals.

“A court may stay arbitration where the particular claim sought to be arbitrated is outside the scope of the agreement to arbitrate” (Matter of Allstate Ins. Co. v Reyes, 109 AD3d 468, 468 [2013] [alterations and internal quotation marks omitted]; see Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 7 [1980]). “[F]or purposes of automobile insurance policies, the term ‘accident’ means an event typically involving violence or the application of external force” (State Farm Mut. Auto. Ins. Co. v Langan, 16 NY3d at 355; see Michaels v City of Buffalo, 85 NY2d 754, 758 [1995]). “In [*2]order to determine whether a particular event was accidental, it is customary to look at the casualty from the point of view of the insured, to see whether or not . . . it was unexpected, unusual and unforeseen” (State Farm Mut. Auto. Ins. Co. v Langan, 16 NY3d at 355 [internal quotation marks omitted]).

However, uninsured motorist endorsements, such as the one at issue in this case, provide coverage only when the injuries are the result of an accident “arising out of such uninsured motor vehicle’s ownership, maintenance or use” (11 NYCRR 60-2.3 [f] [Insuring Agreements (II)]; see Matter of Allstate Ins. Co. v Reyes, 109 AD3d 468, 468 [2013]). “Use of an automobile encompasses more than simply driving it, and includes all necessary incidental activities such as entering and leaving its confines” (Matter of Allstate Ins. Co. v Reyes, 109 AD3d at 469; see Rowell v Utica Mut. Ins. Co., 77 NY2d 636, 639 [1991]). “To satisfy the requirement that it arose out of the ‘ownership, maintenance or use of’ a motor vehicle, the accident must have arisen out of the inherent nature of the automobile and, as such, inter alia, the automobile must not merely contribute to the condition which produces the injury, but must, itself, produce the injury” (Matter of Allstate Ins. Co. v Reyes, 109 AD3d at 469; see Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597, 599 [2006]; Eagle Ins. Co. v Butts, 269 AD2d 558, 558-559 [2000]). Although the vehicle itself need not be the proximate cause of the injury, “ ’negligence in the use of the vehicle must be shown, and that negligence must be a cause of the injury’ ” (Matter of Allstate Ins. Co. v Reyes, 109 AD3d at 469, quoting Zaccari v Progressive Northwestern Ins. Co., 35 AD3d at 599). “To be a cause of the injury, the use of the motor vehicle must be closely related to the injury” (Zaccari v Progressive Northwestern Ins. Co., 35 AD3d at 599 [emphasis and internal quotation marks omitted]; see Matter of Allstate Ins. Co. v Reyes, 109 AD3d at 469).

Here, from Ramirez’s point of view, the occurrence was unexpected, unusual, and unforeseen (see State Farm Mut. Auto. Ins. Co. v Langan, 16 NY3d at 355). However, as a matter of law, Ramirez’s injuries did not result from the inherent nature of Pool’s vehicle, nor did the vehicle itself produce the injuries. The injuries were caused by Pool’s alleged assault, and the uninsured vehicle merely contributed to the condition which produced the injuries (see Matter of Allstate Ins. Co. v Reyes, 109 AD3d at 469). Hereford established that a proximate causal relationship between the uninsured vehicle and the incident was lacking, and Ramirez failed to rebut that showing (see id.; Empire Ins. Co. v Schliessman, 306 AD2d 512, 513 [2003]; Eagle Ins. Co. v Butts, 269 AD2d at 559).

Ramirez’s remaining contention is improperly raised for the first time on appeal.

Accordingly, the Supreme Court properly granted that branch of the petition which was to permanently stay arbitration. Connolly, J.P., Ford, Voutsinas and Love, JJ., concur.