Time to Care Pharm. Inc. v American Tr. Ins. Co. (2024 NY Slip Op 50126(U))

Reported in New York Official Reports at Time to Care Pharm. Inc. v American Tr. Ins. Co. (2024 NY Slip Op 50126(U))

[*1]

Time to Care Pharm. Inc. v American Tr. Ins. Co.

2024 NY Slip Op 50126(U)

Decided on January 17, 2024

District Court Of Suffolk County, Second District

Hennings, J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 17, 2024

Time to Care Pharmacy Inc., a/a/o MALIK BROOMES, Petitioner, against American Transit Insurance Co., Respondent.

Index No. CV-0538-23/BA


Attorney for the petitioner is Jason Tenenbaum, Esq.
Paul E. Hennings, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of petitioner’s petition numbered 1 to 5 read on this motion by petitioner for an order confirming the Master Arbitration Award that affirmed the Arbitration Award below by Notice of Petition/Order to Show Cause and petitioner’s papers 1-5 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers ; Replying Affidavits and supporting papers; Filed papers ; Other; (and after hearing counsel and/or parties in support of and opposed to the motion), and due deliberation and consideration having been had therein, the Decision and Order of the Court on the petition is as follows:

it is

ORDERED that the unopposed petition, pursuant to CPLR 7510, timely seeking Confirmation of the Master Arbitration Award of Toby Susan DeSimone, Esq. (“DeSimone”) rendered on 04/27/2023, and mailed on 05/01/2023 (“delivery date”), is GRANTED, DeSimone having been duly appointed by the Superintendent of Insurance and designated by the American Arbitration Association pursuant to the Regulations promulgated by the Superintendent of Insurance as 11 NYCRR §65-4.10, which application was made within one year after delivery below of said award to petitioner, which award has not been vacated or modified upon a ground specified in CPLR 7511 (see CPLR 7510; see also Matter of Neiss v Asia, 164 AD3d 1344, 1345 [2nd Dept 2018]).

The Master Arbitration Award reviewed and affirmed in its entirety the Arbitration Award below, heard on 12/13/2022 and affirmed on 01/12/2023, of the Arbitrator Inez Beyrer, which was entered in favor of petitioner, TIME TO CARE PHARMACY INC., a/a/o MALIK BROOMES, as against respondent, in accordance with the Rules for New York State No-Fault Arbitration adopted pursuant to regulations promulgated by the Superintendent of Insurance.

More than 21 days has elapsed since the Master Arbitration Award was issued and mailed on 05/01/2023 (“date of delivery”), and the amounts set forth in the Master Arbitration Award is now due and owing (see 11 NYCRR §65-4.10[e][4]).

The Arbitration Award is confirmed in favor of petitioner as against respondent, in the following sums: (i) Principal sum in the amount of $3,381.36; (ii) Interest on the Principal at 2% per month from 09/28/2021 until entry of a judgment in accordance with Insurance Law §5106(a); (iii) Attorney Fee in the sum of 20% of the principal and interest to a maximum of $1,360.00; (iv) Arbitration Filing Fee in the amount of $40.00 (see 11 NYCRR §65-4.10[e][1][ii][b]); (v) Master Arbitration Fee in the sum of $195.00 (see 11 NYCRR §65-4.10[e] [1][ii][a]); (vi) Additional Attorney Fee pursuant to Insurance Department Regulations (see 11 NYCRR §65-4.10[j][4]), for services rendered in a Court appeal from a Master Arbitration Award, to be fixed by the Court adjudicating the matter (see Geico Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2nd Dept 2017]); and it is further

ORDERED that the unopposed petition for an order awarding additional attorney fees for post arbitration proceedings, is GRANTED. Petitioner is granted additional attorney fees in the sum of $1,000.00 (see 11 NYCRR §65-4.10[j][4]; see also D&W Cent. Stat. Fire Alarm Co. Inc. v United Props. Corp., 34 Misc 3d 85 [App Term, 2nd Dept, 11th & 13th Jud Dists 2012]).

The standard of review for an arbitration award is limited to a determination of whether the award was arbitrary, capricious and incorrect as a matter of law. A master arbitrator’s powers in reviewing an initial arbitrator’s decision are limited to the grounds stated in CPLR 7511, and additionally, under insurance regulations, is limited to whether the initial arbitrator ruled on factual and procedural issues in a manner that was arbitrary, capricious, irrational or without a plausible basis (see Matter of Petrofsky v Allstate Ins. Co., 54 NY2d 207, 211 [1981]; In the Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724 [2nd Dept 1994]).

If a challenge is based upon a factual error in the arbitration, “the master arbitrator must uphold the determination if it has a rational basis” (see In the Matter of Richardson v Prudential Prop. & Cas. Ins. Co., 230 Ad2d 861 [2nd Dept 1996]). Moreover, an arbitrator’s award must be upheld “when the arbitrator ‘offer[s] even a barely colorable justification for the outcome reached'” (see In the Matter of Susan D. Settenbrino. P.C. v Barroga-Hayes, 89 AD3d 1094, 1095 [2nd Dept 2011]). Indeed, for an award to be irrational, there must be “no proof whatsoever to justify the award” (see In the Matter of Gaymon v MTA Bus Co., 117 AD3d 735, 736 [2nd Dept 2014]; In the Matter of Susan D. Settenbrino. P.C. v Barroga-Hayes, supra ). However, “an arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be” (Id. at 1095).

Here, the Court determines that the Master Arbitrator found that the lower arbitrator decided the claim based upon her review and evaluation of the record, with pertinent case law, and further found the award below was clearly articulated and had a rational and plausible basis in the evidence. Moreover the Master Arbitrator further found there was no evidence presented which would establish any valid ground to set aside the award of the lower arbitrator, and found no reason to disturb her decision, thereby affirming the lower arbitration award in its entirety.

After due consideration, the Court agrees with the findings of the Master Arbitrator and finds that the record demonstrates there was a rational basis for the initial arbitrator’s decision and the award was justified. In addition, the Master Arbitration Award was supported by sufficient evidence in the record, and was not arbitrary, capricious, irrational or incorrect as a [*2]matter of law.

The foregoing constitutes the decision and order of this Court. Submit Judgment.

Dated: January 17, 2024
J.D.C.Matter of Lam Quan, MD, PC v GEICO Gen. Ins. Co. (2024 NY Slip Op 00174)

Reported in New York Official Reports at Matter of Lam Quan, MD, PC v GEICO Gen. Ins. Co. (2024 NY Slip Op 00174)

Matter of Lam Quan, MD, PC v GEICO Gen. Ins. Co.

2024 NY Slip Op 00174

Decided on January 16, 2024

Appellate Division, First Department

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

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

Decided and Entered: January 16, 2024
Before: Moulton, J.P., Kapnick, Scarpulla, Higgitt, O’Neill Levy, JJ.
Index No. 651286/23 Appeal No. 1423 Case No. 2023-03165

Roman Kravchenko, Melville, for appellant.

Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered May 8, 2023, which denied petitioner Quan’s petition to vacate a master arbitrator’s award, dated February 26, 2023, affirming a lower arbitrator’s award, dated January 11, 2023, unanimously affirmed, without costs.

The motion court correctly upheld the master arbitrator’s determination that there were no grounds to vacate the initial arbitration award, as the master arbitrator found that the no-fault arbitrator reached the decision in a rational manner and that the decision was not arbitrary and capricious, incorrect as a matter of law, in excess of policy limits, or in conflict with other no-fault arbitration proceedings (see Matter of Miller v Elrac, LLC, 170 AD3d 436, 437 [1st Dept 2019]). As stated in Matter of New Millenium Pain & Spine Medicine., PC v Progressive Cas. Ins. Co. “[t]he fact that the arbitrator followed First Department precedent in Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]), rather than Second Department precedent in Alleviation Med. Servs., P.C. v Allstate Ins. Co. (55 Misc 3d 44, 49 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]), does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy” (220 AD3d 578, 578 [1st Dept 2023]).

Quan’s argument that GEICO took the 20% wage offset twice—first, when issuing payment against gross wages; and second, when taken against the no-fault personal injury protection limit of liability (see Insurance Law § 5102[b]; 11 NYCRR 65-1.1) is unpreserved and, if considered (see Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], affd 40 NY3d 904 [2023]), is unavailing (see Normile v Allstate Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).

Quan is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 16, 2024

John T. Mather Mem. Hosp. v American Tr. Ins. Co. (2024 NY Slip Op 24009)

Reported in New York Official Reports at John T. Mather Mem. Hosp. v American Tr. Ins. Co. (2024 NY Slip Op 24009)

[*1]

John T. Mather Mem. Hosp. v American Tr. Ins. Co.

2024 NY Slip Op 24009

Decided on January 12, 2024

Supreme Court, Kings County

Maslow, J.

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

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

Decided on January 12, 2024

John T. Mather Memorial Hospital A/A/O HENRY OJEDA, Petitioner, against American Transit Insurance Company, Respondent.

Index No. 528479/2023

Aaron D. Maslow, J.

The following numbered papers were read on this special proceeding: NYSCEF Document Numbers 1-9.

Upon the foregoing papers, the Court having elected to determine the within petition on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), Section 6 (Personal Appearances) (“All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.),”^[FN1] and due deliberation having been had thereon,

It is hereby ORDERED and ADJUDGED that the within special proceeding is determined as follows:

In this special proceeding pursuant to CPLR 7502 and 7510, the within petition of Petitioner John T. Mather Memorial Hospital, a medical provider, to confirm a No-Fault Insurance master arbitration award against Respondent American Transit Insurance Company is GRANTED but without an award of an attorney’s fee for services rendered in connection with the petition to confirm. It is noted that Respondent has not appeared to oppose the petition.

The master arbitration award in American Arbitration Association Case No. 99-22-1233-6879 of Master Arbitrator Anne L. Powers, which affirmed the award of Arbitrator Dimitrios Stathopoulos, is confirmed in its entirety.

Petitioner herein is awarded the principal amount ($21,316.95), interest, attorney’s fees, and return of filing fee ($40.00) as determined in the hearing arbitration (see the arbitration award of Arbitrator Stathopoulos, appearing as NYSCEF Doc No. 3). The interest shall accrue from the arbitration filing date (see 11 NYCRR 65-4.5 [s] [3], 65-3.9 [c]; Canarsie Med. Health, P.C. v National Grange Mut. Ins. Co., 21 Misc 3d 791, 797 [Sup Ct, NY County 2008]), at the rate of two percent per month, simple, calculated on a pro-rata basis using a 30-day month (see 11 NYCRR 65-3.9 [a]). The attorney’s fee for the arbitration shall be 20% of the sum of the principal plus interest to payment.

The attorney’s fee for the master arbitration is $130.00 per the award of Master Arbitrator Powers appearing as NYSCEF Doc No. 4.

This Court denies an attorney’s fee to Petitioner herein for prevailing in this special proceeding to confirm the master arbitration award. In seeking an attorney’s fee, Petitioner relies on 11 NYCRR 65-4.10 (j) (4), which provides, “The attorney’s fee for services rendered in connection with a court adjudication of a dispute de novo, as provided in section 5106(c) of the Insurance Law, or in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter.” Petitioner’s action of seeking to confirm an [*2]arbitration award is not in the nature of appeal. An “appeal” is an action taken by a party to have a determination reviewed because it was adverse to the party. The master arbitrator’s award was not adverse to Petitioner. Quite the opposite, Petitioner agreed with the determination. The purpose for this Article 75 proceeding is to obtain a judgment so that Petitioner can levy upon Respondent’s assets in order to enforce the award of monetary compensation as determined in the arbitration process. Moreover, this special proceeding is not a de novo dispute. Nothing in the language of 11 NYCRR 65-4.10 (j) (4) provides support for this Court to grant Petitioner an attorney’s fee. The language of the regulation is clear and unambiguous and would not apply to this unopposed Article 75 special proceeding to confirm a master arbitration No-Fault award (see Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854 [2003]; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 458 [1980]). A court should not read into a regulation a provision which is not present (see Jansen Ct. Homeowners Assn. v City of New York, 17 AD3d 588 [2d Dept 2005]), especially since the No-Fault Law is in derogation of the common law and so must be strictly construed (see Presbyterian Hosp. in City of NY v Atlanata Cas. Co., 210 AD2d 210 [2d Dept 2001]).

Petitioner also cites to Matter of GEICO Ins. Co. v AAAMG Leasing Corp. (148 AD3d 703 [2d Dept 2017]) as support for its request for an attorney’s fee in this special proceeding to confirm the No-Fault master arbitration award. Petitioner emphasizes the following language in said opinion at page 705: “The term ‘court appeal’ applies to a proceeding such as this, taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award (see Matter of Hempstead Gen. Hosp. v National Grange Mut. Ins. Co., 179 AD2d 645 [1992])” (emphasis added). This Court holds that to the extent the Appellate Division included the words “or confirm” it was dicta because in Matter of GEICO Ins. Co. v AAAMG Leasing Corp. at issue was a petition to vacate a master arbitration award. Hence GEICO Ins. Co.’s petition to vacate constituted an appeal from the master arbitration award; not so in the case at bar. Moreover, Matter of Hempstead Gen. Hosp. v National Grange Mut. Ins. Co., cited in Matter of GEICO Ins. Co. v AAAMG Leasing Corp., involved an appeal in the form of an Article 75 special proceeding, to vacate a master arbitration award in favor of the No-Fault insurer. Again, there was an actual appeal, unlike the present sitatuion, where Petitioner John T. Mather Memorial Hospital seeks merely to confirm a master arbtriation award in its favor, and there is not even any opposition from Respondent Americal Transit Insurance Company.

Petitioner claims that Respondent has failed to pay the amount due per the No-Fault insurance arbitration result: “Here, . . . payment was not made and, since the Petition to confirm must be granted, Petitioner is entitled to its hourly attorney fees in this proceeding” (NYSCEF Doc No. 1 ¶ 12 at 3 [emphasis added]). This is a misunderstanding of the No-Fault Insurance Regulations. Said Regulations actually do provide for a remedy in this type of situation. Section 65-3.10 of the No-Fault Insurance Regulations (11 NYCRR 65-3.10) provides in subdivision (b) as follows:

If a dispute is resolved in accordance with any of the optional arbitration procedures contained in this Part, either during the initial review by the Department of Financial Services or by an arbitration award, and if payment is not made by the insurer in accordance with the terms specified in the conciliation letter or arbitration award within 45 days following such resolution, an additional attorney’s fee shall be paid by the insurer when the attorney writes to the insurer in order to receive such overdue payment. The additional attorney’s fee shall be $60 and shall become payable only after written request [*3]from the attorney to the insurer, received by the insurer more than 45 days after mailing of the conciliation letter or arbitration award. Such fee shall not be payable if payment was made by the insurer prior to the attorney’s request for such payment or if an arbitration award is appealed in accordance with the provisions of this Part.

Therefore, once payment is obtained, Petitioner is entitled to $60 for its efforts in securing same. The fee will be payable since Respondent American Transit Insurance Company did not appeal the determination of the master arbitrator, assuming that payment of the awarded amount was not made within 45 days after after mailing of the master arbitration award. While the $60 may not be commensurate with Petitioner’s view of the amount to which it is entitled for enforcement of the arbitratration award, the remedy it seeks pursuant to 11 NYCRR 65-4.10 (j) (4) must be rejected based on the clear language of that regulation. Petitioner is not entitled to hour attorney fees as it has argued.

Respondent herein shall recover from Petitioner herein $200 as costs as well as disbursements allowed by law, to be taxed by the Clerk, since Petitioner has prevailed in having the master arbitration award confirmed (see CPLR 8101, 8201, 8202, 8301; Meehan v Nassau Community College, 242 AD2d 155 [2d Dept 1998]).

E N T E R

___________________________
AARON D. MASLOW
Justice of the Supreme Court of the State of New York

Footnote 1: On December 26, 2023, there was filed as NYSCEF Doc No. 8, an interim order providing as follows:

The Court having elected to determine the within petition on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), Section 6 (Personal Appearances) (“All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.),”

It is hereby ORDERED as follows:

(1) The within petition shall be determined on submission.

(2) If opposition papers have not been filed yet despite the fact that the deadline for same pursuant to the CPLR may have passed, leave to file them by January 3, 2024, 5:00 p.m., is granted.

(3) If reply papers have not been filed yet despite the fact that the deadline for same pursuant to the CPLR may have passed, leave to file them by January 5, 2004, 5:00 p.m., is granted.

(4) Any papers filed past said deadlines shall not be considered.

(5) There shall be no personal appearances on the calendar date noted above.

References to motions in IAS Part 2 Rules “shall be deemed to include special proceedings” (Part I, Subpart A, Section 1).JSJ Anesthesia Pain Mgt., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50064(U))

Reported in New York Official Reports at JSJ Anesthesia Pain Mgt., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50064(U))

[*1]

JSJ Anesthesia Pain Mgt., PLLC v State Farm Mut. Auto. Ins. Co.

2024 NY Slip Op 50064(U)

Decided on January 12, 2024

Appellate Term, Second Department

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

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

Decided on January 12, 2024

PRESENT: : LISA S. OTTLEY, J.P., CHEREÉ A. BUGGS, PHILLIP HOM, JJ
2023-163 K C

The Rybak Firm, PLLC (Maksin Leyvi and Richard Rozhik of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated December 15, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.

For the reasons stated in Pain Med., PLLC, as Assignee of Van-Bochove, Nourine v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-753 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 12, 2024Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50065(U))

Reported in New York Official Reports at Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50065(U))

[*1]

Pain Med., PLLC v State Farm Mut. Auto. Ins. Co.

2024 NY Slip Op 50065(U)

Decided on January 12, 2024

Appellate Term, Second Department

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

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

Decided on January 12, 2024

PRESENT: : LISA S. OTTLEY, J.P., CHEREÉ A. BUGGS, PHILLIP HOM, JJ
2023-164 K C

The Rybak Firm, PLLC (Maksim Leyvi and Richard Rozhik of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J, Ammendolea of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated December 15, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.

For the reasons stated in Pain Med., PLLC, as Assignee of Van-Bochove, Nourine v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-753 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 12, 2024Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50069(U))

Reported in New York Official Reports at Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50069(U))

[*1]

Pain Med., PLLC v State Farm Mut. Auto. Ins. Co.

2024 NY Slip Op 50069(U)

Decided on January 12, 2024

Appellate Term, Second Department

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

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

Decided on January 12, 2024

PRESENT: : LISA S. OTTLEY, J.P., CHEREÉ A. BUGGS, PHILLIP HOM, JJ
2023-753 K C

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated January 6, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had [*2]made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JPC Med., P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 136[A], 2022 NY Slip Op 50562[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; JPF Med. Servs., P.C. v Nationwide Ins., 69 Misc 3d 127[A], 2020 NY Slip Op 51122[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.

Plaintiff’s cross-motion for summary judgment was properly denied, as plaintiff failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial of claim form that was conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 12, 2024Stark Med. Supply Inc. v Foremost Prop. & Cas. Ins. (2024 NY Slip Op 50002(U))

Reported in New York Official Reports at Stark Med. Supply Inc. v Foremost Prop. & Cas. Ins. (2024 NY Slip Op 50002(U))

[*1]

Stark Med. Supply Inc. v Foremost Prop. & Cas. Ins.

2024 NY Slip Op 50002(U)

Decided on January 8, 2024

Civil Court Of The City Of New York, Kings County

Epstein, J.

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

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

Decided on January 8, 2024

Stark Medical Supply Inc. AAO a/a/o Emmanuel Dorvil, Plaintiff, against Foremost Property & Casualty Insurance, Defendant.

Index No. CV-732769-18



Plaintiff: Mikhail Kopelevich
Kopelevich & Feldsherova, P.C.
241 37th Street, Suite B439
Brooklyn, New York 11232

Defendant: Kenneth Popper
Law Offices of Buratti Rothenberg & Burns
90 Merrick Avenue Suite 300
East Meadow, New York 11554 Jill R. Epstein, J.

Plaintiff, medical provider, Stark Medical Supply Inc. (hereinafter “Plaintiff”), as assignee of Emmanuel Dorvil (hereinafter “Assignor”), commenced this action to recover assigned first-party no fault benefits from Foremost Property and Casualty Insurance (hereinafter “Defendant”), for a medical service performed to the assignor following a motor vehicle accident, which occurred May 29, 2017.

A Summary Judgement order signed by this Court on December 2, 2020 found that the subject bills were received and timely and properly denied. The Order limits the trial to the sole issue of whether the policy was exhausted at the time of the claim.

At trial, held November 29, 2023, defendant called its witness, Megan Scorben, a claims specialist who is employed by for defendant. Ms. Scorben testified that she reviewed the claim log, there was a previous medical payment on this accident, and that at full value there was $1,000 on the policy plus an additional $500 if the motorcycle rider was wearing a helmet. Upon voir dire, plaintiff questioned whether Ms. Scorben personally added in data herself and she replied that she did not. Ms. Scorben also testified that she was not working for the defendant when the payment logs that she was relying upon were created, however she did state that she reviewed and maintained the records in the regular course of her employment responsibilities.

During cross-examination of Ms. Scorben, plaintiff questioned the dates that were input into the log that Ms. Scorben relied upon in her determination that the policy was exhausted. She stated that there was in fact a “typo” and the date should read June, 15, 2017 and that the dates reads June 15, 2018. Plaintiff also questioned the witness’ reliance on information in the log that shows that payment was made prior to the incorrect/typo service dates of the bill and Ms. Scorben replied affirmatively.

For a policy exhaustion defense to bar plaintiff from recovery in a no-fault matter, the defendant must ” demonstrate that the policy had been exhausted at the time the claims at issue were deemed complete.” Ortho Passive Motion, Inc. v Allstate Ins. Co., NY Slip Op 50771 [Application Term 2d 2017]. The Second Department further clarifies that “defendant has not argued, let alone demonstrated, that there was a technical defect or ministerial mistake in the judgment “not affecting a substantial right of a party.” Id.

The Court finds that in the matter sub judice, defendant has failed to prove policy exhausted. Firstly, despite the contentions of the defendant and its witness, the incorrect dates in the log is not merely “ministerial mistakes” as the errors “do substantially affect the rights of plaintiff.” Id.

Secondly, the log entries do not prove that the policy was exhausted when the “claims at issue were deemed complete.” Id. Defendant has failed to provide this court with any evidence, documentary or testimony to successfully establish that the policy was exhausted when the claims were completed. There is nothing beyond the testimony of the witness to show that the date in the log was in error, thus there is nothing to show that the payment preceded the bill herein.

WHEREFORE it is hereby

ORDERED AND ADJUDGED that judgement be entered in favor of plaintiffs in the sum of $1, 281.32 plus filing fees, and interest from July 24, 2018.

Dated: January 8, 2024
Brooklyn, New York
HON. JILL R. EPSTEIN, JCCNationwide Gen. Ins. Co. v South (2024 NY Slip Op 00028)

Reported in New York Official Reports at Nationwide Gen. Ins. Co. v South (2024 NY Slip Op 00028)

Nationwide Gen. Ins. Co. v South

2024 NY Slip Op 00028

Decided on January 04, 2024

Appellate Division, First Department

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

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

Decided and Entered: January 04, 2024
Before: Singh, J.P., Scarpulla, Pitt-Burke, Higgitt, O’Neill Levy, JJ.
Index No. 154533/21 Appeal No. 1337 Case No. 2023-02237

Hollander Legal Group, P.C., Melville (Allan S. Hollander of counsel), for appellants.

Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered on or about April 10, 2023, which, insofar as appealed from, denied plaintiffs’ motion for summary judgment declaring that they have no obligation to pay no-fault benefits to defendants ARS Medical Equipment Corp., Ideal Care Pharmacy, Inc., and Rosar Medical Equipment Corp. (collectively defendants) in connection with the underlying August 9, 2020 accident, unanimously reversed, on the law, the motion granted, and it is so declared.

Plaintiffs demonstrated a “founded belief” that the August 9, 2020 accident was not covered by no-fault insurance (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; 11 NYCRR 65-3.8[e][2]), based on, among other things, the investigation undertaken by their investigator and the examination under oath (EUO) testimony of the driver of the vehicle in which the claimants were passengers. The driver stated that immediately before the collision, he heard one of the passengers tell someone on the phone to hit the car, and that after the accident the other vehicle fled the scene. Defendants failed to present evidence sufficient to raise an issue of fact as to the bona fides of the accident because they did not provide an affidavit of a person with knowledge supporting the legitimacy of their claims. The affirmation of defendants’ attorney in opposition to plaintiffs’ summary judgment motion was of no probative value (see Ramos v New York City Hous. Auth., 264 AD2d 568 [1st Dept 1999]). Under these circumstances, plaintiffs were entitled to deny coverage pursuant to 11 NYCRR 65-3.8(e)(2)and the provisions of the policy voiding coverage based on fraud (see Matter of Eagle Ins. Co. v Gueye, 26 AD3d 192, 193 [1st Dept 2006]).

Additionally, and as a separate ground for the declaration, plaintiffs demonstrated prima facie that the claimants’ failure to appear for two properly noticed and scheduled EUOs was a violation of a condition precedent to coverage and a valid basis to deny defendants’ claims (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). The affidavit of plaintiffs’ claims manager and the exhibits attached thereto were sufficient evidence that the notices of the EOUs were sent within 15 days of receipt of the NF-2s (see 11 NYCRR 65-3.5[b]), and the second EUO was noticed within 10 days of the claimants’ nonappearance at the first scheduled EUO (see 11 NYCRR 65-3.6[b]).The affirmation of plaintiffs’ attorneys and the transcript of the proceedings on the dates the EUOs were scheduled showed that the claimants did not appear; and the affirmation of one of the attorneys described in detail the office procedure regarding mailing of the EUO notices. A further affidavit of the operations manager of the company acting as plaintiffs’ agent for receipt of bills and correspondence showed that the denial letters were also timely sent(see 11 NYCRR 65-3.8[*2][a][1], [c]).Defendants failed to present sufficient evidence to raise an issue of fact concerning the timeliness of the EUO the nonappearance of the claimants at the EUOs, and the subsequent denial notices.Whether or not defendants were innocent third parties was irrelevant because “an assignee never stands in a better position than his assignor” (see Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121, 126 [1975]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 4, 2024

Art of Healing Medicine, P.C. v Allstate Ins. Co. (2023 NY Slip Op 51471(U))

Reported in New York Official Reports at Art of Healing Medicine, P.C. v Allstate Ins. Co. (2023 NY Slip Op 51471(U))

[*1]

Art of Healing Medicine, P.C. v Allstate Ins. Co.

2023 NY Slip Op 51471(U)

Decided on December 22, 2023

Appellate Term, Second Department

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

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

Decided on December 22, 2023

PRESENT: : PHILLIP HOM, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2023-513 K C

Petre and Associates, P.C. (Mark Petre of counsel), for appellant. The Law Office of John Trop (Jeff G. Winston of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated March 8, 2023. The order granted defendant’s motion to vacate a judgment of that court entered May 3, 2022 upon defendant’s failure to appear or answer the complaint and to compel plaintiff to accept defendant’s answer.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment entered May 3, 2022 and to compel plaintiff to accept defendant’s answer is denied.

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on May 3, 2022 upon defendant’s failure to appear or answer the complaint. According to the affidavit of service, the summons and complaint were served upon a named individual known by the process server to be an employee of defendant authorized to accept service of process. Defendant subsequently moved to vacate the default judgment pursuant to CPLR 5015 (a) (1) and to compel plaintiff to accept defendant’s answer pursuant to CPLR 3012 (d). Plaintiff opposed the motion. By order dated March 8, 2023, the Civil Court granted defendant’s motion. On appeal, plaintiff argues that defendant provided neither a reasonable excuse for its default nor a potentially meritorious defense to the action.

“A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015 (a) (1) and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012 (d) [*2]must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see Deutsche Bank Natl. Trust Co. v Abrahim, 183 AD3d 698 [2020]; US Bank N.A. v Dedomenico, 162 AD3d 962, 964 [2018])” (JE & MB Homes, LLC v U.S. Bank N.A., 189 AD3d 1195, 1196 [2020]).

In support of its contention that it possessed a reasonable excuse for its default, defendant submitted an affidavit from a claims representative who averred that either the summons and complaint were not received, based on the absence of a record documenting the receipt of this document in defendant’s electronic system, or that the summons and complaint were not processed due to a reduction in the number of personnel in defendant’s office, where service allegedly occurred, due to the COVID-19 pandemic. Defendant’s claim of lack of receipt is insufficient to constitute a reasonable excuse, as defendant neither submitted an affidavit from the individual who had been named in the process server’s affidavit of service as having received service nor explained why such affidavit could not be provided (see Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98, 100 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Further, defendant’s assertion that a COVID-19-related staff reduction may have resulted in the failure to process the summons and complaint was conclusory and unsubstantiated, and, therefore, is also insufficient to qualify as a reasonable excuse (see V. v Leo, 219 AD3d 961, 962 [2023]; Wells Fargo Bank, N.A. v Krauss, 128 AD3d 813, 814 [2015]; Ahava Med. Diagnostic, P.C. v Hertz Co., 72 Misc 3d 138[A], 2021 NY Slip Op 50772[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). In light of the foregoing, it is unnecessary to consider whether defendant demonstrated a potentially meritorious defense to the action (see Hingorani v Venus Enters. 11 Corp., 208 AD3d 1229, 1230 [2022]; Ahava Med. Diagnostic, P.C. v Hertz Co., 2021 NY Slip Op 50772[U], *1).

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment entered May 3, 2022 and to compel plaintiff to accept defendant’s answer is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2023Sovera Med. Supply Corp. v MVAIC (2023 NY Slip Op 51476(U))

Reported in New York Official Reports at Sovera Med. Supply Corp. v MVAIC (2023 NY Slip Op 51476(U))

[*1]

Sovera Med. Supply Corp. v MVAIC

2023 NY Slip Op 51476(U) [81 Misc 3d 141(A)]

Decided on December 22, 2023

Appellate Term, Second Department

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

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

Decided on December 22, 2023

PRESENT: : PHILLIP HOM, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2023-767 K C

Marshall & Marshall, PLLC (Angelique Evangelista and David Gierasch of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), dated October 7, 2022. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.

Prior to the commencement of this action, the provider had submitted claims, involving the same assignor and the same motor vehicle accident, to arbitration. The arbitration was thereafter withdrawn without prejudice. However, “[b]y electing to arbitrate, the plaintiff waived [its] right to commence an action to litigate subsequent disputes over no-fault benefits to which [it] was allegedly entitled as a result of that accident” (Cortez v Countrywide Ins. Co., 17 AD3d 508, 509 [2005] [emphasis added]; see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985]; Griffin v AIG, 121 AD3d 449 [2014]; Mack v State Farm Mut. Auto. Ins. Co., 251 AD2d 1083 [1998]; 563 Grand Med., P.C. v Country-Wide Ins. Co., 61 Misc 3d 136[A], 2018 NY Slip Op 51556[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [*2][“Plaintiff, by electing to arbitrate, waived its right to commence an action to litigate its claims arising out of the same motor vehicle accident,” even though the prior arbitration was dismissed without prejudice]; Rockaway Blvd. Med. P.C. v Progressive Ins., 2003 NY Slip Op 50938[U], *2 [App Term, 2d Dept, 2d & 11th Jud Dists 2003] [while prior arbitration was dismissed without prejudice, “once a claimant chooses arbitration, it cannot resort to the courts”]). Consequently, MVAIC’s motion for summary judgment dismissing the complaint should have been granted.

We reach no other issue.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2023