Reported in New York Official Reports at One RX Chemist, Inc. v Nationwide Mut. Ins. Co. (2025 NY Slip Op 51848(U))
[*1]| One RX Chemist, Inc. v Nationwide Mut. Ins. Co. |
| 2025 NY Slip Op 51848(U) |
| Decided on November 21, 2025 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2025
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: James, P.J., Brigantti, Alpert, JJ.
571051/25
against
Nationwide Mutual Ins. Co., Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Lauren L. Esposito, J.), entered on or about February 10, 2025, which denied its motion for summary judgment.
Per Curiam.
Order (Lauren L. Esposito, J.), entered February 10, 2025, reversed, without costs, defendant’s motion for summary judgment granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant-insurer’s unopposed motion for summary judgment dismissing this action for first-party, no-fault benefits should have been granted. Defendant made a prima facie showing that plaintiff failed to appear at properly scheduled examinations under oath (EUOs) (see Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 185 AD3d 468 [2020]; Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600, 601 [2018]; Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 469 [2016]). The affidavit of defendant’s attorney sufficiently described the standard practices and procedures of his office for mailing EUO scheduling letters (see Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2020]; Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc. 130 AD3d 465, 465-466 [2015]), and counsel further represented, under penalty of perjury, that he had personal knowledge that the described practices and procedures were followed in this matter (id. at 466). This was adequate proof that the EUO letters were mailed to plaintiff.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur concur
Decision Date: November 21, 2025
Reported in New York Official Reports at Quazi R. Med. Servs., PC v Nationwide Mut. Ins. Co. (2025 NY Slip Op 51784(U))
[*1]| Quazi R. Med. Servs., PC v Nationwide Mut. Ins. Co. |
| 2025 NY Slip Op 51784(U) |
| Decided on November 13, 2025 |
| Appellate Term, First 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 November 13, 2025
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: James, P.J., Brigantti, Alpert, JJ.
571054/25
against
Nationwide Mutual Ins. Co., Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Lauren L. Esposito, J.), entered February 10, 2025, which denied its motion for summary judgment.
Per Curiam.
Order (Lauren L. Esposito, J.), entered February 10, 2025, reversed, without costs, defendant’s motion for summary judgment granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant-insurer’s unopposed motion for summary judgment dismissing this action for first-party, no-fault benefits should have been granted. Defendant made a prima facie showing that plaintiff failed to appear at properly scheduled examinations under oath (EUOs) (see Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 185 AD3d 468 [2020]; Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600, 601 [2018]; Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 469 [2016]). Contrary to the conclusion reached below, defendant’s request for verification one day beyond the prescribed 15-day period set forth in 11 NYCRR § 65—3.5 [b], but before the 30-day claim denial window expired, did not render its requests invalid, but merely reduced the 30-day time period for payment or denial of the claim (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]; Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 13, 2025
Reported in New York Official Reports at New York Ctr. for Specialty Surgery v Infinity Ins. Co. (2025 NY Slip Op 51832(U))
[*1]| New York Ctr. for Specialty Surgery v Infinity Ins. Co. |
| 2025 NY Slip Op 51832(U) |
| Decided on November 7, 2025 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on November 7, 2025
PRESENT: : LISA S. OTTLEY, J.P., WAVNY TOUSSAINT, MARINA CORA MUNDY, JJ
2024-1137 K C
against
Infinity Insurance Company, Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Law Offices of Christopher McCollum (Christopher McCollum of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated June 28, 2024. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s motion which had sought summary judgment dismissing the complaint on the ground that defendant did not receive the subject claims.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court (Sandra E. Roper, J.) dated June 28, 2024 as denied the branch of defendant’s motion which had sought summary judgment dismissing the complaint on the ground that defendant had not received the subject claims.
The affidavit submitted by defendant’s litigation specialist was insufficient to establish, prima facie, that defendant had not received the subject claims, as it failed to establish defendant’s practices and procedures for receiving and processing incoming mail (see Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also Bright Med. Supply Co. v Nationwide Ins. Co. of Am., 58 Misc 3d 126[A], 2017 NY Slip Op 51700[U] [App Term, 1st Dept 2017]; SMB Med. P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50719[U] [App Term, 1st Dept 2015]; cf. Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]; Rockland Family Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 76 Misc 3d 126[A], 2022 NY Slip Op 50766[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).
Accordingly, the order, insofar as appealed from, is affirmed.
OTTLEY, J.P., TOUSSAINT and MUNDY, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 7, 2025
Reported in New York Official Reports at John A. Nasrinpay 2 v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51833(U))
[*1]| John A. Nasrinpay 2 v State Farm Mut. Auto. Ins. Co. |
| 2025 NY Slip Op 51833(U) |
| Decided on November 7, 2025 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on November 7, 2025
PRESENT: : LISA S. OTTLEY, J.P., WAVNY TOUSSAINT, MARINA CORA MUNDY, JJ
2025-16 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated September 9, 2024. 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 affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Odessa Kennedy, J.) dated September 9, 2024 granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross-motion for summary judgment.
Contrary to plaintiff’s contention, the affidavits of defendant’s employees were sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co., 78 Misc 3d 133[A], 2023 NY Slip Op 50442[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). In view of the foregoing, plaintiff has demonstrated no basis to disturb the order granting defendant’s motion and denying plaintiff’s cross-motion.
Accordingly, the order is affirmed.
OTTLEY, J.P., TOUSSAINT and MUNDY, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 7, 2025
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Center, LLC (2025 NY Slip Op 06054)
| Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Center, LLC |
| 2025 NY Slip Op 06054 |
| Decided on November 5, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-03984
(Index No. 522399/22)
v
Bay Ridge Surgi-Center, LLC, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Short & Billy, P.C., New York, NY (Seok Ho (Richard) Kang of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated May 23, 2022, Bay Ridge Surgi-Center, LLC, appeals from a judgment of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated October 6, 2023. The judgment, insofar as appealed from, upon an order of the same court dated August 23, 2023, among other things, granting that branch of the cross-petition of Bay Ridge Surgi-Center, LLC, which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees to the extent of awarding it additional attorney’s fees in the sum of $250, awarded Bay Ridge Surgi-Center, LLC, additional attorney’s fees in the sum of only $250.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Bay Ridge Surgi-Center, LLC (hereinafter Bay Ridge), pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated May 23, 2022, affirming an arbitration award entered in favor of Bay Ridge. Bay Ridge cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated August 23, 2023, the Supreme Court denied the petition, confirmed the master arbitration award, and granted that branch of the cross-petition to the extent of awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $250. Thereafter, on October 6, 2023, the court, upon the order, issued a judgment, among other things, awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $250. Bay Ridge appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney’s fees “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to Bay Ridge’s contention, the Supreme Court acted within its discretion in awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $250 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Bay Ridge failed to submit an affirmation or an affidavit in support of its cross-petition, inter alia, describing the nature of the work performed and the amount of time expended on the matter, it was within the court’s discretion to determine a reasonable amount of attorney’s fees (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, Bay Ridge failed to request a hearing on the issue of an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) (see Sieratzki v Sieratzki, 8 AD3d 552, 554). Under these circumstances, and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4).
Bay Ridge’s remaining contention is academic in light of our determination.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Center, LLC (2025 NY Slip Op 06055)
| Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Center, LLC |
| 2025 NY Slip Op 06055 |
| Decided on November 5, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-08894
(Index No. 530082/22)
v
Bay Ridge Surgi-Center, LLC, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Larkin Farrell LLC, New York, NY (William Larkin of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 20, 2022, Bay Ridge Surgi-Center, LLC, appeals from a judgment of the Supreme Court, Kings County (Richard Velasquez, J.), dated June 12, 2024. The judgment, insofar as appealed from, upon an order of the same court dated June 5, 2024, granting the motion of Bay Ridge Surgi-Center, LLC, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees to the extent of awarding it additional attorney’s fees in the sum of $1,100, awarded Bay Ridge Surgi-Center, LLC, additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of only $1,100.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Bay Ridge Surgi-Center, LLC (hereinafter Bay Ridge), pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 20, 2022, affirming an arbitration award entered in favor of Bay Ridge. Bay Ridge cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated September 27, 2023, the Supreme Court, inter alia, upon its determination that Bay Ridge was entitled to additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), granted Bay Ridge leave to file a motion for a determination of the amount of additional attorney’s fees to be awarded to Bay Ridge. Thereafter, Bay Ridge moved pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. The petitioner opposed the motion. In an order dated June 5, 2024, the court granted the motion to the extent of awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100. Thereafter, the court, upon the order, issued a judgment, among other things, awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100. Bay Ridge appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney’s fees “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to Bay Ridge’s contention, the Supreme Court acted within its discretion in awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100, notwithstanding Bay Ridge’s submission of an affirmation of its counsel setting forth a fee for work expended in the sum of $4,450 (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Bay Ridge failed to request a hearing on the issue of an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) (see Boddie-Willis v Marziliano, 78 AD3d 978, 979). Moreover, in fixing the fee award, the court acted within its discretion in considering, inter alia, the prevailing rate for similar work and the complexity of the matter at issue (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 839-840). Under these circumstances, there is no basis to disturb the court’s award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Pfeffer (2025 NY Slip Op 06056)
| Matter of American Tr. Ins. Co. v Pfeffer |
| 2025 NY Slip Op 06056 |
| Decided on November 5, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-03982
(Index No. 531336/22)
v
Michelle Pfeffer, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Short & Billy, P.C., New York, NY (Seok Ho (Richard) Kang of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 26, 2022, Michelle Pfeffer appeals from a judgment of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated November 17, 2023. The judgment, insofar as appealed from, upon an order of the same court dated October 18, 2023, among other things, granting that branch of the cross-petition of Michelle Pfeffer which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees to the extent of awarding her additional attorney’s fees in the sum of $500, awarded Michelle Pfeffer additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of only $500.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Michelle Pfeffer pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 26, 2022, affirming an arbitration award entered in favor of Pfeffer. Pfeffer cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated October 18, 2023, the Supreme Court denied the petition, confirmed the master arbitration award, and granted that branch of the cross-petition to the extent of awarding Pfeffer additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of only $500. Thereafter, on November 17, 2023, the court, upon the order, issued a judgment, among other things, awarding Pfeffer additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $500. Pfeffer appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney’s fees “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to Pfeffer’s contention, the Supreme Court acted within its discretion in awarding her additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $500 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Pfeffer failed to submit an affirmation or an affidavit in support of her cross-petition, inter alia, describing the nature of the work performed and the amount of time expended on the matter, it was within the court’s discretion to determine a reasonable amount of attorney’s fees (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, Pfeffer failed to request a hearing on the issue of an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) (see Sieratzki v Sieratzki, 8 AD3d 552, 554). Under these circumstances, and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4).
Pfeffer’s remaining contention is academic in light of our determination.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Scob, LLC (2025 NY Slip Op 06057)
| Matter of American Tr. Ins. Co. v Scob, LLC |
| 2025 NY Slip Op 06057 |
| Decided on November 5, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-08898
(Index No. 505435/23)
v
SCOB, LLC, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Larkin Farrell LLC, New York, NY (William Larkin of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated December 16, 2022, SCOB, LLC, appeals from a judgment of the Supreme Court, Kings County (Richard Velasquez, J.), dated June 12, 2024. The judgment, insofar as appealed from, upon an order of the same court dated June 5, 2024, granting the motion of SCOB, LLC, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees to the extent of awarding it additional attorney’s fees in the sum of $1,100, awarded SCOB, LLC, additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of only $1,100.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against SCOB, LLC (hereinafter SCOB), pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated December 16, 2022, affirming an arbitration award entered in favor of SCOB. SCOB cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated September 27, 2023, the Supreme Court, inter alia, upon its determination that SCOB was entitled to an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), granted SCOB leave to file a motion for a determination of the amount of additional attorney’s fees to be awarded to SCOB. Thereafter, SCOB moved for an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4). The petitioner opposed the motion. In an order dated June 5, 2024, the court granted the motion to the extent of awarding SCOB additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100. Thereafter, the court, upon the order, issued a judgment, among other things, awarding SCOB additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100. SCOB appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney’s fees “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to SCOB’s contention, the Supreme Court acted within its discretion in awarding it additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100, notwithstanding SCOB’s submission of an affirmation of its counsel setting forth a fee for work expended in the sum of $4,550 (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since SCOB failed to request a hearing on the issue of an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) (see Boddie-Willis v Marziliano, 78 AD3d 978, 979). Moreover, in fixing the fee award, the court acted within its discretion in considering, inter alia, the prevailing rate for similar work and the complexity of the matter at issue (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 839-840). Under these circumstances, there is no basis to disturb the court’s award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Hereford Ins. Co. v 21 Century Chiropractic Care (2025 NY Slip Op 06022)
| Hereford Ins. Co. v 21 Century Chiropractic Care |
| 2025 NY Slip Op 06022 |
| Decided on October 30, 2025 |
| 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. |
Before: Moulton, J.P., Gesmer, González, Higgitt, Michael, JJ.
Index No. 150314/22|Appeal No. 5079|Case No. 2024-06498|
v
21 Century Chiropractic Care et al., Defendants, Cross Bay Orthopedic Surgery et al., Defendants-Appellants.
Roman Kravchenko, Huntington (Jason Tenenbaum of counsel), for appellants.
Goldberg, Miller & Rubin PC, New York (Victoria Tarasova of counsel), for respondent.
Order, Supreme Court, New York County (Mary V. Rosado, J.), entered October 1, 2024, which, to the extent appealed from as limited by the briefs, granted plaintiff’s cross-motion for summary judgment as against defendants Cross Bay Orthopedic Surgery, Maspeth Med Supply, Inc., Multimed Supply, Inc., NYC Best Supply Inc., and Ozone RX Inc., unanimously affirmed, with costs.
The appealing defendants argue that a failure to subscribe an transcript from an examination under oath (EUO) is a violation of a condition precedent to contract performance rather than violation of a condition precedent to coverage. However, these defendants failed to raise this argument before Supreme Court, and the issue is therefore unpreserved for our review (see Pirraglia v CCC Realty NY Corp., 35 AD3d 234, 235 [1st Dept 2006]). In any event, the argument is also unavailing, as we have previously held that a claimant’s failure to subscribe EUO transcripts did, in fact, violate a condition precedent to coverage, voiding the policy ab initio and warranting denial of the claim (see Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 185 AD3d 468, 468-469 [1st Dept 2020]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).
Likewise, defendants failed to preserve their argument that under the standard articulated in Thrasher v United States Liab. Ins. Co. (19 NY2d 159, 168 [1967]), this Court must determine whether the claimants’ failure to subscribe their EUO transcripts was willful. Even were it preserved, this argument is also unavailing. “The doctrine of willfulness, as addressed in Thrasher . . . applies in the context of liability policies, and has no application in the No-Fault context, where the eligible injured party has full control over the requirements and conditions necessary to obtain coverage” (Unitrin Advantage Ins. Co., 82 AD3d at 561). This case involves no-fault coverage, and we find no reason to depart from Unitrin Advantage.
Also unpreserved is defendants’ argument that plaintiff’s subscription demands were untimely. Furthermore, as with defendants’ other unpreserved arguments, the argument is unavailing. “An insurer must request any ‘additional verification . . . to establish proof of claim’ within 15 business days after receiving the ‘prescribed verification forms’ it forwarded to the parties required to complete them” (Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 618 [1st Dept 2018], quoting 11 NYCRR 65-3.5 [a], [b]). Plaintiff timely sent the subscription demand as the depositions for both claimants were noticed for September 20, 2021, and plaintiff made its subscription demands on October 1 and October 7, 2021; thus, only 9 and 14 business days, respectively, elapsed.
Defendants may not rely on the claimants’ submission of their subscribed EUO transcripts in June 2024 to argue that the claimants complied with plaintiff’s demand. An insurer may deny a claim if 120 days pass without a claimant providing the required verification or a valid written excuse (see 11 NYCRR 65-3.8 [b][3]). Plaintiff requested the subscriptions in October 2021, and years passed before claimants responded.
We have considered defendants’ remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 30, 2025
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Big Apple Pain Mgt., PLLC (2025 NY Slip Op 05948)
| Matter of American Tr. Ins. Co. v Big Apple Pain Mgt., PLLC |
| 2025 NY Slip Op 05948 |
| Decided on October 29, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
VALERIE BRATHWAITE NELSON, J.P.
LINDA CHRISTOPHER
LILLIAN WAN
DONNA-MARIE E. GOLIA, JJ.
2024-03259
(Index No. 515654/22)
v
Big Apple Pain Management, PLLC, etc., appellant.
Beynenson Law Firm, P.C., Franklin Square, NY (Alek Beynenson of counsel), for appellant.
Larkin Farrell, LLC, New York, NY (William R. Larkin III of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated April 8, 2022, which confirmed an award of an arbitrator dated December 4, 2021, Big Apple Pain Management, PLLC, appeals from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated January 24, 2024. The order granted the petition to vacate the master arbitrator’s award and, in effect, denied the cross-petition of Big Apple Pain Management, PLLC, to confirm the master arbitrator’s award.
ORDERED that the order is reversed, on the law, with costs, the petition is denied, the cross-petition is granted, and the master arbitrator’s award dated April 8, 2022, is confirmed.
In October 2019, Carlos Nieto was involved in a motor vehicle accident in Staten Island. From February 2020 through June 2020, Nieto received medical services from Big Apple Pain Management, PLLC (hereinafter Big Apple), for injuries he sustained in the accident. Big Apple submitted insurance claims to the petitioner American Transit Insurance Company (hereinafter American Transit) for reimbursement of the cost of services performed, in the total sum of $1,417.73. American Transit denied the insurance claims. Thereafter, Big Apple submitted the insurance claims to arbitration. In an award dated December 4, 2021, after a hearing, an arbitrator awarded Big Apple the total sum of $1,417.73. American Transit then requested that the matter be reviewed by a master arbitrator. In an award of the master arbitrator dated April 8, 2022, the master arbitrator confirmed the arbitration award dated December 4, 2021, in its entirety.
In May 2022, American Transit commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. Big Apple opposed the petition and cross-petitioned to confirm the award. In an order dated January 24, 2024, the Supreme Court granted the petition to vacate the master arbitrator’s award and, in effect, denied Big Apple’s cross-petition. Big Apple appeals.
“‘Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly [*2]applied'” (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d 649, 650, quoting Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017). “Arbitrators exceed their power only when they issue an award that ‘violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power'” (Matter of County of Nassau v Nassau County Investigators Police Benevolent Assn., Inc., 203 AD3d 824, 826, quoting American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 35 NY3d 64, 70; see Matter of Dluhy v Sive, Paget & Riesel, P.C., 220 AD3d 659, 659). “‘The master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator'” (Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168, 1168, quoting Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577; see Matter of Advanced Orthopaedics, PLLC v Country-Wide Ins. Co., 204 AD3d 787, 787).
Here, American Transit failed to demonstrate the existence of any statutory grounds for vacating the master arbitrator’s award (see Matter of V.S. Care Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 832, 833-834; Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth., 167 AD3d 869, 870).
Accordingly, the Supreme Court should have denied the petition to vacate the master arbitrator’s award and granted the cross-petition to confirm the master arbitrator’s award.
BRATHWAITE NELSON, J.P., CHRISTOPHER, WAN and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court