Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04291)

Reported in New York Official Reports at Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04291)

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 04291 [251 AD3d 676]

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 confirm a master arbitration award dated May 10, 2023, Country-Wide Ins. Co. appeals from (1) an order of the Supreme Court, Kings County (Rupert V. Barry, J.), dated October 23, 2023, and (2) a judgment of the same court dated November 15, 2023. The order granted the petition of 563 Grand Medical, P.C., inter alia, to confirm the master arbitration award and denied the cross-petition of Country-Wide Ins. Co. to stay this proceeding pending the determination of an appeal in a related proceeding, or to vacate the master arbitration award, or, alternatively, to modify so much of the master arbitration award as determined that 563 Grand Medical, P.C., was entitled to recover statutory compound interest from September 10, 2003. The judgment, upon the order, is in favor of 563 Grand Medical, P.C., and against Country-Wide Ins. Co. in the principal sum of $4,999, with statutory compound interest from September 10, 2003, in the sum of $597,733.63.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is modified, on the law, by deleting the provision thereof in favor of 563 Grand Medical, P.C., and against Country-Wide Ins. Co. awarding statutory compound interest from September 10, 2003, in the sum of $597,733.63; as so modified, the judgment is affirmed, that branch of the petition which was to confirm so much of the master arbitration award dated May 10, 2023, as awarded statutory compound interest from September 10, 2003, is denied, that branch of the cross-petition which was to modify so much of the master arbitration award dated May 10, 2023, as awarded statutory compound interest from September 10, 2003, is granted to the extent that the master arbitration award is modified so as to exclude from the computation of statutory compound interest on the claims of 563 Grand Medical, P.C., the period of September 10, 2003, through November 6, 2018, the order dated October 23, 2023, is modified accordingly, and the matter is remitted to the Supreme Court, Kings County, for a recalculation of the statutory compound interest due on the master arbitration award, a determination of the appropriate amount to be awarded to 563 Grand Medical, P.C., as additional attorneys’ fees for the litigation of this appeal, and the entry of an appropriate amended judgment thereafter; and it is further,

Ordered that one bill of costs is awarded to 563 Grand Medical, P.C.

[*2]The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the proceeding (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

563 Grand Medical, P.C. (hereinafter Grand Medical), commenced a no-fault arbitration proceeding to recover no-fault insurance benefits from Country-Wide Ins. Co. (hereinafter Country-Wide) for medical services provided to Grand Medical’s assignee following a motor vehicle accident on August 3, 1999. On September 10, 2003, an arbitrator dismissed the proceeding, without prejudice. Grand Medical commenced an action in the Civil Court of the City of New York, Kings County, to recover no-fault insurance benefits for the August 3, 1999 accident (hereinafter the Civil Court action). In 2015, Country-Wide’s motion for summary judgment dismissing the complaint in the Civil Court action was granted under Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260, 263-264 [1985]) on the basis that Grand Medical had elected arbitration as the forum for resolution of its claims. The Civil Court’s order granting Country-Wide’s motion for summary judgment dismissing the complaint in the Civil Court action was affirmed by the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts on November 2, 2018. Grand Medical then commenced an arbitration proceeding on November 6, 2018, to recover the same no-fault insurance benefits.

Ultimately, an arbitrator granted Grand Medical’s claim for no-fault insurance benefits in the amount of $4,999. The arbitrator also determined that Grand Medical was entitled to compound interest at the statutory rate of 2% per month (see 11 NYCRR 65-3.9 [a]) from September 10, 2003. The arbitrator’s determination was affirmed by a master arbitrator in a master arbitration award dated May 10, 2023.

Grand Medical commenced this CPLR article 75 proceeding, inter alia, to confirm the master arbitration award dated May 10, 2023, and Country-Wide cross-petitioned to stay this proceeding pending the resolution of its appeal in a related proceeding, or to vacate the master arbitration award, or, alternatively, to modify so much of the master arbitration award as determined that Grand Medical was entitled to recover statutory compound interest from September 10, 2003, so as to limit the accrual of compound interest to simple interest accruing from November 6, 2018. In an order dated October 23, 2023, the Supreme Court granted the petition and denied the cross-petition. A judgment was issued, upon the order, in favor of Grand Medical and against Country-Wide in the principal sum of $4,999, with statutory compound interest from September 10, 2003, in the sum of $597,733.63. Country-Wide appeals.

Initially, Country-Wide’s contention that the Supreme Court should have granted that branch of its cross-petition which was to stay the proceeding pending the determination of a related appeal has been rendered academic in light of our determination on that appeal (see Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co., 251 AD3d —, 2026 NY Slip Op 04292 [2026] [decided herewith]).

“Since arbitration under the no-fault law is compulsory, the scope of review of the master arbitrator’s award is whether it ‘was arbitrary and capricious, irrational or without a plausible basis’ ” (Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co., 176 AD3d 695, 696 [2019], quoting Matter of Farrell [Allstate Ins. Co.], 232 AD2d 934, 935 [1996]; see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802 [2019]). Here, contrary to Country-Wide’s contention, the master arbitration award affirming the arbitrator’s determination that Grand Medical was entitled to payment on its claims for no-fault insurance benefits had evidentiary support and was not arbitrary and capricious (see Matter of American Tr. Ins. Co. v Big Apple Pain Mgt., PLLC, 242 AD3d 1198, 1199 [2025]; Matter of V.S. Care Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 832, 833 [2019]).

Furthermore, the master arbitrator’s affirmance of the determination of the arbitrator to apply the former no-fault regulation providing for compound interest on Grand Medical’s claims (see former 11 NYCRR 65.15 [h]) was not arbitrary and capricious or irrational. The former [*3]regulation was in effect at the time of the underlying accident and Grand Medical’s submission of its claims to Country-Wide (see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 155 [2021]; New Generation Wellness Chiropractic, P.C. v Country-Wide Ins. Co., 75 Misc 3d 54, 55 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

However, under 11 NYCRR 65-3.9 (d) interest will not accumulate if “the applicant unreasonably delays the arbitration or court proceeding” (id.). Under the circumstances of this case, the determination that Grand Medical did not unreasonably delay the arbitration proceeding during the period of September 10, 2003, through November 6, 2018, lacked evidentiary support and a rational basis, and this period should have been excluded from the calculation of interest on Grand Medical’s claims (see Vitality Chiropractic, P.C. v Countrywide Ins., 59 Misc 3d 150[A], 2018 NY Slip Op 50838[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Country-Wide’s remaining contentions are without merit.

As Grand Medical correctly contends, it is entitled to an award of additional attorneys’ fees for this appeal (see 11 NYCRR 65-4.10 [j] [4]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168 [2019]).

Accordingly, we remit the matter to the Supreme Court, Kings County, for a recalculation of the statutory compound interest due on the master arbitration award in accordance herewith, a determination of the appropriate amount to be awarded to Grand Medical as additional attorneys’ fees for the litigation of this appeal, and the entry of an appropriate amended judgment thereafter. Iannacci, J.P., Wooten, Dowling and McCormack, JJ., concur.

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04292)

Reported in New York Official Reports at Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04292)

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 04292 [251 AD3d 680]

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 vacate a master arbitration award dated February 18, 2020, Country-Wide Ins. Co. appeals from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated December 21, 2020. The order, insofar as appealed from, granted that branch of the petition of 563 Grand Medical, P.C., which was to vacate the master arbitration award and denied the cross-petition of Country-Wide Ins. Co. to confirm the master arbitration award.

Ordered that the order is affirmed insofar as appealed from, with costs.

563 Grand Medical, P.C. (hereinafter Grand Medical), commenced a no-fault arbitration proceeding to recover payment from Country-Wide Ins. Co. (hereinafter Country-Wide) for medical services provided to Grand Medical’s assignee following a motor vehicle accident on August 3, 1999. On September 10, 2003, an arbitrator dismissed the proceeding, without prejudice, on the ground that Grand Medical’s proof was insufficient to establish that the medical services were provided by its owner or employees rather than by independent contractors and, thus, that Grand Medical had failed to prove standing to commence the proceeding. Following civil litigation, on November 6, 2018, Grand Medical again commenced a no-fault arbitration proceeding against Country-Wide. The arbitrator denied the claims on the ground that Grand Medical failed to prove its standing in the same manner. In a master arbitration award dated February 18, 2020, a master arbitrator affirmed the arbitration award.

Thereafter, Grand Medical commenced this proceeding pursuant to CPLR article 75, inter alia, to vacate the master arbitration award. Country-Wide cross-petitioned to confirm the master arbitration award. In an order dated December 21, 2020, the Supreme Court, among other things, granted that branch of the petition and denied the cross-petition. Country-Wide appeals.

“Since arbitration under the no-fault law is compulsory, the scope of review of the master arbitrator’s award is whether it ‘was arbitrary and capricious, irrational or without a plausible basis’ ” (Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co., 176 AD3d 695, 696 [2019], quoting Matter of Farrell [Allstate Ins. Co.], 232 AD2d 934, 935 [1996]; see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802 [2019]). Further, “[a]n arbitration award may be vacated if the court finds that the rights of the moving party were prejudiced by . . . the [*2]arbitrator exceeding his or her power” (Matter of Banegas v GEICO Ins. Co., 167 AD3d 873, 874 [2018]; see CPLR 7511 [b]).

“It has long been established that an arbitrator’s authority extends to only those issues that are actually presented by the parties” (Matter of Joan Hansen & Co., Inc. v Everlast World’s Boxing Headquarters Corp., 13 NY3d 168, 173 [2009]; see Matter of Banegas v GEICO Ins. Co., 167 AD3d 873, 874 [2018]). As a result, “an arbitrator is precluded from identifying and considering an affirmative defense that is not pleaded by a party to the arbitration” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 44 [2015]).

Here, Country-Wide failed to assert at the arbitration proceeding that Grand Medical lacked standing. Instead, the arbitrator impermissibly raised the issue of standing sua sponte (see Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co., 44 AD3d 857, 858 [2007]; see also Matter of Joan Hansen & Co., Inc. v Everlast World’s Boxing Headquarters Corp., 13 NY3d at 173; Matter of Banegas v GEICO Ins. Co., 167 AD3d at 874). On that basis, the Supreme Court properly granted that branch of the petition which was to vacate the master arbitration award and denied the cross-petition to confirm the master arbitration award (see Matter of Banegas v GEICO Ins. Co., 167 AD3d at 874; Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co., 44 AD3d at 858). Iannacci, J.P., Wooten, Dowling and McCormack, JJ., concur.

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04290)

Reported in New York Official Reports at Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04290)

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 04290 [251 AD3d 675]

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 vacate a master arbitration award dated April 7, 2021, Country-Wide Ins. Co. appeals from an order of the Supreme Court, Kings County (Lillian Wan, J.), dated December 22, 2021. The order, insofar as appealed from, granted that branch of the petition of 563 Grand Medical, P.C., which was to vacate the master arbitration award and denied the cross-petition of Country-Wide Ins. Co. to confirm the master arbitration award.

Ordered that the order is affirmed insofar as appealed from, with costs.

563 Grand Medical, P.C. (hereinafter Grand Medical), commenced a prior proceeding against Country-Wide Ins. Co. (hereinafter Country-Wide) pursuant to CPLR article 75, inter alia, to vacate a prior master arbitration award dated February 18, 2020 (hereinafter the first master arbitration award). The first master arbitration award had affirmed an arbitration award denying Grand Medical’s claims for no-fault insurance benefits on the ground that Grand Medical failed to prove its standing to commence the prior proceeding. In an order dated December 21, 2020, the Supreme Court, among other things, granted that branch of the prior petition which was to vacate the first master arbitration award and denied Country-Wide’s cross-petition to confirm the first master arbitration award, concluding that the issue of standing had been impermissibly raised, sua sponte, by the arbitrator. The court referred the matter to arbitration for further proceedings on Grand Medical’s claims. Thereafter, a master arbitrator rendered a master arbitration award dated April 7, 2021 (hereinafter the second master arbitration award), that was nearly identical to the first master arbitration award and failed to provide any new explanation for the denial of Grand Medical’s claims.

Grand Medical commenced this proceeding pursuant to CPLR article 75, inter alia, to vacate the second master arbitration award. Country-Wide cross-petitioned to confirm the second master arbitration award. In an order dated December 22, 2021, the Supreme Court, inter alia, granted that branch of the petition and denied Country-Wide’s cross-petition.

For the reasons set forth in Matter of 563 Grand Med., P.C. v Country-Wide Ins. [*2]Co. (251 AD3d —, 2026 NY Slip Op 04292 [2026] [decided herewith]), the Supreme Court properly granted that branch of the petition which was to vacate the second master arbitration award and denied Country-Wide’s cross-petition to confirm the second master arbitration award.

Country-Wide’s remaining contention is without merit. Iannacci, J.P., Wooten, Dowling and McCormack, JJ., concur.

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04293)

Reported in New York Official Reports at Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04293)

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 04293 [251 AD3d 681]

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 vacate a master arbitration award dated February 18, 2020, Country-Wide Ins. Co. appeals from (1) an order of the Supreme Court, Kings County (Lillian Wan, J.), dated November 10, 2021, and (2) a money judgment of the same court dated November 15, 2023. The order granted the motion of 563 Grand Medical, P.C., for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). The money judgment, upon the order, awarded 563 Grand Medical, P.C., additional attorneys’ fees in the sum of $1,950, plus costs and disbursements.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the money judgment is reversed, on the law, the motion of 563 Grand Medical, P.C., for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) is denied, and the order is modified accordingly; and it is further,

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

The appeal from the order must be dismissed because the order was superseded by the money judgment dated November 15, 2023 (see Burns v Burns, 229 AD3d 675, 676 [2024]; Christopulos v Christopulos, 209 AD3d 970 [2022]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the money judgment (see Burns v Burns, 229 AD3d at 676).

563 Grand Medical, P.C. (hereinafter Grand Medical), commenced this proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated February 18, 2020, which affirmed an arbitration award that had denied Grand Medical’s claims against Country-Wide Ins. Co. (hereinafter Country-Wide) for no-fault insurance benefits. In an order dated December 21, 2020, the Supreme Court, among other things, granted that branch of the petition which was to vacate the master arbitration award, denied Country-Wide’s cross-petition to confirm the master arbitration award, and referred the matter to arbitration for further proceedings.

Grand Medical moved for an award of additional attorneys’ fees pursuant to 11 [*2]NYCRR 65-4.10 (j) (4). In an order dated November 10, 2021, the Supreme Court granted the motion, and a money judgment dated November 15, 2023, was issued awarding Grand Medical additional attorneys’ fees in the sum of $1,950, plus costs and disbursements. Country-Wide appeals.

Insurance Law § 5106 (a) provides: “If a valid claim or portion was overdue, the claimant shall also be entitled to recover his 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 relevant regulation providing such “[l]imitations on attorneys’ fees pursuant to section 5106 of the Insurance Law,” specifies that “[t]he attorneys’ fee for services rendered . . . in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10 [j] [4]).

Thus, under the statute and its implementing regulation, “a claimant is entitled to recover attorney’s fees where a ‘valid claim or portion’ was denied or overdue” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997], quoting Insurance Law § 5106 [a]). Here, however, at the time that Grand Medical moved for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), no determination had been made that Grand Medical had a valid claim that was denied or overdue (cf. Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 782-783 [2025]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168 [2019]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 704-706 [2017]). Rather, the Supreme Court had merely decided that the claims should not have been denied for failure to prove standing and the matter was referred to arbitration for further proceedings on Grand Medical’s claims for no-fault insurance benefits. Under those circumstances, Grand Medical did not demonstrate its entitlement to an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) (see Matter of Fast Care Med. Diagnostics, PLLC/PV v Government Empls. Ins. Co., 161 AD3d 1149, 1151 [2018]; see also Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co., 176 AD3d 695, 696 [2019]).

Accordingly, we reverse the money judgment and deny Grand Medical’s motion for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

Grand Medical’s remaining contention is without merit. Iannacci, J.P., Wooten, Dowling and McCormack, JJ., concur.

Maxim Orthopaedics PLLC v MVAIC (2026 NY Slip Op 51282(U))

Reported in New York Official Reports at Maxim Orthopaedics PLLC v MVAIC (2026 NY Slip Op 51282(U))

Maxim Orthopaedics PLLC v MVAIC

2026 NY Slip Op 51282(U) [89 Misc 3d 1246(A)]

Decided on July 2, 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 July 2, 2026

Index No. CV-720612-25/RI

Robert J. Helbock, J.

[*1]

Upon the foregoing cited papers, the decision on Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment is as follows:

Plaintiff, Maxim Orthopaedics PLLC (hereafter referred to as “Plaintiff”), as assignee of Brigido Umana (hereafter referred to as “Assignor”), commenced this action against the defendant, MVAIC (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.

The Defendant moves for an order (i) pursuant to CPLR 3013, 3212(b), and 3211(a)(1), granting summary judgment on the ground that the bills were timely and properly denied, and (ii) for such other relief as the Court deems appropriate. Plaintiff submitted opposition to the motion by way of a cross-motion, discussed below. Defendant submitted an affirmation in reply to the initial motion and in opposition to Plaintiff’s cross-motion. The motion was argued, and the Court reserved decision.

The underlying claims concern eight bills submitted by Plaintiff for services rendered to the Assignor. It is undisputed that five of the bills were submitted after the 45-day time frame prescribed by 11 N.Y.C.R.R. §65-1.1.^FN1 The Defendant alleges that it never received three of the eight bills. The bills are outlined below:

Bill received May 24, 2024, for date of service January 11, 2024, in the amount of $198.28,

Bill received November 1, 2024, for date of service March 28, 2024, in the amount of $70.24,

Bill received November 1, 2024, for date of service April 23, 2024, in the amount of $412.72,

Bill received November 1, 2024, for date of service June 18, 2024, in the amount of $75.00,

Bill received November 1, 2024, for date of service July 16, 2024, in the amount of [*2]$75.00,

The five bills described above are collectively referred to hereafter as the “Late Bills”

Bill allegedly not received for date of service April 16, 2024, in the amount of $70.24

Bill allegedly not received for date of service April 23, 2024, in the amount of $3,857.19

Bill allegedly not received for date of service May 21, 2024, in the amount of $75.00

Late Bills Discussion

Each of the Late Bills were submitted after the 45-day requirement set forth in 11 N.Y.C.R.R. §65-1.1. Defendant argues that because these bills were submitted in violation of the regulation, its denials were timely and proper. Plaintiff, in opposition, argues that Defendant failed to conduct a supervisory review of the claim to determine whether there was any reasonable justification for the delay. Plaintiff contends that the bills were initially sent to Geico in error and were later sent to MVAIC upon learning it was the proper carrier.

The Supreme Court, Appellate Term has held that MVAIC may establish its prima facie entitlement to summary judgment by submitting evidence showing that it denied plaintiff’s no-fault claims as untimely because they were submitted more than 45 days after services were rendered; that its denials informed plaintiff that MVAIC would excuse the delay if plaintiff provided a “reasonable justification” for the late submission; and that plaintiff did not submit any additional materials in response to the denials (Carniol v. MVAIC, 62 Misc 3d 148[A] [NY App. Term. 2019], citations omitted). Cover letters stating that claims were initially sent to another carrier do not constitute justification for late submission to MVAIC; there must be an explanation for why the claims were first submitted elsewhere and/or proof that, after learning MVAIC was the proper carrier, the claims were submitted within a reasonable time (Id).

Here, each of the Late Bills were submitted more than 45 days after the services were rendered. Each denial informed the Assignor that late submission would be excused if a reasonable justification was provided.^FN2 There is nothing before the Court to demonstrate that any additional materials were submitted in response to these denials. Accordingly, the Court finds that Defendant has met its prima facie burden for summary judgment with respect to each of the Late Bills.

Plaintiff, in turn, fails to raise a triable issue of fact. The cover letters do not explain why the claims were initially sent to Geico, nor do they state when Plaintiff learned that MVAIC was the proper carrier. Moreover, even viewing the facts in the light most favorable to Plaintiff and assuming Plaintiff learned that MVAIC was the proper carrier on April 25, 2024 (the date of the cover letter attached to the first bill), at least two of the bills were sent to Geico after that date.

Therefore, Defendant’s motion for summary judgment is granted with respect to each of the Late Bills.

Bills Allegedly Not Received

The Defendant alleges non-receipt of three of the bills in suit, which the Plaintiff in opposition alleges were mailed.

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Progressive Cas. Ins. Co. v. Metro Psychological [*3]Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 114 AD3d 33, 36 [2d Dept 2013], aff’d, 25 NY3d 498, 35 N.E.3d 451 [2015]). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Progressive at 694, citing Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 679 [2 Dept 2001]). “However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive at 694). To establish proper mailing, the movant must present proof of mailing that includes a description of the process that identifies the documents, how the envelope is addressed by the automated system or employee to insure the address is correct, “how and when the envelopes, once sealed, weighed and affixed with postage using the automated system, were transferred to the care and custody of the United States Postal Service or some other carrier to be delivered” (Progressive Cas. Ins. Co. v. Infinite Ortho Prods., Inc., 127 AD3d 1050, 1052 [2d Dept 2015]).

The Court has reviewed the proof of mailing stamped by the USPS as well as the affidavit of Marina Prosalova, billing administrator for the Plaintiff, offered by the Plaintiff. These required elements were provided in Ms. Prosalova’s affidavit. Therefore, Ms. Prosalova’s affidavit sufficiently establishes, as a matter of law, that the bills were timely and properly mailed to the Defendant.

With regards to these bills, Plaintiff has “made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue” (Mary Immaculate Hosp. v Allstate Inc. Co., 5 AD3d 742 [2d Dept 2004] citing Insurance Law §5196[a]; 11 NYCRR 65.15[g][3]; St Luke’s Roosevelt Hosp. V American Tr. Inc. Co., 1 AD3d 498 [2nd Dept., 2003]).

The Defendant has failed to rebut Plaintiff’s prima facie showing. Therefore, the Plaintiff’s cross-motion for summary judgment is granted with respect to each of these bills, to the extent the Plaintiff has established its prima facie burden of proof.

Conclusion

Accordingly, it is hereby:

ORDERED, that Defendant’s Motion for Summary Judgment is GRANTED and the causes of action for the bills for the dates of service of: January 11, 2024, March 28, 2024, April 23, 2024, June 18, 2024 and July 16, 2024 are dismissed, and Plaintiff’s Cross-Motion for Summary Judgment for those bills is DENIED, but as to the remaining bills; and it is further

ORDERED, that Defendant’s Motion for Summary Judgment is DENIED and Plaintiff’s Cross-Motion for Summary Judgment is GRANTED to the extent the Plaintiff has met its prima facie burden of proof regarding the bills for dates of services May 21, 2024, in the amount of $75.00; April 23, 2024, in the amount of $3,857.19; and April 16, 2024, in the amount of $70.24 and it is further

ORDERED, that the matter is referred to trial regarding the affirmative defenses raised by the Defendant to the remaining bills.

This is the Decision and Order of the Court.

Delacruz-Gomez v New Jersey Mfrs. Ins. Co. (2026 NY Slip Op 50999(U))

Reported in New York Official Reports at Delacruz-Gomez v New Jersey Mfrs. Ins. Co. (2026 NY Slip Op 50999(U))

Delacruz-Gomez v New Jersey Mfrs. Ins. Co.

2026 NY Slip Op 50999(U) [89 Misc 3d 1219(A)]

Decided on June 26, 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 June 26, 2026

Index No. CV-732586/22/KI

Sandra Elena Roper, J.

[*1]

Upon the foregoing cited papers, and after oral arguments, the Decision/Order on Defendant’s Motion for Summary Judgment, Plaintiff’s Motion for Default Judgment and advanced Plaintiff’s Cross-Motion for Summary Judgment are as follows:

Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment are rejected as a matter of law as procedurally improper as issue had not been joined. On November 21, 2022, Plaintiff rejected Defendant’s Answer dated November 8, 2022, and moved for Default Judgment. Thus, issue was not joined rendering both motions for summary judgment procedurally improper as a matter of law. Plaintiff’s attempt to argue an inference of joinder of issue by its filing the Cross-Motion for Summary Judgment and Defendant serving an Answer although rejected by Plaintiff, nevertheless, operates as a notice of appearance for the proposition to establish Defendant’s waiver of jurisdictional defense is rejected. Once an Answer is rejected, nothing that may flow from that Answer can be considered. Plaintiff may not opportunistically argue that the Answer must be considered in one respect, as notice of [*2]appearance to waive jurisdictional defense, whereas simultaneously rejecting consideration of the Answer as responsive pleading for joinder of issue. Ultimately, Plaintiff bears the initial burden of establishing jurisdiction. Plaintiff’s affidavit of service, which purports to effectuate service pursuant to VTL §253, fails to establish personal jurisdiction over Defendant, a nonresident corporate insurer, neither an owner nor operator in a No-Fault action. “Therefore, as a matter of law, this method of service is improper on its face and void ab initio. Plaintiff failed to properly effectuate service of process divesting This Court of jurisdiction over Defendant” (A to Z Supply Servs., Inc. v. 21st Century Ins. Co., 2025 NY Slip Op 51887(U), [Civ Ct, Kings County 2025], citing Pedro Torres-Jimenez MD, P.C. v Am. Access Cas. Co., 2025 NY Slip Op 50358 *3 [U] [Civ Ct, Kings County 2025]). In furtherance of the administration of justice, This Court rejects and rebukes the use of this improper on its face and void ab initio method of service as a litigation tactic.

For the foregoing reasons, Plaintiff’s Motion for Default Judgment is DENIED. The case is dismissed without prejudice. Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment are denied as moot.

This constitutes the Decision and Order of This Court.

Date: June 26, 2026

Hon Sandra Elena Roper, JCC

Matter of USAA Cas. Ins. Co. v Kastor (2026 NY Slip Op 03933)

Reported in New York Official Reports at Matter of USAA Cas. Ins. Co. v Kastor (2026 NY Slip Op 03933)

Matter of USAA Cas. Ins. Co. v Kastor

2026 NY Slip Op 03933 [250 AD3d 612]

Decided on June 23, 2026

Appellate Division, First Department

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

As corrected through Wednesday, August 5, 2026

June 23, 2026

Order, Supreme Court, New York County (Nicholas W. Moyne, J.), entered June 20, 2025, which granted petitioner’s application to permanently stay respondent’s demand for uninsured motorist arbitration, unanimously affirmed, without costs.

The notice requirements in the automobile/liability insurance policy through petitioner insurer are not ambiguous, as the Supplemental Uninsured/Underinsured Motorist Endorsement (SUM) contained therein both expressly replaces the “uninsured motorist” (UM) coverage found in Part C of the policy, and further tracks the language prescribed under Insurance Law § 3420 (f) and 11 NYCRR 60-2.3 (f) (see Matter of Country-Wide Ins. Co. v Wagoner, 45 NY2d 581, 586 [1978]; Matter of State Farm Mut. Auto. Ins. Co. v Fitzgerald, 25 NY3d 799, 804 [2015]). Respondent’s assertion that he did not need to provide a recorded statement of the facts underlying his claim unless petitioner waived its right to an examination under oath is unavailing.

The court providently exercised its discretion in staying arbitration. Petitioner was permitted to disclaim coverage because respondent did not satisfy the policy’s notice requirement that he file a sworn statement setting forth the facts in support of his claim (see Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]; Matter of Kauffman [Motor Veh. Acc. Indem. Corp.], 25 AD2d 419, 419 [1st Dept 1966]). Although respondent’s counsel promptly asserted a UM/SUM claim by letter and transmitted respondent’s sworn NF-2 no-fault application to petitioner, these documents failed to identify the accident as a hit-and-run accident (see Insurance Law § 3420 [f] [3]; Matter of Universal Underwriters Group [Zeitlin], 157 AD2d 544, 545 [1st Dept 1990]), establish the requisite physical contact (see Matter of Hanover Ins. Co. v Lewis, 57 AD3d 221, 222 [1st Dept 2008]), or state that the offending vehicle’s identity was either unascertainable or provide evidence of due diligence to obtain the identity (see Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487, 494-495 [1999]).

Accordingly, despite being sworn-to, the no-fault application alone did not impute notice to petitioner (see Daley v Travelers Cas. & Sur. Co., 301 AD2d 364 [1st Dept 2003]; Matter of Country-Wide Ins. Co. [Eun Kyu Park], 277 AD2d 175, 175 [1st Dept 2000]). The MV-104 accident report provided to petitioner over three months after the accident did not identify the accident as a hit and run. Indeed, the accident was not expressly identified as a “hit-and-run” until the arbitration demand nearly 11 months later (see Matter of Allcity Ins. Co. [Jimenez], 78 NY2d 1054, 1056 [1991]). Concur—Renwick, P.J., Scarpulla, González, Rodriguez, O’Neill Levy, JJ.

Clinton Med. Off. P.C. v Progressive Max Ins. Co. (2026 NY Slip Op 26094)

Reported in New York Official Reports at Clinton Med. Off. P.C. v Progressive Max Ins. Co. (2026 NY Slip Op 26094)

Clinton Med. Off. P.C. v Progressive Max Ins. Co.

2026 NY Slip Op 26094

Decided on June 22, 2026

Civil Court of the City of New York, Richmond County

Mark Kagan, 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, Richmond County

Decided on June 22, 2026

Index No. CV-709029-25/RI

Mark Kagan, J.

[*1]

The defendant Progressive Max Insurance Company has moved pursuant to CPLR §3212 seeking summary judgement dismissing the action on the grounds the assignor failed to appear for an examination under oath. The plaintiff has opposed the motion. Papers were submitted by the parties and arguments held. Pursuant to CPLR §2219(a) the court has reviewed all the papers submitted including NYSCEF document numbers 1-22 and now renders the following determination.

On July 3, 2024 the assignor Charles #3 Staley was allegedly injured in an accident. The plaintiff assignee provided medical services on his behalf and seeks $604.97 in payment for those services. Specifically, the plaintiff sought $101.93 for services rendered on November 4, [*2]2024, $377.28 for services rendered on November 12, 2024 and $125.76 for services rendered on November 25, 2024. The defendant, the insurer of the assignor refused payment of these bills on the grounds the assignor failed to appear for an examination under oath [EUO]. The plaintiff commenced this action seeking payment. The defendant duly answered. The defendant has now moved seeking summary judgement dismissing the action arguing there are no questions of fact the action should be dismissed. As noted, the motion is opposed.

Conclusions of Law

Concerning first party no-fault benefits, an insurer may move seeking summary judgement dismissing the action on the grounds additional verification information was sought from the plaintiff and not provided (Eagle Surgical Supply Inc., v. Travelers Indemnity Company, 29 Misc 3d 129(A), 958 NYS2d 307 [Supreme Court Appellate Term Second Department 2010]).

The defendant seeks summary judgement on the grounds the assignor failed to appear at scheduled examinations under oath. To succeed on a motion for summary judgement for the failure of an individual to appear for an EUO an insurer only needs to demonstrate that it duly scheduled at least two EUO’s, the party failed to appear and a timely denial of the claim was issued based upon the failure to appear (Northern Medical Care P.C. v. Nationwide Affinity Insurance Company, 84 Misc 3d 136(A), 255 NYS3d 555 [Appellate Term Second Department 2024]). Further, an affirmation submitted by an attorney who was scheduled to conduct the EUO and who stated she has first-hand knowledge the party failed to appear is sufficient to establish the party failed to appear (MAZ Chiropractic P.C. v. State Farm Insurance Company, 85 Misc 3d 135(A), 229 NYS3d 814 [Appellate Term Second Department 2025]). Thus, an insurance company is entitled to dismiss the lawsuit when they make a prima facie showing EUO letters were mailed and the party failed to appear for an EUO. Such showing can be an affidavit from someone, including defendant’s counsel, describing the standard practices and procedures for mailing EUO letters and representing that such practices and procedures were followed in this case. This is proof that such letters were mailed (One RX Chemist Inc., v. Nationwide Mutual insurance Company, 87 Misc 3d 132(A), 244 NYS3d 415 [Appellate Term First Department 2025]).

The defendant has presented sufficient evidence that at least two notices were sent to assignor and that he failed to appear for an EUO (see, Affirmation of Justin Carriveau [NYSCEF Doc. No. 6]). Specifically, notices were sent on August 23, 2024 for an EUO scheduled for September 5, 2024 and a notice was sent on September 10, 2024 for an EUO scheduled for September 26, 2024 and the assignor failed to appear at any of these scheduled EUOs. The plaintiff does not dispute the assignor failed to appear for a scheduled EUO. Rather, the plaintiff argues the denial letter sent was deficient since it did not provide any elaboration why the denial was issued other than to state the claim was denied because policy conditions were violated (see, Denial of Claim Form [NYSCEF Doc. No. 9]). Thus, three denials were mailed to the plaintiff corresponding to the three bills submitted. Two of the denial letters were dated December 2, 2024 and one was dated December 11, 2024. They all indicated that the claims were denied because the assignor failed to submit to a medical examination in violation of the insurance contract’s duties and conditions. The defendant argues that pursuant to Unitrin Advantage Insurance Company v All of NY, Inc., 158 AD3d 449, 71 NYS3d 16 [1st Dept 2018] the denials were deficient and hence invalid and consequently the defendant has never validly denied the claims and summary judgement must be denied.

In Unitrin (supra) the court held that a denial which only mentioned one scheduled EUO date but inadvertently failed to include the other scheduled EUO date “did not sufficiently apprise the provider as to the reason for denial” (id). As noted in New Chiropractic Care P.C. v. Nationwide Insurance Company of New York, 67 Misc 3d 1226(A), 128 NYS3d 150 [Civil Court Kings County 2020] the conclusion in Unitrin (supra) has been squarely rejected by the Appellate Term Second Department which has held that “a denial of claim form based upon the failure to appear for scheduled EUOs need not set forth the dates of the EUOs” (see, JYW Medical P.C. v. IDS Property Insurance Company, 58 Misc 3d 134(A), 92 NYS3d 703 [Appellate Term Second Department 2017], see, also, Aries Chiropractic P.C. v. Ameriprise Insurance Company, 66 Misc 3d 130(A), 120 NYS3d 555 [Appellate Term Second Department 2019]). The plaintiff argues that this court is bound by the pronouncements of other Departments in the absence of a ruling from the Second Department (Mountain View Coach Lines, Inc., v. Storms, 102 AD2d 663, 476 NYS2d 918 [2d Dept., 1984]). Therefore, this court is bound by Unitrin (supra) and hence the denial was insufficient.

The Appellate Division Second Department has never issued a specific ruling whether the failure to incudes the dates of the EUO’s renders the denial insufficient. However, that court has, more broadly, addressed the sufficiency of denial letters. In Nyack Hospital v. Metropolitan Property and Casualty Insurance Company, 16 AD3d 564, 791 NYS2d 658 [2d Dept., 2005] the court held that a denial of a claim must comply with the requirements of 11 § NYCRR 65-3.4(c)(11) which provides the prescribed claim form that must be utilized, namely NYS form N-F-10. The court further elaborated and noted that the claim form cannot be missing information and must be complete. The court, citing earlier authority, explained that the denial will be invalid if it “is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (id). Thus, providing an invalid basis for the denial of the claim renders the denial fatally defective (St. Barnabas Hospital v. Allstate Insurance Company, 66 AD3d 996, 887 NYS2d 657 [2d Dept., 2009]). Likewise, leaving portions of the denial form blank renders the denial form defective (Lexington Acupuncture P.C. v. State Farm Insurance Company, 12 Misc 3d 90, 820 NYS2d 385 [Appellate Term Second Department 2006]). Further, omitting critical information in the denial form such as the dates the claims were received and the amounts and dates of the claims is “tantamount to no denial at all” (A.B. Medical Services PLLC v. Utica Mutual Insurance Company, 12 Misc 3d 139(A), 824 NYS2d 760 [Appellate Term Second Department 2006]). Thus, the Second Department adheres to the requirements mandated by the Form NF-10 when considering whether a denial is sufficient. This may depart from the stricter requirements imposed by Unitrin (supra) which demands that the denial letter contain far greater detail.

In truth, a careful consideration of Unitrin (supra) and its progeny reveals it may not have the vitality the plaintiff insists it carries. First, Unitrin (supra) has only been cited one time to support the proposition a denial letter must contain the dates of any unattended EUO (see, Liberty Mutual insurance Company v. Ezra Supply Inc., 2020 WL 5091202 [Supreme Court New York County 2020]). More significantly, it may only apply within the unique facts of Unitrin (supra) itself, namely where the denial letter specifically included one date of an unattended EUO but failed to include the other unattended EUO. This partial explanation was misleading and consequently invalid (see, State Farm Fire and Casualty Company v. AA Acupuncture C.I.R. P.C., 2021 WL 3290829 [Supreme Court New York County 2021], reversed on other grounds, State Farm Fire and Casualty Company v. AA Acupuncture C.I.R. P.C., 217 [*3]AD3d 643, 192 NYS3d 113 [1st Department 2023]). Thus, a general denial that the assignor failed to attend EUO’s would be sufficient under Unitrin (supra). The court in Unitrin (supra) held the denial invalid because it specifically omitted a date when an EUO was unattended. This gave the provider the false impression there had been only one failed appearance at an EUO. Of course, a proper denial is only valid following two failed appearances at an EUO (Northern Medical Care P.C. v. Nationwide Affinity Insurance Company of America, 84 Misc 3d 136(A), 225 NYS3d 535 [Appellate Term Second Department 2024]).

Therefore, the court is not bound by the decision in Unitrin (supra). Consequently, the denials sent in this case were proper and thus, the motion seeking summary judgement dismissing this lawsuit is granted.

So ordered.

Dated: June 22, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC

Liberty RX Inc v Liberty Mut. Ins. Co. (2026 NY Slip Op 50992(U))

Reported in New York Official Reports at Liberty RX Inc v Liberty Mut. Ins. Co. (2026 NY Slip Op 50992(U))

Liberty RX Inc v Liberty Mut. Ins. Co.

2026 NY Slip Op 50992(U) [89 Misc 3d 1218(A)]

Decided on June 18, 2026

Civil Court of the City of New York, Richmond County

Javier Ortiz, 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 June 18, 2026

Index No. CV-711756-25/RI

Javier Ortiz, J.

[*1]

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

Papers

D’s Motion & Supporting Documents 5-40

P’s Affirmation in Opposition 42

P’s Supplemental Submission of Decisions 45

Upon the foregoing cited papers and after oral argument, the Decision and Order on [*2]Defendant’s motion for summary judgment is as follows:

Defendant’s motion is DENIED. The Court has reviewed the record and finds that the admissible evidence presented is insufficient at the current case posture to establish Defendant’s defenses that the assignor made material representations, the injuries did not arise out of a covered loss, and/or that the alleged accident was a staged, intentional act for which there is no insurance coverage (Affirmative Defenses 16, 17, and 18).

The matter shall proceed to trial on June 22, 2026 in Part 58VT, as the Court finds that there are triable issues of fact with respect to Defendant’s defenses of material misrepresentation, non-covered loss, and staged/intentional accident.

The Honorable Sandra Elena Roper recently found in the context of a no-fault insurer’s motion for summary judgment asserting a staged accident that “[t]he prima facie burden to viably satisfy a staged accident motion for summary judgment is indeed a high one.” (Med. Diagnostics Ctr. v Ameriprise Ins. Co., 88 Misc 3d 1225(A), 2026 NY Slip Op 50235(U) [Civ Ct, Kings County 2026] [citations omitted].)

Consistent with that, the Court finds that Defendant’s admissible evidence—including its investigator affirmation (NYSCEF No. 8)—is insufficient at this stage of the proceedings for the Court to find that Defendant has established its material misrepresentation, lack of covered loss, and/or staged accident defenses by a preponderance of the evidence. (See V.S. Med. Servs., P.C. v Allstate Ins. Co., 25 Misc 3d 39, 41 [2d Dept 2009] [applying preponderance of the evidence standard in such circumstance].) “[I]t is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof).” (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012]. See also Med. Diagnostics Ctr., 88 Misc 3d 1225(A) [“Where there is but a scintilla of a material issue of fact defeats a motion for summary judgment, obviating the shifting of the burden to non-movant for rebuttal”; further expressing concerns regarding finding a staged accident at the summary judgment stage where the conspiratorial implications “are not merely civil in nature but also expose[] the [participants in the alleged conspiracy] to criminal prosecution”].)

Inconsistencies in witness testimony raise issues of credibility but are, standing alone, insufficient to support a conclusion that an accident was staged as a matter of law. (See Parisien v Erie Ins. Co. of NY, 88 Misc 3d 1241(A), 2026 NY Slip Op 50400(U) [Civ Ct, Richmond County 2026], citing State Farm Mut. Auto. Ins. Co. v Allmed Merch. and Trading, Inc., 2022 NY Slip Op 30624(U) [Sup Ct, NY County Feb. 28, 2022].) Much of the evidence that Defendant presents to suggest that a staged accident occurred here is through showing inconsistencies in various examinations under oath (EUOs). (See Pavlova v Allstate Ins. Co., 62 Misc 3d 1207[A], 2019 NY Slip Op 50016[U], *3 [Civ Ct, Kings County 2019] [“Upon a review of the EUO transcript, the court notes that while [the witnesses’] testimonies were vague and at times, inconsistent, their recollections are not sufficient to demonstrate that a purposeful collision occurred. Even in considering whether circumstantial evidence exists to demonstrate that there may have been a purposeful collision, the vague testimonies of the parties are not sufficient.”] There is no witness admission here that the accident was staged or intentional. “Although defendant demonstrated that it possessed a ‘founded belief that the alleged injuries do not arise out of an insured incident,’ defendant failed to submit sufficient evidence in admissible form to establish that conclusion as a matter of law, so as to warrant dismissal of the complaint.” (Parisien v Esurance, 81 Misc 3d 127(A), 2023 NY Slip Op 51235(U) [App Term, 2d Dept [*3]2023], quoting Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997].)

The matter shall therefore proceed to trial on June 22, 2026 in Part 58VT.

This constitutes the Decision and Order of the Court.

Dated: June 18, 2026

Hon. Javier Ortiz, J.C.C.

Kings County Civil Court

American Tr. Ins. Co. v Beach Med. Rehabilitation, P.C. (2026 NY Slip Op 03771)

Reported in New York Official Reports at American Tr. Ins. Co. v Beach Med. Rehabilitation, P.C. (2026 NY Slip Op 03771)

American Tr. Ins. Co. v Beach Med. Rehabilitation, P.C.

2026 NY Slip Op 03771 [250 AD3d 870]

Decided on June 17, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, August 5, 2026

(June 17, 2026)

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits and for declaratory relief, the defendant appeals from an order of the Supreme Court, Kings County (Caroline Piela Cohen, J.), dated October 10, 2024. The order, insofar as appealed from, denied those branches of the defendant’s motion which were for summary judgment dismissing the complaint and, in effect, declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the defendant on behalf of its assignor, Marissa Hirsch, to confirm a master arbitration award dated February 25, 2022, and for an award of attorneys’ fees.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branches of the defendant’s motion which were for summary judgment dismissing the complaint and, in effect, declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the defendant on behalf of its assignor, Marissa Hirsch, to confirm the master arbitration award dated February 25, 2022, and for an award of attorneys’ fees are granted, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees to be awarded to the defendant and the entry of a judgment, inter alia, declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the defendant on behalf of its assignor, Marissa Hirsch, and awarding such reasonable attorneys’ fees.

The plaintiff, a no-fault insurance carrier (hereinafter the insurer), commenced this action against the defendant (hereinafter the medical provider) pursuant to Insurance Law § 5106 (c) for a de novo determination of a dispute regarding its denial of the defendant’s claims for no-fault insurance benefits for medical services rendered to the defendant’s assignor and for declaratory relief. Prior thereto, an arbitrator had determined that the medical provider was entitled to an award of no-fault insurance benefits in the principal sum of $5,772.62. The insurer appealed the award to a master arbitrator, who affirmed the award on February 25, 2022 (hereinafter the master arbitration award).

The medical provider moved, inter alia, for summary judgment dismissing the complaint and, in effect, declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the medical provider on behalf of its assignor, Marissa Hirsch (hereinafter the assignor), to confirm the master arbitration award, and for an award of attorneys’ fees. In an order [*2]dated October 10, 2024, the Supreme Court, among other things, denied those branches of the medical provider’s motion. The medical provider appeals.

Contrary to the contention of the medical provider, arbitration awards rendered in favor of different medical providers in related matters lacked collateral estoppel or res judicata effect in this action for a de novo determination of the defendant’s submitted claims for no-fault insurance benefits (see id.; see also Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 577 [1987]).

Nonetheless, the Supreme Court should have granted those branches of the medical provider’s motion which were for summary judgment dismissing the complaint and, in effect, declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the medical provider on behalf of the assignor and to confirm the master arbitration award. “In an action to recover no-fault benefits, a [claimant] makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed to and received by the relevant insurance carrier, and that payment of no-fault benefits was overdue” (Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082 [2011]; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506 [2015]; New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648 [2014]). Where a claimant seeks summary judgment on this ground, in opposition, the insurer must raise a triable issue of fact as to its timely denial of the claim (see Westchester Med. Ctr. v A Cent. Ins. Co., 114 AD3d 937, 937 [2014]; Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d 905, 905 [2011]).

Here, it is undisputed that the prescribed claims documents were timely sent to the insurer. In opposition, the insurer failed to raise a triable issue of fact as to its timely denial of the defendant’s submitted claims (see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929, 929-930 [2011]; see also Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2016]; Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051-1052 [2015]). The insurer submitted affidavits of two of its employees. However, those employees did not set forth personal knowledge of a standard office procedure designed to ensure proper addressing and mailing or of the actual mailing of the denial of claims forms.

An insurer that fails to timely deny a claim for no-fault insurance benefits “ ’is generally precluded from asserting a defense against payment of the claim’ ” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008], quoting Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]). The “only exception to this preclusion remedy [is] a ‘narrow’ one for those ‘situations where an insurance company raises a defense of lack of coverage’ ” (id.; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Here, where the insurer failed to raise a triable issue of fact as to its timely mailing of the denial of claims forms, it is precluded from asserting a defense of lack of medical necessity (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

While the insurer is not precluded from raising the defense of lack of causation notwithstanding an untimely denial of the defendant’s submitted claims (see id.), here, the insurer failed to raise a triable issue of fact as to whether the assignor’s injuries were caused by the subject motor vehicle accident. The insurer submitted an affidavit of a physician who performed a peer review (hereinafter the peer review physician). However, the affidavit did not demonstrate that the peer review physician reviewed the assignor’s full medical records, which included records of conservative treatment rendered prior to an EMG/NCV test. In addition, the peer review physician did not address the opinion of the treating physician regarding certain symptoms bearing on the treating physician’s decision to perform the EMG/NCV test. Further, the report of the peer review physician did not address treatment rendered in addition to the EMG/NCV test. Such additional treatment was encompassed in the defendant’s submitted claims and deemed necessary by a physician who performed an independent medical examination. Moreover, the peer review physician did not specifically address the causal connection between the assignor’s alleged injuries and the motor vehicle accident.

Under these circumstances, the insurer failed to raise a triable issue of fact as to the [*3]defense of lack of causation. Accordingly, the medical provider was entitled to summary judgment dismissing the complaint and declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the medical provider on behalf of the assignor (see Hernandez v Merchants Mut. Ins. Co., 206 AD3d 978 [2022]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020 [2007]; see also Healthplus Surgery Ctr., LLC v American Tr. Ins. Co., 204 AD3d 646, 646-647 [2022]).

As the medical provider is entitled to summary judgment dismissing the complaint and declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the medical provider on behalf of the assignor, it is also entitled to confirmation of the master arbitration award (see Insurance Law § 5106 [c]; Matter of Slater v Eagle Ins. Co., 294 AD2d 368 [2002]; see also Murzik Taxi, Inc. v Lutheran Med. Ctr., 193 AD3d 866 [2021]) and an award of attorneys’ fees.

Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees to be awarded to the medical provider and the entry of a judgment, inter alia, declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the medical provider on behalf of the assignor and awarding such reasonable attorneys’ fees (see Insurance Law § 5106 [a]; 11 NYCRR 65-4.10 [j] [4]; American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1 [2025]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168, 1168 [2019]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2017]). Genovesi, J.P., Wan, Taylor and Golia, JJ., concur.