One RX Chemist, Inc. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 51309(U))

Reported in New York Official Reports at One RX Chemist, Inc. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 51309(U))

One RX Chemist, Inc. v Nationwide Mut. Ins. Co.

2026 NY Slip Op 51309(U) [89 Misc 3d 131(A)]

Decided on June 17, 2026

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This opinion is uncorrected and will not be published in the printed Official Reports.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on June 17, 2026

2025-1324 Q C

Present: : Wavny Toussaint, P.J., Chereé A. Buggs, Joanne D. Quiñones, JJ

Hollander Legal Group, P.C. (Allan S. Hollander and Christopher Volpe of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Jay Koo and Koenig Pierre of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County, (Sandra Perez, J.), dated February 27, 2025. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

[*1]

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court (Sandra Perez, J.) as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

Here, it is undisputed that defendant established, prima facie, that it timely mailed its initial and follow-up EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff failed to appear for the EUOs scheduled for December 17, 2021, January 14, 2022, and February 4, 2022, and that, after plaintiff failed to [*2]appear for the last scheduled EUO, defendant timely denied the subject claim on the ground that plaintiff had failed to appear for those EUOs. The Civil Court erred in denying defendant’s motion on the ground that an issue of fact exists as to the reasonableness of the EUO request (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co., 77 Misc 3d 140[A], 2022 NY Slip Op 51384[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see also 21st Century Pharm., Inc. v Ameriprise Ins. Co., 65 Misc 3d 134[A], 2019 NY Slip Op 51629[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). In any event, we note that the EUO scheduling letters and response letter provided plaintiff with the basis for the EUO request. As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, defendant is entitled to summary judgment dismissing the complaint (see First Class Med., P.C. v Ameriprise Ins. Co., 63 Misc 3d 135[A], 2019 NY Slip Op 50477[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: June 17, 2026

New Image Chiropractic, P.C. v Kemper Ins. Co. (2026 NY Slip Op 51306(U))

Reported in New York Official Reports at New Image Chiropractic, P.C. v Kemper Ins. Co. (2026 NY Slip Op 51306(U))

New Image Chiropractic, P.C. v Kemper Ins. Co.

2026 NY Slip Op 51306(U) [89 Misc 3d 131(A)]

Decided on June 17, 2026

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.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on June 17, 2026

2025-494 K C

Present: : Wavny Toussaint, P.J., Chereé A. Buggs, Joanne D. Quiñones, JJ

Goldberg, Miller & Rubin, P.C. (Zachary Whiting of counsel), for appellant. The Rybak Firm, PLLC (Richard Rozhik 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 January 9, 2025, as amended by an order of that court dated July 15, 2025. The order, as amended and insofar as appealed from as limited by the brief, denied “defendant’s” motion to dismiss the complaint pursuant to CPLR 3211 (5) and “granted” plaintiff’s cross-motion for summary judgment to the extent of finding that plaintiff had “established its prima facie case of timely mailing the bills to Kemper.”

[*1]

ORDERED that the order, as amended and insofar as appealed from, is modified by providing that plaintiff’s cross-motion for summary judgment is denied and by striking the provision thereof that plaintiff had “established its prima facie case of timely mailing the bills to Kemper”; as so modified, the order, as amended and insofar as appealed from, is affirmed, without costs.

In April 2021, plaintiff New Image Chiropractic, P.C. commenced this action against Kemper Insurance Company (Kemper) to recover assigned first-party no-fault benefits for services it rendered to its assignor, who was allegedly injured in an automobile accident on or about May 18, 2020. Plaintiff asserted that it timely furnished Kemper with claim forms, that Kemper assigned claim number 1052953401 to this claim, and that Kemper had failed to [*2]properly deny or pay the claim within 30 days of its receipt. Unitrin Safeguard Insurance Company (Unitrin), alleging that it was sued herein as Kemper Insurance Company, served an answer. In April 2021, Unitrin brought a declaratory judgment action in the Supreme Court, New York County, against New Image Chiropractor, P.C. and its assignor herein, Krystal Hayes, among other parties, pertaining to a May 18, 2020 accident. Thereafter, Unitrin moved in the Supreme Court to enter a default judgment against New Image Chiropractor, P.C., among others, when they failed to appear or answer. In a default judgment dated July 27, 2022, the Supreme Court declared that “UNITRIN owes no duty to provide No-Fault reimbursements to” New Image Chiropractic, P.C. “relating to the alleged May 18, 2020 loss (UNITRIN claim number C109887NY20).”

Subsequently, “defendant” moved in the Civil Court for summary judgment dismissing the complaint on the ground of res judicata or collateral estoppel, based on the aforementioned July 27, 2022 Supreme Court default declaratory judgment. Plaintiff cross-moved for summary judgment, asserting that it had provided medically necessary services to its assignor, that the relevant claim forms were mailed to Kemper and that Kemper had failed to pay or deny the claims. Kemper appeals from so much of an order of the Civil Court (Sandra E. Roper, J.) dated January 9, 2025, as amended by an order of that court dated July 15, 2025, as denied “defendant’s” motion for summary judgment and “granted” plaintiff’s cross-motion to the extent of finding that plaintiff had “established its prima facie case of timely mailing the bills to Kemper” (see CPLR 3212 [g]).

The doctrine of res judicata generally requires a final adjudication of a claim on the merits and precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions (see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). It is well settled that default judgments, which have not been vacated, can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]). Moreover, collateral estoppel precludes a party from relitigating an issue where “the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]; Manko v Gabay, 175 AD3d 484 [2019]). While “[a]n issue is not actually litigated if, for example, there has been a default” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]), collateral estoppel may be applied to default judgments where the party against whom preclusion is sought appears in the prior action and then defaults (see Miller v Falco, 170 AD3d 707 [2019]).

Unitrin’s default declaratory judgment against New Image Chiropractic, P.C. has no res judicata effect on this case, as there has been no demonstration that Kemper is, in fact, Unitrin, or [*3]even that Unitrin, and not Kemper, is “the proper insurer” (see Quality Health Supply Corp. v Hertz Co., 2020 NY Slip Op 50996[U]). Indeed, both Kemper and Unitrin appear to have two different claim numbers for this claim without any explanation. Moreover, as New Image Chiropractic, P.C. did not appear in the declaratory judgment action, it did not have a full and fair opportunity to litigate whether Unitrin owes a duty to provide no-fault reimbursements to it and, therefore, there is no collateral estoppel effect against it based on the default declaratory judgment (see Kaufman v Eli Lilly & Co., 65 NY2d at 456-457). Thus, the Civil Court properly denied “defendant’s” motion to dismiss.

Plaintiff’s cross-motion for summary judgment should have been denied as plaintiff did not submit any evidence of an address for Kemper, and thus failed to establish that the prescribed statutory claim form had been received by Kemper (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). In any event, there is a triable issue of fact as to whether Kemper was the insurer for this accident.

Accordingly, the order, as amended and insofar as appealed from, is modified by providing that plaintiff’s cross-motion for summary judgment dismissing the complaint is denied and by striking the provision thereof that plaintiff had “established its prima facie case of timely mailing the bills to Kemper”; as so modified, the order, as amended and insofar as appealed from, is affirmed.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: June 17, 2026

Terra Chiropractic, P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 50953(U))

Reported in New York Official Reports at Terra Chiropractic, P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 50953(U))

Terra Chiropractic, P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 50953(U) [89 Misc 3d 1215(A)]

Decided on June 17, 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 17, 2026

Index No. CV-734799-22

Sandra Elena Roper, J.

[*1]

Following the virtual trial in this matter held before me on June 17, 2026, I hereby find the following:

The prior order in this matter dated October 16, 2025 (Epstein, J.) granted Defendant’s prior motion for summary judgment to the extent that Defendant has established the timely and proper mailing of its NF-10 denial of claim form and granted Plaintiff’s prior cross-motion for summary judgment to the extent that Plaintiff established the timely and proper mailing of the subject bill. That order also found a triable issue of fact as to the timely and proper mailing of Defendant’s examination under oath (“EUO”) requests but did not address the element of Defendant’s defense as to whether Plaintiff’s assignor failed to appear for the EUOs. For the reasons stated on the record, the Court held that the prior order did not relieve Defendant of its burden at trial of demonstrating the assignor’s alleged nonappearances because the order was silent in that regard.

At the time of trial, Plaintiff rested in light of its prima facie burden having been established due to the prior order in this matter, and Defendant presented the witness testimony of its employee as to her handling of the subject EUO requests.

The Court finds that Defendant witness’ testimony was sufficient to establish the timely and proper mailing of the EUO letters, but was insufficient to establish, in admissible form and based upon personal knowledge, that the assignor failed to appear for the EUOs. Defendant’s argument that based upon witness’ testimony of receipt of the statement on the record renders it a “memorandum of record” an exception to the Deng holding was rejected. Charles Deng Acupuncture, P.C. v. Titan Ins. Co., 74 Misc 3d 137(A) (App. Term, 2d Dep’t, 2022). Deng’s dicta did not establish elements that would convert an otherwise inadmissible statement on the record pursuant to the hearsay rule to an admissible “memorandum of record”. Thus, Defendant’s [*2]argument was not compelling to invoke this stated exception in dicta. Nevertheless, over Plaintiff’s objection, the statement on the record was admitted not for the truth contained therein, which would absolutely be hearsay, but rather based upon the witness’ testimony that she physically received the statement on the record. This Court analogized its limited admissibility for the highly constricted purpose as thus: a witness testifies to having received a bag with contents contained therein, the court admits the bag as the bag that was received by the witness, but not admitted for the truth of the contents contained within the bag for evidentiary purposes, which must be proven independently, separately and apart. In this instant case, the physical corpus or tangible thing of the statement on the record (the bag so to speak) is admitted. Whereas the truthfulness of the statements contained within the four corners of the statement on the record must be proven independently, which Defendant failed to so do. Defendant’s alternative argument that upon admitting the physical tangible statement on the record, the witness’ testimony that as upon EUO no show, the usual customary business practice which she followed was to send out another EUO request, which she did, was also rejected. This Court opined that Defendant’s argument fails to account that although that testimony may be considered for the first missed EUO, it would not extend to the second EUO no show. The EUO no show defense requires two missed EUOs. Accordingly, Defendant failed to establish its defense of EUO no show.

In sum, not having proffered admissible evidence in the form of testimony by one with personal knowledge of the alleged EUO nonappearances or otherwise, Defendant did not meet its burden of establishing all required elements of its defense.

For the foregoing reasons, Judgment is directed in favor of Plaintiff in the amount of $670.00, together with statutory interest commencing from the filing of this litigation, statutory attorney’s fees, costs, and disbursements.

This constitutes the Decision and Order of the Court.

Dated: June 17, 2026

Brooklyn, New York

Hon. Sandra Elena Roper, J.C.C.

Big Apple Med. Group Corp. v MVAIC (2026 NY Slip Op 51298(U))

Reported in New York Official Reports at Big Apple Med. Group Corp. v MVAIC (2026 NY Slip Op 51298(U))

Big Apple Med. Group Corp. v MVAIC

2026 NY Slip Op 51298(U) [89 Misc 3d 130(A)]

Decided on June 12, 2026

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.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on June 12, 2026

2025-993 K C

Present: : Wavny Toussaint, P.J., Marina Cora Mundy, Joanne D. Quiñones, JJ

Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant. The Rybak Firm, PLLC (Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sherveal R. Mimes, J.), dated March 18, 2025. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

[*1]

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 Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court (Sherveal R. Mimes, J.) dated March 18, 2025 as denied MVAIC’s motion for summary judgment dismissing the complaint.

Contrary to MVAIC’s contention, its motion papers do not demonstrate, prima facie, that the vehicle in which plaintiff’s assignor was a passenger at the time of the subject accident was covered by an insurance policy issued by State Farm Insurance Company. While the certified New Jersey Department of Motor Vehicles abstract, relied on by MVAIC, indicates that the vehicle was insured at the time of the registration, it does not show that the vehicle was insured [*2]at the time of the subject accident, which was two months later, as plaintiff correctly contends. Plaintiff further notes that the police accident report, annexed to defendant’s own motion, indicates that the subject vehicle was uninsured at the time of the accident. Consequently, defendant was not entitled to summary judgment dismissing the complaint (see NY Wellness Med., P.C. v MVAIC, 86 Misc 3d 134[A], 2025 NY Slip Op 51165[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; cf. Bell Air Med. Supply, LLC v MVAIC, 77 Misc 3d 131[A], 2022 NY Slip Op 51233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

Accordingly, the order, insofar as appealed from, is affirmed.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: June 12, 2026

Acupuncture Care, PC. v State Farm Mut. Auto. Ins. Co. (2026 NY Slip Op 50991(U))

Reported in New York Official Reports at Acupuncture Care, PC. v State Farm Mut. Auto. Ins. Co. (2026 NY Slip Op 50991(U))

Acupuncture Care, PC. v State Farm Mut. Auto. Ins. Co.

2026 NY Slip Op 50991(U) [89 Misc 3d 1218(A)]

Decided on June 11, 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 11, 2026

Index No. CV-769317-24/RI

Javier Ortiz, J.

[*1]

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

D’s Motion & Supporting Docs 8-16

P’s Affirmation in Opposition 18

D’s Affirmation in Reply 19

Upon the foregoing cited papers, the Decision/Order on Defendant’s motion for summary judgment is GRANTED IN PART and DENIED IN PART for the reasons discussed as follows:

The coder affirmation of Mercy Acuna, RN, BSN, CPC (NYSCEF No. 14) indicates that an additional $65.60 is owed to Plaintiff as follows: (1) $26.24 for dates of service 03/18/24-03/27/24 ($186.18 found to be owing pursuant to coder affirmation, but only $159.94 paid per the denial); (2) $26.24 for dates of service 04/01/24-04/11/24 ($81.30 found to be owing pursuant to coder affirmation, but only $55.06 paid per the denial); and (3) $13.12 for dates of [*2]service 05/08/24-05/16/24 ($40.65 found to be owing pursuant to coder affirmation, but only $27.53 paid per the denial).^FN1

While Plaintiff submitted a rebuttal affirmation of its billing and collections specialist (see NYSCEF No. 18), the Court finds that affirmation does not adequately rebut the relevant points made in Ms. Acuna’s thorough 27-page discussion of the application of the fee schedule to the bills at issue here.

As such, Plaintiff is granted judgment for $65.60 plus interest, attorney’s fees, and filing fees. The Complaint is otherwise dismissed. All trial dates are hereby vacated.

This constitutes the Decision and Order of the Court.

DATED: June 11, 2026

Hon. Javier Ortiz, J.C.C.

Kings County Civil Court

Empire State Rehab PT PC v Liberty Mut. Ins. Co. (2026 NY Slip Op 50894(U))

Reported in New York Official Reports at Empire State Rehab PT PC v Liberty Mut. Ins. Co. (2026 NY Slip Op 50894(U))

Empire State Rehab PT PC v Liberty Mut. Ins. Co.

2026 NY Slip Op 50894(U) [89 Misc 3d 1210(A)]

Decided on June 4, 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 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 4, 2026

Index No. CV-752314-25/RI

Mark Kagan, J.

[*1]

The defendant Liberty Mutual Insurance Company of New York has moved pursuant to CPLR §3212 seeking summary judgement dismissing the action on the grounds the accident was staged. The plaintiff has opposed the motion. Pursuant to CPLR §2219(a) the court has reviewed all the papers submitted including NYSCEF document numbers 1-44 and now renders the following determination.

On August 4, 2024 a vehicle driven by Rakesh Sookralli was involved in an incident with a vehicle that left the scene. The assignor, Crystal Dunbar, a passenger in the vehicle driven by Sookralli, sought No-Faults benefits in the amount of $2,133.69. Sherry Leak was also a passenger in the vehicle. The defendant, the insurer of the assignor refused the payment on the grounds the incident was staged. The plaintiff commenced this action seeking payment and the defendant duly answered. The three occupants all provided examinations under oath and testified concerning the accident. The defendant has now moved seeking summary judgement dismissing the action arguing there are no questions of fact the action should be dismissed. They assert there is evidence which establishes as a matter of fact that the incident was staged. As [*2]noted, the motion is opposed.

Conclusions of Law

Earlier cases disagreed on the proper standard of proof necessary to establish a collision was staged. In JSI Expert Service v. Liberty Mutual Insurance Company, 7 Misc 3d 1009(A), 801 NYS2d 235 [Civil Court Kings County 2005] the court held proof of a fraudulent and hence a staged incident must be established by clear and convincing evidence. The court applied this standard based upon the general rule concerning establishing fraud. However, in A.B. Medical Services PLLC v. State Farm Mutual Auto Insurance Company, 7 Misc 3d 822, 795 NYS2d 843 [Civil Court Kings County 2005] the court explained that a staged collision had been characterized as a defense based upon lack of coverage, not fraud per se, and a higher measure of proof was not required. The split was resolved and the proper standard is a preponderance of the evidence. As the court explained in V.S. Medical Services P.C., v. Allstate Insurance Company, 25 Misc 3d 39, 889 NYS2d 360 [Appellate Term Second Department 2009] “defendant was not required to establish that the subject collision was the product of fraud, which would require proof of all of the elements of fraud, including scienter by clear and convincing evidence” (id) Rather, an insurer could “establish this defense by a preponderance of the evidence” (id).

Therefore, “an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance” (National General Insurance Online Inc., v. Blasco, 210 AD3d 786, 177 NYS3d 350 [2d Dept., 2022]). In truth, the intentional nature of the event does not have to be rooted in efforts to defraud an insurance company, rather, any reason the event is intentional will foreclose the availability of No-Fault benefits (see, V.S. Medical Services P.C., v. Allstate Insurance Company, 11 Misc 3d 344, 811 NYS2d 886 [Civil Court Kings County 2006]). In seeking summary judgement dismissing the action on the grounds the accident was staged the insurance company bears the burden of presenting sufficient proof by a preponderance of the evidence in admissible form establishing the absence of any material fact (Repwest Insurance Company v. Sasan Family Chiropractic P.C., 2016 WL 4000626 [Supreme Court New York County 2016]). Thus, mere unsubstantiated suspicions are insufficient to establish the necessary proof required to conclude an accident was staged (AB Medical Services PLLC v. Eagle Insurance Company, 3 Misc 3d 8, 776 NYS2d 434 [Appellate Term Second Department 2003]).

The issue that must be addressed is the modicum of evidence necessary to establish, beyond any question of fact, that the incident was staged. Of course, without an admission by one of the participants, an unlikely scenario, it is difficult to imagine direct evidence supporting such a scheme (V.S. Medica Services P.C. v. Allstate Insurance Company, (supra). Therefore, proof of a staged incident will necessarily be based upon circumstantial evidence (American Transit Insurance Company v. Nexray Medical Imaging P.C., 78 Misc 3d 1242(A), 188 NYS3d 916 [Supreme Court Kings County 2023]). The circumstantial evidence presented in this case consists of contradictions between the passengers and the driver of the vehicle provided in examinations under oath as well as assertions the injuries alleged could not have been caused by the collision. Thus, the defendant submitted the affirmation of Colin Krick, a senior investigator in the special investigative unit for Liberty Mutual. The affirmation states that there were four factors which prompted an investigation the incident may have been staged. First, the incident was consistent with other intentional events. Second, the two passengers allegedly injured hired the same attorney and treated at the same medical facility. Third, the medical treatment was inconsistent with a low velocity collision and lastly, the damage to the vehicle was inconsistent [*3]with the medical treatment received. The remainder of the affirmation highlights the inconsistencies and contradictions in testimony provided at examinations under oath by the three participants in the vehicle at the time of the accident, namely the driver Rakesh Sookralli and the passengers Sherry Leak and Crystal Dunbar.

First, other than the conclusory assertions regarding the medical treatment sought and the extent of the damage to the vehicle and the severity of the collision, the affirmation does not explain in any manner how the injuries alleged are indicative of a staged event. Surely, no conclusive evidence has been established in this regard eliminating all questions of fact. Indeed, the affirmation does not address these facts at all, other than to note they existed. Therefore, the mere fact the defendant believes the injuries were inconsistent with the impact of the collision does not establish, beyond any question, that the accident was staged.

Concerning the inconsistencies noted in the testimonies provided, it is true that inconsistencies between various occupants of a vehicle can be used to support the contention the incident was staged or fraudulent (State Farm Fire and Casualty Company v. Advanced Recovery Equipment and Supplies LLC, 2022 NY Slip Op 32805(U) [Supreme Court New York County 2022]). However, the inconsistencies must relate to the subject accident. Thus, in Pavlova v. Allstate Insurance Company, 62 Misc 3d 1207(A), 112 NYS3d 871 [Supreme Court Kings County 2019] the court conceded there were inconsistencies between the testimonies of the various individuals that were involved in the accident, however, there was no explanation how those inconsistencies demonstrated the accident was staged. The court specifically noted that the “defendant did not proffer any affidavit from an investigator who can elaborate on why the inconsistencies demonstrate intentional losses. Without a cogent and detailed investigative summary of this type of alleged intentional loss and solely relying on the transcripts alone in this matter, the testimonies given do not rise to the level of a founded belief that the accident was staged” (id). Again, in State Farm Mutual Auto Insurance Company v. Allmed Merchandise and Trading Inc., 2022 WL 596992 [Supreme Court New York County 2022] the court held that inconsistencies surely raised issues of credibility but they were, standing alone, insufficient to support the conclusion the accident was staged as a matter of law. Further, in Hereford Insurance Company v. All Nations DME Corp., 2026 WL 147211 [Supreme Court New York County 2026] the court held that even inconsistencies about the accident, such as the time and place and the whereabouts of the participants prior to the accident does not in any way demonstrate the accident was fraudulent.

The affirmation of Mr. Krick concludes that “Liberty formed a founded belief that the incident of August 4, 2024, was an intentional act consistent with targeting livery drivers, and that CRYSTAL DUNBAR, and Sherry Leak intentionally misrepresented material facts in furtherance of the fraudulent scheme of targeting unsuspecting livery drivers by deliberately staging an incident to procure monetary gain and valuable medical services” (see, Affirmation of Colin Krick, ¶24 [NYSCEF Doc. No. 9]). That conclusion does not explain how the founded belief was reached, other than to declare that the inconsistencies compel such a result. Thus, a “founded belief” of a staged event is insufficient to obtain summary judgement (KOI Medical Acupuncture v. State Farm Insurance Company, 16 Misc 3d 1135(A), 847 NYS2d 902 [District Court Nassau County 2007]). Indeed, the affirmation of Mr. Krick is solely based on inconsistencies between the occupants of the vehicle at the time of the collision. While the inconsistencies speak for themselves and surely raise questions whether the occupants are being truthful, the investigator provides no measure by which the insurer seeks to establish the incident [*4]was staged as a matter of fact. For example, as noted in the investigator’s affirmation, Sherry Leak testified that Crystal Hudson worked as a flight attendant while Crystal Hudson herself testified that she had not worked as a flight attendant in several years (see, Affirmation of Colin Krick, ¶19 [NYSCEF Doc. No. 9]). While that inconsistency, if not adequately explained, surely raises questions of fact as well as credibility, it provides no support to leap to the conclusion the incident was, therefore, staged. Moreover, numerous inconsistencies found within testimonies provided by participants do not accumulate and reach some point where a definitive determination of a staged incident can be pronounced. One inconsistency may raise credibility issues as noted. Many inconsistencies merely increases credibility questions of the witnesses that must be addressed. Therefore, inconsistencies about where a passenger lived or worked or which passenger called for a taxi or where they were traveling when the incident occurred does not increase the conclusion of a staged incident at all. It surely increases the likelihood the witnesses are not being truthful and the more inconsistencies that are presented the harder it may be to satisfactorily explain them. However, they do not, as a matter of fact, demand the conclusion the incident was staged.

It is well settled that “it 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)” (see, Vega v. Restani Construction Corp., 18 NY3d 499, 942 NYS2d 13 [2012]). Therefore, summary judgement cannot be granted when facts are in dispute (Young v. Kamath, 246 AD3d 1144, 252 NYS3d 236 [2d Dept., 2026]).

In this case, clearly, credibility determinations are at issue. Precisely for these reasons summary judgement must be denied.

So ordered.

Dated: June 4, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC

Matter of Allstate Fire & Cas. Ins. Co. v Alas (2026 NY Slip Op 03439)

Reported in New York Official Reports at Matter of Allstate Fire & Cas. Ins. Co. v Alas (2026 NY Slip Op 03439)

Matter of Allstate Fire & Cas. Ins. Co. v Alas

2026 NY Slip Op 03439 [250 AD3d 735]

Decided on June 3, 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 3, 2026

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Richmond County (Lizette Colon, J.), dated October 1, 2024. The order, insofar as appealed from, denied that branch of the petition which was to permanently stay arbitration.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the petition which was to permanently stay arbitration is granted.

The petitioner, Allstate Fire & Casualty Insurance Company, commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits arising out of an alleged hit-and-run accident, on the ground, among others, that its insured, the respondent, Roberto Antonio Escobar Alas, failed to satisfy a condition precedent to arbitration as required by the insurance policy (hereinafter the subject policy). The subject policy required the insured to report an accident to a police, peace, or judicial officer, or to the Commissioner of Motor Vehicles, within 24 hours or as soon as reasonably possible. In an order dated October 1, 2024, the Supreme Court, among other things, denied that branch of the petition. The petitioner appeals.

“Where, as here, ‘an insurance policy requires that notice of an occurrence be given as soon as practicable, notice must be given within a reasonable time in view of all of the circumstances’ ” (Matter of Travelers Personal Ins. Co. v Dratch, 219 AD3d 1526, 1527 [2023], quoting Ortiz v Fage USA Corp., 105 AD3d 720, 721 [2013]). Alas’s failure to comply with this condition precedent, absent a valid excuse, vitiates coverage under the subject policy (see Matter of Progressive Direct Ins. Co. v Ostapenko, 176 AD3d 1068, 1069 [2019]; Matter of Government Empls. Ins. Co. v Bartlett, 112 AD3d 826, 827 [2013]).

Accordingly, the Supreme Court should have granted that branch of the petition which was to permanently stay arbitration (see Matter of Progressive Direct Ins. Co. v Ostapenko, 176 AD3d at 1069; Matter of Government Empls. Ins. Co. v Bartlett, 112 AD3d at 827).

[*2]The parties’ remaining contentions either need not be reached in light of our determination or are without merit. Iannacci, J.P., Christopher, Landicino and Hom, JJ., concur.

CuraHealth Specialty Pharm. Corp v State Farm Ins. Co. (2026 NY Slip Op 50852(U))

Reported in New York Official Reports at CuraHealth Specialty Pharm. Corp v State Farm Ins. Co. (2026 NY Slip Op 50852(U))

CuraHealth Specialty Pharm. Corp v State Farm Ins. Co.

2026 NY Slip Op 50852(U) [89 Misc 3d 1206(A)]

Decided on June 1, 2026

Civil Court of the City of New York, Queens County

Fania Jean, 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, Queens County

Decided on June 1, 2026

Index No. CV-701169-25/QU

Fania Jean, J.

[*1]

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

Motion, Affidavits and Exhibits NYSCEF 4-15

Opposition, Cross-Motion, Affidavits,

and Exhibits NYSCEF 17-18

Reply/Opposition to Cross-Motion NYSCEF 19

Upon the foregoing cited papers and due deliberation, it is determined as follows:

This is an action by a health services provider to recover assigned first-party no-fault benefits from the insurer defendant. Plaintiff-Assignee, CuraHealth, commenced this action by filing a summons and complaint on January 10, 2025, seeking payment pursuant to 11 NYCRR § 65.15 in the amount of $496.80 for health services rendered to assignor, Eduardo del Rosario, in connection with personal injuries sustained in an automobile accident occurring on December 27, 2023. Defendant insurance company, State Farm, joined issue by filing an answer on February 27, 2025. Now before this Court is defendant’s motion for summary judgment on the grounds that the alleged December 27, 2023, loss was fraudulent, as well as plaintiff’s cross-motion for summary judgment arguing defendant’s claim of fraud is speculative and that, instead, plaintiff met its prima facie burden of demonstrating payments of the no-fault benefits are overdue.

In support of its motion, defendant details its thorough investigation into Mr. Rosario’s claims, and submits numerous exhibits, including the affirmation of defendant’s claim specialist employee Griffin Ballard, a copy of the NF-10 denial of claim form, an uncertified police report, an engineering report on data recovered from the vehicle’s Event Data Recorder (EDR), as well as the certified Examination Under Oath (EUO) transcripts of Mr. Rosario, the driver of the insured vehicle, and passengers Cedeno and Hilarion.

The proponent of a summary judgment motion has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985); Sillman v Twentieth Century-Fox [*2]Film Corp., 3 NY2d 395, 403, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Winegrad, 64 NY2d 851. Once such proof has been offered, the burden then shifts to the opposing party to submit evidence in admissible form and “show facts sufficient to require a trial of any issue of fact.” CPLR 3212 [b]; Alvarez, 68 NY2d at 324.

An intentionally caused or staged vehicular collision is not a covered accident under an insurance policy. Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905, 187 N.Y.S.3d 331 (2d Dept 2023); National Gen. Ins. Online, Inc. v Blasco, 210 AD3d 786, 787, 177 N.Y.S.3d 350 (2d Dept 2022); see Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691, 692, 32 N.Y.S.3d 191 (2d Dept 2016). When a collision is intentionally caused, the insurer is not obligated to provide coverage, even to innocent third parties. Adirondack Ins. Exch., 215 AD3d at 905; Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040, 1041, 999 N.Y.S.2d 482 (2d Dept 2014).

In meeting its burden, an insurer need not “establish that the subject collision was the product of fraud, which would require proof of all elements of fraud, including scienter, by clear and convincing evidence.” V.S. Med. Services, P.C. v. Allstate Ins. Co., 25 Misc 3d 39, 39 (NY App. Term, 2d Dep’t 2009). The insurer need only establish by a preponderance of the evidence that the collision was not an accident. Id. The insurer must demonstrate the facts elicited during an investigation that make up the founded belief. Am. Alternative Ins. Corp. v Washington, 60 Misc 3d 1222[A], 110 N.Y.S.3d 496, 2018 NY Slip Op 51210[U] (Sup Ct, New York County 2018).

Here, defendant insurer established its prima facie entitlement to judgment as a matter of law by demonstrating that it’s belief that the collision was intentionally caused is founded upon a thorough investigation resulting in proof that, inter alia, the policy originated less than a month prior to the alleged loss, the loss was not reported until a couple of months after the alleged accident, the policy claimants offered conflicting versions of events at their EUOs, and the claimants all received identical boilerplate treatment from the same medical providers despite testifying they did not appear to know each other.

In opposition, plaintiff failed to raise a triable issue of fact as to whether the collision was intentionally caused or staged, and plaintiff’s cross-motion is insufficient to make a prima facie case for entitlement to summary judgment because, among other reasons stated above, plaintiff submitted only an affirmation by its counsel, who did not establish that he possessed personal knowledge of the facts. See Rockland Family Med. Care, P.C. v. State Farm Mut. Auto. Ins. Co., 76 Misc 3d 1126[A], 2022 NY Slip Op 50766[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; GBI Acupuncture, P.C. v. 21st Century Ins. Co., 48 Misc 3d 140[A], 2015 NY Slip Op. 51235[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). “[A] plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer.” Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]). Here, plaintiff’s submissions fall short as an attorney affirmation alone is insufficient to raise an issue of fact to oppose a summary judgment motion. Sheepshead Bay Med. Supply, Inc. v Erie Ins. Co. of NY, 2021 NY Slip Op 50491(U) [71 Misc 3d 140(A)] (App. Term 2d Dep’t 2021).

Accordingly, it is hereby,

ORDERED that defendant’s motion for summary judgment is GRANTED in its entirety [*3]and plaintiff’s complaint is hereby dismissed; and it is further

ORDERED that plaintiff’s cross-motion is denied.

This constitutes the decision and order of the court.

Dated: June 1, 2026

Queens, New York

HON. FANIA JEAN, JCC

Palisades Ins. Co. v Boodram (2026 NY Slip Op 50905(U))

Reported in New York Official Reports at Palisades Ins. Co. v Boodram (2026 NY Slip Op 50905(U))

Palisades Ins. Co. v Boodram

2026 NY Slip Op 50905(U) [89 Misc 3d 1211(A)]

Decided on May 29, 2026

Supreme Court, Schenectady County

Thomas D. Buchanan, J.

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

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

Supreme Court, Schenectady County

Decided on May 29, 2026

Index No. 2025-2742

Thomas D. Buchanan, J.

[*1]

This matter comes before the Court on two applications by Plaintiff. First, by Order to Show Cause issued by the Court on March 9, 2026, Plaintiff seeks a preliminary injunction pending the outcome of this declaratory judgment action, enjoining all litigation and arbitration proceedings currently pending or that may be commenced in the future seeking No-Fault benefits, uninsured motorist benefits, underinsured benefits or the like under a certain automobile insurance policy issued by Plaintiff and naming as insureds defendants Nateram and Sanicharie Boodram. Plaintiff also seeks to preliminarily enjoin the Boodram defendants from pursuing litigation between themselves. Defendants Cascade RX, LLC, East Flushing Medical, PLLC, Empire K Corp., Medex Diagnostic and Treatment, LLC, Menahan Medical, PC, and Veterans Memorial Park Medicine, PC, have opposed the injunction. Plaintiff’s second application, filed by Notice of Motion, seeks leave to amend the caption and the Summons and Complaint to name additional parties.

This action arises from an automobile accident that occurred in April of 2025, in Queens, New York, which involved an automobile owned by the Boodrams and covered by the subject policy of insurance issued by Plaintiff. According to Plaintiff, the Boodrams made material misrepresentations as to their home address when applying for the insurance policy in order to obtain a lower premium. In addition to the Boodrams, Plaintiff has named as defendants a number of health care providers seeking reimbursement from Plaintiff for treatment rendered to the Boodrams as a result of injuries claimed to have been suffered in the accident.

Injunction. The parties are in essential agreement as to the standard for issuance of a preliminary injunction. The applicant must show (1) a likelihood of success on the merits, (2) irreparable injury absent the injunction, and (3) a balance of equities that tips in favor of injunctive relief (see e.g. Doe v. Axelrod, 73 NY2d 748 [1988]; Dover Gourmet Corp. v. Nassau Health Care Corp., 89 AD3d 979 [2d Dept. 2011]).

In support of its application for preliminary injunction, Plaintiff focuses on the analysis from Supreme Court, New York County, which looks at case authority for the proposition that a misrepresentation of a material fact in an insurance application can be asserted as an affirmative defense by the insurance company in actions brought by its insured or by health care providers rendering treatment to the insured. The decision asserts that in situations where there are multiple entities seeking benefits, courts will issue a preliminary injunction rather than requiring the insurance company to litigate multiple cases in order assert the defense (Liberty Mutual Ins. Co. v. Colot, 2012 NY Misc. LEXIS 6460, 2012 WL 10008047, 2012 NY Slip Op. 33500(U) [Sup Ct NY County 2012]). This Court cannot agree.

The problem for Plaintiff in this case is likelihood of success on the merits. Insurance Law §3105(b) provides:

No misrepresentation shall avoid any contract of insurance or defeat recovery thereunder unless such misrepresentation was material. No misrepresentations shall be deemed material unless knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such contract.

(emphasis added). The Appellate Division cases referenced in the Liberty Mutual decision are in accord with the statute. In Matter of Ins. Co. of North America v. Kaplun (274 AD2d 293 [2d Dept 2000]), the misrepresentation was that the named insured owned the subject vehicle, when in fact she did not. The opinion states (albeit in dictum) that the insurance company “clearly would not have issued the policy” if it had known the truth. In Matter of Liberty Mutual Ins. Co. v. McClellan (127 AD2d 767 [2d Dept 1987]) the insured misrepresented that the vehicle had never been in an accident and the insurance company’s witness testified that the policy would not have been renewed if the prior accident had been disclosed.

Plaintiff here does not allege that it would not have contracted with the Boodrams had it known their true residence address. Plaintiff merely states that the premium for the policy would have been higher. To the extent that the Appellate Term and trial-level opinions cited in the Liberty Mutual decision are offered for the proposition that misrepresentation for the purpose of obtaining a lower premium is material — without a showing that the policy would not have been issued if the truth had been known — those decisions run counter to the face of Insurance Law §3105(b) and this Court respectfully declines to follow them.

From the perspective of judicial economy, Plaintiff’s argument has a logical appeal. This Court’s signed Plaintiff’s proposed Order to Show Cause, which includes a temporary restraining order. The outcome of the multiple lawsuits and arbitration proceedings arising from the subject accident will likely turn on the decision in this declaratory judgment action. However, a careful reading of the authority cited by the parties does not support Plaintiff’s position.

The legislature has quite intentionally regulated the insurance industry. One needs to look no further than Vehicle and Traffic Law §313, which is discussed in several of the cases cited by Plaintiff, including the Liberty Mutual decision, where the legislature overrode the common-law right of insurance companies to cancel an insurance policy retroactively on the grounds of fraud or misrepresentation. On the record for this motion, the clear terms of Insurance Law §3105(b) preclude a finding that Plaintiff is likely to prevail on the merits of this action. A preliminary injunction is therefore unavailable to Plaintiff.

Amendment to Add Parties. Plaintiff’s second motion seeks leave to amend the Verified Complaint to add certain medical providers who have submitted claims for payment arising from the subject accident as additional parties defendant. The standard for granting leave [*2]to amend is permissive. Leave “shall be freely given upon such terms as may be just” (CPLR 3025[b]). Plaintiff’s application is meritorious and will not prejudice any existing party. Indeed, this motion is unopposed.

The parties’ remaining contentions have been considered, but do not alter the outcome of these two motions. Therefore, in consideration of the foregoing, it is hereby

ORDERED, that the motion by Plaintiff seeking a preliminary injunction of all litigation and arbitration proceedings seeking benefits from the subject insurance policy is denied; and it is further

ORDERED, that the temporary restraining order contained within the Order to Show Cause issued by the Court on March 9, 2026, is hereby dissolved; and it is further

ORDERED, that the motion by Plaintiff seeking leave to amend the Verified Complaint in this action to name additional parties defendant is hereby granted; and it is further

ORDRED, that Plaintiff shall file and serve the Amended Summons and Amended Verified Complaint in the form annexed to its motion papers within thirty (30) days of the entry of this Decision and Order; and it is further

ORDERED, that the time frames found in CPLR §306-b shall apply to the service of the Amended Summons and Amended Complaint, measured from the date that same are filed with the Court.

Dated: May 29, 2026

ENTER.

Thomas D. Buchanan

Supreme Court Justice

Papers considered:

NYSCEF Document Nos. 30 through 59.

Pacific Med. Servs., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 50808(U))

Reported in New York Official Reports at Pacific Med. Servs., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 50808(U))

Pacific Med. Servs., P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 50808(U) [89 Misc 3d 127(A)]

Decided on May 22, 2026

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.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on May 22, 2026

2025-196 Q C

Present: : Chereé A. Buggs, J.P., Wavny Toussaint, Karen Lin, JJ

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered January 6, 2025. The judgment, insofar as appealed from, awarded plaintiff the principal sum of $2,705 pursuant to a stipulation of settlement, and failed to award statutory compounded no-fault interest. The appeal from the judgment brings up for review an order of the same court dated April 3, 2018 denying plaintiff’s motion to recalculate the statutory no-fault interest using a compound, not simple, rate and, sua sponte, tolling the accrual of all such interest.

[*1]

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, the April 3, 2018 order denying plaintiff’s motion to recalculate the statutory no-fault interest using a compound, not simple, rate and, sua sponte, tolling the accrual of all such interest is vacated, plaintiff’s motion is granted, and the matter is remitted to the Civil Court for the entry of a new judgment in the principal sum of $3,156.88 and in accordance with this decision and order.

This action by a provider to recover assigned first-party no-fault benefits was marked as “Settled” at a November 30, 2009 court appearance. Defendant did not pay the settlement amount and a judgment was subsequently entered entered in favor of plaintiff on January 12, 2017, pursuant to CPLR 5003-a, in the principal amount of $3,156.88 and awarding plaintiff statutory no-fault interest at a simple rate. Plaintiff then moved, pursuant to CPLR 5019 (a), to, in effect, correct the judgment by recalculating the statutory no-fault interest from a simple rate to a compound rate. In an order dated April 3, 2018, the Civil Court (David M. Hawkins, J.) denied plaintiff’s motion and, sua sponte, vacated the judgment and tolled the accrual of interest. A judgment was entered on March 12, 2024 pursuant to the order, awarding plaintiff the total sum of $2,705.

Plaintiff correctly argues on appeal that the principal sum of the judgment does not accurately reflect the amount agreed upon in the settlement, which was $3,156.88, and that the [*2]Civil Court erred in denying plaintiff’s motion and sua sponte tolling the interest (see Berenblit v Country Wide Ins. Co., 85 Misc 3d 135[A], 2025 NY Slip Op 50487[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]).

Accordingly, the judgment, insofar as appealed from, is reversed, the April 3, 2018 order denying plaintiff’s motion to recalculate the statutory no-fault interest using a compound, not simple, rate and, sua sponte, tolling the accrual of all such interest is vacated, plaintiff’s motion is granted, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: May 22, 2026