Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y. (2026 NY Slip Op 50796(U))

Reported in New York Official Reports at Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y. (2026 NY Slip Op 50796(U))

Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y.

2026 NY Slip Op 50796(U) [89 Misc 3d 126(A)]

Decided on May 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2026

2025-536 RI C

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

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Mura Law Group, PLLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), dated March 31, 2025. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy.

[*1]

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied in its entirety.

Insofar as is relevant to this appeal, in this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the grounds of fraudulent procurement of the insurance policy, material misrepresentation made in the insurance claim, untruthful testimony at an examination under oath (EUO), and failing to respond to post-EUO verification requests. Plaintiff opposed the motion. By order dated March 31, 2025, the Civil Court (Mary A. Kavanagh, J.) granted the branch of the motion seeking summary judgement dismissing the complaint on the ground of fraudulent procurement, without passing on the other branches of the summary judgment motion.

The defense that a material misrepresentation was made when procuring an insurance policy is subject to preclusion if not interposed in a timely denial (see JFL Med. Care, P.C. v Wesco Ins. Co., 77 Misc 3d 139[A], 2022 NY Slip Op 51376[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Empire State Med. Supplies, Inc. v Sentry Ins., 55 Misc 3d 130[A], 2017 NY Slip Op 50403[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). In its motion for summary judgment, defendant alleged that, following the February 2023 motor vehicle incident, the assignor appeared at an EUO in March 2023, defendant received plaintiff’s instant claim in April 2023, and defendant denied the claim in September 2023 due to the [*2]assignor “making material misrepresentations while presenting her no-fault claim, testifying untruthfully at the Examination Under Oath and then failing to respond to post-Examination Under Oath requests for verification.” Defendant also argued, among other things, that the policy was fraudulently procured by the assignor’s aunt and that the denial of the claim was timely since the time in which it had to pay or deny it was tolled due to the assignor’s failure to respond to verification requests.

Upon a review of the record, we find that defendant’s moving papers failed to show that it timely and properly mailed its verification requests to the assignor or to the assignor’s attorneys so as to toll defendant’s time to pay or deny the claim. In his affirmation in support of defendant’s summary judgment motion, defendant’s attorney stated that he directed his assistant to send the requests and follow-up requests for verification to the assignor and to her attorneys by both e-mail and regular mail. Defendant did not submit any further proof as to the mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co.,50 AD3d 1123 [2008]). In any event, we note that the affirmation of defendant’s senior medical management specialist was insufficient to show that a denial of claim form had been mailed to plaintiff on the date alleged (see id.). Thus, the branch of defendant’s motion seeking summary judgment on the ground of fraudulent procurement of the no-fault insurance policy should not have been granted.

As defendant did not prove that it mailed the verification requests, we need not remit the matter to the Civil Court to decide the branch of defendant’s motion seeking summary judgment on the ground that plaintiff’s assignor did not respond to those requests. In view of the foregoing determination that defendant failed to present proof that it timely denied the claim, we need not remit the matter to the Civil Court to determine the remaining branches of defendant’s summary judgment motion, as they involve precludable defenses.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied in its entirety.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: May 15, 2026

Shamayim Chiropractic, P.C. v Permanent Gen. Assur. Corp. (2026 NY Slip Op 50791(U))

Reported in New York Official Reports at Shamayim Chiropractic, P.C. v Permanent Gen. Assur. Corp. (2026 NY Slip Op 50791(U))

Shamayim Chiropractic, P.C. v Permanent Gen. Assur. Corp.

2026 NY Slip Op 50791(U) [89 Misc 3d 126(A)]

Decided on May 15, 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 15, 2026

2025-189 K C

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

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Freiberg, Peck & Kang, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated November 1, 2024. The order granted defendant’s motion to vacate a judgment entered on June 20, 2023 upon defendant’s failure to appear or answer the complaint.

[*1]

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment entered June 20, 2023 is denied.

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on June 20, 2023 upon defendant’s failure to appear or answer the complaint. According to the affidavit of service, the summons and complaint were delivered to the managing agent of defendant’s registered agent for accepting service of process on defendant’s behalf in the State of New York. Defendant subsequently moved to vacate the default judgment pursuant to CPLR 317 and CPLR 5015 (a) (1). Plaintiff opposed the motion. By order dated November 1, 2024, the Civil Court (Odessa Kennedy, J.) granted defendant’s motion to vacate the default judgment based on CPLR 5015 (a) (1). On appeal, plaintiff argues that defendant provided neither a reasonable excuse for its default nor a potentially meritorious defense to the action.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) is required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby’s Bus Co., Inc., 85 AD3d 843 [2011]). The process server’s affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving an agent of defendant authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Milky Way Acupuncture, P.C. v [*2]Allstate Ins. Co., 68 Misc 3d 128[A], 2020 NY Slip Op 50935[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In support of its motion, defendant provided an affidavit from its personal injury protection litigation representative who averred that, based upon her search of defendant’s files and databases, she determined that the summons and complaint was never received by defendant. Defendant’s claim of lack of receipt is insufficient to constitute a reasonable excuse, as defendant did not provide an affidavit containing a detailed and specific contradiction of the allegations in the process server’s affidavit or an explanation why it could not do so (see Berganza v Pecora, 192 AD3d 743, 744 [2021]; Deutsche Bank Natl. Trust Co. v O’King, 148 AD3d 776, 776-777 [2017]; Art of Healing Medicine, P.C. v Allstate Ins. Co., 81 Misc 3d 141[A], 2023 NY Slip Op 51471[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]; Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Thus, defendant’s motion was improperly granted pursuant to CPLR 5015 (a) (1), and it is unnecessary to consider whether defendant demonstrated a potentially meritorious defense to the action (see Hingorani v Venus Enters. 11 Corp., 208 AD3d 1229, 1230 [2022]; Ahava Med. Diagnostic, P.C. v Hertz Co., 72 Misc 3d 138[A], 2021 NY Slip Op 50772[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Furthermore, CPLR 317 is not a basis to vacate the default judgment, since defendant’s agent was personally served with process (see CPLR 317, 318).

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment entered June 20, 2023 is denied.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: May 15, 2026

Alternative PLM Acupuncture, P.C v Nationwide Gen. Ins Co (2026 NY Slip Op 51325(U))

Reported in New York Official Reports at Alternative PLM Acupuncture, P.C v Nationwide Gen. Ins Co (2026 NY Slip Op 51325(U))

Alternative PLM Acupuncture, P.C v Nationwide Gen. Ins Co

2026 NY Slip Op 51325(U) [89 Misc 3d 1248(A)]

Decided on May 5, 2026

Civil Court of the City of New York, Kings County

Chidi A. Eze, 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 May 5, 2026

Index No. CV-714666-21/KI

Chidi A. Eze, J.

[*1]

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

Papers Numbered

Order to show Cause/Notice of Motion and Affidavits /Affirmations annexed 1

Answering Affidavits/Affirmations 2

Reply Affidavits/Affirmations Memoranda of Law 3

Upon the foregoing cited papers, the Decision/ Order on the Defendant’s motion for summary judgment is as follows:

In this action by plaintiff-provider to recover no-fault first-party benefits for treatment rendered to its assignor, Nicole Jones, for a motor vehicle accident that occurred April 2, 2020, defendant moves to dismiss the complaint as premature, stating that this is a worker’s compensation matter because plaintiff’s assignor was in the course of her employment when the accident occurred. Plaintiff argues that defendant waived its right to deny the claim for any reason whatsoever, since it did not do so within 30 days period, after receiving the bill, as prescribed by law.

NYS Insurance Law § 5106 states “[P]ayments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained.” The courts have interpreted this to also mean ‘any defense, other than lack of coverage and failure to comply with applicable fee schedule, is waived if not raised before the claim is overdue’. See Presbyterian Hosp. in the City of NY v. Maryland Cas. Co., 226 AD2d 613, 641 N.Y.S.2d 395 (2nd Dept 1996). Only a request for verification of claim tolls this 30-day period. See Id.

Here, the first issue to be determined by this court is whether or not defendant paid or [*2]denied plaintiff’s first bill (bill 1) within 30 days of receiving same or requested for verification within this timeframe.

There is no dispute that defendant received the first bill (bill 1) from plaintiff on or about June 9, 2020, and there is no dispute that defendant issued denial letter dated July 21, 2020, but received July 22, 2020. There is also no dispute that defendant issued what it called a ‘delay letter’ on June 22, 2020, which read:

We are currently investigating this matter to determine whether the alleged injuries arose out of the use and operation of our insured vehicle and whether the injured party is an eligible injured party entitled to No-Fault benefits under the above mentioned policy. As a result we have requested an EUO of the claimant and/or their assignee.^FN1

Defendant asserts that its delay letter, issued within 11 days of receiving plaintiff’s first bill has the effect of tolling this 30-day denial period. Defendant also argued that its Examination Under Oath scheduling letter, dated May 9, 2020, also has the effect of tolling this 30-day period.

The court notes that no bill was received by defendant on May 9, 2020, therefore that letter could not act as a verification request nor have a tolling effect, for the simple reason that you cannot request verification nor toll the paying of a bill without first receiving the bill.

This court and case law disagree with defendant’s position that its delay letter was sufficient to toll this 30-day period. The court reviewed the delay letter and found that nowhere in that letter did the word “verification’ appear. “It is well settled that an insurer’s delay letters, which request no verification, are insufficient to toll the 30-day statutory time period within which a claim must be paid or denied” Parsons Med. Supply, Inc. v. Progressive Ne. Ins. Co. 36 Misc 3d 148(A), 959 N.Y.S.2d 91 (App Term 2d, 11th and 13th Jud. Dists. 2012) (citing Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists.2010]).

Nor does defendant’s defense of assignor’s eligibility for Worker’s Compensation benefits qualify as ‘lack of coverage’ or ‘failure to comply with applicable fee’ denial.

Thus, defendant’s ‘delay letter’ of June 22, 2020, failed to establish that the 30-day period, within which to pay or deny a claim, was tolled. Consequently, the denial letter dated July 22, 2020, was untimely as it was issued more than 30 days from when defendant received plaintiff’s first bill.

With regards to bill 2, defendant denied same timely, on the ground that the assignor is eligible for worker’s compensation benefits, and this court cannot make the determination whether or not said assignor is so eligible.

In light of the above, this court need not reach defendant’s remaining contentions.

Accordingly, it is

ORDERED that defendant’s summary judgment motion is DENIED, as to Bill 1

ORDERED that summary judgment is granted to defendant, as to Bill 2

Date: May 5, 2026

Hon. Chidi A. Eze

Civil Court Judge (NYC)

KN Acupuncture, PC v MVAIC (2026 NY Slip Op 50620(U))

Reported in New York Official Reports at KN Acupuncture, PC v MVAIC (2026 NY Slip Op 50620(U))

KN Acupuncture, PC v MVAIC

2026 NY Slip Op 50620(U)

Decided on April 30, 2026

Civil Court of the City of New York, Kings County

Sandra E. Roper, J.

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

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

Civil Court of the City of New York, Kings County

Decided on April 30, 2026

Index No. 733156/20

Sandra E. Roper, J.

[*1]

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

Papers

Notice of Motion and Affidavits Annexed 1-2

Cross-Motion and Affidavits Annexed 3 – 4

Answering Affidavit 5

Replying Affidavits 6

Exhibits

Other

Upon the foregoing cited papers, the Decision/Order on Plaintiff’s Cross-Motion for Summary Judgment is hereby DENIED, and Defendant’s Motion for Summary Judgment is hereby GRANTED.

Plaintiff’s argument in reliance on Yassin v Blackman (188 AD3d 62, 65-68 [2d Dept 2020]) is misplaced as distinguishable from this instant matter. Rather, Defendant established that the vehicle involved in the alleged accident was insured at the time of the alleged accident notwithstanding that the police accident report was uncertified. The uncertified police accident report which is deemed as admissible business record exception to the hearsay rule in part, where the entrant police officer and the declarant both must comply with respective statutory duty to enter and to declare pursuant to legal compulsion under penalty of criminal law, the production of the driver’s license, registration card and insurance card. Production of these statutorily mandated facially trustworthy documents are significantly distinguishable from a police officer’s entry of a declarant’s impeachable and subjective verbal statement as to facts of versions of causation or defense of the accident as in Yassin. Such verbal statements entered in the uncertified police report are impeachable, inadmissible hearsay and it fails as a business record exception to the hearsay rule, requiring a certified police report. Thus, an uncertified police report may be considered a quasi-[*2]hybrid business record exception to the hearsay rule: fails as to declarant’s verbal statements which must be certified for admissibility; yet upheld for entries of the presentation of facially trustworthy statutory documents pursuant to the legal compulsion under penalty of criminal law, which does not have to be certified for the admissibility exclusively of those entered statutorily mandated facially trustworthy documents (see Eagle Ins. Co. v Olephant, 81 AD2d 886 [2d Dept 1981]; see also Hochhauser v Elec. Ins. Co., 46 AD3d 174 [2d Dept 2007]; see also Balboa Ins. Co. v Alston, 141 AD2d 364, 364-365 [1st Dept 1988]; Vehicle and Traffic Law § 311 [10]; VTL § 312; VTL 319 [3]; VTL 600; 15 NYCRR 32.12).

Thus, Defendant satisfied its burden for judgment as a matter of law. Upon which, the burden of rebuttal shifts to Plaintiff, which failed to proffer admissible evidence to satisfy its burden to rebut that vehicle was insured. This finding of insurability of the vehicle obviates deliberation for Defendant’s further defense regarding failure to have received a Notice of Intent to Make a Claim.

For the foregoing reasons, this matter is dismissed with prejudice based on available insurance coverage.

This constitutes the decision and order of The Court.

DATE April 30, 2026

HON. SANDRA E. ROPER

Matter of Integrated Specialty ASC, LLC v American Tr. Ins. Co. (2026 NY Slip Op 02651)

Reported in New York Official Reports at Matter of Integrated Specialty ASC, LLC v American Tr. Ins. Co. (2026 NY Slip Op 02651)

Matter of Integrated Specialty ASC, LLC v American Tr. Ins. Co.

2026 NY Slip Op 02651 [248 AD3d 1245]

Decided on April 29, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, June 10, 2026

April 29, 2026

In a proceeding pursuant to CPLR article 75 to confirm a master arbitration award dated August 1, 2023, Integrated Specialty ASC, LLC, appeals from a judgment of the Supreme Court, Nassau County (Thomas A. Rademaker, J.), entered January 12, 2024. The judgment, insofar as appealed from, upon an order of the same court entered November 17, 2023, granting the petition, awarded Integrated Specialty ASC, LLC, attorneys’ fees pursuant to 11 NYCRR 65-4.6 (d) in the sum of only $1,000 and did not award Integrated Specialty ASC, LLC, additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

Ordered that the judgment is reversed insofar as appealed from, on the law and the facts, with costs, Integrated Specialty ASC, LLC, is awarded attorneys’ fees pursuant to 11 NYCRR 65-4.6 (d) in the sum of $1,360, and the matter is remitted to the Supreme Court, Nassau County, for a determination of the amount of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) to be awarded to Integrated Specialty ASC, LLC, and thereafter for the entry of an appropriate amended judgment in accordance herewith.

Integrated Specialty ASC, LLC (hereinafter Integrated Specialty), as assignee of Mayra Machuca, is a medical provider which made a claim for no-fault benefits from American Transit Insurance Company (hereinafter American Transit). American Transit denied the claim. Integrated Specialty submitted the claim to arbitration, and in an award dated May 8, 2023, the arbitrator awarded Integrated Specialty the sum of $15,219.04, plus interest. In a determination dated August 1, 2023 (hereinafter the master arbitration award), the master arbitrator affirmed the arbitration award.

In October 2023, Integrated Specialty commenced this proceeding to confirm the master arbitration award. The petition sought, inter alia, awards of attorneys’ fees pursuant to 11 NYCRR 65-4.6 (d) in the sum of 20% of the principal award, plus interest, and additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) in an amount to be determined on affirmation. American Transit did not answer or oppose the petition. In an order entered November 17, 2023 (hereinafter the November 2023 order), the Supreme Court, among other things, granted the unopposed petition. The November 2023 order also awarded Integrated Specialty attorneys’ fees pursuant to 11 NYCRR [*2]65-4.6 (d) in the sum of 20% of the principal award, plus interest, and additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) in an amount to be determined on submission of an affirmation of attorneys’ fees.

In a judgment entered January 12, 2024, the Supreme Court, upon the November 2023 order, inter alia, awarded Integrated Specialty attorneys’ fees pursuant to 11 NYCRR 65-4.6 (d) in the sum of $1,000 and did not award Integrated Specialty additional attorneys’ fees pursuant to 11 NCYRR 65-4.10 (j) (4). Integrated Specialty appeals.

Pursuant to 11 NYCRR 65-4.6 (d), attorneys’ fees for an arbitration and a master arbitration in which a petitioner ultimately prevailed are limited to “20 percent of the total amount of first-party benefits and any additional first-party benefits, plus interest thereon for each applicant per arbitration or court proceeding, subject to a maximum fee of $1,360.” As conceded by American Transit, the Supreme Court erroneously awarded Integrated Specialty $1,000 instead of $1,360 pursuant to 11 NYCRR 65-4.6 (d). Accordingly, the court should have awarded Integrated Specialty attorneys’ fees pursuant to 11 NYCRR 65-4.6 (d) in the sum of $1,360 (see id.).

Moreover, Integrated Specialty was entitled to an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) for services rendered in connection with this CPLR article 75 proceeding, as a proceeding to confirm an arbitration award is a “court appeal” for the purposes of 11 NYCRR 65-4.10 (j) (4) (see Matter of John T. Mather Memorial Hosp v Am. Transit Ins. Co., 247 AD3d 1188 [2026]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2017]). In the November 2023 order, the Supreme Court properly determined that Integrated Specialty was entitled to such fees and directed Integrated Specialty to submit an affirmation of attorneys’ fees for the court to determine the amount of additional fees to be awarded, but the judgment did not award such fees, and the record reflects no apparent basis for that omission (see Matter of American Tr. Ins. Co. v Rutland Med. PC, 224 AD3d 531, 532 [2024]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 706). Contrary to American Transit’s contention, the record sufficiently demonstrates that Integrated Specialty properly submitted an affirmation of attorneys’ fees to the court. The record has been properly certified by Integrated Specialty’s attorney as an accurate copy of the papers on file with the court (see CPLR 2105), and, moreover, we take judicial notice of the fact that Integrated Specialty filed an affirmation of attorneys’ fees with the proposed judgment on the New York State Courts Electronic Filing System (see Wells Fargo Bank, N.A. v Ballard, 172 AD3d 1440, 1442 [2019]).

Accordingly, we remit this matter to the Supreme Court, Nassau County, for a determination of the amount of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) to be awarded to Integrated Specialty and thereafter for the entry of an appropriate amended judgment (see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783 [2025]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705).

The parties’ remaining contentions are without merit. Connolly, J.P., Chambers, Voutsinas and Goldberg Velazquez, JJ., concur.

Matter of American Tr. Ins. Co. v Smart Choice Med., P.C. (2026 NY Slip Op 02646)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Smart Choice Med., P.C. (2026 NY Slip Op 02646)

Matter of American Tr. Ins. Co. v Smart Choice Med., P.C.

2026 NY Slip Op 02646 [248 AD3d 1233]

Decided on April 29, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, June 10, 2026

April 29, 2026

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated December 29, 2022, in which Smart Choice Medical, P.C., as assignee of Kingsley Parker, cross-petitioned, inter alia, pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of reasonable attorneys’ fees, Smart Choice Medical, P.C., appeals from a judgment of the Supreme Court, Kings County (Francois A. Rivera, J.), dated May 7, 2024. The judgment, insofar as appealed from, upon so much of an order of the same court dated April 22, 2024, as denied that branch of the motion of Smart Choice Medical, P.C., which was for leave to renew its application for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), which had been denied in an order of the same court dated November 30, 2023, failed to award Smart Choice Medical, P.C., additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

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

American Transit Insurance Company (hereinafter the petitioner) commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated December 29, 2022, confirming an arbitration award entered in favor of Smart Choice Medical, P.C. (hereinafter Smart Choice). Smart Choice cross-petitioned, inter alia, to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees. In an order dated August 23, 2023 (hereinafter the August 2023 order), the Supreme Court, among other things, upon its determination that Smart Choice was entitled to an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), set forth a briefing schedule for Smart Choice to submit an affirmation on the issue of the amount of attorneys’ fees to be awarded (hereinafter the affirmation of attorneys’ fees) and for the petitioner to submit opposition thereto.

Thereafter, Smart Choice filed the affirmation of attorneys’ fees. The petitioner opposed Smart Choice’s application for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), inter alia, on the ground that the affirmation of attorneys’ fees was not timely filed in accordance with the court-ordered briefing schedule. In reply, Smart Choice admitted that the affirmation of attorneys’ fees was “tardy,” and attributed the tardiness to law office error in the use of case management tracking software, but asked the Supreme Court to excuse the tardiness on [*2]the ground that the petitioner was not prejudiced. In an order dated November 30, 2023, the court denied Smart Choice’s application for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) on the ground that Smart Choice failed to comply with the court’s briefing schedule and, thus, filed the affirmation of attorneys’ fees late.

In December 2023, Smart Choice moved, among other things, for leave to renew its application for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). In support of renewal, Smart Choice argued for the first time that it could not comply with the Supreme Court’s briefing schedule because Smart Choice’s deadline for submitting the affirmation of attorneys’ fees had already passed by the time the August 2023 order setting forth the briefing schedule was signed and uploaded to the court’s electronic case filing system. The petitioner opposed Smart Choice’s motion, contending that Smart Choice had not offered new information that was unavailable when the court made its initial determination to deny Smart Choice’s application and submitted a copy of an email from Smart Choice to the court demonstrating that Smart Choice was aware of the deadline for submitting the affirmation of attorneys’ fees in time to comply. In an order dated April 22, 2024, the court, inter alia, denied that branch of Smart Choice’s motion. Thereafter, in a judgment dated May 7, 2024, the court, among other things, failed to award Smart Choice additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). Smart Choice appeals from the judgment.

“A motion for leave to renew is addressed to the sound discretion of the court” (Carmike Holding I, LLC v Smith, 180 AD3d 744, 747 [2020] [internal quotation marks omitted]). Pursuant to CPLR 2221 (e), a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination (see CPLR 2221 [e] [2]) and shall contain reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221 [e] [3]). “The new or additional facts either must have not been known to the party seeking renewal or may, in the Supreme Court’s discretion, be based on facts known to the party seeking renewal at the time of the original motion” (Carmike Holding I, LLC v Smith, 180 AD3d at 747 [internal quotation marks omitted]; see Seror v Clearview Operating Co., LLC, 235 AD3d 1023, 1025 [2025]). “However, in either instance, a reasonable justification for the failure to present such facts on the original motion must be presented” (Cioffi v S.M. Foods, Inc., 129 AD3d 888, 891 [2015] [internal quotation marks omitted]; see Carmike Holding I, LLC v Smith, 180 AD3d at 747). Reasonable justification does not exist where “the ‘new evidence’ consists of documents which the [moving party] knew existed, and were in fact in his own possession at the time the initial motion was made” (Rowe v NYCPD, 85 AD3d 1001, 1003 [2011]; see Cioffi v S.M. Foods, Inc., 129 AD3d at 891).

Here, the purported new information that Smart Choice relied upon was available to it prior to the date it filed its motion, and it failed to set forth a reasonable justification for its failure to submit this information in the first instance (see Seror v Clearview Operating Co., LLC, 235 AD3d at 1025; Carmike Holding I, LLC v Smith, 180 AD3d at 747; Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 586 [2012]; Jovanovic v Jovanovic, 96 AD3d 1019, 1020 [2012]; Rowe v NYCPD, 85 AD3d at 1003). Accordingly, the Supreme Court properly denied that branch of Smart Choice’s motion which was for leave to renew its application for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

Smart Choice’s remaining contention is without merit. Connolly, J.P., Chambers, Voutsinas and Goldberg Velazquez, JJ., concur.

Matter of American Tr. Ins. Co. v Citimed Surgery Ctr., LLC (2026 NY Slip Op 02645)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Citimed Surgery Ctr., LLC (2026 NY Slip Op 02645)

Matter of American Tr. Ins. Co. v Citimed Surgery Ctr., LLC

2026 NY Slip Op 02645 [248 AD3d 1232]

Decided on April 29, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, June 10, 2026

April 29, 2026

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated January 26, 2023, in which Citimed Surgery Center, LLC, as assignee of Cruz Marroquin, cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees, Citimed Surgery Center, LLC, appeals from a judgment of the Supreme Court, Kings County (Robin K. Sheares, J.), dated April 2, 2024. The judgment, insofar as appealed from, upon so much of an order of the same court dated May 11, 2023, as granted that branch of the cross-petition of Citimed Surgery Center, LLC, which was pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees to the extent of directing Citimed Surgery Center, LLC, to submit a motion for an award of additional attorneys’ fees with supporting affirmation within 30 days, and upon an order of the same court dated March 7, 2024, denying the motion of Citimed Surgery Center, LLC, pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees, failed to award Citimed Surgery Center, LLC, additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

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

American Transit Insurance Company commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated January 26, 2023, confirming an arbitration award entered in favor of Citimed Surgery Center, LLC (hereinafter Citimed). Citimed cross-petitioned, among other things, to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees. In an order dated May 11, 2023, the Supreme Court, inter alia, upon its determination that Citimed was entitled to additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) granted that branch of the cross-petition which was pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees to the extent of directing Citimed to “submit a motion for attorney’s fees with supporting affirmation within thirty (30) days and allow Petitioner to oppose motion, and the Court can decide reasonable attorney fees after the submission of papers and oral argument.”

Citimed did not file its motion pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees with supporting affirmation until July 13, 2023, and failed to acknowledge [*2]or explain its tardiness. In an order dated December 7, 2023, the Supreme Court denied Citimed’s motion “due to the non-appearance of the Movant at the first and second calendar calls.” In December 2023, Citimed filed a second motion pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees (hereinafter Citimed’s second motion), which made no reference to the prior motion for the same relief and again failed to acknowledge or explain Citimed’s tardiness in moving for such relief. In an order dated March 7, 2024, the court denied Citimed’s second motion as untimely. Thereafter, the court issued a judgment, among other things, failing to award Citimed additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). CitiMed appeals.

Contrary to Citimed’s contentions, the Supreme Court properly denied Citimed’s second motion as untimely. The Court of Appeals has made it clear that court-ordered time frames are to be taken seriously (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004]; Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). “If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity” (Kihl v Pfeffer, 94 NY2d at 123). Here, Citimed’s second motion was filed beyond the court-ordered 30-day filing period, thereby rendering Citimed’s second motion untimely (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d at 726; Thomsen v Suffolk County Police Dept., 50 AD3d 1015, 1017 [2008]).

Citimed’s remaining contention is without merit.

As the Supreme Court properly denied Citimed’s second motion as untimely, we affirm the judgment insofar as appealed from. Connolly, J.P., Chambers, Voutsinas and Goldberg Velazquez, JJ., concur.

Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Ctr., LLC (2026 NY Slip Op 02644)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Ctr., LLC (2026 NY Slip Op 02644)

Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Ctr., LLC

2026 NY Slip Op 02644 [248 AD3d 1229]

Decided on April 29, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, June 10, 2026

April 29, 2026

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated June 28, 2022, Bay Ridge Surgi-Center, LLC, appeals from a judgment of the Supreme Court, Kings County (Ingrid Joseph, J.), dated April 26, 2024. The judgment, insofar as appealed from, upon so much of an order of the same court dated November 21, 2023, as failed to award Bay Ridge Surgi-Center, LLC, additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), and upon so much of an order of the same court dated April 17, 2024, as denied that branch of the motion of Bay Ridge Surgi-Center, LLC, which was pursuant to CPLR 5015 (a) (1) to vacate so much of the order dated November 21, 2023, issued upon the default of Bay Ridge Surgi-Center, LLC, in appearing for oral argument, as failed to award Bay Ridge Surgi-Center, LLC, additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) and, in effect, upon reargument, adhered to so much of the prior determination in the order dated November 21, 2023, as failed to award Bay Ridge Surgi-Center, LLC, additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), did not award Bay Ridge Surgi-Center, LLC, additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

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

In September 2022, American Transit Insurance Company (hereinafter the petitioner) commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated June 28, 2022, confirming an arbitration award entered in favor of Bay Ridge Surgi-Center, LLC (hereinafter Bay Ridge). Bay Ridge opposed the petition.

In an order dated November 21, 2023 (hereinafter the November 2023 order), the Supreme Court, upon Bay Ridge’s failure to appear for oral argument, inter alia, denied the petition on the merits and confirmed the master arbitration award. In addition, as relevant to this appeal, the November 2023 order failed to award Bay Ridge additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

In December 2023, Bay Ridge moved, among other things, pursuant to CPLR 5015 (a) (1) to vacate so much of the November 2023 order, issued upon Bay Ridge’s default in appearing for oral argument, as failed to award Bay Ridge additional attorneys’ fees pursuant to 11 [*2]NYCRR 65-4.10 (j) (4) and for “leave to reargue the branch of the [November 2023 order] denying [Bay Ridge] its attorney fee, . . . and, upon reargument, vacating the order and granting [Bay Ridge] its attorney fee, pursuant to 11 NYCRR 65-4.10 (j) (4).” In an order dated April 17, 2024, the Supreme Court, inter alia, denied that branch of Bay Ridge’s motion which was pursuant to CPLR 5015 (a) (1) to vacate so much of the November 2023 order, issued upon Bay Ridge’s default in appearing for oral argument, as failed to award Bay Ridge additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) and, in effect, upon reargument, adhered to so much of the prior determination in the November 2023 order as failed to award Bay Ridge additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). The court noted that while Bay Ridge failed to appear at oral argument on the petition, the November 2023 order determined the petition on the merits in Bay Ridge’s favor. The court further noted that the November 2023 order had not addressed the issue of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) because Bay Ridge had not requested such relief and that to the extent that Bay Ridge was seeking such relief in the first instance, Bay Ridge had failed to include an affirmation of attorneys’ fees in support of its application. Thereafter, in a judgment dated April 26, 2024, the court, among other things, did not award Bay Ridge additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). Bay Ridge appeals.

The Supreme Court properly denied that branch of Bay Ridge’s motion which was pursuant to CPLR 5015 (a) (1) to vacate so much of the November 2023 order, issued upon Bay Ridge’s default in appearing for oral argument, as failed to award Bay Ridge additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), as Bay Ridge opposed the petition and the court determined the petition on the merits and not upon default (see CPLR 5015 [a] [1]; Cole-Hatchard v Eggers, 132 AD3d 718, 719 [2015]).

Further, Bay Ridge’s contention that it was entitled to an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) was raised for the first time in connection with that branch of its motion which was for reargument. A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided or to present arguments different from those originally presented (see FPG CH 94 Amity, LLC v Pizzarotti, LLC, 218 AD3d 651, 653 [2023]; Flanagan v Delaney, 194 AD3d 694, 698 [2021]). In any event, on the merits, the Supreme Court did not err in declining to award Bay Ridge additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). That regulation provides, in pertinent part, that “[t]he attorney’s fee for services rendered in connection with . . . a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (id.). The court’s determination of an award of attorneys’ fees “must be based upon a demonstration of the hours reasonably expended on the litigation and what is reasonable compensation for the attorney based upon the prevailing rate for similar work in the community” (RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840 [2016]). “The attorney bears the burden of establishing the reasonable value of the services rendered through contemporaneous time records specifying the date, hours expended, and nature of the work performed” (Hershfield v Davidoff, 233 AD3d 923, 924 [2024] [internal quotation marks omitted]). Here, where the petitioner neither made a timely application for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) prior to the determination of the petition nor submitted any documentation of the additional attorneys’ fees incurred, the court properly declined to award such fees (see Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 220 AD3d 461 [2023]). Connolly, J.P., Chambers, Voutsinas and Goldberg Velazquez, JJ., concur.

American Tr. Ins. Co. v MZY Acupuncture, P.C. (2026 NY Slip Op 02236)

Reported in New York Official Reports at American Tr. Ins. Co. v MZY Acupuncture, P.C. (2026 NY Slip Op 02236)

American Tr. Ins. Co. v MZY Acupuncture, P.C.

2026 NY Slip Op 02236 [248 AD3d 972]

Decided on April 15, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, June 10, 2026

April 15, 2026

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of a claim for no-fault insurance benefits, the defendant appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated November 6, 2024. The order granted the plaintiff’s motion for leave to renew and reargue its opposition to that branch of the defendant’s prior motion which was pursuant to CPLR 3126 to strike the complaint, which had been granted in an order of the same court (Rachel E. Freier, J.) dated June 12, 2023, and, upon renewal and reargument, vacated so much of the order dated June 12, 2023, as granted that branch of the defendant’s prior motion, and thereupon, denied that branch of the defendant’s prior motion.

Ordered that the order dated November 6, 2024, is affirmed, with costs.

In October 2022, the plaintiff commenced this action pursuant to Insurance Law § 5106 (c) for a de novo determination of the defendant’s claim for no-fault insurance benefits. In May 2023, the defendant moved, inter alia, pursuant to CPLR 3126 to strike the complaint for the plaintiff’s failure to comply with a prior order of the Supreme Court to produce an entire no-fault claims file. The plaintiff opposed the motion. In an order dated June 12, 2023 (hereinafter the June 2023 order), the court, among other things, granted that branch of the defendant’s motion.

Thereafter, the plaintiff moved for leave to renew and reargue its opposition to that branch of the defendant’s motion which was pursuant to CPLR 3126 to strike the complaint and, upon renewal and reargument, to vacate the June 2023 order and to deny that branch of the defendant’s prior motion. The defendant opposed the motion. In an order dated November 6, 2024, the Supreme Court granted the plaintiff’s motion. The defendant appeals.

“The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are matters within the sound discretion of the trial court” (Bernardis v Town of Islip, 95 AD3d 1050, 1050 [2012]; see 101CO, LLC v Sand Land Corp., 189 AD3d 942 [2020]), as is “[t]he determination whether to strike a pleading for failure to comply with court-ordered disclosure” (Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]; see Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012]), as well as the “nature and degree of the sanction to be imposed” (Roug Kang Wang v Chien-Tsang Lin, 94 AD3d 850, 852 [2012]; see Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812, 814 [2012]; Quinones v Long [*2]Is. Jewish Med. Ctr., 90 AD3d 632, 632 [2011]). However “ '[p]ublic policy strongly favors the resolution of actions on the merits whenever possible’ ” (Krause v Lobacz, 131 AD3d 1128, 1129 [2015], quoting Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 210 [2012]; see Negro v St. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727, 728 [2007]), and “ '[t]he striking of a party’s pleading is a drastic remedy only warranted where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious’ ” (Krause v Lobacz, 131 AD3d at 1129, quoting Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210; see New York Timber, LLC v Seneca Cos., 133 AD3d 576, 577 [2015]; Mangione v Jacobs, 121 AD3d 953, 954 [2014]).

Here, the defendant failed to establish that the plaintiff’s conduct was willful or contumacious (see Edwards v Freedom Church of Revelation, 230 AD3d 740, 742 [2024]; Ferjuste v 437 BMW, LLC, 219 AD3d 1308, 1310 [2023]; PAL Envtl. Servs., Inc. v LJC Dismantling Corp., 157 AD3d 808, 809-810 [2018]; Singer v Riskin, 137 AD3d 999, 1001 [2016]). Accordingly, the Supreme Court properly granted that branch of the plaintiff’s motion which was for leave to reargue its opposition to that branch of the defendant’s motion which was pursuant to CPLR 3126 to strike the complaint and, upon reargument, properly vacated so much of the June 2023 order as granted that branch of the defendant’s prior motion and thereupon, denied that branch of the defendant’s prior motion.

In light of our determination, we need reach the defendant’s remaining contention. Barros, J.P., Warhit, Landicino and Love, JJ., concur.

American Tr. Ins. Co. v Hackensack Surgery Ctr., LLC (2026 NY Slip Op 02235)

Reported in New York Official Reports at American Tr. Ins. Co. v Hackensack Surgery Ctr., LLC (2026 NY Slip Op 02235)

American Tr. Ins. Co. v Hackensack Surgery Ctr., LLC

2026 NY Slip Op 02235 [248 AD3d 970]

Decided on April 15, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, June 10, 2026

(April 15, 2026)

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of a claim for no-fault insurance benefits, the defendant appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated November 6, 2024. The order granted the plaintiff’s motion for leave to renew and reargue its opposition to that branch of the defendant’s prior motion which was pursuant to CPLR 3126 to strike the complaint, which had been granted in an order of the same court dated August 11, 2023, and, upon renewal and reargument, vacated so much of the order dated August 11, 2023, as granted that branch of the defendant’s prior motion, and thereupon, denied that branch of the defendant’s prior motion.

Ordered that the order dated November 6, 2024, is affirmed, with costs.

In April 2022, the plaintiff commenced this action pursuant to Insurance Law § 5106 (c) for a de novo determination of the defendant’s claim for no-fault insurance benefits. In June 2023, the defendant moved, inter alia, pursuant to CPLR 3126 to strike the complaint for the plaintiff’s failure to comply with a prior order of the Supreme Court to produce an entire no-fault claims file. The plaintiff opposed the motion. In an order dated August 11, 2023 (hereinafter the August 2023 order), the court, among other things, granted that branch of the defendant’s motion.

Thereafter, the plaintiff moved for leave to renew and reargue its opposition to that branch of the defendant’s motion which was pursuant to CPLR 3126 to strike the complaint and, upon renewal and reargument, to vacate the August 2023 order and to deny that branch of the defendant’s prior motion. The defendant opposed the motion. In an order dated November 6, 2024, the Supreme Court granted the plaintiff’s motion. The defendant appeals.

“The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are matters within the sound discretion of the trial court” (Bernardis v Town of Islip, 95 AD3d 1050, 1050 [2012]; see 101CO, LLC v Sand Land Corp., 189 AD3d 942 [2020]), as is “[t]he determination whether to strike a pleading for failure to comply with court-ordered disclosure” (Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]; see Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012]), as well as the “nature and degree of the sanction to be imposed” (Roug Kang Wang v Chien-Tsang Lin, 94 AD3d 850, 852 [2012]; see Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812, 814 [2012]; Quinones v Long Is. Jewish Med. Ctr., 90 AD3d 632, 632 [2011]). However “ '[p]ublic policy strongly favors the resolution [*2]of actions on the merits whenever possible’ ” (Krause v Lobacz, 131 AD3d 1128, 1129 [2015], quoting Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 210 [2012]; see Negro v St. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727, 728 [2007]), and “ '[t]he striking of a party’s pleading is a drastic remedy only warranted where there has been a clear showing that the failure to comply with discovery demands was willful and contumacious’ ” (Krause v Lobacz, 131 AD3d at 1129, quoting Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210; see New York Timber, LLC v Seneca Cos., 133 AD3d 576, 577 [2015]; Mangione v Jacobs, 121 AD3d 953, 954 [2014]).

Here, the defendant failed to establish that the plaintiff’s conduct was willful or contumacious (see Edwards v Freedom Church of Revelation, 230 AD3d 740, 742 [2024]; Ferjuste v 437 BMW, LLC, 219 AD3d 1308, 1310 [2023]; PAL Envtl. Servs., Inc. v LJC Dismantling Corp., 157 AD3d 808, 809-810 [2018]; Singer v Riskin, 137 AD3d 999, 1001 [2016]). Accordingly, the Supreme Court properly granted that branch of the plaintiff’s motion which was for leave to reargue its opposition to that branch of the defendant’s prior motion which was pursuant to CPLR 3126 to strike the complaint and, upon reargument, properly vacated so much of the August 2023 order as granted that branch of the defendant’s prior motion and thereupon, denied that branch of the defendant’s prior motion.

In light of our determination, we need not reach the defendant’s remaining contention. Barros, J.P., Warhit, Landicino and Love, JJ., concur.