334 Grand Concourse Med., P.C. v Plymouth Rock Assur. (2026 NY Slip Op 50539(U))

Reported in New York Official Reports at 334 Grand Concourse Med., P.C. v Plymouth Rock Assur. (2026 NY Slip Op 50539(U))

334 Grand Concourse Med., P.C. v Plymouth Rock Assur.

2026 NY Slip Op 50539(U) [88 Misc 3d 1254(A)]

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This opinion is uncorrected and will not be published in the printed Official Reports.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

Index No. CV-730919-22/KI

Sandra Elena Roper, J.

[*1]

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

Papers:

P’s Motion for Summary Judgment 1-2

D’s Cross Motion for summary Judgment 3-4

P’s Affirmation in Opposition 5

D’s Reply 6

Other

Upon the foregoing cited papers, the Decision/Order on this Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment are decided as follows:

Plaintiff’s Motion is granted to the extent that that Plaintiff established its prima facie entitlement to relief pursuant to CPLR § 3212(g). In contrast, Defendant failed to raise a triable issue of fact with respect to its asserted policy exhaustion defense. Most notably, Defendant failed to submit competent, admissible proof sufficient to lay a proper business records foundation for either the purported insurance policy or the alleged exhaustion materials. Defendant did not provide an affidavit from an underwriter, custodian, or any other individual with personal knowledge of Defendant’s record-keeping practices and procedures capable of authenticating the policy, its terms, or its limits. Nor did Defendant establish that any affiant was familiar with Defendant’s business practices so as to render the proffered documents admissible under the business records exception. Equally fatal, Defendant failed to establish when the purported policy exhaustion ledger or spreadsheet was created, by whom it was made, [*2]how it was generated, or whether it was made in the regular course of business at or about the time of the underlying transactions recorded therein. The submission of a paper-form ledger, without a proper evidentiary foundation, is insufficient to establish exhaustion as a matter of law or to defeat Plaintiff’s prima facie showing. A conclusory submission of records, untethered to a competent foundational affidavit, lacks probative value and is inadmissible for summary judgment purposes (see Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330 [4th Dep’t 2009]).

Defendant’s Cross-Motion is DENIED because material triable issues of fact plainly remain.

First, Defendant failed to establish, as a matter of law, the timely issuance and mailing of its denials. Plaintiff’s affiant expressly averred that Plaintiff “responded to and mailed all requested documentation, to: Defendant, Plymouth Rock Assurance, at PO Box 900, Lincroft, NJ 07738 on 10/14/2021” (see NYSCEF Doc. No. 20). Yet, notwithstanding Plaintiff’s documented response, Defendant did not issue its denials until January 18, 2023, well more than thirty (30) days after Plaintiff’s submission of the requested materials (see NYSCEF Doc. No. 17). On this record, Defendant failed to eliminate all triable issues concerning whether the denials were timely issued and mailed in accordance with the governing No-Fault time frames. At a minimum, the stark discrepancy between Plaintiff’s proof of submission and Defendant’s substantially delayed denials presents a classic issue of fact that cannot be resolved on motion practice and must instead be determined at trial.

Second, with respect to Defendant’s affirmative defense of outstanding verification, this Court likewise finds that a material triable issue of fact exists, precluding summary disposition in Defendant’s favor. In opposition to Defendant’s position, Plaintiff’s owner submitted a rebuttal affidavit expressly alleging that Plaintiff timely and fully complied with Defendant’s verification requests. That sworn submission is sufficient to raise a factual dispute as to whether any requested verification in fact remained outstanding, and thus whether Defendant was entitled to continue tolling or withholding payment on that basis. Moreover, the Court notes that the form and substance of Plaintiff’s affidavit are not novel, defective, or legally insufficient. To the contrary, substantially similar affidavit language and format have previously been recognized as adequate by the Appellate Term, Second Department, in the No-Fault context (see, e.g., Mollo Chiropractic, PLLC v. Farmington Cas. Co., 53 Misc 3d 138 [A] [App. Term, 2d Dep’t 2016]). Accordingly, Defendant failed to eliminate all material issues of fact regarding Plaintiff’s alleged compliance with the verification requests, and that issue must be resolved at trial.

Finally, with respect to Defendant’s affirmative defense predicated upon the fee schedule, this Court likewise finds that material triable issues of fact exist, thereby precluding summary disposition in Defendant’s favor. Although Defendant contends that it supported its position through the submission of a Certified Coder’s Affidavit (see NYSCEF Doc. No. 18), and further argues that Plaintiff failed to submit an affidavit from a similarly credentialed coder, that contention is without merit. Plaintiff did, in fact, submit a rebuttal fee schedule affidavit from its owner (see NYSCEF Doc. No. 36), which directly challenged and disputed the analysis set forth by Defendant’s Certified Coder. That sworn submission was sufficient to place Defendant’s fee schedule calculations and conclusions squarely in dispute. Moreover, under CPLR § 3212, the function of the Court on a motion for summary judgment is one of issue-finding, not issue-determination. /OR

Defendant’s argument that Plaintiff is required, as a matter of law, to submit a rebuttal [*3]affidavit exclusively from a “Certified Coder” is rejected. Pursuant to New York law, the admissibility and probative value of expert opinion testimony does not merely turn on the possession of any particular title or certification alone, but rather on whether the witness possesses the requisite skill, training, education, knowledge, experience and history of expertise to render the opinion that of an expert opinion. An expert opinion affiant is merely required to demonstrate to the court expertise in the attendant subject area. Plaintiff’s argument as to quasi-expert affiant opinion is similarly rejected. The affidavit must be unequivocal as to whether the affiant is deemed an expert, not a quasi-expert. Herein, the affiant’s expertise as to the subject matter of fee coding (billing practices, coding issues, fee schedule framework, and the subject services at issue) is deemed qualified by Plaintiff’s rebuttal fee coding expert affiant, notwithstanding lack of the title of “Certified Coder”. Indeed, as here, dueling expert testimonies are to be determined by fact-finders at trial not in a motion for judgment as a matter of law. Thus, upon the shifting of the burden of Defendant’s fee schedule motion for summary judgment, non-movant Plaintiff satisfies its burden of rebuttal to defeat Defendant’s motion. The competing expert narratives raise a triable issue of fact as to the proper application of the relevant fee schedule.

This constitutes Decision and Order of The Court.

Dated: April 15, 2026

Brooklyn, New York

Honorable Sandra Elena Roper

Judge, Civil Court, Kings County

Medical Supply of NY Direct Servs. Corp. v State Farm Ins. Co. (2026 NY Slip Op 50513(U))

Reported in New York Official Reports at Medical Supply of NY Direct Servs. Corp. v State Farm Ins. Co. (2026 NY Slip Op 50513(U))

Medical Supply of NY Direct Servs. Corp. v State Farm Ins. Co.

2026 NY Slip Op 50513(U) [88 Misc 3d 1252(A)]

Decided on April 13, 2026

Civil Court of the City of New York, Richmond County

Mark Kagan, J.

As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.

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

Civil Court of the City of New York, Richmond County

Decided on April 13, 2026

Index No. CV-771552-25/RI

Mark Kagan, J.

[*1]

The defendant State Farm Insurance Company has moved pursuant to CPLR §3212 seeking summary judgement dismissing the action on the grounds the assignor failed to provide further information sought by the defendant. The plaintiff has opposed the motion. Pursuant to CPLR §2219(a) the court has reviewed all the papers submitted including NYSCEF document numbers 1-22 and now renders the following determination.

On November 1, 2024 the assignor Yefim Zemelshteyn was involved in a motor vehicle accident and sought medical treatment. The plaintiff provided medical services in the amount of $1,689.50 and sought payment from the defendant. The defendant refused payment on the grounds the assignor failed to respond to verifications for further information. The plaintiff commenced this action seeking payment and the defendant duly answered. The defendant has [*2]now moved seeking summary judgement dismissing the action arguing there are no questions of fact the assignor failed to provide any information sought. The plaintiff has opposed the motion arguing the verifications sent were invalid and the motion, therefore, must be denied.

Conclusions of Law

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

The defendant seeks summary judgement on the grounds the plaintiff failed to respond to requests for verification. Pursuant to 11 NYCRR §65-3.5(b) any request by an insurer for additional information must be served within fifteen days of the receipt of the necessary verification forms (see, Prestige Medical P.C. v. Travelers Home and Marina Insurance Company, 56 Misc 3d 284, 995 NYS2d 467 [Civil Court Kings County 2014]). Further, if a provider fails to respond, the insurer must send a second request within ten days of the scheduled date of the missed examination scheduling a new examination date (11 NYCRR §65-3.6(b), MSB Physical Therapy P.C. v. Nationwide Insurance, 72 Misc 3d 1215(A), 149 NYS3d 884 [Civil Court Kings County 2021]).

In this case a bill was sent to the defendant for medical services on February 3, 2025.A verification request was mailed on February 7, 2025 and again on March 10, 2025 (see, Affirmation of Kate Cornell, ¶21 [NYSCEF Doc. No. 7]). These notices were all timely.

To succeed on a motion for summary judgement for the failure of an individual to respond to verification requests, there must be evidence the requests were sent and that the party failed to provide the information and has failed to provide any reasonable justification for failing to comply (Burke Physical Therapy P.C. v. State Farm Mutual Automobile Insurance Company, 75 Misc 3d 143(A), 1705 NYS3d 821 [Appellate Term Second Department 2022]).

The plaintiff does not dispute the verifications were not answered. Rather the plaintiff argues the verification requests were deficient for two distinct reasons. First, the plaintiff asserts the affirmation supporting compliance with the insurer’s policies and procedures regarding mailing did not contain all necessary information. Specifically, the affirmation failed to explain the basis for any verification requests. Second, the affirmation was insufficient since the affiant, who provided the necessary information concerning mailing procedures, did not reside in the same state wherein the notices were mailed. Therefore, the affiant could not possibly opine about procedures that may exist hundreds of miles away. To properly address these concerns a review of the relevant law concerning mailings is necessary.

In Dunlop v. U.S., 165 US 486, 17 S.Ct 375 [1897] the Supreme Court held that proof of a proper mailing gives rise to a presumption the items were received. The court explained that “where a question is made whether a certain paper, or other document, has reached the hand of the person for whom it is intended, proof of a usage to deliver such papers at the house, or of the duty of a certain messenger to deliver such papers, creates a presumption that the paper in question was actually so delivered. Business could hardly be carried on without indulging in the presumption that employÉs, who have certain duties to perform, and are known generally to perform such duties, will actually perform them in connection with a particular case. Thus, if it be shown that a letter, properly stamped, has been mailed, there is a presumption that it reached [*3]the person addressed” (id). This presumption, like all presumptions, are “well known and frequently recognized in the law. Such presumptions are founded upon the experience of human conduct in the course of trade and business, under the promptings of interest or public responsibility” (Knickerbocker Life Insurance Company v. Pendelton, 115 US 339, 6 S.Ct 74 [1885]).

Likewise, in the No-Fault context, proof that a letter was properly mailed creates a rebuttable presumption the letter was received by the addressee (see, Viviane Etienne Medical Care, P.C. v. Country-Wide Insurance Company, 25 NY3d 498, 14 NYS3d 283 [2015]). Concerning the proof necessary to establish the mailing, Gardam & Son v. Batterson, 198 NY 175, 91 NE 371 [1910] established the appropriate standards. In that case, the court considered whether certain letters had been mailed by an agent who then died. The court denied the admissibility of the letters holding that “there was no proof of an actual deposit of the originals in the post office and there was no sufficient proof of a course of office practice, or of business, from which a presumption might be legally indulged” (id). Thus, the oft cited two-pronged requirement to establish any mailing, namely, proof of an actual mailing or proof of office practices and procedures that insure items are properly addressed and mailed (see, e.g., New York and Presbyterian Hospital v. Allstate Insurance Company, 29 AD3d 547, 814 NYS2d 687 [2d Dept., 2006]).

In this case, the defendant submitted the affidavit of Kate Cornell, a claims specialist employed by State Farm who submitted an affidavit which first states that State Farm’s procedures dealing with No-Fault claims are uniform throughout the company (see, Affirmation of Kate Cornell, ¶1 [NYSCEF Doc. No 7]). She further provided detailed procedures for receiving and sending mail associated with any New York No-Fault claims. These procedures surely satisfy the requirement of establishing policies and procedures that insure items are properly mailed (Nationwide Affinity Assurance Company of America v. George, 183 AD3d 755, 123 NYS3d 626 [2d Dept., 2020]).

In opposition, the burden shifts to the plaintiff in efforts to rebut the presumption that verifications for more information were properly mailed (Residential Holding Corp., v. Scottsdale Insurance Company, 286 AD2d 679, 729 NYS2d 776 [2d Dept., 2001]). The plaintiff argues the defendant failed to provide the insurance company’s “‘regular business practices and procedures’ used to request additional verification” (see, Affirmation in Opposition, ¶9 [NYSCEF Doc. No. 19]). Thus, the plaintiff argues the affirmation of Ms. Cornell fails to establish the insurer’s policies and procedures concerning proper mailings because the affirmation does not describe the way in which the verification requests are created. However, that information, the rationale why the verification was sent, has nothing whatever to do with the practices and procedures for sending mail. The plaintiff’s objection lies with the failure of the insurer to provide the underlying basis for sending the verification at all. However, that information is unrelated to the procedures for sending mail and its absence does not mean the insurer has failed to adequately explain its policies and procedures concerning mailings.

Indeed, the No-Fault regulations permit an insurer to demand “all items necessary to verify the claim directly from the parties from whom such verification is requested” (11 NYCRR §65-3.5(c)). In fact, there are no limits to the information an insurer may request other than the limitation found in 11 NYCRR §65-3.2(c). That regulation states that an insurer should not demand verification of facts “unless there are good reasons to do so” (id). There are no specific No-Fault regulations that provide any mechanism for a medical provider to contest the [*4]verification sought on the grounds it is improper or unnecessary (Burke 2 Physical Therapy P.C. v. State Farm Mutual Automobile Insurance Company, 71 Misc 3d 1229(A), 146 NYS3d 468 [Civil Court Kings County 2021]). It is clear the information sought must have some rational relationship to the specific claims. Therefore, certain requests for verification are obvious, no explanation is required and are per se reasonable. For example, “requests for medical records for the treatment in question, letters of medical necessity for the testing or treatment, copies of x-ray or MRI films or test results” (Garden State Anesthesia Associates PA v. Progressive Casualty Insurance Company, 41 Misc 3d 996, 971 NYS2d 858 [District Court Nassau County 2013]). Likewise, a request to establish medical necessity is reasonable pursuant to 11 NYCRR §65-3.2(c) (Lenox Hill Radiology v. Global Liberty Insurance, 20 Misc 3d 434, 858 NYS2d 587 [Civil Court New York County 2008]).

Thus, while a medical provider can object to the verifications sought, in appropriate circumstances, those objections focus on the substance of the information requested, not the manner in which the requests were sent. As long as there is proof supporting the presumption of a proper mailing the insurer has satisfied its burden. The insurer is under no obligation to divulge its strategies or suspicions to the medical provider and surely the basis for such requests are not included with the information supporting valid mailings.

Likewise, there is no merit to the argument that Ms. Cornell is unable to provide accurate mailing procedures because the mailings are performed in a facility in another state. There is no requirement the person affirming the mailing policies and procedures must actually be present and physically observe them. Rather, the person must have familiarity with the procedures and those procedures must be uniform throughout the company. Ms. Cornell’s affirmation confirms the uniformity of the policies of the insurance company and states that she maintains sufficient information regarding the uniformity of the mailing procedures. This remains true whether Ms. Cornell is merely one floor away from the actual mailing center, or many miles away. To argue otherwise would be to simply second guess the veracity of Ms. Cornell’s affirmation. Any party may surely object to the veracity of any witness with proper evidence. However, to rebut the presumption of a proper mailing the medical provider must do more than merely allege the witness lives in a different state. That may be true but that does not, in any way, impugn the veracity of the affidavit concerning mailing procedures.

Therefore based on the foregoing, there is no question of fact the verifications seeking information remain unanswered. Thus, the motion seeking summary judgement dismissing the action is granted.

So ordered.

Dated: April 13, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC

Life Care Physical Therapy P.C. v Geico Gen. Ins. Co. (2026 NY Slip Op 50519(U))

Reported in New York Official Reports at Life Care Physical Therapy P.C. v Geico Gen. Ins. Co. (2026 NY Slip Op 50519(U))

Life Care Physical Therapy P.C. v Geico Gen. Ins. Co.

2026 NY Slip Op 50519(U) [88 Misc 3d 1253(A)]

Decided on April 13, 2026

Civil Court of the City of New York, Kings County

Sandra Elena Roper, J.

As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.

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

Civil Court of the City of New York, Kings County

Decided on April 13, 2026

Index No. CV-748345-19/KI

Sandra Elena Roper, J.

[*1]

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

Papers

Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed

Answering Affidavits

Replying Affidavits 2

Exhibits

Other

Upon the foregoing cited papers, and after oral arguments by the parties, the Decision/Order on Defendant’s Motion to Dismiss for Want of Prosecution pursuant to CPLR 3216 is hereby DENIED:

“CPLR 3216 is extremely forgiving of litigation delay, in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed. If [the] plaintiff makes a sufficient showing, the court is prohibited from dismissing the action. [P]ublic policy strongly favors the resolution of actions on the merits whenever possible” (James B. Nutter & Co. v Hutson, 241 AD3d 520, 521 [2d Dept 2025], quoting LoRusso v DeLuca, 204 AD3d 660, 661 [2d Dept 2022], see Baczkowski v D.A. Collins Constr. Co., 89 NY2d 499, 503 [1997], see also Bank of Am., N.A. v Nicolosi, 200 AD3d 1018, 1021 [2d Dept 2021], see also Krause v Lobacz, 131 AD3d 1128, 1129 [2d Dept 2015], see also Chase Home Fin., LLC v Shoumatoff, 192 AD3d 1352 [3d Dept 2021]).

In this instant matter, Plaintiff recognized the ineffectiveness of its previous counsel and accordingly substituted same to its current counsel of record on October 21, 2025. Plaintiffs new counsel drafted its opposition dated October 24, 2025, which was filed on October 26, 2025, a [*2]mere five days upon said change of counsel. Further, Plaintiff filed the Notice of Trial on October 26, 2025. In keeping with the “forgiving” nature of litigation delays pursuant to CPLR 3216, This Court in the judicious exercise of its discretion, does not find the Plaintiff’s actions unreasonable neglect to proceed (id). On the contrary, Plaintiff in moving its stagnant case opted for substitution of counsel to proceed posthaste. Thus, the delay in the proceedings here is found to be excusable. Nevertheless, excusable delay shall not inure to Plaintiff’s benefit. Accordingly, the interest herein shall be stayed from the date of Defendant’s filing of this motion to the date Plaintiff filed the Notice of Trial, March 10, 2022, to March 26, 2025. Furthermore, Plaintiff established a potentiality of a meritorious cause of action.

This constitutes the Decision and Order of This Court.

Date April 13, 2026

Hon Sandra Elena Roper, JCC

Matter of Country-Wide Ins. Co. v National Indem. Co. (2026 NY Slip Op 02035)

Reported in New York Official Reports at Matter of Country-Wide Ins. Co. v National Indem. Co. (2026 NY Slip Op 02035)

Matter of Country-Wide Ins. Co. v National Indem. Co.

2026 NY Slip Op 02035 [248 AD3d 407]

Decided on April 2, 2026

Appellate Division, First Department

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

As corrected through Wednesday, June 10, 2026

April 2, 2026

Order, Supreme Court, New York County (Eric Schumacher, J.), entered May 2, 2024, which granted the petition of Country-Wide Insurance Company to confirm an arbitration award and denied respondent’s cross-motion to vacate the award and dismiss the petition to confirm, unanimously reversed, on the law, with costs, the petition denied, the cross-motion to vacate the award granted, and the petition dismissed.

Supreme Court should have granted respondent’s cross-motion to vacate the arbitration award issued by Arbitration Forums Inc. (AFI) and dismiss the petition to confirm the award because the AFI did not have jurisdiction to decide the proceeding. At the root of the arbitration is a vehicle collision for which petitioner paid its insureds’ claims under its no-fault coverage. Petitioners and its insureds sought to recover the funds from respondent, the insurer of the owner of the other vehicle involved in the collision. Respondent sent a letter disclaiming coverage because the vehicle involved in the collision was not a covered auto listed on the relevant policy schedule (the disclaimer letter). Over a year after receiving this letter, petitioner commenced the instant arbitration against respondent, pursuant to section 5105 of the Insurance Law, seeking subrogation reimbursement of its payment to its insured in connection with the collision. Respondents did not file the disclaimer letter in response. However, after an award was issued in petitioner’s favor, respondent submitted a Post-Decision Inquiry with AFI, attaching the disclaimer letter.

This was in satisfaction of AFI rule 3-9, which provides that a responding insurance company may assert the coverage defenses of no liability policy in effect, denial of coverage up to 60 calendar days after the decision publication date and a minimum of 60 calendar days before the statute of limitations expires. The submission also rendered section 5105’s mandatory arbitration provision inapplicable because respondent “in good faith assert[ed] a defense of lack of coverage” and “specific written consent of mandatory arbitration” was not obtained from respondent (11 NYCRR 65-4.11 [a] [6]). Moreover, AFI rule 2-4 provides that “[i]f a denial/disclaimer of coverage is being pled . . . the party will be ruled out of jurisdiction so long as a copy of the denial/disclaimer of coverage letter to the party seeking liability coverage for the loss is submitted as evidence.” Thus, the jurisdictional basis for the award issued by AFI in this loss transfer proceeding was vitiated upon respondent’s submission of its Post-Decision Inquiry attaching the disclaimer letter. Concur—Manzanet-Daniels, J.P., Mendez, Pitt-Burke, Higgitt, Hagler, JJ.

Matter of Liberty Mut. Fire Ins. Co. v Segal (2026 NY Slip Op 50401(U))

Reported in New York Official Reports at Matter of Liberty Mut. Fire Ins. Co. v Segal (2026 NY Slip Op 50401(U))

[*1]

Matter of Liberty Mut. Fire Ins. Co. v Segal

2026 NY Slip Op 50401(U) [88 Misc 3d 1241(A)]

Decided on March 26, 2026

Supreme Court, Kings County

Maslow, J.

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

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

Decided on March 26, 2026

In the Matter of the Application of Liberty Mutual Fire Insurance Company, Petitioner, against Stephen Segal, Jordan Guirand, and Ismaille Desravines, Respondents.

Index No. 530023/2025



Callinan & Smith LLP, Wantagh (Steven Daniel Levy of counsel), for petitioner.

Chernyy Law Office, P.C., Staten Island (Nicholas A. Penkovsky of counsel) for respondents.
Aaron D. Maslow, J.

The following numbered papers were used on this motion: NYSCEF Document Numbers 1-38.

Upon the foregoing papers, having heard oral argument, and due deliberation having been had, the within petition is determined as hereinafter set forth.

This is a special proceeding commenced pursuant to CPLR 7503 (c), seeking to permanently, or alternatively, temporarily, stay uninsured motorist insurance arbitration. The temporary stay would be for a framed-issue hearing and/or to enable petitioner to conduct pre-arbitration discovery.

Petitioner Liberty Mutual Fire Insurance Company alleges that respondents Stephen Segal, Jordan Guirand, and Ismaille Desravines intentionally staged a motor vehicle accident on January 13, 2025, when the Uber vehicle they were passengers in was struck in the rear by another vehicle, which fled the scene. As a result, it is alleged by petitioner that the uninsured motorist insurance arbitration demanded in an arbitration request served on it by counsel for respondents should be stayed. Additionally, petitioner maintains that an error by respondents’ counsel in specifying the respective insurance policy number voids the arbitration request.

Among the indicia of fraud having taken place, claimed petitioner, were the following: the driver of the offending vehicle turned around and fled, one of the respondents appeared worried when inside the vehicle, the offending vehicle’s Pennsylvania plate did not match its make, the respondents at first informed the driver that they were OK, ISO searches connect [*2]respondents’ addresses to persons in other accidents, collisions with other Uber vehicles mimicked the circumstances of the collision at issue, and respondents failed to attend scheduled EUOs.

Respondents oppose the petition on several grounds, but principally on the grounds that the petition was untimely pursuant to CPLR 7503 (c) and that it failed to show the existence of sufficient evidentiary facts which would justify a stay.

Insofar as is here relevant, CPLR 7503 (c) provides as follows:

A party may serve upon another party a demand for arbitration or a notice of intention to arbitrate, specifying the agreement pursuant to which arbitration is sought and the name and address of the party serving the notice. . . . An application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be so precluded. Notice of such application shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. Service of the application may be made upon the adverse party, or upon his attorney if the attorney’s name appears on the demand for arbitration or the notice of intention to arbitrate. Service of the application by mail shall be timely if such application is posted within the prescribed period.

It is undisputed that petitioner commenced the instant special proceeding by filing a notice of petition, petition, and supporting exhibits on September 2, 2025. The arbitration request form is dated March 4, 2025. While the record lacks a date when petitioner received the arbitration request form, petitioner does not deny that more than 20 days passed before commencement of the instant special proceeding. Petitioner argues that the statutory 20-day deadline for commencing a special proceeding to stay arbitration does not apply to a defense of non-coverage and relies on appellate decisions.

Matter of Matarasso (Continental Cas. Co.) (56 NY2d 264, 267 [1982]), relied on by petitioner, held that the 20-day deadline “operates only when an agreement to arbitrate exists.” In the case before the Court of Appeals, the subject umbrella policy contained no provision for the arbitration of disputes. Indeed there is an agreement to arbitrate, contained within the insurance policy covering the vehicle which petitioners occupied on January 13, 2025. Petitioner, however, argues that there is no coverage due to there having been a staged or fraudulent collision,^[FN1] which petitioner equates to there being no policy.

Petitioner also relies on Matter of Government Empls. Ins. Co. v Hehl (203 AD2d 570 [2d Dept 1994], citing Matter of Matarasso, 56 NY2d 264). In holding that “[A] stay application may be entertained after the statutory time period in CPLR 7503 (c) on the basis that the parties never agreed to arbitrate a claim for which no coverage was provided,” the Court noted that at issue was whether the injured claimant was a relative of an insured in the [*3]household. In the present case, respondents were occupants of the insured vehicle. Therefore, the Hehl decision does not apply; the policy provides for coverage of occupants.

In Matter of Steck (State Farm Ins. Co.) (89 NY2d 1082 [1996]), the Court of Appeals distinguished its Matarasso holding in a situation where the issue raised by the injured claimant’s insurer was whether the tortfeasor vehicle’s insurance exceeded the underinsured motorist coverage of the respondent. This, held the Court, related “to whether certain conditions of the contract have been complied with and not whether the parties have agreed to arbitrate” (id. at 1084). Therefore, the 20-day period to object to arbitration applied. Later on, in Matter of Fiveco, Inc. v Haber (11 NY3d 140 [2008] [dispute regarding whether payment extended agreements]), the Court of Appeals held that the viability of contracts containing an agreement to arbitrate is not an issue which excuses compliance with the 20-day deadline. Accordingly, when an insurer opposes arbitration based on “conditions of coverage,” it is not excused from complying with CPLR 7503 (c)’s 20-day deadline.

In terms of other case law relied on by petitioner, this Court notes that the latter cited Matter of Allstate Ins. Co. v Masse (14 AD3d 610 [2d Dept 2005]) for the proposition that “The Courts of the State of New York routinely hold that an automobile incident, which is the product of a staged or cause of event, is not a covered loss under the applicable policy of insurance” (NYSCEF Doc No. 36 ¶ 5). While that is generally a correct statement of the law (e.g. Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2d Dept 2002]),^[FN2] there was no issue over timeliness of a petition to stay arbitration in Masse. The Court did hold that no disclaimer was necessary (see Matter of Allstate Ins. Co. v Masse, 14 AD3d at 611). Whether there is coverage for a staged collision is an issue distinct from whether a disclaimer is necessary.

Where an insurer seeks to avoid arbitrating an uninsured or underinsured motorist insurance claim on the asserted ground that there was no true accident, but rather the subject collision was the product of fraud, as petitioner alleges—”[T]he Respondents breached the fraud provision of the insurance policy issued by the Petitioner” (NYSCEF Doc No. 36 ¶ 3)—this implicates a condition of coverage and, hence, the 20-day deadline applies.

The decision in Matter of Allstate Ins. Co. v Rosado (271 AD2d 527, 528 [2d Dept 2000] [emphasis added]) controls the special proceeding at bar:

Contrary to the petitioner’s contention, the issue of whether or not the respondent’s injuries occurred as the result of an intentional act relates to whether certain conditions of coverage have been satisfied and not whether the parties have agreed to arbitrate. The application to stay arbitration should have been brought within the 20-day limitation period set forth in CPLR 7503 (c) (see, Matter of Steck [State Farm Ins. Co.], 89 NY2d 1082; Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264; Matter of DelGaudio v Aetna Ins. Co., 262 AD2d 641; Matter of CNA Ins. Co. v Rosa, 253 AD2d 494; Matter of Hartford Ins. Co. v Buonocore, 252 AD2d 500; Matter of Nationwide Ins. Co. v McDonnell, 248 AD2d 476; Matter of CNA Ins. Co. v Carsley, 243 AD2d 474). Therefore, the proceeding to stay arbitration, which was instituted over two months after receipt of the demand, was properly denied as time-barred.

The Second Department adhered to this holding in Matter of Allstate Ins. Co. v Calderon (14 AD3d 698, 698-699 [2d Dept 2005]):

We reject the petitioner’s contention that it was not required to commence this proceeding to stay arbitration of the appellant’s uninsured motorist claim within the 20-day limitation period set forth in CPLR 7503 (c). “[T]he issue of whether or not the [appellant’s] injuries occurred as the result of an intentional act relates to whether certain conditions of coverage have been satisfied and not whether the parties have agreed to arbitrate” (Matter of Allstate Ins. Co. v Rosado, 271 AD2d 527, 528 [2000]). To the extent that Matter of United Community Ins. Co. v Gabriel (229 AD2d 444 [1996]), holds otherwise, it should not be followed.

Allstate’s failure to seek a stay within 20 days of service of the demand for arbitration also precluded it from asserting in court that the uninsured motorist claim is barred by the statute of limitations (see CPLR 7503 [c]). Accordingly, the petition for a stay of arbitration should have been denied as time-barred and the proceeding should have been dismissed.

Inasmuch as petitioner’s claim that respondents engaged in fraud implicates a claim of intentional conduct, the Court is constrained to sustain their argument that the 20-day deadline provided for in CPLR 7503 (c) applies.^[FN3] There can be no temporary stay for the purpose of a framed-issue hearing.

As noted above, respondents also claim that petitioner failed to show the existence of sufficient evidentiary facts which would justify a stay. In connection with the need to show the existence of sufficient evidentiary facts, it has been held:

” ‘The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay’ ” (Matter of Hertz Corp. v Holmes, 106 AD3d 1001, 1002 [2013], quoting Matter of AutoOne Ins. Co. v Umanzor, 74 AD3d 1335, 1336 [2010]; see Matter of Allstate Ins. Co. v Martinez, 140 AD3d 743, 744 [2016]; Matter of Government Empls. Ins. Co. v Hua Huang, 139 AD3d 950, 951 [2016]; Matter of Government Empls. Ins. Co. v Arciello, 129 AD3d 1083, 1084 [2015]; Matter of Farmers Ins./Truck Ins. Exch. v Terzulli, 112 AD3d 628 [2013]). “Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing” (Matter of Merchants Preferred Ins. Co. v Waldo, 125 AD3d 864, 865 [2015]). Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue (see Matter of Allstate Ins. Co. v Aizin, 102 AD3d 679, 681 [2013]).

Here, GEICO failed to show the existence of evidentiary facts regarding Tucci’s failure to satisfy the reporting requirement or whether there was physical contact with a hit-and-run vehicle, since, as to those issues, it only provided the unsupported, conclusory assertions of its attorney (see Matter of Merchants Preferred Ins. Co. v Waldo, 125 AD3d at 865; [*4]Matter of AutoOne Ins. Co. v Umanzor, 74 AD3d at 1336; see also Matter of Government Empls. Ins. Co. v Hua Huang, 139 AD3d at 951). Accordingly, the Supreme Court should not have granted a temporary stay of arbitration and directed a framed-issue hearing. (Matter of Government Empls. Ins. Co. v Tucci, 157 AD3d 679, 680 [2d Dept 2018]; see Allstate Fire & Cas. Ins. Co. v Rios, 245 AD3d 813 [2d Dept 2026].)

The allegations of petitioner relating what it contends form the indicia of fraud are concerning, yet the evidence submitted in support fails to rise to “sufficient evidentiary facts” (Matter of Government Empls. Ins. Co. v Tucci, 157 AD3d at 680). There is nothing to show that the attorney verifying the petition possessed personal knowledge of the factual allegations (see id.). Petitioner did submit an affirmation from Collin Marsh, an investigator, but his statements are hearsay to the extent they rely on statements from the driver, Emmanuel Epiecs Cabral Vargas, or documents. The police report submitted as Exhibit 2 is not certified. To the extent that Investigator Collin Marsh conducted a recorded interview of the driver, the transcript (NYSCEF Doc No. 7) constitutes inadmissible hearsay inasmuch as Vargas was not sworn. Photos and videos have not been properly authenticated (see Matter of M.S. v M.H., NY3d , 2026 NY Slip Op 00825 [2026]). The ISO query results purportedly evidencing prior accidents involving people with the same addresses of respondents were not authenticated as business records of anyone (see State Farm Fire & Cas. Co. v. R.L., 78 Misc 3d 1241[A], 2023 NY Slip Op 50497[U] [Sup Ct, Nassau County 2023]; A.B. Med Servs., PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 822 [Civ Ct, Kings County 2005]). In light of this, the Court concludes that petitioner failed to show the existence of sufficient evidentiary facts to establish a preliminary issue which would justify a temporary stay pending a framed-issue hearing.

Further, the Court addresses the branch of the petition seeks discovery from respondents. Since petitioner did not commence the within proceeding within the 20-day deadline, this branch must likewise be denied. As stated, “Moreover, it was improper for the Supreme Court to have directed discovery in the event that the matter proceeded to arbitration since a failure to move to stay arbitration within the applicable 20-day time period is a bar to judicial intrusion into the arbitration proceedings [citation omitted]” (Matter of State Farm Mut. Auto. Ins. Co. v Urban, 78 AD3d 1064, 1066 [2d Dept 2010]; see Matter of Great N. Ins. Co. v Schwartzapfel, 216 AD3d 781 [2d Dept 2023]; Matter of State Farm Ins. Co. v Reid, 184 AD3d 840 [2d Dept 2020]).

Finally, the Court also finds that petitioner’s claim that the error in specifying the subject insurance policy number warrants staying the uninsured arbitration is without merit. Petitioner was not misled; it was able to deduce which policy covered the subject collision (see Matter of Great N. Ins. Co. v Schwartzapfel, 216 AD3d 781; Matter of Nationwide Ins. Co. v Singh, 6 AD3d 441 [2d Dept 2004]). There is no evidentiary showing that the error in the policy number caused petitioner to commence this proceeding in an untimely manner (cf. Northern Assur. Co. of Am. v Bollinger, 256 AD2d 580 [2d Dept 1998). The claim number was accurate (see Matter of Nassau Ins. Co. [Clemente], 100 AD2d 969 [2d Dept 1984] [“Although in certain situations a defective notice of intention to arbitrate will preclude enforcement of the 20-day limitation period (see State Farm Mut. Auto. Ins. Co. v Szwec, 36 AD2d 863), the notice of intention at bar was proper.”]).

Accordingly, it is hereby ORDERED and ADJUDGED that petitioner Liberty Mutual Fire Insurance Company’s petition to permanently, or alternatively, temporarily, stay uninsured [*5]motorist insurance arbitration concerning uninsured motorist insurance claims of respondents Stephen Segal, Jordan Guirand, and Ismaille Desravines resulting from a January 13, 2025 occurrence is DENIED in its entirety, and the within special proceeding is DISMISSED.

Footnote 1:This Court declines to use the phrases “staged accident” or “fraudulent accident,” which appear to be the nomenclature of choice in cases involving incidents where motor vehicle insurance fraud is alleged, inasmuch as those phrases are oxymorons. By definition an accident is a chance occurrence, not an incident brought about through an intentional, collusive act. Rather, the Court prefers to use “collision” instead of “accident.”

Footnote 2:Whether an insured occurrence was intentional or accidental is viewed from the perspective of the insured (see State Farm Mut. Auto. Ins. Co. v Langan, 16 NY3d 349 [2011]).

Footnote 3:To the extent that this Court’s prior decision in Matter of Liberty Mut. Ins. Co. v Wilson (86 Misc 3d 1231[A], 2025 NY Slip Op 51076[U] [Sup Ct, Kings County 2025]) held otherwise, it was in error.American Tr. Ins. Co. v Barakat PT PC (2026 NY Slip Op 01750)

Reported in New York Official Reports at American Tr. Ins. Co. v Barakat PT PC (2026 NY Slip Op 01750)

American Tr. Ins. Co. v Barakat PT PC

2026 NY Slip Op 01750

Decided on March 25, 2026

Appellate Division, Second Department

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

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

Decided on March 25, 2026 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
PAUL WOOTEN
CARL J. LANDICINO
DONNA-MARIE E. GOLIA, JJ.
2024-03963
(Index No. 521651/22)

Roman Kravchenko, Melville, NY, for appellant.

Short & Billy, P.C., New York, NY (Seok Ho [Richard] Kang of counsel), for respondent.

DECISION & ORDER

In an action pursuant to Insurance Law § 5106(c) for a de novo determination of claims for no-fault insurance benefits, the defendant appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated April 10, 2024. The order, insofar as appealed from, without a hearing, granted that branch of the defendant’s motion which was for an award of reasonable attorneys’ fees pursuant to 11 NYCRR § 65-4.10(j)(4) to the extent of awarding the defendant attorneys’ fees in the sum of only $1,300.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the amount of reasonable attorneys’ fees pursuant to 11 NYCRR § 65-4.10(j)(4) to be awarded to the defendant in accordance herewith.

After a master arbitrator upheld an arbitration award in favor of the defendant on its claims for no-fault insurance benefits (hereinafter the master arbitration award), the plaintiff commenced this action pursuant to Insurance Law § 5106(c) for a de novo determination of the defendant’s claims. The defendant answered the complaint and served combined demands for discovery, including a notice of inspection. The defendant moved pursuant to CPLR 3124 to compel compliance with its discovery demands. The motion was denied but, upon renewal and reargument, the Supreme Court issued a conditional order directing the plaintiff to provide certain discovery documents within 30 days of the filing of the conditional order on the New York State Courts Electronic Filing System and stating that failure to comply with the conditional order will result in the plaintiff being sanctioned pursuant to CPLR 3126. Upon the plaintiff’s failure to timely comply with the conditional order, the defendant moved, inter alia, pursuant to CPLR 3126(3) to strike the complaint. The court granted that branch of the motion. Thereafter, the defendant moved, among other things, for an award of reasonable attorneys’ fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $13,940. In support of that branch of the motion, the defendant submitted an affirmation of services by its attorney. The plaintiff opposed the motion, arguing, inter alia, that an award of attorneys’ fees was limited by 11 NYCRR 65-4.6(d), and that the amount of attorneys’ fees requested was excessive as to the hourly rate and the time purportedly spent defending this action. In an order dated April 10, 2024 (hereinafter the April 2024 order), the court, among other things, without a hearing, granted that branch of the defendant’s motion which was for an award of reasonable [*2]attorneys’ fees pursuant to 11 NYCRR 65-4.10(j)(4) to the extent of awarding the defendant attorneys’ fees in the sum of $1,300. The defendant appeals.

Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” As applicable here, the superintendent’s regulations provide that “[t]he attorney’s fee for services rendered in connection with a court adjudication of a dispute de novo, as provided in section 5106(c) of the Insurance Law, . . . shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 15).

“[A] reasonable attorney’s fee is commonly understood to be a fee which represents the reasonable value of the services rendered” (Diaz v Audi of Am., Inc., 57 AD3d 828, 830; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839). In determining the reasonable value of the services rendered, “the court may consider a number of factors, including, inter alia, the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented, the lawyer’s experience, ability, and reputation, the customary fee charged for similar services, and the results obtained” (Diggs v Oscar De La Renta, LLC, 169 AD3d 1003, 1005; see Matter of Freeman, 34 NY2d 1, 9; RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 839). “While a hearing is not required in all circumstances, the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered” (Citicorp Trust Bank, FSB v Vidaurre, 155 AD3d 934, 935 [internal quotation marks omitted]; see Sterling Natl. Bank v Alan B. Brill, P.C., 186 AD3d 515, 520). Here, the parties submitted conflicting evidence as to the customary fee charged for similar services and the reasonable amount of time required to defend this action. In the April 2024 order, the Supreme Court provided no explanation for its determination of the award of reasonable attorneys’ fees pursuant to 11 NYCRR 65-4.10(j)(4), and the basis for that determination is not evident from the record. Under the circumstances, the matter must be remitted to the Supreme Court, Kings County, for a new determination of the amount of reasonable attorneys’ fees pursuant to 11 NYCRR 65-4.10(j)(4) to be awarded to the defendant, stating the evidentiary basis for the award (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 706).

The defendant’s remaining contention need not be reached in light of our determination.

DILLON, J.P., WOOTEN, LANDICINO and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

American Tr. Ins. Co. v Barakat PT PC (2026 NY Slip Op 01751)

Reported in New York Official Reports at American Tr. Ins. Co. v Barakat PT PC (2026 NY Slip Op 01751)

American Tr. Ins. Co. v Barakat PT PC

2026 NY Slip Op 01751

Decided on March 25, 2026

Appellate Division, Second Department

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

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

Decided on March 25, 2026 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
PAUL WOOTEN
CARL J. LANDICINO
DONNA-MARIE E. GOLIA, JJ.
2024-13392
(Index No. 521651/22)

Roman Kravchenko, Melville, NY (Jason Tenenbaum of counsel), for appellant.

Short & Billy, P.C., New York, NY (Christopher E. O’Donnell and Seok Ho [Richard] Kang of counsel), for respondent.

DECISION & ORDER

In an action pursuant to Insurance Law § 5106(c) for a de novo determination of claims 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(3) to strike the complaint, which had been granted in an order of the same court (Leon Ruchelsman, J.) dated August 9, 2023, and, upon renewal and reargument, vacated the order dated August 9, 2023, and thereupon, denied that branch of the defendant’s prior motion.

ORDERED that the order dated November 6, 2024, is reversed, on the law, with costs, 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(3) to strike the complaint is denied, and the order dated August 9, 2023, is reinstated.

The plaintiff commenced this action pursuant to Insurance Law § 5106(c) for a de novo determination of the defendant’s claims for no-fault insurance benefits. In an order dated April 21, 2023 (hereinafter the April 2023 order), the Supreme Court directed the plaintiff to provide certain discovery documents within 30 days of the filing of the April 2023 order on the New York State Courts Electronic Filing System and stated that failure to comply with the April 2023 order will result in the plaintiff being sanctioned pursuant to CPLR 3126. The defendant moved, inter alia, pursuant to CPLR 3126(3) to strike the complaint for failure to comply with the April 2023 order. The plaintiff opposed the motion. In an order dated August 9, 2023 (hereinafter the August 2023 order), the court 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 prior motion which was pursuant to CPLR 3126(3) 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 motion. In an order dated November 6, 2024, the court granted the plaintiff’s motion. The defendant appeals.

“A motion for reargument is addressed to the sound discretion of the court which determined the original motion, and leave to reargue may be granted upon a showing that the court overlooked or misapprehended the facts or the law, or otherwise mistakenly arrived at the original decision” (Christopulos v Christopulos, 209 AD3d 968, 969; see US Bank N.A. v Cimino, 212 AD3d 683, 684). “A motion for leave to reargue . . . shall not include any matters of fact not offered on [*2]the prior motion” (Sokolnik v Voronova, 221 AD3d 1036, 1037 [internal quotation marks omitted]; see CPLR 2221[d][2]). “Further, even where a motion for reargument is technically untimely under CPLR 2221(d)(3), a court has discretion to reconsider its prior ruling” (HSBC Bank USA, N.A. v Halls, 98 AD3d 718, 720-721; see Kugel v Reynolds, 228 AD3d 743, 746-747).

The Supreme Court should have denied 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(3) to strike the complaint, “as there is no indication that the court misapprehended the facts or law, or mistakenly arrived at its earlier decision” (Matter of Butler v City of Rye Planning Commn., 114 AD3d 937, 938; see CPLR 2221[d][2]). The plaintiff’s contention that the court overlooked the fact that the defendant was required to serve the plaintiff with a copy of the April 2023 order with notice of entry to enforce the April 2023 order against the plaintiff was improperly raised for the first time on reargument (see Matter of Government Empls. Ins. Co. v Bermeo, 230 AD3d 1141, 1143; Rangel v Target Corp., 216 AD3d 683, 685).

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]) and “shall contain reasonable justification for the failure to present such facts on the prior motion” (id. § 2221[e][3]). Here, the plaintiff did not offer a reasonable justification for failing to submit the purported new facts in opposition to the defendant’s prior motion (see id.; Robert v Azoulay Realty Corp., 209 AD3d 781, 786; Incorporated Vil. of Cove Neck v Petrara, 47 AD3d 885, 887).

The plaintiff’s remaining contentions are without merit.

Accordingly, the Supreme Court should have denied 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(3) to strike the complaint.

DILLON, J.P., WOOTEN, LANDICINO and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Matter of American Tr. Ins. Co. v Allied Bd. Certified Physicians (2026 NY Slip Op 01782)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Allied Bd. Certified Physicians (2026 NY Slip Op 01782)

Matter of American Tr. Ins. Co. v Allied Bd. Certified Physicians

2026 NY Slip Op 01782 [247 AD3d 1176]

Decided on March 25, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, May 6, 2026

March 25, 2026

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated January 30, 2022, in which Allied Board Certified Physicians, as assignee of Chong Sok So, 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 reasonable attorneys’ fees, Allied Board Certified Physicians appeals from a judgment of the Supreme Court, Kings County (Ingrid Joseph, J.), dated January 16, 2024. The judgment, insofar as appealed from, upon so much of an order of the same court dated March 3, 2023, as denied that branch of the cross-petition of Allied Board Certified Physicians which was to confirm the master arbitration award, upon an order of the same court dated July 31, 2023, denying the motion of Allied Board Certified Physicians to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of reasonable attorneys’ fees, and upon so much of an order of the same court dated November 22, 2023, as denied those branches of the separate motion of Allied Board Certified Physicians which were to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of reasonable attorneys’ fees, denied those branches of the cross-petition which were to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of reasonable attorneys’ fees.

Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, the master arbitration award is confirmed, that branch of the cross-petition of Allied Board Certified Physicians which was to confirm the master arbitration award is granted, that branch of the motion of Allied Board Certified Physicians which was to confirm the master arbitration award is granted, that branch of the separate motion of Allied Board Certified Physicians which was to confirm the master arbitration award is granted, the orders dated March 3, 2023, July 31, 2023, and November 22, 2023, are modified accordingly, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees, if any, to be awarded to Allied Board Certified Physicians and the entry of an appropriate amended judgment thereafter.

In April 2022, American Transit Insurance Company (hereinafter the petitioner) commenced this proceeding against Allied Board Certified Physicians (hereinafter Allied), as assignee of Chong Sok So, pursuant to CPLR article 75 to vacate a master arbitration award dated January 30, 2022, entered in favor of Allied. Allied cross-petitioned, inter alia, to confirm the master [*2]arbitration award and pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of reasonable attorneys’ fees. In an order dated March 3, 2023, the Supreme Court, among other things, denied the petition, finding that the petitioner failed to demonstrate that the master arbitration award was arbitrary and capricious, and denied the cross-petition. In an order dated July 31, 2023, the court denied Allied’s motion, inter alia, to confirm the master arbitration award. In an order dated November 22, 2023, the court denied those branches of Allied’s separate motion which were to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of reasonable attorneys’ fees. Thereafter, in a judgment dated January 16, 2024, the court, among other things, denied those branches of the cross-petition which were to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of reasonable attorneys’ fees. Allied appeals.

Upon denying a motion to vacate or to modify an arbitration award, the court must confirm the award (see CPLR 7511 [e]; Matter of Klein v GEICO Gen. Ins. Co., 109 AD3d 825, 826 [2013]; Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017-1018 [2009]; Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]). As the petitioner concedes, given the Supreme Court’s denial of the petition to vacate the master arbitration award, the award must be confirmed (see CPLR 7511 [e]).

Pursuant to Insurance Law § 5106 (a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” “[T]he superintendent’s regulations provide that an attorney’s fee for services rendered in connection with a ‘court appeal from a master arbitration award . . . shall be fixed by the court adjudicating the matter’ ” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2017], quoting 11 NYCRR 65-4.10 [j] [4]).

The petitioner’s contention that Allied is not entitled to an award of attorneys’ fees because a claim submitted by Allied exceeded the fee schedule in violation of 11 NYCRR 65-4.6 (h) is improperly raised for the first time on appeal and, thus, is not properly before this Court (see Matter of Wydra v Brach, 203 AD3d 1169, 1170 [2022]; Matter of Dedvukaj v Shkreli, 180 AD3d 895, 897 [2020]). Allied did not have an opportunity to refute this contention, which is not solely an issue of law (see generally Matter of Matarrese v New York City Health & Hosps. Corp., 247 AD2d 475 [1998]). Under the circumstances, remittal is necessary to determine the issue of whether, and in what amount, an award of reasonable attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) should be awarded to Allied (see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783 [2025]).

Accordingly, we remit the matter to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees, if any, to be awarded to Allied and the entry of an appropriate amended judgment thereafter (see id.). Barros, J.P., Christopher, Warhit and Voutsinas, JJ., concur.

Matter of American Tr. Ins. Co. v Patient Care Assoc. (2026 NY Slip Op 01783)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Patient Care Assoc. (2026 NY Slip Op 01783)

Matter of American Tr. Ins. Co. v Patient Care Assoc.

2026 NY Slip Op 01783 [247 AD3d 1179]

Decided on March 25, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, May 6, 2026

March 25, 2026

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated January 23, 2022, Patient Care Associates appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Ingrid Joseph, J.), dated April 9, 2024. The order and judgment, insofar as appealed from, upon an order of the same court dated September 20, 2023, denying those branches of the motion of Patient Care Associates which were to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10 (4) (j) for an award of reasonable attorneys’ fees, denied the same relief to Patient Care Associates.

Ordered that the order and judgment is reversed insofar as appealed from, on the law, with costs, the master arbitration award dated January 23, 2022, is confirmed, that branch of the motion of Patient Care Associates which was to confirm the master arbitration award is granted, the order dated September 20, 2023, is modified accordingly, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees, if any, to be awarded to Patient Care Associates and the entry of an appropriate amended order and judgment thereafter.

In April 2022, American Transit Insurance Company (hereinafter the petitioner) commenced this proceeding against Patient Care Associates (hereinafter Patient Care) pursuant to CPLR article 75 to vacate a master arbitration award dated January 23, 2022, entered in favor of Patient Care. In an order dated March 30, 2023, the Supreme Court denied the petition, finding that the petitioner failed to demonstrate that the master arbitration award was arbitrary and capricious. Thereafter, Patient Care moved, inter alia, to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10 (4) (j) for an award of reasonable attorneys’ fees. In an order dated September 20, 2023, the court, among other things, denied those branches of Patient Care’s motion. Thereafter, the court issued an order and judgment dated April 9, 2024, among other things, denying the same relief to Patient Care. Patient Care appeals.

Upon denying a motion to vacate or to modify an arbitration award, the court must confirm the award (see CPLR 7511 [e]; Matter of Klein v GEICO Gen. Ins. Co., 109 AD3d 825, 826 [2013]; Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017-1018 [2009]; Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]). As the petitioner [*2]concedes, given the Supreme Court’s denial of the petition to vacate the master arbitration award, the award must be confirmed (see CPLR 7511 [e]).

Pursuant to Insurance Law § 5106 (a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” “[T]he superintendent’s regulations provide that an attorney’s fee for services rendered in connection with ‘a court appeal from a master arbitration award . . . shall be fixed by the court adjudicating the matter’ ” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2017], quoting 11 NYCRR 65-4.10 [j] [4]).

The petitioner’s contention that Patient Care is not entitled to an award of attorneys’ fees because a claim submitted by Patient Care exceeded the fee schedule in violation of 11 NYCRR 65-4.6 (h) is improperly raised for the first time on appeal and, thus, is not properly before this Court (see Matter of Wydra v Brach, 203 AD3d 1169, 1170 [2022]; Matter of Dedvukaj v Shkreli, 180 AD3d 895, 897 [2020]). Patient Care did not have an opportunity to refute this contention, which is not solely an issue of law (see Matter of Matarrese v New York City Health & Hosps. Corp., 247 AD2d 475 [1998]). Under the circumstances, remittal is necessary to determine the issue of whether, and in what amount, an award of reasonable attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) should be awarded to Patient Care (see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783 [2025]).

Accordingly, we remit the matter to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees, if any, to be awarded to Patient Care and the entry of an appropriate amended order and judgment thereafter (see id.). Barros, J.P., Christopher, Warhit and Voutsinas, JJ., concur.

Matter of John T. Mather Mem. Hosp. v American Tr. Ins. Co. (2026 NY Slip Op 01788)

Reported in New York Official Reports at Matter of John T. Mather Mem. Hosp. v American Tr. Ins. Co. (2026 NY Slip Op 01788)

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

2026 NY Slip Op 01788 [247 AD3d 1188]

Decided on March 25, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, May 6, 2026

March 25, 2026

In a proceeding pursuant to CPLR article 75, inter alia, to confirm a master arbitration award dated June 26, 2023, the petitioner appeals from a judgment of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated June 12, 2024. The judgment, insofar as appealed from, upon an order of the same court dated January 12, 2024, denying that branch of the petition which was for an award of attorneys fees pursuant to 11 NYCRR 65-4.10 (j) (4), did not award such attorney’s fees.

Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, that branch of the petition which was for an award of attorney’s fees pursuant to 11 NYCRR 65-4.10 (j) (4) is granted, the order is modified accordingly, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorney’s fees to be awarded to the petitioner and the entry of an appropriate judgment thereafter.

The petitioner, John T. Mather Memorial Hospital, commenced this proceeding pursuant to CPLR article 75 to confirm a master arbitration award dated June 26, 2023, and for an award of attorney’s fees pursuant to 11 NYCRR 65-4.10 (j) (4). The respondent did not oppose the petition. In an order dated January 12, 2024, the Supreme Court granted that branch of the petition which was to confirm the master arbitration award but denied that branch of the petition which was for an award of attorney’s fees pursuant to 11 NYCRR 65-4.10 (j) (4). In a judgment dated June 12, 2024, the court, upon the order, inter alia, did not award attorney’s fees pursuant to 11 NYCRR 65-4.10 (j) (4). The petitioner appeals.

“The attorney’s fee for services rendered in connection with a court adjudication of a dispute de novo, as provided in section 5106 (c) of the Insurance Law, or in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10 [j] [4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783 [2025]). The term “court appeal” applies to CPLR article 75 proceedings to vacate or confirm a master arbitration award (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2017]; see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414 [2020]).

[*2]Here, the petitioner sought an award of attorney’s fees for services rendered in connection with this CPLR article 75 proceeding to confirm the master arbitration award. As a proceeding to confirm an arbitration award is a court appeal for the purposes of 11 NYCRR 65-4.10 (j) (4), the petitioner was entitled to an award of reasonable attorney’s fees (see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168 [2019]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705). Accordingly, the matter is remitted to the Supreme Court, Kings County, for a determination of reasonable attorney’s fees and the entry of an appropriate amended judgment thereafter (see Matter of Lam Quan MD, P.C. v LM Gen. Ins. Co., 239 AD3d 654 [2025]; Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d at 783).

The petitioner’s remaining contention is without merit.

Brathwaite Nelson, J.P., Ford, Dowling and Goldberg Velazquez, JJ., concur.