On October 11, 2017, plaintiff Country-Wide Insurance commenced this action against defendant Yao Jian Ping, seeking an adjudication de novo of a no-fault insurance claim pursuant to Insurance Law § 5106 (c), following a master arbitrator’s award in defendant’s favor in excess of $5,000.

Defendant made a pre-answer motion to dismiss the action, arguing that the “trial de novo” was another form of a declaratory judgment action for which the Civil Court lacked subject matter jurisdiction (Seq. No. 001). By a decision and order dated June 13, 2018, another judge of the Civil Court denied defendant’s motion (see Court Exhibit I), which was affirmed on appeal (Country-Wide Ins. Co. v Yao Jian Ping, 62 Misc 3d 144[A], 2019 NY Slip Op 50160[U] [App Term, 1st Dept 2019]).

Issued was joined on or about July 13, 2018.^[FN1] A notice of trial was filed on December 13, 2019.

By a decision and order dated March 2, 2020, another judge of the Civil Court granted [*2]defendant’s motion to strike the notice of trial (Seq. No. 3), only to the extent of directing further discovery and adjourning the trial.

By a decision and order dated August 17, 2020, another judge of the Civil Court granted defendant’s motion to strike the notice of trial (Seq. No. 4), only to the extent of directing further discovery.

By a decision and order dated March 26, 2021, another judge of the Civil Court denied defendant’s motion to amend the answer to assert a counterclaim against plaintiff for $24,938.59 (Seq. No. 005) and denied defendant’s motion to strike the complaint (Seq. No. 006) (see Court Exhibit I), which was affirmed on appeal (Country-Wide Ins. Co. v Ping, 73 Misc 3d 132[A], 2021 NY Slip Op 50997[U] [App Term, 1st Dept 2021]). The Appellate Term reasoned, in relevant part, “the proposed amendment would prejudice plaintiff at this stage of the proceedings, where discovery had been completed, a notice of trial had been filed and defendant previously limited his recovery to $15,251.76 based upon the fee schedule” (id. at *2).

By a decision and order dated March 15, 2022, another judge of the Civil Court denied defendant’s “Motion in Limine for a Directed Verdict” (Seq. No. 007), reasoning, “[a]s trial in this matter has not yet commenced a motion upon these grounds is premature and must be denied” (see Court Exhibit I).

By a so-ordered stipulation dated May 19, 2022, the parties resolved plaintiff’s order to show cause to quash defendant’s trial subpoenas (Seq. No. 008), which was withdrawn (Defendant’s Exhibit B). The so-ordered stipulation provided, in relevant part, “Plaintiff acknowledges that the subject no-fault bill of NY Spine Specialists, LLP, for medical services rendered to defendant on April 20, 2010, in the sum of $63,800.00 that was included with defendant’s arbitration submission to the AAA file on January 20, 2016.”

On June 8, 2022, this court held a nonjury trial of this action on the stenographic record (Robin Lindner, court reporter) in courtroom 419 at 111 Centre Street, New York, New York.

On behalf of plaintiff, Jessica Mena was sworn and testified at the trial. Plaintiff submitted two exhibits which were received in evidence on consent, marked as Plaintiff’s Exhibits 1 and 2 (Tr. 4, lines 6-14).

Defendant did not call any witnesses at trial. Defendant submitted three exhibits that were accepted into evidence, marked as Defendant’s Exhibits A, B, and C.^[FN2] Defendant’s Exhibits A and B were received in evidence on consent (Tr. 4, lines 15-21). Defendant’s Exhibit C was received in evidence over plaintiff’s objection, solely for the purpose of establishing that they were certified business records of non-party New York Spine Specialist (Tr. 8, lines 15-18).

The court also marked, as Court Exhibit I, the prior decision and orders issued in this case, the notices of appeal thereof, and the decisions from the Appellate Term, with notice of entry.

After defendant rested, both plaintiff and defendant moved for directed verdict in their favor, and this court reserved decision (see Vera v Knolls Ambulance Serv. Inc., 160 AD2d 494, 496 [1st Dept 1990] [“it is far better practice to withhold any ruling on an application to dismiss until after the jury has returned a verdict”]).

The matter was adjourned to July 20, 2022, for the parties to submit proposed findings of fact. On December 1, 2022, this court heard post-trial arguments on the digital record (FTR, courtroom 421, 10:12 am-11:15 a.m.). Following the post-trial arguments, this court directed the parties to submit supplemental post-trial memos of law and adjourned the matter to February 17, 2023 for submission of papers only.

On February 17, 2023, the matter was fully submitted.

Jessica Mena credibly testified as follows: she has worked for plaintiff since March 2007, and that she is familiar with the practices and procedures of how no-fault claims are received and processed at Country Wide Insurance Company (Tr. 16, lines 1-9). She started as a claims examiner, responsible for handling and processing all no-fault claims that are assigned to her, including sending out verification request letters to providers and denials (Tr. 18, lines 14-25). She became a litigation arbitration analyst, handling anything litigation/arbitration-related, including preparing documents for court (Tr. 19, lines 1-5). She was then the operations supervisor for two years, overseeing the operations department, which is the mailing room department and scanning department, and the data entry clerk (Tr. 19, lines 6-12). Her current position is Litigation Arbitration Supervisor, overseeing the litigation/arbitration analyst (Tr. 15, lines 24-25, id. at 19 lines 16-17).

Mena admitted on cross examination that plaintiff had received notice that defendant was involved in a motor vehicle accident on October 5, 2006 (Tr. 26, lines 5-8). According to plaintiff’s answer to defendant’s interrogatories, plaintiff learned of the motor vehicle accident “on October 12, 2006 via a letter from the Insurance Broker” (see Defendant’s Exhibit A [answer to interrogatory no. 5]). It is undisputed that plaintiff offered no-fault coverage for the motor vehicle accident (see plaintiff’s proposed findings of fact ¶ 2; see defendant’s proposed findings of fact ¶ 2).

Mena also credibly testified that plaintiff scheduled a medical examination of defendant (Tr. 26, lines 9-11). Mena credibly testified that, based on an orthopedic medical examination, plaintiff issued a denial (NF-10) (Tr. 43, lines 16-19). The NF-10 global denial dated November 29, 2006 states, in relevant part, “Based on the results of the orthopedic independent medical exam you attended on 11/28/06, which indicated that no further medical treatment or other related services are necessary, all no-fault benefits are denied as of 12/04/06” (see Defendant’s Exhibit A).

Mena credibly testified that the claim at issue in this action was not submitted to plaintiff through its standardized procedures (Tr. 16, lines 13-25, id. at 17, lines 11-17). She credibly stated that plaintiff’s first notice that defendant had any involvement with New York Spine Specialist was the statement of account (see Defendant’s Exhibit C), which was received during the arbitration process, as part of the AR-1 demand for arbitration (Tr. 29, lines 4-16).

Mena credibly stated that, when plaintiff received that statement of account, plaintiff then prepared a defense package for arbitration (Tr. 30, lines 14-17). She credibly testified that no verification request was sent to defendant or the provider after plaintiff had received the [*3]statement of account (Tr. 33, lines 21-24; id. at 34, lines 1-3), because the statement of account was not received from the provider through the no-fault department, and was not received by the no-fault examiner (Tr. 36, lines 19-22).

According to Mena, receipt of the AR-1 marks the commencement of arbitration, so

“They [bills] are not reviewed for payment the same way a claims examiner would review it. If we determine to settle the case at arbitration, that our—we see if we are going to settle or going to choose a defense. So it’s not a payment like a claims examiner would issue payment. . . .So it’s not the same process as a claim’s examiner receiving a bill through the no-fault”

Mena credibly testified that, for a claim to be considered for reimbursement, a claimant would need to submit certain documents, including proof of payment of the services, and a reversal of the assignment of benefits to the provider who performed the service, and an actual bill (Tr. 48, lines 13-23). Mena admitted that there was a reversal of the assignment of benefits in the AR-1 which plaintiff received (Tr. 48, lines 24-25; id. at 49, line 1).

Mena credibly testified that plaintiff did not receive any proof that defendant had paid the amount reflected on the statement of account (Tr. 49, line 1).

According to Mena, plaintiff did not consider the statement of account to be a no-fault bill because it was not on an NF-3, NF-4 or NF-5 no-fault form (Tr. 49, lines 20-22). Unlike the statement of account, Mena credibly testified that the no-fault form would be signed and dated, have the provider’s information, claimant’s information, the date of loss, who rendered the services, the owner of the facility, CPT codes and modifiers, the total amount, and the tax ID of the provider, among other things (Tr. 50, lines 20-25; id. at 51, lines 1-3).

By an arbitration award dated May 18, 2017, the no-fault arbitrator Phillip Wolf awarded defendant $15,251.75, with prejudgment interest as of January 2, 2016, for a lumbar spine laminectomy, spinal fusion, and pedicle fixation which non-party Sebastian Lattuga, M.D., performed on defendant on April 20, 2010 (see Defendant’s Exhibit A).

Arbitrator Wolf rejected plaintiff’s argument that defendant’s claim was not ripe for arbitration because plaintiff had never received a bill for the April 20, 20210 operative procedure, reasoning,

“Based upon the holding set forth in Domotor [Matter of State Farm Ins. Co. v Domotor, 266 AD2d 219 (2d Dept 1999)], I agree with counsel for Applicant’s argument that Applicant [defendant] was no longer required to submit bills to Respondent [plaintiff] effective December 4, 2006. As the service in dispute took place after December 4, 2006, Applicant [defendant] was not required to submit the subject bill to Respondent prior to commencing arbitration. . . . Accordingly, I find the subject bill ripe for arbitration”

By a master arbitrator award dated August 25, 2016 [sic],^[FN3] Master Arbitrator Robert Trestman affirmed the no-fault arbitration award, stating, “I find that the arbitrator’s application of the Domotor holding was not an error of law” (see Defendant’s Exhibit A, Master Arbitration Award at 2).

“The standard of proof applicable in a civil case is generally that of proving the case by a fair preponderance of the evidence. . . . The evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted; mere proof of a possibility is insufficient to establish a fact by a preponderance of the evidence”

“The preponderance of the evidence means the greater part of the evidence. It does not mean the greater number of witnesses or the greater length of time taken by any party.

The phrase refers to the quality of the evidence, that is, its convincing quality, the weight and effect it has on [the mind of the trier of fact], not to the quantity. The law requires that for [plaintiff] to prevail on a claim, the evidence that supports [plaintiff’s] claim must appeal to [the trier of fact] as more nearly representing what took place than the evidence opposed to [plaintiff’s] claim. If it does not, or if it weighs so evenly that [the trier of fact is] unable to say there is a preponderance on any side, then [the trier of fact] must decide the question against [plaintiff]”

As plaintiff points out, a de novo adjudication pursuant to CPLR 5106 (c) is “something very different from judicial review of some other entity’s determination” (Matter of Greenberg [Ryder Truck Rental, Inc.], 70 NY2d 573, 577 [1987]). De novo adjudication of the liability issue is not barred, under an estoppel-like theory, by the prior determinations of the arbitrator (id.).

Plaintiff’s Prima Facie Case

As a threshold matter, this court must address the issue of the insurer’s prima facie burden at trial in a de novo adjudication of a no-fault insurance claim, where the insurer is the plaintiff. At trial, the plaintiff bears the burden of proof.

“Generally, the claims process for health service bills for No-Fault compensation begins with the submission by a health service provider of a claim form (usually, but not always, a Form NF-3 verification of treatment by attending physician or other provider of health service). Besides providing information regarding the injured person, diagnoses, [*4]projected treatment, etc., the claim form includes a bill for services performed. The claim form can be submitted directly by the injured person to the No-Fault insurer but over many decades a practice developed by which the health service providers submit the claim forms. . . . The insurer must then either pay or deny the bill within 30 days, or seek additional verification within 15 business days. If it denies payment, it must issue a Form NF-10 denial of claim explaining why the bill was not paid”

In actions seeking the recovery of first-party no-fault benefits, the no-fault plaintiff is generally the provider who rendered services to an eligible injured person, and the defendant is the insurer. There, it is well-settled that “[a]t a trial, a no-fault plaintiff’s prima facie burden is to demonstrate that the claim forms at issue were received by the defendant insurer and that the claims were not paid” (Wave Med. Services, P.C. v Hertz Vehicles, LLC, 76 Misc 3d 131[A], 2022 NY Slip Op 50908[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Here, however, the parties are reversed—plaintiff is the insurer who sought de novo adjudication, whereas the defendant is the eligible injured person. It therefore follows that the insurer’s prima facie burden at trial would be to disprove what the provider would have established at trial to be entitled to payment. That is, at trial in a de novo adjudication of a no-fault claim, the prima facie burden of the insurer, as plaintiff, is to establish either that (1) the claim forms were not received by the insurer, or (2) that the claim was paid. For if the insurer’s proof could negate either of those two elements, then the insurer would have defeated the provider/eligible injured person’s entitlement to recovery.

Alternatively, as the plaintiff in a de novo adjudication, the insurer could also meet its prima facie burden by submitting proof of the elements of a valid legal defense to the insurer’s obligation to pay all or part of the submitted claim.

Once the plaintiff-insurer has met its prima facie burden at trial, the burden would then shift to the defendant-provider to prove (1) that the insurer received the claim form, and (2) that the claim was either (a) not paid at all, or (b) not paid in full. If the plaintiff-insurer had proven the elements of a valid legal defense to payment of the claim as part of its case-in-chief, then the defendant-provider would also have the burden of proving that the insurer’s proffered defense was either precluded or without merit in order to obtain a verdict in the provider’s favor (i.e., a money judgment against the insurer for the unpaid or partially paid claim).

Here, it is undisputed that the claim at issue was not paid. The evidence at trial also established that plaintiff did not receive any claim forms from defendant.

The no-fault regulations require that,

“In the case of a claim for health service expenses, the eligible injured person or that person’s assignee or representative shall submit written proof of claim to the Company [the insurer], including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered”

(11 NYCRR 65-1.1 [d] [mandatory personal injury protection endorsement]). Here, the claim at issue was not submitted on the no-fault forms prescribed by the Department of Financial Services (i.e., NF-3, NF-4, NF-5 Forms). However, “[a]n insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form” (11 NYCRR 65-3.5 [f]).

Here, Mena credibly testified that plaintiff’s first notice that defendant had any involvement with New York Spine Specialist was the statement of account included in the AR-1 demand for arbitration which plaintiff had received. Mena credibly testified that the statement of account does not contain substantially the same information as the prescribed forms. Notably, the statement of account does not contain the claimant’s information (i.e., information of the policyholder, policy number, date of accident, claim number) or the treating provider’s name, which the insurer would need to determine whether the particular claim received should be paid.

Because the statement of account was not submitted on a form that contained substantially the same information as the prescribed forms, plaintiff was therefore not required to accept the statement of account as a proof of claim. Because the statement of account was not the functional equivalent of a prescribed form, its receipt by the insurer did not trigger the 30-day period in which the no-fault insurer must pay or deny the claim, or seek additional verification (see Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 164 [2d Dept 2013] [UB-04 form, which did not include the policy number, a description of the accident, or the admitting and discharge diagnosis, did not trigger 30-day period]).

Thus, the insurer met its prima facie burden.

Defendant’s Case in Chief

Citing Matter of State Farm Insurance Company v Domotor (266 AD2d 219, 220 [2d Dept 1999]), defendant argues that, in light of plaintiff’s global denial of no-fault benefits for all future orthopedic treatment, defendant was not required to submit any claims forms to defendant in advance of the arbitration. Rather, defendant contends that the statement of account which plaintiff admittedly received in the AR-1 demand for arbitration was sufficient to trigger plaintiff’s obligation to pay or deny the claim.

Plaintiff argues that Domotor is distinguishable and would not excuse defendant from a submitting a claim to plaintiff, which is required under the no-fault regulations, and which plaintiff contends is a condition precedent to coverage. Plaintiff counters that, following defendant’s logic, “a claimant can write up a bill on a napkin, doesn’t have to submit it to a claim rep and can wait years and can then commence lawsuits based on that napkin written bill and they’re entitled to payment” (Tr. at 63, lines 13-17).

As defendant pointed out at trial, if a prescribed claim form was missing any information, the insurer could seek additional verification within 15 business days of receipt of the prescribed forms, pursuant to 11 NYCRR 65-3.5 (b). Indeed, the Appellate Term rejected the argument that an illegible claim form was a valid ground for the insurer’s failure to process the claim, noting, “defendant did not timely deny this claim, seek verification or otherwise notify plaintiff of why defendant believed it could not process the claim” (New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 147[A], 2015 NY Slip Op 51678[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Defendant correctly points out that the facts of this case are almost identical to the facts in Domotor. However, this court is persuaded that Domotor does not apply here.

“An insured’s failure to comply with its obligations under an insurance policy is generally a defense to an action on the policy. However, ‘an insurer cannot insist upon cooperation or adherence to the terms of its policy after it has repudiated liability on the claim … by sending a letter denying liability.’ Thus, ‘[o]nce an insurer repudiates liability … the [in]sured is excused from any of its obligations under the policy'”

(American Ref-Fuel Co. of Hempstead v Resource Recycling, Inc., 281 AD2d 573, 574 [2d Dept 2001] [internal citations omitted]). “Such a repudiation excuses the filing of proofs of loss, the production of books and documents, the submission to examination, and the taking of any other preliminary steps by the insured” (Beckley v Otsego County Farmers Co-op. Fire Ins. Co., 3 AD2d 190, 194 [3d Dept 1957]).

In Domotor, the insurer had notified the appellant that it was denying all no-fault benefits, based upon the opinion of its medical expert that the appellant no longer required treatment (266 AD2d at 220). “The appellant nevertheless continued under medical care although she submitted no further claims to the petitioner” (id.). Like defendant in this case, the appellant then demanded arbitration to resolve the issue of the insurer’s liability (id.). The no-fault arbitrator denied the appellant’s claim for failure to file timely proof of loss, but the master arbitrator vacated the award (id.). Supreme Court vacated the master arbitrator’s award, and the Appellate Division, Second Department reversed and reinstated the master arbitrator’s award.

The Appellate Division reasoned,

“This disclaimer of coverage excused the appellant from further compliance with conditions precedent regarding time limitations for submitting medical proofs of loss for the treatments she nevertheless continued to undergo. An insurance carrier may not, after repudiating liability, create grounds for its refusal to pay by demanding compliance with proof of loss provisions of the policy. Rather, the insurance carrier must stand or fall upon the defense upon which it based its refusal to pay … i.e., because no treatment [was] necessary. Accordingly, inasmuch as the master arbitrator possessed the authority to vacate the initial arbitrator’s legally incorrect award denying the appellant’s claims for failure to file timely proof of loss, the Supreme Court erred in vacating the master arbitrator’s award”

Plaintiff points out that, after Domotor was decided on November 1, 1999, proposed Insurance Department regulations, which required submission of a claim to the insurer within 45 days after the date when services were rendered, became effective February 1, 2000 (see Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 862 [2003] [discussing amended Regulation 68]). Plaintiff reads Domotor to hold that, once the insurer disclaimed coverage, the eligible injured person was no longer required to comply with policy obligations of coverage, but is still required to comply with statutory obligations. Plaintiff cites an opinion from the Department of Insurance dated September 2, 2004, which concluded that a no-fault applicant [*5]must timely submit claims for no-fault benefits even when the insurance carrier has previously denied future benefits based upon a negative medical exam (Ops Gen Counsel NY Ins Dept No. 04-09-03 [Sept 2004]), available at https://www.dfs.ny.gov/insurance/ogco2004/rg040903.htm [last accessed Jan. 22, 2024]).

In this court’s view, the Department of Insurance’s opinion is of limited value, because it does not discuss or even mention Domotor. Neither is this court required to defer to the agency’s interpretation of case law.

There appears to be only two reported cases involving the failure to submit claims which applied Domotor after the regulations became effective (Greater Forest Hills Physical Therapy, PC v State Farm Mut. Auto. Ins. Co., 45 Misc 3d 1215[A], 2014 NY Slip Op 51594[U] [Nassau Dist Ct 2014]; Matter of NY Med. Health, P.C. v New York City Tr. Auth., 24 Misc 3d 1219[A], 2009 NY Slip Op 51526[U] [Civ Ct, King County 2009]). Both cases ruled in favor of the provider/eligible injured person.

In Matter of NY Medical Health P.C., the New York City Transit Authority (TA) notified the provider’s assignor that it was denying all no-fault benefits based upon its contention that the accident did not arise out of the use and operation of a TA bus (Matter of NY Med. Health, P.C. v New York City Tr. Auth., 24 Misc 3d 1219[A], 2009 NY Slip Op 51526[U]). The provider’s assignor continued treatment, and the provider demanded no-fault arbitration. As part of its arbitration submission, the provider had annexed the medical bills for which it was seeking payment, which had never been submitted to the TA beforehand (id.). The no-fault arbitrator found that the provider had established that the accident was due to the use or operation of a TA motor vehicle and issued an award in the provider’s favor (id.). Citing Domotor, Supreme Court denied vacatur of the master arbitrator’s award affirming the no-fault arbitration award.

In Greater Forest Hills Physical Therapy, PC, the court ruled, “this court is constrained to follow the Second Department that plaintiffs are not obligated to timely submit claims for no-fault benefits once an insurance carrier denies coverage” (45 Misc 3d 1215[A], 2014 NY Slip Op 51594[U] [Nassau Dist Ct 2014]).

However, Equilibrium of Life Acupuncture, P.C. v MVAIC (74 Misc 3d 129[A], 2022 NY Slip Op 50113[U] [App Term, 1st Dept 2022]) appears to support plaintiff’s reading of Domotor. There, the defendant moved for summary judgment on the ground that, among other things, plaintiff had not timely filed a notice of intention to make claim with defendant, as required by Insurance Law § 5208(a), so as to be entitled to no-fault benefits. Relying upon Domotor, the Civil Court denied the defendant’s motion. The Appellate Term ruled that the Civil Court erred in relying upon Domotor, stating, “Matter of State Farm Ins. Co. v Domotor, 266 AD2d 219 (1999), relied upon by Civil Court, involved a waiver of a condition precedent to payment of claims as required under an insurance policy, not a condition precedent to coverage under Insurance Law § 5208″ (id.).

Thus, based on the Appellate Term’s decision in Equilibrium of Life Acupuncture, P.C., the court agrees with plaintiff’s reading of Domotor—that the insurer’s repudiation of liability does not excuse the provider/eligible injured person from compliance with regulatory or statutory requirements of notice of the loss.

In this court’s view, the regulatory requirement of submission of a claim to a no-fault insurer on a prescribed claim form (or its substantial equivalent) is not identical to the policy [*6]requirement of submission of a proof of loss.^[FN4] If no claim form is submitted to the insurer, the insurer has no notice of the loss at all.

Accepting defendant’s reading of Domotor would lead to absurd results, as illustrated by the facts of this case.

Defendant acknowledges that, under defendant’s own reading of Domotor, plaintiff would not have any right to seek additional verification from defendant for any information missing from the statement of account which would have been required on the claim forms prescribed by the Department of Financial Services. To accept defendant’s argument would, in effect, expand 11 NYCRR 65-3.5 (f) to require the insurer to accept any form that did not contain substantially the same information as the prescribed forms, even if the information was illegibly scribbled on a crumpled cocktail napkin, as plaintiff illustrated. This would be fundamentally unfair to the insurer, which would be left almost completely in the dark as to whether or not such a claim ought to be paid or denied.

Accepting defendant’s expansive reading of Domotor would up-end the processing of no-fault claims, and undermine the aims of no-fault, which includes reducing the burden on the courts (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 504-05 [2015]). Following defendant’s logic, where Domotor would apply (i.e., where the insurer had repudiated coverage), a provider could commence action to recover no-fault benefits without ever having to submit any claim form in advance to the insurer, so long as something less than substantially similar to the information on a prescribed claim form was attached as an exhibit to the complaint. Because the insurer has received such a claim, the insurer would then have to start and finish claims processing by the time the answer to the complaint was due. Every no-fault claim that would have been submitted in advance to the insurer could now be filed with the courts instead, because the provider would not be required to submit the claim to the insurer before the lawsuit.

For all the reasons above, Domotor does not apply.

Because defendant has not successfully challenged any part of plaintiff’s prima facie case, the verdict, after trial, is granted in plaintiff’s favor.

Plaintiff’s and Defendant’s Motions for Directed Verdict

Plaintiff’s motion for a directed verdict in its favor is denied as academic.

Defendant’s motion for a directed verdict in defendant’s favor is denied. Affording plaintiff every inference which may properly be drawn from the facts presented and considering the facts in a light most favorable to plaintiff—that no claim form or its substantial equivalent was ever submitted to plaintiff—this court cannot conclude that “there is no rational process by which the fact trier could base a finding in favor of plaintiff” (Szczerbiak v Pilat, 90 NY2d 553, [*7]556 [1997]). As discussed above, Domotor does not apply.

The Appropriate Relief to Be Granted to the Prevailing Party

The relief to be granted to plaintiff presents a novel issue.

Had a provider or eligible injured person been the plaintiff, the answer would be simple—a money judgment would be granted in the provider’s or eligible injured person’s favor against the insurer for the amount of the claim, plus statutory interest (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 205 [2d Dept 2009]), and attorneys’ fees (11 NYCRR § 65-4.10 [j]). However, where the insurer is the plaintiff in an adjudication de novo and did not pay the submitted claim, there would be no money judgment to grant to plaintiff.^[FN5] As defendant did not assert a formal counterclaim,^[FN6] there is no counterclaim to be dismissed.

Plaintiff argues that this court should issue a declaration in plaintiff’s favor that it has no obligation to pay the claim at issue (see Matter of Gersten v American Tr. Ins. Co., 161 Misc 2d 57, 60 [Sup Ct, NY County 1994] [“There is some authority which suggests that the insurer commences a declaratory judgment action seeking a declaration that the insured is not entitled to no-fault benefits”]; see also Liberty Mut. Ins. Co. v Bayside Pain & Rehabilitation Medicine, P.C., 39 Misc 3d 148[A], 2013 NY Slip Op 50906[U][App Term, 2d Dept, 9th & 10th Jud Dists 2013] [action for de novo adjudication commenced by an insurer “seeks, in essence, a declaratory judgment and not monetary damages”]).

However, the Civil Court has jurisdiction to issue a declaratory judgment in only two instances:

“(a) any controversy involving the obligation of an insurer to indemnify or defend a defendant in an action in which the amount sought to be recovered does not exceed $50,000; and

(b) actions commenced by a party aggrieved by an arbitration award rendered pursuant to part 137 of the rules of the chief administrator in which the amount in dispute does not exceed $50,000″

As defendant points out, another judge of the Civil Court denied defendant’s motion to dismiss the action for an adjudication de novo on the grounds that plaintiff was seeking, in essence, a declaratory judgment action, which the Appellate Term had affirmed. Thus, defendant argues that the Appellate Term implicitly affirmed that the Civil Court could issue a declaratory judgment in a de novo adjudication pursuant to Insurance Law § 5106 (c).

Contrary to defendant’s contention, the Appellate Term, First Department ruled only that that action was within the monetary jurisdiction of the Civil Court, and ruled that “defendant’s remaining argument has been rendered academic” (Ping, 62 Misc 3d 144[A], 2019 NY Slip Op 50160[U] [App Term 2019]).

The Civil Court has jurisdiction to confirm or vacate an arbitration award that is within the $50,000 monetary jurisdiction of the Civil Court, which appears to be the only non-monetary relief that the Civil Court can grant to plaintiff. Although the complaint did not seek vacatur of the master arbitration, the court here “may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just,” so long as the judgment to be awarded is not a default judgment (CPLR 3017 [a]).

Thus, in an adjudication de novo commenced in Civil Court, where the insurer is the plaintiff and the prevailing party, and defendant has not asserted a counterclaim, the appropriate relief to be granted is vacatur of the underlying master arbitrator’s award for which de novo adjudication was sought.

The court finds in favor of plaintiff.

Accordingly, it is hereby ORDERED that plaintiff’s and defendant’s motions for directed verdict are denied; and it is further

ORDERED and ADJUDGED that, after trial, the award of Master Arbitrator Robert Trestman dated August 25, 2016 [sic], which affirmed the no-fault arbitration award of Arbitrator Phillip Wolf dated May 18, 2017, is vacated.

This constitutes the decision, verdict, order, and judgment of the court.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of petitioner’s petition numbered 1 to 5 read on this motion by petitioner for an order confirming the Master Arbitration Award that affirmed the Arbitration Award below by Notice of Petition/Order to Show Cause and petitioner’s papers 1-5 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers ; Replying Affidavits and supporting papers; Filed papers ; Other; (and after hearing counsel and/or parties in support of and opposed to the motion), and due deliberation and consideration having been had therein, the Decision and Order of the Court on the petition is as follows:

ORDERED that the unopposed petition, pursuant to CPLR 7510, timely seeking Confirmation of the Master Arbitration Award of Toby Susan DeSimone, Esq. (“DeSimone”) rendered on 04/27/2023, and mailed on 05/01/2023 (“delivery date”), is GRANTED, DeSimone having been duly appointed by the Superintendent of Insurance and designated by the American Arbitration Association pursuant to the Regulations promulgated by the Superintendent of Insurance as 11 NYCRR §65-4.10, which application was made within one year after delivery below of said award to petitioner, which award has not been vacated or modified upon a ground specified in CPLR 7511 (see CPLR 7510; see also Matter of Neiss v Asia, 164 AD3d 1344, 1345 [2nd Dept 2018]).

The Master Arbitration Award reviewed and affirmed in its entirety the Arbitration Award below, heard on 12/13/2022 and affirmed on 01/12/2023, of the Arbitrator Inez Beyrer, which was entered in favor of petitioner, TIME TO CARE PHARMACY INC., a/a/o MALIK BROOMES, as against respondent, in accordance with the Rules for New York State No-Fault Arbitration adopted pursuant to regulations promulgated by the Superintendent of Insurance.

More than 21 days has elapsed since the Master Arbitration Award was issued and mailed on 05/01/2023 (“date of delivery”), and the amounts set forth in the Master Arbitration Award is now due and owing (see 11 NYCRR §65-4.10[e][4]).

The Arbitration Award is confirmed in favor of petitioner as against respondent, in the following sums: (i) Principal sum in the amount of $3,381.36; (ii) Interest on the Principal at 2% per month from 09/28/2021 until entry of a judgment in accordance with Insurance Law §5106(a); (iii) Attorney Fee in the sum of 20% of the principal and interest to a maximum of $1,360.00; (iv) Arbitration Filing Fee in the amount of $40.00 (see 11 NYCRR §65-4.10[e][1][ii][b]); (v) Master Arbitration Fee in the sum of $195.00 (see 11 NYCRR §65-4.10[e] [1][ii][a]); (vi) Additional Attorney Fee pursuant to Insurance Department Regulations (see 11 NYCRR §65-4.10[j][4]), for services rendered in a Court appeal from a Master Arbitration Award, to be fixed by the Court adjudicating the matter (see Geico Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2nd Dept 2017]); and it is further

ORDERED that the unopposed petition for an order awarding additional attorney fees for post arbitration proceedings, is GRANTED. Petitioner is granted additional attorney fees in the sum of $1,000.00 (see 11 NYCRR §65-4.10[j][4]; see also D&W Cent. Stat. Fire Alarm Co. Inc. v United Props. Corp., 34 Misc 3d 85 [App Term, 2nd Dept, 11th & 13th Jud Dists 2012]).

The standard of review for an arbitration award is limited to a determination of whether the award was arbitrary, capricious and incorrect as a matter of law. A master arbitrator’s powers in reviewing an initial arbitrator’s decision are limited to the grounds stated in CPLR 7511, and additionally, under insurance regulations, is limited to whether the initial arbitrator ruled on factual and procedural issues in a manner that was arbitrary, capricious, irrational or without a plausible basis (see Matter of Petrofsky v Allstate Ins. Co., 54 NY2d 207, 211 [1981]; In the Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724 [2nd Dept 1994]).

If a challenge is based upon a factual error in the arbitration, “the master arbitrator must uphold the determination if it has a rational basis” (see In the Matter of Richardson v Prudential Prop. & Cas. Ins. Co., 230 Ad2d 861 [2nd Dept 1996]). Moreover, an arbitrator’s award must be upheld “when the arbitrator ‘offer[s] even a barely colorable justification for the outcome reached'” (see In the Matter of Susan D. Settenbrino. P.C. v Barroga-Hayes, 89 AD3d 1094, 1095 [2nd Dept 2011]). Indeed, for an award to be irrational, there must be “no proof whatsoever to justify the award” (see In the Matter of Gaymon v MTA Bus Co., 117 AD3d 735, 736 [2nd Dept 2014]; In the Matter of Susan D. Settenbrino. P.C. v Barroga-Hayes, supra ). However, “an arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be” (Id. at 1095).

Here, the Court determines that the Master Arbitrator found that the lower arbitrator decided the claim based upon her review and evaluation of the record, with pertinent case law, and further found the award below was clearly articulated and had a rational and plausible basis in the evidence. Moreover the Master Arbitrator further found there was no evidence presented which would establish any valid ground to set aside the award of the lower arbitrator, and found no reason to disturb her decision, thereby affirming the lower arbitration award in its entirety.

After due consideration, the Court agrees with the findings of the Master Arbitrator and finds that the record demonstrates there was a rational basis for the initial arbitrator’s decision and the award was justified. In addition, the Master Arbitration Award was supported by sufficient evidence in the record, and was not arbitrary, capricious, irrational or incorrect as a [*2]matter of law.

The foregoing constitutes the decision and order of this Court. Submit Judgment.

The following numbered papers were read on this special proceeding: NYSCEF Document Numbers 1-9.

Upon the foregoing papers, the Court having elected to determine the within petition on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), Section 6 (Personal Appearances) (“All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.),”^[FN1] and due deliberation having been had thereon,

It is hereby ORDERED and ADJUDGED that the within special proceeding is determined as follows:

In this special proceeding pursuant to CPLR 7502 and 7510, the within petition of Petitioner John T. Mather Memorial Hospital, a medical provider, to confirm a No-Fault Insurance master arbitration award against Respondent American Transit Insurance Company is GRANTED but without an award of an attorney’s fee for services rendered in connection with the petition to confirm. It is noted that Respondent has not appeared to oppose the petition.

The master arbitration award in American Arbitration Association Case No. 99-22-1233-6879 of Master Arbitrator Anne L. Powers, which affirmed the award of Arbitrator Dimitrios Stathopoulos, is confirmed in its entirety.

Petitioner herein is awarded the principal amount ($21,316.95), interest, attorney’s fees, and return of filing fee ($40.00) as determined in the hearing arbitration (see the arbitration award of Arbitrator Stathopoulos, appearing as NYSCEF Doc No. 3). The interest shall accrue from the arbitration filing date (see 11 NYCRR 65-4.5 [s] [3], 65-3.9 [c]; Canarsie Med. Health, P.C. v National Grange Mut. Ins. Co., 21 Misc 3d 791, 797 [Sup Ct, NY County 2008]), at the rate of two percent per month, simple, calculated on a pro-rata basis using a 30-day month (see 11 NYCRR 65-3.9 [a]). The attorney’s fee for the arbitration shall be 20% of the sum of the principal plus interest to payment.

The attorney’s fee for the master arbitration is $130.00 per the award of Master Arbitrator Powers appearing as NYSCEF Doc No. 4.

This Court denies an attorney’s fee to Petitioner herein for prevailing in this special proceeding to confirm the master arbitration award. In seeking an attorney’s fee, Petitioner relies on 11 NYCRR 65-4.10 (j) (4), which provides, “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.” Petitioner’s action of seeking to confirm an [*2]arbitration award is not in the nature of appeal. An “appeal” is an action taken by a party to have a determination reviewed because it was adverse to the party. The master arbitrator’s award was not adverse to Petitioner. Quite the opposite, Petitioner agreed with the determination. The purpose for this Article 75 proceeding is to obtain a judgment so that Petitioner can levy upon Respondent’s assets in order to enforce the award of monetary compensation as determined in the arbitration process. Moreover, this special proceeding is not a de novo dispute. Nothing in the language of 11 NYCRR 65-4.10 (j) (4) provides support for this Court to grant Petitioner an attorney’s fee. The language of the regulation is clear and unambiguous and would not apply to this unopposed Article 75 special proceeding to confirm a master arbitration No-Fault award (see Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854 [2003]; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 458 [1980]). A court should not read into a regulation a provision which is not present (see Jansen Ct. Homeowners Assn. v City of New York, 17 AD3d 588 [2d Dept 2005]), especially since the No-Fault Law is in derogation of the common law and so must be strictly construed (see Presbyterian Hosp. in City of NY v Atlanata Cas. Co., 210 AD2d 210 [2d Dept 2001]).

Petitioner also cites to Matter of GEICO Ins. Co. v AAAMG Leasing Corp. (148 AD3d 703 [2d Dept 2017]) as support for its request for an attorney’s fee in this special proceeding to confirm the No-Fault master arbitration award. Petitioner emphasizes the following language in said opinion at page 705: “The term ‘court appeal’ applies to a proceeding such as this, taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award (see Matter of Hempstead Gen. Hosp. v National Grange Mut. Ins. Co., 179 AD2d 645 [1992])” (emphasis added). This Court holds that to the extent the Appellate Division included the words “or confirm” it was dicta because in Matter of GEICO Ins. Co. v AAAMG Leasing Corp. at issue was a petition to vacate a master arbitration award. Hence GEICO Ins. Co.’s petition to vacate constituted an appeal from the master arbitration award; not so in the case at bar. Moreover, Matter of Hempstead Gen. Hosp. v National Grange Mut. Ins. Co., cited in Matter of GEICO Ins. Co. v AAAMG Leasing Corp., involved an appeal in the form of an Article 75 special proceeding, to vacate a master arbitration award in favor of the No-Fault insurer. Again, there was an actual appeal, unlike the present sitatuion, where Petitioner John T. Mather Memorial Hospital seeks merely to confirm a master arbtriation award in its favor, and there is not even any opposition from Respondent Americal Transit Insurance Company.

Petitioner claims that Respondent has failed to pay the amount due per the No-Fault insurance arbitration result: “Here, . . . payment was not made and, since the Petition to confirm must be granted, Petitioner is entitled to its hourly attorney fees in this proceeding” (NYSCEF Doc No. 1 ¶ 12 at 3 [emphasis added]). This is a misunderstanding of the No-Fault Insurance Regulations. Said Regulations actually do provide for a remedy in this type of situation. Section 65-3.10 of the No-Fault Insurance Regulations (11 NYCRR 65-3.10) provides in subdivision (b) as follows:

If a dispute is resolved in accordance with any of the optional arbitration procedures contained in this Part, either during the initial review by the Department of Financial Services or by an arbitration award, and if payment is not made by the insurer in accordance with the terms specified in the conciliation letter or arbitration award within 45 days following such resolution, an additional attorney’s fee shall be paid by the insurer when the attorney writes to the insurer in order to receive such overdue payment. The additional attorney’s fee shall be $60 and shall become payable only after written request [*3]from the attorney to the insurer, received by the insurer more than 45 days after mailing of the conciliation letter or arbitration award. Such fee shall not be payable if payment was made by the insurer prior to the attorney’s request for such payment or if an arbitration award is appealed in accordance with the provisions of this Part.

Therefore, once payment is obtained, Petitioner is entitled to $60 for its efforts in securing same. The fee will be payable since Respondent American Transit Insurance Company did not appeal the determination of the master arbitrator, assuming that payment of the awarded amount was not made within 45 days after after mailing of the master arbitration award. While the $60 may not be commensurate with Petitioner’s view of the amount to which it is entitled for enforcement of the arbitratration award, the remedy it seeks pursuant to 11 NYCRR 65-4.10 (j) (4) must be rejected based on the clear language of that regulation. Petitioner is not entitled to hour attorney fees as it has argued.

Respondent herein shall recover from Petitioner herein $200 as costs as well as disbursements allowed by law, to be taxed by the Clerk, since Petitioner has prevailed in having the master arbitration award confirmed (see CPLR 8101, 8201, 8202, 8301; Meehan v Nassau Community College, 242 AD2d 155 [2d Dept 1998]).

The Court having elected to determine the within petition on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), Section 6 (Personal Appearances) (“All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.),”

It is hereby ORDERED as follows:

(1) The within petition shall be determined on submission.

(2) If opposition papers have not been filed yet despite the fact that the deadline for same pursuant to the CPLR may have passed, leave to file them by January 3, 2024, 5:00 p.m., is granted.

(3) If reply papers have not been filed yet despite the fact that the deadline for same pursuant to the CPLR may have passed, leave to file them by January 5, 2004, 5:00 p.m., is granted.

(4) Any papers filed past said deadlines shall not be considered.

(5) There shall be no personal appearances on the calendar date noted above.

The Rybak Firm, PLLC (Maksin Leyvi and Richard Rozhik of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated December 15, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.

For the reasons stated in Pain Med., PLLC, as Assignee of Van-Bochove, Nourine v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-753 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

OTTLEY, J.P., BUGGS and HOM, JJ., concur.

The Rybak Firm, PLLC (Maksim Leyvi and Richard Rozhik of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J, Ammendolea of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated December 15, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.

For the reasons stated in Pain Med., PLLC, as Assignee of Van-Bochove, Nourine v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-753 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

OTTLEY, J.P., BUGGS and HOM, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated January 6, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had [*2]made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JPC Med., P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 136[A], 2022 NY Slip Op 50562[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; JPF Med. Servs., P.C. v Nationwide Ins., 69 Misc 3d 127[A], 2020 NY Slip Op 51122[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.

Plaintiff’s cross-motion for summary judgment was properly denied, as plaintiff failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial of claim form that was conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

OTTLEY, J.P., BUGGS and HOM, JJ., concur.

Plaintiff, medical provider, Stark Medical Supply Inc. (hereinafter “Plaintiff”), as assignee of Emmanuel Dorvil (hereinafter “Assignor”), commenced this action to recover assigned first-party no fault benefits from Foremost Property and Casualty Insurance (hereinafter “Defendant”), for a medical service performed to the assignor following a motor vehicle accident, which occurred May 29, 2017.

A Summary Judgement order signed by this Court on December 2, 2020 found that the subject bills were received and timely and properly denied. The Order limits the trial to the sole issue of whether the policy was exhausted at the time of the claim.

At trial, held November 29, 2023, defendant called its witness, Megan Scorben, a claims specialist who is employed by for defendant. Ms. Scorben testified that she reviewed the claim log, there was a previous medical payment on this accident, and that at full value there was $1,000 on the policy plus an additional $500 if the motorcycle rider was wearing a helmet. Upon voir dire, plaintiff questioned whether Ms. Scorben personally added in data herself and she replied that she did not. Ms. Scorben also testified that she was not working for the defendant when the payment logs that she was relying upon were created, however she did state that she reviewed and maintained the records in the regular course of her employment responsibilities.

During cross-examination of Ms. Scorben, plaintiff questioned the dates that were input into the log that Ms. Scorben relied upon in her determination that the policy was exhausted. She stated that there was in fact a “typo” and the date should read June, 15, 2017 and that the dates reads June 15, 2018. Plaintiff also questioned the witness’ reliance on information in the log that shows that payment was made prior to the incorrect/typo service dates of the bill and Ms. Scorben replied affirmatively.

For a policy exhaustion defense to bar plaintiff from recovery in a no-fault matter, the defendant must ” demonstrate that the policy had been exhausted at the time the claims at issue were deemed complete.” Ortho Passive Motion, Inc. v Allstate Ins. Co., NY Slip Op 50771 [Application Term 2d 2017]. The Second Department further clarifies that “defendant has not argued, let alone demonstrated, that there was a technical defect or ministerial mistake in the judgment “not affecting a substantial right of a party.” Id.

The Court finds that in the matter sub judice, defendant has failed to prove policy exhausted. Firstly, despite the contentions of the defendant and its witness, the incorrect dates in the log is not merely “ministerial mistakes” as the errors “do substantially affect the rights of plaintiff.” Id.

Secondly, the log entries do not prove that the policy was exhausted when the “claims at issue were deemed complete.” Id. Defendant has failed to provide this court with any evidence, documentary or testimony to successfully establish that the policy was exhausted when the claims were completed. There is nothing beyond the testimony of the witness to show that the date in the log was in error, thus there is nothing to show that the payment preceded the bill herein.

WHEREFORE it is hereby

ORDERED AND ADJUDGED that judgement be entered in favor of plaintiffs in the sum of $1, 281.32 plus filing fees, and interest from July 24, 2018.

Petre and Associates, P.C. (Mark Petre of counsel), for appellant. The Law Office of John Trop (Jeff G. Winston of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated March 8, 2023. The order granted defendant’s motion to vacate a judgment of that court entered May 3, 2022 upon defendant’s failure to appear or answer the complaint and to compel plaintiff to accept defendant’s answer.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment entered May 3, 2022 and to compel plaintiff to accept defendant’s answer is denied.

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on May 3, 2022 upon defendant’s failure to appear or answer the complaint. According to the affidavit of service, the summons and complaint were served upon a named individual known by the process server to be an employee of defendant authorized to accept service of process. Defendant subsequently moved to vacate the default judgment pursuant to CPLR 5015 (a) (1) and to compel plaintiff to accept defendant’s answer pursuant to CPLR 3012 (d). Plaintiff opposed the motion. By order dated March 8, 2023, the Civil Court granted defendant’s motion. 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 in answering a complaint pursuant to CPLR 5015 (a) (1) and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012 (d) [*2]must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see Deutsche Bank Natl. Trust Co. v Abrahim, 183 AD3d 698 [2020]; US Bank N.A. v Dedomenico, 162 AD3d 962, 964 [2018])” (JE & MB Homes, LLC v U.S. Bank N.A., 189 AD3d 1195, 1196 [2020]).

In support of its contention that it possessed a reasonable excuse for its default, defendant submitted an affidavit from a claims representative who averred that either the summons and complaint were not received, based on the absence of a record documenting the receipt of this document in defendant’s electronic system, or that the summons and complaint were not processed due to a reduction in the number of personnel in defendant’s office, where service allegedly occurred, due to the COVID-19 pandemic. Defendant’s claim of lack of receipt is insufficient to constitute a reasonable excuse, as defendant neither submitted an affidavit from the individual who had been named in the process server’s affidavit of service as having received service nor explained why such affidavit could not be provided (see 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]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98, 100 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Further, defendant’s assertion that a COVID-19-related staff reduction may have resulted in the failure to process the summons and complaint was conclusory and unsubstantiated, and, therefore, is also insufficient to qualify as a reasonable excuse (see V. v Leo, 219 AD3d 961, 962 [2023]; Wells Fargo Bank, N.A. v Krauss, 128 AD3d 813, 814 [2015]; Ahava Med. Diagnostic, P.C. v Hertz Co., 72 Misc 3d 138[A], 2021 NY Slip Op 50772[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). In light of the foregoing, 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., 2021 NY Slip Op 50772[U], *1).

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment entered May 3, 2022 and to compel plaintiff to accept defendant’s answer is denied.

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