January 22, 2024

Country-Wide Ins. Co. v Yao Jian Ping (2024 NY Slip Op 24033)


The relevant facts the court considered in this case include the commencement of the action by Country-Wide Insurance Company against Yao Jian Ping following an arbitration award in defendant's favor in excess of $5,000. Defendant made a motion to dismiss the action, which was initially denied and affirmed on appeal. A notice of trial was filed and granted by the court, after which additional discovery was directed. Defendant also sought to amend the answer but was denied. Finally, a nonjury trial was held, during which plaintiff's and defendant's exhibits were submitted and evidence was presented. Defendant rested with both plaintiff and defendant moving for a directed verdict in their favor, and the court reserved decision. The main issue was whether the plaintiff was entitled to an adjudication de novo of a no-fault insurance claim pursuant to Insurance Law § 5106(c) following the master arbitrator's award in defendant's favor. The legal issues involved the procedural history of the case, the jurisdiction of the Civil Court, and whether the defendant should be allowed to amend the answer. The holding in this case was not provided in the given text.

Reported in New York Official Reports at Country-Wide Ins. Co. v Yao Jian Ping (2024 NY Slip Op 24033)

Country-Wide Ins. Co. v Yao Jian Ping
2024 NY Slip Op 24033
Decided on January 22, 2024
Civil Court Of The City Of New York, New York County
Tsai, J.
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 printed Official Reports.

Decided on January 22, 2024
Civil Court of the City of New York, New York County

Country-Wide Insurance Company, Plaintiff,


Yao Jian Ping, Defendant.

Index No. CV-022995-17/NY

Jaffe & Velasquez, LLP, New York City, Kim Rasin and Margaret Nolan, of counsel), for plaintiff.

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum, of counsel), for defendant.
Richard Tsai, J.

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.


Recitation, as required by CPLR 4213 (b), of the findings of essential facts relied upon by the court:

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”
(Tr. 37, lines 6-15).

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”
(see id., at Page 3/6).

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”
(8 Carmody-Wait 2d § 56:14).
“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]”
(PJI 1:23).

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”
(Matter of American Tr. Ins. Co. v Nexray Med. Imaging PC, 79 Misc 3d 1206[A], 2023 NY Slip Op 50538[U] [Sup Ct, NY County 2023] [internal footnotes omitted]).

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”
(Domotor, 266 AD2d at 220-21 [internal citations omitted]).

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″
(Civil Court Act § 212-a). Neither applies here. An adjudication de novo is not a controversy [*8]involving the obligation of an insurer to indemnify or defend someone in another action.

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.

Dated: January 22, 2024
New York, New York
Judge of the Civil Court

Footnote 1: Defendant’s answer did not assert a counterclaim, but the prayer for relief asked for entry of a money judgment in defendant’s favor in the amount of $15,251.75, along with attorneys’ fees and costs and disbursements.

Footnote 2: This court indicated that if there was a particular document among those documents that contained hearsay, other than the fact that it was a business record, then plaintiff was permitted to object those documents being offered for that purpose (Tr. 8, lines 19-25).

Footnote 3: The date of the master arbitrator award is typed as “August 25, 2016,” whereas the date of mailing is date-stamped “Aug 29, 2017” (see Defendant’s Exhibit A).

Footnote 4: “For practical purposes, courts have applied the same rules to notices of loss, injury, damage or claim and to proofs of loss. However, the two are different in their requirements and purpose. A notice, whether of loss, injury, damage, claim, or disability, serves the purpose of first advising the insurer of the occurrence or event which triggers coverage under the policy. A proof of loss, on the other hand, operates to substantiate the claim that has been made” (Joseph Wilson & Anne M. Payne, New York Insurance Law § 30:1 [West’s NY Prac Series 2023-2024 ed.]).

Footnote 5: In its prayer for relief in the complaint, plaintiff did not seek attorney’s fees.

Footnote 6: A prayer for affirmative relief which is not specifically described as a counterclaim is without effect (People v Sound View Land & Imp. Co., 239 App Div 201, 202 [1st Dept 1933]). “The rule is well settled that where a defendant insists upon a counterclaim, it must be pleaded as such, and unless that is done it can be resorted to and used only as a defense” (New York Trust Co. v American Realty Co., 213 App Div 272, 275 [1st Dept 1925]). This is not a case where defendant pleaded facts entitling defendant to affirmative relief but merely omitted to designate the matter as a counterclaim, “in which event the courts will regard the pleading as what it obviously was intended to be” (New York Trust Co., 213 App Div at 275).

In a supplemental brief, defendant indicates that defendant only seeks confirmation of the underlying master arbitration award and attorneys’ fees if defendant prevails (see defendant’s supplemental brief at 3, 5-6).