Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Integrated Medicine of S.I., P.C. (2025 NY Slip Op 06703)
| Matter of American Tr. Ins. Co. v Integrated Medicine of S.I., P.C. |
| 2025 NY Slip Op 06703 |
| Decided on December 3, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.
2024-03961
(Index No. 500128/23)
v
Integrated Medicine of S.I., P.C., etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Short & Billy, P.C., New York, NY (Seok Ho (Richard) Kang of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated November 1, 2022, Integrated Medicine of S.I., P.C., appeals from a judgment of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated July 18, 2023. The judgment, insofar as appealed from, upon an order of the same court dated June 2, 2023, inter alia, granting that branch of the cross-petition of Integrated Medicine of S.I., P.C., which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee to the extent of awarding it an additional attorney’s fee in the sum of $220, awarded Integrated Medicine of S.I., P.C., an additional attorney’s fee in the sum of only $220.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Integrated Medicine of S.I., P.C. (hereinafter Integrated Medicine), pursuant to CPLR article 75 to vacate a master arbitration award dated November 1, 2022, affirming an arbitration award entered in favor of Integrated Medicine. Integrated Medicine cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee. In an order dated June 2, 2023, the Supreme Court, inter alia, denied the petition, confirmed the arbitration award, and granted that branch of the cross-petition to the extent of awarding Integrated Medicine an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220. Thereafter, on July 18, 2023, the court, upon the order, issued a judgment, among other things, awarding Integrated Medicine an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220. Integrated Medicine appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to the limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or confirm a master arbitration award, and, in such instances, “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting [*2]Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to the contention of Integrated Medicine, the Supreme Court acted within its discretion in awarding Integrated Medicine an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Integrated Medicine failed to submit an affirmation or affidavit in support of its cross-petition, inter alia, describing the nature of the work performed and the amount of time expended on the matter, it was within the court’s discretion to determine a reasonable amount of an attorney’s fee (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, Integrated Medicine failed to request a hearing on the issue of an award of an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) (see Sieratzki v Sieratzki, 8 AD3d 552, 554). Under these circumstances, and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4).
Integrated Medicine’s remaining contentions are either academic or without merit.
DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v YD Med. Servs., P.C. (2025 NY Slip Op 06704)
| Matter of American Tr. Ins. Co. v YD Med. Servs., P.C. |
| 2025 NY Slip Op 06704 |
| Decided on December 3, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.
2024-03959
(Index No. 535310/22)
v
YD Medical Services, P.C., etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Short & Billy, P.C., New York, NY (Seok Ho (Richard) Kang of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated September 29, 2022, YD Medical Services, P.C., appeals from a judgment of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated July 31, 2023. The judgment, insofar as appealed from, upon an order of the same court dated June 2, 2023, inter alia, granting that branch of the cross-petition of YD Medical Services, P.C., which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee to the extent of awarding it an additional attorney’s fee in the sum of $220, awarded YD Medical Services, P.C., an additional attorney’s fee in the sum of only $220.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against YD Medical Services, P.C. (hereinafter YD Medical), pursuant to CPLR article 75 to vacate a master arbitration award dated September 29, 2022, affirming an arbitration award entered in favor of YD Medical. YD Medical cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee. In an order dated June 2, 2023, the Supreme Court, inter alia, denied the petition, confirmed the arbitration award, and granted that branch of the cross-petition to the extent of awarding YD Medical an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220. Thereafter, on July 31, 2023, the court, upon the order, issued a judgment, among other things, awarding YD Medical an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220. YD Medical appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to the limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or confirm a master arbitration award, and, in such instances, “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within [*2]the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to the contention of YD Medical, the Supreme Court acted within its discretion in awarding YD Medical an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since YD Medical failed to submit an affirmation or affidavit in support of its cross-petition, inter alia, describing the nature of the work performed and the amount of time expended on the matter, it was within the court’s discretion to determine a reasonable amount of an attorney’s fee (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, YD Medical failed to request a hearing on the issue of an award of an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) (see Sieratzki v Sieratzki, 8 AD3d 552, 554). Under these circumstances, and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4).
YD Medical’s remaining contentions are either academic or without merit.
DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Jong Won Yom (2025 NY Slip Op 06705)
| Matter of American Tr. Ins. Co. v Jong Won Yom |
| 2025 NY Slip Op 06705 |
| Decided on December 3, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.
2023-12114
(Index No. 532051/22)
v
Jong Won Yom, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Short & Billy, P.C., New York, NY (Seok Ho (Richard) Kang of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated August 26, 2022, Jong Won Yom appeals from a judgment of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated July 18, 2023. The judgment, insofar as appealed from, upon an order of the same court dated June 2, 2023, inter alia, granting that branch of the cross-petition of Jong Won Yom which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee to the extent of awarding Jong Won Yom an additional attorney’s fee in the sum of $220, awarded Jong Won Yom an additional attorney’s fee in the sum of only $220.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Jong Won Yom pursuant to CPLR article 75 to vacate a master arbitration award dated August 26, 2022, affirming an arbitration award entered in favor of Yom. Yom cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee. In an order dated June 2, 2023, the Supreme Court, inter alia, denied the petition, confirmed the arbitration award, and granted that branch of the cross-petition to the extent of awarding Yom an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220. Thereafter, on July 18, 2023, the court, upon the order, issued a judgment, among other things, awarding Yom an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220. Yom appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to the limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or confirm a master arbitration award, and, in such instances, “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to Yom’s contention, the Supreme Court acted within its discretion in awarding Yom an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Yom failed to submit an affirmation or affidavit in support of the cross-petition, inter alia, describing the nature of the work performed and the amount of time expended on the matter, it was within the court’s discretion to determine a reasonable amount of an attorney’s fee (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, Yom failed to request a hearing on the issue of an award of an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) (see Sieratzki v Sieratzki, 8 AD3d 552, 554). Under these circumstances, and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4).
Yom’s remaining contentions are either academic or without merit.
DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Jong Won Yom (2025 NY Slip Op 06706)
| Matter of American Tr. Ins. Co. v Jong Won Yom |
| 2025 NY Slip Op 06706 |
| Decided on December 3, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.
2024-03958
(Index No. 532032/22)
v
Jong Won Yom, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Short & Billy, P.C., New York, NY (Seok Ho (Richard) Kang of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated August 25, 2022, Jong Won Yom appeals from an amended judgment of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated July 19, 2023. The amended judgment, insofar as appealed from, upon an order of the same court dated May 26, 2023, inter alia, granting that branch of the cross-petition of Jong Won Yom which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee to the extent of awarding Jong Won Yom an additional attorney’s fee in the sum of $600, awarded Jong Won Yom an additional attorney’s fee in the sum of only $600.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Jong Won Yom pursuant to CPLR article 75 to vacate a master arbitration award dated August 25, 2022, affirming an arbitration award entered in favor of Yom. Yom cross-petitioned, among other things, to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated May 26, 2023, the Supreme Court, inter alia, denied the petition, confirmed the arbitration award, and granted that branch of the cross-petition to the extent of awarding Yom an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $600. Thereafter, on July 19, 2023, the court, upon the order, issued an amended judgment, among other things, awarding Yom an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $600. Yom appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to the limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or confirm a master arbitration award, and, in such instances, “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to Yom’s contention, the Supreme Court acted within its discretion in awarding Yom an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $600 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Yom failed to submit an affirmation or affidavit in support of the cross-petition, inter alia, describing the nature of the work performed and the amount of time expended on the matter, it was within the court’s discretion to determine a reasonable amount of an attorney’s fee (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, Yom failed to request a hearing on the issue of an award of an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) (see Sieratzki v Sieratzki, 8 AD3d 552, 554). Under these circumstances, and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4).
Yom’s remaining contentions are either academic or without merit.
DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Government Empls. Ins. Co. v Picone (2025 NY Slip Op 06604)
| Government Empls. Ins. Co. v Picone |
| 2025 NY Slip Op 06604 |
| Decided on November 26, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
HELEN VOUTSINAS
PHILLIP HOM, JJ.
2022-08594
(Index No. 605038/17)
v
Matthew Picone, appellant.
Palmieri Law, P.C. (Edelstein & Grossman, New York, NY [Jonathan I. Edelstein], of counsel), for appellant.
Short & Billy, P.C., New York, NY (Andrew S. Midgett and Skip Short of counsel), for respondent.
DECISION & ORDER
In an action pursuant to Insurance Law § 5106(c) for a de novo determination of claims for no-fault insurance benefits, the defendant appeals from a judgment of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered March 24, 2022. The judgment, upon an order of the same court entered March 2, 2022, denying the defendant’s motion for summary judgment dismissing the complaint and on his counterclaims and granting that branch of the plaintiff’s cross-motion which was, in effect, for summary judgment on the complaint and dismissing the counterclaims, dismissed the counterclaims and declared that the plaintiff is not liable to the defendant for the payment of any lost wages claimed by the defendant.
ORDERED that the judgment is affirmed, with costs.
The plaintiff commenced this action pursuant to Insurance Law § 5106(c) for a de novo review of an arbitration award in favor of the defendant and against it with respect to the defendant’s claim for no-fault lost wage benefits in connection with an insurance policy obtained by the defendant through the plaintiff. The defendant interposed counterclaims, inter alia, alleging breach of contract and unfair claims settlement practices.
The defendant moved for summary judgment dismissing the complaint and on his counterclaims. The plaintiff cross-moved, inter alia, in effect, for summary judgment on the complaint and dismissing the counterclaims. In an order entered March 2, 2022, the Supreme Court
denied the defendant’s motion and granted that branch of the plaintiff’s cross-motion. Thereafter, a judgment was entered dismissing the counterclaims and declaring that the plaintiff is not liable to the defendant for the payment of any lost wages claimed by the defendant.
An eligible individual who makes a claim under the No-Fault Law must be compensated for “[l]oss of earnings from work which the person would have performed had he [or she] not been injured” (Insurance Law § 5102[a][2]; see Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 458; Ross v GEICO Indem. Co., 172 AD3d 1834, 1835-1836).
In calculating lost wage benefits, 11 NYCRR 65-3.16(b)(6) provides that “if the applicant, while disabled, is discharged from employment solely because of inability to work due to the injury, benefits for basic economic loss shall continue at the same level while the disability continues.” The statutory and regulatory provisions that govern the recovery of lost earnings “contemplate[ ] a degree of certainty in the calculation of lost wages” (Sharpe v Allstate Ins. Co., 14 [*2]AD3d 774, 775). The Legislature intended “to compensate the accident victim for the earnings he or she would have, in fact, realized” (Kurciscs v Merchants Mut. Ins. Co., 49 NY2d at 457; see 11 NYCRR 65-3.16[b][3]).
Here, the plaintiff demonstrated, prima facie, its entitlement to judgment as a matter of law on the defendant’s claim for lost wages (see Buckham v 322 Equity, LLC, 229 AD3d 669, 675; Gore v Cardany, 167 AD3d 851, 852). In support of its cross-motion, the plaintiff submitted, inter alia, a report by a certified public accountant, the defendant’s personal and business tax returns, the defendant’s bankruptcy petition, and a transcript of the defendant’s deposition testimony. The tax returns were inconsistent with each other and were also inconsistent with the facts set forth in the bankruptcy petition. Moreover, at his deposition, the defendant failed to explain the discrepancies and also failed to produce the underlying records of his business documenting his income. In opposition to the cross-motion, the defendant failed to raise a triable issue of fact.
Under these circumstances, the Supreme Court properly entered a judgment declaring that the plaintiff is not liable to the defendant for the payment of any lost wages claimed by the defendant and dismissing the breach of contract counterclaim (see Sharpe v Allstate Ins. Co., 14 AD3d at 775; Wolf v Holyoke Mut. Ins. Co., 3 AD3d 660, 661-662).
Contrary to the defendant’s contention, the Supreme Court also properly granted summary judgment dismissing his counterclaim alleging unfair claims settlement practices. The relevant statute, Insurance Law § 2601, does not create a private right of action (see Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 614; Lobello v New York Cent. Mut. Fire Ins. Co., 152 AD3d 1206, 1207-1208).
The plaintiff’s remaining contention is not properly before this Court.
The defendant’s remaining contention is without merit.
DUFFY, J.P., MILLER, VOUTSINAS and HOM, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Center, LLC (2025 NY Slip Op 06054)
| Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Center, LLC |
| 2025 NY Slip Op 06054 |
| Decided on November 5, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-03984
(Index No. 522399/22)
v
Bay Ridge Surgi-Center, LLC, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Short & Billy, P.C., New York, NY (Seok Ho (Richard) Kang of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated May 23, 2022, Bay Ridge Surgi-Center, LLC, appeals from a judgment of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated October 6, 2023. The judgment, insofar as appealed from, upon an order of the same court dated August 23, 2023, among other things, granting that branch of the cross-petition of Bay Ridge Surgi-Center, LLC, which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees to the extent of awarding it additional attorney’s fees in the sum of $250, awarded Bay Ridge Surgi-Center, LLC, additional attorney’s fees in the sum of only $250.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Bay Ridge Surgi-Center, LLC (hereinafter Bay Ridge), pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated May 23, 2022, affirming an arbitration award entered in favor of Bay Ridge. Bay Ridge cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated August 23, 2023, the Supreme Court denied the petition, confirmed the master arbitration award, and granted that branch of the cross-petition to the extent of awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $250. Thereafter, on October 6, 2023, the court, upon the order, issued a judgment, among other things, awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $250. Bay Ridge appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney’s fees “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to Bay Ridge’s contention, the Supreme Court acted within its discretion in awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $250 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Bay Ridge failed to submit an affirmation or an affidavit in support of its cross-petition, inter alia, describing the nature of the work performed and the amount of time expended on the matter, it was within the court’s discretion to determine a reasonable amount of attorney’s fees (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, Bay Ridge failed to request a hearing on the issue of an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) (see Sieratzki v Sieratzki, 8 AD3d 552, 554). Under these circumstances, and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4).
Bay Ridge’s remaining contention is academic in light of our determination.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Center, LLC (2025 NY Slip Op 06055)
| Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Center, LLC |
| 2025 NY Slip Op 06055 |
| Decided on November 5, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-08894
(Index No. 530082/22)
v
Bay Ridge Surgi-Center, LLC, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Larkin Farrell LLC, New York, NY (William Larkin of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 20, 2022, Bay Ridge Surgi-Center, LLC, appeals from a judgment of the Supreme Court, Kings County (Richard Velasquez, J.), dated June 12, 2024. The judgment, insofar as appealed from, upon an order of the same court dated June 5, 2024, granting the motion of Bay Ridge Surgi-Center, LLC, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees to the extent of awarding it additional attorney’s fees in the sum of $1,100, awarded Bay Ridge Surgi-Center, LLC, additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of only $1,100.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Bay Ridge Surgi-Center, LLC (hereinafter Bay Ridge), pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 20, 2022, affirming an arbitration award entered in favor of Bay Ridge. Bay Ridge cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated September 27, 2023, the Supreme Court, inter alia, upon its determination that Bay Ridge was entitled to additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), granted Bay Ridge leave to file a motion for a determination of the amount of additional attorney’s fees to be awarded to Bay Ridge. Thereafter, Bay Ridge moved pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. The petitioner opposed the motion. In an order dated June 5, 2024, the court granted the motion to the extent of awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100. Thereafter, the court, upon the order, issued a judgment, among other things, awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100. Bay Ridge appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney’s fees “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to Bay Ridge’s contention, the Supreme Court acted within its discretion in awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100, notwithstanding Bay Ridge’s submission of an affirmation of its counsel setting forth a fee for work expended in the sum of $4,450 (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Bay Ridge failed to request a hearing on the issue of an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) (see Boddie-Willis v Marziliano, 78 AD3d 978, 979). Moreover, in fixing the fee award, the court acted within its discretion in considering, inter alia, the prevailing rate for similar work and the complexity of the matter at issue (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 839-840). Under these circumstances, there is no basis to disturb the court’s award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Pfeffer (2025 NY Slip Op 06056)
| Matter of American Tr. Ins. Co. v Pfeffer |
| 2025 NY Slip Op 06056 |
| Decided on November 5, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-03982
(Index No. 531336/22)
v
Michelle Pfeffer, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Short & Billy, P.C., New York, NY (Seok Ho (Richard) Kang of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 26, 2022, Michelle Pfeffer appeals from a judgment of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated November 17, 2023. The judgment, insofar as appealed from, upon an order of the same court dated October 18, 2023, among other things, granting that branch of the cross-petition of Michelle Pfeffer which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees to the extent of awarding her additional attorney’s fees in the sum of $500, awarded Michelle Pfeffer additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of only $500.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Michelle Pfeffer pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 26, 2022, affirming an arbitration award entered in favor of Pfeffer. Pfeffer cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated October 18, 2023, the Supreme Court denied the petition, confirmed the master arbitration award, and granted that branch of the cross-petition to the extent of awarding Pfeffer additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of only $500. Thereafter, on November 17, 2023, the court, upon the order, issued a judgment, among other things, awarding Pfeffer additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $500. Pfeffer appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney’s fees “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to Pfeffer’s contention, the Supreme Court acted within its discretion in awarding her additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $500 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Pfeffer failed to submit an affirmation or an affidavit in support of her cross-petition, inter alia, describing the nature of the work performed and the amount of time expended on the matter, it was within the court’s discretion to determine a reasonable amount of attorney’s fees (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, Pfeffer failed to request a hearing on the issue of an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) (see Sieratzki v Sieratzki, 8 AD3d 552, 554). Under these circumstances, and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4).
Pfeffer’s remaining contention is academic in light of our determination.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Scob, LLC (2025 NY Slip Op 06057)
| Matter of American Tr. Ins. Co. v Scob, LLC |
| 2025 NY Slip Op 06057 |
| Decided on November 5, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-08898
(Index No. 505435/23)
v
SCOB, LLC, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Larkin Farrell LLC, New York, NY (William Larkin of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated December 16, 2022, SCOB, LLC, appeals from a judgment of the Supreme Court, Kings County (Richard Velasquez, J.), dated June 12, 2024. The judgment, insofar as appealed from, upon an order of the same court dated June 5, 2024, granting the motion of SCOB, LLC, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees to the extent of awarding it additional attorney’s fees in the sum of $1,100, awarded SCOB, LLC, additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of only $1,100.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against SCOB, LLC (hereinafter SCOB), pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated December 16, 2022, affirming an arbitration award entered in favor of SCOB. SCOB cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated September 27, 2023, the Supreme Court, inter alia, upon its determination that SCOB was entitled to an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), granted SCOB leave to file a motion for a determination of the amount of additional attorney’s fees to be awarded to SCOB. Thereafter, SCOB moved for an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4). The petitioner opposed the motion. In an order dated June 5, 2024, the court granted the motion to the extent of awarding SCOB additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100. Thereafter, the court, upon the order, issued a judgment, among other things, awarding SCOB additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100. SCOB appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney’s fees “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to SCOB’s contention, the Supreme Court acted within its discretion in awarding it additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100, notwithstanding SCOB’s submission of an affirmation of its counsel setting forth a fee for work expended in the sum of $4,550 (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since SCOB failed to request a hearing on the issue of an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) (see Boddie-Willis v Marziliano, 78 AD3d 978, 979). Moreover, in fixing the fee award, the court acted within its discretion in considering, inter alia, the prevailing rate for similar work and the complexity of the matter at issue (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 839-840). Under these circumstances, there is no basis to disturb the court’s award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Hereford Ins. Co. v 21 Century Chiropractic Care (2025 NY Slip Op 06022)
| Hereford Ins. Co. v 21 Century Chiropractic Care |
| 2025 NY Slip Op 06022 |
| Decided on October 30, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Moulton, J.P., Gesmer, González, Higgitt, Michael, JJ.
Index No. 150314/22|Appeal No. 5079|Case No. 2024-06498|
v
21 Century Chiropractic Care et al., Defendants, Cross Bay Orthopedic Surgery et al., Defendants-Appellants.
Roman Kravchenko, Huntington (Jason Tenenbaum of counsel), for appellants.
Goldberg, Miller & Rubin PC, New York (Victoria Tarasova of counsel), for respondent.
Order, Supreme Court, New York County (Mary V. Rosado, J.), entered October 1, 2024, which, to the extent appealed from as limited by the briefs, granted plaintiff’s cross-motion for summary judgment as against defendants Cross Bay Orthopedic Surgery, Maspeth Med Supply, Inc., Multimed Supply, Inc., NYC Best Supply Inc., and Ozone RX Inc., unanimously affirmed, with costs.
The appealing defendants argue that a failure to subscribe an transcript from an examination under oath (EUO) is a violation of a condition precedent to contract performance rather than violation of a condition precedent to coverage. However, these defendants failed to raise this argument before Supreme Court, and the issue is therefore unpreserved for our review (see Pirraglia v CCC Realty NY Corp., 35 AD3d 234, 235 [1st Dept 2006]). In any event, the argument is also unavailing, as we have previously held that a claimant’s failure to subscribe EUO transcripts did, in fact, violate a condition precedent to coverage, voiding the policy ab initio and warranting denial of the claim (see Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 185 AD3d 468, 468-469 [1st Dept 2020]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).
Likewise, defendants failed to preserve their argument that under the standard articulated in Thrasher v United States Liab. Ins. Co. (19 NY2d 159, 168 [1967]), this Court must determine whether the claimants’ failure to subscribe their EUO transcripts was willful. Even were it preserved, this argument is also unavailing. “The doctrine of willfulness, as addressed in Thrasher . . . applies in the context of liability policies, and has no application in the No-Fault context, where the eligible injured party has full control over the requirements and conditions necessary to obtain coverage” (Unitrin Advantage Ins. Co., 82 AD3d at 561). This case involves no-fault coverage, and we find no reason to depart from Unitrin Advantage.
Also unpreserved is defendants’ argument that plaintiff’s subscription demands were untimely. Furthermore, as with defendants’ other unpreserved arguments, the argument is unavailing. “An insurer must request any ‘additional verification . . . to establish proof of claim’ within 15 business days after receiving the ‘prescribed verification forms’ it forwarded to the parties required to complete them” (Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 618 [1st Dept 2018], quoting 11 NYCRR 65-3.5 [a], [b]). Plaintiff timely sent the subscription demand as the depositions for both claimants were noticed for September 20, 2021, and plaintiff made its subscription demands on October 1 and October 7, 2021; thus, only 9 and 14 business days, respectively, elapsed.
Defendants may not rely on the claimants’ submission of their subscribed EUO transcripts in June 2024 to argue that the claimants complied with plaintiff’s demand. An insurer may deny a claim if 120 days pass without a claimant providing the required verification or a valid written excuse (see 11 NYCRR 65-3.8 [b][3]). Plaintiff requested the subscriptions in October 2021, and years passed before claimants responded.
We have considered defendants’ remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 30, 2025