Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Lenox Hill Hosp. (NSUH) (2026 NY Slip Op 01052)
| Matter of American Tr. Ins. Co. v Lenox Hill Hosp. (NSUH) |
| 2026 NY Slip Op 01052 |
| Decided on February 25, 2026 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
LARA J. GENOVESI, J.P.
PAUL WOOTEN
LOURDES M. VENTURA
DONNA-MARIE E. GOLIA, JJ.
2024-04107
(Index No. 535871/22)
v
Lenox Hill Hospital (NSUH), etc., appellant.
Roman Kravchenko, Melville, NY (Jason Tenenbaum of counsel), for appellant.
Short & Bill, 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, Lenox Hill Hospital (NSUH) appeals from an order of the Supreme Court, Kings County (Heela D. Capell, J.), dated February 15, 2024. The order, insofar as appealed from, denied those branches of the motion of Lenox Hill Hospital (NSUH) which were to compel the petitioner to comply with an information subpoena, to impose a $50 fine upon the petitioner, and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees, and granted that branch of the petitioner’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of Lenox Hill Hospital (NSUH) which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the petitioner, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
In 2022, the petitioner, American Transit Insurance Company (hereinafter American Transit), commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award entered in favor of Lenox Hill Hospital (NSUH) (hereinafter Lenox Hill). Lenox Hill cross-petitioned, inter alia, to confirm the master arbitration award. In a judgment dated May 24, 2023, the Supreme Court, among other things, confirmed the master arbitration award and awarded Lenox Hill attorneys’ fees in the sum of $500. In August and September 2023, American Transit paid the sums owed to Lenox Hill, except for postjudgment interest in the sum of $192.
Lenox Hill served American Transit with an information subpoena. Thereafter, Lenox Hill moved, inter alia, to compel American Transit to comply with the information subpoena, to impose a $50 fine upon American Transit, and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees. American Transit cross-moved, among other things, pursuant to CPLR 2304 to quash the information subpoena. In an order dated February 15, 2024, the Supreme Court, inter alia, denied those branches of Lenox Hill’s motion and granted that branch of American Transit’s cross-motion. Lenox Hill appeals.
The Supreme Court did not improvidently exercise its discretion in granting that branch of American Transit’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena. “An application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious . . . or where the information sought is utterly irrelevant to any proper inquiry” (Matter of Kapon v Koch, 23 NY3d 32, 38 [alterations and internal quotation marks omitted]; see Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-332; 8206 N. Blvd, LLC v Ai Qiu Qu, 232 AD3d 833, 834). Here, American Transit established that the requested information in the information subpoena was irrelevant and that Lenox Hill served the information subpoena to harass American Transit.
However, the Supreme Court should have granted that branch of Lenox Hill’s motion which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees. The general rule is that in proceedings involving arbitration, as in other litigation, attorneys’ fees are not recoverable unless provided for by agreement or statute (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705; Myron Assoc. v Obstfeld, 224 AD2d 504). “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” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705 [internal quotation marks omitted]; see American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 15). As Lenox Hill sought payment of postjudgment interest in the sum of $192 that was overdue, Lenox Hill was entitled to an award of additional attorneys’ fees for the services necessarily performed in connection with securing payment of the overdue postjudgment interest. However, Lenox Hill was not entitled to an award of additional attorneys’ fees for the remainder of the services performed by its attorneys in connection with preparing and serving the information subpoena and prosecuting this appeal, which were not part of a legitimate attempt to collect payment of an overdue claim or portion of a claim.
Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a determination of the amount of the additional attorneys’ fees pursuant to 11 NYCRR 65-4.10(j)(4) to which Lenox Hill is entitled.
Lenox Hill’s remaining contentions are without merit.
GENOVESI, J.P., WOOTEN, VENTURA and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v MTS Acupuncture, P.C. (2026 NY Slip Op 01053)
| Matter of American Tr. Ins. Co. v MTS Acupuncture, P.C. |
| 2026 NY Slip Op 01053 |
| Decided on February 25, 2026 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
LARA J. GENOVESI, J.P.
PAUL WOOTEN
LOURDES M. VENTURA
DONNA-MARIE E. GOLIA, JJ.
2024-06668
(Index No. 536898/22)
v
MTS Acupuncture, P.C., etc., appellant.
Roman Kravchenko, Melville, NY (Jason Tenenbaum of counsel), for appellant.
Larkin Farrell, LLC, New York, NY (William Larkin and Melissa A. Marano of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to confirm a master arbitration award, MTS Acupuncture, P.C., appeals from an order of the Supreme Court, Kings County (Ingrid Joseph, J.), dated July 3, 2024. The order, insofar as appealed from, granted that branch of the petitioner’s motion which was to direct the entry of a satisfaction of judgment, denied, as academic, those branches of the motion of MTS Acupuncture, P.C., which were to compel the petitioner to comply with an information subpoena, to impose a $50 fine against the petitioner, and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees, and denied, as academic, that branch of the petitioner’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena.
ORDERED that the appeal from so much of the order as denied, as academic, that branch of the petitioner’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena is dismissed, as MTS Acupuncture, P.C., is not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 156-157); and it is further,
ORDERED that the order is modified, on the law, by deleting the provision thereof denying, as academic, that branch of the motion of MTS Acupuncture, P.C., which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees, and substituting therefor a provision denying that branch of the motion on the merits; as so modified, the order is affirmed insofar as reviewed; and it is further,
ORDERED that with one bill of costs is awarded to the petitioner.
In 2022, the petitioner, American Transit Insurance Company (hereinafter American Transit), commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award entered in favor of MTS Acupuncture, P.C. (hereinafter MTS), for no-fault benefits. MTS cross-petitioned, inter alia, to confirm the master arbitration award. In a judgment dated March 21, 2023, the Supreme Court, among other things, confirmed the master arbitration award and awarded MTS attorneys’ fees. In April and May 2023, American Transit paid the sums owed.
Thereafter, MTS served American Transit with an information subpoena. MTS moved, inter alia, to compel American Transit to comply with the information subpoena, to impose a $50 fine against American Transit, and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees. American Transit cross-moved, among other things, pursuant to CPLR 2304 to quash the information subpoena. American Transit also moved, inter alia, to direct the entry of a satisfaction of judgment. In an order dated July 3, 2024, the Supreme Court, among other things, granted that branch of American Transit’s motion which was to direct the entry of a satisfaction of judgment, denied, as academic, those branches of MTS’s motion which were to compel American Transit to comply with the information subpoena, to impose a $50 fine against American Transit, and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees, and denied, as academic, that branch of American Transit’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena. MTS appeals.
The Supreme Court properly determined that American Transit issued payments satisfying the judgment and directed the entry of a satisfaction of judgment pursuant to CPLR 5021(a)(2) (see Breck Contr. Corp. v Vecchione, 73 Misc 2d 1002, 1004 [Suffolk Dist Ct, 2d Dist]). Since the judgment was satisfied, MTS was not entitled to any additional discovery (see CPLR 5223). Moreover, the court properly denied, as academic, those branches of MTS’s motion which were to compel American Transit to comply with the information subpoena and to impose a $50 fine against American Transit.
However, the Supreme Court should have denied that branch of MTS’s motion which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees on the merits, not as academic. The general rule is that in proceedings involving arbitration, as in other litigation, attorneys’ fees are not recoverable unless provided for by agreement or statute (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705; Myron Assoc. v Obstfeld, 224 AD2d 504). “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” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705 [internal quotation marks omitted]; see American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 15). MTS was not entitled to an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10(j)(4) for its postjudgment motion practice, as no claim or portion of a claim for no-fault benefits was overdue.
MTS’s remaining contentions are without merit.
GENOVESI, J.P., WOOTEN, VENTURA and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v YSC Trinity Acupuncture, P.C. (2026 NY Slip Op 01054)
| Matter of American Tr. Ins. Co. v YSC Trinity Acupuncture, P.C. |
| 2026 NY Slip Op 01054 |
| Decided on February 25, 2026 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
LARA J. GENOVESI, J.P.
PAUL WOOTEN
LOURDES M. VENTURA
DONNA-MARIE E. GOLIA, JJ.
2024-02481
2024-04108
(Index No. 502863/22)
v
YSC Trinity Acupuncture, P.C., etc., appellant.
Roman Kravchenko, Melville, NY (Jason Tenenbaum of counsel), 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, YSC Trinity Acupuncture, P.C., appeals from two orders of the Supreme Court, Kings County (Rupert V. Barry, J.), both dated November 1, 2023. The first order, insofar as appealed from, denied that branch of the motion of YSC Trinity Acupuncture, P.C., which was to compel the petitioner to comply with an information subpoena and granted that branch of the petitioner’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena. The second order, insofar as appealed from, granted that branch of the petitioner’s motion which was to direct the entry of a satisfaction of judgment and denied the cross-motion of YSC Trinity Acupuncture, P.C., pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees.
ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.
In 2022, the petitioner, American Transit Insurance Company (hereinafter American Transit), commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award entered in favor of YSC Trinity Acupuncture, P.C. (hereinafter YSC), on YSC’s claim for no-fault benefits. YSC cross-petitioned, inter alia, to confirm the master arbitration award. A proposed judgment was prepared, among other things, awarding YSC attorneys’ fees, plus additional attorneys’ fees “in the sum of 20% of the sum of principal and interest.” In July 2022, American Transit paid YSC the sums owed. In a judgment dated November 22, 2022, the Supreme Court, inter alia, confirmed the master arbitration award and awarded YSC attorneys’ fees in the sum of $1,000, plus additional attorneys’ fees in the sum of 20% of the sum of principal and interest.
YSC served American Transit with an information subpoena. Thereafter, YSC moved, among other things, to compel American Transit to comply with the information subpoena. American Transit cross-moved, inter alia, pursuant to CPLR 2304 to quash the information subpoena. American Transit also moved, among other things, to direct the entry of a satisfaction of judgment. YSC cross-moved pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees. In an order dated November 1, 2023, the Supreme Court, inter alia, denied that [*2]branch of YSC’s motion which was to compel American Transit to comply with the information subpoena and granted that branch of American Transit’s cross-motion which was to quash the information subpoena. In a second order dated November 1, 2023, the court, among other things, granted that branch of American Transit’s motion which was to direct the entry of a satisfaction of judgment and denied YSC’s cross-motion pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees. YSC appeals from both orders.
The Supreme Court properly determined that American Transit issued payments satisfying the judgment and directed the entry of a satisfaction of judgment pursuant to CPLR 5021(a)(2) (see Breck Contr. Corp. v Vecchione, 73 Misc 2d 1002, 1004 [Suffolk Dist Ct, 2d Dist]). Since the judgment was satisfied, YSC was not entitled to any additional discovery (see CPLR 5223).
The Supreme Court did not improvidently exercise its discretion in granting that branch of American Transit’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena. “An application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious . . . or where the information sought is utterly irrelevant to any proper inquiry” (Matter of Kapon v Koch, 23 NY3d 32, 38 [alterations and internal quotation marks omitted]; see Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-332; 8206 N. Blvd, LLC v Ai Qiu Qu, 232 AD3d 833, 834). Here, American Transit established that the judgment had been satisfied and, as such, there was no reason for postjudgment discovery in an effort to collect the judgment. Moreover, the requested information in the information subpoena was irrelevant, and the information subpoena was served to harass American Transit.
The Supreme Court properly denied YSC’s cross-motion pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees. The general rule is that in proceedings involving arbitration, as in other litigation, attorneys’ fees are not recoverable unless provided for by agreement or statute (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705; Myron Assoc. v Obstfeld, 224 AD2d 504). “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” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705 [internal quotation marks omitted]; see American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 15). YSC was not entitled to an award of attorneys’ fees for its postjudgment motion practice, as no claim or portion of a claim for no-fault benefits was overdue.
YSC’s remaining contentions are without merit.
GENOVESI, J.P., WOOTEN, VENTURA and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Hicks v Unitrin Advantage Ins. Co. (2026 NY Slip Op 00748)
| Hicks v Unitrin Advantage Ins. Co. |
| 2026 NY Slip Op 00748 |
| Decided on February 11, 2026 |
| Appellate Division, Fourth 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. |
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, JJ.
989 CA 24-01895
v
UNITRIN ADVANTAGE INSURANCE COMPANY, DEFENDANT-APPELLANT.
CRISTINA CAROLLO, STATEN ISLAND, FOR DEFENDANT-APPELLANT.
Appeal from an order of the Supreme Court, Niagara County (Mario A. Giacobbe, A.J.), entered October 18, 2024, in a breach of contract action. The order granted the motion of plaintiff to strike defendant’s answer and for a default judgment and denied the cross-motion of defendant for a protective order.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this breach of contract action seeking no-fault benefits under an insurance policy issued by defendant, her automobile insurance carrier, following a motor vehicle accident. Prior to the accident, plaintiff had been employed full time, earning $10 per hour. Defendant partially denied plaintiff’s claim for lost wages, and plaintiff now seeks $24,229.20 from defendant, pursuant to no-fault insurance law. After defendant failed to respond to plaintiff’s discovery demands, including, inter alia, interrogatories, as well as her good faith demand letter, plaintiff filed a motion to compel responses pursuant to CPLR 3124. After serving incomplete discovery responses, defendant consented to a conditional preclusion order directing it to submit complete responses within 60 days. On the eve of the 60-day deadline, defendant served supplemental discovery responses, which were again incomplete, and then yet again served incomplete supplemental discovery responses after the deadline passed. Plaintiff moved for sanctions pursuant to CPLR 3126, seeking an order striking the answer and entering a default judgment in her favor, and defendant opposed the motion and cross-moved for a protective order pursuant to CPLR 3103. Supreme Court granted plaintiff’s motion for sanctions and denied defendant’s cross-motion. Defendant now appeals, and we affirm.
“It is well settled that [t]rial courts have broad discretion in supervising disclosure and, absent a clear abuse of that discretion, a trial court’s exercise of such authority should not be disturbed” (Carpenter v Browning-Ferris Indus., 307 AD2d 713, 715 [4th Dept 2003] [internal quotation marks omitted]; see Allen v Wal-Mart Stores, Inc., 121 AD3d 1512, 1513 [4th Dept 2014]). “The nature and degree of a sanction to be imposed on a motion pursuant to CPLR 3126 is within the discretion of the court, and the striking of a pleading is appropriate only upon a clear showing that a party’s failure to comply with a discovery demand or order is willful, contumacious, or in bad faith” (Almontaser v Roswell Park Cancer Inst. Corp., 239 AD3d 1432, 1432 [4th Dept 2025] [internal quotation marks omitted]; see Mosey v County of Erie, 117 AD3d 1381, 1384 [4th Dept 2014]; see generally Prattico v City of Rochester, 197 AD3d 882, 883-884 [4th Dept 2021]). “The willful or contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders” (Pezzino v Wedgewood Health Care Ctr., LLC, 175 AD3d 840, 841 [4th Dept 2019] [internal quotation marks omitted]; see generally Zletz v Wetanson, 67 NY2d 711, 713 [1986]). “Once a moving party establishes that the failure to comply with a disclosure order was willful, contumacious or in bad faith, the burden shifts to the nonmoving party to offer a reasonable excuse” (Hann v Black, 96 AD3d 1503, 1504-1505 [4th Dept 2012] [internal quotation marks omitted]).
Here, plaintiff established on her motion that defendant repeatedly failed to comply with her discovery demands and the conditional preclusion order, and that those failures were willful, contumacious, and in bad faith (see Prattico, 197 AD3d at 884; Peterson v New York Cent. Mut. Fire Ins. Co., 174 AD3d 1386, 1388 [4th Dept 2019]; cf. McGirr v Zurbrick, 217 AD3d 1462, 1465-1466 [4th Dept 2023], lv denied 41 NY3d 902 [2024]; see generally Zletz, 67 NY2d at 713). Thus, plaintiff met her initial burden on the motion, thereby shifting the burden to defendant to offer a reasonable excuse (see Allen, 121 AD3d at 1513). In opposition, defendant did not offer a reasonable excuse but, rather, contended that the discovery demands that it failed to respond to are not relevant. Contrary to defendant’s contention, the demands that it failed to respond to sought evidence of potential bias on the part of defendant’s independent medical examination physicians and thus are relevant to a proper inquiry (see Dominicci v Ford, 119 AD3d 1360, 1361 [4th Dept 2014]; see generally Salm v Moses, 13 NY3d 816, 818 [2009]). We therefore conclude that the court did not abuse its discretion in granting the motion for sanctions pursuant to CPLR 3126.
We have considered defendant’s remaining contention and conclude that it does not warrant modification or reversal of the order.
Entered: February 11, 2026
Ann Dillon Flynn
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C. (2025 NY Slip Op 07297)
| Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C. |
| 2025 NY Slip Op 07297 |
| Decided on December 24, 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. |
ANGELA G. IANNACCI, J.P.
PAUL WOOTEN
BARRY E. WARHIT
DONNA-MARIE E. GOLIA, JJ.
2023-06054
(Index No. 527962/22)
v
Atlantic Medical Care, P.C., etc., appellant.
Gary Tsirelman, P.C., Brooklyn, NY, for appellant.
Larkin Farrell, LLC, New York, NY (William R. Larkin III of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated June 27, 2022, in which Atlantic Medical Care, P.C., as assignee of Destiny Dixon, cross-petitioned to confirm the award of the master arbitrator and for an award of reasonable attorneys’ fees, Atlantic Medical Care, P.C., appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated April 20, 2023. The order granted the petition to the extent of remanding the matter to arbitration for further proceedings as set forth therein, and, in effect, denied the cross-petition.
ORDERED that the order is reversed, on the law, with costs, the petition is denied, the cross-petition is granted, the award of the master arbitrator is confirmed, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees to be awarded to the appellant.
Atlantic Medical Care, P.C. (hereinafter the provider), is the assignee of a claim for no-fault benefits for treatment it rendered to Destiny Dixon after Dixon was involved in a car accident. After the petitioner, American Transit Insurance Company (hereinafter the insurer), denied the claim, the provider submitted the claim to arbitration. In an award dated April 18, 2022 (hereinafter the April 2022 award), the arbitrator awarded the provider the full amount of its claim. The insurer appealed, and in an award of a master arbitrator dated June 27, 2022 (hereinafter the master arbitrator’s award), the master arbitrator confirmed the award.
The insurer commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The provider cross-petitioned to confirm the master arbitrator’s award and for an award of reasonable attorneys’ fees. In an order dated April 20, 2023, the Supreme Court granted the petition to the extent of remanding the matter to arbitration for the consideration of the effect of certain executive orders issued in connection with the COVID-19 pandemic and, in effect, denied the cross-petition. The provider appeals.
“[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534). “A court reviewing the award [*2]of a master arbitrator is limited to the grounds set forth in CPLR article 75″ (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802; see 11 NYCRR 65-4.10[h]). Significantly, a master arbitrator’s determination is not subject to vacatur by the courts on the basis of an error of law, including, “‘the incorrect application of a rule of substantive law,'” unless the master arbitrator’s determination is irrational (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d at 802, quoting Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232; see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 534).
Here, regardless of any errors of law the arbitrator and master arbitrator made regarding burdens of proof, the master arbitrator’s determination to affirm the April 2022 award to the provider was rationally based on the conclusion that Dixon’s minor delay in providing the insurer with notice of the accident was reasonably justified because she was a passenger in the vehicle involved in the accident and, thus, was not making a claim to her own insurance company (see 11 NYCRR 65-3.5[l]). Because the master arbitrator’s affirmance of the April 2022 award had a rational basis, and “‘[i]t is not for the court to decide whether the master arbitrator erred in applying the applicable law,'” the petition to vacate the master arbitrator’s award should have been denied and the master arbitrator’s award confirmed (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d 649, 650 [alterations and internal quotation marks omitted], quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 535; see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d at 802; Matter of Singh v Allstate Ins. Co., 137 AD3d 1046, 1047; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 70 AD3d 1043, 1043-1044).
Further, the provider is entitled to an award of reasonable attorneys’ fees (see 11 NYCRR 65-4.10[j][4]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705). Accordingly, we remit the matter to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees to be awarded to the provider (see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705).
In light of our determination, we need not reach the parties’ remaining contentions.
IANNACCI, J.P., WOOTEN, WARHIT and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
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