Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Lifeline Med. Imaging, P.C. (2025 NY Slip Op 02025)
| State Farm Mut. Auto. Ins. Co. v Lifeline Med. Imaging, P.C. |
| 2025 NY Slip Op 02025 |
| Decided on April 03, 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: Manzanet-Daniels, J.P., Moulton, Gesmer, Pitt-Burke, Michael, JJ.
Index No. 815415/21|Appeal No. 4041|Case No. 2024-00540|
v
Lifeline Medical Imaging, P.C., Defendant-Appellant.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellant.
Goldeberg, Miller & Rubin, PC, New York (Harlan R. Schreiber of counsel), for respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered July 24, 2023, which granted the motion of plaintiffs State Farm Mutual Automobile Insurance Company, State Farm Indemnity Company, State Farm Guaranty Insurance Company, and State Farm Fire and Casualty Company (collectively State Farm) for summary judgment declaring that State Farm had no obligation to pay bills submitted by defendant Lifeline Medical Imaging, P.C., unanimously reversed, on the law, without costs, the motion denied, and the declaration vacated.
In this action, State Farm sought a declaration that it was not obligated to provide no-fault coverage for various claims submitted by Lifeline, a medical provider. According to State Farm, Lifeline failed to meet a condition precedent to coverage by failing to appear for duly scheduled examinations under oath (EUOs) and by refusing to produce an individual who could provide the information needed to verify Lifeline’s claims. As a result, State Farm maintains, Lifeline’s claim to no-fault benefits is foreclosed.
Supreme Court should have denied the motion as premature, as State Farm failed to offer Lifeline an objective justification for requesting the EUOs, as required by the governing no-fault regulations (see Country-Wide Ins. Co. v Alicea, 214 AD3d 530, 531 [1st Dept 2023]; Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 473 [1st Dept 2022]). The criteria by which State Farm decided that an EUO was required is essential for Lifeline to oppose State Farm’s summary judgment motion, and those criteria are exclusively within the State Farm’s knowledge and control (see Delacruz, 205 AD3d at 473, citing 11 NYCRR 65-3.5[e]). In addition, despite State Farm’s assertion otherwise, it did not fully respond to Lifeline’s discovery request for a copy of the objective standards relied upon when the EUO was scheduled (see Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671, 671 [1st Dept. 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]; see also Ops Gen Counsel NY Ins Dept No. 02-10-14 [October 2002]; Ops Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]).
Because State Farm’s rationale for requesting the EUOs has yet to be determined, the issue of whether State Farm’s no-coverage defense is subject to preclusion cannot yet be determined.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: April 3, 2025
Reported in New York Official Reports at Nationwide Gen. Ins. Co. v Gaines (2025 NY Slip Op 01896)
| Nationwide Gen. Ins. Co. v Gaines |
| 2025 NY Slip Op 01896 |
| Decided on April 01, 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: Manzanet-Daniels, J.P., González, Shulman, Rodriguez, Pitt-Burke, JJ.
Index No. 151738/22|Appeal No. 4009|Case No. 2024-03961|
v
Raheem Gaines et al., Defendants, Emote Medical Services P.C. et al., Defendants-Respondents.
Hollander Legal Group, PC, Melville (Brian Kaufman of counsel), for appellants.
The Rybak Firm, P.L.L.C., Brooklyn (Maksim Leyvi of counsel), for respondents.
Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered April 15, 2024, which denied plaintiffs’ motion for summary judgment declaring that they have no obligation to pay no-fault benefits to defendants Emote Medical Services P.C. and Nourseen PT P.C. (together, the Providers) in connection with the underlying June 2, 2021 motor vehicle collision, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.
Plaintiffs are entitled to summary judgment because they established that the injured claimant failed to attend properly noticed independent medical examinations (IMEs), thus foreclosing coverage (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). Plaintiffs submitted the affidavit of an employee from the company that schedules the IMEs, who averred that he sent two IME notices to the claimant and that the claimant failed to appear on either date. Plaintiffs also submitted the affirmations of the IME doctor, which were consistent with the scheduling employee’s affidavit in that claimant failed to appear for the examinations.
The Providers’ argument that the IMEs were untimely is unpersuasive. Where, as here, an insurer sends “notices scheduling . . . IMEs prior to the receipt of . . . claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply” (Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]). Moreover, the failure to attend a properly noticed examination is a “coverage defense [that] appl[ies] to any claims, and is not determined on a bill by bill basis” (PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645, 646 [1st Dept 2020] [internal quotation marks omitted]).
Nor were plaintiffs required to establish timely disclaimer of coverage in light of claimant’s failure to attend the medical examinations (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424-425; see also Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: April 1, 2025
Reported in New York Official Reports at Unitrin Safeguard Ins. Co. v Manuel (2025 NY Slip Op 01727)
| Unitrin Safeguard Ins. Co. v Manuel |
| 2025 NY Slip Op 01727 |
| Decided on March 20, 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: Manzanet-Daniels, J.P., Kern, Kapnick, González, Scarpulla, JJ.
Index No. 160090/22|Appeal No. 3944|Case No. 2024-00362|
v
Jermail Manuel, et al., Defendants, Abdul-Massih Family Health Nurse Practitioner PC, et al., Defendants-Appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Goldberg, Miller & Rubin, New York (Harlan R. Schreiber of counsel), for respondent.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered January 12, 2024, which granted plaintiff ‘s motion for summary judgment declaring that it had no duty to pay no-fault insurance claims to defendants Abdul-Massih Family Health Nurse Practitioner PC, Andrew Glyptis, MD, Brefni Chiropractic Diagnostics, PC, Emote Medical Services, PC, Kuman Medical Supply Inc., Masood Chiropractic Diagnostic, P.C., and Spine Care Chiropractic, P.C. (collectively, defendant providers) arising out of the underlying accident, unanimously affirmed, without costs.
Defendant claimants claimed that they were passengers in a covered vehicle and sustained injuries during a January 9, 2022 accident, and notified plaintiff that they intended to submit claims for no-fault benefits. However, claimants never answered the complaint or otherwise appeared in this action, and plaintiff obtained a default judgment against them. The remaining defendants are medical providers that submitted tens of thousands of dollars in no-fault claims as assignees of claimants.
The court properly granted plaintiff summary judgment declaring that it had no duty to pay no-fault claims to defendant providers, as plaintiff demonstrated a founded belief that claimants’ injuries did not arise out of the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Plaintiff proffered an affidavit from a claims investigator detailing the circumstances of the accident that led to the investigation, including the magnitude of the claims submitted, the absence of any claims for damage to the vehicle, and the lack of a police report. Plaintiff submitted affidavits from the occupants of the adverse vehicle, who characterized the accident as a bumper “tap” resulting in no visible damage to the covered vehicle or injury to the driver. The occupants of the adverse vehicle also stated they were able to see into the covered vehicle and there were no passengers within (see State Farm Mut. Auto. Ins. Co. v AK Global Supply Corp., 203 AD3d 556, 558 [1st Dept 2022]). Plaintiff also pointed out “red flags” in claimants’ examinations under oath (EUOs) which undermined the credibility of their accounts (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454, 455 [1st Dept 2021]).
In opposition, defendant providers failed to raise an issue of fact, as they did not submit an affidavit of someone with personal knowledge of the legitimacy and circumstances of the accident or any other admissible evidence to rebut plaintiff’s showing (see Nationwide Gen. Ins. Co. v South, 223 AD3d 411, 411-412 [1st Dept 2024]; Ramos v New York City Hous. Auth., 264 AD2d 568 [1st Dept 1999]). Insofar as claimants asserted in their EUOs that they were passengers in the vehicle at the time of the accident, the court properly construed claimants’ default as an admission that their EUO statements were false and their injuries were not the result of the accident, as alleged by [*2]plaintiff in the complaint (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Surgicore, 195 AD3d at 455).
Although defendant providers argue that plaintiff’s summary judgment motion was premature, they failed to demonstrate that any proof necessary for their opposition was exclusively within plaintiff’s possession or that they made further attempts to obtain that information (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557, 557 [1st Dept 2007]; see also CPLR 3212[f]). Their attorney’s affirmation was insufficient in that regard (see 354 Chauncey Realty, LLC v Brownstone Agency, Inc., 213 AD3d 544, 545 [1st Dept 2023]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: March 20, 2025
Reported in New York Official Reports at American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C. (2025 NY Slip Op 01337)
| American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C. |
| 2025 NY Slip Op 01337 |
| Decided on March 12, 2025 |
| Appellate Division, Second Department |
| Duffy, J.P. |
| 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
LINDA CHRISTOPHER
LOURDES M. VENTURA, JJ.
2023-06053
(Index No. 503023/22)
v
Comfort Choice Chiropractic, P.C., etc., appellant.
APPEAL by the defendant, in an action pursuant to Insurance Law § 5106(c) for a de novo determination of claims for no-fault insurance benefits, from an order of the Supreme Court, Kings County (Debra Silber, J.), dated May 4, 2023. The order denied the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint for lack of subject matter jurisdiction and pursuant to 11 NYCRR 65.4.10(j)(4) for an award of attorney’s fees.
Gary Tsirelman, P.C., Brooklyn, NY, for appellant.
Larkin Farrell, LLC, New York, NY (Anthony R. Troise of counsel), for respondent.
OPINION & ORDER
The issue on appeal, an issue of first impression for this Court, is whether, under certain circumstances, separate and distinct arbitral awards can be treated by a court as, in effect, a single arbitral award under Insurance Law § 5106(c) and pursuant to 11 NYCRR 65-4.10(h)(1)(ii) for the purposes of determining whether the requisite $5,000 threshold establishing subject matter jurisdiction has been met to allow for a de novo review of claims for no-fault insurance benefits. As set forth below, we hold that the plain language of Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1) does not contemplate allowing separate and distinct arbitral awards to be treated as, in effect, a single arbitral award or to be combined by a court for the purposes of meeting the required monetary jurisdictional threshold under Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1)(ii). Our reading of these subdivisions of Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1)(ii) comports with the plain meaning of the words contained therein as well as the legislative intent of the statute and related authority.
Background of the Action
As is relevant to this appeal, in January 2022, the plaintiff American Transit Insurance Company commenced this action pursuant to Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1)(ii) to seek de novo review of four separate arbitral awards issued by a master arbitrator (hereinafter the arbitral awards). The four arbitral awards were issued by the same master arbitrator, following separate arbitration proceedings upon the plaintiff’s denial of payment for medical services performed by the defendant for Nancy Bayona, an individual who alleged that she was injured as a result of a motor vehicle accident in February 2019 when she was riding as a passenger in a taxi insured by the plaintiff. The arbitration proceedings arose upon the plaintiff’s denial of each of four claims submitted to it by the defendant for a repeated course of chiropractic treatment of Bayona performed by the defendant between March 8 and September 4, 2019. After each of the four arbitration proceedings, the master arbitrator issued an arbitral award in favor of the defendant, [*2]respectively, as follows: $4,767.63 for chiropractic services performed in March 2019; $4,767.63 for chiropractic services performed in March 2019 and April 2019; $4,767.63 for chiropractic services performed in April 2019 and May 2019; and $3,178.42 for chiropractic services performed in August 2019. Thereafter, pursuant to Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1)(ii), the plaintiff commenced this action seeking de novo review of the four arbitral awards.
Procedural History
The defendant moved pursuant to CPLR 3211(a)(2) to dismiss the complaint for lack of subject matter jurisdiction and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of attorney’s fees for its work in preparing its motion. The defendant contended that the complaint should be dismissed as the Supreme Court lacked subject matter jurisdiction over the four arbitral awards, since each arbitral award was less than the requisite $5,000 threshold under Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1)(ii)—the relevant statute and regulation conferring subject matter jurisdiction for de novo review of the claims by the court. The defendant also contended, inter alia, that, pursuant to 11 NYCRR 65-4.10(j)(4), it was entitled to attorney’s fees for its work in preparing its motion to dismiss. The plaintiff opposed the motion, contending, among other things, that the four arbitral awards were, in effect, a single arbitral award which, collectively, exceeded the requisite $5,000 threshold. The plaintiff contended that, since the arbitral awards involved the same parties, were decided by the same arbitrator on the same day, and essentially involved the same services, they, therefore, in effect, constituted a single arbitral award. In an order dated May 4, 2023, the court denied the defendant’s motion (hereinafter the May 2023 order). The court determined, inter alia, that the four arbitral awards, in effect, constituted a single arbitral award and also denied the defendant’s request pursuant to 11 NYCRR 65.4.10(j)(4) for an award of attorney’s fees. The defendant appeals.
For the reasons set forth below, we reverse the May 2023 order and grant the defendant’s motion to dismiss the complaint on the ground that the Supreme Court lacked subject matter jurisdiction and for an award of attorney’s fees. We also remit the matter to the Supreme Court, Kings County, for a determination of the amount of reasonable attorney’s fees to be awarded to the defendant pursuant to 11 NYCRR 65.4.10(j)(4).
The Relevant Statutes
The relevant statute and regulation governing the monetary jurisdictional threshold for a de novo action, such as this one, are Insurance Law § 5106(c) and 11 NYCRR 65-4.10.
Insurance Law § 5106(c)
Insurance Law § 5106(c) provides, in relevant part:
“An award by an arbitrator shall be binding except where vacated or modified by a master arbitrator in accordance with simplified procedures to be promulgated or approved by the superintendent. The grounds for vacating or modifying an arbitrator’s award by a master arbitrator shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules. The award of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator’s award is five thousand dollars or greater, exclusive of interest and attorney’s fees, the insurer or the claimant may institute a court action to adjudicate the dispute de novo” (emphasis added).
Pursuant to subdivision (h)(1) of 11 NYCRR 65-4.10,
“[a] decision of a master arbitrator is final and binding, except for:
“(i) court review pursuant to an article 75 proceeding; or
“(ii) if the award of the master arbitrator is $5,000 or greater, exclusive of interest and attorney’s fees, either party may, in lieu of an article 75 proceeding, institute a court action to adjudicate the dispute de novo” (emphasis added).Thus, where a master arbitrator’s award is $5,000 or greater, exclusive of interest and attorney’s fees, a court may [*3]conduct a de novo adjudication of a no-fault insurance claim.
Contrary to the determination of the Supreme Court and, as set forth herein, we find that the plain language contained in both Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1)(ii) does not allow a court to treat separate arbitral awards as, in effect, a single, combined arbitral award for the purposes of meeting the subject matter jurisdictional threshold for de novo review—even under circumstances such as those here, where the service provider was the same in each circumstance, the insurance company was the same, the service recipient was the same, and the services that were provided were the same.
Thus, as noted herein, the Supreme Court should not have treated these four separate arbitral awards as, in effect, one arbitral award that, collectively, met the $5,000 threshold for de novo review.
Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was to dismiss the complaint for lack of subject matter jurisdiction, as well as that branch of its motion which was for an award of attorney’s fees.
Statutory Interpretation
Plain Language
In matters of statutory interpretation, the primary consideration is to discern and give effect to the Legislature’s intent (see Yatauro v Mangano, 17 NY3d 420, 426). “The starting point for discerning legislative intent is the language of the statute itself” (id. at 426). “Inasmuch as the text of a statute is the clearest indicator of such legislative intent, where the disputed language is unambiguous, [courts] are bound to give effect to its plain meaning” (Makinen v City of New York, 30 NY3d 81, 85 [alternation and internal quotation marks omitted]). “[T]he text of a provision ‘is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning'” (Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120, quoting Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660; see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583). “When the plain language of the statute is precise and unambiguous, it is determinative” (Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 565; see Loehr v New York State Unified Court System, 150 AD3d 716, 720).
Here, the plain language of Insurance Law § 5106(c) expressly provides that an arbitrator’s award must meet the $5,000 threshold in order to permit a party to seek a de novo determination by commencing an action in a court as to the award. Likewise, 11 NYCRR 65-4.10(h)(1)(ii) sets forth that “if the award of the master arbitrator is $5,000 or greater, exclusive of interest and attorney’s fees, either party may, in lieu of an article 75 proceeding, institute a court action to adjudicate the dispute de novo” (emphasis added).
The use of the singular in the statute and the regulation—”arbitrator’s award” in Insurance Law § 5106(c) and “the award” in 11 NYCRR 65-4.10(h)(1)(ii)—means one, single award, not a combination or collective group (see Verneau v Consol. Edison Co. of N.Y., Inc., 37 NY3d 387, 395 [“The legislature’s choice of the singular indefinite article—’a’ claim—means the liability to be transferred is for a single claim at the time of application“]). The Legislature did not opt to use the plural, and there is no other language in either the statute or the regulation that would allow for the singular to be interpreted as encompassing the plural (cf. Powers v 31 E 31 LLC, 24 NY3d 84, 91 [“Although the 1968 Building Code refers to a ‘parapet . . . railing[,] or fence’ in the singular, it specifically provides that ‘words used in the singular include the plural, and the plural the singular’ (1968 Building Code of City of NY [Administrative Code of City of NY] §§ 27-231, 27-334)” (emphasis added)]). To the extent that the statute or the regulation do not expressly address the issue of treating multiple arbitral awards as, in effect, a singular arbitral award, “[c]ourts ‘cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the legislature did not see fit to enact'” (People v Corr, ____ NY3d ____, ____, 2024 NY Slip Op 03379, *2, quoting People v Hardy, 35 NY3d 466 [alteration and internal quotation marks omitted]). Indeed, “[i]n the absence of a statutory definition, we construe words of ordinary import with their usual and commonly understood meaning” (Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1, 7 [internal quotation marks omitted]).
Given the plain language of Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1)(ii), it was not proper for the Supreme Court to expand the scope of the legislation by [*4]construing it to allow for multiple arbitral awards to be treated as, in effect, one, or as a single, combined arbitral award in order to meet the requisite threshold (see e.g. Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d 126, 133 [“it would be improper for the court to essentially rewrite the statute to substitute ‘borrowers’ in the plural for ‘borrower’ in the singular under RPAPL 1304(2)”]).
Since the language of the statute and the regulation is plain and unambiguous, it is unnecessary to consider the legislative history (see Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d at 5). Nonetheless, as set forth herein, the history underpinning the legislation at issue lends further support to our conclusion that the singular language in the legislation referring to “award” was deliberate and that the Legislature did not contemplate that courts would invoke their authority to exercise discretion to treat multiple arbitral awards as, in effect, a singular arbitral award to meet the $5,000 statutory threshold.
Legislative History
Although the legislative history of the statute is sparse, in February 1973, then-Governor Nelson A. Rockefeller signed the Comprehensive Automobile Insurance Reparations Act into law and issued a memorandum to the then-existing members of the New York Legislature entitled, “Governor’s Memoranda, Approval of the Comprehensive Automobile Insurance Reparations Act” (hereinafter the Governor’s Memo), which provides, in relevant part, as follows:
“With the enactment of this measure, the present automobile insurance system—a system which costs too much, takes too long to pay off and delivers too little protection—will be cast aside. In its stead will be a new insurance reparations system which
“- assures that every auto accident victim will be compensated for substantially all of his economic loss, promptly and without regard to fault;
“- will eliminate the vast majority of auto accident negligence suits, thereby freeing our courts for more important tasks; and
“- provides substantial premium savings to all New York motorists.
“The passage of no-fault auto insurance is a triumph of good sense and a victory for the people. On the solid foundation of this bill, I hope that we can continue to achieve further premium savings and get even more negligence cases out of the courts in the future.
“I am, therefore, pleased to give my approval of this long overdue measure” (Governor’s Mem approving L 1973, ch 13, 1973 McKinney’s Sess Laws of NY at 2335 [emphasis added]).
The Governor’s Memo approving the no-fault system of handling claims such as the ones that were the subject of the four arbitration proceedings expressly provides that one of the primary purposes for enactment of the statute was to relieve the burden of these type of cases on the courts (see id.).
Construing the legislation at issue to allow a court to exercise its discretion in determining whether to treat separate arbitral awards as, in effect, one collective arbitral award for the purposes of establishing subject matter jurisdiction is contrary to the stated purpose of the legislation. Such construction could greatly expand the number of such cases heard by a court, rather than reduce the number of these types of cases within the court system, as anticipated by the enactment of the statutes.
Thus, even if the language in the legislation did not unambiguously state that a single arbitral award, rather than a collective set of arbitral awards, must equal or exceed $5,000 in order to meet the jurisdictional threshold establishing subject matter jurisdiction such that a court could undertake a de novo review of the arbitral award, construing the legislation as so doing supports the legislative intent to promptly resolve no-fault reimbursements, “reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505 [internal quotation marks omitted] [plaintiff medical provider demonstrated entitlement to summary judgment in a no-fault insurance action, as the provider submitted evidence that payment of no-fault benefits was overdue and proof that its claim was mailed to and received by the defendant insurer]; see Contact Chiropractic, P.C. v New York [*5]City Tr. Auth., 31 NY3d 187, 194-196 [stating that the no-fault law is aimed at ensuring prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts, and to provide substantial premium savings to New York motorists, and holding that a three-year statute of limitations, not six-year statute of limitations, applies]; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [challenged regulations reducing notice and claim filing time frames were fully consistent with the Insurance Law since “[t]he primary aims of this new system were to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists”]).[FN1]
Given that one of the intended purposes of the statute was to relieve the burden of these type of cases on the courts—as evidenced by the Governor’s Memo approving the no-fault system of handling claims such as the ones that were the subject of the four arbitration proceedings, it is evident that the singular language in the statute and regulation referring to “award” was deliberate. Thus, the Supreme Court’s treatment of the four arbitral awards as, in effect, one arbitral award, was improper and inconsistent with the legislation’s intended purpose.
Relevant Caselaw
Additionally, although not dispositive to the issue before this Court, relevant authority supports this Court’s interpretation of the statute and the regulation as well. In 2003, in Matter of Medical Socy. of State of N.Y. v Serio (100 NY2d 854), the Court of Appeals, among other things, upheld a regulation that reduced the time frame in which a motor-vehicle accident victim is required to submit a notice of claim to an insurer from 90 days to 30 days after the accident under the no-fault insurance system pursuant to Insurance Law § 5106(a) and reduced the time in which to submit proof of loss due to medical treatment from 180 days to 45 days. There, in promulgating the regulation, the Superintendent of Insurance had concluded that the proposed amendments “would better
effectuate the legislative purpose of providing prompt compensation” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d at 860) and the Court noted that a primary aim of this system was to reduce the burden on the courts (see id. at 860, citing the Governor’s Mem approving L 1973, ch 13, 1973 McKinney’s Sess Laws of NY at 2335).
Likewise, in 1997, in Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. (90 NY2d 274), the Court of Appeals also discussed the legislative intent underlying New York State’s no-fault system recognizing that “[t]o string out belated and extra bites at the apple is, on the present state of the law, inherently contradictory and unfounded under the statutes, regulations and policies that pertain to and govern this dispute, and we should not countenance such practices on the state of this record and these regulations and statutes” (id. at 286 [insurer precluded from raising an intoxication exclusion defense because it failed to deny the claim within 30 days as required by Insurance Law § 5106(a)]).
This legislative intent—to ensure prompt resolution of claims under the no-fault statutory system and to alleviate the burden of these types of cases in court (see Pommells v Perez, 4 NY3d 566, 570)—is furthered by our conclusion that the legislation does not provide the parties or a court with discretion to treat separate arbitral awards as, in effect, one arbitral award to meet the $5,000 threshold for de novo review.
Manipulating Claims
To the extent that the plaintiff posited that a narrow construction of the language of the legislation will allow for service providers to manipulate the way their claims are issued in order to avoid a court’s de novo review of an arbitral award, such a contention is specious. As an initial matter, parties are free to chart the course of their disputes regarding claims with respect to the issuance of a claim by a service provider and the submission of any disputed claims, either singularly [*6]or collectively, to arbitration. More importantly, given the stated goal of the legislation to reduce the number of these type of cases before a court, limiting the amount of cases subject to de novo review promotes the purpose of the statutes.
The statutory language and legislative history evidence that the Legislature intended that review of such cases by a court be the exception, not the norm. Further, litigants with arbitral awards totaling less than $5,000 may still seek to vacate an arbitral award of a master arbitrator through a CPLR article 75 proceeding (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [“The term ‘court appeal’ applies to a proceeding such as this, taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award”]; Matter of Custen v General Acc. Fire & Life Ins. Co., 126 AD2d 256, 258 [“it is clear that the Legislature intended the provision of CPLR article 75 to apply only to the review of the awards of master arbitrators (see, Insurance Law § 5106[c])”]).
Related Authority
Our conclusion as to the meaning of the legislation also is consistent with a comparable determination by our sister court, the Appellate Division, First Department. Although not binding on this Court, the First Department’s determination in 2021, in an action with similar facts to those here, American Tr. Ins. Co. v Health Plus Surgery Ctr., LLC (192 AD3d 497), is instructive. There, the First Department affirmed the grant of a defendant’s motion to dismiss a complaint for de novo adjudication on the ground that “[t]he medical services provided to [the] plaintiff’s insured were separate and distinct from each other, were billed separately and should not be combined to meet the $5,000 threshold for de novo review” (id. at 497-498).
In a similar vein, in 2014, in Imperium Ins. Co. v Innovative Chiropractic Servs., P.C. (43 Misc 3d 137[A], 2014 NY Slip Op 50697[U] [App Term, 1st Dept]), a case decided by the Appellate Term, First Department, which involved an action seeking, among other things, de novo review of five, separately issued, arbitral awards of a master arbitrator in favor of the defendant medical providers, that court held that none of the five arbitral awards at issue in that case met or exceeded the $5,000 threshold requirement set forth in Insurance Law § 5106 and, thus, de novo review was unavailable (see Imperium Ins. Co., 2014 NY Slip Op 50697[U]).
The Vagaries of Nisi Prius Decisions
We note that, notwithstanding the Appellate Division, First Department’s determination in American Tr. Ins. Co. v Health Plus Surgery Ctr., LLC, (192 AD3d at 497-498), the Supreme Court, New York County, has, in certain circumstances—American Tr. Ins. Co. v Surgicore of Jersey City LLC (69 Misc 3d 1216[A], 2020 NY Slip Op 51398[U] [Sup Ct, NY County]) and American Tr. Ins. Co. v Horizon Anesthesia Group, PC (2021 NY Slip Op 32654[U] [Sup Ct, NY County])—treated distinct arbitral awards to be a single, unified arbitral award for the purposes of the jurisdictional threshold of Insurance Law § 5106(c).
In Surgicore, although the Supreme Court took note of the plain language of the statute (see Surgicore, 2020 NY Slip Op 51398[U], *2 [“[Insurance Law] § 5106(c)’s reference to a master arbitrator’s award, singular, must be given effect. A plaintiff may not, therefore, aggregate various arbitral awards in order to meet the statutory minimum of $5,000”] [alteration and internal quotation marks omitted]), the court nonetheless distinguished the facts in that case from the Supreme Court determination that was later affirmed in American Tr. Ins. Co. v Health Plus Surgery Ctr., LLC, (192 AD3d at 497-498). The Surgicore court determined that distinct arbitral awards, one for a pre-operative nerve block in the amount of $517.89, and the other for the same person for an operation in the amount of $25,962.93, were more properly understood as a single unified arbitral award for the purposes of the de novo review threshold of Insurance Law § 5106(c), without citation to legislative authority to do so. The court noted that treating the awards as separate and distinct “would exalt form over substance to no purpose” (Surgicore, 2020 NY Slip Op 51398[U], *2).
And, in Horizon Anesthesia (2021 NY Slip Op 32654[U]), the plaintiff commenced an action seeking a de novo adjudication of three separate master arbitrator’s awards: an award in favor of Horizon in the amount of $1,469.99 and two awards in favor of NHSC in the amounts of $258.94 and $16,237.97. Citing American Tr. Ins. Co. v Health Plus Surgery Ctr., LLC, (192 AD3d at 497), the Horizon Anesthesia court concluded that clearly the award in favor of Horizon did not meet the $5,000 threshold, and the plaintiff could combine awards to meet the same. However, the court denied that branch of the defendants’ cross-motion which was to dismiss the complaint insofar as asserted against NHSC, since once of the two arbitral awards, in the amount $16,234.97 issued against that defendant, met the threshold. The court essentially disregarded the statutory language [*7]and found that there was no reason to separate the other arbitral award of $258.94 against that defendant (see Horizon Anesthesia, 2021 NY Slip Op 032654[U]).
In contrast, in American Tr. Ins. Co. v Unicorn Acupuncture, P.C. (2023 NY Slip Op 33008[U] [Sup Ct, Kings County]), the Supreme Court, Kings County, declined to treat as a single unified arbitral award, three distinct arbitral awards for acupuncture treatment performed on the same client by the same service provider over a period of 2½ years. There, the individual arbitral awards were each less than the $5,000 jurisdictional threshold: one, in the sum of $2,838.63, pertained to medical services billed between May 1 and December 27, 2017; the second, in the sum of $4,349.67, pertained to medical services billed between March 1, 2018 and February 28, 2019; and the third, in the sum of $1,811.80, pertained to medical services billed between March 15 and November 19, 2019. There, despite the plain language of the legislation and its express purpose, the court reasoned that there was no bright-line rule as to when separate arbitral awards should be treated as, in effect, a single, unified arbitral award, and determined that “the billing period, and the length of time the services provided are [factors to assess] in whether the arbitration awards should be considered distinct from each other” (id. at *4). The court, noting that the arbitral awards were for separate treatments performed over a period of 2½ years, found that those facts distinguished the case from Surgicore (2020 NY Slip Op 51398[U]), wherein the Supreme Court, New York County, determined that separate arbitral awards for services that were performed in one day were, in effect, one arbitral award and not separate and distinct arbitral awards (see Unicorn Acupuncture, 2023 NY Slip Op 33008[U], *4).
Although each of the nisi prius determinations of these Supreme Court cases yielded different results, a common theme in each is the discretion each Supreme Court exercised in order to deviate from the express and intended purpose of the legislation, essentially carving out exceptions to the legislation and creating a set of factors to consider in deciding whether to carve out an exception to the legislation. In each instance, the courts did so without citing any legislative authority or approval.
The Arbitral Awards are Separate and Distinct and Do Not Meet the Requisite Jurisdictional Threshold
Here, although the four arbitral awards pertained to a repeated course of treatment performed by the same service provider over a period of six months, each treatment was billed separately and each arbitral award was an amount less than $5,000. Also, of note, unlike Surgicore (2020 NY Slip Op 51398[U]), wherein the Supreme Court, New York County, treated the separate arbitral awards regarding payments for a single procedure that was performed on the same day as, in effect, a unified arbitral award to meet the statutory threshold for de novo review, this case does not deal with a singular procedure being performed on the same day.
Rather, here, like the three separate arbitral awards for acupuncture services performed over a period of 2½ years in Unicorn Acupuncture (2023 NY Slip Op 33008[U] [Supreme Court declined to consider three arbitral awards for acupuncture services performed over the period of 2½ years as a single, unified arbitral award]), at issue is a repeated course of multiple treatments over an extended period of time.
In sum, although the legislation at issue plainly requires that a single arbitral award meet the monetary threshold for de novo review by a court, and one of the intended purposes of the legislation is to reduce the number of such cases in New York State’s court system, the Supreme Court here, like other nisi prius courts in New York, in effect, delegated to itself the authority to carve out an exception to the legislation.
Given the plain language of the legislation, as well as its express intended purpose, we find no such authority has been provided by the Legislature to do so.
Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(2) to dismiss the complaint for lack of subject matter jurisdiction.
Attorney’s Fees
Insurance Law § 5106(a) provides, in part, that “if a valid claim [for no-fault benefits] or portion was overdue, the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” 11 NYCRR 65-4.10(j)(4), provides in pertinent part: “The attorney’s fee for services rendered in connection with a court adjudication of dispute de novo, as provided in section 5106(c) of the Insurance Law, or in a court appeal from [*8]a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter.”
In light of our determination herein, pursuant to 11 NYCRR 65.4.10(j)(4), the Supreme Court also should have granted that branch of the defendant’s motion which was for an award of attorney’s fees (see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168).
The plaintiff’s remaining contention is without merit.
Conclusion
Based on the plain language of Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1)(ii), the legislative intent of the statute, and related persuasive authority, we hold that the four arbitral awards at issue here should not have been treated as, in effect, a single arbitral award in order to meet the $5,000 jurisdictional threshold. Therefore, the defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction and for an award of attorney’s fees should have been granted, and we remit the matter to the Supreme Court, Kings County, for a determination of the amount of reasonable attorney’s fees to be awarded to the defendant pursuant to 11 NYCRR 65.4.10(j)(4) (see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168, 1168 [affirming vacatur of a master arbitrator’s determination and remitting the matter to determine the petitioner’s reasonable attorney’s fees for the appeal]; Matter of GEICO Ins. v AAAMG Leasing Corp., 148 AD3d 703, 705 [reversing an order and judgment and granting that branch of the cross-petition which was for attorney’s fees]).
Accordingly, the order is reversed, on the law, the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint for lack of subject matter jurisdiction and pursuant to 11 NYCRR 65.4.10(j)(4) for an award of attorney’s fees is granted, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorney’s fees to be awarded to the defendant.
MILLER, CHRISTOPHER and VENTURA, JJ., concur.
ORDERED that the order is reversed, on the law, with costs, the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint for lack of subject matter jurisdiction and pursuant to 11 NYCRR 65.4.10(j)(4) for an award of attorney’s fees is granted, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorney’s fees to be awarded to the defendant.
Darrell M. Joseph
Clerk of the Court
Footnote 1: Notably, the legislation was also enacted to ensure that motor-vehicle accident victims receive prompt payment for their economic loss (see Insurance Law § 5106[c]; Governor’s Mem approving L 1973, ch 13, 1973 McKinney’s Sess Laws of NY at 2335). Circumscribing the scope of cases that are subject to de novo review by a court ensures that most of the arbitral awards subject to this legislation are final such that there will be prompt resolution and payment of the arbitral awards. Expanding de novo review of arbitral awards by treating certain, separate arbitral awards as, in effect, a single arbitral award for the purpose of the legislation’s jurisdictional threshold could foil this intended purpose.
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C. (2025 NY Slip Op 01363)
| Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C. |
| 2025 NY Slip Op 01363 |
| Decided on March 12, 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
LINDA CHRISTOPHER
LOURDES M. VENTURA, JJ.
2023-08357
(Index No. 513224/22)
v
Comfort Choice Chiropractic, P.C., etc., appellant.
Gary Tsirelman, P.C., Brooklyn, NY, for appellant.
Larkin Farrell, LLC, New York, NY (Anthony R. Troise of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated February 11, 2022, Comfort Choice Chiropractic, P.C., appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated August 10, 2023. The order and judgment, insofar as appealed from, denied that branch of the cross-motion of Comfort Choice Chiropractic, P.C., which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of attorney’s fees.
ORDERED that the order and judgment is reversed insofar as appealed from, on the law, with costs, that branch of the cross-motion of Comfort Choice Chiropractic, P.C., which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of attorney’s fees is granted, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorney’s fees to be awarded to Comfort Choice Chiropractic, P.C.
In May 2022, American Transit Insurance Company (hereinafter American Transit) commenced this proceeding against Comfort Choice Chiropractic, P.C. (hereinafter Comfort Choice), pursuant to CPLR article 75 to vacate an arbitration award, dated February 11, 2022, entered in favor of Comfort Choice. As relevant to this appeal, Comfort Choice opposed and cross-moved, inter alia, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of attorney’s fees. By order and judgment dated August 10, 2023, the Supreme Court denied the petition and confirmed the arbitration award but also denied that branch of the cross-motion of Comfort Choice. Comfort Choice appeals from so much of the order and judgment as denied that branch of its cross-motion.
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.” “[T]he superintendent’s regulations provide that an attorney’s fee for services rendered in connection with ‘a court appeal from a master arbitration award . . . shall be fixed by the court adjudicating the matter'” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705, quoting 11 NYCRR 65-4.10[j][4]).
Here, the Supreme Court should have granted that branch of Comfort Choice’s cross-motion which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of attorney’s fees (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703).
Accordingly, the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorney’s fees to which Comfort Choice is entitled (see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168; Matter of GEICO Ins. v AAAMG Leasing Corp., 148 AD3d at 705).
DUFFY, J.P., MILLER, CHRISTOPHER and VENTURA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Allstate Ins. Co. v Kapeleris (2025 NY Slip Op 00839)
| Allstate Ins. Co. v Kapeleris |
| 2025 NY Slip Op 00839 |
| Decided on February 13, 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. |
VALERIE BRATHWAITE NELSON, J.P.
HELEN VOUTSINAS
CARL J. LANDICINO
JAMES P. MCCORMACK, JJ.
2021-09241
(Index No. 605068/15)
v
Stacey Kapeleris, appellant.
The Law Office of Jason Tenenbaum, P.C., Melville, NY, for appellant.
Law Office of Peter C. Merani, P.C., New York, NY (Adam J. Waknine 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 (Diccia T. Pineda-Kirwan, J.), dated December 10, 2021. The judgment, insofar as appealed from, upon a decision of the same court dated November 19, 2021, made after a nonjury trial, is in favor of the defendant and against the plaintiff on the defendant’s counterclaim in the principal sum of only $25,109.88 and awarding the defendant attorneys’ fees in the sum of only $76,856.67.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The facts underlying this action are summarized in our decision and order on a prior appeal (see Allstate Ins. Co. v Kapeleris, 183 AD3d 626). After a nonjury trial, a judgment dated December 10, 2021, was entered in favor of the defendant and against the plaintiff on the defendant’s counterclaim for no-fault insurance benefits in the principal sum of $25,109.88 and awarding the defendant attorneys’ fees in the sum of $76,856.67. The defendant appeals, contending that the awards are inadequate.
“‘In reviewing a trial court’s findings of fact following a nonjury trial, this Court’s authority is as broad as that of the trial court and includes the power to render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses'” (Gelaj v Gelaj, 216 AD3d 1082, 1083, quoting O’Brien v Dalessandro, 43 AD3d 1123, 1123; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499).
The evidence in the record establishes that the amount of the Supreme Court’s award on the defendant’s counterclaim for no-fault insurance benefits in the principal sum of $25,109.88 was proper. Since the defendant, after being billed directly by her medical providers, reached a settlement with them and paid them the total sum of $25,109.88 to satisfy the medical bills, she incurred reasonable expenses for medical treatment in the total sum of $25,109.88 and was not responsible for the original amount billed to her (see Allstate Ins. Co. v Kapeleris, 183 AD3d at 627-629; cf. Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086).
Further, the award of attorneys’ fees in the sum of $76,856.67 was a provident exercise of discretion (see Insurance Law § 5106[a]; Ins Dept Regs [11 NYCRR] § 65-4.10[j][4]).
BRATHWAITE NELSON, J.P., VOUTSINAS, LANDICINO and MCCORMACK, JJ., concur.
2021-09241 DECISION & ORDER ON MOTION
Allstate Insurance Company, respondent,
v Stacey Kapeleris, appellant.
(Index No. 605068/15)
Appeal from a judgment of the Supreme Court, Nassau County, dated January 10, 2021. Motion by the appellant to strike stated portions of the respondent’s brief on the ground that they refer to matter dehors the record. By decision and order on motion of this Court dated March 3, 2023, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the motion is denied.
BRATHWAITE NELSON, J.P., VOUTSINAS, LANDICINO and MCCORMACK, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Liberty Mut. Ins. Co. v Mercado (2025 NY Slip Op 00631)
| Liberty Mut. Ins. Co. v Mercado |
| 2025 NY Slip Op 00631 |
| Decided on February 04, 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: Friedman, J.P., Gesmer, González, Scarpulla, Pitt-Burke, JJ.
Index No. 650161/20 Appeal No. 3617 Case No. 2023-06400
v
Dilia Escano Mercado et al., Defendants, Bronx Medical Health Provider et al., Defendants-Appellants, Chang Health Physical Therapy PC, et al., Defendants.
The Rybak Firm, PLLC, Brooklyn (Michael Kroopnick of counsel), for appellants.
Correia, Conway & Stiefeld, White Plains (Nicole E. Duke of counsel), for respondents.
Order, Supreme Court, New York County (Debra A. James, J.), entered on or about November 24, 2023, which granted plaintiffs’ motion for summary judgment and adjudged and declared that plaintiffs are not obligated to honor or pay claims for reimbursement to defendants Bronx Medical Health Provider and Burke Physical Therapy PC, as assignees of defendants Dilia Mercado, Jose Mercado, and Miguel Angel Santiago (the individual defendants), with respect to no-fault benefits for an alleged motor vehicle collision that occurred on April 15, 2019, unanimously affirmed, with costs.
The individual defendants were allegedly involved in a vehicle collision with another vehicle. According to plaintiffs, which are the no-fault insurance providers, no injuries were reported at the scene, and no citations were issued. After the collision, the individual defendants sought medical treatment from defendant medical providers for their alleged injuries; the medical providers then sought and were denied reimbursement as assignees of the individual defendants.
Plaintiffs established their entitlement to summary judgment by providing a specific objective justification for conducting examinations under oath (EUOs) of the individual defendants (11 NYCRR 65-3.5[e]; see Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 473 [1st Dept 2022]). Although the explanation that plaintiffs provided was not particularly extensive, it was sufficient to establish the justification and to establish that defendants had not requested these EUOs arbitrarily or as a matter of routine. We note that plaintiffs moved for summary judgment after the close of discovery, during which they had disclosed to defendants the basis for their requests (cf. Delacruz, 205 AD3d at 473).
Furthermore, Supreme Court correctly concluded that, with respect to these defendants, plaintiffs established that they sent timely requests for the EUOs. Thus, the individual defendants’ failure to appear for EUOs constitutes a breach of a condition precedent to coverage and voids the policy ab initio (see Unitrin Advantage Ins. Co. v Dowd, 194 AD3d 507, 508 [1st Dept 2021]).
We have considered defendants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: February 4, 2025
Reported in New York Official Reports at Hereford Ins. Co. v Interdependent Acupuncture PLLC (2025 NY Slip Op 00021)
| Hereford Ins. Co. v Interdependent Acupuncture PLLC |
| 2025 NY Slip Op 00021 |
| Decided on January 02, 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: Kern, J.P., Kennedy, Gesmer, Higgitt, Michael, JJ.
Index No. 152296/19 Appeal No. 3388 Case No. 2024-02707
v
Interdependent Acupuncture PLLC, et al., Defendants, Shelly Sarbensarpong, et al., Defendants-Appellants.
Law Office of Yuriy Prakhin, P.C., Brooklyn (Yuriy Prakhin of counsel), for appellants.
Goldberg, Miller & Rubin, P.C., New York (Victoria Tarasova of counsel), for respondent.
Order, Supreme Court, New York County (David B. Cohen, J.), entered April 11, 2024, which denied the motion of defendants-appellants Shelly Sarben-Sarpong and Corey Hargrove to vacate orders and judgments, entered August 14, 2019 and February 17, 2023, granting plaintiff’s motions for entry of default judgments against them and declaring that they were not entitled to no-fault coverage, unanimously affirmed, without costs.
The court providently exercised its discretion in denying appellants’ motion to vacate the default judgments pursuant to CPLR 5015(a)(1) because appellants failed to demonstrate a reasonable excuse for their defaults (CPLR 5015[a][1]; see Towncenter Partners LLC v A.A. Castro Complex Litig., 203 AD3d 528, 529 [1st Dept 2022]). Appellants offered no explanation as to why they failed to respond to the complaint despite conceding that they received service of process. Their counsel’s suggestion that they were confused by the pendency of their separate personal injury action, in which they were represented by counsel, does not constitute a reasonable excuse (see Buckley v Nicklous, 210 AD3d 575, 575 [1st Dept 2022]). Appellants provide no support for their argument that plaintiff should have notified their counsel, who represented them in a separate personal injury action against plaintiff’s insured, of the commencement of this declaratory judgment action. In any event, appellants did not provide any affidavits to explain why they did not provide the pleadings in this action to their counsel after they were served. Since appellants’ proffered excuse for their defaults was not reasonable, the court did not need to consider whether they showed a potentially meritorious defense to the declaratory judgment action (see Besler v Uzieri, 179 AD3d 628, 628-629 [1st Dept 2020]).
As for appellants’ argument that the default judgments are a nullity because plaintiff failed to make an evidentiary showing as required by CPLR 3215(f), the Court of Appeals has held that a failure to submit the proof required by CPLR 3215(f) is “not a jurisdictional defect” and therefore “does not justify treating the judgment as a nullity” (Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203-204 [1st Dept 2013]). Appellants’ remedy was to move pursuant to CPLR 5015(a)(1) to vacate the default judgments, which required them to show a reasonable excuse for their defaults (see id.; Frazier v 811 E. 178th St. Realty Corp., 183 AD3d 413, 414 [1st Dept 2020]). In any event, plaintiff did submit admissible evidence supporting its assertion that it properly disclaimed coverage based on a founded belief that the treatment appellants received was not medically necessary or causally related to the subject motor vehicle accident (see State Farm Fire & Cas. Co. v AA Acupuncture Serv., P.C., 217 AD3d 643 [1st Dept 2023]).
We have considered appellants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME [*2]COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: January 2, 2025
Reported in New York Official Reports at Quick v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 06268)
| Quick v State Farm Mut. Auto. Ins. Co. |
| 2024 NY Slip Op 06268 |
| Decided on December 12, 2024 |
| Appellate Division, Third 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. |
CV-24-0456
v
State Farm Mutual Automobile Ins. Co., Respondent.
Before:Clark, J.P., Pritzker, Lynch, Fisher and Powers, JJ.
Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for appellant.
Abrams, Cohen & Associates, New York City (Frank Piccininni of counsel), for respondent.
Powers, J.
Appeal from an order of the Supreme Court (Sharon A. Graff, J.), entered February 16, 2024 in Ulster County, which, among other things, granted defendant’s motion for summary judgment dismissing the complaint.
In January 2021, plaintiff was operating a Peterbilt tractor trailer in the course of his employment with Casa Builders, Inc. when he was injured. The tractor trailer had been leased from FTC Leasing, LLC, who had insured the vehicle through defendant. In March 2021, plaintiff applied for no-fault benefits through defendant and specified on this application that, although he was eligible for workers’ compensation benefits, Casa Builders did not hold workers’ compensation insurance. After seeking wage verification, defendant sent plaintiff a letter indicating that there is a question as to whether he is eligible for workers’ compensation coverage for the injury and, subsequently, denied the application on the basis that plaintiff was injured while in the course of employment. Therefore, according to defendant, plaintiff’s primary source of recovery for basic economic loss was through workers’ compensation. Defendant further advised plaintiff to provide verification if plaintiff’s application for workers’ compensation benefits was denied so defendant may then consider recovery pursuant to the no-fault insurance policy. Plaintiff challenged this denial on the basis that his employer did not possess workers’ compensation coverage and, further, had found him to be an independent contractor. Defendant, in response, instructed plaintiff to submit a 1099 form if he was an independent contractor but, otherwise, “to file a claim with the New York State Insurance Fund.”
Based upon the foregoing, plaintiff commenced the instant action alleging that defendant had wrongfully denied his no-fault insurance claim which had sought recovery of lost wages, medical expenses and other economic losses sustained because of the accident. Following joinder of issue, defendant moved for summary judgment dismissing the complaint on the basis that plaintiff was required to seek workers’ compensation benefits either through the Workers’ Compensation Board or the Uninsured Employers’ Fund before seeking no-fault coverage. Plaintiff cross-moved claiming that he could not have applied for workers’ compensation benefits because, as indicated in his application for no-fault benefits, his employer did not carry workers’ compensation coverage. Supreme Court granted defendant’s motion for summary judgment finding that, because plaintiff had failed to seek benefits through the Uninsured Employers’ Fund prior to applying for no-fault benefits, the instant action was improper. Plaintiff appeals.
“As a general rule, when an employee is injured in the course of his or her employment, his or her sole remedy against the employer lies in his or her entitlement to a recovery under the Workers’ Compensation Law” (Pringle v AC Bodyworks & Sons, LLC, 145 AD3d 1410, 1411 [3d Dept 2016] [[*2]internal quotation marks, brackets and citations omitted; see Workers’ Compensation Law § 11). However, ” ‘[w]here an employer fails to secure workers’ compensation coverage, an injured employee can simultaneously pursue both workers’ compensation benefits and a personal injury action’ ” (Rueda v Elmhurst Woodside, LLC, 116 AD3d 1027, 1027-1028 [2d Dept 2014], quoting Matter of Ocasio v Sang Soo Kim, 307 AD2d 662, 663 [3d Dept 2003], lv denied 3 NY3d 612 [2004]). The parties do not contest that plaintiff’s employer did not have workers’ compensation coverage at the time plaintiff sustained his injuries, and, therefore, plaintiff was able to commence a plenary action against his employer (see Rosario v Montalvo & Son Auto Repair Ctr., Ltd., 149 AD3d 885, 886 [2d Dept 2017]).
As is relevant here, plaintiff commenced a separate personal injury action against the employer that has since settled (NY St Cts Elec Filing [NYSCEF] Doc No. 1, summons and complaint, Doc No. 36, stipulation of discontinuance, in Quick v Casa Builders, Inc., Sup Ct, Ulster County, index No. EF2021-1112). However, plaintiff’s recovery in that action was limited inasmuch as Insurance Law § 5104 precludes recovery for basic economic loss “in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state” (Insurance Law § 5104 [a]). As a result, plaintiff sought no-fault insurance benefits through defendant to recover his basic economic loss. The gravamen of plaintiff’s application for benefits was that because his employer did not possess workers’ compensation coverage at the time of his accident, he was free to pursue recovery of basic economic loss through no-fault insurance benefits. For these same reasons, plaintiff maintains that his application for benefits was improperly denied and, therefore, Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint and, similarly, in denying his own cross-motion.
“In accordance with the No-Fault Law, automobile insurers, like [defendant], must provide up to $50,000 of coverage for an insured’s ‘basic economic loss’ ” (Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016], quoting Insurance Law § 5102 [a]). However, because no-fault benefits and workers’ compensation benefits are meant to cover generally the same types of loss, “payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle” may be reduced by the “[a]mount[ ] recovered or recoverable on account of such injury under . . . workers’ compensation benefits” (Insurance Law § 5102 [b] [2]; see Dietrick v Kemper Ins. Co. [American Motorists Ins. Co.], 76 NY2d 248, 251 [1990]; Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co., 224 AD3d 428, 430 [1st Dept 2024]; see also 11 NYCRR 65-3.16[*3][a] [9]). Based upon this, “[a]s between no-fault and workers’ compensation, the latter is primary and an injured party may not elect between workers’ compensation benefits and no-fault benefits” (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 268 [1st Dept 1991] [internal quotation marks and citations omitted]). This is so even when the employer has failed to provide workers’ compensation coverage as the Uninsured Employers’ Fund steps into the shoes of the carrier by acting as a surety (see generally Workers’ Compensation Law § 26-a; Matter of Salvia v Nutritional Frontiers LLC, 221 AD3d 1376, 1377 [3d Dept 2023], lv denied 41 NY3d 910 [2024]; Matter of McCray v CTS Enters., Inc., 166 AD3d 1356, 1357 [3d Dept 2018]; Matter of Passero v Uninsured Employers’ Fund, 154 AD3d 1037, 1038 [3d Dept 2017]; Zeng Xi Chen v Spitz, 77 AD3d 529, 529 [1st Dept 2010]).
The fact that plaintiff’s employer did not possess workers’ compensation coverage at the time of the accident does not render him ineligible for Workers’ Compensation benefits; instead it changes the potential source of payment. As such, plaintiff was required to seek workers’ compensation benefits as the primary source of payment for his basic economic loss, and only thereafter could he seek payment of no-fault benefits with his recovery correspondingly reduced by what he received through workers’ compensation.[FN1]
“It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998] [internal quotation marks and citations omitted]). The determination plaintiff seeks would not only run contrary to the exclusivity provision contained within Workers’ Compensation Law § 11 but, also, to the very purpose for which the Uninsured Employers’ Fund was created. Accordingly, Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint, and consequently properly denied plaintiff’s cross-motion (cf. Matter of Global Liberty Ins. Co. of N.Y. v North Shore Family Chiropractic, PC, 178 AD3d 525, 526 [1st Dept 2019]; Alam v Taxi Wheels To Lease, Inc., 35 AD3d 771, 771 [2d Dept 2006]; see generally Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 455 [2d Dept 1980]).
Clark, J.P., Pritzker, Lynch and Fisher, JJ., concur.
ORDERED that the order is affirmed, with costs.
Footnote 1: Although plaintiff does not directly contest that he was injured in the course of his employment, the Court of Appeals has made clear that “[t]he Workers’ Compensation Board . . . has primary jurisdiction over the issue of the availability of coverage” and “the court should not express an opinion as to the availability of compensation” (Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]). Accordingly, any determination with respect to plaintiff’s eligibility for benefits must first be made by the Workers’ Compensation Board (see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752, 754 [2d Dept 2009]; O’Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d 633, 634 [2d Dept 2008]; Nunes v Window Network, LLC, 54 AD3d 834, 835 [2d Dept 2008]). By doing so, “the possibility of contrary decisions in different forums which may result in the denial of intended first party benefits to a claimant [is diminished] and successive legal challenges on the same issues [are eliminated,] resulting in a more timely resolution and more efficient use of both administrative and judicial resources while protecting the panoply of rights afforded [workers’ compensation] claimants” (Matter of Esposito v Petruzzi, 278 AD2d 698, 701 [3d Dept 2000]).
Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. (2024 NY Slip Op 05193)
| State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. |
| 2024 NY Slip Op 05193 |
| Decided on October 22, 2024 |
| 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: Webber, J.P., Friedman, Mendez, Shulman, O’Neill Levy, JJ.
Index No. 160355/20 Appeal No. 2863 Case No. 2023-03172
v
Equinox Physical Therapy, P.C., et al., Defendants, Grand Medical Supply Corp. et al., Defendants-Appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for respondent.
Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about April 14, 2023, which granted plaintiff insurer’s motion for summary judgment on its causes of action for declaratory judgment, unanimously affirmed, with costs.
Plaintiff established its prima facie entitlement to summary judgment on its first cause of action for declaratory relief by submitting evidence that claimants failed to appear at properly scheduled examinations under oath (EUOs), thus vitiating the insurance policy (see PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). A claim specialist submitted an affidavit of merit and affidavits of service for the EUO notices sent to the claimants’ residences directing them to appear for two separate EUOs. In addition, plaintiff submitted an attorney’s affirmation, based on the attorney’s personal knowledge, averring that the claimants failed to appear for their scheduled EUOs and attaching deposition transcripts memorializing the claimants’ nonappearance at the EUOs. Because the record demonstrates that plaintiff mailed its notices to take the claimants’ EUOs before it received defendants’ no-fault verification forms, plaintiff did not have to comply with the 15-day time frame for sending EUO notices set forth in 11 NYCRR 65-3.5 (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City LLC, 195 AD3d 454, 455 [1st Dept 2021]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 469 [1st Dept 2016]).
In opposition, defendants failed to raise a triable issue of fact. Defendants offer nothing more than speculation to support their argument that they need further discovery, nor does the record support the argument. Defendants have also not submitted an affidavit to establish that essential facts may exist but cannot yet be stated (CPLR 3212[f]; 354 Chauncey Realty, LLC v Brownstone Agency, Inc., 213 AD3d 544, 545 [1st Dept 2023]).
Because the policy is vitiated, State Farm did not have to establish that it timely denied defendants’ claims (see PV Holding Corp., 188 AD3d at 430).
We have considered defendants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 22, 2024