Maxim Orthopaedics PLLC v MVAIC (2026 NY Slip Op 51282(U))

Reported in New York Official Reports at Maxim Orthopaedics PLLC v MVAIC (2026 NY Slip Op 51282(U))

Maxim Orthopaedics PLLC v MVAIC

2026 NY Slip Op 51282(U) [89 Misc 3d 1246(A)]

Decided on July 2, 2026

Civil Court of the City of New York, Richmond County

Robert J. Helbock, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Richmond County

Decided on July 2, 2026

Index No. CV-720612-25/RI

Robert J. Helbock, J.

[*1]

Upon the foregoing cited papers, the decision on Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment is as follows:

Plaintiff, Maxim Orthopaedics PLLC (hereafter referred to as “Plaintiff”), as assignee of Brigido Umana (hereafter referred to as “Assignor”), commenced this action against the defendant, MVAIC (hereafter referred to as “Defendant”), to recover assigned first-party automobile insurance (hereafter referred to as “No-Fault”) benefits for medical treatment provided to the Assignor.

The Defendant moves for an order (i) pursuant to CPLR 3013, 3212(b), and 3211(a)(1), granting summary judgment on the ground that the bills were timely and properly denied, and (ii) for such other relief as the Court deems appropriate. Plaintiff submitted opposition to the motion by way of a cross-motion, discussed below. Defendant submitted an affirmation in reply to the initial motion and in opposition to Plaintiff’s cross-motion. The motion was argued, and the Court reserved decision.

The underlying claims concern eight bills submitted by Plaintiff for services rendered to the Assignor. It is undisputed that five of the bills were submitted after the 45-day time frame prescribed by 11 N.Y.C.R.R. §65-1.1.^FN1 The Defendant alleges that it never received three of the eight bills. The bills are outlined below:

Bill received May 24, 2024, for date of service January 11, 2024, in the amount of $198.28,

Bill received November 1, 2024, for date of service March 28, 2024, in the amount of $70.24,

Bill received November 1, 2024, for date of service April 23, 2024, in the amount of $412.72,

Bill received November 1, 2024, for date of service June 18, 2024, in the amount of $75.00,

Bill received November 1, 2024, for date of service July 16, 2024, in the amount of [*2]$75.00,

The five bills described above are collectively referred to hereafter as the “Late Bills”

Bill allegedly not received for date of service April 16, 2024, in the amount of $70.24

Bill allegedly not received for date of service April 23, 2024, in the amount of $3,857.19

Bill allegedly not received for date of service May 21, 2024, in the amount of $75.00

Late Bills Discussion

Each of the Late Bills were submitted after the 45-day requirement set forth in 11 N.Y.C.R.R. §65-1.1. Defendant argues that because these bills were submitted in violation of the regulation, its denials were timely and proper. Plaintiff, in opposition, argues that Defendant failed to conduct a supervisory review of the claim to determine whether there was any reasonable justification for the delay. Plaintiff contends that the bills were initially sent to Geico in error and were later sent to MVAIC upon learning it was the proper carrier.

The Supreme Court, Appellate Term has held that MVAIC may establish its prima facie entitlement to summary judgment by submitting evidence showing that it denied plaintiff’s no-fault claims as untimely because they were submitted more than 45 days after services were rendered; that its denials informed plaintiff that MVAIC would excuse the delay if plaintiff provided a “reasonable justification” for the late submission; and that plaintiff did not submit any additional materials in response to the denials (Carniol v. MVAIC, 62 Misc 3d 148[A] [NY App. Term. 2019], citations omitted). Cover letters stating that claims were initially sent to another carrier do not constitute justification for late submission to MVAIC; there must be an explanation for why the claims were first submitted elsewhere and/or proof that, after learning MVAIC was the proper carrier, the claims were submitted within a reasonable time (Id).

Here, each of the Late Bills were submitted more than 45 days after the services were rendered. Each denial informed the Assignor that late submission would be excused if a reasonable justification was provided.^FN2 There is nothing before the Court to demonstrate that any additional materials were submitted in response to these denials. Accordingly, the Court finds that Defendant has met its prima facie burden for summary judgment with respect to each of the Late Bills.

Plaintiff, in turn, fails to raise a triable issue of fact. The cover letters do not explain why the claims were initially sent to Geico, nor do they state when Plaintiff learned that MVAIC was the proper carrier. Moreover, even viewing the facts in the light most favorable to Plaintiff and assuming Plaintiff learned that MVAIC was the proper carrier on April 25, 2024 (the date of the cover letter attached to the first bill), at least two of the bills were sent to Geico after that date.

Therefore, Defendant’s motion for summary judgment is granted with respect to each of the Late Bills.

Bills Allegedly Not Received

The Defendant alleges non-receipt of three of the bills in suit, which the Plaintiff in opposition alleges were mailed.

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Progressive Cas. Ins. Co. v. Metro Psychological [*3]Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 114 AD3d 33, 36 [2d Dept 2013], aff’d, 25 NY3d 498, 35 N.E.3d 451 [2015]). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Progressive at 694, citing Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 679 [2 Dept 2001]). “However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive at 694). To establish proper mailing, the movant must present proof of mailing that includes a description of the process that identifies the documents, how the envelope is addressed by the automated system or employee to insure the address is correct, “how and when the envelopes, once sealed, weighed and affixed with postage using the automated system, were transferred to the care and custody of the United States Postal Service or some other carrier to be delivered” (Progressive Cas. Ins. Co. v. Infinite Ortho Prods., Inc., 127 AD3d 1050, 1052 [2d Dept 2015]).

The Court has reviewed the proof of mailing stamped by the USPS as well as the affidavit of Marina Prosalova, billing administrator for the Plaintiff, offered by the Plaintiff. These required elements were provided in Ms. Prosalova’s affidavit. Therefore, Ms. Prosalova’s affidavit sufficiently establishes, as a matter of law, that the bills were timely and properly mailed to the Defendant.

With regards to these bills, Plaintiff has “made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue” (Mary Immaculate Hosp. v Allstate Inc. Co., 5 AD3d 742 [2d Dept 2004] citing Insurance Law §5196[a]; 11 NYCRR 65.15[g][3]; St Luke’s Roosevelt Hosp. V American Tr. Inc. Co., 1 AD3d 498 [2nd Dept., 2003]).

The Defendant has failed to rebut Plaintiff’s prima facie showing. Therefore, the Plaintiff’s cross-motion for summary judgment is granted with respect to each of these bills, to the extent the Plaintiff has established its prima facie burden of proof.

Conclusion

Accordingly, it is hereby:

ORDERED, that Defendant’s Motion for Summary Judgment is GRANTED and the causes of action for the bills for the dates of service of: January 11, 2024, March 28, 2024, April 23, 2024, June 18, 2024 and July 16, 2024 are dismissed, and Plaintiff’s Cross-Motion for Summary Judgment for those bills is DENIED, but as to the remaining bills; and it is further

ORDERED, that Defendant’s Motion for Summary Judgment is DENIED and Plaintiff’s Cross-Motion for Summary Judgment is GRANTED to the extent the Plaintiff has met its prima facie burden of proof regarding the bills for dates of services May 21, 2024, in the amount of $75.00; April 23, 2024, in the amount of $3,857.19; and April 16, 2024, in the amount of $70.24 and it is further

ORDERED, that the matter is referred to trial regarding the affirmative defenses raised by the Defendant to the remaining bills.

This is the Decision and Order of the Court.

Delacruz-Gomez v New Jersey Mfrs. Ins. Co. (2026 NY Slip Op 50999(U))

Reported in New York Official Reports at Delacruz-Gomez v New Jersey Mfrs. Ins. Co. (2026 NY Slip Op 50999(U))

Delacruz-Gomez v New Jersey Mfrs. Ins. Co.

2026 NY Slip Op 50999(U) [89 Misc 3d 1219(A)]

Decided on June 26, 2026

Civil Court of the City of New York, Kings County

Sandra Elena Roper, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Kings County

Decided on June 26, 2026

Index No. CV-732586/22/KI

Sandra Elena Roper, J.

[*1]

Upon the foregoing cited papers, and after oral arguments, the Decision/Order on Defendant’s Motion for Summary Judgment, Plaintiff’s Motion for Default Judgment and advanced Plaintiff’s Cross-Motion for Summary Judgment are as follows:

Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment are rejected as a matter of law as procedurally improper as issue had not been joined. On November 21, 2022, Plaintiff rejected Defendant’s Answer dated November 8, 2022, and moved for Default Judgment. Thus, issue was not joined rendering both motions for summary judgment procedurally improper as a matter of law. Plaintiff’s attempt to argue an inference of joinder of issue by its filing the Cross-Motion for Summary Judgment and Defendant serving an Answer although rejected by Plaintiff, nevertheless, operates as a notice of appearance for the proposition to establish Defendant’s waiver of jurisdictional defense is rejected. Once an Answer is rejected, nothing that may flow from that Answer can be considered. Plaintiff may not opportunistically argue that the Answer must be considered in one respect, as notice of [*2]appearance to waive jurisdictional defense, whereas simultaneously rejecting consideration of the Answer as responsive pleading for joinder of issue. Ultimately, Plaintiff bears the initial burden of establishing jurisdiction. Plaintiff’s affidavit of service, which purports to effectuate service pursuant to VTL §253, fails to establish personal jurisdiction over Defendant, a nonresident corporate insurer, neither an owner nor operator in a No-Fault action. “Therefore, as a matter of law, this method of service is improper on its face and void ab initio. Plaintiff failed to properly effectuate service of process divesting This Court of jurisdiction over Defendant” (A to Z Supply Servs., Inc. v. 21st Century Ins. Co., 2025 NY Slip Op 51887(U), [Civ Ct, Kings County 2025], citing Pedro Torres-Jimenez MD, P.C. v Am. Access Cas. Co., 2025 NY Slip Op 50358 *3 [U] [Civ Ct, Kings County 2025]). In furtherance of the administration of justice, This Court rejects and rebukes the use of this improper on its face and void ab initio method of service as a litigation tactic.

For the foregoing reasons, Plaintiff’s Motion for Default Judgment is DENIED. The case is dismissed without prejudice. Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment are denied as moot.

This constitutes the Decision and Order of This Court.

Date: June 26, 2026

Hon Sandra Elena Roper, JCC

Clinton Med. Off. P.C. v Progressive Max Ins. Co. (2026 NY Slip Op 26094)

Reported in New York Official Reports at Clinton Med. Off. P.C. v Progressive Max Ins. Co. (2026 NY Slip Op 26094)

Clinton Med. Off. P.C. v Progressive Max Ins. Co.

2026 NY Slip Op 26094

Decided on June 22, 2026

Civil Court of the City of New York, Richmond County

Mark Kagan, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Civil Court of the City of New York, Richmond County

Decided on June 22, 2026

Index No. CV-709029-25/RI

Mark Kagan, J.

[*1]

The defendant Progressive Max Insurance Company has moved pursuant to CPLR §3212 seeking summary judgement dismissing the action on the grounds the assignor failed to appear for an examination under oath. The plaintiff has opposed the motion. Papers were submitted by the parties and arguments held. Pursuant to CPLR §2219(a) the court has reviewed all the papers submitted including NYSCEF document numbers 1-22 and now renders the following determination.

On July 3, 2024 the assignor Charles #3 Staley was allegedly injured in an accident. The plaintiff assignee provided medical services on his behalf and seeks $604.97 in payment for those services. Specifically, the plaintiff sought $101.93 for services rendered on November 4, [*2]2024, $377.28 for services rendered on November 12, 2024 and $125.76 for services rendered on November 25, 2024. The defendant, the insurer of the assignor refused payment of these bills on the grounds the assignor failed to appear for an examination under oath [EUO]. The plaintiff commenced this action seeking payment. The defendant duly answered. The defendant has now moved seeking summary judgement dismissing the action arguing there are no questions of fact the action should be dismissed. As noted, the motion is opposed.

Conclusions of Law

Concerning first party no-fault benefits, an insurer may move seeking summary judgement dismissing the action on the grounds additional verification information was sought from the plaintiff and not provided (Eagle Surgical Supply Inc., v. Travelers Indemnity Company, 29 Misc 3d 129(A), 958 NYS2d 307 [Supreme Court Appellate Term Second Department 2010]).

The defendant seeks summary judgement on the grounds the assignor failed to appear at scheduled examinations under oath. To succeed on a motion for summary judgement for the failure of an individual to appear for an EUO an insurer only needs to demonstrate that it duly scheduled at least two EUO’s, the party failed to appear and a timely denial of the claim was issued based upon the failure to appear (Northern Medical Care P.C. v. Nationwide Affinity Insurance Company, 84 Misc 3d 136(A), 255 NYS3d 555 [Appellate Term Second Department 2024]). Further, an affirmation submitted by an attorney who was scheduled to conduct the EUO and who stated she has first-hand knowledge the party failed to appear is sufficient to establish the party failed to appear (MAZ Chiropractic P.C. v. State Farm Insurance Company, 85 Misc 3d 135(A), 229 NYS3d 814 [Appellate Term Second Department 2025]). Thus, an insurance company is entitled to dismiss the lawsuit when they make a prima facie showing EUO letters were mailed and the party failed to appear for an EUO. Such showing can be an affidavit from someone, including defendant’s counsel, describing the standard practices and procedures for mailing EUO letters and representing that such practices and procedures were followed in this case. This is proof that such letters were mailed (One RX Chemist Inc., v. Nationwide Mutual insurance Company, 87 Misc 3d 132(A), 244 NYS3d 415 [Appellate Term First Department 2025]).

The defendant has presented sufficient evidence that at least two notices were sent to assignor and that he failed to appear for an EUO (see, Affirmation of Justin Carriveau [NYSCEF Doc. No. 6]). Specifically, notices were sent on August 23, 2024 for an EUO scheduled for September 5, 2024 and a notice was sent on September 10, 2024 for an EUO scheduled for September 26, 2024 and the assignor failed to appear at any of these scheduled EUOs. The plaintiff does not dispute the assignor failed to appear for a scheduled EUO. Rather, the plaintiff argues the denial letter sent was deficient since it did not provide any elaboration why the denial was issued other than to state the claim was denied because policy conditions were violated (see, Denial of Claim Form [NYSCEF Doc. No. 9]). Thus, three denials were mailed to the plaintiff corresponding to the three bills submitted. Two of the denial letters were dated December 2, 2024 and one was dated December 11, 2024. They all indicated that the claims were denied because the assignor failed to submit to a medical examination in violation of the insurance contract’s duties and conditions. The defendant argues that pursuant to Unitrin Advantage Insurance Company v All of NY, Inc., 158 AD3d 449, 71 NYS3d 16 [1st Dept 2018] the denials were deficient and hence invalid and consequently the defendant has never validly denied the claims and summary judgement must be denied.

In Unitrin (supra) the court held that a denial which only mentioned one scheduled EUO date but inadvertently failed to include the other scheduled EUO date “did not sufficiently apprise the provider as to the reason for denial” (id). As noted in New Chiropractic Care P.C. v. Nationwide Insurance Company of New York, 67 Misc 3d 1226(A), 128 NYS3d 150 [Civil Court Kings County 2020] the conclusion in Unitrin (supra) has been squarely rejected by the Appellate Term Second Department which has held that “a denial of claim form based upon the failure to appear for scheduled EUOs need not set forth the dates of the EUOs” (see, JYW Medical P.C. v. IDS Property Insurance Company, 58 Misc 3d 134(A), 92 NYS3d 703 [Appellate Term Second Department 2017], see, also, Aries Chiropractic P.C. v. Ameriprise Insurance Company, 66 Misc 3d 130(A), 120 NYS3d 555 [Appellate Term Second Department 2019]). The plaintiff argues that this court is bound by the pronouncements of other Departments in the absence of a ruling from the Second Department (Mountain View Coach Lines, Inc., v. Storms, 102 AD2d 663, 476 NYS2d 918 [2d Dept., 1984]). Therefore, this court is bound by Unitrin (supra) and hence the denial was insufficient.

The Appellate Division Second Department has never issued a specific ruling whether the failure to incudes the dates of the EUO’s renders the denial insufficient. However, that court has, more broadly, addressed the sufficiency of denial letters. In Nyack Hospital v. Metropolitan Property and Casualty Insurance Company, 16 AD3d 564, 791 NYS2d 658 [2d Dept., 2005] the court held that a denial of a claim must comply with the requirements of 11 § NYCRR 65-3.4(c)(11) which provides the prescribed claim form that must be utilized, namely NYS form N-F-10. The court further elaborated and noted that the claim form cannot be missing information and must be complete. The court, citing earlier authority, explained that the denial will be invalid if it “is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (id). Thus, providing an invalid basis for the denial of the claim renders the denial fatally defective (St. Barnabas Hospital v. Allstate Insurance Company, 66 AD3d 996, 887 NYS2d 657 [2d Dept., 2009]). Likewise, leaving portions of the denial form blank renders the denial form defective (Lexington Acupuncture P.C. v. State Farm Insurance Company, 12 Misc 3d 90, 820 NYS2d 385 [Appellate Term Second Department 2006]). Further, omitting critical information in the denial form such as the dates the claims were received and the amounts and dates of the claims is “tantamount to no denial at all” (A.B. Medical Services PLLC v. Utica Mutual Insurance Company, 12 Misc 3d 139(A), 824 NYS2d 760 [Appellate Term Second Department 2006]). Thus, the Second Department adheres to the requirements mandated by the Form NF-10 when considering whether a denial is sufficient. This may depart from the stricter requirements imposed by Unitrin (supra) which demands that the denial letter contain far greater detail.

In truth, a careful consideration of Unitrin (supra) and its progeny reveals it may not have the vitality the plaintiff insists it carries. First, Unitrin (supra) has only been cited one time to support the proposition a denial letter must contain the dates of any unattended EUO (see, Liberty Mutual insurance Company v. Ezra Supply Inc., 2020 WL 5091202 [Supreme Court New York County 2020]). More significantly, it may only apply within the unique facts of Unitrin (supra) itself, namely where the denial letter specifically included one date of an unattended EUO but failed to include the other unattended EUO. This partial explanation was misleading and consequently invalid (see, State Farm Fire and Casualty Company v. AA Acupuncture C.I.R. P.C., 2021 WL 3290829 [Supreme Court New York County 2021], reversed on other grounds, State Farm Fire and Casualty Company v. AA Acupuncture C.I.R. P.C., 217 [*3]AD3d 643, 192 NYS3d 113 [1st Department 2023]). Thus, a general denial that the assignor failed to attend EUO’s would be sufficient under Unitrin (supra). The court in Unitrin (supra) held the denial invalid because it specifically omitted a date when an EUO was unattended. This gave the provider the false impression there had been only one failed appearance at an EUO. Of course, a proper denial is only valid following two failed appearances at an EUO (Northern Medical Care P.C. v. Nationwide Affinity Insurance Company of America, 84 Misc 3d 136(A), 225 NYS3d 535 [Appellate Term Second Department 2024]).

Therefore, the court is not bound by the decision in Unitrin (supra). Consequently, the denials sent in this case were proper and thus, the motion seeking summary judgement dismissing this lawsuit is granted.

So ordered.

Dated: June 22, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC

Liberty RX Inc v Liberty Mut. Ins. Co. (2026 NY Slip Op 50992(U))

Reported in New York Official Reports at Liberty RX Inc v Liberty Mut. Ins. Co. (2026 NY Slip Op 50992(U))

Liberty RX Inc v Liberty Mut. Ins. Co.

2026 NY Slip Op 50992(U) [89 Misc 3d 1218(A)]

Decided on June 18, 2026

Civil Court of the City of New York, Richmond County

Javier Ortiz, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Richmond County

Decided on June 18, 2026

Index No. CV-711756-25/RI

Javier Ortiz, J.

[*1]

Recitation, as required by CPLR §2219(a), of the papers considered in review of this Motion:

Papers

D’s Motion & Supporting Documents 5-40

P’s Affirmation in Opposition 42

P’s Supplemental Submission of Decisions 45

Upon the foregoing cited papers and after oral argument, the Decision and Order on [*2]Defendant’s motion for summary judgment is as follows:

Defendant’s motion is DENIED. The Court has reviewed the record and finds that the admissible evidence presented is insufficient at the current case posture to establish Defendant’s defenses that the assignor made material representations, the injuries did not arise out of a covered loss, and/or that the alleged accident was a staged, intentional act for which there is no insurance coverage (Affirmative Defenses 16, 17, and 18).

The matter shall proceed to trial on June 22, 2026 in Part 58VT, as the Court finds that there are triable issues of fact with respect to Defendant’s defenses of material misrepresentation, non-covered loss, and staged/intentional accident.

The Honorable Sandra Elena Roper recently found in the context of a no-fault insurer’s motion for summary judgment asserting a staged accident that “[t]he prima facie burden to viably satisfy a staged accident motion for summary judgment is indeed a high one.” (Med. Diagnostics Ctr. v Ameriprise Ins. Co., 88 Misc 3d 1225(A), 2026 NY Slip Op 50235(U) [Civ Ct, Kings County 2026] [citations omitted].)

Consistent with that, the Court finds that Defendant’s admissible evidence—including its investigator affirmation (NYSCEF No. 8)—is insufficient at this stage of the proceedings for the Court to find that Defendant has established its material misrepresentation, lack of covered loss, and/or staged accident defenses by a preponderance of the evidence. (See V.S. Med. Servs., P.C. v Allstate Ins. Co., 25 Misc 3d 39, 41 [2d Dept 2009] [applying preponderance of the evidence standard in such circumstance].) “[I]t is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof).” (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012]. See also Med. Diagnostics Ctr., 88 Misc 3d 1225(A) [“Where there is but a scintilla of a material issue of fact defeats a motion for summary judgment, obviating the shifting of the burden to non-movant for rebuttal”; further expressing concerns regarding finding a staged accident at the summary judgment stage where the conspiratorial implications “are not merely civil in nature but also expose[] the [participants in the alleged conspiracy] to criminal prosecution”].)

Inconsistencies in witness testimony raise issues of credibility but are, standing alone, insufficient to support a conclusion that an accident was staged as a matter of law. (See Parisien v Erie Ins. Co. of NY, 88 Misc 3d 1241(A), 2026 NY Slip Op 50400(U) [Civ Ct, Richmond County 2026], citing State Farm Mut. Auto. Ins. Co. v Allmed Merch. and Trading, Inc., 2022 NY Slip Op 30624(U) [Sup Ct, NY County Feb. 28, 2022].) Much of the evidence that Defendant presents to suggest that a staged accident occurred here is through showing inconsistencies in various examinations under oath (EUOs). (See Pavlova v Allstate Ins. Co., 62 Misc 3d 1207[A], 2019 NY Slip Op 50016[U], *3 [Civ Ct, Kings County 2019] [“Upon a review of the EUO transcript, the court notes that while [the witnesses’] testimonies were vague and at times, inconsistent, their recollections are not sufficient to demonstrate that a purposeful collision occurred. Even in considering whether circumstantial evidence exists to demonstrate that there may have been a purposeful collision, the vague testimonies of the parties are not sufficient.”] There is no witness admission here that the accident was staged or intentional. “Although defendant demonstrated that it possessed a ‘founded belief that the alleged injuries do not arise out of an insured incident,’ defendant failed to submit sufficient evidence in admissible form to establish that conclusion as a matter of law, so as to warrant dismissal of the complaint.” (Parisien v Esurance, 81 Misc 3d 127(A), 2023 NY Slip Op 51235(U) [App Term, 2d Dept [*3]2023], quoting Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997].)

The matter shall therefore proceed to trial on June 22, 2026 in Part 58VT.

This constitutes the Decision and Order of the Court.

Dated: June 18, 2026

Hon. Javier Ortiz, J.C.C.

Kings County Civil Court

Terra Chiropractic, P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 50953(U))

Reported in New York Official Reports at Terra Chiropractic, P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 50953(U))

Terra Chiropractic, P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 50953(U) [89 Misc 3d 1215(A)]

Decided on June 17, 2026

Civil Court of the City of New York, Kings County

Sandra Elena Roper, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Kings County

Decided on June 17, 2026

Index No. CV-734799-22

Sandra Elena Roper, J.

[*1]

Following the virtual trial in this matter held before me on June 17, 2026, I hereby find the following:

The prior order in this matter dated October 16, 2025 (Epstein, J.) granted Defendant’s prior motion for summary judgment to the extent that Defendant has established the timely and proper mailing of its NF-10 denial of claim form and granted Plaintiff’s prior cross-motion for summary judgment to the extent that Plaintiff established the timely and proper mailing of the subject bill. That order also found a triable issue of fact as to the timely and proper mailing of Defendant’s examination under oath (“EUO”) requests but did not address the element of Defendant’s defense as to whether Plaintiff’s assignor failed to appear for the EUOs. For the reasons stated on the record, the Court held that the prior order did not relieve Defendant of its burden at trial of demonstrating the assignor’s alleged nonappearances because the order was silent in that regard.

At the time of trial, Plaintiff rested in light of its prima facie burden having been established due to the prior order in this matter, and Defendant presented the witness testimony of its employee as to her handling of the subject EUO requests.

The Court finds that Defendant witness’ testimony was sufficient to establish the timely and proper mailing of the EUO letters, but was insufficient to establish, in admissible form and based upon personal knowledge, that the assignor failed to appear for the EUOs. Defendant’s argument that based upon witness’ testimony of receipt of the statement on the record renders it a “memorandum of record” an exception to the Deng holding was rejected. Charles Deng Acupuncture, P.C. v. Titan Ins. Co., 74 Misc 3d 137(A) (App. Term, 2d Dep’t, 2022). Deng’s dicta did not establish elements that would convert an otherwise inadmissible statement on the record pursuant to the hearsay rule to an admissible “memorandum of record”. Thus, Defendant’s [*2]argument was not compelling to invoke this stated exception in dicta. Nevertheless, over Plaintiff’s objection, the statement on the record was admitted not for the truth contained therein, which would absolutely be hearsay, but rather based upon the witness’ testimony that she physically received the statement on the record. This Court analogized its limited admissibility for the highly constricted purpose as thus: a witness testifies to having received a bag with contents contained therein, the court admits the bag as the bag that was received by the witness, but not admitted for the truth of the contents contained within the bag for evidentiary purposes, which must be proven independently, separately and apart. In this instant case, the physical corpus or tangible thing of the statement on the record (the bag so to speak) is admitted. Whereas the truthfulness of the statements contained within the four corners of the statement on the record must be proven independently, which Defendant failed to so do. Defendant’s alternative argument that upon admitting the physical tangible statement on the record, the witness’ testimony that as upon EUO no show, the usual customary business practice which she followed was to send out another EUO request, which she did, was also rejected. This Court opined that Defendant’s argument fails to account that although that testimony may be considered for the first missed EUO, it would not extend to the second EUO no show. The EUO no show defense requires two missed EUOs. Accordingly, Defendant failed to establish its defense of EUO no show.

In sum, not having proffered admissible evidence in the form of testimony by one with personal knowledge of the alleged EUO nonappearances or otherwise, Defendant did not meet its burden of establishing all required elements of its defense.

For the foregoing reasons, Judgment is directed in favor of Plaintiff in the amount of $670.00, together with statutory interest commencing from the filing of this litigation, statutory attorney’s fees, costs, and disbursements.

This constitutes the Decision and Order of the Court.

Dated: June 17, 2026

Brooklyn, New York

Hon. Sandra Elena Roper, J.C.C.

Acupuncture Care, PC. v State Farm Mut. Auto. Ins. Co. (2026 NY Slip Op 50991(U))

Reported in New York Official Reports at Acupuncture Care, PC. v State Farm Mut. Auto. Ins. Co. (2026 NY Slip Op 50991(U))

Acupuncture Care, PC. v State Farm Mut. Auto. Ins. Co.

2026 NY Slip Op 50991(U) [89 Misc 3d 1218(A)]

Decided on June 11, 2026

Civil Court of the City of New York, Richmond County

Javier Ortiz, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Richmond County

Decided on June 11, 2026

Index No. CV-769317-24/RI

Javier Ortiz, J.

[*1]

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this Motion:

D’s Motion & Supporting Docs 8-16

P’s Affirmation in Opposition 18

D’s Affirmation in Reply 19

Upon the foregoing cited papers, the Decision/Order on Defendant’s motion for summary judgment is GRANTED IN PART and DENIED IN PART for the reasons discussed as follows:

The coder affirmation of Mercy Acuna, RN, BSN, CPC (NYSCEF No. 14) indicates that an additional $65.60 is owed to Plaintiff as follows: (1) $26.24 for dates of service 03/18/24-03/27/24 ($186.18 found to be owing pursuant to coder affirmation, but only $159.94 paid per the denial); (2) $26.24 for dates of service 04/01/24-04/11/24 ($81.30 found to be owing pursuant to coder affirmation, but only $55.06 paid per the denial); and (3) $13.12 for dates of [*2]service 05/08/24-05/16/24 ($40.65 found to be owing pursuant to coder affirmation, but only $27.53 paid per the denial).^FN1

While Plaintiff submitted a rebuttal affirmation of its billing and collections specialist (see NYSCEF No. 18), the Court finds that affirmation does not adequately rebut the relevant points made in Ms. Acuna’s thorough 27-page discussion of the application of the fee schedule to the bills at issue here.

As such, Plaintiff is granted judgment for $65.60 plus interest, attorney’s fees, and filing fees. The Complaint is otherwise dismissed. All trial dates are hereby vacated.

This constitutes the Decision and Order of the Court.

DATED: June 11, 2026

Hon. Javier Ortiz, J.C.C.

Kings County Civil Court

Empire State Rehab PT PC v Liberty Mut. Ins. Co. (2026 NY Slip Op 50894(U))

Reported in New York Official Reports at Empire State Rehab PT PC v Liberty Mut. Ins. Co. (2026 NY Slip Op 50894(U))

Empire State Rehab PT PC v Liberty Mut. Ins. Co.

2026 NY Slip Op 50894(U) [89 Misc 3d 1210(A)]

Decided on June 4, 2026

Civil Court of the City of New York, Richmond County

Mark Kagan, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Richmond County

Decided on June 4, 2026

Index No. CV-752314-25/RI

Mark Kagan, J.

[*1]

The defendant Liberty Mutual Insurance Company of New York has moved pursuant to CPLR §3212 seeking summary judgement dismissing the action on the grounds the accident was staged. The plaintiff has opposed the motion. Pursuant to CPLR §2219(a) the court has reviewed all the papers submitted including NYSCEF document numbers 1-44 and now renders the following determination.

On August 4, 2024 a vehicle driven by Rakesh Sookralli was involved in an incident with a vehicle that left the scene. The assignor, Crystal Dunbar, a passenger in the vehicle driven by Sookralli, sought No-Faults benefits in the amount of $2,133.69. Sherry Leak was also a passenger in the vehicle. The defendant, the insurer of the assignor refused the payment on the grounds the incident was staged. The plaintiff commenced this action seeking payment and the defendant duly answered. The three occupants all provided examinations under oath and testified concerning the accident. The defendant has now moved seeking summary judgement dismissing the action arguing there are no questions of fact the action should be dismissed. They assert there is evidence which establishes as a matter of fact that the incident was staged. As [*2]noted, the motion is opposed.

Conclusions of Law

Earlier cases disagreed on the proper standard of proof necessary to establish a collision was staged. In JSI Expert Service v. Liberty Mutual Insurance Company, 7 Misc 3d 1009(A), 801 NYS2d 235 [Civil Court Kings County 2005] the court held proof of a fraudulent and hence a staged incident must be established by clear and convincing evidence. The court applied this standard based upon the general rule concerning establishing fraud. However, in A.B. Medical Services PLLC v. State Farm Mutual Auto Insurance Company, 7 Misc 3d 822, 795 NYS2d 843 [Civil Court Kings County 2005] the court explained that a staged collision had been characterized as a defense based upon lack of coverage, not fraud per se, and a higher measure of proof was not required. The split was resolved and the proper standard is a preponderance of the evidence. As the court explained in V.S. Medical Services P.C., v. Allstate Insurance Company, 25 Misc 3d 39, 889 NYS2d 360 [Appellate Term Second Department 2009] “defendant was not required to establish that the subject collision was the product of fraud, which would require proof of all of the elements of fraud, including scienter by clear and convincing evidence” (id) Rather, an insurer could “establish this defense by a preponderance of the evidence” (id).

Therefore, “an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance” (National General Insurance Online Inc., v. Blasco, 210 AD3d 786, 177 NYS3d 350 [2d Dept., 2022]). In truth, the intentional nature of the event does not have to be rooted in efforts to defraud an insurance company, rather, any reason the event is intentional will foreclose the availability of No-Fault benefits (see, V.S. Medical Services P.C., v. Allstate Insurance Company, 11 Misc 3d 344, 811 NYS2d 886 [Civil Court Kings County 2006]). In seeking summary judgement dismissing the action on the grounds the accident was staged the insurance company bears the burden of presenting sufficient proof by a preponderance of the evidence in admissible form establishing the absence of any material fact (Repwest Insurance Company v. Sasan Family Chiropractic P.C., 2016 WL 4000626 [Supreme Court New York County 2016]). Thus, mere unsubstantiated suspicions are insufficient to establish the necessary proof required to conclude an accident was staged (AB Medical Services PLLC v. Eagle Insurance Company, 3 Misc 3d 8, 776 NYS2d 434 [Appellate Term Second Department 2003]).

The issue that must be addressed is the modicum of evidence necessary to establish, beyond any question of fact, that the incident was staged. Of course, without an admission by one of the participants, an unlikely scenario, it is difficult to imagine direct evidence supporting such a scheme (V.S. Medica Services P.C. v. Allstate Insurance Company, (supra). Therefore, proof of a staged incident will necessarily be based upon circumstantial evidence (American Transit Insurance Company v. Nexray Medical Imaging P.C., 78 Misc 3d 1242(A), 188 NYS3d 916 [Supreme Court Kings County 2023]). The circumstantial evidence presented in this case consists of contradictions between the passengers and the driver of the vehicle provided in examinations under oath as well as assertions the injuries alleged could not have been caused by the collision. Thus, the defendant submitted the affirmation of Colin Krick, a senior investigator in the special investigative unit for Liberty Mutual. The affirmation states that there were four factors which prompted an investigation the incident may have been staged. First, the incident was consistent with other intentional events. Second, the two passengers allegedly injured hired the same attorney and treated at the same medical facility. Third, the medical treatment was inconsistent with a low velocity collision and lastly, the damage to the vehicle was inconsistent [*3]with the medical treatment received. The remainder of the affirmation highlights the inconsistencies and contradictions in testimony provided at examinations under oath by the three participants in the vehicle at the time of the accident, namely the driver Rakesh Sookralli and the passengers Sherry Leak and Crystal Dunbar.

First, other than the conclusory assertions regarding the medical treatment sought and the extent of the damage to the vehicle and the severity of the collision, the affirmation does not explain in any manner how the injuries alleged are indicative of a staged event. Surely, no conclusive evidence has been established in this regard eliminating all questions of fact. Indeed, the affirmation does not address these facts at all, other than to note they existed. Therefore, the mere fact the defendant believes the injuries were inconsistent with the impact of the collision does not establish, beyond any question, that the accident was staged.

Concerning the inconsistencies noted in the testimonies provided, it is true that inconsistencies between various occupants of a vehicle can be used to support the contention the incident was staged or fraudulent (State Farm Fire and Casualty Company v. Advanced Recovery Equipment and Supplies LLC, 2022 NY Slip Op 32805(U) [Supreme Court New York County 2022]). However, the inconsistencies must relate to the subject accident. Thus, in Pavlova v. Allstate Insurance Company, 62 Misc 3d 1207(A), 112 NYS3d 871 [Supreme Court Kings County 2019] the court conceded there were inconsistencies between the testimonies of the various individuals that were involved in the accident, however, there was no explanation how those inconsistencies demonstrated the accident was staged. The court specifically noted that the “defendant did not proffer any affidavit from an investigator who can elaborate on why the inconsistencies demonstrate intentional losses. Without a cogent and detailed investigative summary of this type of alleged intentional loss and solely relying on the transcripts alone in this matter, the testimonies given do not rise to the level of a founded belief that the accident was staged” (id). Again, in State Farm Mutual Auto Insurance Company v. Allmed Merchandise and Trading Inc., 2022 WL 596992 [Supreme Court New York County 2022] the court held that inconsistencies surely raised issues of credibility but they were, standing alone, insufficient to support the conclusion the accident was staged as a matter of law. Further, in Hereford Insurance Company v. All Nations DME Corp., 2026 WL 147211 [Supreme Court New York County 2026] the court held that even inconsistencies about the accident, such as the time and place and the whereabouts of the participants prior to the accident does not in any way demonstrate the accident was fraudulent.

The affirmation of Mr. Krick concludes that “Liberty formed a founded belief that the incident of August 4, 2024, was an intentional act consistent with targeting livery drivers, and that CRYSTAL DUNBAR, and Sherry Leak intentionally misrepresented material facts in furtherance of the fraudulent scheme of targeting unsuspecting livery drivers by deliberately staging an incident to procure monetary gain and valuable medical services” (see, Affirmation of Colin Krick, ¶24 [NYSCEF Doc. No. 9]). That conclusion does not explain how the founded belief was reached, other than to declare that the inconsistencies compel such a result. Thus, a “founded belief” of a staged event is insufficient to obtain summary judgement (KOI Medical Acupuncture v. State Farm Insurance Company, 16 Misc 3d 1135(A), 847 NYS2d 902 [District Court Nassau County 2007]). Indeed, the affirmation of Mr. Krick is solely based on inconsistencies between the occupants of the vehicle at the time of the collision. While the inconsistencies speak for themselves and surely raise questions whether the occupants are being truthful, the investigator provides no measure by which the insurer seeks to establish the incident [*4]was staged as a matter of fact. For example, as noted in the investigator’s affirmation, Sherry Leak testified that Crystal Hudson worked as a flight attendant while Crystal Hudson herself testified that she had not worked as a flight attendant in several years (see, Affirmation of Colin Krick, ¶19 [NYSCEF Doc. No. 9]). While that inconsistency, if not adequately explained, surely raises questions of fact as well as credibility, it provides no support to leap to the conclusion the incident was, therefore, staged. Moreover, numerous inconsistencies found within testimonies provided by participants do not accumulate and reach some point where a definitive determination of a staged incident can be pronounced. One inconsistency may raise credibility issues as noted. Many inconsistencies merely increases credibility questions of the witnesses that must be addressed. Therefore, inconsistencies about where a passenger lived or worked or which passenger called for a taxi or where they were traveling when the incident occurred does not increase the conclusion of a staged incident at all. It surely increases the likelihood the witnesses are not being truthful and the more inconsistencies that are presented the harder it may be to satisfactorily explain them. However, they do not, as a matter of fact, demand the conclusion the incident was staged.

It is well settled that “it is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof)” (see, Vega v. Restani Construction Corp., 18 NY3d 499, 942 NYS2d 13 [2012]). Therefore, summary judgement cannot be granted when facts are in dispute (Young v. Kamath, 246 AD3d 1144, 252 NYS3d 236 [2d Dept., 2026]).

In this case, clearly, credibility determinations are at issue. Precisely for these reasons summary judgement must be denied.

So ordered.

Dated: June 4, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC

CuraHealth Specialty Pharm. Corp v State Farm Ins. Co. (2026 NY Slip Op 50852(U))

Reported in New York Official Reports at CuraHealth Specialty Pharm. Corp v State Farm Ins. Co. (2026 NY Slip Op 50852(U))

CuraHealth Specialty Pharm. Corp v State Farm Ins. Co.

2026 NY Slip Op 50852(U) [89 Misc 3d 1206(A)]

Decided on June 1, 2026

Civil Court of the City of New York, Queens County

Fania Jean, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Queens County

Decided on June 1, 2026

Index No. CV-701169-25/QU

Fania Jean, J.

[*1]

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Motion, Affidavits and Exhibits NYSCEF 4-15

Opposition, Cross-Motion, Affidavits,

and Exhibits NYSCEF 17-18

Reply/Opposition to Cross-Motion NYSCEF 19

Upon the foregoing cited papers and due deliberation, it is determined as follows:

This is an action by a health services provider to recover assigned first-party no-fault benefits from the insurer defendant. Plaintiff-Assignee, CuraHealth, commenced this action by filing a summons and complaint on January 10, 2025, seeking payment pursuant to 11 NYCRR § 65.15 in the amount of $496.80 for health services rendered to assignor, Eduardo del Rosario, in connection with personal injuries sustained in an automobile accident occurring on December 27, 2023. Defendant insurance company, State Farm, joined issue by filing an answer on February 27, 2025. Now before this Court is defendant’s motion for summary judgment on the grounds that the alleged December 27, 2023, loss was fraudulent, as well as plaintiff’s cross-motion for summary judgment arguing defendant’s claim of fraud is speculative and that, instead, plaintiff met its prima facie burden of demonstrating payments of the no-fault benefits are overdue.

In support of its motion, defendant details its thorough investigation into Mr. Rosario’s claims, and submits numerous exhibits, including the affirmation of defendant’s claim specialist employee Griffin Ballard, a copy of the NF-10 denial of claim form, an uncertified police report, an engineering report on data recovered from the vehicle’s Event Data Recorder (EDR), as well as the certified Examination Under Oath (EUO) transcripts of Mr. Rosario, the driver of the insured vehicle, and passengers Cedeno and Hilarion.

The proponent of a summary judgment motion has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Alvarez v Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985); Sillman v Twentieth Century-Fox [*2]Film Corp., 3 NY2d 395, 403, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Winegrad, 64 NY2d 851. Once such proof has been offered, the burden then shifts to the opposing party to submit evidence in admissible form and “show facts sufficient to require a trial of any issue of fact.” CPLR 3212 [b]; Alvarez, 68 NY2d at 324.

An intentionally caused or staged vehicular collision is not a covered accident under an insurance policy. Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905, 187 N.Y.S.3d 331 (2d Dept 2023); National Gen. Ins. Online, Inc. v Blasco, 210 AD3d 786, 787, 177 N.Y.S.3d 350 (2d Dept 2022); see Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691, 692, 32 N.Y.S.3d 191 (2d Dept 2016). When a collision is intentionally caused, the insurer is not obligated to provide coverage, even to innocent third parties. Adirondack Ins. Exch., 215 AD3d at 905; Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040, 1041, 999 N.Y.S.2d 482 (2d Dept 2014).

In meeting its burden, an insurer need not “establish that the subject collision was the product of fraud, which would require proof of all elements of fraud, including scienter, by clear and convincing evidence.” V.S. Med. Services, P.C. v. Allstate Ins. Co., 25 Misc 3d 39, 39 (NY App. Term, 2d Dep’t 2009). The insurer need only establish by a preponderance of the evidence that the collision was not an accident. Id. The insurer must demonstrate the facts elicited during an investigation that make up the founded belief. Am. Alternative Ins. Corp. v Washington, 60 Misc 3d 1222[A], 110 N.Y.S.3d 496, 2018 NY Slip Op 51210[U] (Sup Ct, New York County 2018).

Here, defendant insurer established its prima facie entitlement to judgment as a matter of law by demonstrating that it’s belief that the collision was intentionally caused is founded upon a thorough investigation resulting in proof that, inter alia, the policy originated less than a month prior to the alleged loss, the loss was not reported until a couple of months after the alleged accident, the policy claimants offered conflicting versions of events at their EUOs, and the claimants all received identical boilerplate treatment from the same medical providers despite testifying they did not appear to know each other.

In opposition, plaintiff failed to raise a triable issue of fact as to whether the collision was intentionally caused or staged, and plaintiff’s cross-motion is insufficient to make a prima facie case for entitlement to summary judgment because, among other reasons stated above, plaintiff submitted only an affirmation by its counsel, who did not establish that he possessed personal knowledge of the facts. See Rockland Family Med. Care, P.C. v. State Farm Mut. Auto. Ins. Co., 76 Misc 3d 1126[A], 2022 NY Slip Op 50766[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; GBI Acupuncture, P.C. v. 21st Century Ins. Co., 48 Misc 3d 140[A], 2015 NY Slip Op. 51235[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). “[A] plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer.” Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]). Here, plaintiff’s submissions fall short as an attorney affirmation alone is insufficient to raise an issue of fact to oppose a summary judgment motion. Sheepshead Bay Med. Supply, Inc. v Erie Ins. Co. of NY, 2021 NY Slip Op 50491(U) [71 Misc 3d 140(A)] (App. Term 2d Dep’t 2021).

Accordingly, it is hereby,

ORDERED that defendant’s motion for summary judgment is GRANTED in its entirety [*3]and plaintiff’s complaint is hereby dismissed; and it is further

ORDERED that plaintiff’s cross-motion is denied.

This constitutes the decision and order of the court.

Dated: June 1, 2026

Queens, New York

HON. FANIA JEAN, JCC

Alternative PLM Acupuncture, P.C v Nationwide Gen. Ins Co (2026 NY Slip Op 51325(U))

Reported in New York Official Reports at Alternative PLM Acupuncture, P.C v Nationwide Gen. Ins Co (2026 NY Slip Op 51325(U))

Alternative PLM Acupuncture, P.C v Nationwide Gen. Ins Co

2026 NY Slip Op 51325(U) [89 Misc 3d 1248(A)]

Decided on May 5, 2026

Civil Court of the City of New York, Kings County

Chidi A. Eze, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Kings County

Decided on May 5, 2026

Index No. CV-714666-21/KI

Chidi A. Eze, J.

[*1]

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to show Cause/Notice of Motion and Affidavits /Affirmations annexed 1

Answering Affidavits/Affirmations 2

Reply Affidavits/Affirmations Memoranda of Law 3

Upon the foregoing cited papers, the Decision/ Order on the Defendant’s motion for summary judgment is as follows:

In this action by plaintiff-provider to recover no-fault first-party benefits for treatment rendered to its assignor, Nicole Jones, for a motor vehicle accident that occurred April 2, 2020, defendant moves to dismiss the complaint as premature, stating that this is a worker’s compensation matter because plaintiff’s assignor was in the course of her employment when the accident occurred. Plaintiff argues that defendant waived its right to deny the claim for any reason whatsoever, since it did not do so within 30 days period, after receiving the bill, as prescribed by law.

NYS Insurance Law § 5106 states “[P]ayments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained.” The courts have interpreted this to also mean ‘any defense, other than lack of coverage and failure to comply with applicable fee schedule, is waived if not raised before the claim is overdue’. See Presbyterian Hosp. in the City of NY v. Maryland Cas. Co., 226 AD2d 613, 641 N.Y.S.2d 395 (2nd Dept 1996). Only a request for verification of claim tolls this 30-day period. See Id.

Here, the first issue to be determined by this court is whether or not defendant paid or [*2]denied plaintiff’s first bill (bill 1) within 30 days of receiving same or requested for verification within this timeframe.

There is no dispute that defendant received the first bill (bill 1) from plaintiff on or about June 9, 2020, and there is no dispute that defendant issued denial letter dated July 21, 2020, but received July 22, 2020. There is also no dispute that defendant issued what it called a ‘delay letter’ on June 22, 2020, which read:

We are currently investigating this matter to determine whether the alleged injuries arose out of the use and operation of our insured vehicle and whether the injured party is an eligible injured party entitled to No-Fault benefits under the above mentioned policy. As a result we have requested an EUO of the claimant and/or their assignee.^FN1

Defendant asserts that its delay letter, issued within 11 days of receiving plaintiff’s first bill has the effect of tolling this 30-day denial period. Defendant also argued that its Examination Under Oath scheduling letter, dated May 9, 2020, also has the effect of tolling this 30-day period.

The court notes that no bill was received by defendant on May 9, 2020, therefore that letter could not act as a verification request nor have a tolling effect, for the simple reason that you cannot request verification nor toll the paying of a bill without first receiving the bill.

This court and case law disagree with defendant’s position that its delay letter was sufficient to toll this 30-day period. The court reviewed the delay letter and found that nowhere in that letter did the word “verification’ appear. “It is well settled that an insurer’s delay letters, which request no verification, are insufficient to toll the 30-day statutory time period within which a claim must be paid or denied” Parsons Med. Supply, Inc. v. Progressive Ne. Ins. Co. 36 Misc 3d 148(A), 959 N.Y.S.2d 91 (App Term 2d, 11th and 13th Jud. Dists. 2012) (citing Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists.2010]).

Nor does defendant’s defense of assignor’s eligibility for Worker’s Compensation benefits qualify as ‘lack of coverage’ or ‘failure to comply with applicable fee’ denial.

Thus, defendant’s ‘delay letter’ of June 22, 2020, failed to establish that the 30-day period, within which to pay or deny a claim, was tolled. Consequently, the denial letter dated July 22, 2020, was untimely as it was issued more than 30 days from when defendant received plaintiff’s first bill.

With regards to bill 2, defendant denied same timely, on the ground that the assignor is eligible for worker’s compensation benefits, and this court cannot make the determination whether or not said assignor is so eligible.

In light of the above, this court need not reach defendant’s remaining contentions.

Accordingly, it is

ORDERED that defendant’s summary judgment motion is DENIED, as to Bill 1

ORDERED that summary judgment is granted to defendant, as to Bill 2

Date: May 5, 2026

Hon. Chidi A. Eze

Civil Court Judge (NYC)

KN Acupuncture, PC v MVAIC (2026 NY Slip Op 50620(U))

Reported in New York Official Reports at KN Acupuncture, PC v MVAIC (2026 NY Slip Op 50620(U))

KN Acupuncture, PC v MVAIC

2026 NY Slip Op 50620(U)

Decided on April 30, 2026

Civil Court of the City of New York, Kings County

Sandra E. Roper, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Kings County

Decided on April 30, 2026

Index No. 733156/20

Sandra E. Roper, J.

[*1]

Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:

Papers

Notice of Motion and Affidavits Annexed 1-2

Cross-Motion and Affidavits Annexed 3 – 4

Answering Affidavit 5

Replying Affidavits 6

Exhibits

Other

Upon the foregoing cited papers, the Decision/Order on Plaintiff’s Cross-Motion for Summary Judgment is hereby DENIED, and Defendant’s Motion for Summary Judgment is hereby GRANTED.

Plaintiff’s argument in reliance on Yassin v Blackman (188 AD3d 62, 65-68 [2d Dept 2020]) is misplaced as distinguishable from this instant matter. Rather, Defendant established that the vehicle involved in the alleged accident was insured at the time of the alleged accident notwithstanding that the police accident report was uncertified. The uncertified police accident report which is deemed as admissible business record exception to the hearsay rule in part, where the entrant police officer and the declarant both must comply with respective statutory duty to enter and to declare pursuant to legal compulsion under penalty of criminal law, the production of the driver’s license, registration card and insurance card. Production of these statutorily mandated facially trustworthy documents are significantly distinguishable from a police officer’s entry of a declarant’s impeachable and subjective verbal statement as to facts of versions of causation or defense of the accident as in Yassin. Such verbal statements entered in the uncertified police report are impeachable, inadmissible hearsay and it fails as a business record exception to the hearsay rule, requiring a certified police report. Thus, an uncertified police report may be considered a quasi-[*2]hybrid business record exception to the hearsay rule: fails as to declarant’s verbal statements which must be certified for admissibility; yet upheld for entries of the presentation of facially trustworthy statutory documents pursuant to the legal compulsion under penalty of criminal law, which does not have to be certified for the admissibility exclusively of those entered statutorily mandated facially trustworthy documents (see Eagle Ins. Co. v Olephant, 81 AD2d 886 [2d Dept 1981]; see also Hochhauser v Elec. Ins. Co., 46 AD3d 174 [2d Dept 2007]; see also Balboa Ins. Co. v Alston, 141 AD2d 364, 364-365 [1st Dept 1988]; Vehicle and Traffic Law § 311 [10]; VTL § 312; VTL 319 [3]; VTL 600; 15 NYCRR 32.12).

Thus, Defendant satisfied its burden for judgment as a matter of law. Upon which, the burden of rebuttal shifts to Plaintiff, which failed to proffer admissible evidence to satisfy its burden to rebut that vehicle was insured. This finding of insurability of the vehicle obviates deliberation for Defendant’s further defense regarding failure to have received a Notice of Intent to Make a Claim.

For the foregoing reasons, this matter is dismissed with prejudice based on available insurance coverage.

This constitutes the decision and order of The Court.

DATE April 30, 2026

HON. SANDRA E. ROPER