334 Grand Concourse Med., P.C. v Plymouth Rock Assur. (2026 NY Slip Op 50539(U))

Reported in New York Official Reports at 334 Grand Concourse Med., P.C. v Plymouth Rock Assur. (2026 NY Slip Op 50539(U))

334 Grand Concourse Med., P.C. v Plymouth Rock Assur.

2026 NY Slip Op 50539(U) [88 Misc 3d 1254(A)]

Decided on April 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 15, 2026

Index No. CV-730919-22/KI

Sandra Elena Roper, J.

[*1]

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

Papers:

P’s Motion for Summary Judgment 1-2

D’s Cross Motion for summary Judgment 3-4

P’s Affirmation in Opposition 5

D’s Reply 6

Other

Upon the foregoing cited papers, the Decision/Order on this Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment are decided as follows:

Plaintiff’s Motion is granted to the extent that that Plaintiff established its prima facie entitlement to relief pursuant to CPLR § 3212(g). In contrast, Defendant failed to raise a triable issue of fact with respect to its asserted policy exhaustion defense. Most notably, Defendant failed to submit competent, admissible proof sufficient to lay a proper business records foundation for either the purported insurance policy or the alleged exhaustion materials. Defendant did not provide an affidavit from an underwriter, custodian, or any other individual with personal knowledge of Defendant’s record-keeping practices and procedures capable of authenticating the policy, its terms, or its limits. Nor did Defendant establish that any affiant was familiar with Defendant’s business practices so as to render the proffered documents admissible under the business records exception. Equally fatal, Defendant failed to establish when the purported policy exhaustion ledger or spreadsheet was created, by whom it was made, [*2]how it was generated, or whether it was made in the regular course of business at or about the time of the underlying transactions recorded therein. The submission of a paper-form ledger, without a proper evidentiary foundation, is insufficient to establish exhaustion as a matter of law or to defeat Plaintiff’s prima facie showing. A conclusory submission of records, untethered to a competent foundational affidavit, lacks probative value and is inadmissible for summary judgment purposes (see Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330 [4th Dep’t 2009]).

Defendant’s Cross-Motion is DENIED because material triable issues of fact plainly remain.

First, Defendant failed to establish, as a matter of law, the timely issuance and mailing of its denials. Plaintiff’s affiant expressly averred that Plaintiff “responded to and mailed all requested documentation, to: Defendant, Plymouth Rock Assurance, at PO Box 900, Lincroft, NJ 07738 on 10/14/2021” (see NYSCEF Doc. No. 20). Yet, notwithstanding Plaintiff’s documented response, Defendant did not issue its denials until January 18, 2023, well more than thirty (30) days after Plaintiff’s submission of the requested materials (see NYSCEF Doc. No. 17). On this record, Defendant failed to eliminate all triable issues concerning whether the denials were timely issued and mailed in accordance with the governing No-Fault time frames. At a minimum, the stark discrepancy between Plaintiff’s proof of submission and Defendant’s substantially delayed denials presents a classic issue of fact that cannot be resolved on motion practice and must instead be determined at trial.

Second, with respect to Defendant’s affirmative defense of outstanding verification, this Court likewise finds that a material triable issue of fact exists, precluding summary disposition in Defendant’s favor. In opposition to Defendant’s position, Plaintiff’s owner submitted a rebuttal affidavit expressly alleging that Plaintiff timely and fully complied with Defendant’s verification requests. That sworn submission is sufficient to raise a factual dispute as to whether any requested verification in fact remained outstanding, and thus whether Defendant was entitled to continue tolling or withholding payment on that basis. Moreover, the Court notes that the form and substance of Plaintiff’s affidavit are not novel, defective, or legally insufficient. To the contrary, substantially similar affidavit language and format have previously been recognized as adequate by the Appellate Term, Second Department, in the No-Fault context (see, e.g., Mollo Chiropractic, PLLC v. Farmington Cas. Co., 53 Misc 3d 138 [A] [App. Term, 2d Dep’t 2016]). Accordingly, Defendant failed to eliminate all material issues of fact regarding Plaintiff’s alleged compliance with the verification requests, and that issue must be resolved at trial.

Finally, with respect to Defendant’s affirmative defense predicated upon the fee schedule, this Court likewise finds that material triable issues of fact exist, thereby precluding summary disposition in Defendant’s favor. Although Defendant contends that it supported its position through the submission of a Certified Coder’s Affidavit (see NYSCEF Doc. No. 18), and further argues that Plaintiff failed to submit an affidavit from a similarly credentialed coder, that contention is without merit. Plaintiff did, in fact, submit a rebuttal fee schedule affidavit from its owner (see NYSCEF Doc. No. 36), which directly challenged and disputed the analysis set forth by Defendant’s Certified Coder. That sworn submission was sufficient to place Defendant’s fee schedule calculations and conclusions squarely in dispute. Moreover, under CPLR § 3212, the function of the Court on a motion for summary judgment is one of issue-finding, not issue-determination. /OR

Defendant’s argument that Plaintiff is required, as a matter of law, to submit a rebuttal [*3]affidavit exclusively from a “Certified Coder” is rejected. Pursuant to New York law, the admissibility and probative value of expert opinion testimony does not merely turn on the possession of any particular title or certification alone, but rather on whether the witness possesses the requisite skill, training, education, knowledge, experience and history of expertise to render the opinion that of an expert opinion. An expert opinion affiant is merely required to demonstrate to the court expertise in the attendant subject area. Plaintiff’s argument as to quasi-expert affiant opinion is similarly rejected. The affidavit must be unequivocal as to whether the affiant is deemed an expert, not a quasi-expert. Herein, the affiant’s expertise as to the subject matter of fee coding (billing practices, coding issues, fee schedule framework, and the subject services at issue) is deemed qualified by Plaintiff’s rebuttal fee coding expert affiant, notwithstanding lack of the title of “Certified Coder”. Indeed, as here, dueling expert testimonies are to be determined by fact-finders at trial not in a motion for judgment as a matter of law. Thus, upon the shifting of the burden of Defendant’s fee schedule motion for summary judgment, non-movant Plaintiff satisfies its burden of rebuttal to defeat Defendant’s motion. The competing expert narratives raise a triable issue of fact as to the proper application of the relevant fee schedule.

This constitutes Decision and Order of The Court.

Dated: April 15, 2026

Brooklyn, New York

Honorable Sandra Elena Roper

Judge, Civil Court, Kings County

Medical Supply of NY Direct Servs. Corp. v State Farm Ins. Co. (2026 NY Slip Op 50513(U))

Reported in New York Official Reports at Medical Supply of NY Direct Servs. Corp. v State Farm Ins. Co. (2026 NY Slip Op 50513(U))

Medical Supply of NY Direct Servs. Corp. v State Farm Ins. Co.

2026 NY Slip Op 50513(U) [88 Misc 3d 1252(A)]

Decided on April 13, 2026

Civil Court of the City of New York, Richmond County

Mark Kagan, J.

As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.

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

Civil Court of the City of New York, Richmond County

Decided on April 13, 2026

Index No. CV-771552-25/RI

Mark Kagan, J.

[*1]

The defendant State Farm Insurance Company has moved pursuant to CPLR §3212 seeking summary judgement dismissing the action on the grounds the assignor failed to provide further information sought by the defendant. The plaintiff has opposed the motion. 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 November 1, 2024 the assignor Yefim Zemelshteyn was involved in a motor vehicle accident and sought medical treatment. The plaintiff provided medical services in the amount of $1,689.50 and sought payment from the defendant. The defendant refused payment on the grounds the assignor failed to respond to verifications for further information. The plaintiff commenced this action seeking payment and the defendant duly answered. The defendant has [*2]now moved seeking summary judgement dismissing the action arguing there are no questions of fact the assignor failed to provide any information sought. The plaintiff has opposed the motion arguing the verifications sent were invalid and the motion, therefore, must be denied.

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 plaintiff failed to respond to requests for verification. Pursuant to 11 NYCRR §65-3.5(b) any request by an insurer for additional information must be served within fifteen days of the receipt of the necessary verification forms (see, Prestige Medical P.C. v. Travelers Home and Marina Insurance Company, 56 Misc 3d 284, 995 NYS2d 467 [Civil Court Kings County 2014]). Further, if a provider fails to respond, the insurer must send a second request within ten days of the scheduled date of the missed examination scheduling a new examination date (11 NYCRR §65-3.6(b), MSB Physical Therapy P.C. v. Nationwide Insurance, 72 Misc 3d 1215(A), 149 NYS3d 884 [Civil Court Kings County 2021]).

In this case a bill was sent to the defendant for medical services on February 3, 2025.A verification request was mailed on February 7, 2025 and again on March 10, 2025 (see, Affirmation of Kate Cornell, ¶21 [NYSCEF Doc. No. 7]). These notices were all timely.

To succeed on a motion for summary judgement for the failure of an individual to respond to verification requests, there must be evidence the requests were sent and that the party failed to provide the information and has failed to provide any reasonable justification for failing to comply (Burke Physical Therapy P.C. v. State Farm Mutual Automobile Insurance Company, 75 Misc 3d 143(A), 1705 NYS3d 821 [Appellate Term Second Department 2022]).

The plaintiff does not dispute the verifications were not answered. Rather the plaintiff argues the verification requests were deficient for two distinct reasons. First, the plaintiff asserts the affirmation supporting compliance with the insurer’s policies and procedures regarding mailing did not contain all necessary information. Specifically, the affirmation failed to explain the basis for any verification requests. Second, the affirmation was insufficient since the affiant, who provided the necessary information concerning mailing procedures, did not reside in the same state wherein the notices were mailed. Therefore, the affiant could not possibly opine about procedures that may exist hundreds of miles away. To properly address these concerns a review of the relevant law concerning mailings is necessary.

In Dunlop v. U.S., 165 US 486, 17 S.Ct 375 [1897] the Supreme Court held that proof of a proper mailing gives rise to a presumption the items were received. The court explained that “where a question is made whether a certain paper, or other document, has reached the hand of the person for whom it is intended, proof of a usage to deliver such papers at the house, or of the duty of a certain messenger to deliver such papers, creates a presumption that the paper in question was actually so delivered. Business could hardly be carried on without indulging in the presumption that employÉs, who have certain duties to perform, and are known generally to perform such duties, will actually perform them in connection with a particular case. Thus, if it be shown that a letter, properly stamped, has been mailed, there is a presumption that it reached [*3]the person addressed” (id). This presumption, like all presumptions, are “well known and frequently recognized in the law. Such presumptions are founded upon the experience of human conduct in the course of trade and business, under the promptings of interest or public responsibility” (Knickerbocker Life Insurance Company v. Pendelton, 115 US 339, 6 S.Ct 74 [1885]).

Likewise, in the No-Fault context, proof that a letter was properly mailed creates a rebuttable presumption the letter was received by the addressee (see, Viviane Etienne Medical Care, P.C. v. Country-Wide Insurance Company, 25 NY3d 498, 14 NYS3d 283 [2015]). Concerning the proof necessary to establish the mailing, Gardam & Son v. Batterson, 198 NY 175, 91 NE 371 [1910] established the appropriate standards. In that case, the court considered whether certain letters had been mailed by an agent who then died. The court denied the admissibility of the letters holding that “there was no proof of an actual deposit of the originals in the post office and there was no sufficient proof of a course of office practice, or of business, from which a presumption might be legally indulged” (id). Thus, the oft cited two-pronged requirement to establish any mailing, namely, proof of an actual mailing or proof of office practices and procedures that insure items are properly addressed and mailed (see, e.g., New York and Presbyterian Hospital v. Allstate Insurance Company, 29 AD3d 547, 814 NYS2d 687 [2d Dept., 2006]).

In this case, the defendant submitted the affidavit of Kate Cornell, a claims specialist employed by State Farm who submitted an affidavit which first states that State Farm’s procedures dealing with No-Fault claims are uniform throughout the company (see, Affirmation of Kate Cornell, ¶1 [NYSCEF Doc. No 7]). She further provided detailed procedures for receiving and sending mail associated with any New York No-Fault claims. These procedures surely satisfy the requirement of establishing policies and procedures that insure items are properly mailed (Nationwide Affinity Assurance Company of America v. George, 183 AD3d 755, 123 NYS3d 626 [2d Dept., 2020]).

In opposition, the burden shifts to the plaintiff in efforts to rebut the presumption that verifications for more information were properly mailed (Residential Holding Corp., v. Scottsdale Insurance Company, 286 AD2d 679, 729 NYS2d 776 [2d Dept., 2001]). The plaintiff argues the defendant failed to provide the insurance company’s “‘regular business practices and procedures’ used to request additional verification” (see, Affirmation in Opposition, ¶9 [NYSCEF Doc. No. 19]). Thus, the plaintiff argues the affirmation of Ms. Cornell fails to establish the insurer’s policies and procedures concerning proper mailings because the affirmation does not describe the way in which the verification requests are created. However, that information, the rationale why the verification was sent, has nothing whatever to do with the practices and procedures for sending mail. The plaintiff’s objection lies with the failure of the insurer to provide the underlying basis for sending the verification at all. However, that information is unrelated to the procedures for sending mail and its absence does not mean the insurer has failed to adequately explain its policies and procedures concerning mailings.

Indeed, the No-Fault regulations permit an insurer to demand “all items necessary to verify the claim directly from the parties from whom such verification is requested” (11 NYCRR §65-3.5(c)). In fact, there are no limits to the information an insurer may request other than the limitation found in 11 NYCRR §65-3.2(c). That regulation states that an insurer should not demand verification of facts “unless there are good reasons to do so” (id). There are no specific No-Fault regulations that provide any mechanism for a medical provider to contest the [*4]verification sought on the grounds it is improper or unnecessary (Burke 2 Physical Therapy P.C. v. State Farm Mutual Automobile Insurance Company, 71 Misc 3d 1229(A), 146 NYS3d 468 [Civil Court Kings County 2021]). It is clear the information sought must have some rational relationship to the specific claims. Therefore, certain requests for verification are obvious, no explanation is required and are per se reasonable. For example, “requests for medical records for the treatment in question, letters of medical necessity for the testing or treatment, copies of x-ray or MRI films or test results” (Garden State Anesthesia Associates PA v. Progressive Casualty Insurance Company, 41 Misc 3d 996, 971 NYS2d 858 [District Court Nassau County 2013]). Likewise, a request to establish medical necessity is reasonable pursuant to 11 NYCRR §65-3.2(c) (Lenox Hill Radiology v. Global Liberty Insurance, 20 Misc 3d 434, 858 NYS2d 587 [Civil Court New York County 2008]).

Thus, while a medical provider can object to the verifications sought, in appropriate circumstances, those objections focus on the substance of the information requested, not the manner in which the requests were sent. As long as there is proof supporting the presumption of a proper mailing the insurer has satisfied its burden. The insurer is under no obligation to divulge its strategies or suspicions to the medical provider and surely the basis for such requests are not included with the information supporting valid mailings.

Likewise, there is no merit to the argument that Ms. Cornell is unable to provide accurate mailing procedures because the mailings are performed in a facility in another state. There is no requirement the person affirming the mailing policies and procedures must actually be present and physically observe them. Rather, the person must have familiarity with the procedures and those procedures must be uniform throughout the company. Ms. Cornell’s affirmation confirms the uniformity of the policies of the insurance company and states that she maintains sufficient information regarding the uniformity of the mailing procedures. This remains true whether Ms. Cornell is merely one floor away from the actual mailing center, or many miles away. To argue otherwise would be to simply second guess the veracity of Ms. Cornell’s affirmation. Any party may surely object to the veracity of any witness with proper evidence. However, to rebut the presumption of a proper mailing the medical provider must do more than merely allege the witness lives in a different state. That may be true but that does not, in any way, impugn the veracity of the affidavit concerning mailing procedures.

Therefore based on the foregoing, there is no question of fact the verifications seeking information remain unanswered. Thus, the motion seeking summary judgement dismissing the action is granted.

So ordered.

Dated: April 13, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC

Life Care Physical Therapy P.C. v Geico Gen. Ins. Co. (2026 NY Slip Op 50519(U))

Reported in New York Official Reports at Life Care Physical Therapy P.C. v Geico Gen. Ins. Co. (2026 NY Slip Op 50519(U))

Life Care Physical Therapy P.C. v Geico Gen. Ins. Co.

2026 NY Slip Op 50519(U) [88 Misc 3d 1253(A)]

Decided on April 13, 2026

Civil Court of the City of New York, Kings County

Sandra Elena Roper, J.

As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.

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

Civil Court of the City of New York, Kings County

Decided on April 13, 2026

Index No. CV-748345-19/KI

Sandra Elena Roper, J.

[*1]

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

Papers

Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed

Answering Affidavits

Replying Affidavits 2

Exhibits

Other

Upon the foregoing cited papers, and after oral arguments by the parties, the Decision/Order on Defendant’s Motion to Dismiss for Want of Prosecution pursuant to CPLR 3216 is hereby DENIED:

“CPLR 3216 is extremely forgiving of litigation delay, in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed. If [the] plaintiff makes a sufficient showing, the court is prohibited from dismissing the action. [P]ublic policy strongly favors the resolution of actions on the merits whenever possible” (James B. Nutter & Co. v Hutson, 241 AD3d 520, 521 [2d Dept 2025], quoting LoRusso v DeLuca, 204 AD3d 660, 661 [2d Dept 2022], see Baczkowski v D.A. Collins Constr. Co., 89 NY2d 499, 503 [1997], see also Bank of Am., N.A. v Nicolosi, 200 AD3d 1018, 1021 [2d Dept 2021], see also Krause v Lobacz, 131 AD3d 1128, 1129 [2d Dept 2015], see also Chase Home Fin., LLC v Shoumatoff, 192 AD3d 1352 [3d Dept 2021]).

In this instant matter, Plaintiff recognized the ineffectiveness of its previous counsel and accordingly substituted same to its current counsel of record on October 21, 2025. Plaintiffs new counsel drafted its opposition dated October 24, 2025, which was filed on October 26, 2025, a [*2]mere five days upon said change of counsel. Further, Plaintiff filed the Notice of Trial on October 26, 2025. In keeping with the “forgiving” nature of litigation delays pursuant to CPLR 3216, This Court in the judicious exercise of its discretion, does not find the Plaintiff’s actions unreasonable neglect to proceed (id). On the contrary, Plaintiff in moving its stagnant case opted for substitution of counsel to proceed posthaste. Thus, the delay in the proceedings here is found to be excusable. Nevertheless, excusable delay shall not inure to Plaintiff’s benefit. Accordingly, the interest herein shall be stayed from the date of Defendant’s filing of this motion to the date Plaintiff filed the Notice of Trial, March 10, 2022, to March 26, 2025. Furthermore, Plaintiff established a potentiality of a meritorious cause of action.

This constitutes the Decision and Order of This Court.

Date April 13, 2026

Hon Sandra Elena Roper, JCC

Parisien v Erie Ins. Co. of N.Y. (2026 NY Slip Op 50400(U))

Reported in New York Official Reports at Parisien v Erie Ins. Co. of N.Y. (2026 NY Slip Op 50400(U))

[*1]

Parisien v Erie Ins. Co. of N.Y.

2026 NY Slip Op 50400(U) [88 Misc 3d 1241(A)]

Decided on March 25, 2026

Civil Court Of The City Of New York, Richmond County

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.

Decided on March 25, 2026

Jules Francois Parisien MD, As Assignee of Manuel Plasencia, Plaintiff, against Erie Insurance Company of New York, Defendant.

Index No. CV-759232-24/RI



Plaintiff –
Law Offices of Marina Josovich, P.C.
1733 Sheepshead Bay Road, Suite 11
Brooklyn, NY 11235
Phone: (718) 645-7770

Defendant –
MURA LAW GROUP, PLLC
14 Lafayette Sq, Ste 930
Buffalo, NY 14203-1909
Phone: (716) 855-2800
Mark Kagan, J.

The defendant Erie 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 April 24, 2024 a vehicle driven by Miguel Angel Palaciosromero was involved in an accident with a vehicle driven by Mohamed Mohamed. The assignor, Manuel Plasencia, a passenger in the vehicle driven by Palaciosromero, sought No-Faults benefits in the amount of $1,449.69. The defendant, the insurer of the assignor refused the payment on the grounds the accident was staged. The plaintiff commenced this action seeking payment and the defendant duly answered. The defendant has now moved seeking summary judgement dismissing the [*2]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 accident was staged. As noted, the motion is opposed.

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]).

It is well settled that “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 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]).

In support of the motion the accident was staged Erie Insurance has introduced the examination under oath of Mohamed Mohamed, the driver of the other vehicle who testified that when the accident occurred there were only two individuals in the vehicle, namely the driver Palaciosromero and the assignor (see, EUO of Mohamed Mohamed, page 23 [NYSCEF Doc. No. 9]). Mr. Mohamed was specifically asked whether any assertions there was a third person in the vehicle would constitute a fabrication. He responded “No, there’s no third person, you know. And I remember when the accident happened, they come out. I came out on the highway right there, we just looking what happened. And before even we moved to the shoulder, there was two people. And then when we went into the shoulder, there’s two people came out. So if there is a third person, it will be there, right? There’s no third person” (see, EUO of Mohamed Mohamed, pages 36,37 [NYSCEF Doc. No. 9]). The defendant argues that “significantly, Mohamed, who has nothing to gain by doing so, unequivocally affirms that there were only two occupants inside the insured vehicle at the time of the subject incident impact” (see, Affirmation of Brendon Byrne, ¶36 [NYSCEF Doc. No. 6]).

However, the driver, the assignor and the third individual, Francisco Monserrate all testified at examinations under oath and all testified that all three were in the vehicle at the time of the collision. First, the driver Palaciosromero was asked “is it your testimony that at the time of this accident in April that both Francisco and Manuel were occupants of your vehicle at the time of the impact?” and he responded “yes” (see, EUO of Miguel Angel Palaciosromero, page 26 [NYSCEF Doc. No. 11]). Further, Palaciosromero was presented with possibility that there were four people in the vehicle. He responded “I deny that completely. There was nobody else in my car aside from me, Francisco and Manuel” (see, EUO of Miguel Angel Palaciosromero, [*3]page 107 [NYSCEF Doc. No. 11]).

Next, the assignor, Manuel Placensia was asked concerning the accident in question “was anybody with you in the vehicle at that time?” and he responded “Miguel and Francisco” (see, EUO of Manuel Plasencia, pages 36,37 [NYSCEF Doc. No. 14]). Further, Plasencia was informed that Mohamed testified there were only two occupants in the vehicle and was then asked “so with that said, is it fair to say that Francisco was not in the vehicle at the time of the accident?” Plasencia responded “No, the three of us were together” (see, EUO of Manuel Plasencia, page 48 [NYSCEF Doc. No. 14]). He was then asked “are you sure you’re going to stick with that story in light of the evidence of that driver that it was only Miguel and an older male passenger which could be you since you’re 40 and not 26?” and he responded “I—well, I think that other driver might have gotten scared or shocked because of the impact, but like I said from the beginning, that I’m under oath and inside our vehicle was Miguel, myself and Francisco” (see, EUO of Manuel Plasencia, pages 48, 49 [NYSCEF Doc. No. 14]).

Moreover, Francisco Monseratte testified that he was present in the vehicle when the accident occurred (see, EUO of Francisco Monseratte, page 17 [NYSCEF Doc. No. 13]). Moreover, he repeatedly reiterates throughout the testimony that he was in the vehicle at the time of the accident.

Thus, notwithstanding Mohamed’s disinterest in the number of occupants in the Palaciosromero vehicle there are clearly questions of credibility concerning whether in fact Monseratte was present in the vehicle when the accident occurred. 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, — AD3d —, — NYS3d —, 2026 WL 516800 [2d Dept., 2026]).

In this case, clearly, there are credibility determinations that must be made concerning whether Monseratte was a passenger in the vehicle. That determination cannot be made at this juncture.

Next, the defendant argues that notwithstanding any credibility issues whether Monseratte was a passenger in the vehicle there are so many inconsistencies in the testimony of Palaciosromero, Plasencia and Monseratte that as a matter of law it may be determined that Monseratte was not a passenger in the vehicle and that the assignor engaged in fraud and summary judgement should be granted.

It is true that inconsistencies between various occupants of a vehicle can be used to support the contention the accident 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 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 [*4]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.

In this case, there are numerous inconsistencies found in the testimony of the three alleged participants present in the Palaciosromero vehicle. However, those inconsistencies do not support whether Monseratte was present when the accident occurred. Regarding that sole issue, upon which the entire allegation of fraud is based, there is no inconsistency. There are credibility issues with Mohamed in that regard. Precisely for these reasons summary judgement must be denied.

So ordered.

Dated: March 25, 2026
Brooklyn, NY
Hon. Mark Kagan, JCCYumi Acupuncture, P.C. v 21st Century Ins. Co. (2026 NY Slip Op 50433(U))

Reported in New York Official Reports at Yumi Acupuncture, P.C. v 21st Century Ins. Co. (2026 NY Slip Op 50433(U))

Yumi Acupuncture, P.C. v 21st Century Ins. Co.

2026 NY Slip Op 50433(U) [88 Misc 3d 1244(A)]

Decided on March 23, 2026

Civil Court of the City of New York, Kings County

Sandra E. Roper, J.

As corrected in part through July 17, 2026; it will not be published in the printed Official Reports.

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

Civil Court of the City of New York, Kings County

Decided on March 23, 2026

Index No. CV-738094-18/KI

Sandra E. Roper, J.

[*1]

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

Papers:

D’s Notice of Motion and Affidavits Annexed 1-2

P’s cross-motion for SJ and Exhibits 3-4

D’s Opposition 5

P’s Supplemental memo of law as requested by Court 6

D’s Supplemental memo of law as requested by Court 7

Upon the foregoing cited papers and after oral argument, This Court Decides and Orders, Defendant MID-CENTURY INSURANCE COMPANY, sued herein as 21st Century Insurance Company, Motion for Summary Judgment and to Amend the Caption to so reflect, and Plaintiff Yumi Acupuncture, P.C. Cross-Motion for Summary Judgment as follows:

BACKGROUND AND PROCEDURAL POSTURE

This is an action to recover assigned first-party New York No-Fault benefits for health-care services rendered to Plaintiff’s assignor following a motor vehicle accident which occurred outside the State of New York on January 9, 2017.

The motion record reflects that Defendant issued verification requests to Plaintiff’s assignor dated January 12, 2017, and February 20, 2017, seeking a “Declaration of No Other Insurance,” to determine primacy of coverage, as Plaintiff’s assignor was not a listed party on the New York insurance policy which covered the vehicle. Following receipt of the bills in controversy, Defendant also sent delay letters dated February 20, 2017, and March 23, 2017, advising Plaintiff that claim processing would be delayed pending receipt of such Declaration [*2]from Plaintiff’s assignor. Plaintiff contends that its provider affidavit sufficed to respond to any legitimate inquiry, however the post-assignment demand for an injured-party’s Declaration of No Other Insurance was improper, and Defendant failed to timely pay or deny the claims. Whereas Defendant seeks dismissal on the theory that the claims were not ripe for suit as Plaintiff’s purported verification response is not responsive for failure to provide the requested Declaration, rendering the claims open and pending in a delayed status.

DISCUSSION

Neither Plaintiff’s purported provider affidavit verification response, nor Defendant’s purported verification request for a Declaration of No Other Insurance are statutorily compliant nor proper. Although dated after the commencement of Defendant’s motion, Plaintiff’s purported verification response was not responsive to Defendant’s verification request solely for the Declaration of No Other Insurance. Nevertheless, Plaintiff’s deficiency is of no moment where Defendant’s verification request is neither material nor necessary for the processing and evaluation of the first-party New York No-Fault claims. A Declaration of No Other Insurance is neither material nor necessary, but rather an issue of interinsurer priority of payment, which as the sole request is dispositive herein, rendering Defendant’s purported verification request a nullity. As such, Plaintiff was not required to provide verification responses thereto. Where, as here, there is a Primary Insurer which is the first to receive notice of No-Fault claim, and a potentiality of a Contingent Insurer whether unidentified, as herein, or identified, the dispute as to payor responsibility is not a material nor necessary basis for a Primary Insurer’s verification request to toll the statutory 30-day time to pay or deny No-Fault claims.

Pursuant to Insurance Law § 5105 (b) mandatory arbitration is to be undertaken to resolve interinsurer disputes regarding responsibility for the payment of first-party benefits. The implementing regulations are equally as explicit. Pursuant to 11 NYCRR 65-3.12 (b) (1), where two or more insurers dispute which is responsible for payment of first-party benefits, “the first insurer to whom notice of claim is given shall be responsible for the payment of benefits.” Pursuant to 11 NYCRR 65-4.11 (a) (6), controversies between insurers regarding “the responsibility or obligation to pay first-party benefits (i.e., priority or sources of payment pursuant to section 65-3.12)” are not coverage issues subject to verification requests upon medical providers seeking payment reimbursement. Rather, interinsurer coverage issues must be submitted to mandatory arbitration, without delay in the processing of the underlying first-party medical claims in furtherance of the No-Fault legislative intent for prompt resolutions. Precedential case law on this issue of competing interinsurer coverage is indeed scant.

Although not as yet addressed by the Second Department FN1, the First Department’s holding on this issue is encapsulated by a court of concurrent jurisdiction to This Court.

“Where an insurer’s denial raises a defense that another insurer is responsible for paying first-party benefits, the defense must be resolved through mandatory intercompany [*3]arbitration, not by way of a claimant’s plenary no-fault action; in an action to recover first-party No-Fault benefits, the first insurer to whom notice of proof of claim was given is obligated to pay the benefits irrespective of any issues relating to the priority or source of payment.” (Country-Wide Ins. Co. v Bronx Chiropractic Rehabilitation P.C., 2021 NY Misc LEXIS 60240 [Sup Ct, NY County Mar. 31, 2021, No. 650051/2021], citing M.N. Dental Diagnostics, P.C. v Govt. Empls. Ins. Co., 81 AD3d 541 [1st Dept 2011], aff’d, 24 Misc 3d 43 [App. Term 1st Dept. 2009]).

In further clarification of this interinsurer coverage issue, which is deemed immaterial to the processing of the claim and in and of itself cannot delay a medical provider’s No-Fault plenary action without a distinct other proper defense alleged, the First Department held:

“Insofar as defendant sought discovery pertaining to its affirmative defense that another insurance carrier was primarily liable, the information was immaterial and, in result, the demands were palpably improper since defendant cannot properly rely on this defense as a basis to deny plaintiff’s no-fault claim. Nor has defendant set forth any case-specific allegations in support of its defense that plaintiff was fraudulently incorporated so as to justify discovery on this issue. Defendant ‘will not be allowed to use pretrial discovery as a fishing expedition when they cannot set forth a reliable factual basis for what amounts to, at best, mere suspicions'” (Pomona Med. Diagnostic P.C. v Adirondack Ins. Co., 36 Misc 3d 127[A], 2012 NY Slip Op 51165[U] [App Term 2012], quoting Devore v Pfizer, Inc., 58 AD3d 138 [1st Dept 2008], lv denied 12 NY3d 703, 904 NE2d 841, 876 NYS 2d 704 [2009], citing Duhe v Midence, 1 AD3d 279, 767 NYS 2d 585 [2003]; 11 NYCRR 65-3.12[b]; M.N. Dental Diagnostics, P.C. v. Government Employees Ins. Co., 81 AD3d 541, 916 NYS 2d 598 [2011]).

In this instant matter, Defendant is the Primary Insurer upon which the proof of claim was first served. Consequently, it is statutorily mandated to process the plenary claim as if it is the sole insurer to resolution maintaining all the available proper defenses. The potentiality that there may be a Contingent Insurer whether unidentified, as here, or identified is not a defense to the No-Fault claim and does not foreclose nor delay the Primary Insurer’s statutory responsibility to fully process the first-party claims to completion. Either thereafter or concurrently but separate and apart from the underlying claims, Primary Insurer may pursue its interinsurer quasi-subrogation claim in mandatory arbitration as against a Contingent Insurer. However, medical provider claimants are walled off from interinsurer coverage disputes to avoid encroaching on the No-Fault Law’s legislative intent for prompt resolutions. It is emphatically reiterated; the Primary Insurer maintains all the very same defenses as if there were no interinsurer coverage payor dispute. Thus, Defendant here as Primary Insurer, may have properly issued verification requests for its alternative defense of fee-schedule which would have indeed required Plaintiff Provider to issue timely proper verification responses. To its detriment, Defendant failed to do so. Defendant’s verification request solely for the Declaration of No Other Insurance is statutorily improper. Whereas its alternative fee schedule defense which may have salvaged the material and necessary prongs for a proper verification request by Defendant to toll the claims, was not included. Since the proper fee-schedule defense was available but not included in Defendant’s verification request, the fee schedule defense falls as well for being untimely in violation of the 30-Day Rule. Notably, since the services herein were rendered post April 1, 2013, 11 NYCRR 65-3.8 (g) (1) (ii) has been held by trial courts of concurrent jurisdiction to render fee-schedule a non-precludable defense contravening the 30-Day Rule. Although at times [*4]considered persuasive legislative interpretations, these holdings are not binding precedential stare decisis case law. This Court disagrees with these legislative interpretations and is not bound by these holdings. The legislature had the opportunity to explicitly state fee-schedule is a non-precludable defense and failed to do so.FN2 Thus, followed herein is the well-established 30-Day Rule to timely pay, toll or deny, which Defendant did neither.

For the foregoing reasons, it is:

ORDERED, ADJUDGED, AND DECREED

ORDERED, that as no prejudice has been shown to the Plaintiff, the branch of Defendant’s Motion seeking to Amend The Caption is GRANTED, so that the named Defendant in this case shall be changed to MID-CENTURY INSURANCE COMPANY to reflect Defendant’s proper name. The amendment is to take effect immediately without need for service of further papers. All papers previously filed are deemed amended without need for service of further papers.

ORDERED, that the branch of Defendant’s Motion seeking summary judgment is DENIED in its entirety.

ORDERED, that the Court holds, as a matter of law, that where Defendant was the first insurer to receive notice and proof of claim, Defendant was required to process and pay the provider’s claim irrespective of any interinsurer dispute over priority or source of payment, subject only to any separate and properly preserved defense independent of the mere possibility that another insurer may be responsible.

ORDERED, that any dispute between Defendant and any other insurer concerning the priority or source of payment of first-party benefits must be resolved through mandatory intercompany arbitration pursuant to Insurance Law § 5105 (b), 11 NYCRR 65-3.12 (b), and 11 NYCRR 65-4.11 (a) (6), and not by withholding or delaying payment to Plaintiff in this plenary no-fault action.

ORDERED, that Defendant’s requests and delay letters seeking a “Declaration of No Other Insurance” did not toll the thirty-day pay-or-deny period, and do not render this action premature.

ORDERED, that Plaintiff’s Cross-Motion for Summary Judgment is GRANTED to the extent that judgment shall be entered in favor of Plaintiff and against Defendant on the claims at issue in the motion record.

ORDERED, that Plaintiff is entitled to entry of judgment for the principal amount of unpaid no-fault benefits recoverable on the claims at issue, together with statutory interest, attorney’s fees, costs and disbursements as provided by law.

This constitutes the Decision, Opinion and Order of This Court.

DATE March 23, 2026

HON. SANDRA E. ROPER

Tristate Multi-Specialty Med. Servs., P.C. v Progressive Cas. Ins. Co. (2026 NY Slip Op 50340(U))

Reported in New York Official Reports at Tristate Multi-Specialty Med. Servs., P.C. v Progressive Cas. Ins. Co. (2026 NY Slip Op 50340(U))

[*1]

Tristate Multi-Specialty Med. Servs., P.C. v Progressive Cas. Ins. Co.

2026 NY Slip Op 50340(U) [88 Misc 3d 1235(A)]

Decided on March 17, 2026

Civil Court Of The City Of New York, Kings County

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.

Decided on March 17, 2026

Tristate Multi-Specialty Medical Services, P.C., a/a/o JORDAN, CEDRICK, Plaintiff, against Progressive Casualty Insurance Company, Defendant(s)

Index No. CV-730109-22/KI



The Rybak Firm PLLC, Brooklyn, for Plaintiff.

McCormack & Mattei, P.C., New Hyde Park, for Defendant.
Sandra Elena Roper, J.

At Trial held on March 6, 2026, Decision, Opinion and Order upon due deliberation as follows:

Previously agreed upon stipulation for prima facie to both parties placed on the record, after which Plaintiff Rested. Defendant moved for Directed Verdict upon an offer of proof of the Declaratory Judgment Order Supreme Court Nassau County Index No. 604151/20. Staged accident Declaratory Judgment (hereinafter “DJ”) barred payment by Defendant to Plaintiff Provider for any and all bill payment reimbursements for relevant date of incident and policy number for No-fault bills of Assignor. However, DJ did not apply to Assignor as there was an inconsistency with his address. Defendant Counsel’s statement at Trial is not sworn witness statement of the truth of Assignor’s address and therefore found inadmissible and was not credited although he is an individual party defendant named in the DJ. Consequently, the DJ did not apply to the Assignor. Thereupon, pursuant to the defense of Res Judicata and Collateral Estoppel, Directed Verdict Granted in favor of Defendant.

However, in a rather novel argument. Plaintiff contended that the natural consequence of the DJ not applying to Assignor is judgment in the amounts sued upon should be granted in favor of Assignor as an individual. Indeed, quite a legal leap. Firstly, Assignor is not a party in this instant action. It is well established that an assignor is a non-party rather than a real party-in-interest and assignors cannot be considered as real parties of interest (Inwood Hill Med., P.C. v Gen. Assur. Co., 10 Misc 3d 18 [App Term 2005]). Further, Assignor herein is not represented by counsel since a non-party. Arguendo, the DJ establishes the potential of a conflict of interest between Plaintiff Provider and Assignor, foreclosing Plaintiff’s counsel from ethically representing the interests of Assignor at Trial herein. Nevertheless, Plaintiff’s counsel errs in its application for judgment in favor of individual Assignor exclusive of, aside and apart from Plaintiff Provider, which is denied.

For the foregoing reasons, Judgment Granted in favor of Defendant. Case is dismissed with prejudice.

This constitutes Decision, Opinion and Order of Court.

Dated: March 17, 2026
Brooklyn, New York
Hon. Sandra Elena Roper, JCCReactive Physical Therapy, P.C. v Progressive Cas. Ins. Co. (2026 NY Slip Op 50343(U))

Reported in New York Official Reports at Reactive Physical Therapy, P.C. v Progressive Cas. Ins. Co. (2026 NY Slip Op 50343(U))

[*1]

Reactive Physical Therapy, P.C. v Progressive Cas. Ins. Co.

2026 NY Slip Op 50343(U) [88 Misc 3d 1235(A)]

Decided on March 17, 2026

Civil Court Of The City Of New York, Kings County

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.

Decided on March 17, 2026

Reactive Physical Therapy, P.C., a/a/o Valle, Jordy, Plaintiff, against Progressive Casualty Insurance Company, Defendant(s)

Index No. CV-738351-22/KI



The Rybak Firm PLLC, Brooklyn, for Plaintiff.

McCormack & Mattei, P.C., New Hyde Park, for Defendant.
Sandra Elena Roper, J.

At Trial held on March 6, 2026, Decision, Opinion and Order upon due deliberation as follows:

Previously agreed upon stipulation for prima facie to both parties placed on the record, after which Plaintiff Rested. Defendant moved for Directed Verdict upon an offer of proof of the Declaratory Judgment Order Supreme Court Nassau County Index No. 611017/21. Staged accident Declaratory Judgment (hereinafter “DJ”) barred payment by Defendant to Plaintiff Provider for any and all bill payment reimbursements for relevant date of incident and policy number for No-fault bills of Assignor. However, DJ did not include the Assignor although an individual party defendant. Consequently, the DJ did not apply to the Assignor. Thereupon, pursuant to the defense of Res Judicata and Collateral Estoppel, Directed Verdict Granted in favor of Defendant.

However, in a rather novel argument. Plaintiff contended that the natural consequence of the DJ not including Assignor, is judgment in the amounts sued upon should be granted in favor of Assignor as an individual. Indeed, quite a legal leap. Firstly, Assignor is not a party in this instant action. It is well established that an assignor is a non-party rather than a real party-in-interest and assignors cannot be considered as real parties of interest (Inwood Hill Med., P.C. v Gen. Assur. Co., 10 Misc 3d 18 [App Term 2005]). Further, Assignor herein is not represented by counsel since a non-party. Arguendo, the DJ establishes the potential of a conflict of interest between Plaintiff Provider and Assignor, foreclosing Plaintiff’s counsel from ethically representing the interests of Assignor at Trial herein. Nevertheless, Plaintiff’s counsel errs in its application for judgment in favor of individual Assignor exclusive of, aside and apart from Plaintiff Provider, which is denied.

For the foregoing reasons, Judgment Granted in favor of Defendant. Case is dismissed with prejudice.

This constitutes Decision, Opinion and Order of Court.

Dated: March 17, 2026
Brooklyn, New York
Hon. Sandra Elena Roper, JCCHealthwise Med. Assoc., P.C. v Safe Auto Ins. Co. (2026 NY Slip Op 50986(U))

Reported in New York Official Reports at Healthwise Med. Assoc., P.C. v Safe Auto Ins. Co. (2026 NY Slip Op 50986(U))

Healthwise Med. Assoc., P.C. v Safe Auto Ins. Co.

2026 NY Slip Op 50986(U) [89 Misc 3d 1217(A)]

Decided on March 5, 2026

Civil Court of the City of New York, Kings County

Rena Malik, J.

As corrected in part through July 06, 2026; it will not be published in the printed Official Reports.

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

Civil Court of the City of New York, Kings County

Decided on March 5, 2026

Index No. CV-725627-21/KI

Rena Malik, J.

[*1]

Plaintiff commenced the instant action on June 4, 2021 seeking to recover no-fault benefits for medical treatment rendered to plaintiff’s assignor Donte Sinclair allegedly as a result of a motor vehicle accident that occurred on November 18, 2019.

On or about August 8, 2022, defendant filed a motion to dismiss the complaint (motion sequence no. 001). On or about May 11, 2023, plaintiff moved for leave to enter default judgment (motion sequence no. 002).^FN1 On or about August 29, 2023, plaintiff “cross-moved” pursuant to [*2]CPLR 3211 (c) to treat [presumably defendant’s] motion as one for summary judgment, and for leave to enter default judgment, and limiting the issues for trial pursuant to CPLR 3212(g) (see NYSCEF Doc No 10) (motion sequence no. 003).

In the motion to dismiss the complaint pursuant to CPLR 3211, defendant did not reference any subdivision. The Court presumes the motion is made pursuant to subdivisions (a) (1), (7), and/or (8) based on the arguments raised in the papers, which claim, inter alia, a lack of personal jurisdiction due to improper service of process and lack of long-arm jurisdiction as defendant is allegedly not an authorized New York insurer and not authorized to do business in New York.

“[W]here, as here, a defendant seeking to vacate a default raises a jurisdictional objection pursuant to CPLR 5015 (a) (4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default” (Rattner v Fessler, 202 AD3d 1011, 1015 [2d Dept 2022]; see SOS Capital v Recycling Paper Partners of PA, LLC, 220 AD3d 25, 31 [1st Dept 2023] [discretionary vacatur pursuant to CPLR 5015 (a) (1) “assumes personal jurisdiction exists over a defaulting defendant”; thus, a court “must first resolve the issue of personal jurisdiction over the individual defendants before determining whether it [is] appropriate” to consider discretionary vacatur]).

Lack of Personal Jurisdiction: Service of Process

Defendant argues that service of process was improper per BCL 307. However, the manner of service was not attempted through that statute (see NYSCEF Doc No 14, affidavit of service) and defendant ignores that service appeared to have been achieved by CPLR 311 (a) (1). “An affidavit of service constitutes prima facie evidence of proper service” (Ocwen Loan Servicing, LLC v Ali, 180 AD3d 591 [1st Dept 2020]) and “[t]o rebut this prima facie showing, defendant was required to submit a sworn, nonconclusory denial of service or swear to specific facts to rebut the statements in the process server’s affidavit” (JP Morgan Chase Bank v Dennis, 166 AD3d 530, 530-31 [1st Dept 2018]). Defendant failed to do so (see, e.g., Rattner, 202 AD3d at 1016–17; U.S. Bank N.A. v Telford, 153 AD3d 881, 881-82 [2d Dept 2017]). Accordingly, that branch of the motion is denied.

Lack of Personal Jurisdiction: CPLR 302 New York’s Long-Arm Statute

“[A] New York court may not exercise personal jurisdiction over a non-domiciliary unless two requirements are satisfied: the action is permissible under the long-arm statute (CPLR 302) and the exercise of jurisdiction comports with due process” (SOS Capital, 220 AD3d at 32, quoting Williams v Beemiller, Inc., 33 NY3d 523, 528 [2019] [internal quotations omitted]; see Aybar v US Tires and Wheels of Queens, LLC, 211 AD3d 40, 52 [2d Dept 2022] [“When all the requirements of CPLR 302 are met, the exercise of personal jurisdiction still must comport with constitutional due process requirements”]).

CPLR 302 (a) (1) provides, in relevant part, that “a court may exercise personal jurisdiction over any non-domiciliary” who “transacts any business within the state or contracts anywhere to supply goods or services in the state.” “[L]ong-arm jurisdiction over a nondomiciliary exists where (i) a defendant transacted business within the state and (ii) the cause of action arose from that [*3]transaction of business. If either prong of the statute is not met, jurisdiction cannot be conferred under CPLR 302 (a) (1)” (Johnson v Ward, 4 NY3d 516, 519 [2005]; Fanelli v Latman, 202 AD3d 758, 760 [2d Dept 2022] [CPLR 302 (a) (1)’s “jurisdictional inquiry is twofold: under the first prong the defendant must have conducted sufficient activities to have transacted business in the state, and under the second prong, the claims must arise from the transactions”], quoting Rushaid v Pictet & Cie, 28 NY3d 316, 323 [2016]; see Aybar, 211 AD3d at 48–49). By “transact[ing] any business,” “[t]he statute requires ‘[p]urposeful activities,’ i.e., ‘those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'” (PC-16 Doe v Hill Regional Career High School, 223 AD3d 518, 518-20 [1st Dept 2024], quoting Fischbarg v Doucet, 9 NY3d 375, 380 [2007]). Even “proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]).

“The ultimate burden of proving a basis for personal jurisdiction rests with the party asserting jurisdiction” (Fanelli, 202 AD3d at 759; see SOS Capital, 220 AD3d at 33). “When opposing a motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of jurisdiction, a plaintiff ‘need only make a prima facie showing’ that personal jurisdiction over the moving defendant exists” (Fanelli, 202 AD3d 758, 759 [2d Dept 2022], quoting Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2d Dept 2005]; see Aybar, 211 AD3d at 49). “The facts alleged in the complaint and affidavits in opposition to such a motion to dismiss are deemed true and construed in the light most favorable to the plaintiff, and all doubts are to be resolved in favor of the plaintiff” (Fanelli, 202 AD3d at 759, quoting Nick v Schneider, 150 AD3d 1250, 1251 [2d Dept 2017] [internal quotations omitted]).

In support of the motion arguing the lack of personal jurisdiction, defendant submitted, inter alia, an affidavit from Scott Spiers, the litigation manager of defendant, which states:

8. On June 1, 2021, Safe Auto Insurance Company agreed to be acquired by The Allstate Corporation through Allstate subsidiary National General Insurance (hereinafter “the acquisition”).

9. I am familiar with claim number [XXXXX]-354-926 related to Policy Number [XXXXXXXX]99A-00.

10. Policy Number [XXXXXXXX]99A-00 was issued to Donte Sinclair in the State of Pennsylvania through Safe Auto Insurance Company with a relevant policy period of August 5, 2019 to February 5, 2020.

11. Claim number [XXXXX]-354-926 related to Policy Number [XXXXXXXX]99A-00, was submitted to Safe Auto Insurance Company prior to its acquisition by The Allstate Corporation.

12. Prior to the acquisition, Safe Auto Insurance Company was not an “authorized insurer” and did not hold a Certificate of Authority to transact insurance in the State of New York.

13. Prior to the acquisition, Safe Auto Insurance Company did not have any insurance agents appointed to act on its behalf in the State of New York.

14. Prior to the acquisition, Safe Auto Insurance Company did not target the State of New York with advertisements.

15. Prior to the acquisition, Safe Auto Insurance Company did not own any real property in the State of New York.

16. Prior to the acquisition, Safe Auto Insurance Company had not filed a statement with the Superintendent of Insurance agreeing that its automobile insurance policies sold in any other state or Canadian province will be deemed to satisfy the financial security requirements of Article VI or VIII of the New York Vehicle and Traffic Law.

17. Prior to the acquisition, Safe Auto Insurance Company did not underwrite insurance policies in the State of New York and did not issue insurance policies in the State of New York.

18. Prior to the acquisition, Safe Auto Insurance Company did not adhere to the New York State No-Fault guidelines.

19. Prior to the acquisition, Safe Auto Insurance Company did not control any insurers authorized to transact or transacting business in the State of New York, was not controlled by any insurers authorized to transact or transacting business in the State of New York and was not under common control by or with any insurers authorized to transact or transacting business in the State of New York.

20. Further, Safe Auto Insurance Company was not an “authorized insurer” in the State of New York at the time claim number [XXXXX]-354-926 related to Policy Number [XXXXXXXX]99A-00 was submitted (NYSCEF Doc No 5 [policy numbers redacted]).

In light of above, the Court finds that defendant demonstrated that it did not engage in any transaction to conduct business or supply services or insurance coverage in New York and the Court lacks personal jurisdiction over it (see, e.g., Flatlands Med., P.C. v AAA Ins., 43 Misc 3d 49, 51 [App Term, 2d 11th & 13th Jud Dists 2014]; Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., 65 Misc 3d 143[A], 2019 NY Slip Op 51736[U], *1–2 [App Term, 2d 11th & 13th Jud Dists 2019]; see also Lancaster v Colonial Motor Frgt. Line, Inc., 177 AD2d 152, 157-59 [1st Dept 1992] [where a vehicle accident occurred in South Carolina and the “accident is not alleged to be, nor can it in any way be said to be, related to any possible business contacts or transactions which defendant corporation may have been engaged in at that time in the State of New York”]; Johnson, 4 NY3d at 520 [“Plaintiffs’ cause of action arose out of defendant’s allegedly negligent driving in New Jersey, not from the issuance of a New York driver’s license or vehicle registration”]; Fanelli, 202 AD3d at 758-61; Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489, 491 [2d Dept 2005] [“Contrary to Eagle’s contention, the mere unilateral act of Young, AIIC’s alleged insured, in driving into New York State, without more, was insufficient to permit the court to exercise long-arm jurisdiction over AIIC under the CPLR”]).

Plaintiff’s arguments in opposition that rely on Clarke are misplaced. The trial court in Clarke acknowledged that it may be possible for an out-of-state insurer to provide New York mandated insurance if it had filed a certificate regarding proof of financial responsibility under VTL § 344 (a) or perhaps if a court were to interpret policy language in such a way that “would make it fair and equitable to deem the insurer to be in compliance and conformity with New York law” (Property & Cas. Ins. Co. of Hartford v Clarke, 7 Misc 3d 358, 361 [Sup Ct, Kings County 2005]). However, such policy language was lacking in Clarke and in this case, plaintiff, without any first-hand knowledge whatsoever, speculates and surmises that defendant’s policy has some other specific language that would bring defendant within the jurisdiction of the state (see NYSCEF Doc No 11 at ¶¶ 55, 63). The Court finds such speculation as insufficient to meet its burden to prove general or specific jurisdiction, and failed to at least make a “sufficient start” to show that the alleged personal jurisdiction over defendant could exist and is not a “frivolous” “position” (cf. Peterson v Spartan Indus., Inc., 33 NY2d 463, 467 [1974]; Stardust Dance Prods., Ltd. v Cruise Groups Intl., [*4]Inc., 63 AD3d 1262, 1265 [3d Dept 2009] [where conflicting affidavits warranted discovery under CPLR 3211 [d] and/or a hearing on personal jurisdiction]). While plaintiff argues that defendant failed to submit all sorts of evidence (see NYSCEF Doc No 11 at ¶ 70), or that the Court needs to determine whether defendant is under the control of an authorized insurer (id. at ¶ 81), this is insufficient to meet its burden in opposing defendant’s motion. Plaintiff’s unsubstantiated and speculative allegations are insufficient (see, e.g., Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., 2019 NY Slip Op 51736[U], *2 [“neither the unverified complaint nor the conclusory affirmation of plaintiff’s counsel in opposition to defendant’s motion constituted the ‘tangible evidence’ necessary to substantiate plaintiff’s allegations that jurisdiction could exist, thereby demonstrating that plaintiff’s assertion of the existence of a jurisdictional predicate was not ‘frivolous'” [citations omitted]; Metro Health Products, Inc. v Maryland Auto Ins. Fund, 66 Misc 3d 146[A], 2020 NY Slip Op 50229[U], *2 [App Term 2d 11th & 13th Jud Dists 2020] [plaintiff failed to meet burden contesting personal jurisdiction where “[p]laintiff’s opposition papers consisted only of the affidavit of its owner attesting to the mailing policies and procedures of plaintiff, and the affirmation of its counsel, who had no personal knowledge of the underlying facts. Plaintiff failed to produce evidence showing a jurisdictional basis for the service”]).

In light of the above, the Court need not address the parties’ remaining arguments.

Accordingly, it is hereby ORDERED that defendant’s motion is granted (motion sequence no. 001) and the Clerk is directed to enter judgment in defendant’s favor dismissing the complaint; and it is further

ORDERED that the judgment entered July 15, 2022 is vacated as null and void (see supra, note 1); and it is further

ORDERED that plaintiff’s motion for default judgment (motion sequence no. 002) and cross-motion (motion sequence no. 003) are denied as moot; and it is further

ORDERED that the Clerk is directed to amend the caption in the court’s records to reflect the proper assignor name as Donte Sinclair in the place and stead of Rosa Rios.

This constitutes the decision and order of the Court.

DATE March 5, 2026

ENTER:

RENA MALIK

Judge of the Civil Court

Medical Diagnostic Ctr. v Ameriprise Ins. Co. (2026 NY Slip Op 50235(U))

Reported in New York Official Reports at Medical Diagnostic Ctr. v Ameriprise Ins. Co. (2026 NY Slip Op 50235(U))

[*1]

Medical Diagnostic Ctr. v Ameriprise Ins. Co.

2026 NY Slip Op 50235(U) [88 Misc 3d 1225(A)]

Decided on February 25, 2026

Civil Court Of The City Of New York, Kings County

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.

Decided on February 25, 2026

Medical Diagnostic Center a/a/o Laroche Parnel, Richard Djevra, Plaintiff, against Ameriprise Ins. Co., Defendant.

Index No. CV-736699/2021


Zara Javakov, Esq., P.C., Brooklyn, for Plaintiff.

Callinan & Smith LLP, Wantagh, for Defendant.
Sandra E. Roper, J.

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

Papers
Notice of Motion For Summary Judgment 1
Opposition/Cross-Motion 2
Reply
Exhibits
Other

After Oral arguments held on February 4 and 6, 2026, the Decision and Order on Defendant’s Motion for Summary Judgment pursuant to CPLR 3212 premised upon lack of No-Fault Coverage pursuant to NY Insurance Law Article 51, 11 NYCRR 65, for the reasons set forth below is hereby DENIED.

Defendant’s Motion for Summary Judgment is premised upon two distinct alternative fact patterns to establish that the alleged vehicular collision is not a covered event pursuant to No-Fault Law.

It is well established precedential case law, a staged or intentional vehicular collision is not a covered accident under New York State Insurance Law, thus a bar to vehicular insurance coverage (Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905-906 [2d Dept 2023], citing National Gen. Ins. Online, Inc. v Blasco, 210 AD3d 786 [2d Dept 2022]). In a most extreme example of an intentional albeit not per se staged vehicular collision which resulted in the operator being convicted of depraved indifference murder, the Appellate Division Second Department held:

“Under the automobile insurance policy issued to Eugene Wright, Allstate agreed to provide coverage for ‘accidents arising out of the ownership, maintenance or use . . . of an insured auto’. Hazel Wright’s actions of turning her vehicle around, accelerating, and striking the decedent with enough force to crush his skull, cannot be deemed ‘an accident’ within the meaning of the policy. Thus, the incident which led to the death of Robert Bostick did not fall within the scope of coverage provided by Eugene Wright’s automobile insurance policy” (Allstate Ins. Co. v Bostic, 228 AD2d 628, 628-629 [2d Dept 1996], citing People v Wright, 198 AD2d 249 [2d Dept 1993] and John Hancock Prop. & Cas. Ins. Co. v Warmuth, 205 AD2d 587 [2d Dept 1994]).

An accident is defined as an unforeseen unplanned happenstance lacking in intentionality ^[FN1] . Staged by its very definition is deliberately arranged for a desired outcome thus steeped in intentionality.^[FN2] Notwithstanding that the homicide victim was an innocent third-party, the court held that the operator committed an intentional vehicular collision which was not an “accident” and thus not an insurable event and denied coverage to the third-party innocent in a wrongful death action. Indeed, it has been consistently upheld, innocent third parties injured by staged intentional vehicular collisions shall not be afforded insurance coverage (Adirondack Ins. Exch. v Rodriguez at 905-906, citing (Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040 [2d Dept 2014]).^[FN3] The Insurer bears the initial burden to establish that the vehicular collision at issue is a staged intentional vehicular collision as a matter of law by the lower standard of proof, preponderance of evidence, as opposed to the higher standard of proof, clear and convincing evidence (Repwest Ins. Co. v Sasan Family Chiropractic, P.C., 2016 NY Slip Op 31413 [U] *9-11 [Sup Ct, NY County 2016], citing V.S. Med. Servs., P.C. v Allstate Ins. Co., 25 Misc 3d 39 [App Term 2009]). It is a matter of the admissible evidence proffered by the Insurer to so meet [*2]that standard of proof. Alone, alleged vehicular staged accident conspirators’^[FN4] affidavits are insufficient to meet this burden:

“Although by itself, Baptiste’s affidavit would not be sufficient, when his affidavit is considered together with the transcript of his recorded conversation detailing his role in underlying scheme as the driver of the U-Haul vehicle, as well as the affidavit of investigator Moran who personally interviewed Baptiste, recorded the conversation and certifies as to the truth of the transcription, plaintiff has made a sufficient prima facie showing that the collision was intentional and staged, and as such, is not a covered accident under plaintiff’s policy” (Repwest Ins. Co. v Sasan Family Chiropractic, P.C. at 7, citing Matter of Liberty Mut. Ins. Co. v Young, 124 AD3d 663 [2d Dept 2015], Emanvilova v Pallotta, 49 AD3d 413 [1st Dept 2008]; Matter of Travelers Indem. Co. v Cruz, 40 AD3d 362 [1st Dept 2007]; Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [2d Dept 2006]; Matter of Eagle Ins. Co. v Gueye, 26 AD3d 192 [1st Dept 2006]; State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2d Dept 2003]).

The court found that it was not the conspirator’s affidavit in and of itself that was sufficiently persuasive to meet the prima facie burden. Rather, the insurer investigator’s affidavit in which he swore under penalties of perjury that the alleged conspirator “told him that he intentionally struck the cab” was deemed “an admission and as such, properly considered as competent evidence in support of plaintiff’s prima facie case for the purpose of showing that the [*3]collision was staged” (id. at 5-6, Tower Ins. Co. of NY v Hossain, 134 AD3d 644 [1st Dept 2015]; Tower Ins. Co. of NY v Brown, 130 AD3d 545 [1st Dept 2015]; Castlepoint Ins. Co. v Jaipersaud, 127 AD3d 401 [1st Dept 2015]). The court noted that the investigator had personal knowledge as he directly spoke with the alleged conspirator, recorded the conversation, reduced the conversation to a written transcript which the investigator certified as to its accuracy and veracity of the conspirator’s verbal admission against his own interest of criminal conduct. Therefore, insurer’s admissible proffered proof by a preponderance of the evidence established that the vehicular collision was intentional and staged and thus insurer met its initial prima facie burden for summary judgment. The burden then shifted to provider seeking insurance coverage to rebut insurer’s prima facie case, which the court found it failed to so do (id.). Rejected by court were the following: provider attorney’s affirmation without corroborating affidavit by affiant with personal knowledge; provider’s conclusory attack on the admissibility and veracity of the affidavits and the police accident report; and provider’s argument for time for discovery where “it has failed to show that facts essential to oppose the motion are in plaintiff’s exclusive knowledge, or that discovery may lead to facts relevant to a viable defense” in mere hope that further discovery may lead to any evidence which would support provider’s rebuttal of insurer’s prima facie case (id. at 11, see Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905-906 [2d Dept 2023], citing Santiago v City of NY, 191 AD3d 715 [2d Dept 2021]; Blake v City of NY, 148 AD3d 1101 [2d Dept 2017]).

Here, in this instant matter, Defendant fails to meet its burden to establish prima facie entitlement for summary judgment as a matter of law. Defendant’s admissible proffered proof failed to establish that the vehicular collision was intentional and staged thereby failing to meet its prima facie burden for summary judgment. Defendant’s overreliance on driver’s testimony at EUO (“Examination Under Oath”) is misplaced. Its EUO interrogation of the driver was leading and would quite likely be subject to sustained objections by opposing counsel at trial. Most notably, “do you believe that you were set up?” (tr at 29, lines 3-4). Indeed, this line of interrogation is quite a leap from driver’s preceding testimony. In sum and substance, driver picked up two passengers for a paid trip through a software hail to a specific destination. During the trip, one of the two passengers asked to stop at a store, returned to the vehicle and made allegedly suspect phone calls. A block or two thereafter an inconsequential collision or sideswipe with negligible damage to his vehicle occurred with an unidentified vehicle which did not stop, as testified by the driver. Oftentimes, drivers and passengers are co-conspirators. Here, this driver is the accuser of the two passengers as being co-conspirators with the driver of the colliding unidentified vehicle. Driver testified that although the collision was inconsequential, nevertheless both passengers insisted on calling 911 after he overhears passengers’ phone call with mentions of back pain. Police arrived and both passengers were taken away by ambulance. Driver’s testimony, aided by a Creole interpreter, although credible and not mean-spirited, was aggrieved ^[FN5] , speculative, contradictory, inconsistent and conclusory primarily focusing on his perceived suspicious actions of the passengers as opposed to the actual collision. The prima facie [*4]burden to viably satisfy a staged accident motion for summary judgment is indeed a high one (see Plaintiff New S. Ins. Co. v Laforoue, *3-4, 2025 LX 26019 [Sup Ct, Suffolk County Jan. 6, 2025, No. 603485-2022; see also State Farm Mut. Auto. Ins. Co. v Maitre, *8-9, 2024 LX 73966 [Sup Ct, Suffolk County June 28, 2024, No. 602865-2022]). One-sided testimony is woefully deficient, particularly where the conspiratorial allegations against the passengers are not merely civil in nature but also exposes the passengers to criminal prosecution.^[FN6] Even smoking gun affidavits of confessions in staged accidents may not necessarily be sufficient to satisfy the high staged accident prima facie burden (see NYRX Pharm. Inc. v Mid-Century Ins. Co., 80 Misc 3d 1225[A], 2023 NY Slip Op 51094[U] [Civ Ct, Kings County 2023] [Insurer’s one-sided notarized fill-in affidavits of confession in staged accident by Spanish/English speakers insufficient as a basis for summary judgment]). 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. This is the case, herein. Defendant fails to have met its burden for judgment as a matter of law premised upon staged accident.

As court Decides supra, that Defendant failed to establish no coverage premised upon staged accident, it argues in the alternative, that no coverage is premised upon the policy exclusion for TNC (“Transportation Network Company”) vehicles. Of which, Defendant also fails to establish judgment as a matter of law in its favor.

Indeed, the policy at issue contains coverage exclusion for TNC vehicular accidents:

“10. For that insured’s liability arising out of the ownership or operation of a motor vehicle while the motor vehicle is being used by a transportation network company driver who is logged onto the transportation network company’s digital network but is not engaged in a transportation network prearranged trip or while the driver provides a transportation network company prearranged trip” (NY St Cts Elec Filing [NYSCEF] Doc No. 23, Nohr Affidavit, Exhibit O).

Nevertheless, Defendant errs in its failure to consider its policy’s integral definition of TNC vehicles, which is identical to the New York State statutory definition (NY CLS Veh & Tr § 1691). Colloquially at first blush, the plain reading of the definition would appear to be all encompassing of any and all vehicular passenger rides for a fee emanating from software or digital app. However, the exclusions that follow significantly narrow the initial expansive plain meaning of the definition (NY CLS Veh & Tr § 1691 1[c]). Further, there is supplementary statutory narrowing of those very exclusions (NY CLS Veh & Tr § 16911[c] [i], [iii], [iv]; NYC Administrative Code 19-502; NY CLS Veh & Tr § 16911[c] [ii]; NY CLS Veh & Tr § 121-e)^[FN7] .

The insured driver/owner of the vehicle testified at EUO: he has a Class E New York [*5]Driver’s License ^[FN8] ; he pays Mex a Brooklyn car service $120.00 in cash weekly solely at his discretion in which he bids on available rides on his phone via Limosys app. The New York State Transportation Network Company Act is relatively new, becoming effective as of June 29, 2017, currently licensing solely Uber and Lyft.^[FN9] “A TNC is a business, also known as a ‘rideshare company’, licensed by DMV to use a digital network (smartphone app) to connect passengers to TNC drivers for prearranged trips.”^[FN10] Although Limosys used by Mex car service to send rides to driver/owner for the trip herein is a transportation hailing software it is not recognized as a TNC rideshare company pursuant to the statutory definition. Additionally, the driver/owner had a Class E Driver’s License, which is required to operate livery, taxi or limousine, whereas it is not so required for TNC drivers.^[FN11] The City of New York as other cities with populations of one million or more are exempted from the State’s TNC Law.^[FN12] Thus, although Uber and Lyft are licensed New York State TNCs, they are not TNCs while operating within the City of New York and must comply with the NYC Taxi and Limousine Commission (TLC) Rules and Regulations (NYC Charter 2303 [a]).

Although precedential case law is scant: “TLC granted an Uber-affiliated entity a license to operate a black car base station in the City” (Singh v City of NY, 40 NY3d 138, 143 [2023]; NY CLS Veh & Tr § 16911[c][iii]). “The Second Department has held that Lyft cars operating in NYC are considered for-hire vehicles rather than TNC vehicles [and] ‘black cars’ are considered for-hire vehicles under the Administrative Code, § 19-502(u)” (Old Republic Ins. Co. v Stile, 2025 NY Slip Op 34715[U] [Sup Ct, NY County 2025], citing Matter of Progressive Ins. Co. v Service, 241 AD3d 690 [2d Dept 2025]; Matter of Progressive Ins. Co. v Callahan, 232 AD3d 903 [2d Dept 2024]); Matter of Progressive Ins. Co. v Baby, 232 AD3d 902 [2d Dept 2024]). It is consistently conclusive that there is no TNC that can lawfully operate within the City of New York, even if an Uber or Lyft State TNC. Thus, in this instant matter, the driver/owner’s vehicle which was apparently duly licensed and registered was not, nor could it have been operating as a TNC when the vehicular collision occurred in the Borough of Brooklyn, City of New York on February 10, 2021. Defendant further errs in its argument that [*6]its policy excludes coverage for use of the insured vehicle as a livery. Rather, its argument was based upon TNC exclusion with a mere mention of livery, which was inconsistent with the definition of TNC. The policy excludes coverage for use as TNC vehicle, whereas not excluding coverage for use as a livery vehicle, a black car vehicle or a for-hire vehicle (NY St Cts Elec Filing [NYSCEF] Doc No. 23, Nohr Affidavit, Exhibit O at 15—17). Each of the denials for the bills at issue although found timely, the basis for the denials is improper based upon This Court’s deliberation.

For all the foregoing reasons, Defendant’s motion for summary judgment is hereby in its entirety DENIED.

This shall constitute the Decision and Order of This Court.

The undersigned attorneys certify that upon due diligence none of their firm’s papers as pertains to case law associated with this case or this motion, and upon information and belief, none of the associated papers that were drafted post January 1, 2022 used generative artificial intelligence programs.

DATE February 25, 2026
HON. SANDRA E. ROPER

Footnote 1:Merriam-Webster, https://www.merriam-webster.com/dictionary/accident (accessed Oct. 5, 2023); Vocabulary.com, https://www.vocabulary.com/dictionary /accident (accessed Oct. 5, 2023).

Footnote 2:Vocabulary.com, https://www.vocabulary.com/dictionary/s taged (accessed Oct. 5, 2023).

Footnote 3:“[I]f GEICO can prove that the collision was staged by Robinson, its insured, it would not be obligated to provide coverage under the policy regardless of whether Pontoon was an innocent third party (Nationwide Gen. Ins. Co. v Pontoon at 1041, citing Matter of Travelers Indem. Co. v Richards-Campbell, 73 AD3d 1076 [2d Dept 2010]; Govt. Emples. Ins. Co. v Shaulskaya, 302 AD2d 522 [2d Dept 2003]; Morris v Allstate Ins. Co., 261 AD2d 457 [2d Dept 1999]; Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [2d Dept 2006]; State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2d Dept 2003]).

Footnote 4:Although these matters are civil as to insurance coverage in perpetration of staged vehicular collisions, it is a New York criminal Class D and E felony pursuant to Alice’s Law effective 11/1/2019: Sections NY CLS Penal § 176.75 and NY CLS Penal § 176.80:

• § 176.75 Staging a motor vehicle accident in the second degree.
• A person is guilty of staging a motor vehicle accident in the second degree when, with intent to commit and in furtherance of a fraudulent insurance act, he or she operates a motor vehicle and intentionally causes a collision involving a motor vehicle.
• Staging a motor vehicle accident in the second degree is a class E felony. • § 176.80 Staging a motor vehicle accident in the first degree.
• A person is guilty of staging a motor vehicle accident in the first degree when he or she commits the offense of staging a motor vehicle accident in the second degree and thereby causes serious physical injury or death to another person, other than a participant in such offense.
• Staging a motor vehicle accident in the first degree is a class D felony.

(2019 NY ALS 151, 2019 NY Laws 151, 2019 NY Ch. 151, 2019 NY AB 3985). Further, there is also Federal criminal exposure to alleged conspirators: “‘As alleged, these defendants played bumper cars with the lives of unsuspecting New Yorkers, all to enrich themselves through insurance fraud. Insurance fraud through staged accidents presents a danger not only to the public health but also exacts a high cost to the public in the cost of insurance,’ stated United States Attorney Lynch. ‘We and our law enforcement partners will vigorously pursue and prosecute those who seek to profit by such fraud'” (Eight Indicted In Two Million Dollar Staged Accident Conspiracy, United States Attorney’s Office Eastern District Press Release, available at https://www.justice.gov/usao-edny/pr/eight-indicted-two-million-dollar-staged-accide nt-conspiracy [May 8, 2013]).

Footnote 5:This accident is driver’s first during the only year that he drove as a taxi and he stopped as a result of this accident, as he testified referring to the alleged injured passengers: “The two people who put me in this predicament” (NY St Cts Elec Filing [NYSCEF] Doc No. 28, Nohr Affidavit, Exhibit T, tr at 18, line 18).

Footnote 6:See n 4, supra.

Footnote 7:“Every motor vehicle, other than a taxicab or a bus, used in the business of transporting passengers for compensation. However, it shall not include vehicles which are rented or leased without a driver” (NY CLS Veh & Tr § 121-e).

Footnote 8:“(v) Class E. Such license shall be valid to operate only vehicles which may be operated with a class D license, except that in addition it shall be valid to operate any such motor vehicle, other than a vehicle defined as a bus in subdivision one of section five hundred nine-a of this chapter, used to transport up to fourteen passengers for hire and other than an altered motor vehicle commonly referred to as a “stretch limousine” having a seating capacity of nine or more passengers including the driver (NY CLS Veh & Tr § 501 2 [a] [v]).

Footnote 9:Department of Motor Vehicles, Information for Transportation Network Company (TNC) Passengers, https://dmv.ny.gov/business/information -for-tnc-passengers#:~:text=A%20Transportation%20Network%20Company%20(TNC,Opting% 20Out.

Footnote 10:See n 9, supra.

Footnote 11:See n 9, supra.

Footnote 12:See n 9, supra; NY CLS Veh & Tr § 1692 (10); NY CLS Veh & Tr § 1693 (12).New York Heritage Med Serv, PLLC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50099(U))

Reported in New York Official Reports at New York Heritage Med Serv, PLLC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50099(U))

[*1]

New York Heritage Med Serv, PLLC v Nationwide Affinity Ins. Co. of Am.

2026 NY Slip Op 50099(U) [88 Misc 3d 1215(A)]

Decided on January 28, 2026

Civil Court Of The City Of New York, Kings County

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.

Decided on January 28, 2026

New York Heritage Med Serv, PLLC, a/a/o HAYNES, VERNAL, Plaintiff, against Nationwide Affinity Insurance Company of America, Defendant.

Index No. CV-754273-21/KI



The Rybak Firm PLLC, Brooklyn, for Plaintiff.

Hollander Legal Group, P.C., Melville, for Defendant.
Sandra E. Roper, J.

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

After oral argument, Defendant’s Motion for Summary Judgment is GRANTED and Plaintiff’s Cross Motion for Summary Judgment is DENIED. Plaintiff established that it timely mailed the bills at issue to Defendant. After receiving the bills, Defendant timely noticed examinations under oath (“EUO”) of the Plaintiff by letters dated July 21, 2021, August 6, 2021, and September 24, 2021. Defendant further established that Plaintiff failed to appear for EUOs on September 23, 2021, after the previously agreed upon reschedule, and November 16, 2021. Plaintiff’s Second Request for a reschedule the day before the scheduled EUO on September 23, 2021 premised upon ongoing negotiations was not agreed upon by Defendant and thus not rescheduled. An EUO reschedule cannot be unilateral. Rather, it must be agreed upon, in which it was not so done here. Plaintiff contacted Defendant and requested the EUO be scheduled in [*2]September 2021 and then November 2021, of which Defendant agreed and accommodated to do so, accordingly scheduling the EUOs for September 23. 2021 and November 16, 2021, respectively. See MSB Physical Therapy, P.C. v. Nationwide Ins., 2022 NY Slip Op 50902(U).

Thus, the case is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Date: January 28, 2026
Brooklyn, New York
Honorable Sandra E. Roper
Judge, Civil Court, Kings County