JPM Physical Therapy, P.C. v Foremost Prop. & Cas. Ins. Co. (2026 NY Slip Op 50089(U))

Reported in New York Official Reports at JPM Physical Therapy, P.C. v Foremost Prop. & Cas. Ins. Co. (2026 NY Slip Op 50089(U))

[*1]

JPM Physical Therapy, P.C. v Foremost Prop. & Cas. Ins. Co.

2026 NY Slip Op 50089(U) [88 Misc 3d 1213(A)]

Decided on January 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2026

JPM Physical Therapy, P.C., A/A/O Ricardo Suarez, Plaintiff(s), against Foremost Property and Casualty Insurance Company, Defendant(s).

Index No. CV-700147-21/KI



The Rybak Firm PLLC, Brooklyn, for Plaintiff.

Law Offices of Rothenberg & Romanek, Garden City, for Defendant. Sandra Elena Roper, J.

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
Answering Affidavits ___
Replying Affidavits ___
Exhibits ___
Other ___

Upon the foregoing papers, and after oral Argument on the record held January 22, 2026, the Decision and Order on Defendant’s Motion to Compel Acceptance of Answer and Plaintiff’s Cross-Motion for Default Judgment are hereby decided as follows:

Defendant’s Motion to Compel Acceptance of Answer is GRANTED and Plaintiff’s Cross-Motion is hereby DENIED. Plaintiff’s application for a traverse hearing to determine which of two affidavits of service should prevail is rejected. Of emphasis, both affidavits of service were provided by Plaintiff and neither one by Defendant. Arguendo, where Defendant had countered Plaintiff’s affidavit of service with a contradictory affidavit of service may have triggered a traverse hearing, this is not the facts herein. Most notably, Plaintiff’s Cross-Motion for Default Judgment appended to be considered as its Exhibit 2, affidavit of service stating served on “Wednesday, February 24, 2021, at Friday, March 12, 2021” which was notarized on Saturday, “March 13, 2021“. Whereas, not appended to Plaintiff’s moving papers is a second affidavit of service designated as NYSCEF 2 stating served on “February 24, 2021” which was notarized on “Thursday April 21, 2022“. Where there are two distinct dates of notarization, Plaintiff’s scrivener’s error argument that the actual date of service was on February 24,2021, its more favorable date, as opposed to March 12, 2021, fails.

Procedurally, it is the papers contained within the motion that are to be considered by the court notwithstanding other documents contained within the clerk of court records. Plaintiff cannot be prejudiced by its own contradictory evidence herein. Rather, the movant’s contradictory evidence inures to the benefit of and in the light most favorable to opposing respondent. Notwithstanding the contradictions, jurisdiction of This Court is established. Further, Plaintiff errs as it argues that the court lacks authority to make findings of fact herein because of contradictory language. On the contrary, not being considered is the prayer for relief for summary judgment, which would indeed bar court from engaging in fact finding as a matter of law. However, in both instant motions for default judgment and to compel acceptance of Answer, it is within This Court’s limited powers in equity to engage in some fact finding to make its decision.

Consequently, March 12, 2021, is deemed the service date, which upon calculation of the Answer served on April 22, 2021, results in being about seven days late. This Court finds this lateness di minimis in its exercise of its judicial discretion and thus in furtherance of the strong public policy favoring resolution of cases on the merits, Defendant’s Answer is deemed accepted non pro tunc.

This constitutes the Decision and Order of the Court.

Dated: January 27, 2026
Brooklyn, New York
Hon. Sandra Elena Roper, JCCAdvantage Radiology, P.C. v ACE Am. Ins. Co. (2026 NY Slip Op 50245(U))

Reported in New York Official Reports at Advantage Radiology, P.C. v ACE Am. Ins. Co. (2026 NY Slip Op 50245(U))

[*1]

Advantage Radiology, P.C. v ACE Am. Ins. Co.

2026 NY Slip Op 50245(U) [88 Misc 3d 1226(A)]

Decided on January 27, 2026

Civil Court Of The City Of New York, Richmond County

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.

Decided on January 27, 2026

Advantage Radiology, P.C. As Assignee Of ATYBA OROSCO, Plaintiff(s) against ACE American Insurance Company, Defendant(s)

Index No. CV-723185-22/RI

Robert J. Helbock, J.

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 Motion #2, NYSCEF Doc#: 11-19
Answering Affidavits/ Affirmations NYSCEF Doc#: 21
Reply Affidavits/ Affirmations NYSCEF Doc#: 22-25
Memoranda of Law
Other

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

Plaintiff, Advantage Radiology, P.C. (hereafter referred to as “Plaintiff”), as assignee of Atyba Orosco (hereafter referred to as “Assignor”), commenced this action against the defendant, Ace American Insurance Company (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 pursuant to a No-Fault insurance policy issued by the Defendant.

The Defendant moves for an order (i) pursuant to CPLR §3211(a)(2), (5), and (7) dismissing the complaint on the grounds that the Court does not have subject jurisdiction because the N.Y.S. Workers’ Compensation Board has exclusive jurisdiction to decide the claim.

The complaint in this matter alleges the assignor was injured in a motor vehicle accident on May 6, 2022. The Plaintiff’s complaint alleges it provided medical treatment to the assignor on May 31, 2022 and billed the sum of $967.70. The complaint also alleges the Plaintiff [*2]provided medical treatment to the assignor on June 7, 2022 and billed the sum of $1,003.20 to the Defendant. The complaint alleges those sums remain unpaid.

The Defendant moves to dismiss the complaint on the grounds that the N.Y.S. Workers’ Compensation Board issued a decision the following year, on May 16, 2023 establishing that the assignor’s injuries were related to a work-related accident. The Defendant argues that since the Workers’ Compensation Board established that the workers’ compensation insurance carrier is liable for injuries to the assignor/claimant’s right hand, right foot and left knee, this Court does not have subject matter jurisdiction to determine if the Defendant No-Fault carrier failed to timely pay the bill.

The Plaintiff opposes the motion alleging the Defendant failed to issue a timely denial of the bill, and the defense of the assignor’s eligibility for workers’ compensation benefits is subject to preclusion. Therefore, the Defendant’s failure to timely deny the bill precludes the Defendant from raising the assignor’s eligibility for workers’ compensation benefits more than one year after the bill.

The N.Y.S. Workers’ Compensation Law (hereafter referred to as “WCL”) §20 directs that the N.Y.S. Workers’ Compensation Board (hereafter referred to as “NYSWCB”) “shall have full power and authority to determine all questions in relation to the payment of claims presented to it for compensation under the provisions of this chapter” (NY WCL §20). Therefore, the NYSWCB determines if the claim is covered by a worker’s compensation insurance carrier.

However, the N.Y.S. Court of Appeals ruled that the NYSWCB has “primary jurisdiction, but not necessarily exclusive jurisdiction” regarding issues involving the accident (Liss v Trans Auto Systems, Inc., 68 NY2d 15 [1986]). The Court said, “[N]o one should be precluded from relitigating those issues in a court of law who has not had the opportunity to participate in the compensation hearing.” (Liss v Trans Auto Systems, Inc., 68 NY2d 15, at P. 20 [1986]. “The [NYSWCB] thus has primary jurisdiction over the issue of availability of coverage (Id. Liss, citing, Botwinick v Odgen, 50 NY2d 9-9, 911, and Peckham v Peckham Materials Corp., 102 AD2d 884) and a plaintiff has no choice but to litigate this issue before the Board.” (Liss v Trans Auto Systems, Inc., 68 NY2d 15 at P. 20 [1986], citing Cunnigham v. State of New York, 60 M.Y.2d 248, and McMillan v. Notre Dame Residence Club, 33 Misc 2d 948).

The Defendant relies on Seigel v Garibaldi (158 AD3d 1049 [3d Dept, 2018]) to allege that this Court does not have jurisdiction over the No-Fault claim involving the accident. The movant quoted Seigel as stating, “Workers’ Compensation is plaintiff’s exclusive remedy, ‘in place of any other liability [whatsoever;’] see, Seigel v. Garibaldi, 158 AD3d 1049, 73 N.Y.S.3d 253.”^[FN1] Actually, the relevant quote from the Seigel decision is:

“There is no dispute that plaintiff and defendant were co-employees, that plaintiff was injured in the course of his employment and that he collected workers compensation benefits for his injuries. Pursuant to Workers Compensation Law §29(6), such benefits are the exclusive remedy for an employee injured ‘by the negligence or wrong of another in the same employ.’ The sole question presented is whether the defendant was acting [*3]within the scope of his employment at the time of the accident so as to trigger the exclusivity provisions of the Workers Compensation Law” (Siegel v. Garibaldi, 158.3d 1049, at P. 149 [3d Dept., 2018], citing NY WCL §29(6) and Maines v. Cronomer Val. Fire Dept., 50 NY2d 535, 544 [1980]).

So, the decision is ruling that the “exclusive remedy” pursuant to the workers’ compensation law relates to the determination of whether the accident was covered by the workers’ compensation law and policy. In this instance, the issue before the Court is to determine if the Defendant complied with the N.Y.S. Insurance Law pertaining to the timely payment or denial of the claim pursuant to the No-Fault insurance policy. This issue is distinguishable from the arguments raised by the Defendant and their reliance upon Seigel.

The Plaintiff’s opposition to the motion relies on Westchester Med. Ctr. v. American Tr. Ins. Co. (60 AD3d 848 [2d Dept., 2009]) to argue that that the Claimant must pay or deny the claim within 30 days. However, this Court finds that the Westchester decision did not reach that conclusion. Rather, the Court in Westchester Med. Ctr. ruled that American Transit Insurance Company’s timely verification request determined the claim was covered under a worker’s compensation policy and therefore, the denial of the No-Fault insurance claim was proper. In that instance, the insurer complied with the 30-day rule (11 NYCRR 65-[3.8])^[FN2] and the Court ruled in the insurer’s favor. That was not the case in this instance.

The Plaintiff’s opposition also argues that the Defendant failed to raise the defense of eligibility under the worker’s compensation policy in a timely denial.

The No-Fault regulations require the insurer to pay or deny a claim for No-Fault insurance benefits within 30-days of the receipt of the claim (11 NYCRR 65-3.8, referred to as the “30-day rule”). The Appellate Division, Second Department has ruled that the “defendant’s possible entitlement to offset any no-fault benefits it pays by any recovery pursuant to a workers compensation claim does not constitute a defense of lack of coverage, which is not subject to the requirement that there be a timely service of the disclaimer.” (Westchester Medical Center v. Lincoln General Ins. Co., 60 AD3d 1045 [2nd Dept., 2009], citing, 11 NYCRR §65-3.5[a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 N.Y3d 556, 663; remaining citations omitted). The Appellate Term ruled that, “since the defense of assignor’s eligibility for worker’s compensation benefits is subject to preclusion (citing, Westchester Med. Ctr. v Lincoln Gen,. Ins. Co.) defendant was required to demonstrate that it timely denied plaintiff’s claims on said grounds within 30 days of their receipt” (A.B. Medical Services, PLLC v. American Transit Ins. Co., 24 Misc 3d 127(A) [App Term, 9th and 10th J.D., 2009]; citing Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274 at P.282 [1997]).

This Court has the subject matter jurisdiction to determine if the Defendant complied with the No-Fault law and insurance policy. The NYSWCB has the primary jurisdiction to determine if an accident is work related and determine all claims made pursuant to the workers’ [*4]compensation insurance policy. The two are not mutually exclusive.

Pursuant to the No-Fault insurance regulations, the defense of workers’ compensation coverage to a claim for No-Fault insurance benefits must be raised within 30-days of the receipt of the No-Fault insurance claim (11 NYCRR §65-3.8). In this instance, the Defendant did not offer any evidence of a timely denial or verification request with the motion to dismiss. Therefore, the Defendant did not demonstrate that it timely complied with the 30-day rule (11 NYCRR §65-3.8). It is alleged that the first time the Plaintiff became aware of the workers’ compensation claim was in the Defendant’s answer to the complaint in this action. As a result, the Defendant has failed to meet its prima facie burden of proof for the motion to dismiss.

The Court notes that if, after trial, the Defendant is found liable for the bill, the Defendant has the remedy of recovery for the payment of the bill from the workers compensation insurance carrier pursuant to WCL §13(d)(1).

Accordingly, the Defendant’s motion to dismiss is denied, and the matter is referred for trial.

This is the decision and order of the Court.

Date: January 27, 2026
Hon. Robert J. Helbock
Judge, N.Y.C. Civil Court

Footnote 1:Affirmation in Support of Motion #2, NYSCEF Document #12, Page 3, Par. 6.

Footnote 2:The section of the regulations has been changed from §65-3.5(a) to §65-3.8 since the decision of the Court in Westchester Med. Ctr. v. American Tr. Ins. Co. Pedro Torres-Jimenez, MD PC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50073(U))

Reported in New York Official Reports at Pedro Torres-Jimenez, MD PC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50073(U))

[*1]

Pedro Torres-Jimenez, MD PC v Nationwide Affinity Ins. Co. of Am.

2026 NY Slip Op 50073(U)

Decided on January 13, 2026

Civil Court Of The City Of New York, Kings County

Malik, 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 13, 2026

Pedro Torres-Jimenez, MD PC AAO JESSICA BARROS, Plaintiff, against Nationwide Affinity Ins. Co. of America, Defendant(s).

Index No. CV-720286-21/KI



Attorneys for plaintiff
Oleg Rybak, Esq.
Richard Rozhik, Esq.
The Rybak Firm PLLC
1810 Voorhies Avenue
3rd Floor Suite 7
Brooklyn, New York 11235
Tel. (718)975-2035

Attorneys for defendant
Allan Scott Hollander, Esq.
Christopher J. Volpe, Esq.
Hollander Legal Group, PC
105 Maxess Road
Suite N109
Melville, New York 11747
Tel. (631) 333-1300


Rena Malik, J.

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

NYSCEF Doc Nos. 2-4, 29-34; 7-9, 11-28; 35-39; 40-46

Jessica Barros, plaintiff-assignor, was involved in a motor vehicle accident on July 2, 2020, and sought medical treatment from Pedro Torres-Jimenez, MD PC (plaintiff). Plaintiff commenced this action against Nationwide Affinity Insurance Company of America seeking to [*2]recover $3,228.78 representing the balance of alleged first-party no-fault benefits for medical services provided to plaintiff-assignor.

Upon the foregoing papers, plaintiff moves pursuant to CPLR 3211 (b) to dismiss defendant’s 36 affirmative defenses (motion sequence no. 001). Defendant opposes plaintiff’s motion and cross-moves for summary judgment (motion sequence no. 002).

Defendant’s Cross-Motion for Summary Judgment

Defendant seeks summary judgment on the grounds that plaintiff failed to provide verification of the claim within 120 days of the initial request pursuant to the no fault regulations.^[FN1] . In support of the cross-motion, defendant submits an attorney affirmation, the pleadings, affidavit of Claims Manager Lynn Ellis, EUO letter dated 10/9/2020, response dated 10/15/2020, amended EUO letter dated 10/16/2020, response dated 11/4/2020, EUO transcript dated 11/16/2020, post-EUO request for verification dated 11/23/2020, follow up request post-EUO for verification dated 12/29/2020, second follow up request post-EUO for verification dated 3/11/2021, attorney affidavit of merit, no-fault affidavit of merit, affidavit of merit by Linda Arnold, Claims Specialist III.

The movant on a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). CPLR 3212 provides that a summary judgment motion must be supported by an affidavit of a person with knowledge of the facts, as well as other admissible evidence (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-386 [2005]).

Once such a showing is made, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986], citing Zuckerman, 49 NY2d at 562).

The no fault insurance scheme is designed to provide a quick resolution of the reimbursement of claims, avoid litigation, and incentivize an insurer to seek verification of a claim, deny it, or pay it in short order (see Viviane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498, 506-07 [2015]; Matter of Med. Socy. of State v Serio, 100 NY2d 854, 860 [2003]). The procedure to verify, deny, or pay claims is codified and governed by Insurance Law 5106 (a).

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received” (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009]). If the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of receipt of the proof of claim (11 NYCRR 65—3.5[b]; see New York Univ. Hosp. Tisch Inst. v Govt. Employees Ins. Co., 117 AD3d 1012, 1014 [2d Dept 2014]).

“Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the [*3]expiration of that 30—day period, must follow up with a second request for verification (see 11 NYCRR 65—3.6 [b])” (Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 120 AD3d 561, 563 [2d Dept 2014]). The insurer may deny the claim if the applicant fails to provide the verification within 120 calendar days from the date of the initial request, unless the applicant provides written proof providing reasonable justification for the failure to comply (11 NYCRR 65-3.5 [o]).

To meet its prima facie burden, defendant must establish that “it had timely mailed initial and follow-up verification requests; that it had not received the requested verification; and that it had timely denied the claim on that ground” (Psychology YME, P.C. v Travelers Ins., 65 Misc 3d 146[A], 2019 NY Slip Op 51798[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Solution Bridge, Inc. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 152[A], 2018 NY Slip Op 51784[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Mailing and Follow Up for Verification Requests

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013], affd 25 NY3d 498 [2015] [internal quotation marks and citations omitted]). “‘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'” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]). “Actual mailing may be established by a proper ‘certificate [of mailing] or by [an] affidavit of one with personal knowledge'” (J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [citation omitted]). “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 Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]).

Here, the Court finds that defendant established its timely mailing of the initial and follow up verification requests for a provider EUO through the affidavit of Claims Manager Lynn Ellis, addressing defendant’s practices and procedures for processing no-fault claims, including verifications requests, letters and denials as well as her personal knowledge regarding this claim (NYSCEF Doc No. 15, Ellis aff). With respect to this particular claim, Ellis confirmed that the bill was received on September 21, 2020, defendant sent the initial verification within 15 business days on October 8, 2020, and a follow up was sent on November 10, 2020 — within 10 days from the 30th day after the initial verification request was mailed (id. at ¶ 31-33; NYSCEF Doc No 16).

The Ellis affidavit accordingly sufficiently establishes that the verification requests were mailed in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Blackman v Nationwide Ins., 66 Misc 3d 128[A], 2019 NY Slip Op 52038[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]) and in a timely manner as required by 11 NYCRR 65—3.6 (b).

Outstanding Verifications

Plaintiff-provider submitted to an examination under oath (EUO) on November 16, 2020.

Defendant claims that plaintiff’s testimony raised questions that could be relevant to a possible defense. Attorney Kaufman described that plaintiff’s principal could not answer or had [*4]difficulty answering questions regarding the formation of the professional corporation entity, its locations, whether it pays rent, where patients are seen, and the identity of medical providers and employees, affiliation with other entities and individuals and payment of taxes (NYSCEF Doc No. 12, Kaufman aff at ¶ 28). The affidavit of Linda Arnold, Claims Specialist III, who is responsible for investigating medical providers by verifying that they are licensed or ineligible to receive no-fault reimbursement, itemizes the specific additional verification sought from plaintiff post-EUO (NYSCEF Doc No. 28, Arnold aff at ¶ 7).

The post-EUO verification request was sent on November 23, 2020 and a follow up was sent on December 29, 2020 (NYSCEF Doc No. 12, Kaufman aff at ¶ 29-30). Plaintiff responded in part on March 3, 2021 and asserting its objection to the request for additional verification and scope of the discovery sought (NYSCEF Doc No. 12, Kaufman aff at ¶ 31 and NYSCEF Doc No. 24, exhibit L). Defendant followed up again noting deficiencies on March 11, 2021 (id. at ¶ 32 and NYSCEF Doc No. 25, exhibit M). Arnold specifies several items that remain outstanding to date in the verification request and references the corresponding portions of the EUO transcript (see NYSCEF Doc No. 28, Arnold aff, p. 4-10).

In opposition, plaintiff points to 11 NYCRR 65-3.8(a)(1), which states:

No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart. In the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day of the examination was performed.

Plaintiff argues that the verification was deemed “received” on the date of the EUO on November 16, 2020 and that the additional verification request sent post-EUO was untimely, as “11 NYCRR 65-3.5 (b) provides that “any additional verification . . . shall be requested within 15 business days of receipt of the prescribed verification forms” (Burke Physical Therapy, P.C. aao Rush v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024] [emphasis in original]; see also Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]; A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53 [2d Dept 2012]; Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

This Court agrees. Even when the time to pay or deny a claim has been tolled by a timely verification request, “the Regulations do not provide that such a toll grants an insurer additional opportunities to make requests for verification that would otherwise be untimely” (Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Defendant relies on Nationwide Affinity Ins. Co. v Gepp, 234 AD3d 1320 (4th Dept 2025), which permitted post-EUO verification requests that were otherwise untimely. In Gepp, the Fourth Department held that “[u]nder the specific facts of this case . . . post-EUO requests were proper” because the parties had “charted their own litigation course” — the court held the provider to the agreements they made at the EUO. Specifically, “[r]ather than continuing to request EUOs in the hope that defendants produced a knowledgeable representative,” counsel for the parties agreed that those issues would be best resolved by written demands and answers” (id. at 1323 [internal citation omitted]). Accordingly, Gepp was a very specific set of circumstances where the parties had agreed to conduct additional verification in writing rather than conduct an EUO of a different witness and the Gepp Court made clear that the post-EUO requests were [*5]proper “[u]nder the specific facts of this case” — it was not intending to expand the timeliness or scope of verifications otherwise mandated in the clearly written regulations.

Accordingly, based on these undisputed facts, the Court finds defendant failed to meet its prima facie burden on this defense and the “[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad, 64 NY2d at 853).

Plaintiff’s Motion to Dismiss Affirmative Defenses

In support, plaintiff submits an attorney affirmation, the pleadings, assignment of benefits, verification of treatment (NF-3), opinion of the NYS Department of Financial Services regarding billing codes and ICD diagnosis codes.

Upon a motion pursuant to CPLR 3211 (b), “the plaintiff bears the burden of demonstrating that the affirmative defense is ‘without merit as a matter of law'” (Greco v Christoffersen, 70 AD3d 769, 771 [2d Dept 2010], quoting Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]). “In reviewing a motion to dismiss an affirmative defense, this Court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference” (Greco, 70 AD3d at 771).

Defendant’s answer asserts 36 affirmative defenses that are pled in boilerplate fashion, which the Appellate Term has previously held is “not acceptable practice” (see Island Life Chiropractic Pain Care, PLLC v Zipcar, 72 Misc 3d 141[A], 2021 NY Slip Op 50844[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

At the same time, however, plaintiff’s motion, supported by a 53-page attorney affirmation “contained numerous misleading or erroneous statements of law,” which also should not be countenanced (see id.). For example, in seeking to dismiss the third affirmative defense, “[p]laintiff also ignored that ‘no motion by the plaintiff lies under CPLR 3211 (b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim'” (id., quoting Butler v Catinella, 58 AD3d 145 [2d Dept 2008]).

“This Court will not prune plaintiff’s motion and separate the potentially valid arguments from plaintiff’s numerous invalid or questionable arguments” (Island Life Chiropractic Pain Care, PLLC, 2021 NY Slip Op 50844[U], *2).

Finally, there is no basis to award attorneys’ fees as sanction under Rule 130-1.1. Therefore, plaintiff’s motion is denied in its entirety.

Accordingly, it is hereby ORDERED that plaintiff’s motion to dismiss defendant’s affirmative defenses and for sanctions (motion sequence no 001) is denied; and it is further

ORDERED that defendant’s cross-motion for summary judgment on its outstanding verification request (motion sequence no 002) is denied.

This constitutes the decision and order of the Court.

DATE January 13, 2026
ENTER:
RENA MALIK
Judge of the Civil Court

Footnote 1:The Court notes that these grounds are plead in defendant’s answer as its seventh, eighth and thirty-fifth affirmative defenses (NYSCEF Doc No 30).Longevity Med. Supply, Inc. v New York City Tr. Auth. (2025 NY Slip Op 52018(U))

Reported in New York Official Reports at Longevity Med. Supply, Inc. v New York City Tr. Auth. (2025 NY Slip Op 52018(U))

[*1]

Longevity Med. Supply, Inc. v New York City Tr. Auth.

2025 NY Slip Op 52018(U) [87 Misc 3d 1253(A)]

Decided on December 17, 2025

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 December 17, 2025

Longevity Medical Supply, Inc., a/a/o NIJ, ANDRES, Plaintiff, against New York City Transit Authority, Defendant.

Index No. CV-737529-17/KI



The Rybak Firm PLLC, Brooklyn, for Plaintiff

Gottlieb Ostrager LLP, Armonk, 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 and Affidavits Annexed NYSCEF 2-4
Answering Affidavit NYSCEF 8-10
Replying Affidavits
Exhibits
Other NYSCEF 16-17

Upon the foregoing cited papers, after oral argument on September 30, 2025, the Decision/Order on Plaintiff’s Motion for Summary Judgment, is as follows:

It is well established and incontrovertible, consistent with the legislative intent that the literal statutory interpretation as to 2% punitive interest is to be assessed to no-fault mandatory and additional personal injury protection benefits overdo and owing calculated upon the principal amount of benefits (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; NY Comp Codes R & Regs. Tit. 11, § 65-3.9 [a] [2005] [Regulation 68-C] see, (Matter of Lam Quan MD, P.C. v LM Gen. Ins. Co., 239 AD3d 654 [2d Dept 2025] citing (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 159 [2d Dept 2021]). Plaintiff relies heavily upon BZ in its argument that 2% interest is to be assessed for the amounts due and owing for pure-interest only in this instant matter. However, there is a significant distinguishing procedural distinction herein. In the case at bar, there is no judgment entered here. Rather, this is Plaintiff’s Motion for [*2]Summary judgment de novo. Defendant by its pure-principal total payment of the bill for benefits due in the amount of $1,309.27 on 6/17/2020 in full of the mandatory and additional personal injury protection benefits overdo and owing pre-judgment extinguishes the 2% penalty pursuant to the literal reading of the statute and is not contradicted by BZ since no judgment entered here. This Court acknowledges that the pre-judgment interest accrued from 9/16/2016 (the date no-fault benefits were due and owing for Defendant’s failure to pay, deny or toll) until 6/17/2020 (the date pure-principal payment of no-fault benefits due and owing were paid in full by Defendant) is to be assessed at the 11 NYCRR 65-3.9 (a) 2% penalty interest pre-judgment. Plaintiff errs in its argument that BZ considered pre-judgment interest as it states: “One reason for disagreement is that BZ would have had no reason to believe that it would receive interest, at whatever point in the postjudgment time line, other than at the 2% per month rate required as a matter of law by Insurance Law § 5106 and former 11 NYCRR 65.15 (h). The remedies of CPLR 5019 (a) were simply not required, whether the right to interest in the underlying action be cast as a substantive or a non-substantive right”(Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 157 [2d Dept 2021]). The BZ judgment was entered on November 15, 2001, and pure-principal no-fault benefits were paid without any interest post-judgment in 2015, which is inapposite here. Here, Defendant paid pure-principal benefits in full whereas it failed to pay any accrued pre-judgment penalty interest of 2%, which is statutorily deemed mandatory and non-waivable for any principal of no-fault benefits overdo and owing, which is Ordered to be paid upon calculation.

However, it is not so where pure-principal of no-fault benefits paid in full leaving only the 2% accrued pure-interest due and owing. This Court does not find that it is the legislative intent to assess compounded punitive 2% interest solely upon pure-interest due and owing after pure-principal payment of no-fault benefits paid in full pre-judgment. BZ is silent as to such a pre-judgment payment scenario as here. Rather, BZ addresses the issue as to whether payment in full of pure-principal no-fault benefits without any interest paid post-judgment renders 11 NYCRR 65-3.9 (a) punitive 2% interest controlling as opposed to CPLR 5004 general 9% interest. BZ held that punitive 2% interest is controlling as conceded by defendant’s own mathematical calculations of post-judgment interest paid at the 11 NYCRR 65-3.9 (a) punitive 2% interest although in contravention to its legal argument that post-judgment interest should be assessed at CPLR 5004 general 9% interest.

“Another equally important reason for our disagreement with our colleague involves an issue of mathematics rather than law. When Allstate paid the initial amount of $8,842.49, and made a subsequent payment of $14,157.21, to bring its combined total to $22,999.70, the interest paid at those times by Allstate reflects, by mathematical computation of dates and rates, a 2% per month rate of interest, compounded. Taking into account the judicially-imposed tolling period, there were 53 months for which interest was owed between the entry of the judgment on November 15, 2001, and November 1, 2005, and between June 19, 2015, and the payment of $14,157.21 on December 1, 2015, which was a pure-interest payment. Two percent interest for each of those months, with a modest additional sum for compounding, explains how the $14,157.21 payment was computed. This means that for many years prior to and into December 2015, there was never any controversy between the parties as to the proper rate of compounded interest that was to be applied to the judgment. By its actions, Allstate, in paying interest computed at 2% per month compounded, agreed with BZ that the proper rate was that required by [*3]Insurance Law § 5106 and former 11 NYCRR 65.15 (h). Had Allstate believed that the proper rate of post-judgment interest was 9% per year, it would have tendered a much smaller sum on December 1, 2015, representing the lesser annual 9% CPLR amount.

“Only after Allstate had paid BZ the interest of $14,157.21, computed at 2% per month compounded, did Allstate then file a motion in the Civil Court seeking to compel the filing of a satisfaction of judgment. The filing of a satisfaction of judgment raised nothing more than a procedural issue for the court. At that point in time, there was still no controversy between the parties about the rate of interest owed on the underlying judgment. BZ had no reason at that time to raise any issue about the rate of interest in the absence of any controversy over it. Indeed, it might have been frivolous for BZ to have raised at that time the issue of the rate of interest, as the interest had been paid by Allstate using the higher 2% per month rate compounded and represented no controversy. The applicable interest rate remained a nonissue as the parties’ litigation proceeded from the Civil Court to the Appellate Term over whether interest should have been equitably tolled, having nothing to do with the rate of its computation.

“Controversy over the proper rate of interest never arose until it was created, sua sponte, by the Appellate Term’s gratuitous advisory language in its decision and order dated August 18, 2017. As noted, the Appellate Term’s advisory language about its suggested rate of interest was incorrect as a matter of law. Upon the issuance of the August 18, 2017 decision and order, BZ promptly sought to litigate the point by filing a motion for a clarification, and prosecuted two motions at both the Appellate Term and this Court for leave to appeal to this Court. Therefore, and contrary to the view of our dissenting colleague, this is not a circumstance which is sometimes seen in the subject area of res judicata or collateral estoppel, where a party had an “opportunity” to litigate an issue so as to be precluded from doing so in a later proceeding. There was no dispute about the proper rate of interest for the parties to actually litigate until one was unnecessarily created by the Appellate Term on August 18, 2017. This Court denied leave to appeal on March 2, 2018. The first petition filed by BZ in the Supreme Court seeking, inter alia, a declaratory judgment as to the proper rate of interest was filed only 2½ months later” (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 157-158 [2d Dept 2021]).

Further, Plaintiff’s reliance on the holdings of 2% controlling interest in pre-judgment and post-judgment matters resulting from breach of stipulation of settlements, are similarly distinguishable from this instant matter. (Berenblit v Country Wide Ins. Co., 85 Misc 3d 135[A], 2025 NY Slip Op 50487[U] [App Term 2025] citing Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term 2019]); see CPLR 5003-a [e]; NCT Diagnostics, Inc. v Countrywide Ins. Co., 77 Misc 3d 133[A], 178 NYS.3d 367, 2022 NY Slip Op 51247[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)]. Unlike BZ and breach of settlement cases, in this instant matter the no-fault mandatory and additional personal injury protection benefits were not overdo nor owing, but rather paid in full, leaving exclusively pure-interest due and owing,

Upon no appellate authority which conclusively provides that the scenario herein warrants 11 NYCRR 65-3.9 (a) 2% penalty interest to be assessed compounded pre-judgment pure-interest, for the foregoing reasons, Plaintiff’s Motion for Summary Judgment is granted to [*4]the following extent: Defendant has established that the principal no fault benefits or the bill for which Plaintiff sought payment was paid in full on 06/17/2020, conceding no triable issue of fact and sole issue herein is the assessment of interest calculation and as such Plaintiff is limited to recovery as follows:

1. Pre-judgment Penalty of 2% simple interest pro-rated daily (30 day month) on the bill amount of $1,309.27 in suit due and owing from 09/16/2016 to 06/17/2020, ($1,309.27 x (.02 x (1,371/30))) = $1,196.67 in simple interest., which converts to the amount in controversy as the principal debt amount due and owing, upon which all further interest payments are to be calculated proceeding hereafter;

2. Pre-judgment 9% statutory interest from 06/17/2020 to 01/17/2021 on the due and owing principal of debt $1,196.97 x (.09 x (214/365)) = $63.16

3. Interest tolled from 01/18/2021 to 02/02/2023; Plaintiff’s inactivity in the exercise of judicial discretion;

4. Pre-judgment 9% statutory interest resuming from 02/03/2023 to 12/16/2025 on the due and owing principal of debt $1,196.97 x (.09 x (1,048/365)) = $309.31

5. Accrued due and owing amount in Favor of Plaintiff up to 12/16/2025, equals principal of $1,196.67 plus pre-judgment interest as of 12/16/2025 in the amount of $372.47 as calculated supra = $1,569.14.

6. ORDERED, Clerk to continue from 12/17/2025 to add pre-judgment per-diem 9% statutory interest on the principal amount of $1,196.67 up to entry of judgment, converting thereafter to post-judgment 9% statutory interest to be added to the amount of $1,569.14, with attorney fees, costs and disbursements.

For the foregoing reasons, Judgment Granted in favor of Plaintiff in the amounts as indicated.

This constitutes the Decision and Order of the Court.

DATE December 17, 2025
HON. SANDRA E. ROPERSuarez Med., PLLC v Nationwide Ins. (2025 NY Slip Op 51996(U))

Reported in New York Official Reports at Suarez Med., PLLC v Nationwide Ins. (2025 NY Slip Op 51996(U))

[*1]

Suarez Med., PLLC v Nationwide Ins.

2025 NY Slip Op 51996(U) [87 Misc 3d 1250(A)]

Decided on December 12, 2025

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 December 12, 2025

Suarez Medical, PLLC A/A/O ANDREW, AMANDA P., Plaintiff(s), against Nationwide Ins., Defendant(s).

Index No. CV-726274-22



The Rybak Firm PLLC, Brooklyn, for Plaintiff.

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

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

Papers
P’s motion for summary judgment 1
D’s XM for summary judgment 2
P’s opposition 3

Upon the foregoing cited papers, and after oral argument made on the Record on December 11, 2025, the Decision/Order on Plaintiff’s Motion for Summary Judgment and Defendant’s Cross-Motion for Summary Judgment is as follows:

Plaintiff’s motion is GRANTED to the extent that Plaintiff establishes its prima facie case for all purposes.

Defendant’s cross-motion is DENIED.

Under CPLR § 3212(b), a court may grant summary judgment only where the movant establishes its cause of action or defense sufficiently to warrant judgment as a matter of law, and must deny the motion if any party shows facts requiring a trial of any issue of fact (see CPLR § 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Summary judgment is a drastic remedy and should be granted only where no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The proponent bears the initial burden of making a prima facie showing of entitlement to judgment by tendering evidence that eliminates any material issues of fact; failure to do so requires denial regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). In deciding the motion, the court must view the evidence in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences (see Vega, 18 NY3d at 503; De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; Pearson v Dix McBride, LLC, 63 AD3d 895, 895 [2d Dept 2009]).

Defendant premises its argument on a transcript of the examination under oath (“EUO”) of Plaintiff Owner taken on September 16, 2019, that although unsigned was sent to the witness for execution on October 19, 2019 and November 15, 2019 in accordance with CPLR 3116(A). Defendant’s position that at the September 16, 2019 EUO, in lieu of completing the EUO and subjecting Plaintiff to the verification process afforded by the New York State No-Fault Statute, Plaintiff Owner, in his capacity as sole shareholder of Plaintiff, agreed to withdraw, “any and all claims that were submitted to Nationwide or any of its’ subsidiaries and affiliates with respect to any date of service September 16, 2019 or prior,” including “any claims . . . that currently have been submitted to Nationwide or may in the future be submitted to Nationwide ” (tr at 123, lines 3-24). However, on the very next page of the transcript it is indicated that a separate affidavit of waiver of previous claims or walk-away would be prepared afterward (tr at 123, lines 7-17). Defendant failed to proffer any such document to be considered herein.

Defendant’s sole reliance on the alleged admissions against interest contained within the transcript is misplaced. Most notably, contained therein was the reporter’s on the record notation as to an off the record discussion prior to Plaintiff Owner’s statements of withdrawal of claims, which in and of itself raises greater than a mere scintilla of a triable issue of fact to defeat judgment as a matter of law. Indeed, Plaintiff Owner’s assent to withdraw all prior claims is insufficient, particularly where the EUO was held for different and distinct claimants, claims and claim numbers than in this instant matter. Rather, it is Plaintiff Owner’s intent in making those statements which becomes the gravamen herein. It is well established, issues as to state of mind intent are issues of fact to be determined at trial and not determinable for judgment as a matter of law. Thus, Defendant failed to satisfy its burden for judgment as a matter of a law in the first instance. However, in response to Defendant’s further argument that in the Plaintiff Owner’s rebuttal affirmation he never addressed his admissions in the transcript, This Court arguendo hypothesized that if indeed Defendant had met its’ burden for judgment as a matter of law in the first instance, upon shifting of the burden in rebuttal, Plaintiff would have absolutely met its burden to defeat Defendant’s judgement as a matter of law, since his mere making of the affirmation and not the contents contained therein, is sufficient to show inconsistency of intent. Nevertheless, This Court reiterates its finding that Defendant failed to meet its burden in the first instance obviating the shifting of the burden of rebuttal to Plaintiff.

Accordingly, this matter is to proceed to trial as to Defendant’s prima facie and defenses.

This constitutes the decision and order of the Court.

The undersigned attorneys certify that none of the cases cited within this case or this motion were drafted using, in any capacity, generative artificial intelligence programs, pursuant to In Augustin v. Formula 3 Brook, Inc., 2025 NY Misc. LEXIS 6143, 2025 NY Slip Op 51113(U), 86 Misc 3d 1236(A) (Kings Co. Sup. Ct. July 26, 2025).

Counsel for Plaintiff – Printed Name and Initials: Richard Rozhik, RR.

Counsel for Defendant – Printed Name and Initials: Christopher Volpe, CV


DATE December 12, 2025
HON. SANDRA E. ROPERBlano Med., P.C. v Hereford Ins. Co (2025 NY Slip Op 51540(U))

Reported in New York Official Reports at Blano Med., P.C. v Hereford Ins. Co (2025 NY Slip Op 51540(U))

[*1]

Blano Med., P.C. v Hereford Ins. Co

2025 NY Slip Op 51540(U)

Decided on September 29, 2025

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 September 29, 2025

Blano Medical, P.C., A/A/O NWANJI, CHRISTOPHER, Plaintiff(s), against Hereford Insurance Co, Defendant(s).

Index No. CV 023661-15



The Rybak Firm PLLC, Brooklyn, for Plaintiff.

Law Offices of Rubin & Nazarian, Long Island City, for Defendant.

Sandra Elena Roper, J.

This Honorable Court, upon due deliberation at Trial held on September 15, 2025, Decides and Orders as follows:

Defendant abandoned its medical necessity defense at the commencement of trial and opted to proceed on a fee schedule defense. Court order sending instant case to trial, did not address fee schedule as a defense for trial. Rather, court order addressed medical necessity and outstanding verifications as issues of fact for trial. Further, Defendant’s denied motion for summary judgment papers failed to make arguments as to a fee schedule defense. Nevertheless, at trial, Defendant argued that it is unnecessary since fee schedule is a non-precludable defense which can be brought up at anytime up to and including at trial, without issuing denial pursuant to the 30-Day Denial Rule (11 NYCRR § 65-3.8). Defendant relied on a specific case in the application of the effective April 1, 2013 11 NYCRR § 65-3.8 (g) (1) amendment (E. Coast Acupuncture, P.C. v Hereford Ins. Co., 51 Misc 3d 441, 442 [Civ Ct, Kings County 2016]). By a lower limited trial court of concurrent jurisdiction, East Coast held, in an unopposed motion for summary judgment, 11 NYCRR § 65-3.8 (g) (1) amendment rendered fee schedule as a non-precludable defense not required to comply with the 30-Day Denial Rule, citing several other cases likewise by courts of concurrent jurisdiction.

“Although the amendment does not change plaintiff’s prima facie burden, I find that the new language establishes that a fee schedule defense, for services after April 1, 2013, is not precluded if it is not asserted within 30 days of receipt of the claim. The regulation appears to be a carve-out from 11 NYCRR 65-3.8 (a) (1), which states that HN5 ‘[n]o-[*2]fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart.’ Conversely, 11 NYCRR 65-3.8 (g) (1) imposes no deadline on the insurance company’s determination. At least two courts in the First Department concur with this court’s interpretation of 11 NYCRR 65-3.8 (g) (1) (see Saddle Brook Surgicenter, LLC v All State Ins. Co., 48 Misc 3d 336, 344-345, 8 NYS3d 875 [Civ Ct, Bronx County 2015]; Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85, 87, 25 NYS3d 521, 2015 NY Misc. LEXIS 3636, 2015 WL 5894683, at *2 [App Term, 1st Dept 2015]).

“Based on this interpretation of HN6 11 NYCRR 65-3.8 (g) (1), defendant may assert in this action a defense that plaintiff’s claim exceeds the applicable fee schedule” (E. Coast Acupuncture, P.C. v Hereford Ins. Co., 51 Misc 3d 441, 443 [Civ Ct, Kings County 2016]).

This Court agrees in part with the holding that the amendment did not change plaintiff’s well established prima facie burden citing Viviane Etienne Med. Care v Country-Wide Ins. Co. (25 NY3d 498, 510 [2015]). This Court however holds contrary interpretation of 11 NYCRR 65-3.8 (g) (1), that it does not render fee schedule defense as a non-precludable defense not required to comply with the 30-Day Denial Rule.

“(1) Proof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances:

“(i) when the claimed medical services were not provided to an injured party; or

“(ii) for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated thereunder for services rendered by medical providers” (11 NYCRR § 65-3.8).

It is quite well established, the court as the third branch of government should not be engaged in judicial activism by legislating from the Bench in encroaching upon the first branch of government, the legislature. Rather, judicial restraint is to be applied in statutory interpretation. Particularly, where interpretation not previously ruled upon by appellate court, notwithstanding varying statutory interpretations by lower limited courts of concurrent of jurisdiction, which are not binding.^[FN1] The court is to interpret the natural plain language of the law, as well as legislative intent deduced from the legislative history and consider the comprehensive context of the totality [*3]of the entire text of the statute in tandem with the amendment at issue and if any related predated case law precedents (Am. Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1 [2d Dept 2025]). The legislative intent and history of the 2013 amendment codified as 11 NYCRR § 65-3.8 (g) (1) is quite very clear as to its cost management goal balancing the equities of both the medical providers as plaintiffs and the defendant insurers: “To combat no-fault fraud while also accelerating the resolution of no-fault claims.”^[FN2] .

This Court in interpreting the natural plain language of the law, which may be open to contrary interpretations, bolstered by its legislative history and comprehensive analysis of the entire statute in relation to the amendment does not hold that fee schedule is a non-precludable defense. Although the word “precluded” was used in the comments as a concern, it appears in context to the balancing of the equities of both the medical providers and insurers by mandating that only the disputed portion of the fee schedule is to be withheld by the insurer. ^[FN3] Moreover, if legislature intended with this amendment to render fee schedule defense as non-precludable, as had been done previously for the coverage defense, it would have in plain language stated so specifically. The legislature did not do so.

“(e) If an insurer has determined that benefits are not payable for any of the following reasons:

(1) no coverage on the date of accident;

(2) circumstances of the accident not covered by no-fault; or

(3) statutory exclusions pursuant to section 5103(b) of the Insurance Law; it shall notify the applicant within 10 business days after such determination on a prescribed denial of claim form, specifying the reasons for the denial. Failure by an insurer to notify the applicant of its denial of the claim within the 10-business-day period after its determination shall not preclude the insurer from asserting a defense to the claim which is based upon the reasons for such denial” (11 NYCRR § 65-3.8).

For the foregoing reasons, Defendant conceded no denial for fee schedule defense was provided pursuant to 11 NYCRR § 65-3.8 and therefore failed to put on any defense whatsoever, upon which, Plaintiff moved for Directed Verdict, which was Granted. Ordered, Judgment in favor of Plaintiff in the amount of $2,600.00 plus statutory interest, attorney’s fees costs and disbursements.

This constitutes the decision and order of This Honorable Court.

Dated: September 29, 2025
Brooklyn, New York
Hon. Sandra Elena Roper, JCC

Footnote 1: Sandra Elena Roper, Letter to the Editor, Chief Judge’s Proposed Procedure for Certified Questions to the Court of Appeals Would Be a ‘Wonderful Thing’, https://www.law.com/newyorklawjournal/2023/07/10/chief-judges-proposed-procedure-for-certified-questions-to-the-court-of-appeals-would-be-a-wonderful-thing/ [July 10, 2023, 12:52 p.m.] [“Chief Judge Rowan Wilson’s plan for the Court of Appeals to rule on certified questions would allow for more expeditious stare decisis decisions to our lower courts, a Brooklyn judge writes”].

Footnote 2: Notices of Adoption, Insurance Dept., Feb. 20, 2013, 2013 NY REG TEXT 292688 (NS) [“Preventing Billing in Excess of Mandated Fee Schedule or for Services Not Rendered

“Based on case law, two central issues have arisen in situations where an applicant for benefits bills for services in excess of the mandated fee schedule or for services that were never provided. In both instances, courts have ruled that an insurer that fails to timely deny a claim is precluded from asserting as a defense the fact that the provider overbilled or fraudulently billed for services never rendered. As a result, consumers have their benefits unjustly reduced.

“Insurers support the Superintendent’s attempt to remedy instances when services are overcharged or not provided, and several also believe such a remedy should extend to other reasons for denial of claim. Attorneys representing applicants for benefits do not object to the Superintendent’s attempt to remedy overcharges and phantom billing, but some are concerned that the draft amendment would result in the denial of a claim in its entirety when the applicant has billed in excess of the mandated fee schedule, not just to the extent of the excess.

“In order to protect consumers from unjust depletion of benefits, the proposed amendment provides that proof of the fact and amount of loss sustained shall not be deemed to be received by an insurer when the applicant for benefits has billed in excess of the mandated fee schedule and/or for services not rendered. This provision will protect consumers from these fraudulent or abusive practices. Additionally, to absolve the fears of plaintiff attorneys, only the excess portion of an excessive bill is not due, not the entire bill.”]

 Footnote 3: See n 2, supra.21st Century Pharm., Inc. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51577(U))

Reported in New York Official Reports at 21st Century Pharm., Inc. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51577(U))

[*1]

21st Century Pharm., Inc. v State Farm Mut. Auto. Ins. Co.

2025 NY Slip Op 51577(U)

Decided on September 25, 2025

Civil Court Of The City Of New York, Kings County

Holaman, 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 September 25, 2025

21st Century Pharmacy, Inc., Plaintiff, against State Farm Mutual Automobile Ins. Co., Defendant.

Index No. CV-730192-18/KI



Plaintiff’s Attorney: Gary Tsirelman, Esq.
Gary Tsirelman, PC
129 Livingston Street
Brooklyn, New York 11201

Defendant’s Attorney: Edward M. Ryan, Esq.
McDonnell Adels & Klestzick, PLLC
401 Franklin Avenue, Suite 200
Garden City, New York 11530

Monique J. Holaman, J.

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

Papers
Defendant’s Notice of Motion and Affidavits /Exhibits 1
Plaintiff’s Opposition and Affidavits/Exhibits 2
Defendant’s Reply and Affidavits/Exhibits 3

Upon review of the foregoing cited papers and after oral argument, Defendant’s Summary Judgment Motion (“motion sequence #3”) is DENIED.

In this action, Plaintiff 21st Century Pharmacy, Inc. (hereinafter “21st Century” or “Plaintiff”) seeks reimbursement of No-Fault benefits from Defendant State Farm Mutual Automobile Ins. Co. (hereinafter “State Farm” or “Defendant”) in the total amount of $1,529.00 for services rendered to its assignor, Aquiles Nunez. Defendant filed a timely answer to the complaint. Pursuant to CPLR § 3212, Defendant now moves for an order granting summary judgment. Defendant argues that Plaintiff’s complaint must be dismissed because Plaintiff’s [*2]assignor failed to appear for noticed Examinations Under Oath (“EUO’s”). Plaintiff opposes and argues that Defendant’s motion is untimely without “good cause” shown and must be denied regardless of the issues being raised.

Plaintiff states that they filed their Notice of Trial on August 4, 2020 and under CPLR § 3212(a), Defendant was required to move for summary judgment within 120-days. Defendant filed the motion on September 21, 2022, approximately 778-days later. Moreover, Plaintiff argues that Defendant has failed to make a showing of “good cause” for the delay that would allow the Court to consider an extension. In further opposition, Plaintiff proffers that the Court should not consider Defendant’s “good cause” rationale, as it was only raised for the first time in their reply papers.

Defendant, in their reply, claims that they were unaware that a Notice of Trial had been filed as there was no indication in the Court System ^[FN1] . Defendant argues that “good cause” is shown where there is a reasonable excuse for the delay, there is merit to the action and there is the absence of prejudice. Defendant maintains that they have satisfied all three elements and therefore, the Court should grant the extension, allow the summary judgment to be considered and ultimately granted.

The Court will address the merits of Plaintiff’s opposition and Defendant’s reply as it pertains to the timeliness of the instant motion. A determination on this issue must be resolved before addressing the merits of the summary judgment motion, as the Court will first need to grant an extension for the motion to be considered. Pursuant to CPLR § 3212:

“Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.”

(CPLR § 3212[a][emphasis added]). In Brill v City of New York, the Court of Appeals established that “good cause in CPLR 3212(a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy” (Brill v City of New York, 2 NY3d 648, 652, 814 NE2d 431, 781 NYS2d 261 [2004]).

Defendant filed the instant motion on or about September 21, 2022. Based on the court records, Plaintiff filed their Notice of Trial on or about August 4, 2020. Defendant argues that they have established good cause for the delay and relies on the ruling in Adika v Dramatinos, 74 AD3d 848, 904 NYS2d 461 (2d Dept 2010). However, there are significant distinguishing facts. In Adika, the summary judgment motion was filed five days after the 120-day deadline. Here, Defendant filed their motion for summary judgment motion more than two years after the Notice of Trial was filed. Additionally, in Adika, “the New York State Unified Court System’s public [*3]Web site ^[FN2] incorrectly stated that the note of issue was filed five days after it was in fact filed” (Adika, 74 AD3d at 849). In the instant case, Defendant relies on the Court system website and eLaw. It should be noted that the Defendant submitted a case summary from October 2, 2021 that allegedly did not reflect that Plaintiff filed a Notice of Trial. In any event, the instant motion was filed almost a year after this review of the Court System’s website. In Defendant’s more recent review of the case (March 22, 2022), Counsel only relied on eLaw ^[FN3] and failed to refer to the Court System website. The Court concludes that Defendant did not use due diligence in reviewing the status of the case prior to filing their summary judgment motion.

In addition, the substantive body of Defendant’s motion failed to include the request for an extension or explain their “good cause” arguments for their delay. Defendant’s summary judgment motion only addressed the merits of the Plaintiff’s failure to appear for EUO’s. The “good cause” arguments were raised for the first time in Defendant’s reply. As such, Plaintiff did not have an opportunity to adequately oppose the new arguments and relief requested in a sur-reply (see Matter of Harleysville Ins. v Rosario, 17 AD3d 677, 792 N.Y.S.2d 912 [2d Dept 2005]).

Defendant’s motion for summary judgment (motion sequence #3) is DENIED. This matter is set down for a bench trial on November 14, 2025, at 9:30AM in Part 15.

The foregoing constitutes the Decision and Order of this Court.

Date: September 25, 2025
Honorable Monique J. Holaman
Civil Court Judge (NYC)

Footnote 1: Defendant’s Exhibit 1 is a printout of the Case Summary as of October 2, 2021, and an eLaw printout dated March 21, 2022.

Footnote 2: Courts have held that judicial notice is taken where information is found on the New York State Unified Court System’s website (see L&Q Realty Corp. v. Assessor, 71 AD3d 1025, 896 N.Y.S.2d 886 [2d Dept 2010]).

Footnote 3: eLaw provides web-based docketing and calendaring software to legal professionals, allowing attorneys to search, monitor and manage active and archived cases, dockets and court calendars. However, it is not an official Court website.Queens Radiology Imaging v GEICO (2025 NY Slip Op 51823(U))

Reported in New York Official Reports at Queens Radiology Imaging v GEICO (2025 NY Slip Op 51823(U))

[*1]

Queens Radiology Imaging v GEICO

2025 NY Slip Op 51823(U) [87 Misc 3d 1238(A)]

Decided on September 21, 2025

Civil Court Of The City Of New York, Queens County

Torres, 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 September 21, 2025

Queens Radiology Imaging, a/a/o ANDREW COLE, Plaintiff, against GEICO, Defendant.

Index No. CV-700373-24


Raymond Mak, Esq. counsel plaintiff QUEENS RADIOLOGY IMAGING, PC

Lauren J Levine, Esq. counsel for defendant GEICO
Patrick Hayes Torres, J.

Upon the foregoing cited papers, the Decision and Order on defendant’s notice of motion for summary judgment seeking to dismiss plaintiff complaint for defendant’s failure to timely provide verification response within 120 days. Plaintiff opposes and cross moves seeking summary judgment claiming they submitted bills timely and defendant failed to pay the claims. For the reasons set forth below, the defendant’s motion for summary judgment is granted and plaintiff’s cross motion is denied.

Plaintiff commenced this action to recover No-Fault benefits as reimbursement for medical services it provided to the assignor. Defendant now moves for summary judgment on the grounds that plaintiff failed to respond to its verification requests.

Defendant in support of their summary judgment motion, submitted an affidavit from its Claim Supervisor outlining the claim procedures, verification requests, additional verification request and the mail processing procedures; and General Manager of Pitney Bowes, detailing the mail procedure from defendant to the Unites States Post Office. Defendant claimed plaintiff’s assignor failed to fully comply with a pre-Examination Under Oath (Herein referred as “EUO”) verification request and post EUO verification request that remains outstanding.

Defendant sent out an initial verification request on January 2, 2023, and January 27, 2023, along with EUO request from bills received on December 15, 2022, and January 5, 2023. After several adjournments the plaintiff appeared for an EUO on May 11, 2023, however, plaintiff at no time submitted a response to the initial verification request nor provided a reason for not submitting a response. As a result of the EUO, defendant on May 25, 2023, demanded plaintiff respond to the original verification request and also requested additional verification. Defendant again followed up with plaintiff on June 30, 2023, for the verifications. According to defendant, plaintiff partially responded to defendant’s verification request on September 1, 2023, and a letter was sent on September 11, 2023, detailing the deficiencies in plaintiff’s response to the verifications. Defendant failed to contest the partial verification. Thereafter, defendant issued a global denial on October 16, 2023, due to plaintiff’s failure to respond to defendant’s verification request within the statutory 120-day period pursuant to 11 NYCRR §65-3.5(o).

In opposition, plaintiff relied on a recent case Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41 (App Term, 2d, 11th & 13th Jud Dists 2024). Plaintiff [*2]argued that according to Burke, verification is deemed to have been received and completed on the day of the EUO which was May 11, 2023, and as such, the defendant would have had until June 10, 2023, to pay or deny the claim.

Generally, a carrier has 30 days to pay or deny a claim. A no-fault insurance carrier under the No-Fault statutory scheme may require an eligible injured person or assignee of the injured person, to submit a written proof of claim under oath; to submit to examinations under oath, and to request information that may assist the carrier in determining the claim. See 11 NYCRR §65-1.1. An EUO is a verification. Where a carrier properly demands an examination under oath, “the verification is deemed to have been received by the insurer on the day the examination was performed.” See 11 NYCRR §65-3.8(a)(1). Thus, the carrier’s 30—day period in which to pay or deny a claim may be extended where the insurer makes a request for additional information within 15 business days of its receipt of the claim (see 11 NYCRR §65—3.5[b]; New York & Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512, 513 [2d Dept 2006]; Hospital for Joint Diseases v. ELRAC, Inc., 11 AD3d 432, 434 [2d Dept 2004]; New York & Presbyt. Hosp. v. Progressive Cas. Ins. Co., 5 AD3d 568, 569 [2d Dept 2004]; New Millennium Med. Imaging v Geico, 76 Misc 3d 31, 33 (App Term 2d Dept, 2d, 11th & 13th Jud Dist 2022).

The Burke case is distinguishable to the circumstances to this case. Here, written verifications were requested pre EUO while in Burke written verification was not requested until after the EUO was completed. In the instant matter, the EUO was completed on May 11, 2023. Thus, defendant had until about June 10, 2023, to either deny or pay plaintiff ‘s claim. Defendant however requested additional verification on May 25, 2023, which was within the 15-day period of the EUO. Since defendant’s verification request was timely, the 30-day limit was tolled at the time of the verification, which was May 25, 2024. Defendant, on June 30, 2023, timely followed up by letter to plaintiff seeking the verification responses. See 11 NYCRR §65-3.6(b). an insurer is not obligated to pay or deny a claim until all demanded verification is provided (see Hospital for Joint Diseases v New York Central Mut. Fire Ins. Co., 44 AD3d 903, 904 (2d Dept 2007). Thereafter, defendant issued a global denial on October 16, 2023, due to plaintiff’s failure to respond to defendant’s verification request within the statutory 120-day period pursuant to 11 NYCRR §65-3.5(o).

As to defendant’s verification request defense, ultimately, the nature of a summary judgment motion is to ascertain whether triable issues of fact remain. Here, the court finds that the defendant established a prima facie case that the plaintiff failed to fully comply with the verification requests within the 120-day statutory period and that additional verification remained outstanding. Plaintiff neglected to contest defendant’s claim that plaintiff partially responded to their verification. The burden shifted to plaintiff who failed to create a triable issue of fact as to defendant’s affirmative defense. See Zuckerman v. City of New York, 49 NYS2d 577 (1980). Moreover, plaintiff in their cross motion for summary judgment failed to submit an affidavit of personal knowledge that the bills were submitted timely and that they were overdue.

Considering the foregoing, the defendant’s motion for summary judgment is granted and plaintiff’s cross-motion for summary judgment is denied as moot given the Court’s decision. Any relief not expressly addressed herein has nonetheless been considered and is denied.

This constitutes the decision and order of the court.

Dated: September 21, 2025
Queens, New York
Hon. Patrick Hayes Torres, J.C.CABV Med. Supplies Inc. v MTA Bus – LaGuardia (2025 NY Slip Op 51476(U))

Reported in New York Official Reports at ABV Med. Supplies Inc. v MTA Bus – LaGuardia (2025 NY Slip Op 51476(U))

[*1]

ABV Med. Supplies Inc. v MTA Bus – LaGuardia

2025 NY Slip Op 51476(U) [87 Misc 3d 1206(A)]

Decided on September 18, 2025

Civil Court Of The City Of New York, Kings County

Oguntunde-Waterman, 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 September 18, 2025

ABV Medical Supplies Inc. AAO Edith Reed, Plaintiff(s), against MTA Bus – LaGuardia, Defendant(s).

Index No. CV-707910-22/KI

Olufunmilola Oguntunde-Waterman, J.

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

Papers
Notice of Motion and Affidavits Annexed . . . NYSCEF
Answering Affidavit . . . NYSCEF
Replying Affidavits . . . NYSCEF
Exhibits
Other

Upon the foregoing cited papers, after oral argument on September 11, 2025, the Decision/Order on Defendant’s Motion to Dismiss and Plaintiff’s Cross-Motion to Amend and Substitute, is as follows:

Defendant’s motion to dismiss the complaint as against Defendant, MTA Bus — LaGuardia (“Defendant MTA Bus”) is granted. Defendant MTA Bus has established that it has no obligation to provide No-Fault coverage for the subject claim, as no vehicle owned, operated, or insured by Defendant MTA Bus was involved in the underlying accident. Moreover, the agencies of the Metropolitan Transportation Authority are not responsible for each other’s claims. Accordingly, the Complaint is dismissed with prejudice as against Defendant MTA Bus.

Plaintiff’s cross-motion to amend the caption and substitute the New York City Transit Authority (“NYC Transit Authority”) as a party defendant is granted. CPLR 1003 expressly permits the addition of parties “at any stage of the action by leave of court,” and CPLR 3025(b) authorizes amendments to pleadings “at any time by leave of court,” which shall be “freely given upon such terms as may be just.” Leave to amend should therefore be liberally granted where necessary for a complete determination of the issues, provided that no undue prejudice or surprise results. CPLR 1003.

Here, Plaintiff’s request satisfies this standard, as it seeks to join the proper party in interest for adjudication of the issues already presented in the pleadings. Based on the record presently before the Court, there is no perceived prejudice at this stage of the litigation to adding [*2]the proposed party, and any potential element of surprise is mitigated by Plaintiff’s representation that the bills at issue were submitted to NYC Transit Authority before Plaintiff inadvertently commenced this action against the wrong defendant.

The Court is mindful that leave to amend may be denied where it is clear from the record that the statute of limitations has expired against the proposed new defendant (see, C-Kitchens Assocs. v. Travelers Ins. Cos., 15 AD3d 905 (4th Dept., 2005), citing, Citibank [NY State] v. Suthers, 68 AD2d 790 (1979); Liverpool v. Arverne Houses, 67 NY2d 878, (1986); cf. Levykh v. Laura, 274 AD2d 418 (2000); see also, 3 New York Civil Practice: CPLR P 1003.07 (2025); Brenon v. County of Oneida, 124 AD2d 464 (3rd Dept., 1986). On the present record, however, it is not apparent that the statute of limitations has expired. The Court further notes the statute of limitations was tolled when Plaintiff filed its motion to add NYC Transit Authority, together with a supplemental summons and amended complaint (see, Perez v. Paramount Communications, 92 NY2d 749 [1999])[“Where the motion, including the proposed supplemental summons and amended complaint, is filed with the court within the applicable limitations period, but the ruling by the court does not occur until after expiration, dismissal is inappropriate and would offend the CPLR’s liberal policies of promoting judicial economy and preventing a multiplicity of suits”]).

To the extent that Plaintiff’s failure to file an affidavit of service of its cross-motion constitutes a procedural irregularity, the Court deems it nonprejudicial as this is a NYSCEF case and disregards it pursuant to CPLR 2001.

Accordingly, it is hereby,

ORDERED, that Defendant MTA Bus’s motion to dismiss is granted in its entirety, with prejudice as solely against it; and it is further

ORDERED, that Plaintiff’s cross-motion to amend the caption and join NYC Transit Authority as a party defendant is granted; and it is further

ORDERED, that this action shall bear the following caption: “ABV MEDICAL SUPPLIES INC., AAO EDITH REED, Plaintiff, against NYC TRANSIT AUTHORITY, Defendant. Index No.: CV-707910-22/KI“; and it is further

ORDERED, that the Clerk of the Court is directed to amend the caption as directed herein; and it is further

ORDERED, that Plaintiff shall serve the supplemental summons and amended complaint upon the newly added defendant, New York City Transit Authority, within twenty (20) days from the date of entry of this Decision and Order, pursuant to CPLR 308; and it is further

ORDERED, that the newly added defendant, NYC Transit Authority, shall thereafter appear in accordance with CPLR 320.

This constitutes the Decision and Order of the Court.

Date: September 18, 2025
Brooklyn, New York
Hon. Olufunmilola Oguntunde-Waterman, JCCState Farm Mut. Auto. Ins. Co. v Rubel (2025 NY Slip Op 25186)

Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Rubel (2025 NY Slip Op 25186)