Reported in New York Official Reports at Matter of Floral Park Drugs, Inc. v Nationwide Gen. Ins. Co. (2024 NY Slip Op 01114)
| Matter of Floral Park Drugs, Inc. v Nationwide Gen. Ins. Co. |
| 2024 NY Slip Op 01114 |
| Decided on February 29, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Manzanet-Daniels, J.P., Moulton, Scarpulla, Mendez, O’Neill Levy, JJ.
Index No. 654950/22 Appeal No. 1778 Case No. 2023-02403
v
Nationwide General Ins. Co., Respondent-Respondent.
Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for appellant.
Hollander Legal Group, P.C., Melville (Brian Kaufman of counsel), for respondent.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about March 13, 2023, which denied the petition to vacate the award of a master arbitrator dated October 30, 2022, unanimously affirmed, without costs.
Petitioner, a pharmacy and the assignee of a person injured in a motor vehicle accident, sought coverage from respondent, an insurance company, for prescription drug services (see 11 NYCRR 65-1.1[d]). Respondent denied no-fault coverage based on evidence that petitioner filled prescriptions that were not electronic, thus failing to comply with Public Health Law § 281, which provides that electronic prescriptions are required. On that basis, respondent concluded that there was no valid prescription, and accordingly, that it was not obliged to provide the requested coverage. The arbitrator issued an award ruling in favor of respondent and denying petitioner’s claim, and the master arbitrator upheld that award.
The arbitrators’ conclusions in denying petitioner’s claim were neither irrational nor contrary to settled law (see Matter of Kane v Fiduciary Ins. Co. of Am., 114 AD3d 405 [1st Dept 2014]), nor did they violate a strong public policy or clearly exceed a specifically enumerated limitation on the arbitrators’ powers (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]). On the contrary, the evidence submitted at the arbitration supports the conclusion that the prescriptions filled by petitioner were not electronic and therefore did not comply with the Public Health Law requirements for prescriptions (Public Health Law § 281[3]; Education Law § 6810). Furthermore, that an exclusion or defense is not listed as such in the mandatory endorsement set forth in 11 NYCRR 65-1.1(d) does not, by itself, render respondent’s defense to payment in this matter illegitimate (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 319 [2005]).
We reject petitioner’s arguments that it was entitled to fill an oral prescription based on Education Law § 6810(4) and that applicable regulations do not require the pharmacy to verify the reason for an oral prescription. A plain reading of Public Health Law § 281, which by its terms applies “[n]otwithstanding . . . any other law to the contrary.” In addition, there is no indication that petitioner made these arguments before either arbitrator or cited the regulations adopted in connection with Public Health Law § 281; thus, there is no evidence that the master arbitrator irrationally rejected those arguments (see Matter of Falzone 15 NY3d at 534).
We also reject petitioner’s argument that Supreme Court should have entered a default judgment, as petitioner did not seek to hold respondent in default. The sole affidavit of service in the record states that respondent was served with the notice of petition, the petition, and the affirmation in support, along with a request for judicial intervention and notice of electronic filing, by mail. Insofar as petitioner [*2]attempted service under CPLR 312-a, the affidavit was facially defective, as it did not state that respondent was served with two copies of the statement of service by mail and acknowledgment of receipt (CPLR 312-a [a]; see Carney v Metropolitan Transp. Auth., 221 AD3d 447, 449 [1st Dept 2023]).
We have considered petitioner’s remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: February 29, 2024
Reported in New York Official Reports at Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. (2024 NY Slip Op 00599)
| Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co. |
| 2024 NY Slip Op 00599 |
| Decided on February 06, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Singh, J.P., Moulton, Gesmer, Mendez, Rodriguez, JJ.
Index No. 651264/23, 650919/23 Appeal No. 1590-1591 Case No. 2023-03313, 2023-03164
v
Garrison Property & Casualty Insurance Company, Respondent-Respondent.
In the Matter of New Millennium Pain & Spine Medicine, P.C., as Assignee of Tracey Simpson, Petitioner-Appellant,
v
GEICO Casualty Company, Respondent-Respondent.
Roman Kravchenko, Melville, for appellant.
Marshall, Dennehey, Warner, Coleman & Goggin, P.C., New York (Richard Lane of counsel), for Garrison Property & Casualty Insurance Company, respondent.
Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for GEICO Casualty Company, respondent.
Order and judgment (one paper), Supreme Court, New York County (Erika M. Edwards, J.), entered July 3, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated January 12, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs. Order, Supreme Court, New York County (Sabrina Kraus, J.), entered on or about May 12, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated February 1, 2023, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.
Supreme Court correctly denied the petitions to vacate the master arbitration awards. “Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (see New Millenium Pain & Spine Medicine, P.C. v Progressive Casualty Insurance Company (220 AD3d 578, 578 [1st Dept 2023], quoting Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]), “The fact that the arbitrator[s] followed First Department precedent in (Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]) rather than Second Department precedent in (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy (see Matter of DTR Country—Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], lv denied 40 NY3d 904 [2023])” (id).
New Millennium was not precluded from arguing for the first time in its petitions that respondent insurer took the 20% wage offset twice, first, when issuing payment against gross wages, and second, when taken against the no-fault personal injury protection limit of liability (Insurance Law§ 5102[b]; 11 NYCRR 65-1.1; Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d at 481). However, the argument is unavailing because Insurance Law § 5102(b) allows an insurer to deduct from first-party benefits to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, 20% of lost earnings plus any other setoffs, such as amounts recovered or recoverable for Social Security disability or Worker Compensation benefits, or disability benefits under article 9 of the Workers Compensation Law (Matter of Lam Quam, MD, PC v GEICO, — AD3d —, 2024 NY Slip Op 00174 [1st Dept 2024]; Normile v Allstate [*2]Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).
New Millennium is not the prevailing party, therefore it is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: February 6, 2024
Reported in New York Official Reports at Matter of Lam Quan, MD, PC v GEICO Gen. Ins. Co. (2024 NY Slip Op 00174)
| Matter of Lam Quan, MD, PC v GEICO Gen. Ins. Co. |
| 2024 NY Slip Op 00174 |
| Decided on January 16, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Moulton, J.P., Kapnick, Scarpulla, Higgitt, O’Neill Levy, JJ.
Index No. 651286/23 Appeal No. 1423 Case No. 2023-03165
v
GEICO General Insurance Company, Respondent-Respondent.
Roman Kravchenko, Melville, for appellant.
Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Arlene P. Bluth, J.), entered May 8, 2023, which denied petitioner Quan’s petition to vacate a master arbitrator’s award, dated February 26, 2023, affirming a lower arbitrator’s award, dated January 11, 2023, unanimously affirmed, without costs.
The motion court correctly upheld the master arbitrator’s determination that there were no grounds to vacate the initial arbitration award, as the master arbitrator found that the no-fault arbitrator reached the decision in a rational manner and that the decision was not arbitrary and capricious, incorrect as a matter of law, in excess of policy limits, or in conflict with other no-fault arbitration proceedings (see Matter of Miller v Elrac, LLC, 170 AD3d 436, 437 [1st Dept 2019]). As stated in Matter of New Millenium Pain & Spine Medicine., PC v Progressive Cas. Ins. Co. “[t]he fact that the arbitrator followed First Department precedent in Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]), rather than Second Department precedent in Alleviation Med. Servs., P.C. v Allstate Ins. Co. (55 Misc 3d 44, 49 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]), does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy” (220 AD3d 578, 578 [1st Dept 2023]).
Quan’s argument that GEICO took the 20% wage offset twice—first, when issuing payment against gross wages; and second, when taken against the no-fault personal injury protection limit of liability (see Insurance Law § 5102[b]; 11 NYCRR 65-1.1) is unpreserved and, if considered (see Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], affd 40 NY3d 904 [2023]), is unavailing (see Normile v Allstate Ins. Co., 87 AD2d 721 [3d Dept 1982], affd 60 NY2d 1003 [1983]).
Quan is not entitled to attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j)(4) (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414-415 [1st Dept 2020]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: January 16, 2024
Reported in New York Official Reports at Nationwide Gen. Ins. Co. v South (2024 NY Slip Op 00028)
| Nationwide Gen. Ins. Co. v South |
| 2024 NY Slip Op 00028 |
| Decided on January 04, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Singh, J.P., Scarpulla, Pitt-Burke, Higgitt, O’Neill Levy, JJ.
Index No. 154533/21 Appeal No. 1337 Case No. 2023-02237
v
Richard South, et al., Defendants, ARS Medical Equipment Corp., et al., Defendants-Respondents.
Hollander Legal Group, P.C., Melville (Allan S. Hollander of counsel), for appellants.
Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered on or about April 10, 2023, which, insofar as appealed from, denied plaintiffs’ motion for summary judgment declaring that they have no obligation to pay no-fault benefits to defendants ARS Medical Equipment Corp., Ideal Care Pharmacy, Inc., and Rosar Medical Equipment Corp. (collectively defendants) in connection with the underlying August 9, 2020 accident, unanimously reversed, on the law, the motion granted, and it is so declared.
Plaintiffs demonstrated a “founded belief” that the August 9, 2020 accident was not covered by no-fault insurance (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; 11 NYCRR 65-3.8[e][2]), based on, among other things, the investigation undertaken by their investigator and the examination under oath (EUO) testimony of the driver of the vehicle in which the claimants were passengers. The driver stated that immediately before the collision, he heard one of the passengers tell someone on the phone to hit the car, and that after the accident the other vehicle fled the scene. Defendants failed to present evidence sufficient to raise an issue of fact as to the bona fides of the accident because they did not provide an affidavit of a person with knowledge supporting the legitimacy of their claims. The affirmation of defendants’ attorney in opposition to plaintiffs’ summary judgment motion was of no probative value (see Ramos v New York City Hous. Auth., 264 AD2d 568 [1st Dept 1999]). Under these circumstances, plaintiffs were entitled to deny coverage pursuant to 11 NYCRR 65-3.8(e)(2)and the provisions of the policy voiding coverage based on fraud (see Matter of Eagle Ins. Co. v Gueye, 26 AD3d 192, 193 [1st Dept 2006]).
Additionally, and as a separate ground for the declaration, plaintiffs demonstrated prima facie that the claimants’ failure to appear for two properly noticed and scheduled EUOs was a violation of a condition precedent to coverage and a valid basis to deny defendants’ claims (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). The affidavit of plaintiffs’ claims manager and the exhibits attached thereto were sufficient evidence that the notices of the EOUs were sent within 15 days of receipt of the NF-2s (see 11 NYCRR 65-3.5[b]), and the second EUO was noticed within 10 days of the claimants’ nonappearance at the first scheduled EUO (see 11 NYCRR 65-3.6[b]).The affirmation of plaintiffs’ attorneys and the transcript of the proceedings on the dates the EUOs were scheduled showed that the claimants did not appear; and the affirmation of one of the attorneys described in detail the office procedure regarding mailing of the EUO notices. A further affidavit of the operations manager of the company acting as plaintiffs’ agent for receipt of bills and correspondence showed that the denial letters were also timely sent(see 11 NYCRR 65-3.8[*2][a][1], [c]).Defendants failed to present sufficient evidence to raise an issue of fact concerning the timeliness of the EUO the nonappearance of the claimants at the EUOs, and the subsequent denial notices.Whether or not defendants were innocent third parties was irrelevant because “an assignee never stands in a better position than his assignor” (see Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121, 126 [1975]). THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: January 4, 2024
Reported in New York Official Reports at Matter of Country-Wide Ins. Co. v WJW Med. Prods., Inc. (2023 NY Slip Op 06472)
| Matter of Country-Wide Ins. Co. v WJW Med. Prods., Inc. |
| 2023 NY Slip Op 06472 |
| Decided on December 19, 2023 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Singh, J.P., Friedman, Gesmer, Shulman, O’Neill Levy, JJ.
Index No. 655205/20 Appeal No. 1268 Case No. 2021-03718
v
WJW Medical Products, Inc. as Assignee of Madelin Veras, Respondent-Appellant.
Roman Kravchenko, Garden City, for appellant.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on October 5, 2021, which denied respondent WJW Medical Products, Inc.’s motion for attorney’s fees in connection with a no-fault insurance arbitration award, unanimously reversed, on the law, with costs, to grant the motion except insofar as it seeks interest accruing during WJW’s delay in filing a notice of entry, and the matter remanded to Supreme Court for a recalculation of fees in accordance with 11 NYCRR 65-4.6(d).
Supreme Court should not have denied WJW’s motion for attorney’s fees in its entirety (see Insurance Law § 5106[a]; 11 NYCRR 65-4.6[d]). The court was mistaken in its belief that WJW had not previously sought attorney’s fees under 11 NYCRR 65-4.6(d), which WJW had sought in its cross-petition to confirm the arbitration award., The February 11, 2021 order, which confirmed the arbitration award, granted the application for those fees.
Supreme Court appropriately declined to award interest, however, for the roughly three-month period from February 11, 2021, to May 12, 2021. WJW’s roughly three months of delay in filing a notice of entry went far beyond the 10 days that the February 11, 2021 confirmation order had allotted for the filing. WJW fails to explain why this delay should be considered reasonable (see 11 NYCRR 65-3.9[d]).
We note that WJW is not entitled to attorney’s fees for prosecuting this appeal given that a party is not entitled to “fees on fees” when applying for and substantiating attorney’s fees (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705-706 [2d Dept 2017]).
We have considered WJW’s remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: December 19, 2023
Reported in New York Official Reports at Matter of New Millennium Pain & Spine Medicine, P.C. v Progressive Cas. Ins. Co. (2023 NY Slip Op 05369)
| Matter of New Millennium Pain & Spine Medicine, P.C. v Progressive Cas. Ins. Co. |
| 2023 NY Slip Op 05369 |
| Decided on October 24, 2023 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Manzanet-Daniels, J.P., Rodriguez, Pitt-Burke, Higgitt, Rosado, JJ.
Index No. 654892/22 Appeal No. 879 Case No. 2023-03262
v
Progressive Casualty Insurance Company, Respondent-Respondent.
Roman Kravchenko, Melville (Jason Tenenbaum of counsel), for appellant.
McCormack & Mattei, P.C., Garden City (Jamila Shukry of counsel), for respondent.
Order, Supreme Court, New York County (John J. Kelley, J.), entered June 28, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated December 1, 2022, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.
The court correctly denied the petition to vacate the master arbitration award. “Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (Matter of Carty v Nationwide Ins. Co., 212 AD2d 462 [1st Dept 1995]). Here, petitioner does not dispute that the subject policy was exhausted prior to the underlying arbitration, but argues that its claim for no-fault compensation, which was submitted and denied prior to the exhaustion of the policy, should retain priority of payment. The fact that the arbitrator followed First Department precedent in Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]) rather than Second Department precedent in Alleviation Med. Servs., P.C. v Allstate Ins. Co. (55 Misc 3d 44 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy (see Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], lv denied 40 NY3d 904 [2023]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 24, 2023
Reported in New York Official Reports at Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C. (2023 NY Slip Op 05094)
| Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C. |
| 2023 NY Slip Op 05094 |
| Decided on October 10, 2023 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Manzanet-Daniels, J.P., Gesmer, González, Kennedy, O’Neill Levy, JJ.
Index No. 650424/16 Appeal No. 749 Case No. 2022-03570
v
Bay Needle Care Acupuncture, P.C., as Asignee of Solange Thornhill, Respondent-Appellant.
Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for appellant.
Jaffe & Velazquez, LLP, New York (Thomas Torto of counsel), for respondent.
Order, Supreme Court, New York County (Lyle E. Frank, J.), entered August 3, 2022, which denied respondent Bay Needle Care Acupuncture, P.C.’s motion for attorney’s fees, unanimously affirmed, with costs.
Supreme Court properly denied Bay Needle’s motion seeking additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), because Bay Needle failed to provide any explanation for the lengthy delay in moving for such relief and failed to submit any proof of the fees incurred. Previously, in a “Decision, Order and Judgment,” dated November 28, 2016 and filed with the Clerk on December 5, 2016, Supreme Court (Kathryn E. Freed, J.) denied petitioner Country-Wide Insurance Company’s petition to vacate a master arbitration no-fault award dated December 28, 2015, dismissed the proceeding, and confirmed the awards of the lower arbitrator and master arbitrator which were rendered in favor of Bay Needle. Approximately five and a half years later, Bay Needle moved for additional attorney’s fees of $2,000 incurred in opposing Country-Wide’s petition.
To the extent Bay Needle argues that it timely sought to submit a proposed judgment within the 60-day period prescribed by 22 NYCRR 202.48, it was rejected by the County Clerk and returned for correction. Bay Needle provided no explanation for its failure to submit a corrected judgment, or otherwise timely move for additional attorney’s fees after issuance of the 2016 Decision, Order, and Judgment. Thus, Bay Needle effectively abandoned its claim.
Moreover, the amount of attorney’s fees awarded pursuant to 11 NYCRR 65-4.10(j)(4) is left to the court’s discretion (see Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [1st Dept 2018]). Here, the court properly exercised its discretion by not awarding additional fees of $2,000 in a case involving a no-fault claim of $2,100, which was resolved six years prior, and where Bay Needle’s counsel failed to provide contemporaneous documentation of the fees incurred.
We have considered Bay Needle’s remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 10, 2023
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Smart Choice Med., P.C. (2023 NY Slip Op 03191)
| Matter of American Tr. Ins. Co. v Smart Choice Med., P.C. |
| 2023 NY Slip Op 03191 [217 AD3d 492] |
| June 13, 2023 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of American Transit Insurance Company,
Respondent, v Smart Choice Medical, P.C., as Assignor of Jeremy Cruz, Appellant. |
Roman Kravchenko, Melville, for appellant.
Larkin Farrell LLC, New York (Anthony R. Troise of counsel), for respondent.
Order, Supreme Court, Bronx County (Marissa Soto, J.), entered January 27, 2023, which granted petitioner American Transit Insurance Company’s (American Transit) petition to vacate the award of a master arbitrator, dated August 11, 2022, affirming a lower arbitrator’s award, dated May 26, 2022, in favor of respondent Smart Choice Medical P.C. (Smart Choice) in the amount of $1,211.48, vacated the arbitration award, and denied Smart Choice’s request for attorney fees, unanimously affirmed, without costs.
“Where, as here, there is compulsory arbitration involving no-fault insurance, the standard of review is whether the award is supported by evidence or other basis in reason” (Matter of Miller v Elrac, LLC, 170 AD3d 436, 436-437 [1st Dept 2019]; see also Country-Wide Ins. Co. v Zablozki, 257 AD2d 506, 507 [1st Dept 1999], lv denied 93 NY2d 809 [1999]).
“When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it constitutes a breach of a condition precedent vitiating coverage” (Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 442 [1st Dept 2018] [internal quotation marks omitted]). Like Hereford, American Transit established its entitlement to judgment as a matter of law by submitting the letters sent to the claimant notifying him about the date, time, and location of the initially scheduled IME, a second scheduled IME, a third scheduled IME, and an affidavit of mailing for these letters. American Transit also submitted affidavits from the medical professional assigned to conduct the scheduled IMEs, who stated that the claimant failed to appear at the date and time of his appointment. This principle is well-established law in this Court (see e.g. Matter of Global Liberty Ins. Co. of N.Y. v Capital Chiropractic, P.C., 181 AD3d 429, 429 [1st Dept 2020]; Matter of Global Liberty Ins. Co. of N.Y. v Top Q. Inc., 175 AD3d 1131, 1131-1132 [1st Dept 2019]; Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]).
Generally, if a valid claim or portion of a claim for no-fault benefits is overdue, Insurance Law § 5106 (a) entitles “the claimant . . . to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations” (Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 172 AD3d 598, 598 [1st Dept 2019]). However, because we find Smart Choice’s claim invalid as a matter of law, it is not entitled to such fees. Concur—Oing, J.P., Singh, Moulton, Scarpulla, Shulman, JJ.
Reported in New York Official Reports at Country-Wide Ins. Co. v Alicea (2023 NY Slip Op 01474)
| Country-Wide Ins. Co. v Alicea |
| 2023 NY Slip Op 01474 [214 AD3d 530] |
| March 21, 2023 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Country-Wide Insurance Company,
Respondent, v Richard Alicea et al., Defendants, and SP Orthotic Surgical & Medical Supply, Inc., et al., Appellants. |
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Thomas Torto, New York, for respondent.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered August 27, 2021, which granted plaintiff Country-Wide Insurance Company’s motion for summary judgment declaring that plaintiff has no duty to defendants-appellants to pay no-fault claims based on the injured party’s failure to appear for examinations under oath (EUO), and permanently stayed any further action involving the injured party, unanimously reversed, on the law, without costs, the motion denied and the declaration and stay vacated.
Although plaintiff timely requested an EUO and subsequently issued a timely denial (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]), the motion court erred in granting summary judgment. 11 NYCRR 65-3.5 (e) requires an EUO request be based on application of objective standards, and that the insurer must have a specific objective justification. Summary judgment is premature under CPLR 3212 where an insurer fails to provide a medical provider with its objective justification for requesting the EUO (Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 473 [1st Dept 2022]). This Court has explained that the insurer’s reason for the EUO is essential for medical providers to oppose an insurer’s summary judgment motion, and that information is in the exclusive knowledge and control of the insurer (American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]).
Plaintiff’s argument that the opposing defendants waived any objection to the reasonableness of EUO request is unavailing (Country-Wide, 205 AD3d at 474). Concur—Kapnick, J.P., Kern, Gesmer, Moulton, Higgitt, JJ.
Reported in New York Official Reports at Liberty Mut. Ins. Co. v Bonilla (2023 NY Slip Op 00731)
| Liberty Mut. Ins. Co. v Bonilla |
| 2023 NY Slip Op 00731 [213 AD3d 458] |
| February 9, 2023 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Liberty Mutual Insurance Company et al.,
Appellants, v Melito Bonilla et al., Respondents, et al., Defendants. |
Jaffe & Asher LLP, White Plains (Marshall T. Potashner of counsel), for appellants.
Eppinger, Reingold & Korder, Larchmont (Mitchell L. Korder of counsel), for respondents.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered September 21, 2022, which denied plaintiffs’ motion pursuant to CPLR 602 (b) to consolidate eight Civil Court actions with this action, unanimously reversed, on the law, without costs, and plaintiffs’ motion granted.
This action arises out of insurance claims based on an accident on December 30, 2020 in which defendant Melito Bonilla, while a passenger in a parked car, was injured when the car was struck by another vehicle. Each of the claims is under an insurance policy issued by plaintiffs that required Bonilla to appear for an examination under oath (EUO). Plaintiffs Liberty Mutual Insurance Company and LM General Insurance Company commenced this action on December 28, 2021, seeking a declaratory judgment, alleging that they do not owe no-fault coverage for medical fees in connection to Bonilla’s injuries because he failed to appear for an EUO.
After the action was commenced, two of Bonilla’s medical providers, Bay Ridge Chiropractic PC and Hudson Valley Chiro & Rehab PC, both of which are defendants in this action, brought eight actions, all in Richmond County Civil Court, seeking payment from Liberty for treatment of Bonilla’s alleged injuries. Liberty asserts that the same defense applies in each case, namely that it is not required to cover the injuries because Bonilla failed to appear for scheduled EUOs.
It was an improvident exercise of discretion to have denied plaintiffs’ motion to consolidate (see Amcan Holdings, Inc. v Torys LLP, 32 AD3d 337, 340 [1st Dept 2006]). The issue of whether Bonilla failed to submit to the EUO, and whether such failure entitles Liberty to disclaim coverage for his alleged injuries and treatment, would affect the outcome of each of the cases, and Liberty would risk inconsistent verdicts and multiple trials if the Civil Court actions are not consolidated with this one (see Phoenix Garden Rest. v Chu, 202 AD2d 180, 180-181 [1st Dept 1994]). Moreover, in opposing plaintiffs’ motion, defendants have not argued that they would be prejudiced. Concur—Webber, J.P., González, Scarpulla, Rodriguez, JJ.