Reported in New York Official Reports at Unitrin Safeguard Ins. Co. v Manuel (2025 NY Slip Op 01727)
| Unitrin Safeguard Ins. Co. v Manuel |
| 2025 NY Slip Op 01727 |
| Decided on March 20, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Manzanet-Daniels, J.P., Kern, Kapnick, González, Scarpulla, JJ.
Index No. 160090/22|Appeal No. 3944|Case No. 2024-00362|
v
Jermail Manuel, et al., Defendants, Abdul-Massih Family Health Nurse Practitioner PC, et al., Defendants-Appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Goldberg, Miller & Rubin, New York (Harlan R. Schreiber of counsel), for respondent.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered January 12, 2024, which granted plaintiff ‘s motion for summary judgment declaring that it had no duty to pay no-fault insurance claims to defendants Abdul-Massih Family Health Nurse Practitioner PC, Andrew Glyptis, MD, Brefni Chiropractic Diagnostics, PC, Emote Medical Services, PC, Kuman Medical Supply Inc., Masood Chiropractic Diagnostic, P.C., and Spine Care Chiropractic, P.C. (collectively, defendant providers) arising out of the underlying accident, unanimously affirmed, without costs.
Defendant claimants claimed that they were passengers in a covered vehicle and sustained injuries during a January 9, 2022 accident, and notified plaintiff that they intended to submit claims for no-fault benefits. However, claimants never answered the complaint or otherwise appeared in this action, and plaintiff obtained a default judgment against them. The remaining defendants are medical providers that submitted tens of thousands of dollars in no-fault claims as assignees of claimants.
The court properly granted plaintiff summary judgment declaring that it had no duty to pay no-fault claims to defendant providers, as plaintiff demonstrated a founded belief that claimants’ injuries did not arise out of the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Plaintiff proffered an affidavit from a claims investigator detailing the circumstances of the accident that led to the investigation, including the magnitude of the claims submitted, the absence of any claims for damage to the vehicle, and the lack of a police report. Plaintiff submitted affidavits from the occupants of the adverse vehicle, who characterized the accident as a bumper “tap” resulting in no visible damage to the covered vehicle or injury to the driver. The occupants of the adverse vehicle also stated they were able to see into the covered vehicle and there were no passengers within (see State Farm Mut. Auto. Ins. Co. v AK Global Supply Corp., 203 AD3d 556, 558 [1st Dept 2022]). Plaintiff also pointed out “red flags” in claimants’ examinations under oath (EUOs) which undermined the credibility of their accounts (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454, 455 [1st Dept 2021]).
In opposition, defendant providers failed to raise an issue of fact, as they did not submit an affidavit of someone with personal knowledge of the legitimacy and circumstances of the accident or any other admissible evidence to rebut plaintiff’s showing (see Nationwide Gen. Ins. Co. v South, 223 AD3d 411, 411-412 [1st Dept 2024]; Ramos v New York City Hous. Auth., 264 AD2d 568 [1st Dept 1999]). Insofar as claimants asserted in their EUOs that they were passengers in the vehicle at the time of the accident, the court properly construed claimants’ default as an admission that their EUO statements were false and their injuries were not the result of the accident, as alleged by [*2]plaintiff in the complaint (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Surgicore, 195 AD3d at 455).
Although defendant providers argue that plaintiff’s summary judgment motion was premature, they failed to demonstrate that any proof necessary for their opposition was exclusively within plaintiff’s possession or that they made further attempts to obtain that information (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557, 557 [1st Dept 2007]; see also CPLR 3212[f]). Their attorney’s affirmation was insufficient in that regard (see 354 Chauncey Realty, LLC v Brownstone Agency, Inc., 213 AD3d 544, 545 [1st Dept 2023]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: March 20, 2025
Reported in New York Official Reports at Liberty Mut. Ins. Co. v Mercado (2025 NY Slip Op 00631)
| Liberty Mut. Ins. Co. v Mercado |
| 2025 NY Slip Op 00631 |
| Decided on February 04, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Friedman, J.P., Gesmer, González, Scarpulla, Pitt-Burke, JJ.
Index No. 650161/20 Appeal No. 3617 Case No. 2023-06400
v
Dilia Escano Mercado et al., Defendants, Bronx Medical Health Provider et al., Defendants-Appellants, Chang Health Physical Therapy PC, et al., Defendants.
The Rybak Firm, PLLC, Brooklyn (Michael Kroopnick of counsel), for appellants.
Correia, Conway & Stiefeld, White Plains (Nicole E. Duke of counsel), for respondents.
Order, Supreme Court, New York County (Debra A. James, J.), entered on or about November 24, 2023, which granted plaintiffs’ motion for summary judgment and adjudged and declared that plaintiffs are not obligated to honor or pay claims for reimbursement to defendants Bronx Medical Health Provider and Burke Physical Therapy PC, as assignees of defendants Dilia Mercado, Jose Mercado, and Miguel Angel Santiago (the individual defendants), with respect to no-fault benefits for an alleged motor vehicle collision that occurred on April 15, 2019, unanimously affirmed, with costs.
The individual defendants were allegedly involved in a vehicle collision with another vehicle. According to plaintiffs, which are the no-fault insurance providers, no injuries were reported at the scene, and no citations were issued. After the collision, the individual defendants sought medical treatment from defendant medical providers for their alleged injuries; the medical providers then sought and were denied reimbursement as assignees of the individual defendants.
Plaintiffs established their entitlement to summary judgment by providing a specific objective justification for conducting examinations under oath (EUOs) of the individual defendants (11 NYCRR 65-3.5[e]; see Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 473 [1st Dept 2022]). Although the explanation that plaintiffs provided was not particularly extensive, it was sufficient to establish the justification and to establish that defendants had not requested these EUOs arbitrarily or as a matter of routine. We note that plaintiffs moved for summary judgment after the close of discovery, during which they had disclosed to defendants the basis for their requests (cf. Delacruz, 205 AD3d at 473).
Furthermore, Supreme Court correctly concluded that, with respect to these defendants, plaintiffs established that they sent timely requests for the EUOs. Thus, the individual defendants’ failure to appear for EUOs constitutes a breach of a condition precedent to coverage and voids the policy ab initio (see Unitrin Advantage Ins. Co. v Dowd, 194 AD3d 507, 508 [1st Dept 2021]).
We have considered defendants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: February 4, 2025
Reported in New York Official Reports at Hereford Ins. Co. v Interdependent Acupuncture PLLC (2025 NY Slip Op 00021)
| Hereford Ins. Co. v Interdependent Acupuncture PLLC |
| 2025 NY Slip Op 00021 |
| Decided on January 02, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Kern, J.P., Kennedy, Gesmer, Higgitt, Michael, JJ.
Index No. 152296/19 Appeal No. 3388 Case No. 2024-02707
v
Interdependent Acupuncture PLLC, et al., Defendants, Shelly Sarbensarpong, et al., Defendants-Appellants.
Law Office of Yuriy Prakhin, P.C., Brooklyn (Yuriy Prakhin of counsel), for appellants.
Goldberg, Miller & Rubin, P.C., New York (Victoria Tarasova of counsel), for respondent.
Order, Supreme Court, New York County (David B. Cohen, J.), entered April 11, 2024, which denied the motion of defendants-appellants Shelly Sarben-Sarpong and Corey Hargrove to vacate orders and judgments, entered August 14, 2019 and February 17, 2023, granting plaintiff’s motions for entry of default judgments against them and declaring that they were not entitled to no-fault coverage, unanimously affirmed, without costs.
The court providently exercised its discretion in denying appellants’ motion to vacate the default judgments pursuant to CPLR 5015(a)(1) because appellants failed to demonstrate a reasonable excuse for their defaults (CPLR 5015[a][1]; see Towncenter Partners LLC v A.A. Castro Complex Litig., 203 AD3d 528, 529 [1st Dept 2022]). Appellants offered no explanation as to why they failed to respond to the complaint despite conceding that they received service of process. Their counsel’s suggestion that they were confused by the pendency of their separate personal injury action, in which they were represented by counsel, does not constitute a reasonable excuse (see Buckley v Nicklous, 210 AD3d 575, 575 [1st Dept 2022]). Appellants provide no support for their argument that plaintiff should have notified their counsel, who represented them in a separate personal injury action against plaintiff’s insured, of the commencement of this declaratory judgment action. In any event, appellants did not provide any affidavits to explain why they did not provide the pleadings in this action to their counsel after they were served. Since appellants’ proffered excuse for their defaults was not reasonable, the court did not need to consider whether they showed a potentially meritorious defense to the declaratory judgment action (see Besler v Uzieri, 179 AD3d 628, 628-629 [1st Dept 2020]).
As for appellants’ argument that the default judgments are a nullity because plaintiff failed to make an evidentiary showing as required by CPLR 3215(f), the Court of Appeals has held that a failure to submit the proof required by CPLR 3215(f) is “not a jurisdictional defect” and therefore “does not justify treating the judgment as a nullity” (Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203-204 [1st Dept 2013]). Appellants’ remedy was to move pursuant to CPLR 5015(a)(1) to vacate the default judgments, which required them to show a reasonable excuse for their defaults (see id.; Frazier v 811 E. 178th St. Realty Corp., 183 AD3d 413, 414 [1st Dept 2020]). In any event, plaintiff did submit admissible evidence supporting its assertion that it properly disclaimed coverage based on a founded belief that the treatment appellants received was not medically necessary or causally related to the subject motor vehicle accident (see State Farm Fire & Cas. Co. v AA Acupuncture Serv., P.C., 217 AD3d 643 [1st Dept 2023]).
We have considered appellants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME [*2]COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: January 2, 2025
Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. (2024 NY Slip Op 05193)
| State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. |
| 2024 NY Slip Op 05193 |
| Decided on October 22, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Webber, J.P., Friedman, Mendez, Shulman, O’Neill Levy, JJ.
Index No. 160355/20 Appeal No. 2863 Case No. 2023-03172
v
Equinox Physical Therapy, P.C., et al., Defendants, Grand Medical Supply Corp. et al., Defendants-Appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for respondent.
Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about April 14, 2023, which granted plaintiff insurer’s motion for summary judgment on its causes of action for declaratory judgment, unanimously affirmed, with costs.
Plaintiff established its prima facie entitlement to summary judgment on its first cause of action for declaratory relief by submitting evidence that claimants failed to appear at properly scheduled examinations under oath (EUOs), thus vitiating the insurance policy (see PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). A claim specialist submitted an affidavit of merit and affidavits of service for the EUO notices sent to the claimants’ residences directing them to appear for two separate EUOs. In addition, plaintiff submitted an attorney’s affirmation, based on the attorney’s personal knowledge, averring that the claimants failed to appear for their scheduled EUOs and attaching deposition transcripts memorializing the claimants’ nonappearance at the EUOs. Because the record demonstrates that plaintiff mailed its notices to take the claimants’ EUOs before it received defendants’ no-fault verification forms, plaintiff did not have to comply with the 15-day time frame for sending EUO notices set forth in 11 NYCRR 65-3.5 (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City LLC, 195 AD3d 454, 455 [1st Dept 2021]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 469 [1st Dept 2016]).
In opposition, defendants failed to raise a triable issue of fact. Defendants offer nothing more than speculation to support their argument that they need further discovery, nor does the record support the argument. Defendants have also not submitted an affidavit to establish that essential facts may exist but cannot yet be stated (CPLR 3212[f]; 354 Chauncey Realty, LLC v Brownstone Agency, Inc., 213 AD3d 544, 545 [1st Dept 2023]).
Because the policy is vitiated, State Farm did not have to establish that it timely denied defendants’ claims (see PV Holding Corp., 188 AD3d at 430).
We have considered defendants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 22, 2024
Reported in New York Official Reports at Health E. Ambulatory Surgical Ctr. v Country-Wide Ins. Co. (2024 NY Slip Op 51346(U))
[*1]| Health E. Ambulatory Surgical Ctr. v Country-Wide Ins. Co. |
| 2024 NY Slip Op 51346(U) |
| Decided on September 30, 2024 |
| Appellate Term, First Department |
| 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 30, 2024
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hagler, P.J., Brigantti, Tisch, JJ.
570101/24
against
Country-Wide Insurance Company, Defendant-Appellant.
Defendant appeals from a “decision and order” of the Civil Court of the City of New York, Bronx County (Myrna Socorro, J.), entered on or about May 15, 2020, and a judgment (same court and Judge), entered March 18, 2022, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $19,646.13.
Per Curiam.
Judgment (Myrna Socorro, J.), entered March 18, 2022, reversed, with $30 costs, and complaint dismissed. Appeal from “decision and order” (Myrna Socorro, J.), entered on or about May 15, 2020, dismissed, without costs, as subsumed in the appeal from the judgment.
In this first-party no-fault action, which came on for trial after having been marked “final,” the trial transcript consists of barely nine pages of colloquy between the court and respective counsel. No witnesses were sworn or evidence received. Instead, plaintiff-provider referenced admissions made by defendant-insurer in defendant’s prior motion for summary judgment, regarding, inter alia, its receipt of plaintiff’s claim. Following these abbreviated proceedings, a judgment was entered in plaintiff’s favor in the principal sum of $19,646.13.
We reverse. The sole evidence relied upon by plaintiff, while sufficient to establish defendant’s receipt of the claim (see generally Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 2007 NY Slip Op 27173 [App Term, 1st Dept 2007]), also established that defendant timely sought verification, which was not provided. As a result, plaintiff failed to establish, prima facie, that the claim was overdue i.e., was not “denied or paid” within the prescribed 30—day period (see 11 NYCRR 65-3.8[c]; Insurance Law § 5106[a]; Viviane Etienne Med. Care, P.C. v. Country—Wide Ins. Co., 25 NY3d 498, 507 [2015]). Therefore, the complaint should have been dismissed.
All concur.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Clerk of the CourtDecision Date: September 30, 2024
Reported in New York Official Reports at Health E. Ambulatory Surgical Ctr. v Country-Wide Ins. Co. (2024 NY Slip Op 51346(U))
[*1]| Health E. Ambulatory Surgical Ctr. v Country-Wide Ins. Co. |
| 2024 NY Slip Op 51346(U) [84 Misc 3d 126(A)] |
| Decided on September 30, 2024 |
| Appellate Term, First Department |
| 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 30, 2024
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hagler, P.J., Brigantti, Tisch, JJ.
570101/24
against
Country-Wide Insurance Company, Defendant-Appellant.
Defendant appeals from a “decision and order” of the Civil Court of the City of New York, Bronx County (Myrna Socorro, J.), entered on or about May 15, 2020, and a judgment (same court and Judge), entered March 18, 2022, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $19,646.13.
Per Curiam.
Judgment (Myrna Socorro, J.), entered March 18, 2022, reversed, with $30 costs, and complaint dismissed. Appeal from “decision and order” (Myrna Socorro, J.), entered on or about May 15, 2020, dismissed, without costs, as subsumed in the appeal from the judgment.
In this first-party no-fault action, which came on for trial after having been marked “final,” the trial transcript consists of barely nine pages of colloquy between the court and respective counsel. No witnesses were sworn or evidence received. Instead, plaintiff-provider referenced admissions made by defendant-insurer in defendant’s prior motion for summary judgment, regarding, inter alia, its receipt of plaintiff’s claim. Following these abbreviated proceedings, a judgment was entered in plaintiff’s favor in the principal sum of $19,646.13.
We reverse. The sole evidence relied upon by plaintiff, while sufficient to establish defendant’s receipt of the claim (see generally Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 2007 NY Slip Op 27173 [App Term, 1st Dept 2007]), also established that defendant timely sought verification, which was not provided. As a result, plaintiff failed to establish, prima facie, that the claim was overdue i.e., was not “denied or paid” within the prescribed 30—day period (see 11 NYCRR 65-3.8[c]; Insurance Law § 5106[a]; Viviane Etienne Med. Care, P.C. v. Country—Wide Ins. Co., 25 NY3d 498, 507 [2015]). Therefore, the complaint should have been dismissed.
All concur.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Clerk of the CourtDecision Date: September 30, 2024
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