AAPS Med. Supply Corp v Liberty Mut. Fire Ins. Co. (2026 NY Slip Op 51283(U))

Reported in New York Official Reports at AAPS Med. Supply Corp v Liberty Mut. Fire Ins. Co. (2026 NY Slip Op 51283(U))

AAPS Med. Supply Corp v Liberty Mut. Fire Ins. Co.

2026 NY Slip Op 51283(U) [89 Misc 3d 1247(A)]

Decided on August 5, 2026

Civil Court of the City of New York, Richmond County

Robert J. Helbock, J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Civil Court of the City of New York, Richmond County

Decided on August 5, 2026

Index No. CV-784563-24/RI

Robert J. Helbock, J.

[*1]

Upon the foregoing cited papers, the decision on Defendant’s motion to stay the trial scheduled in this matter is as follows:

AAPS Medical Supply Corp. (hereafter referred to as “Plaintiff”), as assignee of Daquon Gore (hereafter referred to as “Assignor”), commenced this action against Liberty Mutual Fire 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 bill at issue, in the amount of $3,301.10, relates to medical supplies provided to the assignor on December 5, 2023. The Defendant issued a denial of the bill for the supplies on May 4, 2024 on the grounds that:

“Claim has been denied due to fraud. Further denial details will follow under separate cover. Therefore, all No-Fault benefits for the above applicant are denied effective 10/23/2023.”^FN1

The explanation provided on the “Explanation of Review” dated June 11, 2024 that was submitted with the NF-10 stated:

“All No-Fault benefits to this claimant are denied. Liberty mutual’s investigation has revealed false information submitted in support of this claimant’s claim revealing misrepresentations of material facts. Per the policy, Fraud ‘we do not provide coverage for any insured (“insured’) who has made fraudulent statements or engaged in fraudulent conduct in connection with any loss (“loss”) or damage for which coverage is sought under this policy.’ Accordingly, the claim is denied in its entirety.”^FN2

The summons and complaint were filed by the Plaintiff with the Clerk of the Court on December 4, 2024. The Defendant’s answer was filed on December 30, 2024, alleging inter alia, “The eligible injured parties breached the policy of insurance by making material misrepresentations in the presentation of the claim.”^FN3

The Plaintiff served and filed the Notice of Trial on June 27, 2025. The Defendant filed a motion for summary judgment on October 22, 2025. A motion briefing order was issued by the [*2]Court and the matter was adjourned to February 19, 2026 for the argument of the motion for summary judgment. After the argument, the decision on the motion was issued from the bench subject to an order settled by the parties. The Court’s Order, dated March 16, 2026, ruled there was insufficient evidence, in a form admissible at trial, to support a finding of judgment as a matter of law (CPLR §3212). The order was served on the parties via NYSCEF on March 18, 2026.

In the interim, the matter appeared on the Part 58 Trial calendar for conference on February 11, 2026. The parties were given a trial date of March 23, 2026, subject to the outcome of the pending summary judgment motion.

On December 10, 2025, the Defendant filed a lawsuit in Supreme Court, Nassau County, titled Liberty Mutual Fire Insurance Company v. Chelsee Ann Shanya Sutherland et. al. (hereafter referred to as “Liberty Mutual v. Sutherland“) (Index #626589/2025), seeking a declaration that Liberty Mutual is not responsible for payments under the No-Fault policy due to alleged misrepresentations by the “Individual Defendants.” The Plaintiff was named among those parties labeled “Healthcare Provider Defendants,” and the Assignor was named among those parties labeled “Individual Defendants.”^FN4

On March 20, 2026, the Friday before the scheduled trial on Monday March 23, 2026, the Defendant filed a motion by order to show cause in this N.Y.C. Civil Court action seeking relief:

“Pursuant to CPLR §§2201 and 6301, immediately staying the instant action entitled AAPS Medical Supply Corp., as assignee of Daquon Gore v. Liberty Mutual Fire Ins. Co. (Index No. CV-784563-24/RI), including, but not limited to, any trials, settlement conferences, motions, or any other matters, pending the hearing and resolution of the declaratory judgment action entitled Liberty Mutual Fire Insurance Company v. Chelsee Ann Shanya Sutherland, et. al. in the Supreme Court of the State of New York, county of Nassau, 626589/2025.^FN5

The relief requested would stay the trial in this matter re-scheduled for September 8, 2026.

Discussion

The affirmation by Steven Daniel Levy, Esq., in support of the motion, sets forth the sum and substance of the Defendant’s investigation and relies on the conclusions reached by the Defendant’s investigator, Amanda Semmel. Her affidavit, sworn to on October 21, 2025,^FN6 deduces that the Assignors made material misrepresentations regarding the policy.

Mr. Levy’s affirmation states that upon the completion of the investigation, the Defendant commenced the Declaratory Judgment action in Liberty Mutual v. Sutherland. The Court finds this statement to misrepresent the timing of the declaratory judgment action since that action was not filed until nearly 18 months after the Explanation of Review stated the results of the investigation revealed the alleged fraud. The Defendant’s motion does not include any [*3]representation or evidence to show any further investigation took place between June 11, 2024 (the date of the Explanation of Review) and December 10, 2025 (the date the declaratory judgment was filed).

The Court finds the timing relevant since many of both the Plaintiff’s and the Court’s resources were employed by the Defendant during this period. A declaratory judgment action and a motion for a stay filed in December of 2025 would have timely preserved those judicial resources. Instead, the Defendant delayed until the business day before the scheduled trial and seeks the remedy to prevent an “undue burden” to the Defendant.

Furthermore, the Defendant’s order to show cause also seeks equitable relief, namely a preliminary injunction pursuant to CPLR §6301. Mr. Levy’s affirmation contends that the Defendant can show immediate and irreparable injury, loss or damages unless the defendant is restrained before a hearing can be held. However, the Defendant’s motion does not address the jurisdiction of the N.Y.C. Civil Court to issue such an injunction in accordance with the N.Y.C. Civil Court Act. The Appellate Term has ruled that the N.Y.C. Civil Court “may not grant injunctive relief” (Green Lakeside Manor Home for Adults, Inc. 30 Misc 3d 16 [App Term, 2d Dept., 2010]; citing, Topaz Realty Corp. v. Morales, 9 Misc 3d 27, 28 [App Term, 2d &11th Jud. Dists., 2005]). Issuing preliminary injunctions is not one of the remedies authorized by the N.Y.C. Civil Court Act (CCA §§202, 203.). Therefore, while the Court is authorized to stay a proceeding in its court (CPLR §2201), it cannot issue any preliminary injunction. The Defendant would have to request that relief from the New York State Supreme Court (CPLR §6301).

The affirmation in support of the motion requesting a preliminary injunction expresses confidence in the defense’s success in proving the Assignor’s fraudulent acts sufficient to warrant precluding any recovery under the policy. However, the Defendant does not provide any justification why it cannot prove such a defense during a trial in the N.Y.C. Civil Court. The affirmation of Mr. Levy makes the conclusory statement that “litigating the underlying matter would create an undue burden on Liberty Mutual and create a multiplicity of decision relating to the issue of coverage.”^FN7 The motion does not present any evidence or testimony that explains what the undue burden is.

The Defendant does not provide the Court with the captions or index numbers of any other actions or arbitrations pending between the parties, other than the declaratory judgment. While the Court knows that, generally, claims that are made pursuant to No-Fault insurance policies arising from motor vehicle accidents involve multiple demands for payment by healthcare providers, the Court cannot make an assumption that there are a “multiplicity of other cases” pending involving this assignor when evaluating the request for a stay. The Defendant has named multiple parties (other than the Assignor) and listed multiple claim numbers in the declaratory judgment action but did not provide any information regarding other pending N.Y.C. Civil Court cases in this motion or in the declaratory judgment pleading. Therefore, the argument that litigating THIS matter would result in a multiplicity of decisions involving the other parties to the declaratory judgment action is an exaggerated statement without any foundation.

The Defendant’s motion also makes no mention of the prejudice to the Plaintiff by the [*4]request to stay this trial. The Defendant issued a delay letter dated January 19, 2024 acknowledging receipt of the Plaintiff’s bill and notifying the Plaintiff the bill was not being paid subject to the Defendant’s investigation. The Plaintiff has waited 2 years and 6 months to resolve the outstanding bill and now, based upon the Defendant’s argument, would wait indefinitely while the declaratory judgment action proceeds from initial filing to its conclusion.

In addition, the Defendant did not provide any explanation regarding the delay in applying for the stay until the day before the trial in this matter. The bill in this matter was denied on June 4, 2024 due to alleged “misrepresentations” in this claim determined by the Defendant’s investigation. Therefore, the Defendant knew of its defense of alleged fraud and did not file the declaratory judgment until nearly 18 months later, after the Defendant completed motion practice in this matter. It waited to move for the stay of the proceeding until the business day before the trial. The Defendant wasted the Court’s time by delaying its motion to stay the proceeding and should not benefit from the intentional delay.

This Court must weigh the due process to be afforded to the Plaintiff against the burden of defending the action and the serious nature of the allegations by the Defendant. Both parties have the right to have their claim heard by the Court in a timely manner. If the trial were to proceed in the N.Y.C. Civil Court action, the Defendant can still raise and prove its fraud defense. The Defendant has not offered an argument to suggest otherwise.

The matter before the bar involves one transaction between the parties. The Defendant’s motion alleges that the motor vehicle accident at issue was the “product of an intentional act” and that [the Assignor] intentionally materially misrepresented the facts of the subject incident in furtherance of the fraudulent scheme to obtain pecuniary gain at the expense of insurance companies and the public at large.”^FN8 As a result, the Defendant contends it is not responsible for the payment of the Plaintiff’s bill. The declaratory judgment alleges a far greater conspiracy involving multiple parties and much more than one bill. The Defendant has not identified a single other matter that is pending trial. Therefore, the Court finds the Defendant did not define, nor does the Court foresee, the irreparable harm alleged by trying this one claim.

The Defendant unjustifiably relies on the Appellate Division’s decisions in Agway Insurance v Alvarez, 258 AD2d 487 [2d Dept., 1000]) and Hout v Coffman, 126 AD2d 973 [4th Dept., 1987). The Court in Agway did not address the lower court’s stay of the trial, but rather affirmed the lower court ruling on other grounds. Therefore, the Defendant’s reliance upon that case is unfounded.

The Court in Hout v Coffman, id., affirmed the lower court’s stay of the underlying action pending the decision of the insurer’s duty to defend in that action, but found the lower court abused its discretion in staying the underlying action pending determination of the insurer’s duty to indemnify. In that matter, Colonial Cooperative Insurance Company was arguing that it did not have a duty to defend the party in the underlying lawsuit. The Appellate Division, Fourth Department affirmed the stay regarding the duty to defend because the litigation was premature, but there may be an issue of liability under the insurance policy that would invoke the duty to indemnify so that issue must proceed to litigation.

Compare that case to the Defendant in this case who is a party itself to the N.Y.C. Civil Court matter and argues to delay this action because if it is successful in the declaratory [*5]judgment action then its defense in the N.Y.C. Civil Court case will already be litigated. That is a different issue and standard altogether. There is a substantial distinction between the status of the insurer in Agway and Hout compared to the Defendant in this case. For these reasons, the Court does not find these cases are persuasive regarding the need for a stay of the trial in this matter.

The Defendant also argues that this Court has stayed or delayed trials in N.Y.C. Civil Court when there is a dispositive motion pending in the declaratory judgment action, therefore this case should also be delayed. While it is true that this Court has delayed litigation of Civil Court matters while awaiting a decision of a dispositive motion pending in a declaratory judgment action, there is no such motion pending in the declaratory judgment action at this time. In this instance, there is not a reasonable expectation of the amount of time that will pass before a decision is made in the declaratory judgment action. Therefore, the prejudice to the Plaintiff by delaying this litigation cannot be weighed against time for a decision in the declaratory judgment matter. This negates the Defendant’s argument.

Decision

The New York City Civil Court Act does not give this Court the jurisdictional authority to issue a preliminary injunction pursuant to CPLR §6301. Therefore, that portion of the Defendant’s motion must be denied.

Regarding the remainder of the motion, trial courts have broad discretion to stay their own proceedings (Merola v. Bell, 47 NY2d 985 [1979]). The Defendant’s motion for a stay did not provide any testimony or facts to support its allegation of an undue burden upon the Defendant. The Defendant has not justified the prejudice to the Plaintiff by seeking to stay this matter on the eve of trial for an indefinite period of time. The Court recognizes the serious nature of allegations of fraud raised by the defense in this matter, however, merely claiming fraud does not warrant delaying the trial. Rather, it justifies the opportunity to prove the defense.

Furthermore, the conclusory statement that proceeding in this matter may result in a multiplicity of decisions, is not persuasive when the Defendant did not produce any evidence of other cases pending. For these reasons, the Court finds the Defendant did not justify any basis to stay the trial.

Having considered the Defendant’s motion, its arguments and the applicable law, the Court finds a stay of the trial would contravene the Court’s obligation to promote the timely resolution of this case.

Accordingly, the Defendant’s motion to stay the trial is DENIED and the motion for a preliminary injunction is DENIED.

It is hereby:

ORDERED, that the trial of this matter is scheduled for September 8, 2026 at 9:30 A.M. via Microsoft TEAMS. All parties and witnesses may appear via TEAMS. Both parties are to pre-mark and upload all trial exhibits to NYSCEF no later than September 1, 2026 at 4:00 P.M. Any evidence received after that date and time may be subject to preclusion. Any request for a subpoena shall be filed with the Court no later than August 10, 2026. The Court will provide the parties with a separate video-conference link for the trial.

This is the decision and order of the Court.

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

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

Maxim Orthopaedics PLLC v MVAIC

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

Decided on July 2, 2026

Civil Court of the City of New York, Richmond County

Robert J. Helbock, J.

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

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

Civil Court of the City of New York, Richmond County

Decided on July 2, 2026

Index No. CV-720612-25/RI

Robert J. Helbock, J.

[*1]

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

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

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

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

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

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

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

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

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

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

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

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

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

Late Bills Discussion

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

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

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

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

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

Bills Allegedly Not Received

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

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

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

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

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

Conclusion

Accordingly, it is hereby:

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

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

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

This is the Decision and Order of the Court.

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

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

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

2026 NY Slip Op 26094

Decided on June 22, 2026

Civil Court of the City of New York, Richmond County

Mark Kagan, J.

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

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

Civil Court of the City of New York, Richmond County

Decided on June 22, 2026

Index No. CV-709029-25/RI

Mark Kagan, J.

[*1]

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

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

Conclusions of Law

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

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

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

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

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

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

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

So ordered.

Dated: June 22, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC

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

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

Liberty RX Inc v Liberty Mut. Ins. Co.

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

Decided on June 18, 2026

Civil Court of the City of New York, Richmond County

Javier Ortiz, J.

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

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

Civil Court of the City of New York, Richmond County

Decided on June 18, 2026

Index No. CV-711756-25/RI

Javier Ortiz, J.

[*1]

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

Papers

D’s Motion & Supporting Documents 5-40

P’s Affirmation in Opposition 42

P’s Supplemental Submission of Decisions 45

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

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

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

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

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

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

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

This constitutes the Decision and Order of the Court.

Dated: June 18, 2026

Hon. Javier Ortiz, J.C.C.

Kings County Civil Court

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

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

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

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

Decided on June 11, 2026

Civil Court of the City of New York, Richmond County

Javier Ortiz, J.

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

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

Civil Court of the City of New York, Richmond County

Decided on June 11, 2026

Index No. CV-769317-24/RI

Javier Ortiz, J.

[*1]

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

D’s Motion & Supporting Docs 8-16

P’s Affirmation in Opposition 18

D’s Affirmation in Reply 19

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

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

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

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

This constitutes the Decision and Order of the Court.

DATED: June 11, 2026

Hon. Javier Ortiz, J.C.C.

Kings County Civil Court

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

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

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

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

Decided on June 4, 2026

Civil Court of the City of New York, Richmond County

Mark Kagan, J.

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

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

Civil Court of the City of New York, Richmond County

Decided on June 4, 2026

Index No. CV-752314-25/RI

Mark Kagan, J.

[*1]

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

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

Conclusions of Law

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

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

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

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

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

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

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

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

So ordered.

Dated: June 4, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC

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

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

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

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

Decided on April 13, 2026

Civil Court of the City of New York, Richmond County

Mark Kagan, J.

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

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

Civil Court of the City of New York, Richmond County

Decided on April 13, 2026

Index No. CV-771552-25/RI

Mark Kagan, J.

[*1]

The defendant State Farm Insurance Company has moved pursuant to CPLR §3212 seeking summary judgement dismissing the action on the grounds the assignor failed to provide further information sought by the defendant. The plaintiff has opposed the motion. Pursuant to CPLR §2219(a) the court has reviewed all the papers submitted including NYSCEF document numbers 1-22 and now renders the following determination.

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

Conclusions of Law

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

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

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

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

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

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

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

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

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

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

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

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

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

So ordered.

Dated: April 13, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC

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

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

[*1]

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

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

Decided on March 25, 2026

Civil Court Of The City Of New York, Richmond County

Kagan, J.

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

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

Decided on March 25, 2026

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

Index No. CV-759232-24/RI



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

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

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

On April 24, 2024 a vehicle driven by Miguel Angel Palaciosromero was involved in an accident with a vehicle driven by Mohamed Mohamed. The assignor, Manuel Plasencia, a passenger in the vehicle driven by Palaciosromero, sought No-Faults benefits in the amount of $1,449.69. The defendant, the insurer of the assignor refused the payment on the grounds the accident was staged. The plaintiff commenced this action seeking payment and the defendant duly answered. The defendant has now moved seeking summary judgement dismissing the [*2]action arguing there are no questions of fact the action should be dismissed. They assert there is evidence which establishes as a matter of fact that the accident was staged. As noted, the motion is opposed.

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

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

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

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

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

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

Thus, notwithstanding Mohamed’s disinterest in the number of occupants in the Palaciosromero vehicle there are clearly questions of credibility concerning whether in fact Monseratte was present in the vehicle when the accident occurred. It is well settled that “it is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof)” (see, Vega v. Restani Construction Corp., 18 NY3d 499, 942 NYS2d 13 [2012]). Therefore, summary judgement cannot be granted when facts are in dispute (Young v. Kamath, — AD3d —, — NYS3d —, 2026 WL 516800 [2d Dept., 2026]).

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

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

It is true that inconsistencies between various occupants of a vehicle can be used to support the contention the accident was staged or fraudulent (State Farm Fire and Casualty Company v. Advanced Recovery Equipment and Supplies LLC, 2022 NY Slip Op 32805(U) [Supreme Court New York County 2022]). However, the inconsistencies must relate to the subject accident. Thus, in Pavlova v. Allstate Insurance Company, 62 Misc 3d 1207(A), 112 NYS3d 871 [Supreme Court Kings County 2019] the court conceded there were inconsistencies between the testimonies of the various individuals that were in the accident however, there was no explanation how those inconsistencies demonstrated the accident was staged. The court specifically noted that the “defendant did not proffer any affidavit from an investigator who can elaborate on why the inconsistencies demonstrate intentional losses. Without a cogent and detailed investigative summary of this type of alleged intentional loss and solely relying on the transcripts alone in this matter, the testimonies given do not rise to the level of a founded belief [*4]that the accident was staged” (id). Again, in State Farm Mutual Auto Insurance Company v. Allmed Merchandise and Trading Inc., 2022 WL 596992 [Supreme Court New York County 2022] the court held that inconsistencies surely raised issues of credibility but they were, standing alone, insufficient to support the conclusion the accident was staged as a matter of law. Further, in Hereford Insurance Company v. All Nations DME Corp., 2026 WL 147211 [Supreme Court New York County 2026] the court held that even inconsistencies about the accident, such as the time and place and the whereabouts of the participants prior to the accident does not in any way demonstrate the accident was fraudulent.

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

So ordered.

Dated: March 25, 2026
Brooklyn, NY
Hon. Mark Kagan, 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. First Stop P.T., P.C. v GEICO Ins. Co. (2025 NY Slip Op 50947(U))

Reported in New York Official Reports at First Stop P.T., P.C. v GEICO Ins. Co. (2025 NY Slip Op 50947(U))

[*1]

First Stop P.T., P.C. v GEICO Ins. Co.

2025 NY Slip Op 50947(U) [86 Misc 3d 1216(A)]

Decided on March 26, 2025

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 March 26, 2025

First Stop P.T., P.C. As Assignee of Sandy Molina, Plaintiff against GEICO Insurance Company, Defendant.

Index No. CV-734838-24/RI

Robert J. Helbock, J.

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

Papers       & nbsp;       Numbered
Notice of Motion and Affirmation Affidavit annexed dated Sept. 11, 2024 NYSCEF Doc#: 4-10
Affirmation in Opposition dated November 11, 2024 NYSCEF Doc#: 13-14
Affirmation in Reply dated December 5, 2024 NYSCEF Doc#: 15-16

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

Plaintiff, FIRST STOP P.T., P.C. (hereafter “Plaintiff” or “First Stop”), as assignee of Sandy Molina (hereafter “Assignor”), commenced this action against the defendant, GEICO INSURANCE COMPANY (hereinafter, “Defendant”), to recover assigned first-party No-Fault insurance benefits for medical treatment provided to the Assignor pursuant to an automobile insurance policy issued by the Defendant.

Currently before the Court is Defendant’s motion seeking (i) an order pursuant to CPLR §3212 to grant summary judgment to the Defendant on the grounds that Plaintiff failed to provide GEICO with response to written demands for verification requested pursuant to the N.YS. Insurance Department regulation. (11 N.Y.C.R.R. §65-3.5).

Factual Background

The Court finds the following facts relevant to the decision in this matter.

The Defendant received a bill on May 23, 2023 for treatment rendered by the Plaintiff to [*2]the Assignor on April 14, 2023 in the amount of $614.00. On June 6, 2023 the Defendant requested the Plaintiff to appear for an “examination under oath (hereafter referred to as “EUO”) to take place on July 18, 2023, which was eventually rescheduled to August 29, 2023.

In the same letter making the EUO request dated June 6, 2023, the Defendant asked the Plaintiff to produce the following documents no later than seven days prior to the EUO:

1. “Sign in sheets, treatment notes, evaluation and reevaluation reports, and referrals from other healthcare providers to the extent not already provided;

2. Documents evidencing ownership of First Stop at the time of treatment for which you seek payment, by one or more licensed professionals, including but not limited to a copy of the certificate of incorporation, receipts for filing, stock certificates and the stock ledger for the professional corporation;

3. A list of the individuals who provide health care services on behalf of First Stop, licensing documentation for those individuals, and documents identifying the relationship between each individual and First Stop (i.e. W2s, 1099s, and/or K-1s);

4. Documents relating to the income and expenses of First Stop, including but not limited to payroll tax returns, corporate tax returns, financial statements, general ledgers, and bank statements for the past 12 months; and

5. Documents, contracts and agreements (including proofs of payments thereunder) relating to the relationship between First Stop and any entity or individual that (i) leases space and/or equipment to or First Stop or (ii) provides management, marketing, consulting, administrative, mailing, billing or collection services to First Stop.” (June 6, 2023 letter from Anuj Kundnani from GEICO to First Stop PT PV, including any typographical errors.)

Both sides agree that the Plaintiff appeared for the EUO on August 29, 2024. Then on September 1, 2023 the Defendant’s attorney sent a follow-up letter to the Plaintiff demanding the following documentation:

1. “Copies of all leases between First Stop and primary leaseholders, as well as proof of payment made thereunder the time period of January 1, 2023 to present regarding the following locations (14 addresses listed)… If there are no written leases, rent amounts at each location and names of doctors or clinics who serves as primary lease holder for First Stop;

2. A complete list of employees and individuals who provide or have provided services on behalf of First Stop, documents identifying the relationship between each individual and First Stop, including all W-2s, W-4s, W-9s, 1099s, K-a forms; and documentation identifying the compensation for these individuals, including quarterly payroll returns;

3. All licenses and certificates for each and every healthcare professional, including physical therapists, and technicians, who provide or have provided services on behalf of First Stop, including, but not limited to: (i) Mohamed Afify; (ii) Waleed Abdelrohman, (iii) “Dennis”;

4. All Billing agreements and paperwork, and proof of payment thereunder relating to billing (copies of the front and back of checks), between First Stop and (i) RMA Billing and Consulting; and (ii) Billing Experts Inc.;

5. All Functional Capacity Evaluation referral forms from treating providers for patients listed in Exhibit ‘A’;

6. All documentation relating to the employment status for patients listed in exhibit ‘A’; and

7. Copies of any materials disseminated by First Stop on behalf of its practice, including Flyers or business cards.”

The Defendant issued a second letter dated September 18, 2023 requesting verification of the same information requested in the September 1, 2023 letter. Then a follow-up letter was issued requesting the same information again on October 24, 2023.

The Plaintiff responded by a letter from their attorney dated December 28, 2023 in which the attorney raised objections to the requests, and then allegedly provided responses to the requests as follows:

1. In response to Defendant’s verification request #1 in the September 1, 2023 letter the Plaintiff responded:

“Please see Exhibit I and Exhibit 2” (The Court notes, Exhibit I attached to the September 1, 2023 letter included with the motion contains only three (3) leases for 160-59 Rockway Blvd., Jamaica, NY 11434; 1251 Ralph Avenue, Brooklyn NY, 11236; and 146 Empire Blvd., Brooklyn NY 11225, which were attached to the motion. Exhibit 2 contains the front and back of checks from First Stop PT PC made payable to different vendors some of which are labeled as “rent.”)

2. In response to Defendant’s verification request #2 in the September 1, 2023 letter the Plaintiff responded:

“Please see Exhibit 3.” (The Court notes, Exhibit 3, attached to the September 1, 2023 letter included with the motion, contains a document labeled “Payroll Register Report.”)

3. In response to Defendant’s verification request #3 in the September 1, 2023 letter the Plaintiff responded: “Please see Exhibit 4.” (The Court notes, Exhibit 4, attached to the September 1, 2023 letter included with the motion, contains documents labeled as licensing and registration certificates from the NYS Department of Education Department, and an attendance certificate from a medical company.)

4. In response to Defendant’s verification request #4 in the September 1, 2023 letter the Plaintiff responded:

“Please see Exhibit 5 and Exhibit 2.” (The Court notes, Exhibit 5, attached to the September 1, 2023 letter included with the motion, contains marketing material and Exhibit 2 is the cancelled checks referred to above.)

5. In response to Defendant’s verification request #5 in the September 1, 2023 letter the Plaintiff responded:

“Overbroad and irrelevant…” (The Court notes that no Exhibits were attached or referred to in response to this verification request.)

6. In response to Defendant’s verification request #6 in the September 1, 2023 letter the Plaintiff responded:

“Objection: Vague, overbroad and irrelevant….” (The Court notes that no Exhibits were attached or referred to in response to this verification request.)

7. In response to Defendant’s verification request #7 in the September 1, 2023 letter the Plaintiff responded:

“Please see Exhibit 6.” (The Court notes that Exhibit 6 was not included in the documents attached to the motion with the December 28, 2023 letter from the Plaintiff’s attorney.)

By a NF-IO Form dated January 25, 2024, the Defendant denied payment of the bill giving the reason for denial as “Payment is denied. You have failed to comply without verification request of 9/18/2023 within 120 days of such request or provide us with written proof providing reasonable justification for your failure to comply with the verification request.”

The Plaintiff instituted this action by a summons and complaint filed June 20, 2024. The Defendant filed an answer with the Court on July 30, 2024. The Defendant filed this motion for summary judgment on September 11, 2024. The Plaintiff filed opposition to the motion on November 11, 2024, and a reply was filed on December 5, 2024. The parties argued the motion on December 19, 2024 along with motions for summary judgment in actions between the same parties in NYC Civil Court Index Numbers CV-734903-24/RI, CV-734948-24/RI, CV-735025-24/RI. The Court reserved decision on all of these motions.

Discussion

The claim procedure for payments pursuant to a New York automobile insurance policy (hereafter referred to as a “No-Fault” policy) are set forth in detail by the regulations of the NYS Insurance Department in the New York Codes, Rules and Regulations (NYCRR) Title 11, Chapter III, Subchapter B, Part 65, Subpart 65-3 (hereafter referred to as 11 NYCRR §65-3 et. seq.). Section 65-3.5 sets forth the particulars of the claim procedure. Paragraphs (a) and (b) of that section provide:

“(a) Within 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS form NF-2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed the verification forms it will require prior to payment of the initial claim.

(b) Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification form. Requests by an insurer for additional verification need not be made on any prescribed or particular form… 11 NYCRR §65-3.5(a-b).

Pursuant to this section, the “initial verification request” made by the insurance carrier is to direct an applicant, who notifies the carrier of a claim, to file the specifics of the claim on the designated form. The Superintendent provides the forms for the claim (NF-2 and NF-3). (11 NYCRR §65-3.5 [a]) The “subsequent” verification request must be made in 15 business days for any additional information required, however, the response to this request does not have to be on any particular form. (11 NYCRR §65-3.5[b]) The regulations require a “follow-up” verification request if there is no response to the subsequent verification request within thirty days. (11 NYCRR §65-3.6[b]) However, the follow-up request does not toll the time to issue the denial. The claim need not be denied until timely verification is provided. (11 NYCRR §65-3.8)

The regulations do not provide for a fourth or “supplemental” verification request after the response to the “subsequent” verification request is received. While the regulations do not preclude such a request, the time to file any denial of claim is not tolled by such a fourth request. If it did, this verification process would be endless, contrary to the public policy of swiftly addressing the payment of the bills. (LMK Psychological Services, PC, v. State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]).

However, the regulations are clear that the insurance carrier is entitled to receive proper proof of claim made in the initial and subsequent verification requests. (11 NYCRR §65-3.8). Likewise, the Court of Appeals is clear that the insurance carrier is entitled to delay or deny payments to an unlicensed or fraudulently licensed health care provider. (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). The Courts have permitted the insurance carrier to delay payments of invoices to investigate such unlicensed or fraudulent behavior within the time constraints provided by the regulations.

In this instance, the “subsequent” verification request was made by the letter of June 6, 2023 which outlined the items the Defendant sought to be produced at, or seven days before, the EUO. The EUO was held on August 29, 2023 and by the letter dated September 1, 2023 the Defendant’s attorney notified the Plaintiff that two of the items requested in the June 6, 2023 letter were not supplied by the responses in the EUO, namely:

(3) A list of the individuals who provide health care services on behalf of First Stop, licensing documentation for those individuals, and documents identifying the relationship between each individual and First Stop (i.e. W-2s, 1099s, and/or K-1s);

(5) Documents, contracts and agreements (including proofs of payments thereunder) relating to the relationship between First Stop and any entity or individual that (i) leases space and/or equipment to or First Stop or (ii) provides management, marketing, consulting, administrative, mailing, billing or collection services to First Stop.”

This is information was requested a second time in the letter of September 1, 2023 in the following paragraphs of the letter:

(1) “Copies of all leases between First Stop and primary leaseholders. . .”

(2) “All licenses and certificates for each and every healthcare professional, including physical therapists, and technicians, who provide or have provided services on behalf of First Stop, . . . . .”

The remainder of the information requested in the September 1, 2023 letter was new information requested for the first time.

The Plaintiff submitted a response to the verification request by a letter dated December 28, 2023 that included three leases, copies of checks to vendors, and licensing certificates for the medical providers. The Defendant issued a denial of the claim (NF-10) on January 25, 2024 alleging the Defendant failed to comply with the verification request. The Plaintiff contends that it did comply by its response on December 28, 2023.

Decision

The issue raised is whether the Plaintiff’s response to the verification request made by its December 28, 2023 letter with attachments satisfied the demand of the “subsequent” verification request issued June 6, 2023.

In this instance, the subsequent verification request was timely made and issued simultaneously with the request for the EUO. The Defendant’s time to pay or deny the claims was tolled by the EUO scheduling letter. 11 NYCRR §65-3.5(b).

However, that toll does not apply to the time to request the verification. In Burke Physical Therapy, P.C. v State Farm Mutual Automobile Ins. Co. 209 N.Y.S.3d 712 [Second Dept, 2nd, 11th & 13th J.D, 2024]) the Court opined that:

” . . . the regulations do not provide that a toll of the time to pay or deny a claim created by timely additional verification request also 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 N.Y Slip op 51220[U]; see O & M Med. P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U], indeed, an original request for additional verification made more than 30 days after receipt of a prescribed verification form i.e., an NF-3 form or NF-4 form, is a nullity as to that claim, regardless of any toll of the time to pay or deny the claim that might be in effect. ” Burke Physical Therapy, P.C. v State Farm Mutual Auto. Ins. Co., 209 N.Y.S.3d 712, at 714-715, [App. Term, Second Dept., 2nd, 11th, 13th J.D. [2024].)

So, while the time to deny the bill is tolled until the verification is complete, the time to make the subsequent verification requests, 15 business days, is not tolled.

By the letter of September 1, 2024 the Defendant notified the Plaintiff that some of the verification information that was originally requested in the June 6, 2023 letter was still outstanding. That same September 1, 2023 letter also asked for new verification information that was not previously requested in the June 6, 2023 verification request. The new information requested is made more than 15 business days after the receipt of the prescribed initial verification form and therefore is a nullity. (Burke Physical Therapy, P.C v State Farm Mutual Automobile Ins. Co., 209 N.Y.S.3d 712). The Plaintiff is not required to respond to the request for the new information requested in the September 1, 2023 letter, but was still responsible for those items requested in the Defendant’s June 6, 2023 letter that were not provided at the EUO as identified by Defendant’s September 1, 2023 letter.

The Plaintiff’s December 28, 2023 response provided documents allegedly in response to the June verification request. The regulations only require the response provide all the information under the Plaintiff’s “control or possession or written proof providing reasonable justification for the failure to comply.” (11 NYCRR 65-3.5[o]) The issue of whether the Plaintiff’s verification response satisfies the June 6, 2023 demand is a material issue of fact for trial. If it is determined that the December 28, 2023 letter was responsive to the verification request, then the January 24, 2024 denial would be in error. Therefore, a trial is necessary in this matter.

Accordingly, the Court rules the summary judgment motion is DENIED and the matter is referred to trial on the issue of whether the December 28, 2023 response to the June 6, 2023 subsequent verification request satisfied the request.

This is the decision and order of the Court.