Matter of Hartford Fire Ins. Co. v Villanueva (2026 NY Slip Op 05393)

Reported in New York Official Reports at Matter of Hartford Fire Ins. Co. v Villanueva (2026 NY Slip Op 05393)

Matter of Hartford Fire Ins. Co. v Villanueva

2026 NY Slip Op 05393

Decided on September 23, 2026

Appellate Division, Second Department

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.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 23, 2026

2024-09821, (Index No. 503370/23)

Colleen D. Duffy, J.P.

Barry E. Warhit

Lourdes M. Ventura

Lisa S. Ottley, JJ.

[*1]

DECISION & ORDER

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, Devorah Villanueva appeals from an order of the Supreme Court, Kings County (Anne J. Swern, J.), dated June 20, 2024. The order, insofar as appealed from, denied that branch of the motion of Devorah Villanueva which was pursuant to CPLR 5015(a)(1) to vacate an order of the same court (Robin S. Garson, J.) dated June 22, 2023, which upon Villanueva’s default, in effect, in opposing the petition, granted that branch of the petition which was to permanently stay arbitration.

ORDERED that the order dated June 20, 2024, is affirmed insofar as appealed from, with costs.

The petitioner, Hartford Fire Insurance Company (hereinafter Hartford), commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim by Devorah Villanueva for uninsured motorist benefits arising out of an alleged hit-and-run collision in February 2022 involving Villanueva, who was riding a motorized scooter, and an unidentified motorcyclist. In an order dated June 1, 2023, the Supreme Court directed Villanueva to serve written opposition to the petition by June 15, 2023, and adjourned the petition to June 22, 2023. Villanueva failed to submit written opposition to the petition. Thereafter, in an order dated June 22, 2023 (hereinafter the June 2023 order), the court granted that branch of the petition which was to permanently stay arbitration upon Villanueva’s default, in effect, in opposing the petition.

In August 2023, Villanueva moved, among other things, pursuant to CPLR 5015(a)(1) to vacate the June 2023 order. Hartford opposed the motion. In an order dated June 20, 2024, the Supreme Court, inter alia, denied that branch of Villanueva’s motion. Villanueva appeals.

To obtain relief pursuant to CPLR 5015(a)(1), Villanueva was required to show both a reasonable excuse for the default and a potentially meritorious defense to the petition (see Matter of Maya Assur. Co. v Long Sheng Zheng, 207 AD3d 632, 632; Matter of Liberty Mut. Ins. Co. v Fiduciary Ins. Co. of Am., 111 AD3d 731, 732). “The determination of whether an excuse is reasonable lies within the sound discretion of the trial court” (126 Henry St., Inc. v Cater, 197 AD3d 598, 600; see Beach 28 RE, LLC v Somra, 216 AD3d 610, 611). Here, Villanueva failed to proffer [*2]a reasonable excuse for the default. Villanueva’s conclusory and unsubstantiated assertions that she was hampered in opposing the petition by the lack of production of certain medical records and a purported police report did not constitute a reasonable excuse, as she provided no explanation as to efforts made to obtain those documents. Since Villanueva failed to demonstrate a reasonable excuse for the default, it is unnecessary to consider whether she demonstrated a potentially meritorious defense to the petition (see Matter of Maya Assur. Co. v Long Sheng Zheng, 207 AD3d at 633; Matter of Government Empls. Ins. Co. v Dae-Hee Lee, 78 AD3d 944, 945).

The parties’ remaining contentions either are without merit, need not be reached in light of our determination, or are improperly raised for the first time on appeal.

DUFFY, J.P., WARHIT, VENTURA and OTTLEY, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Matter of Nostrand Drugs Rx, Inc. v Church Mut. Ins. Co. (2026 NY Slip Op 05400)

Reported in New York Official Reports at Matter of Nostrand Drugs Rx, Inc. v Church Mut. Ins. Co. (2026 NY Slip Op 05400)

Matter of Nostrand Drugs Rx, Inc. v Church Mut. Ins. Co.

2026 NY Slip Op 05400

Decided on September 23, 2026

Appellate Division, Second Department

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.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 23, 2026

2025-00470, (Index No. 511903/23)

Francesca E. Connolly, J.P.

Linda Christopher

Barry E. Warhit

Donna-Marie E. Golia, JJ.

[*1]

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated February 24, 2023, which confirmed an award of an arbitrator dated December 11, 2022, the petitioner appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated December 4, 2024. The order denied the petition to vacate the master arbitrator’s award.

ORDERED that the order is affirmed, with costs.

In September 2020, Ahsan Ali was involved in a motor vehicle accident. Ali received prescription medications from the petitioner Nostrand Drugs Rx, Inc. (hereinafter Nostrand), for injuries he sustained in the accident. Nostrand submitted an insurance claim to Church Mutual Ins. Co. (hereinafter Church Mutual) for reimbursement of the cost of the medication dispensed, in the total sum of $2,343.20. Nostrand never received payment. Thereafter, Nostrand submitted the insurance claim to arbitration. In an award dated December 11, 2022, after a hearing, an arbitrator denied Nostrand’s claim. Nostrand then requested that the matter be reviewed by a master arbitrator. In an award of a master arbitrator dated February 24, 2023, the master arbitrator confirmed the arbitration award dated December 11, 2022, in its entirety.

In April 2023, Nostrand commenced this proceeding pursuant to CPLR article 75 to vacate the master arbtirator’s award. In an order dated December 4, 2024, the Supreme Court denied the petition to vacate the master arbitrator’s award. Nostrand appeals.

“‘Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied'” (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d 649, 650, quoting Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017). “Arbitrators exceed their power only when they issue an award that ‘violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power'” (Matter of County of Nassau v Nassau County Investigators Police Benevolent Assn., Inc., 203 AD3d 824, 826, quoting American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 35 NY3d 64, 70). “The master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator” (Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 [*2]AD3d 1168, 1168, quoting Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577).

Here, Nostrand failed to demonstrate the existence of any statutory grounds for vacating the master arbitrator’s award (see Matter of American Tr. Ins. Co. v Big Apple Pain Mgt., PLLC, 242 AD3d 1198, 1199; Matter of V.S. Care Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 832, 833-834).

Nostrand’s remaining contentions either are improperly raised for the first time on appeal or need not be reached in light of our determination.

Accordingly, the Supreme Court properly denied Nostrand’s petition to vacate the master arbitrator’s award.

CONNOLLY, J.P., CHRISTOPHER, WARHIT and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Matter of Metropolitan Group Prop. & Cas. Ins. Co. v Newkirk (2026 NY Slip Op 04502)

Reported in New York Official Reports at Matter of Metropolitan Group Prop. & Cas. Ins. Co. v Newkirk (2026 NY Slip Op 04502)

Matter of Metropolitan Group Prop. & Cas. Ins. Co. v Newkirk

2026 NY Slip Op 04502 [251 AD3d 949]

Decided on July 22, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, September 9, 2026

July 22, 2026

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an insurance claim, Embark General Insurance Adjusters, LLC, appeals from (1) an order of the Supreme Court, Kings County (Loren Baily-Schiffman, J.), dated September 29, 2020, and (2) an order of the same court dated April 29, 2021. The order dated September 29, 2020, granted those branches of the amended petition which were to permanently stay arbitration and to add Embark General Insurance Adjusters, LLC, and John C. Chogllo as additional respondents in the proceeding and denied, as academic, that branch of the amended petition which was to temporarily stay arbitration pending discovery. The order dated April 29, 2021, insofar as appealed from, upon reargument, adhered to the prior determination in the order dated September 29, 2020.

Ordered that the appeal from the order dated September 29, 2020, is dismissed, as that order was superseded by the order dated April 29, 2021, made upon reargument; and it is further,

Ordered that the order dated April 29, 2021, is reversed insofar as appealed from, on the law, those branches of the amended petition which were to permanently stay arbitration and to add Embark General Insurance Adjusters, LLC, and John C. Chogllo as additional respondents in the proceeding are denied, and the matter is remitted to the Supreme Court, Kings County, for a new determination of that branch of the amended petition which was to temporarily stay arbitration pending discovery; and it is further,

Ordered that one bill of costs is awarded to the appellant.

The petitioner, Metropolitan Group Property & Casualty Co. (hereinafter Metlife), commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration [*2]of a claim by the respondent Tiffany Newkirk for uninsured motorist benefits in connection with a motor vehicle collision between Newkirk’s vehicle and a vehicle driven by the proposed additional respondent John C. Chogllo. The proposed additional respondent Embark General Insurance Adjusters, LLC (hereinafter Embark), which administered an insurance policy insuring Chogllo’s vehicle, opposed the amended petition. In an order dated September 29, 2020, the Supreme Court granted those branches of the amended petition which were to permanently stay arbitration and to add Embark and Chogllo as additional respondents in the proceeding and denied, as academic, that branch of the amended petition which was to temporarily stay arbitration pending discovery (hereinafter the September 2020 order). Embark moved for leave to reargue its opposition to the amended petition. In an order dated April 29, 2021, the Supreme Court, among other things, upon reargument, adhered to its prior determination (hereinafter the April 2021 order). Embark appeals from the September 2020 and April 2021 orders.

The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue that would justify the stay (see Matter of Government Empls. Ins. Co. v Sarmiento, 241 AD3d 1563, 1564 [2025]; Matter of Government Empls. Ins. Co. v Enriquez, 231 AD3d 724, 725 [2024]). Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing (see Matter of Government Empls. Ins. Co. v Enriquez, 231 AD3d at 725; Matter of Allstate Ins. Co. v Robinson, 188 AD3d 1186, 1188-1189 [2020]).

Pennsylvania law, which governs this action, gives an insurer a common-law right to rescind a policy of automobile insurance (see Erie Ins. Exch. v Lake, 543 Pa 363, 375, 671 A2d 681, 687 [1996]; Klopp v Keystone Ins. Cos., 528 Pa 1, 595 A2d 1 [1991]). The Pennsylvania Supreme Court has held, however, that while an automobile insurance policy may be retroactively rescinded as to an insured who has made a misrepresentation material to the acceptance of risk by the insurer, the policy may not be retroactively rescinded with respect to third parties “who are innocent of trickery, and injured through no fault of their own” (see Erie Ins. Exch. v Lake, 543 Pa at 375, 671 A2d at 687). Rescission of an insurance policy, as to third parties, has been precluded in instances beyond the 60-day period following the issuance of the policy (see Erie Ins. Exch. v Lake, 543 Pa at 375, 671 A2d at 687; Prime Ins. Syndicate v Philadelphia Motor World Auto Serv., 138 Fed Appx 436 [3d Cir 2005]).

Here, Embark’s submissions rebutted Metlife’s prima facie showing of a preliminary issue that would justify a stay. Embark established that it properly rescinded the policy at issue under Pennsylvania law with respect to Chogllo, based upon the material misrepresentations that Chogllo made in his application for insurance. Embark also established that such rescission was ab initio and occurred within the 60-day period after the issuance of the policy. As a result of that rescission, Newkirk was precluded from receiving protection under Embark’s policy (see Erie Ins. Exch. v Lake, 543 Pa at 375, 671 A2d at 687; Klopp v Keystone Ins. Cos., 528 Pa 1, 595 A2d 1), but she could seek coverage under Metlife’s policy insuring her own vehicle.

Accordingly, the Supreme Court should have denied those branches of the amended petition which were to permanently stay arbitration and to add Embark and Chogllo as additional respondents in the proceeding. Therefore, the court should not have denied, as academic, that branch of the amended petition which was to temporarily stay arbitration pending discovery. We remit the matter to the Supreme Court, Kings County, for a new determination of that branch of the amended petition. Duffy, J.P., Wooten, Landicino and Quirk, JJ., concur.

Matter of Hereford Ins. Co. v Ramirez (2026 NY Slip Op 04303)

Reported in New York Official Reports at Matter of Hereford Ins. Co. v Ramirez (2026 NY Slip Op 04303)

Matter of Hereford Ins. Co. v Ramirez

2026 NY Slip Op 04303 [251 AD3d 697]

Decided on July 8, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, September 9, 2026

July 8, 2026

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, Victor Ramirez appeals from an order of the Supreme Court, Westchester County (Gretchen Walsh, J.), dated October 16, 2024. The order granted that branch of the petition which was to permanently stay arbitration.

Ordered that the order is affirmed, with costs.

On June 6, 2021, Victor Ramirez was the owner and operator of a taxicab insured by the petitioner, Hereford Insurance Company (hereinafter Hereford). A vehicle operated by Gabriel Pool collided with Ramirez’s taxicab. After the collision, Ramirez and Pool pulled over, Pool exited his vehicle, walked over to Ramirez’s taxicab, and allegedly struck Ramirez in the face with an ashtray while Ramirez was sitting inside his taxicab. Pool’s vehicle was uninsured.

Ramirez sought to recover under the uninsured motorist endorsement contained in his car insurance policy with Hereford. Hereford denied coverage, concluding, inter alia, that Ramirez’s injuries did not arise out of the use or operation of a motor vehicle, the motor vehicle was not the proximate cause of Ramirez’s injuries, and Ramirez’s injuries were solely the result of an assault by the adverse driver. Ramirez sought to arbitrate the matter, and Hereford thereafter commenced this proceeding pursuant to CPLR article 75, among other things, to permanently stay arbitration. Ramirez opposed the petition, contending, inter alia, that pursuant to State Farm Mut. Auto. Ins. Co. v Langan (16 NY3d 349 [2011]), the June 6, 2021 incident was an “accident” within the meaning of the uninsured motorist endorsement. The Supreme Court granted that branch of the petition which was to permanently stay arbitration. Ramirez appeals.

“A court may stay arbitration where the particular claim sought to be arbitrated is outside the scope of the agreement to arbitrate” (Matter of Allstate Ins. Co. v Reyes, 109 AD3d 468, 468 [2013] [alterations and internal quotation marks omitted]; see Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 7 [1980]). “[F]or purposes of automobile insurance policies, the term ‘accident’ means an event typically involving violence or the application of external force” (State Farm Mut. Auto. Ins. Co. v Langan, 16 NY3d at 355; see Michaels v City of Buffalo, 85 NY2d 754, 758 [1995]). “In [*2]order to determine whether a particular event was accidental, it is customary to look at the casualty from the point of view of the insured, to see whether or not . . . it was unexpected, unusual and unforeseen” (State Farm Mut. Auto. Ins. Co. v Langan, 16 NY3d at 355 [internal quotation marks omitted]).

However, uninsured motorist endorsements, such as the one at issue in this case, provide coverage only when the injuries are the result of an accident “arising out of such uninsured motor vehicle’s ownership, maintenance or use” (11 NYCRR 60-2.3 [f] [Insuring Agreements (II)]; see Matter of Allstate Ins. Co. v Reyes, 109 AD3d 468, 468 [2013]). “Use of an automobile encompasses more than simply driving it, and includes all necessary incidental activities such as entering and leaving its confines” (Matter of Allstate Ins. Co. v Reyes, 109 AD3d at 469; see Rowell v Utica Mut. Ins. Co., 77 NY2d 636, 639 [1991]). “To satisfy the requirement that it arose out of the ‘ownership, maintenance or use of’ a motor vehicle, the accident must have arisen out of the inherent nature of the automobile and, as such, inter alia, the automobile must not merely contribute to the condition which produces the injury, but must, itself, produce the injury” (Matter of Allstate Ins. Co. v Reyes, 109 AD3d at 469; see Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597, 599 [2006]; Eagle Ins. Co. v Butts, 269 AD2d 558, 558-559 [2000]). Although the vehicle itself need not be the proximate cause of the injury, “ ’negligence in the use of the vehicle must be shown, and that negligence must be a cause of the injury’ ” (Matter of Allstate Ins. Co. v Reyes, 109 AD3d at 469, quoting Zaccari v Progressive Northwestern Ins. Co., 35 AD3d at 599). “To be a cause of the injury, the use of the motor vehicle must be closely related to the injury” (Zaccari v Progressive Northwestern Ins. Co., 35 AD3d at 599 [emphasis and internal quotation marks omitted]; see Matter of Allstate Ins. Co. v Reyes, 109 AD3d at 469).

Here, from Ramirez’s point of view, the occurrence was unexpected, unusual, and unforeseen (see State Farm Mut. Auto. Ins. Co. v Langan, 16 NY3d at 355). However, as a matter of law, Ramirez’s injuries did not result from the inherent nature of Pool’s vehicle, nor did the vehicle itself produce the injuries. The injuries were caused by Pool’s alleged assault, and the uninsured vehicle merely contributed to the condition which produced the injuries (see Matter of Allstate Ins. Co. v Reyes, 109 AD3d at 469). Hereford established that a proximate causal relationship between the uninsured vehicle and the incident was lacking, and Ramirez failed to rebut that showing (see id.; Empire Ins. Co. v Schliessman, 306 AD2d 512, 513 [2003]; Eagle Ins. Co. v Butts, 269 AD2d at 559).

Ramirez’s remaining contention is improperly raised for the first time on appeal.

Accordingly, the Supreme Court properly granted that branch of the petition which was to permanently stay arbitration. Connolly, J.P., Ford, Voutsinas and Love, JJ., concur.

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04291)

Reported in New York Official Reports at Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04291)

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 04291 [251 AD3d 676]

Decided on July 8, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, September 9, 2026

July 8, 2026

In a proceeding pursuant to CPLR article 75, inter alia, to confirm a master arbitration award dated May 10, 2023, Country-Wide Ins. Co. appeals from (1) an order of the Supreme Court, Kings County (Rupert V. Barry, J.), dated October 23, 2023, and (2) a judgment of the same court dated November 15, 2023. The order granted the petition of 563 Grand Medical, P.C., inter alia, to confirm the master arbitration award and denied the cross-petition of Country-Wide Ins. Co. to stay this proceeding pending the determination of an appeal in a related proceeding, or to vacate the master arbitration award, or, alternatively, to modify so much of the master arbitration award as determined that 563 Grand Medical, P.C., was entitled to recover statutory compound interest from September 10, 2003. The judgment, upon the order, is in favor of 563 Grand Medical, P.C., and against Country-Wide Ins. Co. in the principal sum of $4,999, with statutory compound interest from September 10, 2003, in the sum of $597,733.63.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is modified, on the law, by deleting the provision thereof in favor of 563 Grand Medical, P.C., and against Country-Wide Ins. Co. awarding statutory compound interest from September 10, 2003, in the sum of $597,733.63; as so modified, the judgment is affirmed, that branch of the petition which was to confirm so much of the master arbitration award dated May 10, 2023, as awarded statutory compound interest from September 10, 2003, is denied, that branch of the cross-petition which was to modify so much of the master arbitration award dated May 10, 2023, as awarded statutory compound interest from September 10, 2003, is granted to the extent that the master arbitration award is modified so as to exclude from the computation of statutory compound interest on the claims of 563 Grand Medical, P.C., the period of September 10, 2003, through November 6, 2018, the order dated October 23, 2023, is modified accordingly, and the matter is remitted to the Supreme Court, Kings County, for a recalculation of the statutory compound interest due on the master arbitration award, a determination of the appropriate amount to be awarded to 563 Grand Medical, P.C., as additional attorneys’ fees for the litigation of this appeal, and the entry of an appropriate amended judgment thereafter; and it is further,

Ordered that one bill of costs is awarded to 563 Grand Medical, P.C.

[*2]The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the proceeding (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

563 Grand Medical, P.C. (hereinafter Grand Medical), commenced a no-fault arbitration proceeding to recover no-fault insurance benefits from Country-Wide Ins. Co. (hereinafter Country-Wide) for medical services provided to Grand Medical’s assignee following a motor vehicle accident on August 3, 1999. On September 10, 2003, an arbitrator dismissed the proceeding, without prejudice. Grand Medical commenced an action in the Civil Court of the City of New York, Kings County, to recover no-fault insurance benefits for the August 3, 1999 accident (hereinafter the Civil Court action). In 2015, Country-Wide’s motion for summary judgment dismissing the complaint in the Civil Court action was granted under Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260, 263-264 [1985]) on the basis that Grand Medical had elected arbitration as the forum for resolution of its claims. The Civil Court’s order granting Country-Wide’s motion for summary judgment dismissing the complaint in the Civil Court action was affirmed by the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts on November 2, 2018. Grand Medical then commenced an arbitration proceeding on November 6, 2018, to recover the same no-fault insurance benefits.

Ultimately, an arbitrator granted Grand Medical’s claim for no-fault insurance benefits in the amount of $4,999. The arbitrator also determined that Grand Medical was entitled to compound interest at the statutory rate of 2% per month (see 11 NYCRR 65-3.9 [a]) from September 10, 2003. The arbitrator’s determination was affirmed by a master arbitrator in a master arbitration award dated May 10, 2023.

Grand Medical commenced this CPLR article 75 proceeding, inter alia, to confirm the master arbitration award dated May 10, 2023, and Country-Wide cross-petitioned to stay this proceeding pending the resolution of its appeal in a related proceeding, or to vacate the master arbitration award, or, alternatively, to modify so much of the master arbitration award as determined that Grand Medical was entitled to recover statutory compound interest from September 10, 2003, so as to limit the accrual of compound interest to simple interest accruing from November 6, 2018. In an order dated October 23, 2023, the Supreme Court granted the petition and denied the cross-petition. A judgment was issued, upon the order, in favor of Grand Medical and against Country-Wide in the principal sum of $4,999, with statutory compound interest from September 10, 2003, in the sum of $597,733.63. Country-Wide appeals.

Initially, Country-Wide’s contention that the Supreme Court should have granted that branch of its cross-petition which was to stay the proceeding pending the determination of a related appeal has been rendered academic in light of our determination on that appeal (see Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co., 251 AD3d —, 2026 NY Slip Op 04292 [2026] [decided herewith]).

“Since arbitration under the no-fault law is compulsory, the scope of review of the master arbitrator’s award is whether it ‘was arbitrary and capricious, irrational or without a plausible basis’ ” (Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co., 176 AD3d 695, 696 [2019], quoting Matter of Farrell [Allstate Ins. Co.], 232 AD2d 934, 935 [1996]; see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802 [2019]). Here, contrary to Country-Wide’s contention, the master arbitration award affirming the arbitrator’s determination that Grand Medical was entitled to payment on its claims for no-fault insurance benefits had evidentiary support and was not arbitrary and capricious (see Matter of American Tr. Ins. Co. v Big Apple Pain Mgt., PLLC, 242 AD3d 1198, 1199 [2025]; Matter of V.S. Care Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 832, 833 [2019]).

Furthermore, the master arbitrator’s affirmance of the determination of the arbitrator to apply the former no-fault regulation providing for compound interest on Grand Medical’s claims (see former 11 NYCRR 65.15 [h]) was not arbitrary and capricious or irrational. The former [*3]regulation was in effect at the time of the underlying accident and Grand Medical’s submission of its claims to Country-Wide (see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 155 [2021]; New Generation Wellness Chiropractic, P.C. v Country-Wide Ins. Co., 75 Misc 3d 54, 55 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

However, under 11 NYCRR 65-3.9 (d) interest will not accumulate if “the applicant unreasonably delays the arbitration or court proceeding” (id.). Under the circumstances of this case, the determination that Grand Medical did not unreasonably delay the arbitration proceeding during the period of September 10, 2003, through November 6, 2018, lacked evidentiary support and a rational basis, and this period should have been excluded from the calculation of interest on Grand Medical’s claims (see Vitality Chiropractic, P.C. v Countrywide Ins., 59 Misc 3d 150[A], 2018 NY Slip Op 50838[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Country-Wide’s remaining contentions are without merit.

As Grand Medical correctly contends, it is entitled to an award of additional attorneys’ fees for this appeal (see 11 NYCRR 65-4.10 [j] [4]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168 [2019]).

Accordingly, we remit the matter to the Supreme Court, Kings County, for a recalculation of the statutory compound interest due on the master arbitration award in accordance herewith, a determination of the appropriate amount to be awarded to Grand Medical as additional attorneys’ fees for the litigation of this appeal, and the entry of an appropriate amended judgment thereafter. Iannacci, J.P., Wooten, Dowling and McCormack, JJ., concur.

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04292)

Reported in New York Official Reports at Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04292)

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 04292 [251 AD3d 680]

Decided on July 8, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, September 9, 2026

July 8, 2026

In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated February 18, 2020, Country-Wide Ins. Co. appeals from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated December 21, 2020. The order, insofar as appealed from, granted that branch of the petition of 563 Grand Medical, P.C., which was to vacate the master arbitration award and denied the cross-petition of Country-Wide Ins. Co. to confirm the master arbitration award.

Ordered that the order is affirmed insofar as appealed from, with costs.

563 Grand Medical, P.C. (hereinafter Grand Medical), commenced a no-fault arbitration proceeding to recover payment from Country-Wide Ins. Co. (hereinafter Country-Wide) for medical services provided to Grand Medical’s assignee following a motor vehicle accident on August 3, 1999. On September 10, 2003, an arbitrator dismissed the proceeding, without prejudice, on the ground that Grand Medical’s proof was insufficient to establish that the medical services were provided by its owner or employees rather than by independent contractors and, thus, that Grand Medical had failed to prove standing to commence the proceeding. Following civil litigation, on November 6, 2018, Grand Medical again commenced a no-fault arbitration proceeding against Country-Wide. The arbitrator denied the claims on the ground that Grand Medical failed to prove its standing in the same manner. In a master arbitration award dated February 18, 2020, a master arbitrator affirmed the arbitration award.

Thereafter, Grand Medical commenced this proceeding pursuant to CPLR article 75, inter alia, to vacate the master arbitration award. Country-Wide cross-petitioned to confirm the master arbitration award. In an order dated December 21, 2020, the Supreme Court, among other things, granted that branch of the petition and denied the cross-petition. Country-Wide appeals.

“Since arbitration under the no-fault law is compulsory, the scope of review of the master arbitrator’s award is whether it ‘was arbitrary and capricious, irrational or without a plausible basis’ ” (Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co., 176 AD3d 695, 696 [2019], quoting Matter of Farrell [Allstate Ins. Co.], 232 AD2d 934, 935 [1996]; see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802 [2019]). Further, “[a]n arbitration award may be vacated if the court finds that the rights of the moving party were prejudiced by . . . the [*2]arbitrator exceeding his or her power” (Matter of Banegas v GEICO Ins. Co., 167 AD3d 873, 874 [2018]; see CPLR 7511 [b]).

“It has long been established that an arbitrator’s authority extends to only those issues that are actually presented by the parties” (Matter of Joan Hansen & Co., Inc. v Everlast World’s Boxing Headquarters Corp., 13 NY3d 168, 173 [2009]; see Matter of Banegas v GEICO Ins. Co., 167 AD3d 873, 874 [2018]). As a result, “an arbitrator is precluded from identifying and considering an affirmative defense that is not pleaded by a party to the arbitration” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 44 [2015]).

Here, Country-Wide failed to assert at the arbitration proceeding that Grand Medical lacked standing. Instead, the arbitrator impermissibly raised the issue of standing sua sponte (see Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co., 44 AD3d 857, 858 [2007]; see also Matter of Joan Hansen & Co., Inc. v Everlast World’s Boxing Headquarters Corp., 13 NY3d at 173; Matter of Banegas v GEICO Ins. Co., 167 AD3d at 874). On that basis, the Supreme Court properly granted that branch of the petition which was to vacate the master arbitration award and denied the cross-petition to confirm the master arbitration award (see Matter of Banegas v GEICO Ins. Co., 167 AD3d at 874; Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co., 44 AD3d at 858). Iannacci, J.P., Wooten, Dowling and McCormack, JJ., concur.

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04290)

Reported in New York Official Reports at Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04290)

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 04290 [251 AD3d 675]

Decided on July 8, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, September 9, 2026

July 8, 2026

In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated April 7, 2021, Country-Wide Ins. Co. appeals from an order of the Supreme Court, Kings County (Lillian Wan, J.), dated December 22, 2021. The order, insofar as appealed from, granted that branch of the petition of 563 Grand Medical, P.C., which was to vacate the master arbitration award and denied the cross-petition of Country-Wide Ins. Co. to confirm the master arbitration award.

Ordered that the order is affirmed insofar as appealed from, with costs.

563 Grand Medical, P.C. (hereinafter Grand Medical), commenced a prior proceeding against Country-Wide Ins. Co. (hereinafter Country-Wide) pursuant to CPLR article 75, inter alia, to vacate a prior master arbitration award dated February 18, 2020 (hereinafter the first master arbitration award). The first master arbitration award had affirmed an arbitration award denying Grand Medical’s claims for no-fault insurance benefits on the ground that Grand Medical failed to prove its standing to commence the prior proceeding. In an order dated December 21, 2020, the Supreme Court, among other things, granted that branch of the prior petition which was to vacate the first master arbitration award and denied Country-Wide’s cross-petition to confirm the first master arbitration award, concluding that the issue of standing had been impermissibly raised, sua sponte, by the arbitrator. The court referred the matter to arbitration for further proceedings on Grand Medical’s claims. Thereafter, a master arbitrator rendered a master arbitration award dated April 7, 2021 (hereinafter the second master arbitration award), that was nearly identical to the first master arbitration award and failed to provide any new explanation for the denial of Grand Medical’s claims.

Grand Medical commenced this proceeding pursuant to CPLR article 75, inter alia, to vacate the second master arbitration award. Country-Wide cross-petitioned to confirm the second master arbitration award. In an order dated December 22, 2021, the Supreme Court, inter alia, granted that branch of the petition and denied Country-Wide’s cross-petition.

For the reasons set forth in Matter of 563 Grand Med., P.C. v Country-Wide Ins. [*2]Co. (251 AD3d —, 2026 NY Slip Op 04292 [2026] [decided herewith]), the Supreme Court properly granted that branch of the petition which was to vacate the second master arbitration award and denied Country-Wide’s cross-petition to confirm the second master arbitration award.

Country-Wide’s remaining contention is without merit. Iannacci, J.P., Wooten, Dowling and McCormack, JJ., concur.

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04293)

Reported in New York Official Reports at Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co. (2026 NY Slip Op 04293)

Matter of 563 Grand Med., P.C. v Country-Wide Ins. Co.

2026 NY Slip Op 04293 [251 AD3d 681]

Decided on July 8, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, September 9, 2026

July 8, 2026

In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated February 18, 2020, Country-Wide Ins. Co. appeals from (1) an order of the Supreme Court, Kings County (Lillian Wan, J.), dated November 10, 2021, and (2) a money judgment of the same court dated November 15, 2023. The order granted the motion of 563 Grand Medical, P.C., for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). The money judgment, upon the order, awarded 563 Grand Medical, P.C., additional attorneys’ fees in the sum of $1,950, plus costs and disbursements.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the money judgment is reversed, on the law, the motion of 563 Grand Medical, P.C., for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) is denied, and the order is modified accordingly; and it is further,

Ordered that one bill of costs is awarded to the appellant.

The appeal from the order must be dismissed because the order was superseded by the money judgment dated November 15, 2023 (see Burns v Burns, 229 AD3d 675, 676 [2024]; Christopulos v Christopulos, 209 AD3d 970 [2022]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the money judgment (see Burns v Burns, 229 AD3d at 676).

563 Grand Medical, P.C. (hereinafter Grand Medical), commenced this proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated February 18, 2020, which affirmed an arbitration award that had denied Grand Medical’s claims against Country-Wide Ins. Co. (hereinafter Country-Wide) for no-fault insurance benefits. In an order dated December 21, 2020, the Supreme Court, among other things, granted that branch of the petition which was to vacate the master arbitration award, denied Country-Wide’s cross-petition to confirm the master arbitration award, and referred the matter to arbitration for further proceedings.

Grand Medical moved for an award of additional attorneys’ fees pursuant to 11 [*2]NYCRR 65-4.10 (j) (4). In an order dated November 10, 2021, the Supreme Court granted the motion, and a money judgment dated November 15, 2023, was issued awarding Grand Medical additional attorneys’ fees in the sum of $1,950, plus costs and disbursements. Country-Wide appeals.

Insurance Law § 5106 (a) provides: “If a valid claim or portion was overdue, the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The relevant regulation providing such “[l]imitations on attorneys’ fees pursuant to section 5106 of the Insurance Law,” specifies that “[t]he attorneys’ fee for services rendered . . . in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10 [j] [4]).

Thus, under the statute and its implementing regulation, “a claimant is entitled to recover attorney’s fees where a ‘valid claim or portion’ was denied or overdue” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997], quoting Insurance Law § 5106 [a]). Here, however, at the time that Grand Medical moved for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), no determination had been made that Grand Medical had a valid claim that was denied or overdue (cf. Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 782-783 [2025]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168 [2019]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 704-706 [2017]). Rather, the Supreme Court had merely decided that the claims should not have been denied for failure to prove standing and the matter was referred to arbitration for further proceedings on Grand Medical’s claims for no-fault insurance benefits. Under those circumstances, Grand Medical did not demonstrate its entitlement to an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) (see Matter of Fast Care Med. Diagnostics, PLLC/PV v Government Empls. Ins. Co., 161 AD3d 1149, 1151 [2018]; see also Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co., 176 AD3d 695, 696 [2019]).

Accordingly, we reverse the money judgment and deny Grand Medical’s motion for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

Grand Medical’s remaining contention is without merit. Iannacci, J.P., Wooten, Dowling and McCormack, JJ., concur.

American Tr. Ins. Co. v Beach Med. Rehabilitation, P.C. (2026 NY Slip Op 03771)

Reported in New York Official Reports at American Tr. Ins. Co. v Beach Med. Rehabilitation, P.C. (2026 NY Slip Op 03771)

American Tr. Ins. Co. v Beach Med. Rehabilitation, P.C.

2026 NY Slip Op 03771 [250 AD3d 870]

Decided on June 17, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, August 5, 2026

(June 17, 2026)

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits and for declaratory relief, the defendant appeals from an order of the Supreme Court, Kings County (Caroline Piela Cohen, J.), dated October 10, 2024. The order, insofar as appealed from, denied those branches of the defendant’s motion which were for summary judgment dismissing the complaint and, in effect, declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the defendant on behalf of its assignor, Marissa Hirsch, to confirm a master arbitration award dated February 25, 2022, and for an award of attorneys’ fees.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branches of the defendant’s motion which were for summary judgment dismissing the complaint and, in effect, declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the defendant on behalf of its assignor, Marissa Hirsch, to confirm the master arbitration award dated February 25, 2022, and for an award of attorneys’ fees are granted, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees to be awarded to the defendant and the entry of a judgment, inter alia, declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the defendant on behalf of its assignor, Marissa Hirsch, and awarding such reasonable attorneys’ fees.

The plaintiff, a no-fault insurance carrier (hereinafter the insurer), commenced this action against the defendant (hereinafter the medical provider) pursuant to Insurance Law § 5106 (c) for a de novo determination of a dispute regarding its denial of the defendant’s claims for no-fault insurance benefits for medical services rendered to the defendant’s assignor and for declaratory relief. Prior thereto, an arbitrator had determined that the medical provider was entitled to an award of no-fault insurance benefits in the principal sum of $5,772.62. The insurer appealed the award to a master arbitrator, who affirmed the award on February 25, 2022 (hereinafter the master arbitration award).

The medical provider moved, inter alia, for summary judgment dismissing the complaint and, in effect, declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the medical provider on behalf of its assignor, Marissa Hirsch (hereinafter the assignor), to confirm the master arbitration award, and for an award of attorneys’ fees. In an order [*2]dated October 10, 2024, the Supreme Court, among other things, denied those branches of the medical provider’s motion. The medical provider appeals.

Contrary to the contention of the medical provider, arbitration awards rendered in favor of different medical providers in related matters lacked collateral estoppel or res judicata effect in this action for a de novo determination of the defendant’s submitted claims for no-fault insurance benefits (see id.; see also Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 577 [1987]).

Nonetheless, the Supreme Court should have granted those branches of the medical provider’s motion which were for summary judgment dismissing the complaint and, in effect, declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the medical provider on behalf of the assignor and to confirm the master arbitration award. “In an action to recover no-fault benefits, a [claimant] makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed to and received by the relevant insurance carrier, and that payment of no-fault benefits was overdue” (Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082 [2011]; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506 [2015]; New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648 [2014]). Where a claimant seeks summary judgment on this ground, in opposition, the insurer must raise a triable issue of fact as to its timely denial of the claim (see Westchester Med. Ctr. v A Cent. Ins. Co., 114 AD3d 937, 937 [2014]; Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d 905, 905 [2011]).

Here, it is undisputed that the prescribed claims documents were timely sent to the insurer. In opposition, the insurer failed to raise a triable issue of fact as to its timely denial of the defendant’s submitted claims (see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929, 929-930 [2011]; see also Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2016]; Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051-1052 [2015]). The insurer submitted affidavits of two of its employees. However, those employees did not set forth personal knowledge of a standard office procedure designed to ensure proper addressing and mailing or of the actual mailing of the denial of claims forms.

An insurer that fails to timely deny a claim for no-fault insurance benefits “ ’is generally precluded from asserting a defense against payment of the claim’ ” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008], quoting Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]). The “only exception to this preclusion remedy [is] a ‘narrow’ one for those ‘situations where an insurance company raises a defense of lack of coverage’ ” (id.; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Here, where the insurer failed to raise a triable issue of fact as to its timely mailing of the denial of claims forms, it is precluded from asserting a defense of lack of medical necessity (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

While the insurer is not precluded from raising the defense of lack of causation notwithstanding an untimely denial of the defendant’s submitted claims (see id.), here, the insurer failed to raise a triable issue of fact as to whether the assignor’s injuries were caused by the subject motor vehicle accident. The insurer submitted an affidavit of a physician who performed a peer review (hereinafter the peer review physician). However, the affidavit did not demonstrate that the peer review physician reviewed the assignor’s full medical records, which included records of conservative treatment rendered prior to an EMG/NCV test. In addition, the peer review physician did not address the opinion of the treating physician regarding certain symptoms bearing on the treating physician’s decision to perform the EMG/NCV test. Further, the report of the peer review physician did not address treatment rendered in addition to the EMG/NCV test. Such additional treatment was encompassed in the defendant’s submitted claims and deemed necessary by a physician who performed an independent medical examination. Moreover, the peer review physician did not specifically address the causal connection between the assignor’s alleged injuries and the motor vehicle accident.

Under these circumstances, the insurer failed to raise a triable issue of fact as to the [*3]defense of lack of causation. Accordingly, the medical provider was entitled to summary judgment dismissing the complaint and declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the medical provider on behalf of the assignor (see Hernandez v Merchants Mut. Ins. Co., 206 AD3d 978 [2022]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020 [2007]; see also Healthplus Surgery Ctr., LLC v American Tr. Ins. Co., 204 AD3d 646, 646-647 [2022]).

As the medical provider is entitled to summary judgment dismissing the complaint and declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the medical provider on behalf of the assignor, it is also entitled to confirmation of the master arbitration award (see Insurance Law § 5106 [c]; Matter of Slater v Eagle Ins. Co., 294 AD2d 368 [2002]; see also Murzik Taxi, Inc. v Lutheran Med. Ctr., 193 AD3d 866 [2021]) and an award of attorneys’ fees.

Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees to be awarded to the medical provider and the entry of a judgment, inter alia, declaring that the plaintiff is obligated to pay no-fault insurance benefits submitted by the medical provider on behalf of the assignor and awarding such reasonable attorneys’ fees (see Insurance Law § 5106 [a]; 11 NYCRR 65-4.10 [j] [4]; American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1 [2025]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168, 1168 [2019]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2017]). Genovesi, J.P., Wan, Taylor and Golia, JJ., concur.

One RX Chemist, Inc. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 51309(U))

Reported in New York Official Reports at One RX Chemist, Inc. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 51309(U))

One RX Chemist, Inc. v Nationwide Mut. Ins. Co.

2026 NY Slip Op 51309(U) [89 Misc 3d 131(A)]

Decided on June 17, 2026

Appellate Term, Second Department

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

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

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on June 17, 2026

2025-1324 Q C

Present: : Wavny Toussaint, P.J., Chereé A. Buggs, Joanne D. Quiñones, JJ

Hollander Legal Group, P.C. (Allan S. Hollander and Christopher Volpe of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Jay Koo and Koenig Pierre of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County, (Sandra Perez, J.), dated February 27, 2025. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

[*1]

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court (Sandra Perez, J.) as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

Here, it is undisputed that defendant established, prima facie, that it timely mailed its initial and follow-up EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff failed to appear for the EUOs scheduled for December 17, 2021, January 14, 2022, and February 4, 2022, and that, after plaintiff failed to [*2]appear for the last scheduled EUO, defendant timely denied the subject claim on the ground that plaintiff had failed to appear for those EUOs. The Civil Court erred in denying defendant’s motion on the ground that an issue of fact exists as to the reasonableness of the EUO request (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co., 77 Misc 3d 140[A], 2022 NY Slip Op 51384[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see also 21st Century Pharm., Inc. v Ameriprise Ins. Co., 65 Misc 3d 134[A], 2019 NY Slip Op 51629[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). In any event, we note that the EUO scheduling letters and response letter provided plaintiff with the basis for the EUO request. As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, defendant is entitled to summary judgment dismissing the complaint (see First Class Med., P.C. v Ameriprise Ins. Co., 63 Misc 3d 135[A], 2019 NY Slip Op 50477[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

TOUSSAINT, P.J., BUGGS and QUIÑONES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: June 17, 2026