Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Big Apple Pain Mgt., PLLC (2025 NY Slip Op 05948)
| Matter of American Tr. Ins. Co. v Big Apple Pain Mgt., PLLC |
| 2025 NY Slip Op 05948 |
| Decided on October 29, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
VALERIE BRATHWAITE NELSON, J.P.
LINDA CHRISTOPHER
LILLIAN WAN
DONNA-MARIE E. GOLIA, JJ.
2024-03259
(Index No. 515654/22)
v
Big Apple Pain Management, PLLC, etc., appellant.
Beynenson Law Firm, P.C., Franklin Square, NY (Alek Beynenson of counsel), for appellant.
Larkin Farrell, LLC, New York, NY (William R. Larkin III of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated April 8, 2022, which confirmed an award of an arbitrator dated December 4, 2021, Big Apple Pain Management, PLLC, appeals from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated January 24, 2024. The order granted the petition to vacate the master arbitrator’s award and, in effect, denied the cross-petition of Big Apple Pain Management, PLLC, to confirm the master arbitrator’s award.
ORDERED that the order is reversed, on the law, with costs, the petition is denied, the cross-petition is granted, and the master arbitrator’s award dated April 8, 2022, is confirmed.
In October 2019, Carlos Nieto was involved in a motor vehicle accident in Staten Island. From February 2020 through June 2020, Nieto received medical services from Big Apple Pain Management, PLLC (hereinafter Big Apple), for injuries he sustained in the accident. Big Apple submitted insurance claims to the petitioner American Transit Insurance Company (hereinafter American Transit) for reimbursement of the cost of services performed, in the total sum of $1,417.73. American Transit denied the insurance claims. Thereafter, Big Apple submitted the insurance claims to arbitration. In an award dated December 4, 2021, after a hearing, an arbitrator awarded Big Apple the total sum of $1,417.73. American Transit then requested that the matter be reviewed by a master arbitrator. In an award of the master arbitrator dated April 8, 2022, the master arbitrator confirmed the arbitration award dated December 4, 2021, in its entirety.
In May 2022, American Transit commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. Big Apple opposed the petition and cross-petitioned to confirm the award. In an order dated January 24, 2024, the Supreme Court granted the petition to vacate the master arbitrator’s award and, in effect, denied Big Apple’s cross-petition. Big Apple 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 [*2]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; see Matter of Dluhy v Sive, Paget & Riesel, P.C., 220 AD3d 659, 659). “‘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 AD3d 1168, 1168, quoting Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577; see Matter of Advanced Orthopaedics, PLLC v Country-Wide Ins. Co., 204 AD3d 787, 787).
Here, American Transit failed to demonstrate the existence of any statutory grounds for vacating the master arbitrator’s award (see Matter of V.S. Care Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 832, 833-834; Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth., 167 AD3d 869, 870).
Accordingly, the Supreme Court should have denied the petition to vacate the master arbitrator’s award and granted the cross-petition to confirm the master arbitrator’s award.
BRATHWAITE NELSON, J.P., CHRISTOPHER, WAN and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of Oasis Med. & Surgical Wellness v New Jersey Mfrs. Ins. Co. (2025 NY Slip Op 05952)
| Matter of Oasis Med. & Surgical Wellness v New Jersey Mfrs. Ins. Co. |
| 2025 NY Slip Op 05952 |
| Decided on October 29, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CHERYL E. CHAMBERS, J.P.
PAUL WOOTEN
HELEN VOUTSINAS
LAURENCE L. LOVE, JJ.
2023-11688
(Index No. 604183/23)
v
New Jersey Manufacturers Insurance Co., respondent.
Roman Kravchenko, Melville, NY (Jason Tenenbaum of counsel), for appellant.
Lawrence N. Rogak LLC, Oceanside, NY (Melnia Cordis of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated February 12, 2023, the petitioner appeals from an order of the Supreme Court, Nassau County (Lisa A. Cairo, J.), entered August 28, 2023. The order denied the petition.
ORDERED that the order is affirmed, with costs.
The petitioner, Oasis Medical and Surgical Wellness (hereinafter Oasis), sought payment of no-fault insurance benefits from the respondent, New Jersey Manufacturers Insurance Co. (hereinafter NJM), for medical services provided to an insured in New Jersey in connection with a motor vehicle accident that occurred in New York. After NJM denied the claim, Oasis commenced an arbitration proceeding in a New York forum. In an award dated November 19, 2022, the arbitrator dismissed the proceeding without prejudice on the ground that New Jersey was the proper forum for the proceeding. Oasis appealed this award to a master arbitrator, who affirmed the dismissal in an award dated February 12, 2023, applying the doctrine of forum non conveniens. Thereafter, Oasis commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitration award. In an order entered August 28, 2023, the Supreme Court denied the petition. Oasis appeals.
“‘[J]udicial review of arbitration awards is extremely limited'” (Matter of Richardson v Markovich, 227 AD3d 999, 1000, quoting Matter of Briscoe Protective, LLC v North Fork Surgery Ctr., LLC, 215 AD3d 956, 957). “A party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence” (Matter of Douglas Elliman of LI, LLC v O’Callaghan, 220 AD3d 945, 947 [internal quotation marks omitted]; see Matter of Dluhy v Sive, Paget & Riesel, P.C., 220 AD3d 659, 659). “CPLR 7511(b) enumerates the limited grounds upon which an award may be vacated, including . . . that the arbitrator exceeded his or her authority” (Matter of Douglas Elliman of LI, LLC v O’Callaghan, 220 AD3d at 946; see Matter of Dluhy v Sive, Paget & Riesel, P.C., 220 AD3d at 659). “An arbitrator exceeds his or her power within the meaning of the CPLR only when he or she issues an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Matter of Douglas Elliman of LI, LLC v O’Callaghan, 220 AD3d at 946 [alterations and internal quotation marks omitted]; see Matter of Richardson v Markovich, 227 AD3d at 1000). “An arbitration award is irrational only where there is no evidence whatever to justify the award” (Matter [*2]of Dedvukaj v Shkreli, 180 AD3d 895, 897; see Matter of Richardson v Markovich, 227 AD3d at 1000).
Here, since the parties resided in New Jersey, the medical care was provided in New Jersey, the insurance contract was made in New Jersey, and New Jersey substantive law applies, Oasis failed to establish by clear and convincing evidence that no evidence whatever justified the award (see Matter of Douglas Elliman of LI, LLC v O’Callaghan, 220 AD3d at 946; Matter of Dedvukaj v Shkreli, 180 AD3d at 897). “The fact that the accident occurred in New York is insufficient by itself to provide the substantial nexus required to warrant the retention of jurisdiction” (DelGrosso v Carroll, 185 AD3d 901, 904; see Fajardo v Alejandro, 126 AD3d 644, 645).
Contrary to Oasis’s contention, NJM did not waive its right to challenge the forum by making use of a New York State insurance form or by failing to raise the issue in its initial submission to the arbitrator (see Matter of Long Is. Power Auth. Hurricane Sandy Litig., 165 AD3d 1138, 1143).
Oasis’s remaining contention is without merit.
Accordingly, the Supreme Court properly denied the petition to vacate the master arbitration award.
We decline NJM’s request to impose sanctions against Oasis for taking an allegedly frivolous appeal (see 22 NYCRR 130-1.1; Matter of O’Donoghue v O’Donoghue, 214 AD3d 876, 877).
CHAMBERS, J.P., WOOTEN, VOUTSINAS and LOVE, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of South Nassau Community Hosp. v Avis Budget Group, Inc. (2025 NY Slip Op 05954)
| Matter of South Nassau Community Hosp. v Avis Budget Group, Inc. |
| 2025 NY Slip Op 05954 |
| Decided on October 29, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
MARK C. DILLON, J.P.
LINDA CHRISTOPHER
LOURDES M. VENTURA
JAMES P. MCCORMACK, JJ.
2024-02473
(Index No. 606112/23)
v
Avis Budget Group, Inc., respondent.
Roman Kravchenko, Melville, NY, for appellant.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated April 4, 2023, which vacated an arbitration award in favor of the petitioner, the petitioner appeals from an order of the Supreme Court, Nassau County (Thomas Rademaker, J.), entered January 5, 2024. The order denied the petition to vacate the master arbitrator’s award.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner commenced a no-fault arbitration proceeding seeking to recover from the respondent for medical services the petitioner provided to Laurel Gordon following a motor vehicle accident on December 28, 2019. Initially, the respondent asserted, inter alia, the defense of lack of medical necessity. However, during the no-fault arbitration hearing, the respondent contended that the petitioner lacked standing because it had not obtained an assignment of benefits from Gordon. After the no-fault arbitration hearing, an arbitrator determined that the respondent failed to establish its medical necessity defense and awarded the petitioner the sum of $17,794.42, plus interest and attorneys’ fees. The arbitrator did not address the issue of the petitioner’s standing.
The respondent appealed the arbitrator’s award to a master arbitrator, contending that the award was arbitrary and capricious, irrational, and incorrect as a matter of law, since it failed, inter alia, to address the petitioner’s lack of standing. In response, the petitioner contended that the arbitrator’s award was rational and correct as a matter of law, since the respondent had waived the lack of standing defense by failing to timely raise it. On April 4, 2023, the master arbitrator issued an award vacating the arbitrator’s award in favor of the petitioner, based on the petitioner’s lack of standing.
The petitioner then commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. In an order entered January 5, 2024, the Supreme Court denied the petition to vacate the master arbitrator’s award. The petitioner appeals.
“A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75, which include, in this compulsory arbitration, the question of whether the determination had evidentiary support, was rational, or had a plausible basis” (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802; see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212). “[A] 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” (Matter of Advanced [*2]Orthopaedics, PLLC v Country-Wide Ins. Co., 204 AD3d 787, 787; see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168). “If the master arbitrator vacates the arbitrator’s award based upon an alleged error of a rule of substantive law, the determination of the master arbitrator must be upheld unless it is irrational” (Matter of Advanced Orthopaedics, PLLC v Country-Wide Ins. Co., 204 AD3d at 787 [internal quotation marks omitted]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d at 802).
Here, the Supreme Court properly denied the petition to vacate the award of the master arbitrator, as it was not irrational or arbitrary and capricious (see Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co., 176 AD3d 695, 696; L.I. Community Med., P.C. v Allstate Ins. Co., 19 Misc 3d 142[A], 2008 NY Slip Op 51034[U] [App Term, 2d Dept, 2d & 11th Jud Dists]; Elite Med. Care, P.C. v Travelers Prop. & Cas. Ins. Co., 12 Misc 3d 1183[A], 2006 NY Slip Op 51397[U] [Civ Ct, Kings County]). “On questions of substantive law, the determination of the master arbitrator must be upheld if, as here, there is a rational basis for the determination” (Matter of Bay Needle Care Acupuncture, P.C. v Country Wide Ins. Co., 176 AD3d at 696).
In light of our determination, the petitioner’s remaining contention need not be addressed.
DILLON, J.P., CHRISTOPHER, VENTURA and MCCORMACK, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at American Tr. Ins. Co. v Hackensack Surgery Ctr., LLC (2025 NY Slip Op 05787)
| American Tr. Ins. Co. v Hackensack Surgery Ctr., LLC |
| 2025 NY Slip Op 05787 |
| Decided on October 22, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.
2023-02568
2023-08153
(Index No. 509710/22)
v
Hackensack Surgery Center, LLC, etc., respondent.
Larkin Farrell, LLC, New York, NY (William R. Larkin III and Melissa Marano of counsel), for appellant.
Roman Kravchenko, Melville, NY (Jason Tenenbaum of counsel), for respondent.
In an action pursuant to Insurance Law § 5106(c) for a de novo determination of claims for no-fault insurance benefits, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Sharon A. Bourne-Clarke, J.), dated February 2, 2023, and (2) an order of the same court dated March 22, 2023. The order dated February 2, 2023, insofar as appealed from, granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the complaint. The order dated March 22, 2023, insofar as appealed from, denied that branch of the plaintiff’s motion which was for leave to reargue its opposition to that branch of the defendant’s prior motion which was pursuant to CPLR 3211(a) to dismiss the complaint and granted the defendant’s cross-motion to resettle the order dated February 2, 2023.
DECISION & ORDER
Motion by the respondent, among other things, to dismiss the appeal from the order dated February 2, 2023, on the ground that it was superseded by the order dated March 22, 2023. By decision and order on motion of this Court dated May 10, 2024, that branch of the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is
ORDERED that the branch of the motion which is to dismiss the appeal from the order dated February 2, 2023, on the ground that it was superseded by the order dated March 22, 2023, is granted; and it is further,
ORDERED that the appeal from the order dated February 2, 2023, is dismissed; and it is further,
ORDERED that the appeal from so much of the order dated March 22, 2023, as denied that branch of the plaintiff’s motion which was for leave to reargue is dismissed, as no appeal [*2]lies from an order denying reargument (see Green v Hyacinth Green Irrevocable Living Trust, 240 AD3d 485); and it is further,
ORDERED that the order dated March 22, 2023, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The plaintiff commenced this action pursuant to Insurance Law § 5106(c) and for a de novo determination of claims for no-fault insurance benefits. The defendant moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. By order dated February 2, 2023 (hereinafter the February 2023 order), the Supreme Court, among other things, granted that branch of the defendant’s motion. Thereafter, the plaintiff moved, inter alia, for leave to reargue its opposition to that branch of the defendant’s prior motion. The defendant cross-moved to resettle the February 2023 order. By order dated March 22, 2023, the court, among other things, denied that branch of the plaintiff’s motion and granted the defendant’s cross-motion. The court stated that at the calendar call on the return date of the defendant’s motion, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint, the defendant’s motion was granted on the plaintiff’s default, but the February 2023 order failed to reflect the fact that the motion was granted on default. The plaintiff appeals from both orders.
“‘A written order [or judgment] must conform strictly to the court’s decision, and in the event of an inconsistency between a judgment and a decision or order upon which it is based, the decision or order controls'” (Schwartzbard v Cogan, 192 AD3d 523, 524, quoting Spier v Horowitz, 16 AD3d 400, 401). “‘Such an inconsistency may be corrected either by way of a motion for resettlement or on appeal'” (id., citing CPLR 2221, 5019[a]). Here, the Supreme Court properly corrected its error by granting the defendant’s cross-motion to resettle the February 2023 order to indicate that the defendant’s motion, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint was granted on default (see Matter of Edward V., 204 AD2d 1060, 1061).
The plaintiff’s remaining contention is improperly raised for the first time on appeal.
DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of Hereford Ins. Co. v Shelly (2025 NY Slip Op 05681)
| Matter of Hereford Ins. Co. v Shelly |
| 2025 NY Slip Op 05681 |
| Decided on October 15, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
LARA J. GENOVESI, J.P.
WILLIAM G. FORD
LAURENCE L. LOVE
DONNA-MARIE E. GOLIA, JJ.
2023-08784
(Index No. 508992/23)
v
Sarben-Sarpong Shelly, et al., appellants.
Law Office of Yuriy Prakhin, P.C., Brooklyn, NY, for appellants.
Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, Sarben-Sarpong Shelly and Hargrove Carey appeal from an order of the Supreme Court, Kings County (Robin K. Sheares, J.), dated May 25, 2023. The order granted that branch of the petition which was to permanently stay arbitration.
ORDERED that the order is affirmed, with costs.
On June 13, 2018, Sarben-Sarpong Shelly and Corey Hargrove (hereinafter together the claimants) were the occupants of a vehicle insured by the petitioner, Hereford Insurance Company (hereinafter Hereford), when the vehicle was involved in an accident (hereinafter the accident). In March 2019, Hereford commenced an action in the Supreme Court, New York County, against, among others, the claimants for a judgment declaring, inter alia, that Hereford had no duty to pay claims related to the accident and was entitled to a permanent stay of all no-fault arbitrations and lawsuits commenced by the claimants relating to the accident (hereinafter the 2019 action). By order dated July 5, 2019, the Supreme Court, among other things, granted that branch of Hereford’s motion which was for leave to enter a default judgment against Shelly. By order and judgment dated February 17, 2023, the court granted Hereford’s motion for leave to enter a default judgment against Hargrove and declared, inter alia, that Hereford had no duty to pay claims related to the accident and was entitled to a permanent stay of arbitrations.
Thereafter, the claimants served a demand for arbitration on Hereford, and Hereford commenced this proceeding pursuant to CPLR article 75, among other things, to permanently stay arbitration of the claim. In an order dated May 25, 2023, the Supreme Court granted that branch of the petition which was to permanently stay arbitration. The claimants appeal.
“A defaulting defendant is deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” (LD Acquisition Co. 9, LLC v TSH Trade Group, LLC, 211 AD3d 928, 930 [internal quotation marks omitted]; see Matter of Capital Equity Mgt., LLC v Sunshine, 222 AD3d 640, 642). “Moreover, ‘a judgment by default that has not been vacated is conclusive for res judicata purposes and encompasses the issues that were [*2]raised or could have been raised in the prior action'” (Sheodial v U.S. Bank N.A., 218 AD3d 511, 512 [internal quotation marks omitted], quoting Eaddy v US Bank N.A., 180 AD3d 756, 758).
“The doctrine of res judicata bars a party from relitigating any claim which could have been or should have been litigated in a prior proceeding” (id., quoting Chapman Steamer Collective, LLC v KeyBank N.A., 163 AD3d 760, 761). “‘One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously brought to a final conclusion'” (Simmons v Trans Express Inc., 37 NY3d 107, 111 [emphasis and internal quotation marks omitted], quoting City of New York v Welsbach Elec. Corp., 9 NY3d 124, 127). “‘[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy'” (id. [emphasis omitted], quoting O’Brien v City of Syracuse, 54 NY2d 353, 357).
Contrary to the claimants’ contention, the Supreme Court properly granted that branch of the petition which was to permanently stay arbitration of the claim for uninsured motorist benefits arising out of the accident. Here, the July 5, 2019 order and the order and judgment in the 2019 action, inter alia, granted Hereford leave to enter a default judgment against the claimants and declared, among other things, that Hereford was entitled to a permanent stay of arbitrations and that Hereford had no duty to pay claims, including uninsured motorist benefits, related to the accident. The claimants were parties to the 2019 action, which determined, inter alia, that Hereford had no duty to pay the claimants’ claim. Accordingly, the court properly granted that branch of the petition which was to permanently stay arbitration (see Sheodial v U.S. Bank N.A., 218 AD3d at 512; Oteri v Oteri-Harkins, 205 AD3d 814, 815).
The claimants’ remaining contention is without merit.
GENOVESI, J.P., FORD, LOVE and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Brefni Chiropractic Diagnostics, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51518(U))
[*1]| Brefni Chiropractic Diagnostics, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2025 NY Slip Op 51518(U) |
| Decided on September 5, 2025 |
| 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. |
Decided on September 5, 2025
PRESENT: : MARINA CORA MUNDY, J.P., WAVNY TOUSSAINT, JOANNE D. QUIÑONES, JJ
2024-1292 K C
against
State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered May 31, 2024. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
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, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) entered May 31, 2024 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). As relevant here, the Civil Court found, pursuant to CPLR 3212 (g), that defendant had timely and properly mailed the letters scheduling plaintiff’s EUOs and the denial of claim forms, and limited the issues for trial to whether plaintiff failed to appear for the EUOs. The Civil Court held that defendant had not made a prima facie showing of plaintiff’s failure to appear for the scheduled EUOs because defendant did not submit the EUO transcripts to corroborate the attorney’s affirmation that was proffered to demonstrate plaintiff’s failures to appear.
Defendant demonstrated, prima facie, that plaintiff failed to appear for duly scheduled EUOs by submitting the affirmation of an attorney averring that he was present in his firm’s office, where the EUOs were scheduled to take place, on the dates on which the EUOs were scheduled; that he would have either conducted the EUOs himself or assigned another attorney to [*2]do so had plaintiff appeared for either scheduled EUO; and that plaintiff did not appear on either date (see e.g. MAZ Chiropractic, P.C. v State Farm Ins. Co., 85 Misc 3d 135[A], 2025 NY Slip Op 50492[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; SVP Med Supply, Inc. v GEICO, 76 Misc 3d 134[A], 2022 NY Slip Op 50931[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; SVP Med Supply, Inc. v GEICO, 76 Misc 3d 127[A], 2022 NY Slip Op 50775[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Parisien v Ameriprise Auto & Home, 75 Misc 3d 138[A], 2022 NY Slip Op 50581[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). To the extent that plaintiff contends that an issue exists with respect to defendant’s counsel’s recollection of plaintiff’s failure to appear, such a contention lacks merit, as, on its face, counsel’s affirmation was not “unworthy of belief or incredible as a matter of law” (Joseph-Felix v Hersh, 208 AD3d 571, 573 [2022]; see e.g. MAZ Chiropractic, P.C. v State Farm Ins. Co., 2025 NY Slip Op 50492[U], *1-2; SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50931[U], *2). Consequently, this affirmation, standing alone, was sufficient proof of plaintiff’s failure to appear for the EUOs, and, contrary to the determination of the Civil Court, submission of the EUO transcripts was unnecessary (see e.g. Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2020]; SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50931[U]; SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50775[U]; Parisien v Ameriprise Auto & Home, 2022 NY Slip Op 50581[U]).
As plaintiff failed to raise a triable issue of fact regarding its failure to appear for either scheduled EUO or challenge the CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
MUNDY, J.P., TOUSSAINT and QUIÑONES, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: September 5, 2025
Reported in New York Official Reports at Matter of Fill Rx NY, Inc. v LM Gen. Ins. Co. (2025 NY Slip Op 04785)
| Matter of Fill Rx NY, Inc. v LM Gen. Ins. Co. |
| 2025 NY Slip Op 04785 |
| Decided on August 27, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
PAUL WOOTEN
CARL J. LANDICINO
JAMES P. MCCORMACK, JJ.
2024-02539
(Index No. 604708/23)
v
LM General Insurance Company, respondent.
Roman Kravchenko, Melville, NY, for appellant.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to vacate an award of a master arbitrator dated March 20, 2023, which confirmed an award of an arbitrator dated January 24, 2023, denying a claim for no-fault insurance benefits, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Conrad D. Singer, J.), dated January 25, 2024. The judgment, upon an order of the same court dated October 4, 2023, denying the petition, is in favor of the respondent and against the petitioner dismissing the proceeding.
ORDERED that the judgment is affirmed, without costs or disbursements.
On March 21, 2023, the petitioner, Fill Rx NY, Inc. (hereinafter Fill Rx), commenced this proceeding pursuant to CPLR article 75, inter alia, to vacate an award of a master arbitrator dated March 20, 2023 (hereinafter the March 2023 master arbitration award), confirming an arbitration award dated January 24, 2023 (hereinafter the January 2023 arbitration award), which, after a hearing, denied a claim by Fill Rx for no-fault benefits in the sum of $4,151.53 against the respondent, LM General Insurance Company (hereinafter LM General).
The January 2023 arbitration award arose out of a no-fault arbitration proceeding commenced by Fill Rx against LM General to recover the sum of $4,151.53 for pharmaceutical products Fill Rx provided to its assignor in connection with a motor vehicle accident in July 2021. The arbitrator denied Fill Rx’s claim in its entirety based on LM General’s contention that the limits of the no-fault coverage under its insurance policy had been exhausted.
Fill Rx appealed the January 2023 arbitration award to a master arbitrator, contending that the award was irrational, arbitrary and capricious, and incorrect as a matter of law. Thereafter, the master arbitrator issued the March 2023 master arbitration award, confirming the January 2023 arbitration award. By order dated October 4, 2023, the Supreme Court denied the petition, inter alia, to vacate the March 2023 master arbitration award. A judgment dated January 25, 2024, was entered upon the order in favor of LM General and against Fill Rx dismissing the proceeding.
“‘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; see Matter of Singh v Allstate Ins. Co., 137 AD3d 1046, 1047). “‘It is not for [the court] to decide whether the [*2][master] arbitrator erred [in applying the applicable law]'” (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d at 650, quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 535).
Here, Fill Rx failed to demonstrate any ground for vacating the March 2023 master arbitration award. The determination of the master arbitrator confirming the January 2023 arbitration award had evidentiary support and a rational basis (see 11 NYCRR 65-4.10[a][2]; Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth., 167 AD3d 869, 870; Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245).
Fill Rx’s remaining contentions either need not be reached in light of our determination or are improperly raised for the first time on appeal.
DUFFY, J.P., WOOTEN, LANDICINO and MCCORMACK, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of Progressive Ins. Co. v Service (2025 NY Slip Op 04652)
| Matter of Progressive Ins. Co. v Service |
| 2025 NY Slip Op 04652 |
| Decided on August 13, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CHERYL E. CHAMBERS, J.P.
WILLIAM G. FORD
JANICE A. TAYLOR
JAMES P. MCCORMACK, JJ.
2024-03500
(Index No. 714418/23)
v
Shante D. Service, respondent, et al., proposed additional respondents.
Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Amanda M. Zefi of counsel), for appellant.
Davidoff Law, P.C., New York, NY (Mark Peter Getzoni of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), dated March 7, 2024. The order, after a framed-issue hearing, denied that branch of the petition which was to permanently stay arbitration and, in effect, dismissed the proceeding.
ORDERED that the order is reversed, on the law, with costs, and that branch of the petition which was to permanently stay arbitration is granted.
On August 21, 2021, the respondent, Shante D. Service, allegedly was injured when a vehicle owned and operated by proposed additional respondent Artur Nazaryan, in which Service was a passenger, was struck by another vehicle while traveling on the Van Wyck Expressway. At the time of the accident, Nazaryan was working as a driver for Lyft, Inc. (hereinafter Lyft). Service was picked up in Queens and had intended to travel to Manhattan. Nazaryan’s vehicle was insured under a policy issued by Hereford Insurance Company, which contained supplementary uninsured motorist (hereinafter SUM) coverage. Lyft carried motor vehicle insurance with the petitioner, Progressive Insurance Company (hereinafter Progressive), and its policy also included SUM coverage.
Progressive disclaimed coverage for the accident. In July 2023, Service served Progressive with a demand for arbitration. Progressive then commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of Service’s claim. In an order dated March 7, 2024, made after a framed-issue hearing, the Supreme Court denied that branch of the petition which was to permanently stay arbitration and, in effect, dismissed the proceeding. Progressive appeals.
“An insurance policy is a written contract between an insurer and an insured and is based, in essence, on contract law” (American W. Home Ins. Co. v Gjonaj Realty & Mgt. Co., 192 AD3d 28, 38). “In determining an insurance coverage dispute, a court must first look to the language of the policy” (Holtzman v Connecticut Gen. Life Ins. Co., 213 AD3d 918, 919; see Consolidated [*2]Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 221). “As with any contract, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court” (White v Continental Cas. Co., 9 NY3d 264, 267 [citation omitted]).
Here, Service was not an “insured” under the subject policy. In order to qualify as an “insured” under the SUM endorsement, the accident had to have occurred while Nazaryan was operating a “TNC vehicle,” which is defined as a vehicle “used by a transportation network company driver” who “is providing a transportation network company prearranged service” originating within the state of New York. Further, the policy provided that a “prearranged trip” “does not include transportation provided through . . . use of a taxicab, livery, luxury limousine, or other for-hire vehicle, as defined in . . . [Administrative Code § 19-502 of the City of New York]” (emphasis added). Pursuant to Administrative Code § 19-502(g), a “for-hire vehicle” includes “a motor vehicle carrying passengers for hire in the city” (emphasis added). Since Nazaryan’s vehicle was being used to carry a passenger for hire within New York City at the time of the accident, it was being operated as a “for-hire vehicle,” rather than as a “TNC vehicle” (see Matter of Progressive Ins. Co. v Callahan, 232 AD3d 903, 905; Matter of Progressive Ins. Co. v Baby, 232 AD3d 902, 903). Thus, Service did not qualify as an “insured” under the terms of the policy.
Service’s remaining contentions are either without merit or not properly before this Court.
CHAMBERS, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51513(U))
[*1]| Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2025 NY Slip Op 51513(U) |
| Decided on August 8, 2025 |
| 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. |
Decided on August 8, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-70 K C
against
State Farm Mutual Automobile Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 12, 2024. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking to open its default and to compel plaintiff to accept defendant’s amended answer.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) as granted the branches of defendant’s motion seeking to open its default and to compel plaintiff to accept defendant’s amended answer.
Contrary to plaintiff’s contentions, we find that the Civil Court did not improvidently exercise its discretion in granting the branches of defendant’s motion seeking to open its default and to compel plaintiff to accept defendant’s amended answer (see Arroyo v Starrett City, Inc., 170 AD3d 929 [2019]; Lyubomirsky v Lubov Arulin, PLLC, 125 AD3d 614 [2015]).
Accordingly, the order, insofar as appealed from, is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: August 8, 2025
Reported in New York Official Reports at Matter of Liberty Mut. Ins. Co. v McCormack (2025 NY Slip Op 04571)
| Matter of Liberty Mut. Ins. Co. v McCormack |
| 2025 NY Slip Op 04571 |
| Decided on August 6, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
PAUL WOOTEN
CARL J. LANDICINO
JAMES P. MCCORMACK, JJ.
2023-04957
(Index No. 517925/22)
v
Kerio McCormack, appellant.
Mallilo & Grossman, Flushing, NY (Stephen M. Grossman of counsel), for appellant.
Gilbert, McGinnis & Liferiedge (Mauro Lilling Naparty LLP, Woodbury, NY [Matthew W. Naparty, Margaret E. Greco, and Glenn A. Kaminska], of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for supplemental uninsured motorist benefits, Kerio McCormack appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated April 18, 2023. The order granted that branch of the petition which was to permanently stay arbitration and permanently stayed arbitration.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a framed-issue hearing to be conducted in accordance herewith, and a new determination thereafter of that branch of the petition which was to permanently stay arbitration.
In June 2022, the petitioner, Liberty Mutual Insurance Company (hereinafter Liberty Mutual), commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim of Kerio McCormack for supplemental uninsured motorist benefits (hereinafter SUM), on the ground that McCormack did not qualify as an insured under the SUM endorsement of the insurance policy at issue. McCormack opposed. In an order dated April 18, 2023, the Supreme Court granted that branch of the petition and permanently stayed arbitration. McCormack appeals. We reverse.
“The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay” (Matter of American Protection Ins. Co. v DeFalco, 61 AD3d 970, 972 [internal quotation marks omitted]). “Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing” (Matter of Merchants Preferred Ins. Co. v Waldo, 125 AD3d 864, 865). “Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue” (Matter of Hertz Corp. v Holmes, 106 AD3d 1001, 1003; see Matter of Government Empls. Ins. Co. v Tucci, 157 AD3d 679, 680).
Here, Liberty Mutual presented evidence that McCormack did not qualify as an insured for SUM coverage. In opposition, however, McCormack demonstrated the existence of a triable issue of fact as to whether he was occupying a vehicle insured by Liberty Mutual at the time of the collision at issue and therefore would qualify as an insured (see Matter of American Protection Ins. Co. v DeFalco, 61 AD3d at 972).
Accordingly, the Supreme Court should not have granted that branch of Liberty Mutual’s petition which was to permanently stay arbitration without first conducting a framed-issue hearing to determine whether McCormack was occupying the insured vehicle such that he would constitute an insured as that term is defined in the SUM endorsement of the insurance policy at issue.
In light of our determination, McCormack’s remaining contention need not be reached.
DUFFY, J.P., WOOTEN, LANDICINO and MCCORMACK, JJ., concur.
Darrell M. Joseph
Clerk of the Court