Reported in New York Official Reports at American Tr. Ins. Co. v Barakat PT PC (2026 NY Slip Op 01750)
| American Tr. Ins. Co. v Barakat PT PC |
| 2026 NY Slip Op 01750 |
| Decided on March 25, 2026 |
| 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.
PAUL WOOTEN
CARL J. LANDICINO
DONNA-MARIE E. GOLIA, JJ.
2024-03963
(Index No. 521651/22)
v
Barakat PT PC, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Short & Billy, P.C., New York, NY (Seok Ho [Richard] Kang of counsel), for respondent.
DECISION & ORDER
In an action pursuant to Insurance Law § 5106(c) for a de novo determination of claims for no-fault insurance benefits, the defendant appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated April 10, 2024. The order, insofar as appealed from, without a hearing, granted that branch of the defendant’s motion which was for an award of reasonable attorneys’ fees pursuant to 11 NYCRR § 65-4.10(j)(4) to the extent of awarding the defendant attorneys’ fees in the sum of only $1,300.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the amount of reasonable attorneys’ fees pursuant to 11 NYCRR § 65-4.10(j)(4) to be awarded to the defendant in accordance herewith.
After a master arbitrator upheld an arbitration award in favor of the defendant on its claims for no-fault insurance benefits (hereinafter the master arbitration award), the plaintiff commenced this action pursuant to Insurance Law § 5106(c) for a de novo determination of the defendant’s claims. The defendant answered the complaint and served combined demands for discovery, including a notice of inspection. The defendant moved pursuant to CPLR 3124 to compel compliance with its discovery demands. The motion was denied but, upon renewal and reargument, the Supreme Court issued a conditional order directing the plaintiff to provide certain discovery documents within 30 days of the filing of the conditional order on the New York State Courts Electronic Filing System and stating that failure to comply with the conditional order will result in the plaintiff being sanctioned pursuant to CPLR 3126. Upon the plaintiff’s failure to timely comply with the conditional order, the defendant moved, inter alia, pursuant to CPLR 3126(3) to strike the complaint. The court granted that branch of the motion. Thereafter, the defendant moved, among other things, for an award of reasonable attorneys’ fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $13,940. In support of that branch of the motion, the defendant submitted an affirmation of services by its attorney. The plaintiff opposed the motion, arguing, inter alia, that an award of attorneys’ fees was limited by 11 NYCRR 65-4.6(d), and that the amount of attorneys’ fees requested was excessive as to the hourly rate and the time purportedly spent defending this action. In an order dated April 10, 2024 (hereinafter the April 2024 order), the court, among other things, without a hearing, granted that branch of the defendant’s motion which was for an award of reasonable [*2]attorneys’ fees pursuant to 11 NYCRR 65-4.10(j)(4) to the extent of awarding the defendant attorneys’ fees in the sum of $1,300. The defendant appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] 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.” As applicable here, the superintendent’s regulations provide that “[t]he attorney’s fee for services rendered in connection with a court adjudication of a dispute de novo, as provided in section 5106(c) of the Insurance Law, . . . shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 15).
“[A] reasonable attorney’s fee is commonly understood to be a fee which represents the reasonable value of the services rendered” (Diaz v Audi of Am., Inc., 57 AD3d 828, 830; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839). In determining the reasonable value of the services rendered, “the court may consider a number of factors, including, inter alia, the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented, the lawyer’s experience, ability, and reputation, the customary fee charged for similar services, and the results obtained” (Diggs v Oscar De La Renta, LLC, 169 AD3d 1003, 1005; see Matter of Freeman, 34 NY2d 1, 9; RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 839). “While a hearing is not required in all circumstances, the court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered” (Citicorp Trust Bank, FSB v Vidaurre, 155 AD3d 934, 935 [internal quotation marks omitted]; see Sterling Natl. Bank v Alan B. Brill, P.C., 186 AD3d 515, 520). Here, the parties submitted conflicting evidence as to the customary fee charged for similar services and the reasonable amount of time required to defend this action. In the April 2024 order, the Supreme Court provided no explanation for its determination of the award of reasonable attorneys’ fees pursuant to 11 NYCRR 65-4.10(j)(4), and the basis for that determination is not evident from the record. Under the circumstances, the matter must be remitted to the Supreme Court, Kings County, for a new determination of the amount of reasonable attorneys’ fees pursuant to 11 NYCRR 65-4.10(j)(4) to be awarded to the defendant, stating the evidentiary basis for the award (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 706).
The defendant’s remaining contention need not be reached in light of our determination.
DILLON, J.P., WOOTEN, LANDICINO and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at American Tr. Ins. Co. v Barakat PT PC (2026 NY Slip Op 01751)
| American Tr. Ins. Co. v Barakat PT PC |
| 2026 NY Slip Op 01751 |
| Decided on March 25, 2026 |
| 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.
PAUL WOOTEN
CARL J. LANDICINO
DONNA-MARIE E. GOLIA, JJ.
2024-13392
(Index No. 521651/22)
v
Barakat PT PC, appellant.
Roman Kravchenko, Melville, NY (Jason Tenenbaum of counsel), for appellant.
Short & Billy, P.C., New York, NY (Christopher E. O’Donnell and Seok Ho [Richard] Kang of counsel), for respondent.
DECISION & ORDER
In an action pursuant to Insurance Law § 5106(c) for a de novo determination of claims for no-fault insurance benefits, the defendant appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated November 6, 2024. The order granted the plaintiff’s motion for leave to renew and reargue its opposition to that branch of the defendant’s prior motion which was pursuant to CPLR 3126(3) to strike the complaint, which had been granted in an order of the same court (Leon Ruchelsman, J.) dated August 9, 2023, and, upon renewal and reargument, vacated the order dated August 9, 2023, and thereupon, denied that branch of the defendant’s prior motion.
ORDERED that the order dated November 6, 2024, is reversed, on the law, with costs, the plaintiff’s motion for leave to renew and reargue its opposition to that branch of the defendant’s prior motion which was pursuant to CPLR 3126(3) to strike the complaint is denied, and the order dated August 9, 2023, is reinstated.
The plaintiff commenced this action pursuant to Insurance Law § 5106(c) for a de novo determination of the defendant’s claims for no-fault insurance benefits. In an order dated April 21, 2023 (hereinafter the April 2023 order), the Supreme Court directed the plaintiff to provide certain discovery documents within 30 days of the filing of the April 2023 order on the New York State Courts Electronic Filing System and stated that failure to comply with the April 2023 order will result in the plaintiff being sanctioned pursuant to CPLR 3126. The defendant moved, inter alia, pursuant to CPLR 3126(3) to strike the complaint for failure to comply with the April 2023 order. The plaintiff opposed the motion. In an order dated August 9, 2023 (hereinafter the August 2023 order), the court granted that branch of the defendant’s motion. Thereafter, the plaintiff moved for leave to renew and reargue its opposition to that branch of the defendant’s prior motion which was pursuant to CPLR 3126(3) to strike the complaint and, upon renewal and reargument, to vacate the August 2023 order and to deny that branch of the defendant’s prior motion. The defendant opposed motion. In an order dated November 6, 2024, the court granted the plaintiff’s motion. The defendant appeals.
“A motion for reargument is addressed to the sound discretion of the court which determined the original motion, and leave to reargue may be granted upon a showing that the court overlooked or misapprehended the facts or the law, or otherwise mistakenly arrived at the original decision” (Christopulos v Christopulos, 209 AD3d 968, 969; see US Bank N.A. v Cimino, 212 AD3d 683, 684). “A motion for leave to reargue . . . shall not include any matters of fact not offered on [*2]the prior motion” (Sokolnik v Voronova, 221 AD3d 1036, 1037 [internal quotation marks omitted]; see CPLR 2221[d][2]). “Further, even where a motion for reargument is technically untimely under CPLR 2221(d)(3), a court has discretion to reconsider its prior ruling” (HSBC Bank USA, N.A. v Halls, 98 AD3d 718, 720-721; see Kugel v Reynolds, 228 AD3d 743, 746-747).
The Supreme Court should have 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 3126(3) to strike the complaint, “as there is no indication that the court misapprehended the facts or law, or mistakenly arrived at its earlier decision” (Matter of Butler v City of Rye Planning Commn., 114 AD3d 937, 938; see CPLR 2221[d][2]). The plaintiff’s contention that the court overlooked the fact that the defendant was required to serve the plaintiff with a copy of the April 2023 order with notice of entry to enforce the April 2023 order against the plaintiff was improperly raised for the first time on reargument (see Matter of Government Empls. Ins. Co. v Bermeo, 230 AD3d 1141, 1143; Rangel v Target Corp., 216 AD3d 683, 685).
A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]) and “shall contain reasonable justification for the failure to present such facts on the prior motion” (id. § 2221[e][3]). Here, the plaintiff did not offer a reasonable justification for failing to submit the purported new facts in opposition to the defendant’s prior motion (see id.; Robert v Azoulay Realty Corp., 209 AD3d 781, 786; Incorporated Vil. of Cove Neck v Petrara, 47 AD3d 885, 887).
The plaintiff’s remaining contentions are without merit.
Accordingly, the Supreme Court should have denied the plaintiff’s motion for leave to renew and reargue its opposition to that branch of the defendant’s prior motion which was pursuant to CPLR 3126(3) to strike the complaint.
DILLON, J.P., WOOTEN, LANDICINO and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Lenox Hill Hosp. (NSUH) (2026 NY Slip Op 01052)
| Matter of American Tr. Ins. Co. v Lenox Hill Hosp. (NSUH) |
| 2026 NY Slip Op 01052 |
| Decided on February 25, 2026 |
| 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.
PAUL WOOTEN
LOURDES M. VENTURA
DONNA-MARIE E. GOLIA, JJ.
2024-04107
(Index No. 535871/22)
v
Lenox Hill Hospital (NSUH), etc., appellant.
Roman Kravchenko, Melville, NY (Jason Tenenbaum of counsel), for appellant.
Short & Bill, P.C., New York, NY (Seok Ho [Richard] Kang of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award, Lenox Hill Hospital (NSUH) appeals from an order of the Supreme Court, Kings County (Heela D. Capell, J.), dated February 15, 2024. The order, insofar as appealed from, denied those branches of the motion of Lenox Hill Hospital (NSUH) which were to compel the petitioner to comply with an information subpoena, to impose a $50 fine upon the petitioner, and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees, and granted that branch of the petitioner’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of Lenox Hill Hospital (NSUH) which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the petitioner, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
In 2022, the petitioner, American Transit Insurance Company (hereinafter American Transit), commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award entered in favor of Lenox Hill Hospital (NSUH) (hereinafter Lenox Hill). Lenox Hill cross-petitioned, inter alia, to confirm the master arbitration award. In a judgment dated May 24, 2023, the Supreme Court, among other things, confirmed the master arbitration award and awarded Lenox Hill attorneys’ fees in the sum of $500. In August and September 2023, American Transit paid the sums owed to Lenox Hill, except for postjudgment interest in the sum of $192.
Lenox Hill served American Transit with an information subpoena. Thereafter, Lenox Hill moved, inter alia, to compel American Transit to comply with the information subpoena, to impose a $50 fine upon American Transit, and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees. American Transit cross-moved, among other things, pursuant to CPLR 2304 to quash the information subpoena. In an order dated February 15, 2024, the Supreme Court, inter alia, denied those branches of Lenox Hill’s motion and granted that branch of American Transit’s cross-motion. Lenox Hill appeals.
The Supreme Court did not improvidently exercise its discretion in granting that branch of American Transit’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena. “An application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious . . . or where the information sought is utterly irrelevant to any proper inquiry” (Matter of Kapon v Koch, 23 NY3d 32, 38 [alterations and internal quotation marks omitted]; see Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-332; 8206 N. Blvd, LLC v Ai Qiu Qu, 232 AD3d 833, 834). Here, American Transit established that the requested information in the information subpoena was irrelevant and that Lenox Hill served the information subpoena to harass American Transit.
However, the Supreme Court should have granted that branch of Lenox Hill’s motion which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees. The general rule is that in proceedings involving arbitration, as in other litigation, attorneys’ fees are not recoverable unless provided for by agreement or statute (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705; Myron Assoc. v Obstfeld, 224 AD2d 504). “Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, the claimant shall also be entitled to recover his [or her] 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” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705 [internal quotation marks omitted]; see American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 15). As Lenox Hill sought payment of postjudgment interest in the sum of $192 that was overdue, Lenox Hill was entitled to an award of additional attorneys’ fees for the services necessarily performed in connection with securing payment of the overdue postjudgment interest. However, Lenox Hill was not entitled to an award of additional attorneys’ fees for the remainder of the services performed by its attorneys in connection with preparing and serving the information subpoena and prosecuting this appeal, which were not part of a legitimate attempt to collect payment of an overdue claim or portion of a claim.
Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a determination of the amount of the additional attorneys’ fees pursuant to 11 NYCRR 65-4.10(j)(4) to which Lenox Hill is entitled.
Lenox Hill’s remaining contentions are without merit.
GENOVESI, J.P., WOOTEN, VENTURA and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v MTS Acupuncture, P.C. (2026 NY Slip Op 01053)
| Matter of American Tr. Ins. Co. v MTS Acupuncture, P.C. |
| 2026 NY Slip Op 01053 |
| Decided on February 25, 2026 |
| 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.
PAUL WOOTEN
LOURDES M. VENTURA
DONNA-MARIE E. GOLIA, JJ.
2024-06668
(Index No. 536898/22)
v
MTS Acupuncture, P.C., etc., appellant.
Roman Kravchenko, Melville, NY (Jason Tenenbaum of counsel), for appellant.
Larkin Farrell, LLC, New York, NY (William Larkin and Melissa A. Marano of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to confirm a master arbitration award, MTS Acupuncture, P.C., appeals from an order of the Supreme Court, Kings County (Ingrid Joseph, J.), dated July 3, 2024. The order, insofar as appealed from, granted that branch of the petitioner’s motion which was to direct the entry of a satisfaction of judgment, denied, as academic, those branches of the motion of MTS Acupuncture, P.C., which were to compel the petitioner to comply with an information subpoena, to impose a $50 fine against the petitioner, and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees, and denied, as academic, that branch of the petitioner’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena.
ORDERED that the appeal from so much of the order as denied, as academic, that branch of the petitioner’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena is dismissed, as MTS Acupuncture, P.C., is not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 156-157); and it is further,
ORDERED that the order is modified, on the law, by deleting the provision thereof denying, as academic, that branch of the motion of MTS Acupuncture, P.C., which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees, and substituting therefor a provision denying that branch of the motion on the merits; as so modified, the order is affirmed insofar as reviewed; and it is further,
ORDERED that with one bill of costs is awarded to the petitioner.
In 2022, the petitioner, American Transit Insurance Company (hereinafter American Transit), commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award entered in favor of MTS Acupuncture, P.C. (hereinafter MTS), for no-fault benefits. MTS cross-petitioned, inter alia, to confirm the master arbitration award. In a judgment dated March 21, 2023, the Supreme Court, among other things, confirmed the master arbitration award and awarded MTS attorneys’ fees. In April and May 2023, American Transit paid the sums owed.
Thereafter, MTS served American Transit with an information subpoena. MTS moved, inter alia, to compel American Transit to comply with the information subpoena, to impose a $50 fine against American Transit, and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees. American Transit cross-moved, among other things, pursuant to CPLR 2304 to quash the information subpoena. American Transit also moved, inter alia, to direct the entry of a satisfaction of judgment. In an order dated July 3, 2024, the Supreme Court, among other things, granted that branch of American Transit’s motion which was to direct the entry of a satisfaction of judgment, denied, as academic, those branches of MTS’s motion which were to compel American Transit to comply with the information subpoena, to impose a $50 fine against American Transit, and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees, and denied, as academic, that branch of American Transit’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena. MTS appeals.
The Supreme Court properly determined that American Transit issued payments satisfying the judgment and directed the entry of a satisfaction of judgment pursuant to CPLR 5021(a)(2) (see Breck Contr. Corp. v Vecchione, 73 Misc 2d 1002, 1004 [Suffolk Dist Ct, 2d Dist]). Since the judgment was satisfied, MTS was not entitled to any additional discovery (see CPLR 5223). Moreover, the court properly denied, as academic, those branches of MTS’s motion which were to compel American Transit to comply with the information subpoena and to impose a $50 fine against American Transit.
However, the Supreme Court should have denied that branch of MTS’s motion which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees on the merits, not as academic. The general rule is that in proceedings involving arbitration, as in other litigation, attorneys’ fees are not recoverable unless provided for by agreement or statute (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705; Myron Assoc. v Obstfeld, 224 AD2d 504). “Pursuant to Insurance Law § 5106 (a), if a valid claim or portion of a claim for no-fault benefits is overdue, the claimant shall also be entitled to recover his [or her] 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” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705 [internal quotation marks omitted]; see American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 15). MTS was not entitled to an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10(j)(4) for its postjudgment motion practice, as no claim or portion of a claim for no-fault benefits was overdue.
MTS’s remaining contentions are without merit.
GENOVESI, J.P., WOOTEN, VENTURA and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v YSC Trinity Acupuncture, P.C. (2026 NY Slip Op 01054)
| Matter of American Tr. Ins. Co. v YSC Trinity Acupuncture, P.C. |
| 2026 NY Slip Op 01054 |
| Decided on February 25, 2026 |
| 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.
PAUL WOOTEN
LOURDES M. VENTURA
DONNA-MARIE E. GOLIA, JJ.
2024-02481
2024-04108
(Index No. 502863/22)
v
YSC Trinity Acupuncture, P.C., etc., appellant.
Roman Kravchenko, Melville, NY (Jason Tenenbaum of counsel), for appellant.
Short & Billy, P.C., New York, NY (Seok Ho [Richard] Kang of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award, YSC Trinity Acupuncture, P.C., appeals from two orders of the Supreme Court, Kings County (Rupert V. Barry, J.), both dated November 1, 2023. The first order, insofar as appealed from, denied that branch of the motion of YSC Trinity Acupuncture, P.C., which was to compel the petitioner to comply with an information subpoena and granted that branch of the petitioner’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena. The second order, insofar as appealed from, granted that branch of the petitioner’s motion which was to direct the entry of a satisfaction of judgment and denied the cross-motion of YSC Trinity Acupuncture, P.C., pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees.
ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.
In 2022, the petitioner, American Transit Insurance Company (hereinafter American Transit), commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award entered in favor of YSC Trinity Acupuncture, P.C. (hereinafter YSC), on YSC’s claim for no-fault benefits. YSC cross-petitioned, inter alia, to confirm the master arbitration award. A proposed judgment was prepared, among other things, awarding YSC attorneys’ fees, plus additional attorneys’ fees “in the sum of 20% of the sum of principal and interest.” In July 2022, American Transit paid YSC the sums owed. In a judgment dated November 22, 2022, the Supreme Court, inter alia, confirmed the master arbitration award and awarded YSC attorneys’ fees in the sum of $1,000, plus additional attorneys’ fees in the sum of 20% of the sum of principal and interest.
YSC served American Transit with an information subpoena. Thereafter, YSC moved, among other things, to compel American Transit to comply with the information subpoena. American Transit cross-moved, inter alia, pursuant to CPLR 2304 to quash the information subpoena. American Transit also moved, among other things, to direct the entry of a satisfaction of judgment. YSC cross-moved pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees. In an order dated November 1, 2023, the Supreme Court, inter alia, denied that [*2]branch of YSC’s motion which was to compel American Transit to comply with the information subpoena and granted that branch of American Transit’s cross-motion which was to quash the information subpoena. In a second order dated November 1, 2023, the court, among other things, granted that branch of American Transit’s motion which was to direct the entry of a satisfaction of judgment and denied YSC’s cross-motion pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees. YSC appeals from both orders.
The Supreme Court properly determined that American Transit issued payments satisfying the judgment and directed the entry of a satisfaction of judgment pursuant to CPLR 5021(a)(2) (see Breck Contr. Corp. v Vecchione, 73 Misc 2d 1002, 1004 [Suffolk Dist Ct, 2d Dist]). Since the judgment was satisfied, YSC was not entitled to any additional discovery (see CPLR 5223).
The Supreme Court did not improvidently exercise its discretion in granting that branch of American Transit’s cross-motion which was pursuant to CPLR 2304 to quash the information subpoena. “An application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious . . . or where the information sought is utterly irrelevant to any proper inquiry” (Matter of Kapon v Koch, 23 NY3d 32, 38 [alterations and internal quotation marks omitted]; see Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-332; 8206 N. Blvd, LLC v Ai Qiu Qu, 232 AD3d 833, 834). Here, American Transit established that the judgment had been satisfied and, as such, there was no reason for postjudgment discovery in an effort to collect the judgment. Moreover, the requested information in the information subpoena was irrelevant, and the information subpoena was served to harass American Transit.
The Supreme Court properly denied YSC’s cross-motion pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorneys’ fees. The general rule is that in proceedings involving arbitration, as in other litigation, attorneys’ fees are not recoverable unless provided for by agreement or statute (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705; Myron Assoc. v Obstfeld, 224 AD2d 504). “Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, the claimant shall also be entitled to recover his [or her] 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” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705 [internal quotation marks omitted]; see American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 15). YSC was not entitled to an award of attorneys’ fees for its postjudgment motion practice, as no claim or portion of a claim for no-fault benefits was overdue.
YSC’s remaining contentions are without merit.
GENOVESI, J.P., WOOTEN, VENTURA and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50184(U))
[*1]| Kalitenko v Nationwide Mut. Fire Ins. Co. |
| 2026 NY Slip Op 50184(U) [88 Misc 3d 127(A)] |
| Decided on January 16, 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. |
Decided on January 16, 2026
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-874 RI C
against
Nationwide Mutual Fire Insurance Company, Respondent.
Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor was ineligible to collect first-party no-fault benefits because he was operating a motorcycle at the time of the accident. In support of the motion, defendant submitted the transcript of plaintiff’s assignor’s examination under oath (EUO) in which he interchangeably referred to the motor vehicle he was operating at the time of the accident as a “moped” or “motorcycle.” He testified that the vehicle had a seat and a floorboard, but did not have pedals, and that the maximum speed of the vehicle was more than 40 miles per hour. Plaintiff’s assignor admitted that he did not have a driver’s license and that he had no insurance for the vehicle. Defendant also submitted a copy of the relevant insurance policy issued to the other individual involved in the accident, which policy stated that persons occupying a “[m]otorcycle, moped or similar-type vehicle” are not entitled to first-party benefits coverage. Plaintiff opposed the motion, arguing that the EUO transcript was inadmissible because it was not signed by the assignor and that, in any event, the vehicle that plaintiff’s assignor was driving did not qualify as a motorcycle under the Insurance Law. In an order dated August 15, 2024, the Civil Court (Robert J. Helbock, J.) granted defendant’s motion.
Contrary to plaintiff’s contention, the certified EUO transcript was admissible, even though it was not signed by plaintiff’s assignor (see American States Ins. Co. v Huff, 119 AD3d 478, 479 [2014]; Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc 3d 147[A], 2015 NY Slip Op 50756[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Compas Med., P.C. v ELRAC, Inc., 47 Misc 3d 143[A], 2015 NY Slip Op 50675[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Pursuant to Insurance Law § 5102 (j), a ” ‘[c]overed person’ means any pedestrian injured through the use or operation of, or any owner, operator or occupant of, a motor vehicle which has in effect the financial security required by article six or eight of the vehicle and traffic law or which is referred to in subdivision two of section three hundred twenty-one of such law; or any other person entitled to first party benefits.” Insurance Law § 5102 (f) specifically excludes motorcycles from the definition of a motor vehicle (see Insurance Law § 5102 [m]), and, thus, occupants of a motorcycle are not entitled to first-party no-fault benefits in New York (see Insurance Law § 5103 [a] [1], [2]; 11 NYCRR 65-1.1 [d]; Jung v Glover, 169 AD3d 782, 784 [2019]; Boyson v Kwasowsky, 129 AD3d 151, 152, 154 [2015]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 228 [2011]; Carbone v Visco, 115 AD2d 948 [1985]).
“A motorcycle is defined in the Insurance Law as ‘any motorcycle, as defined in [Vehicle and Traffic Law § 123], and which is required to carry financial security pursuant to article six, eight or forty-eight-A of the vehicle and traffic law’ (Insurance Law § 5102 [m] [emphasis added])” (Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d at 228). To the extent that plaintiff argues that the vehicle operated by plaintiff’s assignor did not qualify as a motorcycle required to carry financial security, we disagree. Upon a review of plaintiff’s assignor’s EUO testimony, we find that the vehicle plaintiff’s assignor was operating at the time of the accident was a motorcycle, as defined in Insurance Law § 5102 (m), because the vehicle had a seat, was operated using gas and electricity, and clearly had three or less wheels, given plaintiff’s assignor’s description of the vehicle as a “moped,” or “motorcycle” (see Vehicle and Traffic Law §§ 123, 125). Further, plaintiff’s assignor’s testimony regarding the speed of the vehicle demonstrates that the vehicle was required to carry financial security, as he testified that the vehicle had a maximum speed of more than 40 miles per hour (see Vehicle and Traffic Law §§ 121-b, 125, 311 [2]; 312 [1] [a]; 2265 [3]). Consequently, defendant met its prima facie burden of establishing that plaintiff’s assignor was ineligible to collect no-fault benefits under the insurance policy issued to the other individual involved in the accident (see Insurance Law §§ 5102 [j], [m]; 5103 [a] [1], [2]; 11 NYCRR 65-1.1 [d]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d at 228-229), and plaintiff failed to raise a triable issue of fact in opposition.
As defendant established that the accident was not a covered incident (see Insurance Law § 5102 [j]; Jung v Glover, 169 AD3d at 784), we need not pass upon plaintiff’s contention that the claim was not timely denied, as a defense of lack of coverage is not precluded even in the absence of a timely denial (see generally Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563-564 [2008]).
Accordingly, the order is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026
Reported in New York Official Reports at Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50185(U))
[*1]| Kalitenko v Nationwide Mut. Fire Ins. Co. |
| 2026 NY Slip Op 50185(U) [88 Misc 3d 127(A)] |
| Decided on January 16, 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. |
Decided on January 16, 2026
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-876 RI C
against
Nationwide Mutual Fire Insurance Company, Respondent.
Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Robert J. Helbock, J.) dated August 15, 2024 granting defendant’s motion for summary judgment dismissing the complaint.
For the reasons stated in Kalitenko, as Assignee of Wascar Gomez-Hernandez v Nationwide Mut. Fire Ins. Co. (— Misc 3d —, 2026 NY Slip Op — [appeal No. 2024-874 RI C], decided herewith), the order is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026
Reported in New York Official Reports at Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50186(U))
[*1]| Kalitenko v Nationwide Mut. Fire Ins. Co. |
| 2026 NY Slip Op 50186(U) [88 Misc 3d 127(A)] |
| Decided on January 16, 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. |
Decided on January 16, 2026
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-877 RI C
against
Nationwide Mutual Fire Insurance Company, Respondent.
Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Robert J. Helbock, J.) dated August 15, 2024 granting defendant’s motion for summary judgment dismissing the complaint.
For the reasons stated in Kalitenko, as Assignee of Wascar Gomez-Hernandez v Nationwide Mut. Fire Ins. Co. (— Misc 3d —, 2026 NY Slip Op — [appeal No. 2024-874 RI C], decided herewith), the order is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026
Reported in New York Official Reports at Bridgeview Supply Corp. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 50190(U))
[*1]| Bridgeview Supply Corp. v Nationwide Mut. Ins. Co. |
| 2026 NY Slip Op 50190(U) [88 Misc 3d 128(A)] |
| Decided on January 16, 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. |
Decided on January 16, 2026
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-36 Q C
against
Nationwide Mutual Insurance Company, Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander 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 October 29, 2024. The order, insofar as appealed from, 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 from so much of an order of the Civil Court (Sandra Perez, J.) entered October 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). The Civil Court found, in effect, pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and that plaintiff had failed to appear for the EUOs. The Civil Court further found that there was a “triable issue of fact surrounding the EUOs,” because “[p]laintiff . . . established that [it] objected to the reasonableness of each . . . request” for an EUO.
In order “to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insured need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground ‘following the [] failure to appear at the last scheduled EUO’ ” (Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am., 84 Misc 3d 136[A], 2024 NY Slip Op 51822[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud [*2]Dists 2024], quoting Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023]; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]). The Civil Court found, in effect, that the first two elements of defendant’s prima facie case had been established pursuant to CPLR 3212 (g). As part of this prima facie showing, an insurer is “not required to set forth objective reasons for requesting EUOs” (Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am., 2024 NY Slip Op 51822[U], *1-2; see Parisien v Ameriprise Auto & Home, 75 Misc 3d 138[A], 2022 NY Slip Op 50581[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; 21st Century Pharm., Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Bronx Chiropractic Care, P.C. v State Farm Ins., 63 Misc 3d 132[A], 2019 NY Slip Op 50423[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
The affidavits submitted by defendant constitute prima facie evidence that the denial of claim form had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff did not submit an affidavit to refute this evidence, nor did it challenge the implicit CPLR 3212 (g) findings in defendant’s favor with respect to the first two elements of defendant’s prima facie case. Plaintiff’s objection letters, in which plaintiff alleged that defendant did not have an objective basis for requesting an EUO, do not raise a triable issue of fact (see MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co., 77 Misc 3d 140[A], 2022 NY Slip Op 51384[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; NY Wellness Med., P.C. v Nationwide Mut. Ins. Co., 75 Misc 3d 126[A], 2022 NY Slip Op 50359[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; Bronx Chiropractic Care, P.C. v State Farm Ins., 2019 NY Slip Op 50423[U], *1-2; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As plaintiff failed to raise a triable issue of fact, 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.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C. (2025 NY Slip Op 07297)
| Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C. |
| 2025 NY Slip Op 07297 |
| Decided on December 24, 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. |
ANGELA G. IANNACCI, J.P.
PAUL WOOTEN
BARRY E. WARHIT
DONNA-MARIE E. GOLIA, JJ.
2023-06054
(Index No. 527962/22)
v
Atlantic Medical Care, P.C., etc., appellant.
Gary Tsirelman, P.C., Brooklyn, NY, 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 June 27, 2022, in which Atlantic Medical Care, P.C., as assignee of Destiny Dixon, cross-petitioned to confirm the award of the master arbitrator and for an award of reasonable attorneys’ fees, Atlantic Medical Care, P.C., appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated April 20, 2023. The order granted the petition to the extent of remanding the matter to arbitration for further proceedings as set forth therein, and, in effect, denied the cross-petition.
ORDERED that the order is reversed, on the law, with costs, the petition is denied, the cross-petition is granted, the award of the master arbitrator is confirmed, 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 appellant.
Atlantic Medical Care, P.C. (hereinafter the provider), is the assignee of a claim for no-fault benefits for treatment it rendered to Destiny Dixon after Dixon was involved in a car accident. After the petitioner, American Transit Insurance Company (hereinafter the insurer), denied the claim, the provider submitted the claim to arbitration. In an award dated April 18, 2022 (hereinafter the April 2022 award), the arbitrator awarded the provider the full amount of its claim. The insurer appealed, and in an award of a master arbitrator dated June 27, 2022 (hereinafter the master arbitrator’s award), the master arbitrator confirmed the award.
The insurer commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The provider cross-petitioned to confirm the master arbitrator’s award and for an award of reasonable attorneys’ fees. In an order dated April 20, 2023, the Supreme Court granted the petition to the extent of remanding the matter to arbitration for the consideration of the effect of certain executive orders issued in connection with the COVID-19 pandemic and, in effect, denied the cross-petition. The provider appeals.
“[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534). “A court reviewing the award [*2]of a master arbitrator is limited to the grounds set forth in CPLR article 75″ (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802; see 11 NYCRR 65-4.10[h]). Significantly, a master arbitrator’s determination is not subject to vacatur by the courts on the basis of an error of law, including, “‘the incorrect application of a rule of substantive law,'” unless the master arbitrator’s determination is irrational (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d at 802, quoting Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232; see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 534).
Here, regardless of any errors of law the arbitrator and master arbitrator made regarding burdens of proof, the master arbitrator’s determination to affirm the April 2022 award to the provider was rationally based on the conclusion that Dixon’s minor delay in providing the insurer with notice of the accident was reasonably justified because she was a passenger in the vehicle involved in the accident and, thus, was not making a claim to her own insurance company (see 11 NYCRR 65-3.5[l]). Because the master arbitrator’s affirmance of the April 2022 award had a rational basis, and “‘[i]t is not for the court to decide whether the master arbitrator erred in applying the applicable law,'” the petition to vacate the master arbitrator’s award should have been denied and the master arbitrator’s award confirmed (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d 649, 650 [alterations and internal quotation marks omitted], quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 535; see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d at 802; Matter of Singh v Allstate Ins. Co., 137 AD3d 1046, 1047; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 70 AD3d 1043, 1043-1044).
Further, the provider is entitled to an award of reasonable attorneys’ fees (see 11 NYCRR 65-4.10[j][4]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705). Accordingly, we remit the matter to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees to be awarded to the provider (see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705).
In light of our determination, we need not reach the parties’ remaining contentions.
IANNACCI, J.P., WOOTEN, WARHIT and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court