Reported in New York Official Reports at GC Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51982(U))
[*1]| GC Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2025 NY Slip Op 51982(U) |
| Decided on December 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, JOANNE D. QUIÑONES, JJ
2024-1169 K C
against
State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, David Paul Horowitz and Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), dated May 15, 2024. The order, insofar as appealed from, upon granting the branch of defendant’s motion seeking leave to renew its prior motion for summary judgment dismissing the complaint, adhered to a prior determination of that court in an order dated October 18, 2022 denying the motion.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and, upon renewal, 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 moved for summary judgment on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). As relevant here, by order dated October 18, 2022, the Civil Court (Nicholas W. Moyne, J.) found, in effect pursuant to CPLR 3212 (g), that defendant had established timely and proper mailing of the EUO scheduling letters and denials, but denied defendant summary judgment, finding that the affirmation of defendant’s attorney attesting to plaintiff’s failure to appear for the EUOs was insufficient due to the “significant lapse in time” between the alleged no-shows and execution of the affirmation.
Defendant subsequently moved for leave to renew its motion, arguing that, under 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]), defendant’s attorney’s affirmation was sufficient to demonstrate plaintiff’s failure to appear. Defendant appeals from so much of an order of the Civil Court (Nicholas W. Moyne, J.) dated May 15, 2024 as, upon granting the branch of defendant’s motion seeking leave to renew, adhered to its prior determination denying defendant’s [*2]motion for summary judgment, finding that the attorney’s affirmation was “on its face unworthy of belief” as it was executed approximately three years after the purported EUO no-shows.
Contrary to the finding of the Civil Court, defendant’s attorney’s affirmation, “on its face, . . . was not unworthy of belief” (SVP Med Supply, Inc., 2022 NY Slip Op 50931[U], *2; see Brefni Chiropractic Diagnostics, P.C. v State Farm Mut. Auto. Ins. Co., 87 Misc 3d 128[A], 2025 NY Slip Op 51518[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; 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]), and was sufficient to demonstrate that plaintiff failed to appear for the scheduled EUOs (see SVP Med Supply, Inc., 2022 NY Slip Op 50931[U], *1-2; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; Brefni Chiropractic Diagnostics, P.C., 2025 NY Slip Op 51518[U]; MAZ Chiropractic, P.C., 2025 NY Slip Op 50492[U]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
To the extent that plaintiff purports to challenge on appeal the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, such challenge lacks merit.
Accordingly, the order, insofar as appealed from, is reversed and, upon renewal, defendant’s motion for summary judgment dismissing the complaint is granted.
TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.
ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025Harvey Family Chiropractic, Physical Therapy & Acupuncture, PLLC v MVAIC (2025 NY Slip Op 51971(U))
Reported in New York Official Reports at Harvey Family Chiropractic, Physical Therapy & Acupuncture, PLLC v MVAIC (2025 NY Slip Op 51971(U))
[*1]| Harvey Family Chiropractic, Physical Therapy & Acupuncture, PLLC v MVAIC |
| 2025 NY Slip Op 51971(U) [87 Misc 3d 134(A)] |
| Decided on December 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 December 5, 2025
PRESENT: : LISA S. OTTLEY, J.P., WAVNY TOUSSAINT, MARINA CORA MUNDY, JJ
2024-500 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Angelique Evangelista and David Gierasch of counsel), for appellant. Law Offices of Christopher McCollum (Christopher McCollum 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 October 31, 2023. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and found, in effect pursuant to CPLR 3212 (g), that plaintiff had established timely submission of the claims at issue.
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, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court (Sandra E. Roper, J.) entered October 31, 2023 as denied defendant’s motion for summary judgment dismissing the complaint and found, in effect pursuant to CPLR 3212 (g), that plaintiff had established timely submission of the claims at issue.
“The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is a condition precedent to the right to apply for payment from [MVAIC]. Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a covered person, within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC” (Avicenna Med. Arts, P.L.L.C. v MVAIC, 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [internal quotation marks and citations omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). Here, MVAIC failed to establish that it had not received such an affidavit. Thus, MVAIC failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint on the ground that plaintiff had failed to comply with a condition precedent to coverage (see Insurance Law §§ 5202, 5208; cf. Lantsman Acupuncture, P.C. v MVAIC, 75 Misc 3d 137[A], 2022 NY Slip Op 50568[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).
In addition, the 30-day period within which MVAIC may timely deny a claim or request verification begins to run upon receipt of the claim without regard to whether MVAIC has determined that plaintiff’s assignor is a covered person within the meaning of Insurance Law § 5221 (b) (2) (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]; Active Care Med. Supply Corp. v MVAIC, 66 Misc 3d 128[A], 2019 NY Slip Op 52045[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As MVAIC failed to establish that it is not precluded from interposing its defense that plaintiff’s assignor failed to appear for duly scheduled examinations under oath, it was not entitled to summary judgment dismissing the complaint on that ground.
Defendant also failed to establish, as a matter of law, that plaintiff’s claims were improperly billed or were in excess of the amounts permitted by the workers’ compensation fee schedule.
Finally, in its motion, defendant admits receipt of plaintiff’s claims within 45 days of the dates of service. Accordingly, there is no basis to strike the finding, in effect pursuant to CPLR 3212 (g), that plaintiff established timely submission of the bills. It is noted that the order does not find that plaintiff established any other element of its prima facie burden at trial (see e.g. Avicenna Med. Arts, P.L.L.C., 2016 NY Slip Op 51535[U]), or otherwise limit the issues for trial.
Accordingly, the order, insofar as appealed from, is affirmed.
OTTLEY, J.P., TOUSSAINT and MUNDY, JJ., concur.
ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025Matter of American Tr. Ins. Co. v Integrated Medicine of S.I., P.C. (2025 NY Slip Op 06703)
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Integrated Medicine of S.I., P.C. (2025 NY Slip Op 06703)
| Matter of American Tr. Ins. Co. v Integrated Medicine of S.I., P.C. |
| 2025 NY Slip Op 06703 |
| Decided on December 3, 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. |
Decided on December 3, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.
2024-03961
(Index No. 500128/23)
v
Integrated Medicine of S.I., P.C., 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 a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated November 1, 2022, Integrated Medicine of S.I., P.C., appeals from a judgment of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated July 18, 2023. The judgment, insofar as appealed from, upon an order of the same court dated June 2, 2023, inter alia, granting that branch of the cross-petition of Integrated Medicine of S.I., P.C., which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee to the extent of awarding it an additional attorney’s fee in the sum of $220, awarded Integrated Medicine of S.I., P.C., an additional attorney’s fee in the sum of only $220.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Integrated Medicine of S.I., P.C. (hereinafter Integrated Medicine), pursuant to CPLR article 75 to vacate a master arbitration award dated November 1, 2022, affirming an arbitration award entered in favor of Integrated Medicine. Integrated Medicine cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee. In an order dated June 2, 2023, the Supreme Court, inter alia, denied the petition, confirmed the arbitration award, and granted that branch of the cross-petition to the extent of awarding Integrated Medicine an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220. Thereafter, on July 18, 2023, the court, upon the order, issued a judgment, among other things, awarding Integrated Medicine an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220. Integrated Medicine 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 the limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or confirm a master arbitration award, and, in such instances, “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting [*2]Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to the contention of Integrated Medicine, the Supreme Court acted within its discretion in awarding Integrated Medicine an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Integrated Medicine failed to submit an affirmation or affidavit in support of its cross-petition, inter alia, describing the nature of the work performed and the amount of time expended on the matter, it was within the court’s discretion to determine a reasonable amount of an attorney’s fee (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, Integrated Medicine failed to request a hearing on the issue of an award of an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) (see Sieratzki v Sieratzki, 8 AD3d 552, 554). Under these circumstances, and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4).
Integrated Medicine’s remaining contentions are either academic or without merit.
DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.
ENTER:Darrell M. Joseph
Clerk of the Court
Matter of American Tr. Ins. Co. v YD Med. Servs., P.C. (2025 NY Slip Op 06704)Reported in New York Official Reports at Matter of American Tr. Ins. Co. v YD Med. Servs., P.C. (2025 NY Slip Op 06704)
| Matter of American Tr. Ins. Co. v YD Med. Servs., P.C. |
| 2025 NY Slip Op 06704 |
| Decided on December 3, 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. |
Decided on December 3, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.
2024-03959
(Index No. 535310/22)
v
YD Medical Services, P.C., 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 a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated September 29, 2022, YD Medical Services, P.C., appeals from a judgment of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated July 31, 2023. The judgment, insofar as appealed from, upon an order of the same court dated June 2, 2023, inter alia, granting that branch of the cross-petition of YD Medical Services, P.C., which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee to the extent of awarding it an additional attorney’s fee in the sum of $220, awarded YD Medical Services, P.C., an additional attorney’s fee in the sum of only $220.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against YD Medical Services, P.C. (hereinafter YD Medical), pursuant to CPLR article 75 to vacate a master arbitration award dated September 29, 2022, affirming an arbitration award entered in favor of YD Medical. YD Medical cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee. In an order dated June 2, 2023, the Supreme Court, inter alia, denied the petition, confirmed the arbitration award, and granted that branch of the cross-petition to the extent of awarding YD Medical an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220. Thereafter, on July 31, 2023, the court, upon the order, issued a judgment, among other things, awarding YD Medical an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220. YD Medical 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 the limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or confirm a master arbitration award, and, in such instances, “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within [*2]the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to the contention of YD Medical, the Supreme Court acted within its discretion in awarding YD Medical an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since YD Medical failed to submit an affirmation or affidavit in support of its cross-petition, inter alia, describing the nature of the work performed and the amount of time expended on the matter, it was within the court’s discretion to determine a reasonable amount of an attorney’s fee (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, YD Medical failed to request a hearing on the issue of an award of an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) (see Sieratzki v Sieratzki, 8 AD3d 552, 554). Under these circumstances, and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4).
YD Medical’s remaining contentions are either academic or without merit.
DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.
ENTER:Darrell M. Joseph
Clerk of the Court
Matter of American Tr. Ins. Co. v Jong Won Yom (2025 NY Slip Op 06705)Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Jong Won Yom (2025 NY Slip Op 06705)
| Matter of American Tr. Ins. Co. v Jong Won Yom |
| 2025 NY Slip Op 06705 |
| Decided on December 3, 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. |
Decided on December 3, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.
2023-12114
(Index No. 532051/22)
v
Jong Won Yom, 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 a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated August 26, 2022, Jong Won Yom appeals from a judgment of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated July 18, 2023. The judgment, insofar as appealed from, upon an order of the same court dated June 2, 2023, inter alia, granting that branch of the cross-petition of Jong Won Yom which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee to the extent of awarding Jong Won Yom an additional attorney’s fee in the sum of $220, awarded Jong Won Yom an additional attorney’s fee in the sum of only $220.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Jong Won Yom pursuant to CPLR article 75 to vacate a master arbitration award dated August 26, 2022, affirming an arbitration award entered in favor of Yom. Yom cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee. In an order dated June 2, 2023, the Supreme Court, inter alia, denied the petition, confirmed the arbitration award, and granted that branch of the cross-petition to the extent of awarding Yom an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220. Thereafter, on July 18, 2023, the court, upon the order, issued a judgment, among other things, awarding Yom an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220. Yom 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 the limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or confirm a master arbitration award, and, in such instances, “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to Yom’s contention, the Supreme Court acted within its discretion in awarding Yom an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Yom failed to submit an affirmation or affidavit in support of the cross-petition, inter alia, describing the nature of the work performed and the amount of time expended on the matter, it was within the court’s discretion to determine a reasonable amount of an attorney’s fee (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, Yom failed to request a hearing on the issue of an award of an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) (see Sieratzki v Sieratzki, 8 AD3d 552, 554). Under these circumstances, and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4).
Yom’s remaining contentions are either academic or without merit.
DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.
ENTER:Darrell M. Joseph
Clerk of the Court
Matter of American Tr. Ins. Co. v Jong Won Yom (2025 NY Slip Op 06706)Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Jong Won Yom (2025 NY Slip Op 06706)
| Matter of American Tr. Ins. Co. v Jong Won Yom |
| 2025 NY Slip Op 06706 |
| Decided on December 3, 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. |
Decided on December 3, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.
2024-03958
(Index No. 532032/22)
v
Jong Won Yom, 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 a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated August 25, 2022, Jong Won Yom appeals from an amended judgment of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated July 19, 2023. The amended judgment, insofar as appealed from, upon an order of the same court dated May 26, 2023, inter alia, granting that branch of the cross-petition of Jong Won Yom which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney’s fee to the extent of awarding Jong Won Yom an additional attorney’s fee in the sum of $600, awarded Jong Won Yom an additional attorney’s fee in the sum of only $600.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Jong Won Yom pursuant to CPLR article 75 to vacate a master arbitration award dated August 25, 2022, affirming an arbitration award entered in favor of Yom. Yom cross-petitioned, among other things, to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated May 26, 2023, the Supreme Court, inter alia, denied the petition, confirmed the arbitration award, and granted that branch of the cross-petition to the extent of awarding Yom an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $600. Thereafter, on July 19, 2023, the court, upon the order, issued an amended judgment, among other things, awarding Yom an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $600. Yom 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 the limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or confirm a master arbitration award, and, in such instances, “shall be fixed by the court adjudicating the matter” (11 NYCRR 65-4.10[j][4]; see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783).
“‘The determination of what constitutes a reasonable attorney’s fee is a matter within the sound discretion of the Supreme Court'” (Hershfield v Davidoff, 233 AD3d 923, 924, quoting Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d 1035, 1035-1036; see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840). “The attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community” (Lancer Indem. Co. v JKH Realty Group, LLC, 127 AD3d at 1036; see Hershfield v Davidoff, 233 AD3d at 924).
Contrary to Yom’s contention, the Supreme Court acted within its discretion in awarding Yom an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $600 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Yom failed to submit an affirmation or affidavit in support of the cross-petition, inter alia, describing the nature of the work performed and the amount of time expended on the matter, it was within the court’s discretion to determine a reasonable amount of an attorney’s fee (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, Yom failed to request a hearing on the issue of an award of an additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4) (see Sieratzki v Sieratzki, 8 AD3d 552, 554). Under these circumstances, and given the legislative intent of the no-fault insurance law “to promptly resolve no-fault reimbursements, ‘reduce the burden on the courts and to provide substantial premium savings to New York motorists'” (American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1, 9, quoting Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860), the court was not required to conduct a hearing prior to awarding the additional attorney’s fee pursuant to 11 NYCRR 65-4.10(j)(4).
Yom’s remaining contentions are either academic or without merit.
DUFFY, J.P., MILLER, WARHIT and LOVE, JJ., concur.
ENTER:Darrell M. Joseph
Clerk of the Court
Amvrosiatos v Hanover Ins. Group (2025 NY Slip Op 06683)Reported in New York Official Reports at Amvrosiatos v Hanover Ins. Group (2025 NY Slip Op 06683)
| Amvrosiatos v Hanover Ins. Group |
| 2025 NYSlipOp 06683 [244 AD3d 667] |
| December 3, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Angelo Amvrosiatos, Appellant, v Hanover Insurance Group, Respondent. |
Elefterakis, Elefterakis & Panek, New York, NY (Oliver R. Tobias of counsel), for appellant.
McCarthy & Associates, Melville, NY (Patrick J. Morale of counsel), for respondent.
HEADNOTES
Disclosure – Protective Order – Deposition of Insurance Claims Adjuster – Narrowly Tailored, Relevant, and Reasonably Related to Claims
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Phillip Hom, J.), entered October 12, 2023. The order granted the defendant’s motion pursuant to CPLR 3103 for a protective order.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs, and the defendant’s motion pursuant to CPLR 3103 for a protective order is denied.
The plaintiff allegedly sustained injuries when, as a pedestrian, he was struck by a vehicle. At the time of the accident, the plaintiff had automobile insurance pursuant to a policy issued by the defendant, which included a supplementary uninsured/underinsured motorist (hereinafter SUM) endorsement. After settling with the tortfeasor driver for the full limit of the driver’s insurance policy with the defendant’s consent, the plaintiff submitted a claim for SUM benefits to the defendant. The defendant denied the claim. The plaintiff commenced this action, inter alia, to recover damages for breach of contract. Following the plaintiff’s deposition, the defendant moved pursuant to CPLR 3103 for a protective order directing that a representative of the defendant is not obligated to appear for a deposition. The plaintiff opposed. In an order entered October 12, 2023, the Supreme Court granted the defendant’s motion. The plaintiff appeals.
“There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” (id. § 3101 [a]; see Espinoza v Tejeda, 228 AD3d 623, 624 [2024]). “The words, ‘material and necessary’, are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). “It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy” (Whitnum v Plastic & Reconstructive Surgery, P.C., 142 AD3d 495, 496 [2016] [internal quotation marks omitted]).
“An insurance carrier has a duty to ‘investigate in good faith and pay covered claims’ ” (Gutierrez v Government Empls. Ins. Co., 136 AD3d 975, 976 [2016], quoting Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 195 [2008]). “The implied covenant of good faith and fair dealing is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the contract, even if the terms of the contract do not explicitly prohibit such conduct” (id.).
Here, the plaintiff contends that the deposition of the claims adjuster who investigated the plaintiff’s claims would reveal evidence regarding the nature, extent, timing, and adequacy of the defendant’s investigation. Thus, the plaintiff sufficiently asserted that deposing the claims adjuster may result in the disclosure of relevant evidence and is reasonably calculated to lead to the discovery of information bearing on the plaintiff’s claims (see Smith-Percival v MTA Bus Co., 232 AD3d 928, 929-930 [2024]).
Further, the plaintiff’s request for a deposition was not “palpably improper” because the plaintiff narrowly tailored his deposition request to a specific employee regarding a specific investigation, concerning specific claims against the defendant (Ural v Encompass Ins. Co. of Am., 158 AD3d 845, 847 [2018]). Accordingly, the defendant’s motion pursuant to CPLR 3103 for a protective order should have been denied.
The plaintiff’s remaining contention need not be reached in light of our determination. Connolly, J.P., Ford, Voutsinas and Landicino, JJ., concur.
Government Empls. Ins. Co. v Picone (2025 NY Slip Op 06604)Reported in New York Official Reports at Government Empls. Ins. Co. v Picone (2025 NY Slip Op 06604)
| Government Empls. Ins. Co. v Picone |
| 2025 NY Slip Op 06604 |
| Decided on November 26, 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. |
Decided on November 26, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
HELEN VOUTSINAS
PHILLIP HOM, JJ.
2022-08594
(Index No. 605038/17)
v
Matthew Picone, appellant.
Palmieri Law, P.C. (Edelstein & Grossman, New York, NY [Jonathan I. Edelstein], of counsel), for appellant.
Short & Billy, P.C., New York, NY (Andrew S. Midgett and Skip Short 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 a judgment of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered March 24, 2022. The judgment, upon an order of the same court entered March 2, 2022, denying the defendant’s motion for summary judgment dismissing the complaint and on his counterclaims and granting that branch of the plaintiff’s cross-motion which was, in effect, for summary judgment on the complaint and dismissing the counterclaims, dismissed the counterclaims and declared that the plaintiff is not liable to the defendant for the payment of any lost wages claimed by the defendant.
ORDERED that the judgment is affirmed, with costs.
The plaintiff commenced this action pursuant to Insurance Law § 5106(c) for a de novo review of an arbitration award in favor of the defendant and against it with respect to the defendant’s claim for no-fault lost wage benefits in connection with an insurance policy obtained by the defendant through the plaintiff. The defendant interposed counterclaims, inter alia, alleging breach of contract and unfair claims settlement practices.
The defendant moved for summary judgment dismissing the complaint and on his counterclaims. The plaintiff cross-moved, inter alia, in effect, for summary judgment on the complaint and dismissing the counterclaims. In an order entered March 2, 2022, the Supreme Court
denied the defendant’s motion and granted that branch of the plaintiff’s cross-motion. Thereafter, a judgment was entered dismissing the counterclaims and declaring that the plaintiff is not liable to the defendant for the payment of any lost wages claimed by the defendant.
An eligible individual who makes a claim under the No-Fault Law must be compensated for “[l]oss of earnings from work which the person would have performed had he [or she] not been injured” (Insurance Law § 5102[a][2]; see Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 458; Ross v GEICO Indem. Co., 172 AD3d 1834, 1835-1836).
In calculating lost wage benefits, 11 NYCRR 65-3.16(b)(6) provides that “if the applicant, while disabled, is discharged from employment solely because of inability to work due to the injury, benefits for basic economic loss shall continue at the same level while the disability continues.” The statutory and regulatory provisions that govern the recovery of lost earnings “contemplate[ ] a degree of certainty in the calculation of lost wages” (Sharpe v Allstate Ins. Co., 14 [*2]AD3d 774, 775). The Legislature intended “to compensate the accident victim for the earnings he or she would have, in fact, realized” (Kurciscs v Merchants Mut. Ins. Co., 49 NY2d at 457; see 11 NYCRR 65-3.16[b][3]).
Here, the plaintiff demonstrated, prima facie, its entitlement to judgment as a matter of law on the defendant’s claim for lost wages (see Buckham v 322 Equity, LLC, 229 AD3d 669, 675; Gore v Cardany, 167 AD3d 851, 852). In support of its cross-motion, the plaintiff submitted, inter alia, a report by a certified public accountant, the defendant’s personal and business tax returns, the defendant’s bankruptcy petition, and a transcript of the defendant’s deposition testimony. The tax returns were inconsistent with each other and were also inconsistent with the facts set forth in the bankruptcy petition. Moreover, at his deposition, the defendant failed to explain the discrepancies and also failed to produce the underlying records of his business documenting his income. In opposition to the cross-motion, the defendant failed to raise a triable issue of fact.
Under these circumstances, the Supreme Court properly entered a judgment declaring that the plaintiff is not liable to the defendant for the payment of any lost wages claimed by the defendant and dismissing the breach of contract counterclaim (see Sharpe v Allstate Ins. Co., 14 AD3d at 775; Wolf v Holyoke Mut. Ins. Co., 3 AD3d 660, 661-662).
Contrary to the defendant’s contention, the Supreme Court also properly granted summary judgment dismissing his counterclaim alleging unfair claims settlement practices. The relevant statute, Insurance Law § 2601, does not create a private right of action (see Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 614; Lobello v New York Cent. Mut. Fire Ins. Co., 152 AD3d 1206, 1207-1208).
The plaintiff’s remaining contention is not properly before this Court.
The defendant’s remaining contention is without merit.
DUFFY, J.P., MILLER, VOUTSINAS and HOM, JJ., concur.
ENTER:Darrell M. Joseph
Clerk of the Court
New York Ctr. for Specialty Surgery v Infinity Ins. Co. (2025 NY Slip Op 51832(U))Reported in New York Official Reports at New York Ctr. for Specialty Surgery v Infinity Ins. Co. (2025 NY Slip Op 51832(U))
[*1]| New York Ctr. for Specialty Surgery v Infinity Ins. Co. |
| 2025 NY Slip Op 51832(U) |
| Decided on November 7, 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 November 7, 2025
PRESENT: : LISA S. OTTLEY, J.P., WAVNY TOUSSAINT, MARINA CORA MUNDY, JJ
2024-1137 K C
against
Infinity Insurance Company, Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Law Offices of Christopher McCollum (Christopher McCollum 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 June 28, 2024. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s motion which had sought summary judgment dismissing the complaint on the ground that defendant did not receive the subject claims.
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, defendant appeals from so much of an order of the Civil Court (Sandra E. Roper, J.) dated June 28, 2024 as denied the branch of defendant’s motion which had sought summary judgment dismissing the complaint on the ground that defendant had not received the subject claims.
The affidavit submitted by defendant’s litigation specialist was insufficient to establish, prima facie, that defendant had not received the subject claims, as it failed to establish defendant’s practices and procedures for receiving and processing incoming mail (see Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also Bright Med. Supply Co. v Nationwide Ins. Co. of Am., 58 Misc 3d 126[A], 2017 NY Slip Op 51700[U] [App Term, 1st Dept 2017]; SMB Med. P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50719[U] [App Term, 1st Dept 2015]; cf. Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]; Rockland Family Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 76 Misc 3d 126[A], 2022 NY Slip Op 50766[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).
Accordingly, the order, insofar as appealed from, is affirmed.
OTTLEY, J.P., TOUSSAINT and MUNDY, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 7, 2025John A. Nasrinpay 2 v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51833(U))
Reported in New York Official Reports at John A. Nasrinpay 2 v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51833(U))
[*1]| John A. Nasrinpay 2 v State Farm Mut. Auto. Ins. Co. |
| 2025 NY Slip Op 51833(U) |
| Decided on November 7, 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 November 7, 2025
PRESENT: : LISA S. OTTLEY, J.P., WAVNY TOUSSAINT, MARINA CORA MUNDY, JJ
2025-16 K C
against
State Farm Mutual Automobile Ins. 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 (Odessa Kennedy, J.), dated September 9, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.
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 (Odessa Kennedy, J.) dated September 9, 2024 granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross-motion for summary judgment.
Contrary to plaintiff’s contention, the affidavits of defendant’s employees were sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co., 78 Misc 3d 133[A], 2023 NY Slip Op 50442[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). In view of the foregoing, plaintiff has demonstrated no basis to disturb the order granting defendant’s motion and denying plaintiff’s cross-motion.
Accordingly, the order is affirmed.
OTTLEY, J.P., TOUSSAINT and MUNDY, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 7, 2025