Reported in New York Official Reports at Matter of Fill Rx NY, Inc. v LM Gen. Ins. Co. (2025 NY Slip Op 04785)
| Matter of Fill Rx NY, Inc. v LM Gen. Ins. Co. |
| 2025 NY Slip Op 04785 |
| Decided on August 27, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on August 27, 2025
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
PAUL WOOTEN
CARL J. LANDICINO
JAMES P. MCCORMACK, JJ.
2024-02539
(Index No. 604708/23)
v
LM General Insurance Company, respondent.
Roman Kravchenko, Melville, NY, for appellant.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to vacate an award of a master arbitrator dated March 20, 2023, which confirmed an award of an arbitrator dated January 24, 2023, denying a claim for no-fault insurance benefits, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Conrad D. Singer, J.), dated January 25, 2024. The judgment, upon an order of the same court dated October 4, 2023, denying the petition, is in favor of the respondent and against the petitioner dismissing the proceeding.
ORDERED that the judgment is affirmed, without costs or disbursements.
On March 21, 2023, the petitioner, Fill Rx NY, Inc. (hereinafter Fill Rx), commenced this proceeding pursuant to CPLR article 75, inter alia, to vacate an award of a master arbitrator dated March 20, 2023 (hereinafter the March 2023 master arbitration award), confirming an arbitration award dated January 24, 2023 (hereinafter the January 2023 arbitration award), which, after a hearing, denied a claim by Fill Rx for no-fault benefits in the sum of $4,151.53 against the respondent, LM General Insurance Company (hereinafter LM General).
The January 2023 arbitration award arose out of a no-fault arbitration proceeding commenced by Fill Rx against LM General to recover the sum of $4,151.53 for pharmaceutical products Fill Rx provided to its assignor in connection with a motor vehicle accident in July 2021. The arbitrator denied Fill Rx’s claim in its entirety based on LM General’s contention that the limits of the no-fault coverage under its insurance policy had been exhausted.
Fill Rx appealed the January 2023 arbitration award to a master arbitrator, contending that the award was irrational, arbitrary and capricious, and incorrect as a matter of law. Thereafter, the master arbitrator issued the March 2023 master arbitration award, confirming the January 2023 arbitration award. By order dated October 4, 2023, the Supreme Court denied the petition, inter alia, to vacate the March 2023 master arbitration award. A judgment dated January 25, 2024, was entered upon the order in favor of LM General and against Fill Rx dismissing the proceeding.
“‘Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied'” (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d 649, 650, quoting Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017; see Matter of Singh v Allstate Ins. Co., 137 AD3d 1046, 1047). “‘It is not for [the court] to decide whether the [*2][master] arbitrator erred [in applying the applicable law]'” (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d at 650, quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 535).
Here, Fill Rx failed to demonstrate any ground for vacating the March 2023 master arbitration award. The determination of the master arbitrator confirming the January 2023 arbitration award had evidentiary support and a rational basis (see 11 NYCRR 65-4.10[a][2]; Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth., 167 AD3d 869, 870; Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245).
Fill Rx’s remaining contentions either need not be reached in light of our determination or are improperly raised for the first time on appeal.
DUFFY, J.P., WOOTEN, LANDICINO and MCCORMACK, JJ., concur.
ENTER:Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of Progressive Ins. Co. v Service (2025 NY Slip Op 04652)
| Matter of Progressive Ins. Co. v Service |
| 2025 NY Slip Op 04652 |
| Decided on August 13, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on August 13, 2025
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
WILLIAM G. FORD
JANICE A. TAYLOR
JAMES P. MCCORMACK, JJ.
2024-03500
(Index No. 714418/23)
v
Shante D. Service, respondent, et al., proposed additional respondents.
Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Amanda M. Zefi of counsel), for appellant.
Davidoff Law, P.C., New York, NY (Mark Peter Getzoni of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), dated March 7, 2024. The order, after a framed-issue hearing, denied that branch of the petition which was to permanently stay arbitration and, in effect, dismissed the proceeding.
ORDERED that the order is reversed, on the law, with costs, and that branch of the petition which was to permanently stay arbitration is granted.
On August 21, 2021, the respondent, Shante D. Service, allegedly was injured when a vehicle owned and operated by proposed additional respondent Artur Nazaryan, in which Service was a passenger, was struck by another vehicle while traveling on the Van Wyck Expressway. At the time of the accident, Nazaryan was working as a driver for Lyft, Inc. (hereinafter Lyft). Service was picked up in Queens and had intended to travel to Manhattan. Nazaryan’s vehicle was insured under a policy issued by Hereford Insurance Company, which contained supplementary uninsured motorist (hereinafter SUM) coverage. Lyft carried motor vehicle insurance with the petitioner, Progressive Insurance Company (hereinafter Progressive), and its policy also included SUM coverage.
Progressive disclaimed coverage for the accident. In July 2023, Service served Progressive with a demand for arbitration. Progressive then commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of Service’s claim. In an order dated March 7, 2024, made after a framed-issue hearing, the Supreme Court denied that branch of the petition which was to permanently stay arbitration and, in effect, dismissed the proceeding. Progressive appeals.
“An insurance policy is a written contract between an insurer and an insured and is based, in essence, on contract law” (American W. Home Ins. Co. v Gjonaj Realty & Mgt. Co., 192 AD3d 28, 38). “In determining an insurance coverage dispute, a court must first look to the language of the policy” (Holtzman v Connecticut Gen. Life Ins. Co., 213 AD3d 918, 919; see Consolidated [*2]Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 221). “As with any contract, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court” (White v Continental Cas. Co., 9 NY3d 264, 267 [citation omitted]).
Here, Service was not an “insured” under the subject policy. In order to qualify as an “insured” under the SUM endorsement, the accident had to have occurred while Nazaryan was operating a “TNC vehicle,” which is defined as a vehicle “used by a transportation network company driver” who “is providing a transportation network company prearranged service” originating within the state of New York. Further, the policy provided that a “prearranged trip” “does not include transportation provided through . . . use of a taxicab, livery, luxury limousine, or other for-hire vehicle, as defined in . . . [Administrative Code § 19-502 of the City of New York]” (emphasis added). Pursuant to Administrative Code § 19-502(g), a “for-hire vehicle” includes “a motor vehicle carrying passengers for hire in the city” (emphasis added). Since Nazaryan’s vehicle was being used to carry a passenger for hire within New York City at the time of the accident, it was being operated as a “for-hire vehicle,” rather than as a “TNC vehicle” (see Matter of Progressive Ins. Co. v Callahan, 232 AD3d 903, 905; Matter of Progressive Ins. Co. v Baby, 232 AD3d 902, 903). Thus, Service did not qualify as an “insured” under the terms of the policy.
Service’s remaining contentions are either without merit or not properly before this Court.
CHAMBERS, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.
ENTER:Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 51513(U))
[*1]| Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2025 NY Slip Op 51513(U) |
| Decided on August 8, 2025 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 8, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-70 K C
against
State Farm Mutual Automobile Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 12, 2024. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking to open its default and to compel plaintiff to accept defendant’s amended answer.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) as granted the branches of defendant’s motion seeking to open its default and to compel plaintiff to accept defendant’s amended answer.
Contrary to plaintiff’s contentions, we find that the Civil Court did not improvidently exercise its discretion in granting the branches of defendant’s motion seeking to open its default and to compel plaintiff to accept defendant’s amended answer (see Arroyo v Starrett City, Inc., 170 AD3d 929 [2019]; Lyubomirsky v Lubov Arulin, PLLC, 125 AD3d 614 [2015]).
Accordingly, the order, insofar as appealed from, is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: August 8, 2025Right Aid Med. Supply Corp. v New York City Tr. Auth. (2025 NY Slip Op 51514(U))
Reported in New York Official Reports at Right Aid Med. Supply Corp. v New York City Tr. Auth. (2025 NY Slip Op 51514(U))
[*1]| Right Aid Med. Supply Corp. v New York City Tr. Auth. |
| 2025 NY Slip Op 51514(U) [87 Misc 3d 128(A)] |
| Decided on August 8, 2025 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 8, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-487 K C
against
New York City Transit Authority, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Foley, Smith, O’Boyle & Weisman (Eric W. Ostrager and Anastasiya Nabatova of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), dated January 14, 2022. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross-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 (Rupert V. Barry, J.) dated January 14, 2022, which denied plaintiff’s motion for summary judgment and granted defendant’s cross-motion for summary judgment dismissing the complaint.
In support of its cross-motion for summary judgment dismissing the complaint on the ground of lack of coverage, defendant, a self-insurer, relied on the assignor’s sworn application for no-fault benefits (NF-2) and on a search of defendant’s own records. Together they demonstrated, prima facie, that none of defendant’s vehicles were involved in an accident with plaintiff’s assignor on the day in question (see Jesa Med. Supply, Inc. v NYC Tr. Auth., 38 Misc 3d 138[A], 2013 NY Slip Op 50188[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) and that plaintiff’s assignor was driving a vehicle which was not owned by defendant. In opposition, plaintiff failed to demonstrate the existence of a triable issue of fact. Consequently, defendant, a self-insurer, was entitled to summary judgment dismissing the complaint (see Insurance Law § 5103 [a] [1]; 11 NYCRR § 65-2.2 [a], [j] [3]; Complete Med. Care Svcs of NY, P.C. v N.Y.C. Tr. Auth., 49 Misc 3d 10 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Jesa Med. Supply, Inc., 2013 NY Slip Op 50188[U]).
In view of the foregoing, plaintiff’s remaining contentions lack merit.
Accordingly, the order is affirmed.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: August 8, 2025Masigla v MVAIC (2025 NY Slip Op 51515(U))
Reported in New York Official Reports at Masigla v MVAIC (2025 NY Slip Op 51515(U))
[*1]| Masigla v MVAIC |
| 2025 NY Slip Op 51515(U) [87 Misc 3d 128(A)] |
| Decided on August 8, 2025 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 8, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-597 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered August 16, 2023. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,186.72.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $4,186.72.
At the outset of the trial, the parties agreed that the sole issue for trial would be limited to whether plaintiff’s assignor was a “qualified person” for there to be coverage of plaintiff’s claims by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC).
Proof that a claimant is a resident of the State of New York who is not the owner of the uninsured motor vehicle involved in the accident is a condition precedent to the claimant being a “qualified person” (Insurance Law § 5202 [b]) and, thus, potentially eligible to be deemed to be a “covered person” (Insurance Law § 5221 [b] [2]) who would be entitled to recover no-fault benefits from MVAIC. Here, plaintiff did not establish that its assignor was not the owner of the uninsured vehicle he was driving when the accident occurred, as we reject plaintiff’s contention that the parties’ stipulation at trial did not express that the assignor had exclusive possession of the uninsured vehicle for more than 30 days at the time of the accident. Consequently, pursuant to Vehicle and Traffic Law § 128, plaintiff’s assignor was the “owner” of the uninsured vehicle.
In view of the foregoing, plaintiff failed to establish its prima facie case and, thus, the [*2]Civil Court should have dismissed the complaint (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]; Island Life Chiropractic, P.C. v MVAIC, 68 Misc 3d 131[A], 2020 NY Slip Op 50995[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Maiga Prods. Corp. v MVAIC, 68 Misc 3d 131[A], 2020 NY Slip Op 50993[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; see also Barillas v Rivera, 32 AD3d 872 [2006]).
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
TOUSSAINT, P.J. and MUNDY, J., concur.
OTTLEY, J, taking no part.
ENTER:Paul Kenny
Chief Clerk
Decision Date: August 8, 2025Matter of Liberty Mut. Ins. Co. v McCormack (2025 NY Slip Op 04571)
Reported in New York Official Reports at Matter of Liberty Mut. Ins. Co. v McCormack (2025 NY Slip Op 04571)
| Matter of Liberty Mut. Ins. Co. v McCormack |
| 2025 NY Slip Op 04571 |
| Decided on August 6, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on August 6, 2025
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
PAUL WOOTEN
CARL J. LANDICINO
JAMES P. MCCORMACK, JJ.
2023-04957
(Index No. 517925/22)
v
Kerio McCormack, appellant.
Mallilo & Grossman, Flushing, NY (Stephen M. Grossman of counsel), for appellant.
Gilbert, McGinnis & Liferiedge (Mauro Lilling Naparty LLP, Woodbury, NY [Matthew W. Naparty, Margaret E. Greco, and Glenn A. Kaminska], of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for supplemental uninsured motorist benefits, Kerio McCormack appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated April 18, 2023. The order granted that branch of the petition which was to permanently stay arbitration and permanently stayed arbitration.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a framed-issue hearing to be conducted in accordance herewith, and a new determination thereafter of that branch of the petition which was to permanently stay arbitration.
In June 2022, the petitioner, Liberty Mutual Insurance Company (hereinafter Liberty Mutual), commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim of Kerio McCormack for supplemental uninsured motorist benefits (hereinafter SUM), on the ground that McCormack did not qualify as an insured under the SUM endorsement of the insurance policy at issue. McCormack opposed. In an order dated April 18, 2023, the Supreme Court granted that branch of the petition and permanently stayed arbitration. McCormack appeals. We reverse.
“The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay” (Matter of American Protection Ins. Co. v DeFalco, 61 AD3d 970, 972 [internal quotation marks omitted]). “Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing” (Matter of Merchants Preferred Ins. Co. v Waldo, 125 AD3d 864, 865). “Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue” (Matter of Hertz Corp. v Holmes, 106 AD3d 1001, 1003; see Matter of Government Empls. Ins. Co. v Tucci, 157 AD3d 679, 680).
Here, Liberty Mutual presented evidence that McCormack did not qualify as an insured for SUM coverage. In opposition, however, McCormack demonstrated the existence of a triable issue of fact as to whether he was occupying a vehicle insured by Liberty Mutual at the time of the collision at issue and therefore would qualify as an insured (see Matter of American Protection Ins. Co. v DeFalco, 61 AD3d at 972).
Accordingly, the Supreme Court should not have granted that branch of Liberty Mutual’s petition which was to permanently stay arbitration without first conducting a framed-issue hearing to determine whether McCormack was occupying the insured vehicle such that he would constitute an insured as that term is defined in the SUM endorsement of the insurance policy at issue.
In light of our determination, McCormack’s remaining contention need not be reached.
DUFFY, J.P., WOOTEN, LANDICINO and MCCORMACK, JJ., concur.
ENTER:Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Shamrock Med., P.C. v Personal Serv. Ins. Co. (2025 NY Slip Op 51175(U))
[*1]| Shamrock Med., P.C. v Personal Serv. Ins. Co. |
| 2025 NY Slip Op 51175(U) |
| Decided on July 18, 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 July 18, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-858 K C
against
Personal Service Insurance Company, Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered June 4, 2024. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.
ORDERED that the appeal is dismissed.
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 (Edward H. King, J.) entered June 4, 2024 as granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.
No appeal lies as of right from an order setting a matter down for a traverse hearing (see CCA 1702 [a] [2]; State Farm Mut. Auto. Ins. Co. v Omezie, 54 Misc 3d 136[A], 2017 NY Slip Op 50110[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Wheeler v McCreight, 34 Misc 3d 144[A], 2012 NY Slip Op 50143[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Citibank, N.A. v S & J Inzlicht, Inc., 8 Misc 3d 134[A], 2005 NY Slip Op 51174[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005]; see also Frost v Halvorsen, 100 AD2d 608 [1984]), and we decline to grant leave to appeal therefrom.
Accordingly, the appeal is dismissed.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 18, 2025LVOV Acupuncture, P.C. v Personal Serv. Ins. Co. (2025 NY Slip Op 51176(U))
Reported in New York Official Reports at LVOV Acupuncture, P.C. v Personal Serv. Ins. Co. (2025 NY Slip Op 51176(U))
[*1]| LVOV Acupuncture, P.C. v Personal Serv. Ins. Co. |
| 2025 NY Slip Op 51176(U) |
| Decided on July 18, 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 July 18, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-879 K C
against
Personal Service Insurance Company, Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered June 4, 2024. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.
ORDERED that the appeal is dismissed.
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 (Edward H. King, J.) entered June 4, 2024 as granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.
For the reasons stated in Shamrock Med., P.C., as Assignee of Rexford Bishop v Personal Serv. Ins. Co. (___ Misc 3d ___, 2025 NY Slip Op _____ [appeal No. 2024-858 K C], decided herewith), the appeal is dismissed.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: July 18, 2025Hand By Hand PT, P.C. v Personal Serv. Ins. Co. (2025 NY Slip Op 51177(U))
Reported in New York Official Reports at Hand By Hand PT, P.C. v Personal Serv. Ins. Co. (2025 NY Slip Op 51177(U))
[*1]| Hand By Hand PT, P.C. v Personal Serv. Ins. Co. |
| 2025 NY Slip Op 51177(U) |
| Decided on July 18, 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 July 18, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-880 K C
against
Personal Service Insurance Company, Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered June 4, 2024. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.
ORDERED that the appeal is dismissed.
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 (Edward H. King, J.) entered June 4, 2024 as granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.
For the reasons stated in Shamrock Med., P.C., as Assignee of Rexford Bishop v Personal Serv. Ins. Co. (___ Misc 3d ___, 2025 NY Slip Op _____ [appeal No. 2024-858 K C], decided herewith), the appeal is dismissed.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 18, 2025GAO Acupuncture, P.C. v MVAIC (2025 NY Slip Op 51173(U))
Reported in New York Official Reports at GAO Acupuncture, P.C. v MVAIC (2025 NY Slip Op 51173(U))
[*1]| GAO Acupuncture, P.C. v MVAIC |
| 2025 NY Slip Op 51173(U) [86 Misc 3d 135(A)] |
| Decided on July 18, 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 July 18, 2025
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-501 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.
Appeal from an amended order of the Civil Court of the City of New York, Kings County (Delsia G. Marshall, J.), entered November 25, 2024. The amended order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the amended 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 Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals, as limited by the brief, from so much of an amended order of the Civil Court (Delsia G. Marshall, J.) entered November 25, 2024 as denied defendant’s motion for summary judgment dismissing the complaint.
Since plaintiff’s assignor was aware of the identity of the owner of the vehicle in which plaintiff’s assignor was a passenger at the time of the accident, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from defendant (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Compas Med., P.C. v MVAIC, 42 Misc 3d 150[A], 2014 NY Slip Op 50414[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see BLR Chiropractic, P.C. v MVAIC, 33 Misc 3d 131[A], 2011 NY Slip Op 51878[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also BLR Chiropractic, P.C. v MVAIC, 36 Misc 3d 129[A], 2011 NY Slip Op 52517[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]) and, thus, defendant’s motion for summary judgment [*2]should have been granted.
In light of the foregoing, we reach no other issue.
Accordingly, the amended order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
BUGGS and OTTLEY, JJ., concur.
TOUSSAINT, P.J., taking no part.
ENTER:Paul Kenny
Chief Clerk
Decision Date: July 18, 2025