Allstate Ins. Co. v Kapeleris (2025 NY Slip Op 00839)

Reported in New York Official Reports at Allstate Ins. Co. v Kapeleris (2025 NY Slip Op 00839)

Allstate Ins. Co. v Kapeleris

2025 NY Slip Op 00839

Decided on February 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 February 13, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
HELEN VOUTSINAS
CARL J. LANDICINO
JAMES P. MCCORMACK, JJ.
2021-09241
(Index No. 605068/15)

The Law Office of Jason Tenenbaum, P.C., Melville, NY, for appellant.

Law Office of Peter C. Merani, P.C., New York, NY (Adam J. Waknine 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 (Diccia T. Pineda-Kirwan, J.), dated December 10, 2021. The judgment, insofar as appealed from, upon a decision of the same court dated November 19, 2021, made after a nonjury trial, is in favor of the defendant and against the plaintiff on the defendant’s counterclaim in the principal sum of only $25,109.88 and awarding the defendant attorneys’ fees in the sum of only $76,856.67.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The facts underlying this action are summarized in our decision and order on a prior appeal (see Allstate Ins. Co. v Kapeleris, 183 AD3d 626). After a nonjury trial, a judgment dated December 10, 2021, was entered in favor of the defendant and against the plaintiff on the defendant’s counterclaim for no-fault insurance benefits in the principal sum of $25,109.88 and awarding the defendant attorneys’ fees in the sum of $76,856.67. The defendant appeals, contending that the awards are inadequate.

“‘In reviewing a trial court’s findings of fact following a nonjury trial, this Court’s authority is as broad as that of the trial court and includes the power to render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses'” (Gelaj v Gelaj, 216 AD3d 1082, 1083, quoting O’Brien v Dalessandro, 43 AD3d 1123, 1123; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499).

The evidence in the record establishes that the amount of the Supreme Court’s award on the defendant’s counterclaim for no-fault insurance benefits in the principal sum of $25,109.88 was proper. Since the defendant, after being billed directly by her medical providers, reached a settlement with them and paid them the total sum of $25,109.88 to satisfy the medical bills, she incurred reasonable expenses for medical treatment in the total sum of $25,109.88 and was not responsible for the original amount billed to her (see Allstate Ins. Co. v Kapeleris, 183 AD3d at 627-629; cf. Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086).

Further, the award of attorneys’ fees in the sum of $76,856.67 was a provident exercise of discretion (see Insurance Law § 5106[a]; Ins Dept Regs [11 NYCRR] § 65-4.10[j][4]).

BRATHWAITE NELSON, J.P., VOUTSINAS, LANDICINO and MCCORMACK, JJ., concur.

2021-09241 DECISION & ORDER ON MOTION

Allstate Insurance Company, respondent,

v Stacey Kapeleris, appellant.

(Index No. 605068/15)

Appeal from a judgment of the Supreme Court, Nassau County, dated January 10, 2021. Motion by the appellant to strike stated portions of the respondent’s brief on the ground that they refer to matter dehors the record. By decision and order on motion of this Court dated March 3, 2023, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is denied.

BRATHWAITE NELSON, J.P., VOUTSINAS, LANDICINO and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Trapezius Diagnostic Chiropractic, P.C. v Adirondack Ins. Exch. (2025 NY Slip Op 50173(U))

Reported in New York Official Reports at Trapezius Diagnostic Chiropractic, P.C. v Adirondack Ins. Exch. (2025 NY Slip Op 50173(U))

[*1]

Trapezius Diagnostic Chiropractic, P.C. v Adirondack Ins. Exch.

2025 NY Slip Op 50173(U)

Decided on January 17, 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 January 17, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-957 K C

McDonnell, Adels & Klesyzick, PLLC (Michael J. Giordano of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (L. Austin D’Souza, J.), dated May 8, 2023. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross-motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

Trapezius Diagnostic Chiropractic, P.C. (Trapezius) commenced this action to recover assigned first-party no-fault benefits for medical services that it had provided to its assignor as a result of injuries which the complaint stated had been sustained in a motor vehicle accident on November 4, 2017. After Adirondack Insurance Exchange (Adirondack) filed its answer, it separately commenced a declaratory judgment action in Supreme Court, Nassau County, against Trapezius, among others, alleging that Adirondack had no duty to pay no-fault benefits to Trapezius with respect to an accident which had occurred on November 14, 2017. In a default judgment entered on March 5, 2021 against Trapezius, among others, based on their failure to appear or answer, the Supreme Court declared that the November 14, 2017 accident was a “staged accident” and that Adirondack was not obligated to provide coverage or reimbursements for any and all no-fault related services submitted by Trapezius arising from that accident.

Adirondack, thereafter, moved in the Civil Court for summary judgment dismissing the complaint on the ground that the instant action was barred by virtue of the declaratory judgment. In support of its motion, Adirondack submitted an attorney’s affirmation and annexed the declaratory judgment and Trapezius’s complaint in that action. Plaintiff cross-moved for summary judgment. In opposition, defendant submitted an affidavit of its employee who stated that there was no accident involving the parties on any date other than November 14, 2017. By order dated May 8, 2023, the Civil Court (L. Austin D’Souza, J.) denied Adirondack’s motion and granted plaintiff’s cross-motion for summary judgment. The Civil Court stated that the accident date listed in the complaint was not the same as the one listed in the declaratory judgment and the affidavit of defendant’s employee did not mention a November 4, 2017 accident.

Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same transaction or series of transactions which were raised or could have been raised in a prior proceeding between the same parties or those in privity (see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; see also Watts v Swiss Bank Corp., 27 NY2d 270 [1970]).

Adirondack failed to establish, prima facie, that, in this action, Trapezius sought to recover for medical services rendered to its assignor as a result of injuries allegedly sustained by its assignor in the November 14, 2017 accident that was the subject of the Supreme Court declaratory judgment action. Defendant’s submissions in support of its summary judgment motion highlight the discrepancy as to the date of the accident. The affidavit of defendant’s employee was not submitted in further support of defendant’s motion, and, in any event, the affidavit was conclusory in its statement that there was no accident on November 4, 2017 (see Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Adirondack failed to establish that the instant action is barred by res judicata (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see e.g. Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; cf. Medical Supply of NY Corp. v Nationwide Ins. Co.,77 Misc 3d 133[A], 2022 NY Slip Op 51253[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; New Millennium Med. Imaging, P.C. v Repwest Ins. Co., 72 Misc 3d 127[A], 2021 NY Slip Op 50577[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Moreover, Adirondack failed to establish its prima facie entitlement to judgment as a matter of law based on a theory of collateral estoppel, as it failed to establish that the issues litigated and determined in the prior action were identical to the issues on which preclusion is now sought (see Parisien v Kemper Ins. Co., 76 Misc 3d 18 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

However, plaintiff’s cross-motion for summary judgment also should have been denied as there is a material issue of fact as to the date of the accident and the proof submitted in support of plaintiff’s cross-motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had [*2]issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that plaintiff’s cross-motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 17, 2025Ocean View Med. Care, P.C. v Good2Go Auto Ins. (2024 NY Slip Op 51832(U))

Reported in New York Official Reports at Ocean View Med. Care, P.C. v Good2Go Auto Ins. (2024 NY Slip Op 51832(U))

[*1]

Ocean View Med. Care, P.C. v Good2Go Auto Ins.

2024 NY Slip Op 51832(U)

Decided on December 20, 2024

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 20, 2024

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-1143 K C

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang 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 September 26, 2023. The order granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default 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 (Sandra E. Roper, J.), dated September 26, 2023, which granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default judgment.

Contrary to plaintiff’s sole contention on appeal, it was not improper for the Civil Court to rely upon the argument, made by defendant for the first time in its reply to its cross-motion, that the claim determination period had not been tolled by requests for verification, as it was made in response to new evidence submitted by plaintiff. Specifically, in its opposition to defendant’s cross-motion, plaintiff sought to demonstrate that its cause of action accrued later than the date relied upon by defendant by submitting an affidavit of its owner alleging, upon information and belief, that defendant had requested additional verification and that plaintiff had supplied the requested verification. This affidavit conflicted with documents that were submitted by plaintiff with its moving papers: the complaint and an earlier affidavit of plaintiff’s owner. As defendant’s arguments in its reply papers, regarding the alleged additional verification and, thus, the accrual date, were in response to the new evidence submitted by plaintiff in its opposition papers, the Civil Court properly considered defendant’s arguments (see Gelaj v Gelaj, 164 AD3d 878, 879 [2018]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207 [2009]; Anderson v Beth Israel Med. Ctr., 31 AD3d 284, 287 [2006]; Davison v Order Ecumenical, 281 AD2d 383, [*2]383 [2001]). Consequently, plaintiff has not demonstrated any basis to disturb the order.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 20, 2024Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am. (2024 NY Slip Op 51822(U))

Reported in New York Official Reports at Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am. (2024 NY Slip Op 51822(U))

[*1]

Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am.

2024 NY Slip Op 51822(U)

Decided on December 19, 2024

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 19, 2024

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2023-479 K C

Gary Tsirelman, P.C. (Darya Klein 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, Kings County (Keisha M. Alleyne, J.), dated October 11, 2022. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

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 its brief, from so much of an order of the Civil Court (Keisha M. Alleyne, J.) dated October 11, 2022 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

As the Civil Court observed, although plaintiff’s owner appeared at an EUO scheduled to be held on April 10, 2018, plaintiff’s counsel refused to permit plaintiff’s owner to answer any questions regarding the claim at issue and plaintiff’s counsel stated that defendant should “consider it a no show” (see Country-Wide Ins. Co. v Gotham Med., P.C., 154 AD3d 608 [2017] [appearing at an EUO and refusing to answer questions is a failure to comply with the request for an EUO]). Defendant subsequently timely scheduled four additional EUOs, the last of which was scheduled for September 6, 2018. Although plaintiff’s owner appeared on that date, he left before the EUO could begin. As a result, the Civil Court correctly held that defendant’s denial of claim on September 12, 2018, on the ground that plaintiff had failed to appear for duly scheduled EUOs, had been timely (see Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013 [2023]). Contrary to plaintiff’s contention, Quality Health Supply Corp. stands for the proposition that an insurer may choose to timely schedule more than two EUOs and a denial of the claim will be timely as long as it was issued in a timely manner after the last scheduled EUO.

Furthermore, defendant was not required to set forth objective reasons for requesting [*2]EUOs as, to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insurer 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” (Quality Health Supply Corp., 216 AD3d at 1014; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co., 82 Misc 3d 128[A], 2024 NY Slip Op 50395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).

Plaintiff’s remaining contentions lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2024Ola v American Family Connect Ins. Co. (2024 NY Slip Op 51804(U))

Reported in New York Official Reports at Ola v American Family Connect Ins. Co. (2024 NY Slip Op 51804(U))

[*1]

Ola v American Family Connect Ins. Co.

2024 NY Slip Op 51804(U)

Decided on November 15, 2024

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 15, 2024

PRESENT: : CHEREÉ A. BUGGS, J.P., MARINA CORA MUNDY, PHILLIP HOM, JJ
2023-917 Q C

Callinan & Smith, LLP (Steven Daniel Levy of counsel) for appellant-respondent. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel) for respondent-appellant.

Appeal and cross-appeal from an order of the Civil Court of the City of New York, Queens County (Karen Lin, J.), entered July 14, 2023. The order, insofar as appealed from by cross-petitioner, American Family Connect Insurance Company, formerly known as Ameriprise Insurance Company, granted the petition by Eufrosine Ola to vacate an arbitrator’s award and a master arbitrator’s award, and denied the insurance company’s cross-petition to confirm the arbitrator’s award and the master arbitrator’s award. The order, insofar as cross-appealed from by petitioner Ola, upon granting the petition to vacate the arbitrator’s award and master arbitrator’s award, did not order a rehearing before a new arbitrator. The appeal from the order entered July 14, 2023 brings up for review so much of an order of that court (Soma S. Syed, J.) entered June 25, 2024 as, upon reargument, made the same determination as was made in the order appealed from but added that “the case shall be heard before a new arbitrator,” thereby substantially adhering to the prior determination (see CPLR 5517 [a] [1]; [b]).

ORDERED that the appeal from the order entered July 14, 2023 is dismissed, as that order was superseded by the order entered June 25, 2024, made upon reargument; and it is further,

ORDERED that the order, entered June 25, 2024, insofar as reviewed, is affirmed, without costs.

Eufrosine Ola (the insured) commenced this proceeding, pursuant to CPLR 7511, to vacate both an arbitrator’s award denying the insured’s claims to recover first-party no-fault benefits for a left shoulder surgery performed on July 17, 2019 and other related medical services, and a master arbitrator’s award which upheld the award of the arbitrator, specifically requesting that, upon such vacatur, the matter be remitted for a new arbitration hearing before a different arbitrator (see CPLR 7511 [d]). American Family Connect Insurance Company (the [*2]insurer) cross-petitioned to confirm the arbitrator’s award and the master arbitrator’s award. By order entered July 14, 2023, the Civil Court (Karen Lin, J.) granted the insured’s petition on the ground that the master arbitrator’s award was arbitrary because the arbitrator’s award was contrary to settled law, but did not order a rehearing, and denied the insurer’s cross-petition. The insurer appeals, and the insured cross-appeals, from that order.

The insured moved for leave to reargue the petition on the ground, among others, that her request that the matter be remitted for a rehearing before a different arbitrator had not been granted. The insurer cross-moved for leave to reargue the cross-petition. By order entered June 25, 2024, the Civil Court (Soma S. Syed, J.) in effect granted the respective branches of the motion and cross-motion seeking leave to reargue and, upon reargument, made the same determination as was made in the original order, adding only a directive that “the case shall be heard before a new arbitrator.”^[FN1] Upon the appeal from the July 14, 2023 order, we review so much of the June 25, 2024 order as, upon reargument, substantially adhered to the prior determination (see CPLR 5517 [b] [permitting review of a subsequent order which “upon reargument mak[es] the same or substantially the same determination as is made in the order appealed from” (CPLR 5517 [a] [1])]).

For the reasons stated by the Civil Court, we find that the petition to vacate the arbitrator’s and master arbitrator’s awards was properly granted and the cross-petition was properly denied. To the extent that the insured purports to cross-appeal from so much of the July 14, 2023 order as “failed to address the arbitrator’s ruling that the Petitioner must prove the lack of an assignment, in the absence of proof of an assignment,” that ruling has been vacated as the entire award has been vacated. Nevertheless, we note that the insured correctly argues that this determination was contrary to settled law (see 11 NYCRR 65-3.11 [a]; Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order entered June 25, 2024, insofar as reviewed, is affirmed.

BUGGS, J.P., MUNDY J., concur.

HOM, J. Taking no part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 15, 2024
 

Footnote 1: The June 25, 2024 order states that the insurer “did not object to a new arbitrator in their supporting papers.”Central Pharm., Inc. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 51557(U))

Reported in New York Official Reports at Central Pharm., Inc. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 51557(U))

Sakandar v American Tr. Ins. Co. (2024 NY Slip Op 04792)

Reported in New York Official Reports at Sakandar v American Tr. Ins. Co. (2024 NY Slip Op 04792)

Sakandar v American Tr. Ins. Co.

2024 NY Slip Op 04792

Decided on October 2, 2024

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 October 2, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
LINDA CHRISTOPHER
WILLIAM G. FORD
LAURENCE L. LOVE, JJ.
2022-03323
(Index No. 707562/19)

Short & Billy, P.C. (Greenberg Traurig, LLP, New York, NY [James W. Perkins, John C. Molluzzo, Jr., and Katherine M. Clemente], of counsel), for appellant.

Fass & D’Agostino, P.C., Melville, NY (Joseph D’Agostino of counsel), for respondent).

DECISION & ORDER

In an action, inter alia, to recover no-fault benefits for medical expenses and lost wages, the defendant appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered April 13, 2022. The order denied the defendant’s motion pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action in the third amended complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action in the third amended complaint is granted.

The plaintiff commenced this action against the defendant, American Transit Insurance Company, inter alia, to recover no-fault benefits for medical expenses and lost wages relating to a motor vehicle accident. The third amended complaint alleged that in August 2016, the plaintiff was involved in a motor vehicle accident, that his vehicle was insured by the defendant, and that the defendant refused to pay to the plaintiff his lost wages and certain medical expenses.

The third cause of action alleged bad faith, the fourth cause of action alleged a violation of General Business Law § 349, and the fifth cause of action alleged breach of contract pertaining to no-fault benefits. The defendant moved pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action. In an order entered April 13, 2022, the Supreme Court denied the motion. The defendant appeals. We reverse.

Contrary to the determination of the Supreme Court, the third cause of action, alleging bad faith in the insurance context, was subject to dismissal. In reading the third cause of action, alleging bad faith, liberally and giving the plaintiff the benefit of every reasonable inference that may be drawn therefrom (see Leon v Martinez, 84 NY2d 83, 87-88), the plaintiff failed to state a cause of action alleging bad faith, as “there is no separate cause of action in tort for an insurer’s bad faith failure to perform its obligations” under an insurance contract (Zawahir v Berkshire Life Ins. Co., 22 AD3d 841, 842 [internal quotation marks omitted]; Continental Cas. Co. v Nationwide Indem. Co., 16 AD3d 353, 355).

The plaintiff also failed to state a cause of action alleging a violation of General Business Law § 349. This action involves a private contract dispute regarding insurance coverage under the policy at issue, in contrast to the consumer-oriented, deceptive conduct aimed at the public at large that General Business Law § 349 is designed to address (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 320-321; Abraham v Torati, 219 AD3d 1275, 1281).

The Supreme Court also should have granted dismissal of the fifth cause of action, alleging breach of contract related to payment of no-fault benefits, since the plaintiff assigned his right to no-fault benefits to the medical provider (see Noel v Nationwide Ins. Co. of Am., 170 AD3d 1186, 1187).

In light of our determination, we need not reach the defendant’s remaining contention.

DUFFY, J.P., CHRISTOPHER, FORD and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Bronx Community Med., P.C. v MVAIC (2024 NY Slip Op 51538(U))

Reported in New York Official Reports at Bronx Community Med., P.C. v MVAIC (2024 NY Slip Op 51538(U))

[*1]

Bronx Community Med., P.C. v MVAIC

2024 NY Slip Op 51538(U) [84 Misc 3d 129(A)]

Decided on September 27, 2024

Appellate Term, Second Department

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

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

Decided on September 27, 2024

PRESENT: : CHEREÉ A. BUGGS, J.P., WAVNY TOUSSAINT, MARINA CORA MUNDY, JJ
2023-925 K C

Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant. The Rybak Firm, PLLC (Damin Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated August 10, 2023. 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 without prejudice.

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 as denied MVAIC’s motion which sought summary judgment dismissing the complaint either on the ground that MVAIC had never received the claims at issue or that the action had been commenced after the three-year statute of limitations had expired. The order also denied plaintiff’s cross-motion for summary judgment.

MVAIC made a prima facie showing that it had not received the claim forms at issue. The affidavit submitted by plaintiff’s owner in opposition to MVAIC’s motion was insufficient to give rise to a presumption that those claim forms had been timely mailed to, and received by, MVAIC (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), as plaintiff’s owner repeatedly stated that he personally mailed the claim forms “to [the] insurance carrier,” without setting forth the name of the recipient or the address to which they were mailed, and the copies of the claim forms annexed to plaintiff’s cross-motion were dated after the date on which the claim forms were purportedly mailed “to [the] insurance carrier.” Consequently, [*2]MVAIC’s time to pay or deny plaintiff’s claims never began to run and MVAIC is entitled to summary judgment dismissing the complaint without prejudice, as it is premature (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Wave Med. Servs., P.C. v Metlife Auto & Home, 69 Misc 3d 138[A], 2020 NY Slip Op 51321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; cf. Veraso Med. Supply Corp. v NY City Tr. Auth., 63 Misc 3d 152[A], 2019 NY Slip Op 50754[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted without prejudice.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 27, 2024Jacobson v State Farm Fire & Cas. Co. (2024 NY Slip Op 51540(U))

Reported in New York Official Reports at Jacobson v State Farm Fire & Cas. Co. (2024 NY Slip Op 51540(U))

[*1]

Jacobson v State Farm Fire & Cas. Co.

2024 NY Slip Op 51540(U) [84 Misc 3d 129(A)]

Decided on September 27, 2024

Appellate Term, Second Department

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

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

Decided on September 27, 2024

PRESENT: : CHEREÉ A. BUGGS, J.P., WAVNY TOUSSAINT, MARINA CORA MUNDY, JJ
2023-1068 K C

Zara Javakov, Esq., P.C. (Damin J. Toell of counsel), for appellant. McDonnell, Adels & Klesyzick, PLLC (Michael J. Giordano of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated February 1, 2023. The order granted defendant’s motion to vacate a judgment of the same court entered March 11, 2019 upon defendant’s failure to appear or answer the complaint and to compel plaintiff to accept defendant’s answer.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment entered March 11, 2019 and to compel plaintiff to accept defendant’s answer is denied.

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on March 11, 2019 upon defendant’s failure to appear or answer the complaint. Defendant subsequently moved to vacate the default judgment pursuant to CPLR 5015 (a) (1) and to compel plaintiff to accept defendant’s answer pursuant to CPLR 3012 (d). Plaintiff opposed the motion. By order dated February 1, 2023, the Civil Court granted defendant’s motion. On appeal, plaintiff argues that defendant provided neither a reasonable excuse for its default nor a potentially meritorious defense to the action.

“A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015 (a) (1) and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012 (d) must show both a reasonable excuse for the default and the existence of a potentially meritorious [*2]defense (see Deutsche Bank Natl. Trust Co. v Abrahim, 183 AD3d 698 [2020]; US Bank N.A. v Dedomenico, 162 AD3d 962, 964 [2018])” (JE & MB Homes, LLC v U.S. Bank N.A., 189 AD3d 1195, 1196 [2020]). A claim representative employed by defendant submitted an affidavit stating that while she believed the summons and complaint had been sent to counsel via email, it was subsequently determined that the email was not properly sent to counsel due to a clerical error. However, defendant failed to proffer an affidavit from someone with personal knowledge setting forth what the clerical error consisted of, who made the error, who discovered the error, and when the error was discovered. Consequently, defendant’s conclusory and unsubstantiated assertion that its default was due to a clerical error was insufficient to qualify as a reasonable excuse (see A.B. Med. Servs. PLLC v Allstate Ins. Co.,11 Misc 3d 128[A], 2006 NY Slip Op 50243[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). In light of the foregoing, it is unnecessary to consider whether defendant demonstrated a potentially meritorious defense to the action (see Hingorani v Venus Enters. 11 Corp., 208 AD3d 1229, 1230 [2022]; Art of Healing Medicine, P.C. v Allstate Ins. Co., 81 Misc 3d 141[A], 2023 NY Slip Op 51471[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2023]).

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment entered March 11, 2019 and to compel plaintiff to accept defendant’s answer is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 27, 2024Matter of Government Empls. Ins. Co. v Bermeo (2024 NY Slip Op 04388)

Reported in New York Official Reports at Matter of Government Empls. Ins. Co. v Bermeo (2024 NY Slip Op 04388)

Matter of Government Empls. Ins. Co. v Bermeo

2024 NY Slip Op 04388

Decided on September 11, 2024

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 September 11, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
CHERYL E. CHAMBERS
LARA J. GENOVESI
LOURDES M. VENTURA, JJ.
2022-08142
2023-02615
(Index No. 720674/21)

Decolator, Cohen & DiPrisco, LLP, Garden City, NY (Carolyn M. Canzoneri and Dominic DiPrisco of counsel), for appellant.

Katie A. Walsh, Melville, NY (Andrew Weber 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, Franklin Bermeo appeals from (1) a judgment of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered September 9, 2022, and (2) an order of the same court entered January 27, 2023. The judgment, after a framed-issue hearing, granted that branch of the petition which was to permanently stay arbitration. The order, insofar as appealed from, in effect, upon reargument, adhered to the determination in the judgment.

ORDERED that the appeal from the judgment is dismissed, as the judgment was superseded by the order, made, in effect, upon reargument; and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the petitioner.

On August 6, 2020, Franklin Bermeo allegedly was injured when he was struck by a vehicle as he was walking across an intersection with the pedestrian light in his favor near Rockaway Beach. According to the police accident report, the driver of the vehicle, Anthony Mack, was driving an e-bike. Subsequently, Bermeo sought uninsured motorist benefits under an insurance policy issued by the petitioner. The petitioner denied coverage, and Bermeo filed a demand for arbitration of his claim for uninsured motorist benefits.

The petitioner commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration, arguing that Bermeo was struck by an e-bike, which was not a motor vehicle under the terms of the policy, and thus, Bermeo was not entitled to uninsured motorist benefits. In an order dated December 6, 2021, the Supreme Court temporarily stayed arbitration and set the matter down for a framed-issue hearing to determine, among other things, whether the vehicle that struck Bermeo qualified as a motor vehicle under the terms of the policy. The framed-issue hearing was held over the course of three days. Mack was deceased as of the time of the hearing. The parties stipulated to entering the police accident report into evidence, which stated that zero motor vehicles were involved in the accident and that Bermeo was struck by a “CAMLTE” e-bike, [*2]and which did not include any license or registration information for Mack. Following the framed-issue hearing, in a judgment entered September 9, 2022, the court granted that branch of the petition which was to permanently stay arbitration. Subsequently, Bermeo moved for leave to reargue. In an order entered January 27, 2023, the court, in effect, granted reargument and, upon reargument, adhered to the prior determination. Bermeo appeals.

As the Supreme Court reviewed Bermeo’s contentions on his motion for leave to reargue, the court, in effect, granted reargument and, upon reargument, adhered to the prior determination (see Matter of Infinity Indem. Ins. Co. v Leo, 213 AD3d 936, 938). Therefore, the order entered January 27, 2023, is appealable.

“‘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 Travelers Personal Ins. Co. v Dratch, 219 AD3d 1526, 1527, quoting Matter of Government Empls. Ins. Co. v Tucci, 157 AD3d 679, 680; see Matter of Allstate Ins. Co. v Robinson, 188 AD3d 1186, 1188). “‘Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing'” (Matter of Travelers Personal Ins. Co. v Dratch, 219 AD3d at 1527, quoting Matter of Merchants Preferred Ins. Co. v Waldo, 125 AD3d 864, 865). “‘Where, as here, a matter is determined after a hearing, this Court’s power to review the evidence is as broad as that of the hearing court, taking into account in a close case the fact that the hearing court had the advantage of seeing the witnesses'” (Matter of Travelers Home & Mar. Ins. Co. v Miller, 220 AD3d 875, 877, quoting Matter of State Farm Mut. Auto. Ins. Co. v Rodriguez, 195 AD3d 727, 728).

Here, by introducing into evidence the police accident report that indicated, inter alia, that the vehicle Mack was driving was an e-bike and that zero motor vehicles were involved in the accident, the petitioner met its prima facie burden of providing evidence that a motor vehicle was not involved in the accident (see Matter of Government Empls. Ins. Co. v McCracken, 207 AD3d 721, 722).

In response, Bermeo failed to sufficiently rebut the petitioner’s prima facie showing (see id.). Contrary to Bermeo’s contention, he did not submit overwhelming evidence that the vehicle was, in fact, a motorcycle. Among other things, while an eyewitness testified that the vehicle involved was a motorcycle, she testified that she only observed the vehicle during the accident. She did not observe the vehicle after the accident and did not testify to seeing a license plate, engine, gas tank, or source of power for the vehicle. Further, she conceded that she could not describe the different parts of the vehicle because her focus was on Bermeo.

Thus, a review of the totality of the evidence adduced at the hearing, as well as the deference accorded to the Supreme Court’s vantage point of seeing and hearing all of the witnesses, demonstrate that the court did not err in concluding that a motor vehicle was not involved in the accident (see e.g. id.; Matter of Farmers Ins./Truck Ins. Exch. v Terzulli, 112 AD3d 628, 628; cf. Matter of Hertz Corp. v Holmes, 127 AD3d 1193, 1195).

Bermeo’s contention that the petitioner should not be allowed to disclaim uninsured motorist benefits because the petitioner already paid his medical bills pursuant to the no-fault provision of the policy was improperly raised for the first time on reargument (see FPG CH 94 Amity, LLC v Pizzarotti, LLC, 218 AD3d 651, 654).

Accordingly, the Supreme Court, upon reargument, properly adhered to its prior determination granting that branch of the petition which was to permanently stay arbitration.

BARROS, J.P., CHAMBERS, GENOVESI and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court