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. |
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.
Darrell M. Joseph
Clerk of the Court
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. |
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.
Darrell M. Joseph
Clerk of the Court
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, 2025
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
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Center, LLC (2025 NY Slip Op 06054)
| Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Center, LLC |
| 2025 NY Slip Op 06054 |
| Decided on November 5, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-03984
(Index No. 522399/22)
v
Bay Ridge Surgi-Center, LLC, 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, inter alia, to vacate a master arbitration award dated May 23, 2022, Bay Ridge Surgi-Center, LLC, appeals from a judgment of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated October 6, 2023. The judgment, insofar as appealed from, upon an order of the same court dated August 23, 2023, among other things, granting that branch of the cross-petition of Bay Ridge Surgi-Center, LLC, which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees to the extent of awarding it additional attorney’s fees in the sum of $250, awarded Bay Ridge Surgi-Center, LLC, additional attorney’s fees in the sum of only $250.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Bay Ridge Surgi-Center, LLC (hereinafter Bay Ridge), pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated May 23, 2022, affirming an arbitration award entered in favor of Bay Ridge. Bay Ridge cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated August 23, 2023, the Supreme Court denied the petition, confirmed the master arbitration award, and granted that branch of the cross-petition to the extent of awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $250. Thereafter, on October 6, 2023, the court, upon the order, issued a judgment, among other things, awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $250. Bay Ridge appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney’s fees “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 Bay Ridge’s contention, the Supreme Court acted within its discretion in awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $250 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Bay Ridge failed to submit an affirmation or an 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 attorney’s fees (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, Bay Ridge failed to request a hearing on the issue of an award of additional attorney’s fees 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 fees pursuant to 11 NYCRR 65-4.10(j)(4).
Bay Ridge’s remaining contention is academic in light of our determination.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Center, LLC (2025 NY Slip Op 06055)
| Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Center, LLC |
| 2025 NY Slip Op 06055 |
| Decided on November 5, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-08894
(Index No. 530082/22)
v
Bay Ridge Surgi-Center, LLC, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Larkin Farrell LLC, New York, NY (William Larkin of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 20, 2022, Bay Ridge Surgi-Center, LLC, appeals from a judgment of the Supreme Court, Kings County (Richard Velasquez, J.), dated June 12, 2024. The judgment, insofar as appealed from, upon an order of the same court dated June 5, 2024, granting the motion of Bay Ridge Surgi-Center, LLC, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees to the extent of awarding it additional attorney’s fees in the sum of $1,100, awarded Bay Ridge Surgi-Center, LLC, additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of only $1,100.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Bay Ridge Surgi-Center, LLC (hereinafter Bay Ridge), pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 20, 2022, affirming an arbitration award entered in favor of Bay Ridge. Bay Ridge cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated September 27, 2023, the Supreme Court, inter alia, upon its determination that Bay Ridge was entitled to additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), granted Bay Ridge leave to file a motion for a determination of the amount of additional attorney’s fees to be awarded to Bay Ridge. Thereafter, Bay Ridge moved pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. The petitioner opposed the motion. In an order dated June 5, 2024, the court granted the motion to the extent of awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100. Thereafter, the court, upon the order, issued a judgment, among other things, awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100. Bay Ridge appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney’s fees “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 Bay Ridge’s contention, the Supreme Court acted within its discretion in awarding Bay Ridge additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100, notwithstanding Bay Ridge’s submission of an affirmation of its counsel setting forth a fee for work expended in the sum of $4,450 (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Bay Ridge failed to request a hearing on the issue of an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), 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 fees pursuant to 11 NYCRR 65-4.10(j)(4) (see Boddie-Willis v Marziliano, 78 AD3d 978, 979). Moreover, in fixing the fee award, the court acted within its discretion in considering, inter alia, the prevailing rate for similar work and the complexity of the matter at issue (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 839-840). Under these circumstances, there is no basis to disturb the court’s award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Pfeffer (2025 NY Slip Op 06056)
| Matter of American Tr. Ins. Co. v Pfeffer |
| 2025 NY Slip Op 06056 |
| Decided on November 5, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-03982
(Index No. 531336/22)
v
Michelle Pfeffer, 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, inter alia, to vacate a master arbitration award dated July 26, 2022, Michelle Pfeffer appeals from a judgment of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated November 17, 2023. The judgment, insofar as appealed from, upon an order of the same court dated October 18, 2023, among other things, granting that branch of the cross-petition of Michelle Pfeffer which was pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees to the extent of awarding her additional attorney’s fees in the sum of $500, awarded Michelle Pfeffer additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of only $500.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against Michelle Pfeffer pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated July 26, 2022, affirming an arbitration award entered in favor of Pfeffer. Pfeffer cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated October 18, 2023, the Supreme Court denied the petition, confirmed the master arbitration award, and granted that branch of the cross-petition to the extent of awarding Pfeffer additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of only $500. Thereafter, on November 17, 2023, the court, upon the order, issued a judgment, among other things, awarding Pfeffer additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $500. Pfeffer appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney’s fees “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 Pfeffer’s contention, the Supreme Court acted within its discretion in awarding her additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $500 without first conducting a hearing (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since Pfeffer failed to submit an affirmation or an affidavit in support of her 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 attorney’s fees (see TY Bldrs. II, Inc. v 55 Day Spa, Inc., 167 AD3d 679, 682). Moreover, Pfeffer failed to request a hearing on the issue of an award of additional attorney’s fees 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 fees pursuant to 11 NYCRR 65-4.10(j)(4).
Pfeffer’s remaining contention is academic in light of our determination.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Scob, LLC (2025 NY Slip Op 06057)
| Matter of American Tr. Ins. Co. v Scob, LLC |
| 2025 NY Slip Op 06057 |
| Decided on November 5, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
ROBERT J. MILLER
DONNA-MARIE E. GOLIA
ELENA GOLDBERG VELAZQUEZ, JJ.
2024-08898
(Index No. 505435/23)
v
SCOB, LLC, etc., appellant.
Roman Kravchenko, Melville, NY, for appellant.
Larkin Farrell LLC, New York, NY (William Larkin of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated December 16, 2022, SCOB, LLC, appeals from a judgment of the Supreme Court, Kings County (Richard Velasquez, J.), dated June 12, 2024. The judgment, insofar as appealed from, upon an order of the same court dated June 5, 2024, granting the motion of SCOB, LLC, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees to the extent of awarding it additional attorney’s fees in the sum of $1,100, awarded SCOB, LLC, additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of only $1,100.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
The petitioner commenced this proceeding against SCOB, LLC (hereinafter SCOB), pursuant to CPLR article 75, inter alia, to vacate a master arbitration award dated December 16, 2022, affirming an arbitration award entered in favor of SCOB. SCOB cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of additional attorney’s fees. In an order dated September 27, 2023, the Supreme Court, inter alia, upon its determination that SCOB was entitled to an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), granted SCOB leave to file a motion for a determination of the amount of additional attorney’s fees to be awarded to SCOB. Thereafter, SCOB moved for an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4). The petitioner opposed the motion. In an order dated June 5, 2024, the court granted the motion to the extent of awarding SCOB additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100. Thereafter, the court, upon the order, issued a judgment, among other things, awarding SCOB additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100. SCOB appeals.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his [or her] attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.” The recoverable attorney’s fees include those related to representation in a CPLR article 75 proceeding to vacate or to confirm a master arbitration award, and in such instances, the attorney’s fees “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 SCOB’s contention, the Supreme Court acted within its discretion in awarding it additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100, notwithstanding SCOB’s submission of an affirmation of its counsel setting forth a fee for work expended in the sum of $4,550 (see People’s United Bank v Patio Gardens III, LLC, 143 AD3d 689, 691). As an initial matter, since SCOB failed to request a hearing on the issue of an award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), 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 fees pursuant to 11 NYCRR 65-4.10(j)(4) (see Boddie-Willis v Marziliano, 78 AD3d 978, 979). Moreover, in fixing the fee award, the court acted within its discretion in considering, inter alia, the prevailing rate for similar work and the complexity of the matter at issue (see RMP Capital Corp. v Victory Jet, LLC, 139 AD3d at 839-840). Under these circumstances, there is no basis to disturb the court’s award of additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $1,100.
DUFFY, J.P., MILLER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Big Apple Pain Mgt., PLLC (2025 NY Slip Op 05948)
| Matter of American Tr. Ins. Co. v Big Apple Pain Mgt., PLLC |
| 2025 NY Slip Op 05948 |
| Decided on October 29, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
VALERIE BRATHWAITE NELSON, J.P.
LINDA CHRISTOPHER
LILLIAN WAN
DONNA-MARIE E. GOLIA, JJ.
2024-03259
(Index No. 515654/22)
v
Big Apple Pain Management, PLLC, etc., appellant.
Beynenson Law Firm, P.C., Franklin Square, NY (Alek Beynenson of counsel), for appellant.
Larkin Farrell, LLC, New York, NY (William R. Larkin III of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated April 8, 2022, which confirmed an award of an arbitrator dated December 4, 2021, Big Apple Pain Management, PLLC, appeals from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated January 24, 2024. The order granted the petition to vacate the master arbitrator’s award and, in effect, denied the cross-petition of Big Apple Pain Management, PLLC, to confirm the master arbitrator’s award.
ORDERED that the order is reversed, on the law, with costs, the petition is denied, the cross-petition is granted, and the master arbitrator’s award dated April 8, 2022, is confirmed.
In October 2019, Carlos Nieto was involved in a motor vehicle accident in Staten Island. From February 2020 through June 2020, Nieto received medical services from Big Apple Pain Management, PLLC (hereinafter Big Apple), for injuries he sustained in the accident. Big Apple submitted insurance claims to the petitioner American Transit Insurance Company (hereinafter American Transit) for reimbursement of the cost of services performed, in the total sum of $1,417.73. American Transit denied the insurance claims. Thereafter, Big Apple submitted the insurance claims to arbitration. In an award dated December 4, 2021, after a hearing, an arbitrator awarded Big Apple the total sum of $1,417.73. American Transit then requested that the matter be reviewed by a master arbitrator. In an award of the master arbitrator dated April 8, 2022, the master arbitrator confirmed the arbitration award dated December 4, 2021, in its entirety.
In May 2022, American Transit commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. Big Apple opposed the petition and cross-petitioned to confirm the award. In an order dated January 24, 2024, the Supreme Court granted the petition to vacate the master arbitrator’s award and, in effect, denied Big Apple’s cross-petition. Big Apple appeals.
“‘Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly [*2]applied'” (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d 649, 650, quoting Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017). “Arbitrators exceed their power only when they issue an award that ‘violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power'” (Matter of County of Nassau v Nassau County Investigators Police Benevolent Assn., Inc., 203 AD3d 824, 826, quoting American Intl. Specialty Lines Ins. Co. v Allied Capital Corp., 35 NY3d 64, 70; see Matter of Dluhy v Sive, Paget & Riesel, P.C., 220 AD3d 659, 659). “‘The master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator'” (Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168, 1168, quoting Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577; see Matter of Advanced Orthopaedics, PLLC v Country-Wide Ins. Co., 204 AD3d 787, 787).
Here, American Transit failed to demonstrate the existence of any statutory grounds for vacating the master arbitrator’s award (see Matter of V.S. Care Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 832, 833-834; Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth., 167 AD3d 869, 870).
Accordingly, the Supreme Court should have denied the petition to vacate the master arbitrator’s award and granted the cross-petition to confirm the master arbitrator’s award.
BRATHWAITE NELSON, J.P., CHRISTOPHER, WAN and GOLIA, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Matter of Oasis Med. & Surgical Wellness v New Jersey Mfrs. Ins. Co. (2025 NY Slip Op 05952)
| Matter of Oasis Med. & Surgical Wellness v New Jersey Mfrs. Ins. Co. |
| 2025 NY Slip Op 05952 |
| Decided on October 29, 2025 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CHERYL E. CHAMBERS, J.P.
PAUL WOOTEN
HELEN VOUTSINAS
LAURENCE L. LOVE, JJ.
2023-11688
(Index No. 604183/23)
v
New Jersey Manufacturers Insurance Co., respondent.
Roman Kravchenko, Melville, NY (Jason Tenenbaum of counsel), for appellant.
Lawrence N. Rogak LLC, Oceanside, NY (Melnia Cordis of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated February 12, 2023, the petitioner appeals from an order of the Supreme Court, Nassau County (Lisa A. Cairo, J.), entered August 28, 2023. The order denied the petition.
ORDERED that the order is affirmed, with costs.
The petitioner, Oasis Medical and Surgical Wellness (hereinafter Oasis), sought payment of no-fault insurance benefits from the respondent, New Jersey Manufacturers Insurance Co. (hereinafter NJM), for medical services provided to an insured in New Jersey in connection with a motor vehicle accident that occurred in New York. After NJM denied the claim, Oasis commenced an arbitration proceeding in a New York forum. In an award dated November 19, 2022, the arbitrator dismissed the proceeding without prejudice on the ground that New Jersey was the proper forum for the proceeding. Oasis appealed this award to a master arbitrator, who affirmed the dismissal in an award dated February 12, 2023, applying the doctrine of forum non conveniens. Thereafter, Oasis commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitration award. In an order entered August 28, 2023, the Supreme Court denied the petition. Oasis appeals.
“‘[J]udicial review of arbitration awards is extremely limited'” (Matter of Richardson v Markovich, 227 AD3d 999, 1000, quoting Matter of Briscoe Protective, LLC v North Fork Surgery Ctr., LLC, 215 AD3d 956, 957). “A party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence” (Matter of Douglas Elliman of LI, LLC v O’Callaghan, 220 AD3d 945, 947 [internal quotation marks omitted]; see Matter of Dluhy v Sive, Paget & Riesel, P.C., 220 AD3d 659, 659). “CPLR 7511(b) enumerates the limited grounds upon which an award may be vacated, including . . . that the arbitrator exceeded his or her authority” (Matter of Douglas Elliman of LI, LLC v O’Callaghan, 220 AD3d at 946; see Matter of Dluhy v Sive, Paget & Riesel, P.C., 220 AD3d at 659). “An arbitrator exceeds his or her power within the meaning of the CPLR only when he or she issues an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Matter of Douglas Elliman of LI, LLC v O’Callaghan, 220 AD3d at 946 [alterations and internal quotation marks omitted]; see Matter of Richardson v Markovich, 227 AD3d at 1000). “An arbitration award is irrational only where there is no evidence whatever to justify the award” (Matter [*2]of Dedvukaj v Shkreli, 180 AD3d 895, 897; see Matter of Richardson v Markovich, 227 AD3d at 1000).
Here, since the parties resided in New Jersey, the medical care was provided in New Jersey, the insurance contract was made in New Jersey, and New Jersey substantive law applies, Oasis failed to establish by clear and convincing evidence that no evidence whatever justified the award (see Matter of Douglas Elliman of LI, LLC v O’Callaghan, 220 AD3d at 946; Matter of Dedvukaj v Shkreli, 180 AD3d at 897). “The fact that the accident occurred in New York is insufficient by itself to provide the substantial nexus required to warrant the retention of jurisdiction” (DelGrosso v Carroll, 185 AD3d 901, 904; see Fajardo v Alejandro, 126 AD3d 644, 645).
Contrary to Oasis’s contention, NJM did not waive its right to challenge the forum by making use of a New York State insurance form or by failing to raise the issue in its initial submission to the arbitrator (see Matter of Long Is. Power Auth. Hurricane Sandy Litig., 165 AD3d 1138, 1143).
Oasis’s remaining contention is without merit.
Accordingly, the Supreme Court properly denied the petition to vacate the master arbitration award.
We decline NJM’s request to impose sanctions against Oasis for taking an allegedly frivolous appeal (see 22 NYCRR 130-1.1; Matter of O’Donoghue v O’Donoghue, 214 AD3d 876, 877).
CHAMBERS, J.P., WOOTEN, VOUTSINAS and LOVE, JJ., concur.
Darrell M. Joseph
Clerk of the Court