Big Apple Delivery Supply Corp. v Plymouth Rock Assur. Corp. of N.Y. (2026 NY Slip Op 50794(U))

Reported in New York Official Reports at Big Apple Delivery Supply Corp. v Plymouth Rock Assur. Corp. of N.Y. (2026 NY Slip Op 50794(U))

Big Apple Delivery Supply Corp. v Plymouth Rock Assur. Corp. of N.Y.

2026 NY Slip Op 50794(U) [89 Misc 3d 126(A)]

Decided on May 15, 2026

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on May 15, 2026

2025-527 RI C

Present: : Wavny Toussaint, P.J., ChereÉ A. Buggs, Joanne D. Quiñones, JJ

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella (Sam M. Rizzitelli, III of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Michael J. Pinto, J.), dated March 11, 2025. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the equipment provided by plaintiff was not medically necessary.

[*1]

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the equipment provided by plaintiff was not medically necessary is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the grounds that the equipment provided by plaintiff to its assignor was not medically necessary, that the equipment was not billed in accordance with the applicable fee schedule, and that the policy limits had been exhausted. By order dated March 11, 2025, the Civil Court (Michael J. Pinto, J.) granted the branch of defendant’s motion seeking summary judgment on the ground of lack of medical necessity, without reaching the other two grounds for dismissal. On appeal, plaintiff argues that defendant failed to establish timely and proper mailing of the denial of claim forms.

Upon a review of the record, we find that defendant failed to establish that the denials had been properly and timely mailed. In describing defendant’s standard office mailing practices and procedures, defendant’s litigation specialist did not set forth, among other required details, how proper postage is affixed, or how and when envelopes are delivered to the care and custody of the United States Postal Service or other carrier (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050 [2015]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Contemporary Acupuncture, P.C. v Allstate Ins. Co., 51 Misc 3d [*2]132[A], 2016 NY Slip Op 50464[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Thus, defendant failed to establish that it is not precluded from raising its defense of lack of medical necessity. Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of lack of medical necessity should have been denied.

As the failure to issue a denial of the claim within 30 days does not preclude a defense “that the coverage limits of the subject policy have been exhausted” (New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580 [2004] [internal quotation marks omitted]) or a defense that plaintiff is seeking to recover amounts that are in excess of the fee schedule (see Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2018]), we remit the matter to the Civil Court for a determination of the remaining branches of defendant’s summary judgment motion.

Accordingly, the order is reversed, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the equipment provided by plaintiff was not medically necessary is denied, and the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: May 15, 2026

Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y. (2026 NY Slip Op 50797(U))

Reported in New York Official Reports at Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y. (2026 NY Slip Op 50797(U))

Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y.

2026 NY Slip Op 50797(U) [89 Misc 3d 127(A)]

Decided on May 15, 2026

Appellate Term, Second Department

As corrected in part through May 28, 2026; it will not be published in the printed Official Reports.

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

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on May 15, 2026

2025-540 RI C

Present: : Wavny Toussaint, P.J., Chereé A. Buggs, Joanne D. Quiñones, JJ

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Mura Law Group, PLLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), dated March 31, 2025. The order granted defendant’s motion for summary judgment dismissing the complaint.

[*1]

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff filed its notice of trial on May 7, 2024. Defendant filed its motion for summary judgment dismissing the complaint on September 23, 2024, which motion plaintiff opposed, arguing, among other things, that the motion should be denied as untimely. By order dated March 31, 2025, the Civil Court (Mary A. Kavanagh, J.) found that, although the motion “was late,” “there was no prejudice to the plaintiff” and granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy.

Pursuant to CPLR 3212 (a), courts have “considerable discretion to fix a deadline for filing summary judgment motions,” so long as the deadline is not “later than 120 days after the filing of the note of issue, except with leave of court on good cause shown” (Brill v City of New York, 2 NY3d 648, 651 [2004]; see Schmidt v Capone, 243 AD3d 709 [2025]). “[S]tatutory time frames—like court-ordered time frames (see Kihl v Pfeffer, 94 NY2d 118 [1999])—are not options, they are requirements, to be taken seriously by the parties” (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004]; see Brill, 2 NY3d at 652-653). “Absent a ‘satisfactory explanation for the untimeliness,’ constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits” (Schmidt, 243 AD3d at 712, quoting Brill, 2 NY3d at 652; see Miceli, 3 NY3d at 727).

We note that a notice of trial is the Civil Court equivalent of a note of issue (see Castro v Omni Ins. Co., 74 Misc 3d 127[A], 2022 NY Slip Op 50057[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). The record on appeal indicates that defendant did not move for summary judgment dismissing the complaint within 120 days of the filing of the notice of trial. Since defendant failed to address this delay in its moving papers, it did not demonstrate good cause for its failure to file its motion within the mandated time frame (see Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 869 [2016]; BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 65 Misc 3d 152[A], 2019 NY Slip Op 51887[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, the Civil Court should have denied defendant’s motion without reaching its merits.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: May 15, 2026

Big Apple Delivery Supply Corp. v Permanent Gen. Assur. Corp. (2026 NY Slip Op 50793(U))

Reported in New York Official Reports at Big Apple Delivery Supply Corp. v Permanent Gen. Assur. Corp. (2026 NY Slip Op 50793(U))

Big Apple Delivery Supply Corp. v Permanent Gen. Assur. Corp.

2026 NY Slip Op 50793(U) [89 Misc 3d 126(A)]

Decided on May 15, 2026

Appellate Term, Second Department

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

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

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on May 15, 2026

2025-226 RI C

Present: : Wavny Toussaint, P.J., Marina Cora Mundy, Joanne D. Quiñones, JJ

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Freiberg, Peck & Kang, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), dated February 3, 2025. The order granted defendant’s motion for summary judgment dismissing the complaint.

[*1]

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff was ineligible to recover no-fault benefits due to the cancellation of the Pennsylvania automobile insurance policy as a result of the insured’s nonpayment of premiums. By order dated February 3, 2025, the Civil Court (Mary A. Kavanagh, J.) granted defendant’s motion, finding that “Defendant established that the Pennsylvania policy was properly canceled prior to the date of the accident. Therefore, coverage did not exist.” On appeal, plaintiff contends, among other things, that defendant’s motion should have been denied because defendant failed to establish that the notice of cancellation had been mailed to the insured.

At the outset, we note that, in the Civil Court, plaintiff argued that Pennsylvania law did not control; however, on appeal, plaintiff appears to have abandoned this argument (see New Way Med. Supply Corp. v Infinity Group, 50 Misc 3d 128[A], 2015 NY Slip Op 51880[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

In order to prevail on its motion for summary judgment dismissing the complaint, defendant was required to demonstrate that the insurance policy was validly canceled in accordance with Pennsylvania law (see Great Health Care Chiropratic, P.C. v Infinity Group, 50 Misc 3d 144[A], 2016 NY Slip Op 50257[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In Pennsylvania, in order for an insurance policy to be canceled due to the nonpayment [*2]of premiums, the “insurer has the burden of proving compliance with the statutory requirements for cancellation of an automobile policy of insurance . . . . An insurance policy may be cancelled by mailing to the named insured, at the address shown in the policy, a written notice of cancellation” (Nationwide Ins. Co. v Pennsylvania Ins. Dept., 779 A2d 14, 17 [Pa Commw Ct 2001]; see 40 P.S. § 991.2006; Parnell v Dept. of Transp., Bur. of Driver Licensing, 90 A3d 840 [Pa Commw Ct 2014]).

Here, the affidavit of defendant’s personal injury protection litigation representative conclusorily states that defendant mailed a notice of cancellation to the insured on June 1, 2023, which informed the insured that the policy would be canceled as of June 19, 2023. The affidavit, however, provided no information regarding defendant’s standard office practices and procedures for the mailing of such a notice. In addition, although the back of the notice states that “U.S. Postal Service Proof of Mailing of this Document is on file,” no such proof was included with defendant’s motion papers. Consequently, defendant failed to establish, as a matter of law, that the insurance policy had been canceled as of June 19, 2023 in accordance with Pennsylvania law and that, therefore, no coverage existed when the accident took place in August 2023.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: May 15, 2026

Big Apple Delivery Supply Corp. v Plymouth Rock Assur. Corp. of N.Y. (2026 NY Slip Op 50795(U))

Reported in New York Official Reports at Big Apple Delivery Supply Corp. v Plymouth Rock Assur. Corp. of N.Y. (2026 NY Slip Op 50795(U))

Big Apple Delivery Supply Corp. v Plymouth Rock Assur. Corp. of N.Y.

2026 NY Slip Op 50795(U) [89 Misc 3d 126(A)]

Decided on May 15, 2026

Appellate Term, Second Department

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

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

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on May 15, 2026

2025-528 RI C

Present: : Wavny Toussaint, P.J., Chereé A. Buggs, Joanne D. Quiñones, JJ

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella (Sam M. Rizzitelli, III of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Michael J. Pinto, J.), dated March 11, 2025. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the equipment provided by plaintiff was not medically necessary.

[*1]

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the equipment provided by plaintiff was not medically necessary is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the grounds that the equipment provided by plaintiff to its assignor was not medically necessary and that the policy limits had been exhausted. By order dated March 11, 2025, the Civil Court (Michael J. Pinto, J.) granted the branch of defendant’s motion seeking summary judgment on the ground of lack of medical necessity, without reaching the other ground for dismissal. On appeal, plaintiff argues that defendant failed to establish timely and proper mailing of the denial of claim form.

Upon a review of the record, we find that defendant failed to establish that the denial had been properly and timely mailed. In describing defendant’s standard office mailing practices and procedures, defendant’s litigation specialist did not set forth, among other required details, how proper postage is affixed, or how and when envelopes are delivered to the care and custody of the United States Postal Service or other carrier (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050 [2015]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Contemporary Acupuncture, P.C. v Allstate Ins. Co., 51 Misc 3d 132[A], 2016 NY Slip Op 50464[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Thus, [*2]defendant failed to establish that it is not precluded from raising its defense of lack of medical necessity. Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of lack of medical necessity should have been denied.

As the failure to issue a denial of the claim within 30 days does not preclude a defense “that the coverage limits of the subject policy have been exhausted” (New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580 [2004] [internal quotation marks omitted]), we remit the matter to the Civil Court for a determination of the remaining branch of defendant’s summary judgment motion.

Accordingly, the order is reversed, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the equipment provided by plaintiff was not medically necessary is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant’s motion.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: May 15, 2026

Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y. (2026 NY Slip Op 50796(U))

Reported in New York Official Reports at Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y. (2026 NY Slip Op 50796(U))

Prompt Med. Group, Inc. v Erie Ins. Co. of N.Y.

2026 NY Slip Op 50796(U) [89 Misc 3d 126(A)]

Decided on May 15, 2026

Appellate Term, Second Department

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

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

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on May 15, 2026

2025-536 RI C

Present: : Wavny Toussaint, P.J., Chereé A. Buggs, Joanne D. Quiñones, JJ

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Mura Law Group, PLLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), dated March 31, 2025. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy.

[*1]

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied in its entirety.

Insofar as is relevant to this appeal, in this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the grounds of fraudulent procurement of the insurance policy, material misrepresentation made in the insurance claim, untruthful testimony at an examination under oath (EUO), and failing to respond to post-EUO verification requests. Plaintiff opposed the motion. By order dated March 31, 2025, the Civil Court (Mary A. Kavanagh, J.) granted the branch of the motion seeking summary judgement dismissing the complaint on the ground of fraudulent procurement, without passing on the other branches of the summary judgment motion.

The defense that a material misrepresentation was made when procuring an insurance policy is subject to preclusion if not interposed in a timely denial (see JFL Med. Care, P.C. v Wesco Ins. Co., 77 Misc 3d 139[A], 2022 NY Slip Op 51376[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Empire State Med. Supplies, Inc. v Sentry Ins., 55 Misc 3d 130[A], 2017 NY Slip Op 50403[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). In its motion for summary judgment, defendant alleged that, following the February 2023 motor vehicle incident, the assignor appeared at an EUO in March 2023, defendant received plaintiff’s instant claim in April 2023, and defendant denied the claim in September 2023 due to the [*2]assignor “making material misrepresentations while presenting her no-fault claim, testifying untruthfully at the Examination Under Oath and then failing to respond to post-Examination Under Oath requests for verification.” Defendant also argued, among other things, that the policy was fraudulently procured by the assignor’s aunt and that the denial of the claim was timely since the time in which it had to pay or deny it was tolled due to the assignor’s failure to respond to verification requests.

Upon a review of the record, we find that defendant’s moving papers failed to show that it timely and properly mailed its verification requests to the assignor or to the assignor’s attorneys so as to toll defendant’s time to pay or deny the claim. In his affirmation in support of defendant’s summary judgment motion, defendant’s attorney stated that he directed his assistant to send the requests and follow-up requests for verification to the assignor and to her attorneys by both e-mail and regular mail. Defendant did not submit any further proof as to the mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co.,50 AD3d 1123 [2008]). In any event, we note that the affirmation of defendant’s senior medical management specialist was insufficient to show that a denial of claim form had been mailed to plaintiff on the date alleged (see id.). Thus, the branch of defendant’s motion seeking summary judgment on the ground of fraudulent procurement of the no-fault insurance policy should not have been granted.

As defendant did not prove that it mailed the verification requests, we need not remit the matter to the Civil Court to decide the branch of defendant’s motion seeking summary judgment on the ground that plaintiff’s assignor did not respond to those requests. In view of the foregoing determination that defendant failed to present proof that it timely denied the claim, we need not remit the matter to the Civil Court to determine the remaining branches of defendant’s summary judgment motion, as they involve precludable defenses.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied in its entirety.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: May 15, 2026

Shamayim Chiropractic, P.C. v Permanent Gen. Assur. Corp. (2026 NY Slip Op 50791(U))

Reported in New York Official Reports at Shamayim Chiropractic, P.C. v Permanent Gen. Assur. Corp. (2026 NY Slip Op 50791(U))

Shamayim Chiropractic, P.C. v Permanent Gen. Assur. Corp.

2026 NY Slip Op 50791(U) [89 Misc 3d 126(A)]

Decided on May 15, 2026

Appellate Term, Second Department

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

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

Supreme Court, Appellate Term, Second Department, 2d, 11th And 13th Judicial Districts

Decided on May 15, 2026

2025-189 K C

Present: : Wavny Toussaint, P.J., Marina Cora Mundy, Joanne D. Quiñones, JJ

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Freiberg, Peck & Kang, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated November 1, 2024. The order granted defendant’s motion to vacate a judgment entered on June 20, 2023 upon defendant’s failure to appear or answer the complaint.

[*1]

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment entered June 20, 2023 is denied.

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on June 20, 2023 upon defendant’s failure to appear or answer the complaint. According to the affidavit of service, the summons and complaint were delivered to the managing agent of defendant’s registered agent for accepting service of process on defendant’s behalf in the State of New York. Defendant subsequently moved to vacate the default judgment pursuant to CPLR 317 and CPLR 5015 (a) (1). Plaintiff opposed the motion. By order dated November 1, 2024, the Civil Court (Odessa Kennedy, J.) granted defendant’s motion to vacate the default judgment based on CPLR 5015 (a) (1). 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 judgment pursuant to CPLR 5015 (a) (1) is required to demonstrate both a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby’s Bus Co., Inc., 85 AD3d 843 [2011]). The process server’s affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving an agent of defendant authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Milky Way Acupuncture, P.C. v [*2]Allstate Ins. Co., 68 Misc 3d 128[A], 2020 NY Slip Op 50935[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In support of its motion, defendant provided an affidavit from its personal injury protection litigation representative who averred that, based upon her search of defendant’s files and databases, she determined that the summons and complaint was never received by defendant. Defendant’s claim of lack of receipt is insufficient to constitute a reasonable excuse, as defendant did not provide an affidavit containing a detailed and specific contradiction of the allegations in the process server’s affidavit or an explanation why it could not do so (see Berganza v Pecora, 192 AD3d 743, 744 [2021]; Deutsche Bank Natl. Trust Co. v O’King, 148 AD3d 776, 776-777 [2017]; 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 Dists 2023]; Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Thus, defendant’s motion was improperly granted pursuant to CPLR 5015 (a) (1), and 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]; Ahava Med. Diagnostic, P.C. v Hertz Co., 72 Misc 3d 138[A], 2021 NY Slip Op 50772[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Furthermore, CPLR 317 is not a basis to vacate the default judgment, since defendant’s agent was personally served with process (see CPLR 317, 318).

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment entered June 20, 2023 is denied.

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

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: May 15, 2026

Matter of Integrated Specialty ASC, LLC v American Tr. Ins. Co. (2026 NY Slip Op 02651)

Reported in New York Official Reports at Matter of Integrated Specialty ASC, LLC v American Tr. Ins. Co. (2026 NY Slip Op 02651)

Matter of Integrated Specialty ASC, LLC v American Tr. Ins. Co.

2026 NY Slip Op 02651 [248 AD3d 1245]

Decided on April 29, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, June 10, 2026

April 29, 2026

In a proceeding pursuant to CPLR article 75 to confirm a master arbitration award dated August 1, 2023, Integrated Specialty ASC, LLC, appeals from a judgment of the Supreme Court, Nassau County (Thomas A. Rademaker, J.), entered January 12, 2024. The judgment, insofar as appealed from, upon an order of the same court entered November 17, 2023, granting the petition, awarded Integrated Specialty ASC, LLC, attorneys’ fees pursuant to 11 NYCRR 65-4.6 (d) in the sum of only $1,000 and did not award Integrated Specialty ASC, LLC, additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

Ordered that the judgment is reversed insofar as appealed from, on the law and the facts, with costs, Integrated Specialty ASC, LLC, is awarded attorneys’ fees pursuant to 11 NYCRR 65-4.6 (d) in the sum of $1,360, and the matter is remitted to the Supreme Court, Nassau County, for a determination of the amount of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) to be awarded to Integrated Specialty ASC, LLC, and thereafter for the entry of an appropriate amended judgment in accordance herewith.

Integrated Specialty ASC, LLC (hereinafter Integrated Specialty), as assignee of Mayra Machuca, is a medical provider which made a claim for no-fault benefits from American Transit Insurance Company (hereinafter American Transit). American Transit denied the claim. Integrated Specialty submitted the claim to arbitration, and in an award dated May 8, 2023, the arbitrator awarded Integrated Specialty the sum of $15,219.04, plus interest. In a determination dated August 1, 2023 (hereinafter the master arbitration award), the master arbitrator affirmed the arbitration award.

In October 2023, Integrated Specialty commenced this proceeding to confirm the master arbitration award. The petition sought, inter alia, awards of attorneys’ fees pursuant to 11 NYCRR 65-4.6 (d) in the sum of 20% of the principal award, plus interest, and additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) in an amount to be determined on affirmation. American Transit did not answer or oppose the petition. In an order entered November 17, 2023 (hereinafter the November 2023 order), the Supreme Court, among other things, granted the unopposed petition. The November 2023 order also awarded Integrated Specialty attorneys’ fees pursuant to 11 NYCRR [*2]65-4.6 (d) in the sum of 20% of the principal award, plus interest, and additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) in an amount to be determined on submission of an affirmation of attorneys’ fees.

In a judgment entered January 12, 2024, the Supreme Court, upon the November 2023 order, inter alia, awarded Integrated Specialty attorneys’ fees pursuant to 11 NYCRR 65-4.6 (d) in the sum of $1,000 and did not award Integrated Specialty additional attorneys’ fees pursuant to 11 NCYRR 65-4.10 (j) (4). Integrated Specialty appeals.

Pursuant to 11 NYCRR 65-4.6 (d), attorneys’ fees for an arbitration and a master arbitration in which a petitioner ultimately prevailed are limited to “20 percent of the total amount of first-party benefits and any additional first-party benefits, plus interest thereon for each applicant per arbitration or court proceeding, subject to a maximum fee of $1,360.” As conceded by American Transit, the Supreme Court erroneously awarded Integrated Specialty $1,000 instead of $1,360 pursuant to 11 NYCRR 65-4.6 (d). Accordingly, the court should have awarded Integrated Specialty attorneys’ fees pursuant to 11 NYCRR 65-4.6 (d) in the sum of $1,360 (see id.).

Moreover, Integrated Specialty was entitled to an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) for services rendered in connection with this CPLR article 75 proceeding, as a proceeding to confirm an arbitration award is a “court appeal” for the purposes of 11 NYCRR 65-4.10 (j) (4) (see Matter of John T. Mather Memorial Hosp v Am. Transit Ins. Co., 247 AD3d 1188 [2026]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2017]). In the November 2023 order, the Supreme Court properly determined that Integrated Specialty was entitled to such fees and directed Integrated Specialty to submit an affirmation of attorneys’ fees for the court to determine the amount of additional fees to be awarded, but the judgment did not award such fees, and the record reflects no apparent basis for that omission (see Matter of American Tr. Ins. Co. v Rutland Med. PC, 224 AD3d 531, 532 [2024]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 706). Contrary to American Transit’s contention, the record sufficiently demonstrates that Integrated Specialty properly submitted an affirmation of attorneys’ fees to the court. The record has been properly certified by Integrated Specialty’s attorney as an accurate copy of the papers on file with the court (see CPLR 2105), and, moreover, we take judicial notice of the fact that Integrated Specialty filed an affirmation of attorneys’ fees with the proposed judgment on the New York State Courts Electronic Filing System (see Wells Fargo Bank, N.A. v Ballard, 172 AD3d 1440, 1442 [2019]).

Accordingly, we remit this matter to the Supreme Court, Nassau County, for a determination of the amount of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) to be awarded to Integrated Specialty and thereafter for the entry of an appropriate amended judgment (see Matter of American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 236 AD3d 782, 783 [2025]; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705).

The parties’ remaining contentions are without merit. Connolly, J.P., Chambers, Voutsinas and Goldberg Velazquez, JJ., concur.

Matter of American Tr. Ins. Co. v Smart Choice Med., P.C. (2026 NY Slip Op 02646)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Smart Choice Med., P.C. (2026 NY Slip Op 02646)

Matter of American Tr. Ins. Co. v Smart Choice Med., P.C.

2026 NY Slip Op 02646 [248 AD3d 1233]

Decided on April 29, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, June 10, 2026

April 29, 2026

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated December 29, 2022, in which Smart Choice Medical, P.C., as assignee of Kingsley Parker, cross-petitioned, inter alia, pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of reasonable attorneys’ fees, Smart Choice Medical, P.C., appeals from a judgment of the Supreme Court, Kings County (Francois A. Rivera, J.), dated May 7, 2024. The judgment, insofar as appealed from, upon so much of an order of the same court dated April 22, 2024, as denied that branch of the motion of Smart Choice Medical, P.C., which was for leave to renew its application for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), which had been denied in an order of the same court dated November 30, 2023, failed to award Smart Choice Medical, P.C., additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

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

American Transit Insurance Company (hereinafter the petitioner) commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated December 29, 2022, confirming an arbitration award entered in favor of Smart Choice Medical, P.C. (hereinafter Smart Choice). Smart Choice cross-petitioned, inter alia, to confirm the master arbitration award and pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees. In an order dated August 23, 2023 (hereinafter the August 2023 order), the Supreme Court, among other things, upon its determination that Smart Choice was entitled to an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), set forth a briefing schedule for Smart Choice to submit an affirmation on the issue of the amount of attorneys’ fees to be awarded (hereinafter the affirmation of attorneys’ fees) and for the petitioner to submit opposition thereto.

Thereafter, Smart Choice filed the affirmation of attorneys’ fees. The petitioner opposed Smart Choice’s application for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), inter alia, on the ground that the affirmation of attorneys’ fees was not timely filed in accordance with the court-ordered briefing schedule. In reply, Smart Choice admitted that the affirmation of attorneys’ fees was “tardy,” and attributed the tardiness to law office error in the use of case management tracking software, but asked the Supreme Court to excuse the tardiness on [*2]the ground that the petitioner was not prejudiced. In an order dated November 30, 2023, the court denied Smart Choice’s application for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) on the ground that Smart Choice failed to comply with the court’s briefing schedule and, thus, filed the affirmation of attorneys’ fees late.

In December 2023, Smart Choice moved, among other things, for leave to renew its application for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). In support of renewal, Smart Choice argued for the first time that it could not comply with the Supreme Court’s briefing schedule because Smart Choice’s deadline for submitting the affirmation of attorneys’ fees had already passed by the time the August 2023 order setting forth the briefing schedule was signed and uploaded to the court’s electronic case filing system. The petitioner opposed Smart Choice’s motion, contending that Smart Choice had not offered new information that was unavailable when the court made its initial determination to deny Smart Choice’s application and submitted a copy of an email from Smart Choice to the court demonstrating that Smart Choice was aware of the deadline for submitting the affirmation of attorneys’ fees in time to comply. In an order dated April 22, 2024, the court, inter alia, denied that branch of Smart Choice’s motion. Thereafter, in a judgment dated May 7, 2024, the court, among other things, failed to award Smart Choice additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). Smart Choice appeals from the judgment.

“A motion for leave to renew is addressed to the sound discretion of the court” (Carmike Holding I, LLC v Smith, 180 AD3d 744, 747 [2020] [internal quotation marks omitted]). Pursuant to CPLR 2221 (e), a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination (see CPLR 2221 [e] [2]) and shall contain reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221 [e] [3]). “The new or additional facts either must have not been known to the party seeking renewal or may, in the Supreme Court’s discretion, be based on facts known to the party seeking renewal at the time of the original motion” (Carmike Holding I, LLC v Smith, 180 AD3d at 747 [internal quotation marks omitted]; see Seror v Clearview Operating Co., LLC, 235 AD3d 1023, 1025 [2025]). “However, in either instance, a reasonable justification for the failure to present such facts on the original motion must be presented” (Cioffi v S.M. Foods, Inc., 129 AD3d 888, 891 [2015] [internal quotation marks omitted]; see Carmike Holding I, LLC v Smith, 180 AD3d at 747). Reasonable justification does not exist where “the ‘new evidence’ consists of documents which the [moving party] knew existed, and were in fact in his own possession at the time the initial motion was made” (Rowe v NYCPD, 85 AD3d 1001, 1003 [2011]; see Cioffi v S.M. Foods, Inc., 129 AD3d at 891).

Here, the purported new information that Smart Choice relied upon was available to it prior to the date it filed its motion, and it failed to set forth a reasonable justification for its failure to submit this information in the first instance (see Seror v Clearview Operating Co., LLC, 235 AD3d at 1025; Carmike Holding I, LLC v Smith, 180 AD3d at 747; Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 586 [2012]; Jovanovic v Jovanovic, 96 AD3d 1019, 1020 [2012]; Rowe v NYCPD, 85 AD3d at 1003). Accordingly, the Supreme Court properly denied that branch of Smart Choice’s motion which was for leave to renew its application for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

Smart Choice’s remaining contention is without merit. Connolly, J.P., Chambers, Voutsinas and Goldberg Velazquez, JJ., concur.

Matter of American Tr. Ins. Co. v Citimed Surgery Ctr., LLC (2026 NY Slip Op 02645)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Citimed Surgery Ctr., LLC (2026 NY Slip Op 02645)

Matter of American Tr. Ins. Co. v Citimed Surgery Ctr., LLC

2026 NY Slip Op 02645 [248 AD3d 1232]

Decided on April 29, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, June 10, 2026

April 29, 2026

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated January 26, 2023, in which Citimed Surgery Center, LLC, as assignee of Cruz Marroquin, cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees, Citimed Surgery Center, LLC, appeals from a judgment of the Supreme Court, Kings County (Robin K. Sheares, J.), dated April 2, 2024. The judgment, insofar as appealed from, upon so much of an order of the same court dated May 11, 2023, as granted that branch of the cross-petition of Citimed Surgery Center, LLC, which was pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees to the extent of directing Citimed Surgery Center, LLC, to submit a motion for an award of additional attorneys’ fees with supporting affirmation within 30 days, and upon an order of the same court dated March 7, 2024, denying the motion of Citimed Surgery Center, LLC, pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees, failed to award Citimed Surgery Center, LLC, additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

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

American Transit Insurance Company commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated January 26, 2023, confirming an arbitration award entered in favor of Citimed Surgery Center, LLC (hereinafter Citimed). Citimed 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 attorneys’ fees. In an order dated May 11, 2023, the Supreme Court, inter alia, upon its determination that Citimed was entitled to additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) granted that branch of the cross-petition which was pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees to the extent of directing Citimed to “submit a motion for attorney’s fees with supporting affirmation within thirty (30) days and allow Petitioner to oppose motion, and the Court can decide reasonable attorney fees after the submission of papers and oral argument.”

Citimed did not file its motion pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees with supporting affirmation until July 13, 2023, and failed to acknowledge [*2]or explain its tardiness. In an order dated December 7, 2023, the Supreme Court denied Citimed’s motion “due to the non-appearance of the Movant at the first and second calendar calls.” In December 2023, Citimed filed a second motion pursuant to 11 NYCRR 65-4.10 (j) (4) for an award of additional attorneys’ fees (hereinafter Citimed’s second motion), which made no reference to the prior motion for the same relief and again failed to acknowledge or explain Citimed’s tardiness in moving for such relief. In an order dated March 7, 2024, the court denied Citimed’s second motion as untimely. Thereafter, the court issued a judgment, among other things, failing to award Citimed additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). CitiMed appeals.

Contrary to Citimed’s contentions, the Supreme Court properly denied Citimed’s second motion as untimely. The Court of Appeals has made it clear that court-ordered time frames are to be taken seriously (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004]; Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). “If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity” (Kihl v Pfeffer, 94 NY2d at 123). Here, Citimed’s second motion was filed beyond the court-ordered 30-day filing period, thereby rendering Citimed’s second motion untimely (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d at 726; Thomsen v Suffolk County Police Dept., 50 AD3d 1015, 1017 [2008]).

Citimed’s remaining contention is without merit.

As the Supreme Court properly denied Citimed’s second motion as untimely, we affirm the judgment insofar as appealed from. Connolly, J.P., Chambers, Voutsinas and Goldberg Velazquez, JJ., concur.

Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Ctr., LLC (2026 NY Slip Op 02644)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Ctr., LLC (2026 NY Slip Op 02644)

Matter of American Tr. Ins. Co. v Bay Ridge Surgi-Ctr., LLC

2026 NY Slip Op 02644 [248 AD3d 1229]

Decided on April 29, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, June 10, 2026

April 29, 2026

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated June 28, 2022, Bay Ridge Surgi-Center, LLC, appeals from a judgment of the Supreme Court, Kings County (Ingrid Joseph, J.), dated April 26, 2024. The judgment, insofar as appealed from, upon so much of an order of the same court dated November 21, 2023, as failed to award Bay Ridge Surgi-Center, LLC, additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), and upon so much of an order of the same court dated April 17, 2024, as denied that branch of the motion of Bay Ridge Surgi-Center, LLC, which was pursuant to CPLR 5015 (a) (1) to vacate so much of the order dated November 21, 2023, issued upon the default of Bay Ridge Surgi-Center, LLC, in appearing for oral argument, as failed to award Bay Ridge Surgi-Center, LLC, additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) and, in effect, upon reargument, adhered to so much of the prior determination in the order dated November 21, 2023, as failed to award Bay Ridge Surgi-Center, LLC, additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), did not award Bay Ridge Surgi-Center, LLC, additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

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

In September 2022, American Transit Insurance Company (hereinafter the petitioner) commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated June 28, 2022, confirming an arbitration award entered in favor of Bay Ridge Surgi-Center, LLC (hereinafter Bay Ridge). Bay Ridge opposed the petition.

In an order dated November 21, 2023 (hereinafter the November 2023 order), the Supreme Court, upon Bay Ridge’s failure to appear for oral argument, inter alia, denied the petition on the merits and confirmed the master arbitration award. In addition, as relevant to this appeal, the November 2023 order failed to award Bay Ridge additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4).

In December 2023, Bay Ridge moved, among other things, pursuant to CPLR 5015 (a) (1) to vacate so much of the November 2023 order, issued upon Bay Ridge’s default in appearing for oral argument, as failed to award Bay Ridge additional attorneys’ fees pursuant to 11 [*2]NYCRR 65-4.10 (j) (4) and for “leave to reargue the branch of the [November 2023 order] denying [Bay Ridge] its attorney fee, . . . and, upon reargument, vacating the order and granting [Bay Ridge] its attorney fee, pursuant to 11 NYCRR 65-4.10 (j) (4).” In an order dated April 17, 2024, the Supreme Court, inter alia, denied that branch of Bay Ridge’s motion which was pursuant to CPLR 5015 (a) (1) to vacate so much of the November 2023 order, issued upon Bay Ridge’s default in appearing for oral argument, as failed to award Bay Ridge additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) and, in effect, upon reargument, adhered to so much of the prior determination in the November 2023 order as failed to award Bay Ridge additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). The court noted that while Bay Ridge failed to appear at oral argument on the petition, the November 2023 order determined the petition on the merits in Bay Ridge’s favor. The court further noted that the November 2023 order had not addressed the issue of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) because Bay Ridge had not requested such relief and that to the extent that Bay Ridge was seeking such relief in the first instance, Bay Ridge had failed to include an affirmation of attorneys’ fees in support of its application. Thereafter, in a judgment dated April 26, 2024, the court, among other things, did not award Bay Ridge additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). Bay Ridge appeals.

The Supreme Court properly denied that branch of Bay Ridge’s motion which was pursuant to CPLR 5015 (a) (1) to vacate so much of the November 2023 order, issued upon Bay Ridge’s default in appearing for oral argument, as failed to award Bay Ridge additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4), as Bay Ridge opposed the petition and the court determined the petition on the merits and not upon default (see CPLR 5015 [a] [1]; Cole-Hatchard v Eggers, 132 AD3d 718, 719 [2015]).

Further, Bay Ridge’s contention that it was entitled to an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) was raised for the first time in connection with that branch of its motion which was for reargument. A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided or to present arguments different from those originally presented (see FPG CH 94 Amity, LLC v Pizzarotti, LLC, 218 AD3d 651, 653 [2023]; Flanagan v Delaney, 194 AD3d 694, 698 [2021]). In any event, on the merits, the Supreme Court did not err in declining to award Bay Ridge additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4). That regulation provides, in pertinent part, that “[t]he attorney’s fee for services rendered in connection with . . . a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (id.). The court’s determination of an award of attorneys’ fees “must be based upon a demonstration of the hours reasonably expended on the litigation and what is reasonable compensation for the attorney based upon the prevailing rate for similar work in the community” (RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-840 [2016]). “The attorney bears the burden of establishing the reasonable value of the services rendered through contemporaneous time records specifying the date, hours expended, and nature of the work performed” (Hershfield v Davidoff, 233 AD3d 923, 924 [2024] [internal quotation marks omitted]). Here, where the petitioner neither made a timely application for an award of additional attorneys’ fees pursuant to 11 NYCRR 65-4.10 (j) (4) prior to the determination of the petition nor submitted any documentation of the additional attorneys’ fees incurred, the court properly declined to award such fees (see Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 220 AD3d 461 [2023]). Connolly, J.P., Chambers, Voutsinas and Goldberg Velazquez, JJ., concur.