Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50199(U))

Reported in New York Official Reports at Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50199(U))

[*1]

Healthway Med. Care, P.C. v MVAIC

2026 NY Slip Op 50199(U) [88 Misc 3d 129(A)]

Decided on January 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 23, 2026

PRESENT: : JOANNE D. QUIÑONES, J.P., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-51 K C

Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant.

The Rybak Firm, PLLC (Oleg Rybak, of counsel), 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 October 9, 2024. The order, insofar as appealed from, in effect, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits in the total amount of $2,289.13 for services rendered from October 2017 through April 2018, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground of exhaustion of available coverage. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. By order dated October 9, 2024, the Civil Court (Odessa Kennedy, J.), in effect, denied the motion and cross-motion, but found, in effect pursuant to CPLR 3212 (g), that “plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and defendant issued timely denials.” The court held that triable issues of fact remained as to MVAIC’s exhaustion of coverage and fee schedule defenses.

To obtain summary judgment on its asserted defense that the limits of any available coverage had already been exhausted, MVAIC had to prove that its payments exhausted the available coverage in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, the affidavit of MVAIC’s claims representative was sufficient to lay a [*2]foundation for MVAIC’s payment log to be admitted as a business record (see CPLR 4518 [a]). However, as the payment log does not set forth the dates on which MVAIC had received the various claims and the dates on which such claims became fully verified, MVAIC failed to demonstrate, as a matter of law, that the limits of the available coverage had been exhausted in accordance with 11 NYCRR 65-3.15. Consequently, MVAIC’s motion for summary judgment dismissing the complaint was properly denied (see JFL Med. Care, P.C. v MVAIC, 81 Misc 3d 145[A], 2024 NY Slip Op 50202[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

We note that, while the Civil Court held that a triable issue of fact exists as to MVAIC’s fee schedule defense, MVAIC did not raise a fee schedule defense in support of its motion for summary judgment.

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

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 23, 2026Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50200(U))

Reported in New York Official Reports at Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50200(U))

[*1]

Healthway Med. Care, P.C. v MVAIC

2026 NY Slip Op 50200(U) [88 Misc 3d 129(A)]

Decided on January 23, 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.

Decided on January 23, 2026

PRESENT: : JOANNE D. QUIÑONES, J.P., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-157 K C

Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, of counsel), 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 October 9, 2024. The order, insofar as appealed from, in effect, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits in the total amount of $1,384.21 for services rendered from October 2017 to February 2018, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the first, third, fourth, fifth, and sixth causes of action on the ground of exhaustion of available coverage, dismissing the first cause of action on the additional ground of untimely submission of the claim underlying that cause of action, and dismissing the second cause of action on the ground of MVAIC having paid the claim underlying that cause of action in accordance with the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. By order dated October 9, 2024, the Civil Court (Odessa Kennedy, J.) denied the motion and cross-motion, finding, in effect, purportedly pursuant to CPLR 3212 (g), that plaintiff had “establishe[d] its prima face case of timely and properly submitting the bills” underlying causes of action two through six and that defendant had “issued timely denials.”

To obtain summary judgment on its asserted defense that the limits of any available [*2]coverage had already been exhausted, MVAIC had to prove that its payments exhausted the available coverage in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, the affidavit of MVAIC’s claims representative was sufficient to lay a foundation for MVAIC’s payment log to be admitted as a business record (see CPLR 4518 [a]). However, as the payment log does not set forth the dates on which MVAIC had received the various claims and the dates on which such claims became fully verified, MVAIC failed to demonstrate, as a matter of law, that the limits of the available coverage had been exhausted in accordance with 11 NYCRR 65-3.15. Consequently, the branch of MVAIC’s motion seeking summary judgment dismissing the first, third, fourth, fifth, and sixth causes of action on this ground was properly denied (see JFL Med. Care, P.C. v MVAIC, 81 Misc 3d 145[A], 2024 NY Slip Op 50202[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

The affidavit of defendant’s claims representative demonstrated that MVAIC did not receive the claim underlying the first cause of action within 45 days of the services rendered (see 11 NYCRR 65-2.4 [c]; 65-3.3 [e]). However, plaintiff submitted an affidavit from plaintiff’s billing clerk that was sufficient to give rise to a presumption that the claim form had been timely mailed to, and received by, MVAIC (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, contrary to MVAIC’s contention, there is an issue of fact as to whether the claim was timely submitted to MVAIC (see Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Contrary to MVAIC’s argument, it failed to sufficiently demonstrate, prima facie, that it had properly applied CPT code 95834 to the claim underlying the second cause of action that had been billed by plaintiff under CPT code 95831 (cf. Spineisland for Chiropractic, P.C. v 21st Century Advantage Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50598[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

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

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 23, 2026Acupuncture Now, P.C. v MVAIC (2026 NY Slip Op 50196(U))

Reported in New York Official Reports at Acupuncture Now, P.C. v MVAIC (2026 NY Slip Op 50196(U))

[*1]

Acupuncture Now, P.C. v MVAIC

2026 NY Slip Op 50196(U) [88 Misc 3d 128(A)]

Decided on January 23, 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.

Decided on January 23, 2026

PRESENT: : JOANNE D. QUIÑONES, J.P., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-47 K C

Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant.

The Rybak Firm, PLLC (Oleg Rybak, of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered October 12, 2024. The order, insofar as appealed from, in effect, denied defendant’s motion for summary judgment dismissing the complaint or, in the alternative, dismissing so much of the complaint as sought to recover sums that were in excess of $1,591.51.

ORDERED that the order, insofar as appealed from, is modified by granting the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of $1,591.51; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits in the total amount of $2,016.60 for services rendered from October 2017 to February 2018, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground of exhaustion of available coverage or, in the alternative, dismissing so much of the complaint as sought to recover sums that were in excess of $1,591.51, the allowable amount permitted under the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. By order entered October 12, 2024, the Civil Court (Sandra E. Roper, J.), in effect, denied the motion and cross-motion, but found, in effect pursuant to CPLR 3212 (g), that both parties “had established their respective prima facie cases” and that a triable issue of fact remained only as to [*2]MVAIC’s exhaustion of coverage defense.

To obtain summary judgment on its asserted defense that the limits of any available coverage had already been exhausted, MVAIC had to prove that its payments exhausted the available coverage in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, as MVAIC failed to set forth the dates on which it had received the various claims and the dates on which such claims became fully verified, MVAIC failed to demonstrate, as a matter of law, that the limits of the available coverage had been exhausted in accordance with 11 NYCRR 65-3.15. Consequently, the branch of MVAIC’s motion seeking summary judgment dismissing the complaint on this ground was properly denied (see JFL Med. Care, P.C. v MVAIC, 81 Misc 3d 145[A], 2024 NY Slip Op 50202[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

The Civil Court implicitly denied the branch of MVAIC’s motion seeking summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of $1,591.51, the amount permitted by the workers’ compensation fee schedule. This court has repeatedly held that the workers’ compensation fee schedule for acupuncture services performed by chiropractors before October 1, 2020 is the appropriate fee schedule for insurers to use to determine the amount which a licensed acupuncturist is entitled to receive for acupuncture services (see e.g. Mind & Body Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 141[A], 2022 NY Slip Op 50603[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co., 69 Misc 3d 140[A], 2020 NY Slip Op 51337[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Jing Luo Acupuncture, P.C. v NY City Tr. Auth., 60 Misc 3d 136[A], 2018 NY Slip Op 51083[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 58 Misc 3d 137[A], 2017 NY Slip Op 51832[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; New Wave Oriental Acupuncture, P.C. v Government Empls. Ins. Co., 25 Misc 3d 133[A], 2009 NY Slip Op 52211[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Here, MVAIC conclusively established that, in accordance with the fee schedule for acupuncture services performed by chiropractors before October 1, 2020, each claim bearing code 97810 should have been billed at $20.52, each claim bearing code 97811 should have been billed at $17.57, each claim bearing code 97139 should have been billed at $16.70, and each claim bearing code 99212 should have been billed at $26.41. Consequently, MVAIC established, as a matter of law, that the fees plaintiff charged for those services rendered from October 2017 to February 2018 exceeded the amounts set forth in the workers’ compensation fee schedule by a total of $425.09 and that, therefore, so much of the complaint as sought to recover an amount in excess of $1,591.51 must be dismissed.

Accordingly, the order, insofar as appealed from, is modified by granting the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of $1,591.51.

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 23, 2026Acupuncture Now, P.C. v MVAIC (2026 NY Slip Op 50197(U))

Reported in New York Official Reports at Acupuncture Now, P.C. v MVAIC (2026 NY Slip Op 50197(U))

[*1]

Acupuncture Now, P.C. v MVAIC

2026 NY Slip Op 50197(U) [88 Misc 3d 129(A)]

Decided on January 23, 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.

Decided on January 23, 2026

PRESENT: : JOANNE D. QUIÑONES, J.P., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-49 K C

Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant.

The Rybak Firm, PLLC (Oleg Rybak, of counsel), 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 October 9, 2024. The order, insofar as appealed from, in effect, denied defendant’s motion for summary judgment dismissing the complaint or, in the alternative, dismissing so much of the complaint as sought to recover sums that were in excess of $1,580.80.

ORDERED that the order, insofar as appealed from, is modified by granting the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of $1,580.80; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits in the total amount of $2,373.20 for services rendered from March 2018 to April 2018, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground of exhaustion of available coverage or, in the alternative, dismissing so much of the complaint as sought to recover sums that were in excess of $1,580.80, the allowable amount permitted under the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. By order dated October 9, 2024, the Civil Court (Odessa Kennedy, J.), in effect, denied the motion and cross-motion, but found, in effect pursuant to CPLR 3212 (g), “that plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and defendant issued timely denials” and that [*2]triable issues of fact remained as to MVAIC’s exhaustion of coverage and fee schedule defenses.

To obtain summary judgment on its asserted defense that the limits of any available coverage had already been exhausted, MVAIC had to prove that its payments exhausted the available coverage in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, the affidavit of MVAIC’s claims representative was sufficient to lay a foundation for MVAIC’s payment log to be admitted as a business record (see CPLR 4518 [a]). However, as the payment log does not set forth the dates on which MVAIC had received the various claims and the dates on which such claims became fully verified, MVAIC failed to demonstrate, as a matter of law, that the limits of the available coverage had been exhausted in accordance with 11 NYCRR 65-3.15. Consequently, the branch of MVAIC’s motion seeking summary judgment dismissing the complaint on this ground was properly denied (see JFL Med. Care, P.C. v MVAIC, 81 Misc 3d 145[A], 2024 NY Slip Op 50202[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

However, the Civil Court erred in denying the branch of MVAIC’s motion seeking summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of $1,580.80, the amount permitted by the workers’ compensation fee schedule. This court has repeatedly held that the workers’ compensation fee schedule for acupuncture services performed by chiropractors before October 1, 2020 is the appropriate fee schedule for insurers to use to determine the amount which a licensed acupuncturist is entitled to receive for acupuncture services (see e.g. Mind & Body Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 141[A], 2022 NY Slip Op 50603[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co., 69 Misc 3d 140[A], 2020 NY Slip Op 51337[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Jing Luo Acupuncture, P.C. v NY City Tr. Auth., 60 Misc 3d 136[A], 2018 NY Slip Op 51083[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; GBI Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 58 Misc 3d 137[A], 2017 NY Slip Op 51832[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; New Wave Oriental Acupuncture, P.C. v Government Empls. Ins. Co., 25 Misc 3d 133[A], 2009 NY Slip Op 52211[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Here, MVAIC conclusively established its defense that, for claims bearing the code 97139, the fees charged for services rendered from March 2018 to April 2018 exceeded the amounts set forth in the workers’ compensation fee schedule for acupuncture services performed by chiropractors for a total of $792.40.

Accordingly, the order, insofar as appealed from, is modified by granting the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover sums that were in excess of $1,580.80.

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 23, 2026Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50198(U))

Reported in New York Official Reports at Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50198(U))

[*1]

Healthway Med. Care, P.C. v MVAIC

2026 NY Slip Op 50198(U) [88 Misc 3d 129(A)]

Decided on January 23, 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.

Decided on January 23, 2026

PRESENT: : JOANNE D. QUIÑONES, J.P., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-50 K C

Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant.

The Rybak Firm, PLLC (Oleg Rybak, of counsel), 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 October 9, 2024. The order, insofar as appealed from, in effect, denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross-motion for summary judgment, made an implicit CPLR 3212 (g) finding “that plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials” as to the first cause of action.

ORDERED that the order, insofar as appealed from, is modified by striking so much thereof as, upon denying plaintiff’s cross-motion for summary judgment, made an implicit CPLR 3212 (g) finding “that plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials” as to the first cause of action; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits in the total amount of $2,246.03 for services rendered from January 2018 to March 2018, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground of exhaustion of available coverage and dismissing the first cause of action on the ground that MVAIC had never received the claim underlying that cause of action. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. By order dated October 9, 2024, the Civil Court (Odessa Kennedy, J.) [*2]“granted” defendant’s motion and plaintiff’s cross-motion to the extent of finding, purportedly pursuant to CPLR 3212 (g), that plaintiff had “establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials” as to all causes of action and that “defendant’s defenses of fee schedule and policy exhaustion [were] triable issues.”

To obtain summary judgment on its asserted defense that the limits of any available coverage had already been exhausted, MVAIC had to prove that its payments exhausted the available coverage in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, the affidavit of MVAIC’s claims representative was sufficient to lay a foundation for MVAIC’s payment log to be admitted as a business record (see CPLR 4518 [a]). However, as the payment log does not set forth the dates on which MVAIC had received the various claims and the dates on which such claims became fully verified, MVAIC failed to demonstrate, as a matter of law, that the limits of the available coverage had been exhausted in accordance with 11 NYCRR 65-3.15. Consequently, the branch of MVAIC’s motion seeking summary judgment dismissing the complaint on this ground was properly denied (see JFL Med. Care, P.C. v MVAIC, 81 Misc 3d 145[A], 2024 NY Slip Op 50202[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

MVAIC correctly argues on appeal that it submitted sufficient proof to demonstrate that it had not received the claim form underlying the first cause of action (see SK Prime Med. Supply v MVAIC, 73 Misc 3d 141[A], 2021 NY Slip Op 51200[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). However, the affidavit of plaintiff’s billing clerk was sufficient to raise an issue of fact as to whether that claim had been mailed to MVAIC in accordance with a standard mailing practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Thus, there remains an issue of fact as to whether plaintiff properly submitted the claim form underlying the first cause of action to MVAIC (see Parisien v Travelers Ins. Co., 65 Misc 3d 154[A], 2019 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, MVAIC was not entitled to summary judgment dismissing the first cause of action (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), nor was plaintiff entitled to an implicit CPLR 3212 (g) finding that it “establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials” as to the first cause of action.

We note that, while the Civil Court held that a triable issue of fact exists as to MVAIC’s fee schedule defense, MVAIC did not raise a fee schedule defense in support of its motion for summary judgment.

Accordingly, the order, insofar as appealed from, is modified by striking so much thereof as, upon denying plaintiff’s cross-motion for summary judgment, made an implicit CPLR 3212 (g) finding “that plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials” as to the first cause of action.

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 23, 2026New Millennium Med. Imaging, P.C. v MVAIC (2026 NY Slip Op 50202(U))

Reported in New York Official Reports at New Millennium Med. Imaging, P.C. v MVAIC (2026 NY Slip Op 50202(U))

[*1]

New Millennium Med. Imaging, P.C. v MVAIC

2026 NY Slip Op 50202(U) [88 Misc 3d 129(A)]

Decided on January 23, 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.

Decided on January 23, 2026

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-428 K C

Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Angelique Evangelista and David Gierasch of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered December 3, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint and implicitly denied, as moot, plaintiff’s cross-motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court to determine plaintiff’s cross-motion for summary judgment.

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.) entered December 3, 2024 granting a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint, and implicitly denying, as moot, plaintiff’s cross-motion for summary judgment.

In support of its motion for summary judgment, MVAIC asserted that plaintiff’s assignor is not a “qualified person” (Insurance Law § 5202 [b]) because, under Vehicle and Traffic Law § 128, he was deemed to be an “owner” of the vehicle (see Insurance Law § 5102 [e]). Vehicle and Traffic Law § 128 provides that an “owner” is

“A person, other than a lien holder, having the property in or title to a vehicle or vessel. The term includes a person entitled to the use and possession of a vehicle or vessel subject to a security interest in another person and also includes any lessee or bailee of a [*2]motor vehicle or vessel having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days.”

Here, MVAIC’s motion failed to make a prima facie showing that plaintiff’s assignor had the exclusive use of the vehicle, either as a bailee or as a lessee, for a period greater than 30 days, or that he was entitled to the use and possession of the vehicle that was subject to a security interest in another person (see Vehicle and Traffic Law § 128; UCC 1-201 [b] [35]). Consequently, the Civil Court improperly deemed plaintiff’s assignor to be an “owner” of the vehicle and, thus, defendant’s motion should have been denied, as MVAIC failed to establish that the assignor was not a “qualified person” (see Vehicle and Traffic Law § 128; Insurance Law §§ 5102 [e]; 5202 [b]).

As the Civil Court implicitly denied plaintiff’s cross-motion for summary judgment as moot, in view of the foregoing, the matter must be remitted to the Civil Court for a determination of plaintiff’s cross-motion.

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court to determine plaintiff’s cross-motion for summary judgment.

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 23, 2026Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50184(U))

Reported in New York Official Reports at Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50184(U))

[*1]

Kalitenko v Nationwide Mut. Fire Ins. Co.

2026 NY Slip Op 50184(U) [88 Misc 3d 127(A)]

Decided on January 16, 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.

Decided on January 16, 2026

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-874 RI C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor was ineligible to collect first-party no-fault benefits because he was operating a motorcycle at the time of the accident. In support of the motion, defendant submitted the transcript of plaintiff’s assignor’s examination under oath (EUO) in which he interchangeably referred to the motor vehicle he was operating at the time of the accident as a “moped” or “motorcycle.” He testified that the vehicle had a seat and a floorboard, but did not have pedals, and that the maximum speed of the vehicle was more than 40 miles per hour. Plaintiff’s assignor admitted that he did not have a driver’s license and that he had no insurance for the vehicle. Defendant also submitted a copy of the relevant insurance policy issued to the other individual involved in the accident, which policy stated that persons occupying a “[m]otorcycle, moped or similar-type vehicle” are not entitled to first-party benefits coverage. Plaintiff opposed the motion, arguing that the EUO transcript was inadmissible because it was not signed by the assignor and that, in any event, the vehicle that plaintiff’s assignor was driving did not qualify as a motorcycle under the Insurance Law. In an order dated August 15, 2024, the Civil Court (Robert J. Helbock, J.) granted defendant’s motion.

Contrary to plaintiff’s contention, the certified EUO transcript was admissible, even though it was not signed by plaintiff’s assignor (see American States Ins. Co. v Huff, 119 AD3d 478, 479 [2014]; Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc 3d 147[A], 2015 NY Slip Op 50756[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Compas Med., P.C. v ELRAC, Inc., 47 Misc 3d 143[A], 2015 NY Slip Op 50675[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Pursuant to Insurance Law § 5102 (j), a ” ‘[c]overed person’ means any pedestrian injured through the use or operation of, or any owner, operator or occupant of, a motor vehicle which has in effect the financial security required by article six or eight of the vehicle and traffic law or which is referred to in subdivision two of section three hundred twenty-one of such law; or any other person entitled to first party benefits.” Insurance Law § 5102 (f) specifically excludes motorcycles from the definition of a motor vehicle (see Insurance Law § 5102 [m]), and, thus, occupants of a motorcycle are not entitled to first-party no-fault benefits in New York (see Insurance Law § 5103 [a] [1], [2]; 11 NYCRR 65-1.1 [d]; Jung v Glover, 169 AD3d 782, 784 [2019]; Boyson v Kwasowsky, 129 AD3d 151, 152, 154 [2015]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 228 [2011]; Carbone v Visco, 115 AD2d 948 [1985]).

“A motorcycle is defined in the Insurance Law as ‘any motorcycle, as defined in [Vehicle and Traffic Law § 123], and which is required to carry financial security pursuant to article six, eight or forty-eight-A of the vehicle and traffic law’ (Insurance Law § 5102 [m] [emphasis added])” (Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d at 228). To the extent that plaintiff argues that the vehicle operated by plaintiff’s assignor did not qualify as a motorcycle required to carry financial security, we disagree. Upon a review of plaintiff’s assignor’s EUO testimony, we find that the vehicle plaintiff’s assignor was operating at the time of the accident was a motorcycle, as defined in Insurance Law § 5102 (m), because the vehicle had a seat, was operated using gas and electricity, and clearly had three or less wheels, given plaintiff’s assignor’s description of the vehicle as a “moped,” or “motorcycle” (see Vehicle and Traffic Law §§ 123, 125). Further, plaintiff’s assignor’s testimony regarding the speed of the vehicle demonstrates that the vehicle was required to carry financial security, as he testified that the vehicle had a maximum speed of more than 40 miles per hour (see Vehicle and Traffic Law §§ 121-b, 125, 311 [2]; 312 [1] [a]; 2265 [3]). Consequently, defendant met its prima facie burden of establishing that plaintiff’s assignor was ineligible to collect no-fault benefits under the insurance policy issued to the other individual involved in the accident (see Insurance Law §§ 5102 [j], [m]; 5103 [a] [1], [2]; 11 NYCRR 65-1.1 [d]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d at 228-229), and plaintiff failed to raise a triable issue of fact in opposition.

As defendant established that the accident was not a covered incident (see Insurance Law § 5102 [j]; Jung v Glover, 169 AD3d at 784), we need not pass upon plaintiff’s contention that the claim was not timely denied, as a defense of lack of coverage is not precluded even in the absence of a timely denial (see generally Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563-564 [2008]).

Accordingly, the order is affirmed.

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50185(U))

Reported in New York Official Reports at Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50185(U))

[*1]

Kalitenko v Nationwide Mut. Fire Ins. Co.

2026 NY Slip Op 50185(U) [88 Misc 3d 127(A)]

Decided on January 16, 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.

Decided on January 16, 2026

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-876 RI C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Robert J. Helbock, J.) dated August 15, 2024 granting defendant’s motion for summary judgment dismissing the complaint.

For the reasons stated in Kalitenko, as Assignee of Wascar Gomez-Hernandez v Nationwide Mut. Fire Ins. Co. (— Misc 3d —, 2026 NY Slip Op — [appeal No. 2024-874 RI C], decided herewith), the order is affirmed.

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50186(U))

Reported in New York Official Reports at Kalitenko v Nationwide Mut. Fire Ins. Co. (2026 NY Slip Op 50186(U))

[*1]

Kalitenko v Nationwide Mut. Fire Ins. Co.

2026 NY Slip Op 50186(U) [88 Misc 3d 127(A)]

Decided on January 16, 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.

Decided on January 16, 2026

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-877 RI C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, J.), dated August 15, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Robert J. Helbock, J.) dated August 15, 2024 granting defendant’s motion for summary judgment dismissing the complaint.

For the reasons stated in Kalitenko, as Assignee of Wascar Gomez-Hernandez v Nationwide Mut. Fire Ins. Co. (— Misc 3d —, 2026 NY Slip Op — [appeal No. 2024-874 RI C], decided herewith), the order is affirmed.

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026Bridgeview Supply Corp. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 50190(U))

Reported in New York Official Reports at Bridgeview Supply Corp. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 50190(U))

[*1]

Bridgeview Supply Corp. v Nationwide Mut. Ins. Co.

2026 NY Slip Op 50190(U) [88 Misc 3d 128(A)]

Decided on January 16, 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.

Decided on January 16, 2026

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2025-36 Q C

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Jay Koo and Koenig Pierre of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sandra Perez, J.), dated October 29, 2024. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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 Perez, J.) entered October 31, 2024 as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found, in effect, pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and that plaintiff had failed to appear for the EUOs. The Civil Court further found that there was a “triable issue of fact surrounding the EUOs,” because “[p]laintiff . . . established that [it] objected to the reasonableness of each . . . request” for an EUO.

In order “to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insured need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground ‘following the [] failure to appear at the last scheduled EUO’ ” (Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am., 84 Misc 3d 136[A], 2024 NY Slip Op 51822[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud [*2]Dists 2024], quoting Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023]; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]). The Civil Court found, in effect, that the first two elements of defendant’s prima facie case had been established pursuant to CPLR 3212 (g). As part of this prima facie showing, an insurer is “not required to set forth objective reasons for requesting EUOs” (Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am., 2024 NY Slip Op 51822[U], *1-2; see Parisien v Ameriprise Auto & Home, 75 Misc 3d 138[A], 2022 NY Slip Op 50581[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; 21st Century Pharm., Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Bronx Chiropractic Care, P.C. v State Farm Ins., 63 Misc 3d 132[A], 2019 NY Slip Op 50423[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

The affidavits submitted by defendant constitute prima facie evidence that the denial of claim form had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff did not submit an affidavit to refute this evidence, nor did it challenge the implicit CPLR 3212 (g) findings in defendant’s favor with respect to the first two elements of defendant’s prima facie case. Plaintiff’s objection letters, in which plaintiff alleged that defendant did not have an objective basis for requesting an EUO, do not raise a triable issue of fact (see MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co., 77 Misc 3d 140[A], 2022 NY Slip Op 51384[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; NY Wellness Med., P.C. v Nationwide Mut. Ins. Co., 75 Misc 3d 126[A], 2022 NY Slip Op 50359[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; Bronx Chiropractic Care, P.C. v State Farm Ins., 2019 NY Slip Op 50423[U], *1-2; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As plaintiff failed to raise a triable issue of fact, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026