Circular Symmetry Acupuncture, P.C. v MTA Bus Co. (2026 NY Slip Op 50189(U))

Reported in New York Official Reports at Circular Symmetry Acupuncture, P.C. v MTA Bus Co. (2026 NY Slip Op 50189(U))

[*1]

Circular Symmetry Acupuncture, P.C. v MTA Bus Co.

2026 NY Slip Op 50189(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2025-19 K C

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Gottlieb Ostrager, LLP (Dominick Giannotto of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Javier Ortiz, J.), entered August 23, 2024. The order, insofar as appealed from, denied plaintiff’s motion to enter a default judgment and granted the branch of defendant’s cross-motion seeking to compel plaintiff to accept its untimely answer.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s cross-motion seeking to compel plaintiff to accept its untimely answer is denied, and plaintiff’s motion for leave to enter a default judgment is granted.

In this action to recover assigned first-party no-fault benefits, defendant was served with the summons and complaint on April 21, 2022, and defendant answered on June 9, 2022. Six days later, plaintiff moved for leave to enter a default judgment pursuant to CPLR 3215 based upon defendant’s untimely answer. Defendant cross-moved for, among other things, an order compelling plaintiff to accept its untimely answer. Plaintiff appeals from so much of an order of the Civil Court (Javier Ortiz, J.) entered August 23, 2024 as denied its motion and granted that branch of defendant’s cross-motion seeking to compel plaintiff to accept its untimely answer.

“In order to be entitled to enter a default judgment upon a defendant’s failure to appear or answer the complaint, a plaintiff must submit evidence of service of the summons and complaint upon the defendant, evidence of a viable cause of action, and evidence of the defendant’s default in appearing or answering (see CPLR 3215 [f]; L & Z Masonry Corp. v Mose, 167 AD3d 728, 729 [2018]; Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1194 [2017]; Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969, 970 [2016])” (Glanz v Parkway Kosher Caterers, 176 [*2]AD3d 686, 688 [2019]). Here, plaintiff satisfied these requirements.

As plaintiff has established that defendant was in default, defendant was required to come forward with a reasonable excuse for its default and to demonstrate a meritorious defense to the action to avoid the entry of a default judgment (see Juseinoski v Board of Educ. of City of NY, 15 AD3d 353 [2005]). Defendant failed to demonstrate a reasonable excuse for its default because it did not provide an affidavit by anyone with personal knowledge addressing why defendant had failed to timely answer the complaint (see Modern Art Med., P.C. v M.V.A.I.C., 35 Misc 3d 134[A], 2012 NY Slip Op 50759[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Similarly, defendant’s counsel made no attempt to set forth a reasonable excuse in his affirmation. Defendant contends that plaintiff waived any objection to the answer’s untimeliness in that, while plaintiff alleged that it had mailed a letter to defendant on June 10, 2022 rejecting the answer as untimely, defendant claimed that it had not received that letter until March 2023. Plaintiff, however, moved for leave to enter a default judgment six days after receiving defendant’s untimely answer, thereby expeditiously objecting to defendant’s failure to serve a timely answer and bringing that objection to the attention of defendant and the court. Consequently, plaintiff cannot be deemed to have waived any objection to the untimeliness of the answer (see Katz v Perl, 22 AD3d 806 [2005]; J.O. Dedicated Med., P.C. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 144[A], 2009 NY Slip Op 51089[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, we need not reach the issue of whether defendant established the existence of a meritorious defense.

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant’s cross-motion seeking to compel plaintiff to accept its untimely answer is denied, and plaintiff’s motion for leave to enter a default judgment is granted.

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

ENTER:
Jennifer Chan
Chief Clerk
Decision Date: January 16, 2026Matter of Progressive Cas. Ins. Co. v Lai (2026 NY Slip Op 00134)

Reported in New York Official Reports at Matter of Progressive Cas. Ins. Co. v Lai (2026 NY Slip Op 00134)

Matter of Progressive Cas. Ins. Co. v Lai

2026 NY Slip Op 00134 [245 AD3d 718]

January 14, 2026

Appellate Division, Second Department

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

As corrected through Wednesday, March 11, 2026

[*1]

In the Matter of Progressive Casualty Insurance Company, Appellant, v Grace Lai, Respondent.

Jennifer S. Adams, Yonkers, NY (Michael A. Zarkower of counsel), for appellant.

Morgan & Morgan (Horn Appellate Group, Brooklyn, NY [Scott T. Horn and Ross S. Friscia] of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for supplementary underinsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Westchester County (Damaris E. Torrent, J.), dated August 9, 2023. The order denied the petition and, in effect, dismissed the proceeding.

Ordered that the order is reversed, on the law, with costs, and the petition to permanently stay arbitration is granted.

In May 2021, the respondent allegedly sustained injuries in a two-car accident. The respondent had automobile insurance pursuant to a policy, which included a supplementary uninsured/underinsured motorist (hereinafter SUM) endorsement, issued by Progressive Casualty Insurance Company (hereinafter Progressive). Exclusion 1 of the SUM endorsement provided that SUM coverage did not apply to an insured’s bodily injury if the insured or the insured’s legal representatives, “without our written consent, settles any lawsuit against any person or organization that may be legally liable for such injury.” Condition 9 of the SUM endorsement provided, in part, that if the insured “settles with any [negligent] party for the available limit of the motor vehicle bodily injury liability coverage of such party, release may be executed with such party after thirty (30) calendar days from our receipt of your written notice to us . . . . An insured shall not otherwise settle with any negligent party, without our written consent, such that our rights would be impaired.”

Following the accident, the respondent commenced an action against the owner and the operator of the other vehicle (hereinafter together the tortfeasors). In February 2022, the respondent advised Progressive that she had settled the action for $100,000, which was the limit of the tortfeasors’ insurance policy. By letter dated March 16, 2022, Progressive disclaimed coverage on the ground that the respondent had signed a release of her claims against the tortfeasors without its written consent.

Thereafter, the respondent demanded arbitration of her claim for SUM benefits. Progressive then commenced this proceeding pursuant to CPLR article 75 to permanently stay arbitration of the respondent’s claim for SUM benefits. In an order dated August 9, 2023, the Supreme Court denied the petition and, in effect, dismissed the proceeding. Progressive appeals.

[*2] “[T]he question of arbitrability is an issue generally for judicial determination in the first instance” (Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 45 [1997]; see Matter of Kent Waterfront Assoc., LLC v National Union Fire Ins. Co. of Pittsburgh, 174 AD3d 712, 713 [2019]). “Where [an] arbitration clause is limited in scope, claims outside that scope are not deemed arbitrable” (Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 177 AD2d 695, 696 [1991]; see Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 7 [1980]).

Contrary to the respondent’s contention, an arbitration clause in the policy issued to the respondent cannot be read to cover the issue of whether coverage exists due to the claimed applicability of a policy exclusion. Rather, the arbitration clause was “particular, not general,” and “made arbitrable two fact issues only,” that is, whether the respondent was entitled to recover from the uninsured/underinsured motorist and the amount of damages recoverable under the SUM endorsement (Matter of Rosenbaum [American Sur. Co. of N.Y.], 11 NY2d 310, 314 [1962]; see Matter of Liberty Mut. Fire Ins. Co. v Rothfeld, 101 AD3d 725, 726 [2012]; cf. Matter of Prudential Prop. & Cas. Ins. Co. [Hildalgo], 133 AD2d 87, 87 [1987]).

“Where an automobile insurance policy expressly requires the insurer’s prior consent to any settlement by the insured with a tortfeasor, failure of the insured to obtain such prior consent from the insurer constitutes a breach of a condition of the insurance contract” (Davis v New York Schs. Ins. Reciprocal, 224 AD3d 879, 881 [2024] [internal quotation marks omitted]; see Matter of Travelers Home & Mar. Ins. Co. v Delgado, 218 AD3d 688, 689 [2023]). “When an insured settles with a tortfeasor in violation of a condition requiring his or her insurer’s written consent to settle, and fails to preserve the insurer’s subrogation rights, the insurer is prejudiced, and the insured is precluded from asserting a claim for underinsured motorist benefits” (Matter of Travelers Home & Mar. Ins. Co. v Kanner, 103 AD3d 736, 738 [2013]). “ ’The failure to obtain such consent disqualifies the insured from availing himself or herself of the pertinent benefits of the policy, unless the insured can demonstrate that the insurer, either by its conduct, silence, or unreasonable delay, waived the requirement of consent or acquiesced in the settlement’ ” (Matter of New S. Ins. Co. v Gordon, 228 AD3d 942, 943 [2024] [internal quotation marks omitted], quoting Matter of Travelers Personal Ins. Co. v Hanophy-Ryan, 200 AD3d 695, 696-697 [2021]; see Matter of Travelers Home & Mar. Ins. Co. v Delgado, 218 AD3d at 689).

Where, as here, the existence of a release in settlement of the relevant tort claim is established, the burden is on the insured to establish, “ ’by virtue of an express limitation in the release, or of a necessary implication arising from the circumstances of its execution, that the release did not operate to prejudice the subrogation rights of the insurer’ ” (Davis v New York Schs. Ins. Reciprocal, 224 AD3d at 881-882, quoting Matter of State Farm Fire & Cas. Co. v McLaurin, 171 AD3d 1191, 1193 [2019]; see Weinberg v Transamerica Ins. Co., 62 NY2d 379, 384 [1984]). Here, the respondent failed to demonstrate that Progressive waived the requirement of consent or acquiesced in the settlement by conduct, silence, or unreasonable delay (see Matter of Travelers Personal Ins. Co. v Hanophy-Ryan, 200 AD3d at 697). Further, contrary to the respondent’s contention, she failed to establish that the settlement and release did not operate to prejudice Progressive’s subrogation rights (see id.; Matter of Travelers Home & Mar. Ins. Co. v Kanner, 103 AD3d at 738). The respondent did not establish that there was an express limitation in the release she executed in favor of the tortfeasors and their insurance carrier that preserved these subrogation rights (see Weinberg v Transamerica Ins. Co., 62 NY2d at 384; Davis v New York Schs. Ins. Reciprocal, 224 AD3d at 882). Moreover, the respondent did not establish that any circumstances surrounding the execution of the release gave rise to a necessary implication that the release did not operate to prejudice Progressive’s subrogation rights (see Davis v New York Schs. Ins. Reciprocal, 224 AD3d at 882).

Accordingly, the Supreme Court should have granted the petition to permanently stay arbitration.

In light of our determination, we need not reach Progressive’s remaining contentions. Genovesi, J.P., Chambers, Taylor and Hom, JJ., concur.

Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C. (2025 NY Slip Op 07297)

Reported in New York Official Reports at Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C. (2025 NY Slip Op 07297)

Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C.

2025 NY Slip Op 07297

Decided on December 24, 2025

Appellate Division, Second Department

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

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 24, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
PAUL WOOTEN
BARRY E. WARHIT
DONNA-MARIE E. GOLIA, JJ.
2023-06054
(Index No. 527962/22)

Gary Tsirelman, P.C., Brooklyn, NY, for appellant.

Larkin Farrell, LLC, New York, NY (William R. Larkin III of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated June 27, 2022, in which Atlantic Medical Care, P.C., as assignee of Destiny Dixon, cross-petitioned to confirm the award of the master arbitrator and for an award of reasonable attorneys’ fees, Atlantic Medical Care, P.C., appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated April 20, 2023. The order granted the petition to the extent of remanding the matter to arbitration for further proceedings as set forth therein, and, in effect, denied the cross-petition.

ORDERED that the order is reversed, on the law, with costs, the petition is denied, the cross-petition is granted, the award of the master arbitrator is confirmed, and the matter is remitted to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees to be awarded to the appellant.

Atlantic Medical Care, P.C. (hereinafter the provider), is the assignee of a claim for no-fault benefits for treatment it rendered to Destiny Dixon after Dixon was involved in a car accident. After the petitioner, American Transit Insurance Company (hereinafter the insurer), denied the claim, the provider submitted the claim to arbitration. In an award dated April 18, 2022 (hereinafter the April 2022 award), the arbitrator awarded the provider the full amount of its claim. The insurer appealed, and in an award of a master arbitrator dated June 27, 2022 (hereinafter the master arbitrator’s award), the master arbitrator confirmed the award.

The insurer commenced this proceeding pursuant to CPLR article 75 to vacate the master arbitrator’s award. The provider cross-petitioned to confirm the master arbitrator’s award and for an award of reasonable attorneys’ fees. In an order dated April 20, 2023, the Supreme Court granted the petition to the extent of remanding the matter to arbitration for the consideration of the effect of certain executive orders issued in connection with the COVID-19 pandemic and, in effect, denied the cross-petition. The provider appeals.

“[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534). “A court reviewing the award [*2]of a master arbitrator is limited to the grounds set forth in CPLR article 75″ (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802; see 11 NYCRR 65-4.10[h]). Significantly, a master arbitrator’s determination is not subject to vacatur by the courts on the basis of an error of law, including, “‘the incorrect application of a rule of substantive law,'” unless the master arbitrator’s determination is irrational (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d at 802, quoting Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232; see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 534).

Here, regardless of any errors of law the arbitrator and master arbitrator made regarding burdens of proof, the master arbitrator’s determination to affirm the April 2022 award to the provider was rationally based on the conclusion that Dixon’s minor delay in providing the insurer with notice of the accident was reasonably justified because she was a passenger in the vehicle involved in the accident and, thus, was not making a claim to her own insurance company (see 11 NYCRR 65-3.5[l]). Because the master arbitrator’s affirmance of the April 2022 award had a rational basis, and “‘[i]t is not for the court to decide whether the master arbitrator erred in applying the applicable law,'” the petition to vacate the master arbitrator’s award should have been denied and the master arbitrator’s award confirmed (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d 649, 650 [alterations and internal quotation marks omitted], quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 535; see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d at 802; Matter of Singh v Allstate Ins. Co., 137 AD3d 1046, 1047; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 70 AD3d 1043, 1043-1044).

Further, the provider is entitled to an award of reasonable attorneys’ fees (see 11 NYCRR 65-4.10[j][4]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705). Accordingly, we remit the matter to the Supreme Court, Kings County, for a determination of the amount of reasonable attorneys’ fees to be awarded to the provider (see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168; Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d at 705).

In light of our determination, we need not reach the parties’ remaining contentions.

IANNACCI, J.P., WOOTEN, WARHIT and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Balanced Channels Acupuncture, P.C. v USAA Cas. Ins. Co. (2025 NY Slip Op 51972(U))

Reported in New York Official Reports at Balanced Channels Acupuncture, P.C. v USAA Cas. Ins. Co. (2025 NY Slip Op 51972(U))

[*1]

Balanced Channels Acupuncture, P.C. v USAA Cas. Ins. Co.

2025 NY Slip Op 51972(U)

Decided on December 5, 2025

Appellate Term, Second Department

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

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

Decided on December 5, 2025

PRESENT: : CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, JOANNE D. QUIÑONES, JJ
2024-638 RI C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Marshall Dennehey Warner Coleman & Goggin (Aneshia Chintamani of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), dated June 6, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.

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 defendant had not issued an insurance policy covering plaintiff’s assignor and, thus, plaintiff’s assignor was not an eligible injured person entitled to receive no-fault benefits. By order dated June 6, 2024, the Civil Court (Mary A. Kavanagh, J.) granted defendant’s motion.

As plaintiff properly contends on appeal, defendant failed to establish its entitlement to summary judgment dismissing the complaint as the affidavit submitted by a claims adjuster from “USAA General Indemnity Company” was insufficient to establish, prima facie, defendant’s lack of coverage defense. Here, the claims adjuster did not establish that she was employed by defendant or how defendant and her employer were related to each other. Moreover, she failed to establish that she had personal knowledge of defendant’s standard practices and procedures for maintaining or searching for information related to policyholders and current or past policies. Indeed, the claims adjuster failed to set forth that a search of defendant’s records or databases was ever conducted for the instant case. Rather, she merely stated in her affidavit that “USAA General Indemnity Company” did not insure plaintiff’s assignor, his vehicle, nor anyone that resided with plaintiff’s assignor. This statement was insufficient, and, as a result, defendant failed to satisfy its prima facie burden entitling it to summary judgment dismissing the complaint (cf. Delta Diagnostic Radiology, P.C. v Am. Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op [*2]51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 31 Misc 3d 138[A], 2011 NY Slip Op 50743[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant’s motion should have been denied regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

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

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

ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025LV Med. Diagnostic Servs., P.C. v Safe Auto Ins. Co. (2025 NY Slip Op 51974(U))

Reported in New York Official Reports at LV Med. Diagnostic Servs., P.C. v Safe Auto Ins. Co. (2025 NY Slip Op 51974(U))

[*1]

LV Med. Diagnostic Servs., P.C. v Safe Auto Ins. Co.

2025 NY Slip Op 51974(U)

Decided on December 5, 2025

Appellate Term, Second Department

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

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

Decided on December 5, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, JOANNE D. QUIÑONES, JJ
2024-893 K C

Alahverdian Van Leuvan, P.C. (Gerard R. Van Leuvan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lola Waterman, J.), entered May 21, 2024. The order denied the branch of defendant’s motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction.

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 to dismiss the complaint. In support of its motion, defendant argued that the Civil Court did not obtain personal jurisdiction over it because it is an Ohio company which is not authorized to do business in New York, and that it has not filed a statement with the Superintendent of Insurance agreeing that its automobile insurance policies will be deemed to satisfy the requirements of the New York Vehicle and Traffic Law; that the $5,000 limit of the insurance policy had been exhausted prior to plaintiff’s claims; and that it was not properly served with the summons and complaint. By order entered May 21, 2024, the Civil Court (Lola Waterman, J.) solely addressed, and denied, the branch of defendant’s motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction (see CPLR 3211 [a] [8]). The court found that defendant “failed to produce evidentiary proof in admissible form.” Specifically, the affidavit by defendant’s director of claims, which was signed and notarized in Ohio, lacked a certificate of conformity, and the insurance policy’s declaration page was not certified and lacked any foundation. The order concluded by noting that “issues of material fact exist as to whether defendant does not do business in the State of New York,” and that “This case shall proceed on to trial on the issue of personal jurisdiction.” On appeal, defendant contends that the Civil Court should have granted the branch of its motion seeking to dismiss the complaint on the ground of lack of jurisdiction.

In addition to its determination that there were various deficiencies in defendant’s [*2]submissions which required its motion to be denied, the court found that sufficient issues of fact existed “as to whether defendant does not do business in the State of New York” and, therefore, held that the issue of personal jurisdiction would be determined at trial. We find that this determination by the Civil Court was proper under the circumstances of this case.

Defendant’s remaining contentions either lack merit or are unpreserved for appellate review.

Accordingly, the order is affirmed.

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

ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025Prompt Med. Group, Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51977(U))

Reported in New York Official Reports at Prompt Med. Group, Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51977(U))

[*1]

Prompt Med. Group, Inc. v Foremost Signature Ins. Co.

2025 NY Slip Op 51977(U)

Decided on December 5, 2025

Appellate Term, Second Department

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

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

Decided on December 5, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, JOANNE D. QUIÑONES, JJ
2024-1129 RI C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek, 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.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

Upon a review of the record, we find that the papers defendant submitted in support of the branch of its motion seeking summary judgment dismissing the complaint failed to demonstrate by admissible proof, as a matter of law, that defendant provided the insured with proper notice of cancellation in accordance with Vehicle and Traffic Law § 313 (1) (a) (see Island Life Chiropractic Pain Care, PLLC v Allstate Ins. Co., 60 Misc 3d 132[A], 2018 NY Slip Op 51006[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In addition, we note that defendant, in any event, has not demonstrated that the alleged cancellation of the policy was effective with respect to plaintiff’s assignor, who was not the named insured or a member of the insured’s household (see Vehicle and Traffic Law § 313 [2] [a]; [3]; Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]; Matter of Progressive Northeastern Ins. Co. v Barnes, 30 AD3d 523 [2006]; Pravel, Inc. v State Farm Mut. Auto. Ins. Co., 67 Misc 3d 132[A], [*2]2020 NY Slip Op 50457[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Art of Healing Medicine, P.C. v Allstate Ins. Co., 54 Misc 3d 46 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Advanced Med. Care, P.C. v Allstate Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50130[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; GL Acupuncture, P.C. v Geico Ins. Co., 48 Misc 3d 141[A], 2015 NY Slip Op 51239[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint should have been denied.

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

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

ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025Medical Supply of NY Servs., Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51978(U))

Reported in New York Official Reports at Medical Supply of NY Servs., Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51978(U))

[*1]

Medical Supply of NY Servs., Inc. v Foremost Signature Ins. Co.

2025 NY Slip Op 51978(U)

Decided on December 5, 2025

Appellate Term, Second Department

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

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

Decided on December 5, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, JOANNE D. QUIÑONES, JJ
2024-1132 RI C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

For the reasons stated in Prompt Med. Group, Inc., as Assignee of Philippe F. Polidor v Foremost Signature Ins. Co. (— Misc 3d —, 2025 NY Slip Op — [appeal No. 2024-1129 RI C], decided herewith), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

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

ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025Prompt Med. Group, Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51979(U))

Reported in New York Official Reports at Prompt Med. Group, Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51979(U))

[*1]

Prompt Med. Group, Inc. v Foremost Signature Ins. Co.

2025 NY Slip Op 51979(U)

Decided on December 5, 2025

Appellate Term, Second Department

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

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

Decided on December 5, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, JOANNE D. QUIÑONES, JJ
2024-1133 RI C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek, 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.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

For the reasons stated in Prompt Med. Group, Inc., as Assignee of Philippe F. Polidor v Foremost Signature Ins. Co. (— Misc 3d —, 2025 NY Slip Op — [appeal No. 2024-1129 RI C], decided herewith), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

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

ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025Medical Supply of NY Servs., Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51980(U))

Reported in New York Official Reports at Medical Supply of NY Servs., Inc. v Foremost Signature Ins. Co. (2025 NY Slip Op 51980(U))

[*1]

Medical Supply of NY Servs., Inc. v Foremost Signature Ins. Co.

2025 NY Slip Op 51980(U)

Decided on December 5, 2025

Appellate Term, Second Department

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

As corrected in part through December 17, 2025; it will not be published in the printed Official Reports.

Decided on December 5, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, JOANNE D. QUIÑONES, JJ
2024-1134 RI C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

For the reasons stated in Prompt Med. Group, Inc., as Assignee of Philippe F. Polidor v Foremost Signature Ins. Co. (— Misc 3d —, 2025 NY Slip Op — [appeal No. 2024-1129 RI C], decided herewith), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

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

ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025Pyramid Care, P.T., P.C. v Safe Auto Ins. Co. (2025 NY Slip Op 51981(U))

Reported in New York Official Reports at Pyramid Care, P.T., P.C. v Safe Auto Ins. Co. (2025 NY Slip Op 51981(U))

[*1]

Pyramid Care, P.T., P.C. v Safe Auto Ins. Co.

2025 NY Slip Op 51981(U)

Decided on December 5, 2025

Appellate Term, Second Department

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

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

Decided on December 5, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, JOANNE D. QUIÑONES, JJ
2024-1165 K C

Alahverdian Van Leuvan, P.C. (Gerard Van Leuvan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lola Waterman, J.), entered May 21, 2024. The order denied the branch of defendant’s motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction.

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 to dismiss the complaint. In support of its motion, defendant argued that the Civil Court did not obtain personal jurisdiction over it because it is an Ohio company which is not authorized to do business in New York, and that it has not filed a statement with the Superintendent of Insurance agreeing that its automobile insurance policies will be deemed to satisfy the requirements of the New York Vehicle and Traffic Law; that the $5,000 limit of the insurance policy had been exhausted prior to plaintiff’s claims; and that it was not properly served with the summons and complaint. By order entered May 21, 2024, the Civil Court (Lola Waterman, J.) solely addressed, and denied, the branch of defendant’s motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction (see CPLR 3211 [a] [8]). The court found that defendant “failed to produce evidentiary proof in admissible form.” Specifically, the affidavit by defendant’s director of claims, which was signed and notarized in Ohio, lacked a certificate of conformity, and the insurance policy’s declaration page was not certified and lacked any foundation. The order concluded by noting that “issues of material fact exist as to whether defendant does not do business in the State of New York,” and that “This case shall proceed on to trial on the issue of personal jurisdiction.” On appeal, defendant contends that the Civil Court should have granted the branch of its motion seeking to dismiss the complaint on the ground of lack of jurisdiction.

In addition to its determination that there were various deficiencies in defendant’s submissions which required its motion to be denied, the court found that sufficient issues of fact existed “as to whether defendant does not do business in the State of New York” and, therefore, held that the issue of personal jurisdiction would be determined at trial. We find that this determination by the Civil Court was proper under the circumstances of this case.

Defendant’s remaining contentions either lack merit or are unpreserved for appellate review.

Accordingly, the order is affirmed.

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

ENTER:
Jennifer Chan
Acting Chief Clerk
Decision Date: December 5, 2025