Decided and Entered: October 24, 2023
Before: Manzanet-Daniels, J.P., Rodriguez, Pitt-Burke, Higgitt, Rosado, JJ.

Roman Kravchenko, Melville (Jason Tenenbaum of counsel), for appellant.

McCormack & Mattei, P.C., Garden City (Jamila Shukry of counsel), for respondent.

Order, Supreme Court, New York County (John J. Kelley, J.), entered June 28, 2023, which denied petitioner’s application pursuant to CPLR article 75 to vacate a master arbitration award, dated December 1, 2022, affirming an arbitrator’s award denying petitioner’s claim for no-fault benefits for medical services rendered to the insured, unanimously affirmed, without costs.

The court correctly denied the petition to vacate the master arbitration award. “Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (Matter of Carty v Nationwide Ins. Co., 212 AD2d 462 [1st Dept 1995]). Here, petitioner does not dispute that the subject policy was exhausted prior to the underlying arbitration, but argues that its claim for no-fault compensation, which was submitted and denied prior to the exhaustion of the policy, should retain priority of payment. The fact that the arbitrator followed First Department precedent in Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. (47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]) rather than Second Department precedent in Alleviation Med. Servs., P.C. v Allstate Ins. Co. (55 Misc 3d 44 [App Term, 2d Dept 2017], affd on other grounds 191 AD3d 934 [2d Dept 2021]) does not warrant reversal. To the contrary, this Court has held that, in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties cease upon the insurer’s payment of the contractual limit on its no-fault policy (see Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., 212 AD3d 481 [1st Dept 2023], lv denied 40 NY3d 904 [2023]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 24, 2023

Decided and Entered: October 10, 2023
Before: Manzanet-Daniels, J.P., Gesmer, González, Kennedy, O’Neill Levy, JJ.

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for appellant.

Jaffe & Velazquez, LLP, New York (Thomas Torto of counsel), for respondent.

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered August 3, 2022, which denied respondent Bay Needle Care Acupuncture, P.C.’s motion for attorney’s fees, unanimously affirmed, with costs.

Supreme Court properly denied Bay Needle’s motion seeking additional attorney’s fees pursuant to 11 NYCRR 65-4.10(j)(4), because Bay Needle failed to provide any explanation for the lengthy delay in moving for such relief and failed to submit any proof of the fees incurred. Previously, in a “Decision, Order and Judgment,” dated November 28, 2016 and filed with the Clerk on December 5, 2016, Supreme Court (Kathryn E. Freed, J.) denied petitioner Country-Wide Insurance Company’s petition to vacate a master arbitration no-fault award dated December 28, 2015, dismissed the proceeding, and confirmed the awards of the lower arbitrator and master arbitrator which were rendered in favor of Bay Needle. Approximately five and a half years later, Bay Needle moved for additional attorney’s fees of $2,000 incurred in opposing Country-Wide’s petition.

To the extent Bay Needle argues that it timely sought to submit a proposed judgment within the 60-day period prescribed by 22 NYCRR 202.48, it was rejected by the County Clerk and returned for correction. Bay Needle provided no explanation for its failure to submit a corrected judgment, or otherwise timely move for additional attorney’s fees after issuance of the 2016 Decision, Order, and Judgment. Thus, Bay Needle effectively abandoned its claim.

Moreover, the amount of attorney’s fees awarded pursuant to 11 NYCRR 65-4.10(j)(4) is left to the court’s discretion (see Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [1st Dept 2018]). Here, the court properly exercised its discretion by not awarding additional fees of $2,000 in a case involving a no-fault claim of $2,100, which was resolved six years prior, and where Bay Needle’s counsel failed to provide contemporaneous documentation of the fees incurred.

We have considered Bay Needle’s remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 10, 2023

[*1]

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

Short & Billy, P.C. (Andrew S. Midgett, Skip Short, and Greenberg Traurig, New York, NY [James W. Perkins], of counsel), for respondent.

In an action, inter alia, to recover no-fault insurance benefits for lost wages, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered December 8, 2020. The order, insofar as appealed from, granted that branch of the defendant’s motion which was to disqualify the plaintiff’s counsel, The Law Office of Jason Tenenbaum, P.C.

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

In 2019, the plaintiff commenced this action against the defendant insurance company, inter alia, to recover no-fault benefits for lost wages. The principal of nonparty The Law Office of Jason Tenenbaum, P.C., counsel for the plaintiff (hereinafter counsel for the plaintiff), had previously represented the defendant in hundreds of no-fault actions. The defendant moved, among other things, to disqualify counsel for the plaintiff from representing the plaintiff in this action based upon Tenenbaum’s prior representation of the defendant. In an order entered December 8, 2020, the Supreme Court, inter alia, granted that branch of the defendant’s motion which was to disqualify counsel for the plaintiff. The plaintiff appeals. We affirm.

“The disqualification of an attorney is a matter that rests within the sound discretion of the court” (Delaney v Roman, 175 AD3d 648, 649 [2019] [internal quotation marks omitted]; see Albert Jacobs, LLP v Parker, 94 AD3d 919, 919 [2012]). Although a party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right, that right “will not supersede a clear showing that disqualification is warranted” (Matter of Marvin Q., 45 AD3d 852, 853 [2007]; see Scopin v Goolsby, 88 AD3d 782, 784 [2011]). “A party seeking disqualification of its adversary’s counsel based on counsel’s purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and . . . opposing [counsel], (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” (Delaney v Roman, 175 AD3d at 649 [internal quotation marks omitted]; see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]). Any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety (see Delaney v Roman, 175 AD3d at 649; Janczewski v Janczewski, 169 AD3d 773, 774 [2019]).

[*2] Here, the defendant established that counsel for the plaintiff had a prior attorney-client relationship with the defendant, that the issues involved in his prior representation of the defendant were substantially related to the issues involved in his firm’s current representation of the plaintiff, and that the interests of the plaintiff and the defendant were materially adverse (see Rules of Prof Conduct [22 NYCRR 1200.0] rule 1.9; Delaney v Roman, 175 AD3d at 650).

Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to disqualify counsel for the plaintiff from continuing to represent the plaintiff in this action. Duffy, J.P., Rivera, Genovesi and Taylor, JJ., concur.

[*1]

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

Short & Billy, P.C., New York, NY (Andrew S. Midgett and Christopher O’Donnell of counsel), for respondent.

In an action, inter alia, to recover no-fault insurance benefits for lost wages, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered December 1, 2020. The order denied that branch of the plaintiff’s motion which was to compel discovery without prejudice to renew.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant insurance company, inter alia, to recover no-fault benefits for lost wages arising out of a 2016 motor vehicle accident. The plaintiff served discovery demands on the defendant. Thereafter, following the defendant’s responses, in 2020, the plaintiff moved, among other things, to compel the defendant to respond to the discovery demands. In an order entered December 1, 2020, the Supreme Court denied that branch of the plaintiff’s motion without prejudice to renew. The court determined that the motion papers were missing copies of the discovery demands served on the defendant and details about what discovery remained outstanding. The plaintiff appeals.

“ ’Resolution of discovery disputes and the nature and degree of the penalty to be imposed pursuant to CPLR 3126 are matters within the sound discretion of the motion court’ ” (Matter of Metro-North Train Acc. of Feb. 3, 2015, 178 AD3d 929, 930 [2019], quoting Morales v Zherka, 140 AD3d 836, 836-837 [2016]; see Honghui Kuang v MetLife, 159 AD3d 878, 881 [2018]). CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “The phrase ‘material and necessary’ should be ‘interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason’ ” (Friel v Papa, 56 AD3d 607, 608 [2008], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). “The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the Supreme Court. The Supreme Court’s discretion is broad because it is familiar with the action before it, and its exercise should not be disturbed on appeal unless it was improvidently exercised” (Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518, 518 [2001]; see McBride v City of New York, 208 AD3d 579, 580 [2022]).

[*2] Contrary to the plaintiff’s contention, the Supreme Court properly denied, without prejudice, that branch of his motion which was to compel discovery. The motion papers failed to include copies of the discovery requests served on the defendant or a list of the discovery that remained outstanding.

Under the circumstances, the Supreme Court did not improvidently exercise its discretion in denying that branch of the plaintiff’s motion without prejudice to renew. Duffy, J.P., Rivera, Genovesi and Taylor, JJ., concur.

[*1]

Hinman, Howard & Kattell, LLP, Binghamton (Jeanette N. Warren of counsel), for appellant.

Mura Law Group, PLLC, Buffalo (Brendan S. Byrne of counsel), for respondent.

Pritzker, J. Appeal from an order of the Supreme Court (Oliver N. Blaise III, J.), entered June 16, 2022, in Broome County, which denied plaintiff’s motion for, among other things, a declaration that defendant is required to pay plaintiff’s medical expenses up to her policy limit.

In September 2020, the vehicle plaintiff was driving was rear-ended by a vehicle driven by Jane Mei and owned by Tak-Wing Tam, causing plaintiff multiple injuries and requiring her to undergo cervical fusion. Plaintiff is insured by defendant and had no-fault coverage up to $50,000 and additional personal injury protection (hereinafter APIP) coverage up to $50,000. Plaintiff thereafter settled with both Tam’s and Mei’s insurance carriers for $100,000 each, the maximum each policy permitted, and defendant paid plaintiff’s medical expenses up to the policy limit of her no-fault coverage. In addition, defendant paid plaintiff $7,292.85 of her APIP coverage, but refused to pay out any additional money under the APIP coverage and informed plaintiff that it had placed a lien on the $7,292.85 that had been paid out. On February 28, 2022, plaintiff commenced the instant action alleging that her settlement was not sufficient to compensate her for the injuries she sustained and, therefore, seeking a declaratory judgment that defendant was required to pay the remainder of her APIP coverage for her medical expenses and that defendant had no right to a lien on the $7,292.85 APIP already paid to plaintiff. Only two days later, plaintiff filed an order to show cause seeking the same relief sought in the complaint. Defendant subsequently filed an answer as well as opposition to the order to show cause arguing, among other things, that the evidence did not support the sought-after declaratory relief. After a brief oral argument, Supreme Court, apparently treating plaintiff’s order to show cause as a motion for summary judgment, denied plaintiff’s request for declaratory judgment in both respects, finding that she had failed to show that she was entitled to further APIP benefits and that defendant was not precluded from asserting a lien on the APIP benefits already paid to plaintiff, and dismissed the complaint. Plaintiff appeals.

Initially, we discern no error with Supreme Court treating plaintiff’s order to show cause, filed two days after commencement of the action, essentially as a motion for summary judgment seeking ultimate relief (see Matter of Estate of Jason v Herdman, 70 AD3d 1382, 1382 [4th Dept 2010]; Matter of Rine v Higgins, 244 AD2d 963, 964 [4th Dept 1997]). However, “[a] motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to” (Ward v Guardian Indus. Corp., 17 AD3d 1100, 1101 [4th Dept 2005] [internal quotation marks and citations omitted]; see Gerster’s Triple E. Towing & Repair, Inc. v Pishon Trucking, LLC, 167 AD3d 1353, 1354 [3d Dept 2018]; Peterson v State of New York, 130 AD2d 813, 814 [3d Dept 1987]). “Particularly in an [*2]action for declaratory judgment, all of the material facts and circumstances should be fully developed before the respective rights of the parties may be adjudicated” (Matter of Rine v Higgins, 244 AD2d at 964 [internal quotation marks, brackets and citation omitted]). Accordingly, rather than reaching the merits, Supreme Court should have determined that plaintiff was barred from seeking summary judgment at the time and denied the motion as premature (see Gerster’s Triple E. Towing & Repair, Inc. v Pishon Trucking, LLC, 167 AD3d at 1354-1355; Lindbergh v SHLO 54, LLC, 128 AD3d 642, 644 [2d Dept 2015]). That defendant answered and issue was joined prior to the return date of the order to show cause does not change this determination (see generally Matter of Rine v Higgins, 244 AD2d at 964). Indeed, a review of the record reveals that there are issues to be adjudicated in this action, particularly as to defendant’s right to subrogration, what portion of plaintiff’s settlement is for pain and suffering—and thus not subject to subrogation—and whether plaintiff has been made whole. Thus, while denial of plaintiff’s motion was warranted, the basis should have been that the motion was premature. Accordingly, the complaint must be reinstated and the matter remitted for further proceedings.

Garry, P.J., Aarons, Ceresia and Fisher, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as dismissed the complaint; complaint reinstated; and, as so modified, affirmed.

[*1]

Roman Kravchenko, Melville, for appellant.

Larkin Farrell LLC, New York (Anthony R. Troise of counsel), for respondent.

Order, Supreme Court, Bronx County (Marissa Soto, J.), entered January 27, 2023, which granted petitioner American Transit Insurance Company’s (American Transit) petition to vacate the award of a master arbitrator, dated August 11, 2022, affirming a lower arbitrator’s award, dated May 26, 2022, in favor of respondent Smart Choice Medical P.C. (Smart Choice) in the amount of $1,211.48, vacated the arbitration award, and denied Smart Choice’s request for attorney fees, unanimously affirmed, without costs.

“Where, as here, there is compulsory arbitration involving no-fault insurance, the standard of review is whether the award is supported by evidence or other basis in reason” (Matter of Miller v Elrac, LLC, 170 AD3d 436, 436-437 [1st Dept 2019]; see also Country-Wide Ins. Co. v Zablozki, 257 AD2d 506, 507 [1st Dept 1999], lv denied 93 NY2d 809 [1999]).

“When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it constitutes a breach of a condition precedent vitiating coverage” (Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 442 [1st Dept 2018] [internal quotation marks omitted]). Like Hereford, American Transit established its entitlement to judgment as a matter of law by submitting the letters sent to the claimant notifying him about the date, time, and location of the initially scheduled IME, a second scheduled IME, a third scheduled IME, and an affidavit of mailing for these letters. American Transit also submitted affidavits from the medical professional assigned to conduct the scheduled IMEs, who stated that the claimant failed to appear at the date and time of his appointment. This principle is well-established law in this Court (see e.g. Matter of Global Liberty Ins. Co. of N.Y. v Capital Chiropractic, P.C., 181 AD3d 429, 429 [1st Dept 2020]; Matter of Global Liberty Ins. Co. of N.Y. v Top Q. Inc., 175 AD3d 1131, 1131-1132 [1st Dept 2019]; Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]).

Generally, if a valid claim or portion of a claim for no-fault benefits is overdue, Insurance Law § 5106 (a) entitles “the claimant . . . to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations” (Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 172 AD3d 598, 598 [1st Dept 2019]). However, because we find Smart Choice’s claim invalid as a matter of law, it is not entitled to such fees. Concur—Oing, J.P., Singh, Moulton, Scarpulla, Shulman, JJ.

[*1]

Hollander Legal Group, P.C., Melville, NY (Allan S. Hollander and Jennifer B. Ettenger of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn, NY (Damin J. Toell of counsel), for respondent.

In an action to recover no-fault benefits, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts dated October 16, 2020. The order affirmed an order of the Civil Court of the City of New York, Kings County (Robin K. Sheares, J.), entered July 20, 2018, denying the defendant’s motion for summary judgment dismissing the complaint and granting the plaintiff’s cross-motion for summary judgment on the complaint.

Ordered that the order dated October 16, 2020, is reversed, on the law, with costs, the defendant’s motion for summary judgment dismissing the complaint is granted, the plaintiff’s cross-motion for summary judgment on the complaint is denied, and the order entered July 20, 2018, is modified accordingly.

The plaintiff, a medical provider, commenced this action, as assignee of no-fault insurance benefits, against the defendant insurer for a judgment in the amount of its claims for medical services provided to the insured. The defendant moved for summary judgment dismissing the complaint, arguing that it was not obligated to pay the no-fault benefits to the plaintiff because the insured assignor failed to appear at three scheduled examinations under oath (hereinafter EUOs). The plaintiff cross-moved for summary judgment on the complaint. By order entered July 20, 2018, the Civil Court denied the defendant’s motion and granted the plaintiff’s cross-motion, and, by order dated October 16, 2020, the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts affirmed. The defendant appeals, by permission, from the order dated October 16, 2020.

“Upon receipt of one or more of the prescribed verification forms used to establish proof of claim . . . an insurer has 15 business days within which to request ‘any additional verification required by the insurer to establish proof of claim’ ” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007], quoting 11 NYCRR 65-3.5 [b]). “At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested” (11 NYCRR 65-3.6 [b] [emphasis added]). “The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath[*2]. . . is a material breach of the policy, precluding recovery of the policy proceeds” (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2020] [internal quotation marks omitted]; see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).

Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by showing that its letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at the scheduled EUOs, that it timely and properly followed up pursuant to 11 NYCRR 65-3.6 (b), and that it ultimately issued a timely and proper denial of the claims following the insured’s failure to appear at the last scheduled EUO (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; 65-3.8 [a]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 756; Interboro Ins. Co. v Clennon, 113 AD3d at 597). In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted, and the plaintiff’s cross-motion for summary judgment on the complaint should have been denied.

The defendant’s remaining contention need not be reached in light of our determination. Barros, J.P., Iannacci, Miller and Zayas, JJ., concur.