Index No. 513030/2022 Supreme Court, Kings County Decided July 11, 2025
AARON D. MASLOW, J.
Before the Court are a motion for summary judgment by Defendant Advanced Orthopaedics, PLLC and a cross-motion for summary judgment by Plaintiff American Transit Insurance Company. This is a de novo action following a No-Fault insurance arbitration.
I. Case Background and the “De Novo” Standard
This dispute began with an arbitration where the Defendant (Advanced Orthopaedics) was awarded $5,825.43 for services provided to assignor Norma Figueroa. After a master arbitrator affirmed the award, Plaintiff (American Transit) commenced this action under Insurance Law § 5106 (c).
In a No-Fault de novo action, the court adjudicates the dispute as if the arbitration never happened. While the arbitration award must meet a $5,000 minimum to grant the court jurisdiction, the actual findings of the arbitrators are considered irrelevant to the court’s independent determination of the merits.
II. Summary Judgment Standards
Summary judgment is a “drastic remedy” granted only when no triable issues of fact exist.
- The Claimant’s Burden: Must prove the claim is overdue by showing a completed statutory billing form was mailed to and received by the insurer.
- The Burden Shift: Once a prima facie case is made, the opposing party must provide admissible evidence of a material issue of fact to proceed to trial.
III. The Court’s Determination
Defendant’s Motion: Denied
The Court denied the Defendant’s motion because it failed to establish a prima facie case.
- The Flaw: The motion relied on an attorney affirmation rather than an affidavit from someone with personal knowledge of the facts.
- The Result: Because no one attested to the actual mailing of the billing forms or receipt of denials, the evidence was insufficient to warrant judgment as a matter of law.
Plaintiff’s Cross-Motion: Denied
The Plaintiff did provide affirmations from individuals with personal knowledge (specifically No-Fault Claims Supervisor Cheryl Glaze) and asserted defenses based on a lack of medical necessity and causality.
- The Flaw: There are competing medical expert opinions. Plaintiff provided a peer review from Dr. Margulies, while Defendant provided a rebuttal from Dr. Berkowitz.
- The Result: Because these experts disagree on the medical necessity and causality of the services, a triable issue of material fact exists that must be resolved at trial.
IV. Conclusion
Inasmuch as neither party successfully established their entitlement to judgment as a matter of law, both the motion and the cross-motion are DENIED.