American Tr. Ins. Co. v. Malaga Med., P.C.

American Tr. Ins. Co. v Malaga Med., P.C.

2025 NY Slip Op 34405(U)

November 7, 2025

Supreme Court, Kings County

Docket Number: Index No. 535916/2022

Judge: Lisa S. Ottley

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

FILED: KINGS COUNTY CLERK 11/19/2025 11:18 AM INDEX NO. 535916/2022

NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 11/19/2025

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS- PART 24

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AMERICAN TRANSIT INSURANCE COMPANY, Mot. Seq. #'s 7 and 11

Plaintiff, Index# 535916/2022

-against- DECISION AND ORDER

MALAGA MEDICAL, P.C., a/a/o NIANG PATHE,

Defendants.

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HON. LISA S. OTTLEY, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Notice

of Motion to Confirm Arbitrator's Award Cross-Motion for Summary Judgment submitted

April 28, 2025.

Papers Numbered

Notice of Motion & Affirmation ......................................................................... 1&2 [Exh. A-F]

Notice of Cross-Motion &Affirmation/Affidavits ................................. 4, 5 and 6 [Exh. A]

Memorandum of Law in Support of Motion .......................................... 3

Reply ........................................................................................................ 7

Plaintiff, American Transit Insurance Company, commenced this action pursuant to

Insurance Law 5106(c) and 11 NYCRR 65-4.l0(h)(l)(ii) to seek de novo review of an arbitral

award issued by a master arbitrator. The master arbitrator award was in favor of the

defendant in the amount of $5,013.55. Defendant moves pursuant to CPLR 3212(b)(2) for an

order confirming the master arbitration award that affirmed the lower arbitration award

and for attorney's fees, costs and disbursements. Plaintiff cross-moves for an order pursuant

to CPLR 3212 granting summary judgment in plaintiffs favor on the grounds that the

claimant was in the course of employment at the time of the accident and the services were

not medically necessary or casually related to the motor vehicle accident. Defendant opposes

plaintiffs cross-motion for summary judgment on the grounds that the plaintiffs evidence

as to the applicability of the workers compensation defense was refuted; the arbitration

award has a res judicata and collateral estoppel effect and is binding and that the defendant

established that the injuries are related to the accident and medically necessary.

Discussion

First, a de novo action which seeks to address disputed no-fault insurance invoices

must be litigated as though the arbitration hearing and the master arbitration never took

place. In fact, the determinations of the arbitrators are irrelevant. The court's jurisdictional

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basis is that the monetary result of the arbitration is provided based on the monetary result

of the arbitration which is a minimum award of $5,000.00. As indicated above, the amount

of the award in this matter exceeded the minimum award. See, Matter of Greenberg £Ryder

Truck Rentall, 70 N.Y.2d 573, 523 N.Y.S.2d 67 [1987]; Matter ofAcuhealth Acupuncture. P.C.

v. Country-Wide Ins. Co., 176 A.D.3d 800, 112 N.Y.S.3d 767 (2 nd Dept., 2019); Matter of

Capuano v. Allstate Insurance Co., 122 A.D.2d 138,504 N.Y.S.2d 523 (2 nd Dept., 1986).

Summary Judcment

It is well settled that to grant summary judgment, it must clearly appear that no

material issue of fact has been presented. See, Grassick v. Hicksville Union Free School District.

231 A.D.2d 604, 647 N.Y.S.2d 973 (2 nd Dept., 1996). "Where the moving party has

demonstrated its entitlement to summary judgment, the party opposing the motion must

demonstrate by admissible evidence the existence of a factual issue requiring the trial of the

action." See, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). The

papers submitted in the context of the summary judgment motion are viewed in the light

most favorable to the party opposing the motion. See, Marine Midland Bank. N.A. v. Dino v.

Artie's Automatic Transmission Co., 168 A.D.2d 610 (2 nd Dept., 1990). If the prima facie

showing has been met, the burden then shifts to the opposing party to present sufficient

evidence to establish the existence of material issues of fact requiring a trial. See, CPLR

3212[b]; Alvarez v. Prospect Hosp .. 68 N.Y.2d 320,508 N.Y.S.2d 923 (1986).

The parties' attorneys have been litigating aggressively and are no strangers to the

arguments raised herein and throughout the cases which have been appearing before this

court. One argument that continues to be raised by plaintiff is the defendant's failure to

comply with CPLR's basic requirement when moving for summary judgment since defendant

does not annex an affirmation or affidavit from a person with personal knowledge of the

facts, which it argues is insufficient to establish a claim on the merits. Here, as in other

motions that are pending or have been decided by this Court, the defendant's motion for

summary judgment confirming the arbitration award and opposition to plain ti fr s motion for

summary judgment is supported by an attorney affirmation only.

The defendant's attorney's affirmation which lacks probative value and provides

documentary evidence in support of its motion, to wit, the decision from the Workers

Compensation Board which held that the claimant's accident was not in the course of

employment at the time of the accident (Exh. "D"). Primary jurisdiction with respect to

determinations as to the applicability of the Workers' Compensation Law has been vested in

the Workers' Compensation Board. See, Rohan v. North Main Street Development Corp., 146

A.D.2d 687,537 N.Y.S.2d 51 (2 nd Dept., 1989). Here, the Workers' Compensation Board has

already made a determination as to plaintiff's defense, and its determination will be binding

on the court provided that an opportunity to be heard has been afforded to the plaintiff. See,

Beckerv. Clarkstown Cent. School District, 157 A.D.2d 641,549 N.Y.S.2d 739 (2 nd Dept., 1990).

However, defendant's attorney's affirmation does not offer any other documentary evidence

to raise an issue of fact as to the remaining issue concerning medical necessity. See,

Zuckerman v. CityofNew York supra: Pryhuberv. Maffucci Storage Corp., 170 A.D.2d 660,567

N.Y.S.2d 81 (2 nd Dept. 1991). Therefore, the defendant failed to establish that he had

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personal knowledge to authenticate the first step, which is that the bills were submitted to

the plaintiff. See, American Transit Company v. Advanced Orthopaedics PLLC. 86 Misc.3d

1234(A), 234 N.Y.S.3d 928 (Sup. Ct.. Kings Co., 2025).

Although this court need not assess the sufficiency of the plaintiffs opposition due to

defendant's failure to make out a prima facie case of entitlement to summary judgment in

this de novo action as to the issue of medical necessity, the court will address the argument

as to whether the arbitration award is binding based upon res judicata and collateral

estoppel.

In support of its motion to confirm the master arbitration award, defendant argues

that the arbitration award is binding and has a res judicata and collateral estoppel effect. and

the de novo action requires an application to the court within ninety (90) days of the mailing

of the master arbitration award. Specifically, defendant argues that the question is whether

an award from a binding arbitration involving the same assignor, same loss, and same

insurance company constitutes collateral estoppel or res judicata. As such, defendant argues

that the master arbitration award must be confirmed, and entitlement to attorney's fees and

costs. In opposition, plaintiff argues that once its de novo action was commenced there is no

longer an award entitled to collateral estoppel, and the issues are litigated from the

beginning and the prior ruling no longer exists. Plaintiff further argues that confirmation of

the arbitration award is unavailable to the defendant because it failed to plead a cause of

action against plaintiff since no proceeding against the plaintiff to confirm the award has

been commenced. In addition, plaintiff argues that issue before the court is whether the

surgery was medically necessary and defendant's motion for summary judgment must be

denied because triable issues of fact exist as to whether the services provided were medically

necessary. Plaintiff also argues that summary judgment is premature because discovery

from defendant is incomplete.

After careful review of the moving papers, opposition and reply the court finds as

follows:

Since this dispute was initially submitted to the American Arbitration Association, the

plaintiff had ninety (90) days from the date the master arbitrator's award was mailed to it to

commence a trial de novo. See, Insurance Law 5106(<;}: CPLR 7511: 11 NYCRR 65-4.10[hll21.

In the case at bar, defendant argues that the issue is whether there is a binding effect of the

master arbitration award based on res judicata or collateral estoppel. This court finds that

the plaintiff timely invoked its right to a de novo review by the Supreme Court pursuant to

the applicable law, which allows for review of an arbitral award issued by a master

arbitrator. See, AutoOne Insurance Co. v. Eastern Island Medical Care. ec.. 141 A.D.3d 499, 35

N.Y.S.3d 230 (2 nd Dept., 2016), which held as follows: "The plaintiff exhausted its demand for

review by a master arbitrator, and the master arbitrator issued an award which was final

and binding except. as is relevant here, where a party commences a court action to

adjudicate the dispute de novo when the award is $5.000 or more (see, 11 NYCRR 65-

4.l0[h] [1])." [Emphasis added]. Therefore, the court does not find that the arbitration award

has a res judicata or collateral estoppel effect.

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NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 11/19/2025

Based upon the foregoing, the court hereby denies the defendant's motion for

summary judgment which seeks to confirm the master arbitration award.

Next, this court will address the plaintiffs cross-motion for summary judgment which

argues that it should be granted summary judgment on the issue of medical necessity. Based

upon the submissions from both the plaintiff and the defendant or lack thereof, the court

finds that there is insufficient evidence to grant summary judgment. As indicated above, the

only documentary evidence submitted relates to the determination made by the Workers'

Compensation Board. There are no annexed peer reviews in support of plaintiffs cross-

motion, nor any medical reports annexed to defendants' motion.

Based upon the foregoing, it is hereby

ORDERED that defendant's motion for confirmation of the master arbitration award,

attorney's fees, costs and disbursement is hereby denied it is entirety, and it is further

ORDERED that plaintiffs cross-motion for summary judgment in its favor on the issue

of medical necessity is denied in its entirety, and it is hereby

This constitutes the decision and order of this Court.

Dated: Brooklyn, New York

November 7, 2025

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