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FILED: KINGS COUNTY CLERK 01/24/2024 03:37 PM INDEX NO. 536739/2023
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/24/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
HACKENSACK SURGERY CENTER, LLC a/a/o HAl CHAO
VERIFIED ANSWER
SUN, TO PETITION
Petitioner,
-against- Index # 536739/2023
AMERICAN TRANSIT ISNURANCE COMPANY,
Respondent.
Respondent, AMERICAN TRANSIT INSURAJ’4CE COMPANY (the Answenng Respondent),
by its attorneys, SI-IORT & BILLY, P.C., as and for a Verified Answer to Petitioner’s Verified
Petition, alleges upon information and belief the following:
1. Admits the allegations of Paragraphs “2”, “5”, “6” and”7” of the Petition.
2. Denies the allegations of Paragraphs”1”, 3”, “4”, “8”, “9”, “10”, “12”, 14” and “15” of
the Petition.
3. Denies knowledge or information sufficient to form a belief as to the truthfulness of the
allegations contained in Paragraphs “11”,” 13”, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23” and
“24”.
AFFIRMATIVE DEFENSES
First Affirmative Defense
4. The Petition is batTed under the doctrine of Res Judicata.
5. This Petition should be dismissed as the relief sought by the Petitioner to confirm the
arbitration decision has already been granted in the DeNovo action filed by ATIC in the Supreme
Court, Index No.: 5097 10/2022 and the principle of Res Judicata should apply. The Petitioner cannot
file a new action to obtain the same relief that was previously granted.
6. The following is a summary of facts.
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7. Hal Chao Sun, was allegedly injured in an automobile accident on January 12, 2015.
Thereafter, Petitioner submitted claims for payment of facility fccs for the shoulder surgery and
injection therapy that were performed in its facility to Hai Chao Sun on March 23, 2015 through June
18, 2015 under the No-Fault Insurance Laws.
8. The Petitioner filed a request for arbitration regarding the claims subject to the instant
Petition. On December 7, 2021, Arbitrator Maria Schuchrnann rendered a decision in favor of the
Petitioner. American Transit appealed the decision to a master arbitration review. Master Arbitrator
Jonathan Hill upheld the decision of Arbitrator Maria Schuchmann in a decision dated February 21,
2022.
9. ATIC tiled a DeNovo action in the Supreme Court, Kings County Index Number
509710/2022. The Supreme Court dismissed the DeNovo action (Index Number 509710/22) based on
the ground that the Complaint failed to state a cause of action and granted the motion of Hackensack
dismiss and to confirm the master arbitration award. See Exhibit 1 for a copy of the decision of
the court dated February 2, 2023 (ECF # 19) as well as the motion to dismiss and confirm the master
arbitration award. ATIC moved to reargue/renew the February 2. 2023 decision of the Supreme
Court. liackensack cross-moved to re-settled the February 2, 2023 decision (ECF #19) among other
relief sought. See Exhibit 2 for a copy of the notice of motion to renew/re-argue of ATIC and the
notice of cross-motion and affirmation in support of the cross-motion filed by Hackensack and
opposition to cross-motion filed by ATIC and in further support of its motion to renew/re-argue. The
Supreme court denied the relief sought by ATIC in its motion to reargue/renew and granted the
Defendant’s cross-motion to resettle the order dated February 2. 2023. Sec Exhibit 3 for a copy of the
decision of the Supreme Court dated June 22, 2023.
10. Pursuant to CPLR 3211 (a)(5), a cause of action should be dismissed when it “may not
bc maintained” due to the doctrine of res judicata.
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11. The relief sought by the Petitioner herein has already been adjudicated in the DeNovo
action (Index Number 5097 10/22).
12. Given that this Petition is a second lawsuit for something already confirmed there is no
reason for a Petition to be brought and CPLR 7510 should not be applied here.
13. In the instant Petition, the Petitioner claimed that it filed a motion to confirm the
arbitration award in the DeNovo action (Index 5097 10/22) and that the court denied the Petitioner’s
motion because it did not file a counter-claim in its Answer to the DeNovo action (Index 509710/22),
citing NYSCEF #41. However, the Petitioner has not submitted a decision denying the Petitioner’s
motion because it did not file a counter-claim in its Answer to the DeNovo action (Index 5097 10/22).
This is a false claim by the petitioner. The award was confirmed. Sec Exhibit 1.
Second Affirmative Defense
The Arbitration Award has been Paid
14. The amounts awarded in the arbitration and master arbitration decisions have been paid.
See Exhibit 4. Payment was made by ATIC in good faith although there is still no judgment entered
by 1-lackensack Surgery Center. LLC .ATIC requests that the court dismiss the instant Petition.
Third Affirmative Defense
15. The Petition is barred under the Statute of Limitations.
16. The Petition is barred under the statute of limitations. CPLR 7510 provides as
follows”
“ 7510. Confirmation of award. The court shall confirm an award upon application of a
party made within one year after its delivery to him, unless the award is vacated or
modified upon a ground specified in section 7511.
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17, In the nmtter at hand, the decision of the master arbitrator was delivered to the parties
on or about February 21, 2022 (the date of the master arbitration decision). Pursuant to CPLR 7510,
the Petitioner had one year from February 21, 2022 to make an application in court for the
confirmation of the master arbitration decision on or about February 21, 2023.
18. The Petition to confirm in the instant matter was filed by the Petition on December 15,
2023, more than a year from the delivery of the master arbitration decision. Therefore, this Petition is
barred.
19. The Petition is Late and is barred under the Statute of Limitations. The Petitioner slept
on its rights and failed to file its Petition within the one year peiod that is allowed by law.
20. There is nothing CPLR 7510 that allows the extension of time for the Petitioner for file
its Petition.
21. The Petitioner had the opportunity to file a counter-claim to confirn the master
arbitration award in the DeNovo action (Index 5097 10/22) filed by ATIC but it failed to do so. See
Exhibit S for a copy of the Summons and Complaint of the DeNovo action and Exhibit 6 for a copy of
the Answer filed by the Petitioner in the DeNovo action (Index 5097 10/22).
22. The Petitioner had the option to file the application to confirm the master arbitration
award within the one year period even if there is pending DeNovo action. In the Gersten v.
Am.Tr.Ins.Co., 161 Misc 2d 57, 63, Sup Ct., NY County 1994, the decision states states in pail:
“Therefore, because a motion to confirni a dormant arbitration award while the denovo
action is pending would, at best, be held in abeyance, or denied without prejudice as
premature.. .“(emphasis. ours).
23. In the matter of Aetna Cas. & Sur. Co. v. Mantovani, 240 AD2d 566. 569, 658 N.Y.S
2d 926, the court held that “claimant was entitled to have an arbitration award confirmed despite the
fact that a related DeNovo proceedings was pending.
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Fourth Affirmative Defense
Regulatory Limit On Legal Fees
24. Counsel for the Petitioner seeks attorney’s fees in the amount of $12,200.00 tinder 11
NYCRR 61-10 (i)(4). There is no basis for an award of legal fees.
25. The usual rule is that each party pays their legal fees. There is an exception in Insurance
Law §5106 for legal fees subject to limits set forth by the Department of Financial Services.
26. The Departmcnt of Financial Scrvices has set forth limitations in its Regulations. Under
the Regulations of the Department of Financial Services, an applicant can recover legal fees for
appealing arbitration awards. No fees are payable seeking to confirm an award. 11 NYCRR § Section
65-4.1 0(j)(4) states as follows:
(j) Limitations on attorneys fees pursuant to section 5106 of the Insurance Law. The following
limitations shall apply to the payment by insurers of applicant’s attorney’s fees for services rendered in
a master arbitration to resolve a no-fault dispute:
(4) The attorneys fee for services rendered in connection with a court adjudication of a dispute
de novo, as provided in section 5106(c) of the Insurance Law, or in a court appeal from a master
arbitration award and any further appeals, shall be fixed by the court adjudicating the matter.
27. This Petition is not a de novo action nor does it set forth an appeal.
28. The Petitioner sets forth case law claiming that a petition to confirm can come within
the Regulation. The Regulation makes no such provision and the case cited by the Petitioner involved
a petition to vacate and an opposition with a request to confirm, something very different than an
Petition to confinm .See GEICO Ins. Co. v. AAAMG Leasing Corp., 148 A.D.3d 703 (2d Dept. 2017)
29. Justice Maslow, in the matter of John T. Mather Mem. Hosp. v American Tr. Ins. Co.
2024 NY Slip Op 24009 (January 12, 2024) denied attorney’s fees to the Petitioner seeking to confirm
the master arbitration award. See Exhibit 7 for a copy of the decision. As in this instant matter, the
Petitioner in the John T. Mather Mern. Hosp. v American Tr. Ins. Co. , also relied on 11 NYCRR 65-
4.10 (j) (4).
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30. The arguments and cases cited by the Petitioner in the matter of John T. Mather Mern.
Hosp. v American Tr. Ins. Co. are exactly the same as the Petitioner’s arguments in the instant matter.
In fact, the attorneys that represented John T. Mather Mem. Hosp. are the same attorneys that represent
the Petitioners in the matter herein. In both cases, the Respondent is American Transit Insurance
Company. See Exhibit 8 for a copy of the Petition in the matter of John T. Mather Mem. Hosp. v
American Tr. Ins. Co. 2024 NY Slip Op 24009 (January 12, 2024).
3!. Justice Maslow did not award attorneys fees to the Petitioner.
32. Justice Maslow found that the “Petitioner’s action of seeking to confirm an arbitration
award is not in the nature of appeal.” 1-Ic went on to state that “An “appeal” is an action taken by a
party to have a determination reviewed because it was adverse to the party. The master arbitrator’s
award was not adverse to Petitioner. Quite the opposite, Petitioner agreed with the determination. The
puipose for this Article 75 proceeding is to obtain a judgment so that Petitioner can levy upon
Respondent’s assets in order to enforce the award of monetary compensation as determined in the
arbitration proccss. Morcovcr, this spccial proceeding is not a de novo dispute. Nothing in the language
of 11 NYCRR 65-4.10 0) (4) provides support for this Court to grant Petitioner an attorney’s fee. The
language of thc regulation is clear and unambiguous and would not apply to this unopposed Article 75
special proceeding to confirm a master arbitration No-Fault award. A court should not read into a
regulation a provision which is not present... especially since the No-Fault Law is in derogation of the
common law and so must be strictly construed. Citations omitted.
33. Justice Maslow also discussed the decision of the court in Matter of GEICO Ins Co. v
AAAMG Leasing Corp. (148 AD3d 703 [2d Dept 2017]) which the Petitioner relies upon as support for
its request for an attorney’s fee in this special proceeding to confirm the No-Fault master arbitration
award. Justice Maslow stated “Petitioner emphasizes the following language in said opinion at page
705: “The term ‘court appeal’ applies to a proceeding such as this, taken pursuant to CPLR article 75 to
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vacate or confirm a master arbitration award (see Matter of Hempsteacl Ge,,. Ho.cp. v National Grange
Mitt. Ins. Co., 179 AD2d 645 [1992])’ (emphasis added).”
34. As far the Appellate Division included the words “or confimi’ Justice Maslow held that
it was dicta “because in Matter of GEICO his. Co. i’ AAAMG Leasing Coip. at issue was a petition to
vacate a master arbitration award. Hence GEICO Ins. Co.’s petition to vacate constituted an appeal
from the master arbitration award; not so in the case at bar.” (emphasis ours) The same is applicable in
the instant matter herein. The Petitioner herein, Huckcnsack Surgciy Center. LLC is not seeking an
appeal from the master arbitration award.
35. Justice Maslow found that the Matter o[Henipsteaa’ Ge,,. Hosp. i’ National Giwge Mut
his. Co., cued in Matter of GEICO Ins. Co. 1’ 4AAMG Leasing Coip.. involved an appeal in the form
of an Article 75 special proceeding, to vacate a master arbitration award in favor of the No-Fault
insurer. Again, there was an actual appeal. unlike the present situation, where Petitioner John T.
Mather Memorial Hospital seeks merely to confirm a master arbitration award in its favor, and there is
not evcn any opposition from Respondent American Transit Insurance Company.”
36. It is respectfully requested that the findings of Justice Maslow in the matter of John T.
Mathcr Mcm. E-losp. v Amencan Tr. Ins. Co. . 2024 NY Slip Op 24009 (January 12. 2024) be applied
in the instant Petition and no attorney’s fees should be granted to the Petitioner.
37. Petitioner’s counsel discloses cases where he was awarded lees. However, he does not
disclose to the court cases where his claim for attorney’s fees was reduced.
38. See for example the following cases:
39. In the matter of Am er/can Transit i’. Hank Ross Medical. P. C. a/o Rudell Clark, Index
Number: 528699/2022 (Sup Ct., Kings Cty), Roman Kravencho was not awarded attorney’s fees in a
DeNovo action because there was no counterclaim filed by the Defendant.
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40. In Americati Ti. his. Co. i’. Nexrai’ Med. hnaging, PC, 2023 NYShv Op 50953[80 Misc
3d I2I0A)J, the court stated that opposing counsel should only receive $100.00 as counsel did not
attest to how much time was involved, and the issues were neither difficult or novel.
41. In the matter of American Transit v. North Shore Family Chhy., P.C. a/o Santos
Garcia, Index Number 504473/2022 (Sup Ct., Kings Cty) Roman Kravchenko requested $1,400.00 in
,
attorney’s fees and was awarded by the court $1000.00.
Fifth Affirmative Defense
42. The Petitioner’s counsel is barred from representing T-Iackensack Surgery Center, LLC
in this Petition against American Transit based upon an order by the Appellate Division and conflict of
interest.
43. Counsel for the Petitioner is associated with the law firm of Jason Tenenbaum Esq.,
which and who previously represented the Respondent in hundreds of cases. In another action he was
disqualified from acting as an attorney against American Transit in no fault cases such as this and that
mling was affirmed by the Appellate Division, Second Judicial Department. American Transit set forth
in that action that Jason Tenenbaum and his finn appeared to be pursuing a vendetta against his former
client.
44. On June 29, 2023, the Second Department affirmed the trial court’s order disqualifying
the Tenenbaum finn from asserting claims against American Transit. The Second Department held:
Here, [American Transit] established that counsel for [Sakandar] had a prior attorney-
client relationship with [American Transit], that the issues involved in his prior
representation of the [American Transit] were substantially related to the issues
involved in his firm’s cunrnt representation of [Sakandar], and that the interests of
[Sakandar] and the [American Transit] 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 [American Transit’s] motion which was to
disqualify counsel for [Sakandar] from continuing to represent the
[Sakandar] in this action.
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45. Meanwhile Tenenbaum continues his efforts to damage his former client. It is being
pursued solely for the interests of the attorneys seeking to extract a fee and to continue to scek to
damage American Transit, a similar strategy to which they are pursing in many other cases.
46. Enclosed, is a copy of our letter to Petitioner’s counsel requesting that he withdraw
from representing the Petitioner herein. Sec Exhibit 9.
47. Further, American Transit sued the Petitioner’s counsel , Roman Kravchenko, Jason
Tanenbaun, Esq. and Tenenbaum’s firm regarding the conflict of interest. See American Transit
hisurance Co. v The Tenenbauin Law F/rn,, P.C., Jason Tenenbauni and Roman Kravchenko, Index
No. 6 19985/2023, Supreme Court, Nassau County.
48. Jason Tenenbaum and his firm previously represented American Transit in hundreds of
cases and his attempt to pursue claims in the matter before the Appellate Division was found to be
inappropriate and led to the Appellate Division ruling against him.
49. Upon information and belief whoever provided this case purportedly in the name of the
Petitioner did so to Jason Tenenbaum and his firm. Based on Mr. Kravchenkos disclosures in other
cases we do not bclicve the Petitioner had a retainer agreement with him before filing this action. Any
such agreement shou’d be produced.
50. A scarch of cases in New York Supreme Court has identified over 100 other cases in
which claims have been brought by Roman Kravchenko as attorney against American Transit. That is
in addition to the approximately 30 petitions filed together including this Petition. There are numerous
cases and business records that also show Roman Kravchenko is actually associated with Jason
Tenenbaum and his firm, indicating that each of the referenced filings involve Mr. Tenenbaum and his
firnt
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CONCLUSION
5 1. The relief sought by the Petitioner in this action have afready been decided in the
DeNovo action (Index 509710/22). The court in the DeNovo action confirmed the award and the
award has been paid.
52. This is an improper action. The petitioner falsely stated that the Court in the de novo
did not confirm the award. This is incorrect. The Court in the DeNovo did confirm the award and this
is an unnecessary, improper and duplicative proceeding.
53. The arbitration award has been paid.
54. If there were any remedies available to the Petitioner that it did not get, its recourse was
in the DeNovo action and not this Petition.
WHEREFORE, the Respondent demands judgment dismissing the Petition and denying the
Petitioner’s request for attorneys’s fees sought by the Petitioner tinder 11 NYCRR 65-4.10 U) (4),
together with the costs and disbursements of this action.
Dated: January 24, 2024
New York, New York
TO: ROMAN KRAVCHENKO ESQ.
Attorneys for Petitioner Yours, etc.,
35 Pinelawn Road, Suite 105E
SHORT & BILLY, P.C.
Melville, New York 11747
/
Io4n’na t24rasjsq.
Aftomep”for Respondent(s)
‘—‘217 Broadway, Suite 300
New York, NY 10007
(212) 732-3320
Our File #703 72
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VERIFICATION
STATE OF NEW YORK)
) ss:
COUNTY OF nis&)
Cheryl Glaze, being duly sworn, deposes and says:
That he or she is the No Fault manager of American Transit Insurance Company. That he
or she has read the foregoing Verified Answer to Petition and knows the contents thereof, and
that the same is true to his or her own knowledge except as to those matters herein stated to be
alleged upon information and belief, and as to those matters, he or she believes it to be true.
ry1 Glaze
Sworn to before me .24th
day of January 2024
PDp jJvQ
[
Notary Pubc
NflAPJt M’P?ORC
I4oLwj ‘tEt 0! New Yot
No WiM1632569O
Qual:fied fl Kings County
Commission E,e3- June 1, 20
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Preview
FILED: KINGS COUNTY CLERK 01/24/2024 03:37 PM INDEX NO. 536739/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/24/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS HACKENSACK SURGERY CENTER, LLC a/a/o HAl CHAO VERIFIED ANSWER SUN, TO PETITION Petitioner, -against- Index # 536739/2023 AMERICAN TRANSIT ISNURANCE COMPANY, Respondent. Respondent, AMERICAN TRANSIT INSURAJ’4CE COMPANY (the Answenng Respondent), by its attorneys, SI-IORT & BILLY, P.C., as and for a Verified Answer to Petitioner’s Verified Petition, alleges upon information and belief the following: 1. Admits the allegations of Paragraphs “2”, “5”, “6” and”7” of the Petition. 2. Denies the allegations of Paragraphs”1”, 3”, “4”, “8”, “9”, “10”, “12”, 14” and “15” of the Petition. 3. Denies knowledge or information sufficient to form a belief as to the truthfulness of the allegations contained in Paragraphs “11”,” 13”, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23” and “24”. AFFIRMATIVE DEFENSES First Affirmative Defense 4. The Petition is batTed under the doctrine of Res Judicata. 5. This Petition should be dismissed as the relief sought by the Petitioner to confirm the arbitration decision has already been granted in the DeNovo action filed by ATIC in the Supreme Court, Index No.: 5097 10/2022 and the principle of Res Judicata should apply. The Petitioner cannot file a new action to obtain the same relief that was previously granted. 6. The following is a summary of facts. 1 of 11 FILED: KINGS COUNTY CLERK 01/24/2024 03:37 PM INDEX NO. 536739/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/24/2024 7. Hal Chao Sun, was allegedly injured in an automobile accident on January 12, 2015. Thereafter, Petitioner submitted claims for payment of facility fccs for the shoulder surgery and injection therapy that were performed in its facility to Hai Chao Sun on March 23, 2015 through June 18, 2015 under the No-Fault Insurance Laws. 8. The Petitioner filed a request for arbitration regarding the claims subject to the instant Petition. On December 7, 2021, Arbitrator Maria Schuchrnann rendered a decision in favor of the Petitioner. American Transit appealed the decision to a master arbitration review. Master Arbitrator Jonathan Hill upheld the decision of Arbitrator Maria Schuchmann in a decision dated February 21, 2022. 9. ATIC tiled a DeNovo action in the Supreme Court, Kings County Index Number 509710/2022. The Supreme Court dismissed the DeNovo action (Index Number 509710/22) based on the ground that the Complaint failed to state a cause of action and granted the motion of Hackensack dismiss and to confirm the master arbitration award. See Exhibit 1 for a copy of the decision of the court dated February 2, 2023 (ECF # 19) as well as the motion to dismiss and confirm the master arbitration award. ATIC moved to reargue/renew the February 2. 2023 decision of the Supreme Court. liackensack cross-moved to re-settled the February 2, 2023 decision (ECF #19) among other relief sought. See Exhibit 2 for a copy of the notice of motion to renew/re-argue of ATIC and the notice of cross-motion and affirmation in support of the cross-motion filed by Hackensack and opposition to cross-motion filed by ATIC and in further support of its motion to renew/re-argue. The Supreme court denied the relief sought by ATIC in its motion to reargue/renew and granted the Defendant’s cross-motion to resettle the order dated February 2. 2023. Sec Exhibit 3 for a copy of the decision of the Supreme Court dated June 22, 2023. 10. Pursuant to CPLR 3211 (a)(5), a cause of action should be dismissed when it “may not bc maintained” due to the doctrine of res judicata. 2 of 11 FILED: KINGS COUNTY CLERK 01/24/2024 03:37 PM INDEX NO. 536739/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/24/2024 11. The relief sought by the Petitioner herein has already been adjudicated in the DeNovo action (Index Number 5097 10/22). 12. Given that this Petition is a second lawsuit for something already confirmed there is no reason for a Petition to be brought and CPLR 7510 should not be applied here. 13. In the instant Petition, the Petitioner claimed that it filed a motion to confirm the arbitration award in the DeNovo action (Index 5097 10/22) and that the court denied the Petitioner’s motion because it did not file a counter-claim in its Answer to the DeNovo action (Index 509710/22), citing NYSCEF #41. However, the Petitioner has not submitted a decision denying the Petitioner’s motion because it did not file a counter-claim in its Answer to the DeNovo action (Index 5097 10/22). This is a false claim by the petitioner. The award was confirmed. Sec Exhibit 1. Second Affirmative Defense The Arbitration Award has been Paid 14. The amounts awarded in the arbitration and master arbitration decisions have been paid. See Exhibit 4. Payment was made by ATIC in good faith although there is still no judgment entered by 1-lackensack Surgery Center. LLC .ATIC requests that the court dismiss the instant Petition. Third Affirmative Defense 15. The Petition is barred under the Statute of Limitations. 16. The Petition is barred under the statute of limitations. CPLR 7510 provides as follows” “ 7510. Confirmation of award. The court shall confirm an award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified upon a ground specified in section 7511. 3 of 11 FILED: KINGS COUNTY CLERK 01/24/2024 03:37 PM INDEX NO. 536739/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/24/2024 17, In the nmtter at hand, the decision of the master arbitrator was delivered to the parties on or about February 21, 2022 (the date of the master arbitration decision). Pursuant to CPLR 7510, the Petitioner had one year from February 21, 2022 to make an application in court for the confirmation of the master arbitration decision on or about February 21, 2023. 18. The Petition to confirm in the instant matter was filed by the Petition on December 15, 2023, more than a year from the delivery of the master arbitration decision. Therefore, this Petition is barred. 19. The Petition is Late and is barred under the Statute of Limitations. The Petitioner slept on its rights and failed to file its Petition within the one year peiod that is allowed by law. 20. There is nothing CPLR 7510 that allows the extension of time for the Petitioner for file its Petition. 21. The Petitioner had the opportunity to file a counter-claim to confirn the master arbitration award in the DeNovo action (Index 5097 10/22) filed by ATIC but it failed to do so. See Exhibit S for a copy of the Summons and Complaint of the DeNovo action and Exhibit 6 for a copy of the Answer filed by the Petitioner in the DeNovo action (Index 5097 10/22). 22. The Petitioner had the option to file the application to confirm the master arbitration award within the one year period even if there is pending DeNovo action. In the Gersten v. Am.Tr.Ins.Co., 161 Misc 2d 57, 63, Sup Ct., NY County 1994, the decision states states in pail: “Therefore, because a motion to confirni a dormant arbitration award while the denovo action is pending would, at best, be held in abeyance, or denied without prejudice as premature.. .“(emphasis. ours). 23. In the matter of Aetna Cas. & Sur. Co. v. Mantovani, 240 AD2d 566. 569, 658 N.Y.S 2d 926, the court held that “claimant was entitled to have an arbitration award confirmed despite the fact that a related DeNovo proceedings was pending. 4 of 11 FILED: KINGS COUNTY CLERK 01/24/2024 03:37 PM INDEX NO. 536739/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/24/2024 Fourth Affirmative Defense Regulatory Limit On Legal Fees 24. Counsel for the Petitioner seeks attorney’s fees in the amount of $12,200.00 tinder 11 NYCRR 61-10 (i)(4). There is no basis for an award of legal fees. 25. The usual rule is that each party pays their legal fees. There is an exception in Insurance Law §5106 for legal fees subject to limits set forth by the Department of Financial Services. 26. The Departmcnt of Financial Scrvices has set forth limitations in its Regulations. Under the Regulations of the Department of Financial Services, an applicant can recover legal fees for appealing arbitration awards. No fees are payable seeking to confirm an award. 11 NYCRR § Section 65-4.1 0(j)(4) states as follows: (j) Limitations on attorneys fees pursuant to section 5106 of the Insurance Law. The following limitations shall apply to the payment by insurers of applicant’s attorney’s fees for services rendered in a master arbitration to resolve a no-fault dispute: (4) The attorneys fee for services rendered in connection with a court adjudication of a dispute de novo, as provided in section 5106(c) of the Insurance Law, or in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter. 27. This Petition is not a de novo action nor does it set forth an appeal. 28. The Petitioner sets forth case law claiming that a petition to confirm can come within the Regulation. The Regulation makes no such provision and the case cited by the Petitioner involved a petition to vacate and an opposition with a request to confirm, something very different than an Petition to confinm .See GEICO Ins. Co. v. AAAMG Leasing Corp., 148 A.D.3d 703 (2d Dept. 2017) 29. Justice Maslow, in the matter of John T. Mather Mem. Hosp. v American Tr. Ins. Co. 2024 NY Slip Op 24009 (January 12, 2024) denied attorney’s fees to the Petitioner seeking to confirm the master arbitration award. See Exhibit 7 for a copy of the decision. As in this instant matter, the Petitioner in the John T. Mather Mern. Hosp. v American Tr. Ins. Co. , also relied on 11 NYCRR 65- 4.10 (j) (4). 5 of 11 FILED: KINGS COUNTY CLERK 01/24/2024 03:37 PM INDEX NO. 536739/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/24/2024 30. The arguments and cases cited by the Petitioner in the matter of John T. Mather Mern. Hosp. v American Tr. Ins. Co. are exactly the same as the Petitioner’s arguments in the instant matter. In fact, the attorneys that represented John T. Mather Mem. Hosp. are the same attorneys that represent the Petitioners in the matter herein. In both cases, the Respondent is American Transit Insurance Company. See Exhibit 8 for a copy of the Petition in the matter of John T. Mather Mem. Hosp. v American Tr. Ins. Co. 2024 NY Slip Op 24009 (January 12, 2024). 3!. Justice Maslow did not award attorneys fees to the Petitioner. 32. Justice Maslow found that the “Petitioner’s action of seeking to confirm an arbitration award is not in the nature of appeal.” 1-Ic went on to state that “An “appeal” is an action taken by a party to have a determination reviewed because it was adverse to the party. The master arbitrator’s award was not adverse to Petitioner. Quite the opposite, Petitioner agreed with the determination. The puipose for this Article 75 proceeding is to obtain a judgment so that Petitioner can levy upon Respondent’s assets in order to enforce the award of monetary compensation as determined in the arbitration proccss. Morcovcr, this spccial proceeding is not a de novo dispute. Nothing in the language of 11 NYCRR 65-4.10 0) (4) provides support for this Court to grant Petitioner an attorney’s fee. The language of thc regulation is clear and unambiguous and would not apply to this unopposed Article 75 special proceeding to confirm a master arbitration No-Fault award. A court should not read into a regulation a provision which is not present... especially since the No-Fault Law is in derogation of the common law and so must be strictly construed. Citations omitted. 33. Justice Maslow also discussed the decision of the court in Matter of GEICO Ins Co. v AAAMG Leasing Corp. (148 AD3d 703 [2d Dept 2017]) which the Petitioner relies upon as support for its request for an attorney’s fee in this special proceeding to confirm the No-Fault master arbitration award. Justice Maslow stated “Petitioner emphasizes the following language in said opinion at page 705: “The term ‘court appeal’ applies to a proceeding such as this, taken pursuant to CPLR article 75 to 6 of 11 FILED: KINGS COUNTY CLERK 01/24/2024 03:37 PM INDEX NO. 536739/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/24/2024 vacate or confirm a master arbitration award (see Matter of Hempsteacl Ge,,. Ho.cp. v National Grange Mitt. Ins. Co., 179 AD2d 645 [1992])’ (emphasis added).” 34. As far the Appellate Division included the words “or confimi’ Justice Maslow held that it was dicta “because in Matter of GEICO his. Co. i’ AAAMG Leasing Coip. at issue was a petition to vacate a master arbitration award. Hence GEICO Ins. Co.’s petition to vacate constituted an appeal from the master arbitration award; not so in the case at bar.” (emphasis ours) The same is applicable in the instant matter herein. The Petitioner herein, Huckcnsack Surgciy Center. LLC is not seeking an appeal from the master arbitration award. 35. Justice Maslow found that the Matter o[Henipsteaa’ Ge,,. Hosp. i’ National Giwge Mut his. Co., cued in Matter of GEICO Ins. Co. 1’ 4AAMG Leasing Coip.. involved an appeal in the form of an Article 75 special proceeding, to vacate a master arbitration award in favor of the No-Fault insurer. Again, there was an actual appeal. unlike the present situation, where Petitioner John T. Mather Memorial Hospital seeks merely to confirm a master arbitration award in its favor, and there is not evcn any opposition from Respondent American Transit Insurance Company.” 36. It is respectfully requested that the findings of Justice Maslow in the matter of John T. Mathcr Mcm. E-losp. v Amencan Tr. Ins. Co. . 2024 NY Slip Op 24009 (January 12. 2024) be applied in the instant Petition and no attorney’s fees should be granted to the Petitioner. 37. Petitioner’s counsel discloses cases where he was awarded lees. However, he does not disclose to the court cases where his claim for attorney’s fees was reduced. 38. See for example the following cases: 39. In the matter of Am er/can Transit i’. Hank Ross Medical. P. C. a/o Rudell Clark, Index Number: 528699/2022 (Sup Ct., Kings Cty), Roman Kravencho was not awarded attorney’s fees in a DeNovo action because there was no counterclaim filed by the Defendant. 7 of 11 FILED: KINGS COUNTY CLERK 01/24/2024 03:37 PM INDEX NO. 536739/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/24/2024 40. In Americati Ti. his. Co. i’. Nexrai’ Med. hnaging, PC, 2023 NYShv Op 50953[80 Misc 3d I2I0A)J, the court stated that opposing counsel should only receive $100.00 as counsel did not attest to how much time was involved, and the issues were neither difficult or novel. 41. In the matter of American Transit v. North Shore Family Chhy., P.C. a/o Santos Garcia, Index Number 504473/2022 (Sup Ct., Kings Cty) Roman Kravchenko requested $1,400.00 in , attorney’s fees and was awarded by the court $1000.00. Fifth Affirmative Defense 42. The Petitioner’s counsel is barred from representing T-Iackensack Surgery Center, LLC in this Petition against American Transit based upon an order by the Appellate Division and conflict of interest. 43. Counsel for the Petitioner is associated with the law firm of Jason Tenenbaum Esq., which and who previously represented the Respondent in hundreds of cases. In another action he was disqualified from acting as an attorney against American Transit in no fault cases such as this and that mling was affirmed by the Appellate Division, Second Judicial Department. American Transit set forth in that action that Jason Tenenbaum and his finn appeared to be pursuing a vendetta against his former client. 44. On June 29, 2023, the Second Department affirmed the trial court’s order disqualifying the Tenenbaum finn from asserting claims against American Transit. The Second Department held: Here, [American Transit] established that counsel for [Sakandar] had a prior attorney- client relationship with [American Transit], that the issues involved in his prior representation of the [American Transit] were substantially related to the issues involved in his firm’s cunrnt representation of [Sakandar], and that the interests of [Sakandar] and the [American Transit] 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 [American Transit’s] motion which was to disqualify counsel for [Sakandar] from continuing to represent the [Sakandar] in this action. 8 of 11 FILED: KINGS COUNTY CLERK 01/24/2024 03:37 PM INDEX NO. 536739/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/24/2024 45. Meanwhile Tenenbaum continues his efforts to damage his former client. It is being pursued solely for the interests of the attorneys seeking to extract a fee and to continue to scek to damage American Transit, a similar strategy to which they are pursing in many other cases. 46. Enclosed, is a copy of our letter to Petitioner’s counsel requesting that he withdraw from representing the Petitioner herein. Sec Exhibit 9. 47. Further, American Transit sued the Petitioner’s counsel , Roman Kravchenko, Jason Tanenbaun, Esq. and Tenenbaum’s firm regarding the conflict of interest. See American Transit hisurance Co. v The Tenenbauin Law F/rn,, P.C., Jason Tenenbauni and Roman Kravchenko, Index No. 6 19985/2023, Supreme Court, Nassau County. 48. Jason Tenenbaum and his firm previously represented American Transit in hundreds of cases and his attempt to pursue claims in the matter before the Appellate Division was found to be inappropriate and led to the Appellate Division ruling against him. 49. Upon information and belief whoever provided this case purportedly in the name of the Petitioner did so to Jason Tenenbaum and his firm. Based on Mr. Kravchenkos disclosures in other cases we do not bclicve the Petitioner had a retainer agreement with him before filing this action. Any such agreement shou’d be produced. 50. A scarch of cases in New York Supreme Court has identified over 100 other cases in which claims have been brought by Roman Kravchenko as attorney against American Transit. That is in addition to the approximately 30 petitions filed together including this Petition. There are numerous cases and business records that also show Roman Kravchenko is actually associated with Jason Tenenbaum and his firm, indicating that each of the referenced filings involve Mr. Tenenbaum and his firnt 9 of 11 FILED: KINGS COUNTY CLERK 01/24/2024 03:37 PM INDEX NO. 536739/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/24/2024 CONCLUSION 5 1. The relief sought by the Petitioner in this action have afready been decided in the DeNovo action (Index 509710/22). The court in the DeNovo action confirmed the award and the award has been paid. 52. This is an improper action. The petitioner falsely stated that the Court in the de novo did not confirm the award. This is incorrect. The Court in the DeNovo did confirm the award and this is an unnecessary, improper and duplicative proceeding. 53. The arbitration award has been paid. 54. If there were any remedies available to the Petitioner that it did not get, its recourse was in the DeNovo action and not this Petition. WHEREFORE, the Respondent demands judgment dismissing the Petition and denying the Petitioner’s request for attorneys’s fees sought by the Petitioner tinder 11 NYCRR 65-4.10 U) (4), together with the costs and disbursements of this action. Dated: January 24, 2024 New York, New York TO: ROMAN KRAVCHENKO ESQ. Attorneys for Petitioner Yours, etc., 35 Pinelawn Road, Suite 105E SHORT & BILLY, P.C. Melville, New York 11747 / Io4n’na t24rasjsq. Aftomep”for Respondent(s) ‘—‘217 Broadway, Suite 300 New York, NY 10007 (212) 732-3320 Our File #703 72 10 of 11 FILED: KINGS COUNTY CLERK 01/24/2024 03:37 PM INDEX NO. 536739/2023 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/24/2024 VERIFICATION STATE OF NEW YORK) ) ss: COUNTY OF nis&) Cheryl Glaze, being duly sworn, deposes and says: That he or she is the No Fault manager of American Transit Insurance Company. That he or she has read the foregoing Verified Answer to Petition and knows the contents thereof, and that the same is true to his or her own knowledge except as to those matters herein stated to be alleged upon information and belief, and as to those matters, he or she believes it to be true. ry1 Glaze Sworn to before me .24th day of January 2024 PDp jJvQ [ Notary Pubc NflAPJt M’P?ORC I4oLwj ‘tEt 0! New Yot No WiM1632569O Qual:fied fl Kings County Commission E,e3- June 1, 20 11 of 11