Omega Acupuncture, PC v Lacewell

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Omega Acupuncture, PC v Lacewell 2023 NY Slip Op 33688(U) September 19, 2023 Supreme Court, Kings County Docket Number: Index No. 522601/2020 Judge: Ingrid Joseph 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. INDEX NO. 522601/2020 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/20/2023 At At an IAS lAS Term, Term, Part Part 83 of of the the Supreme Supreme Court Court of of the New York, the State State of of New York, held held in and for t~e the County County of of Kings, Kings, at the the Courthouse, Courthouse, at 360 360 Adaqi§,,Street, Adar~-,Street, Bro~ew York, on on the the day Bro~f;:~;,W York, day of W ,2023. of-=-+-----' 2023. . , PRESENT: PRESENT: HON. HON. INGRID INGRID JOSEPH, JOSEPH, J.S.C. J.S.C. SUPREME SUPREME COURT,OF COURT-OF THE THE STATE STATE OF NEW YORK NEW YORK COUNTY COUNTY OF KJNGS KINGS t'bl''' £'/If" .. -------------------------------------------------------------)( --------------------,----------------------------------------X I OMEGA OMEGA ACUPlJNpTURE, ACUPUNPTURE, PC, PC, RAF RAF SPORTS CHIROPRACTIC CHIROPRACTICFC, PC, Ross Ross A. A. FIALKOV, DC, DC, PA WEL WEL GIERUKI, LAC)SIL NEEDLE ACUPUNCTURE PC, LACJSIL VER VERNEEDLE ACUPUNCTUREPC, NEW HEALTH ACUPUNCTURE ACUPUNCTURE PC, PC, JOSEPH JOSEPH GAMBINO, PC, JOSEPH GAMBINO, DC, DC, JJ&R JJ&R CHIROPRACTIC CHIROPRACTICPC, JOSEPH GAMBINO GAMBINO DC DC PC, PC, Woo Woo YUP YuP KANG DC, DC, BALDWIN PC, Bo-KWAN BALDWIN CHIROPRACTIC CHIROPRACTICPC, Bo-KwAN KANG, PT, PT, Yoo Yoo & KANG PHYSICAL THERAPY PC, PC, Petitioners, Petitioners, -against-against- LINDA LiNDA LACEWELL, LACEWELL, in in her her official official capacity capacity as the the Superintendent New York Superintendent of of the the New York Department Department of of Financial Financial Services; Services; the the NEW YORK DEPARTMENT DEPARTMENT OF OF FINANCIAL FINANCIAL SERVICES; CLARISSA CLARISSA M. M. RODRIGUEZ, RODRIGUEZ, in New in her her official official capacity capacity as as the the Chair Chair of of the the New York York Workers' Workers' Compensation Compensation Board; Board; and and the the BOARD, NEW YORK WORKERS' WORKERS' COMPENSATION COMPENSATIONBOARD, Respondents. Respondents. --------------------------------------------------------------)( ------------------------------------------------------------X The following following e-filed papers read herein: Notice of Motion/Order to Show Cause/ Petition/Cross Motion, Affidavits __ of Law Law__ (Affirmations) and Memorandum of Opposing Affidavits (Affirmations) of law _ _ _ _ _ __ and Memorandum of Reply Reply Affidavits (Affirmations of Law_ _ _ _ _ ___ And Memorandum of ORDER ORDER Index No. 522601/2020 Index No. 522601/2020 Mot. Mot. Seqs. Seqs. 1-3 NYSCEF Doc Nos. 1-7.16,33-41; 1-7. 16. 33-41; 42-43; 83-85 22-31, 62-74; 46-48; 87 50; 88 53-57, 79-82; Upon proceeding, petitioners Upon the the foregoing foregoing papers papers in in this this Article Article 78 proceeding, petitioners Omega Omega Acupuncture, Acupuncture, PC, Pawel Gieruki, Needle PC, RAF RAF Sports Sports Chiropractic Chiropractic PC, PC, Ross Ross A. A. Fialkov, Fialkov, DC, DC, Pawel Gieruki, LAC, LAC, Silver Silver Needle Acupuncture PC, PC, New Health Acupuncture PC, Joseph Joseph Gambino, Gambino, DC, n&R Chiropractic Chiropractic PC, Acupuncture New Health Acupuncture PC, DC, JJ&R PC, Joseph Gambino Gambino DC DC PC, Yup Kang DC, Baldwin Baldwin Chiropractic Chiropractic PC, PC, Bo-Kwan Bo-Kwan Kang, PT, Joseph PC, Woo Woo Yup Kang DC, Kang, PT, 11 [* 1] 1 of 18 INDEX NO. 522601/2020 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/20/2023 by Petitioners) 1 move and Yoo Yoo & & Kang Kang Physica Physicall Therapy Therapy PC (collecti (collectively, move (Motion (Motion Seq. Seq. 1), 1), by vely, Petitioners)! and ent of ents New order to to show show cause, cause, for an order order prohibit prohibiting respondents New York York Departm Department of Financia Financiall ing respond order tendent ofDFS Services (DFS), (DFS), Linda Linda Lacewe Lacewellll in her her official official capacity capacity as the Superin Superintendent ofDFS Services ez sation Board (Superintendent), York Worker Workers's' Compen Compensation Board (WCB) (WCB) and and Clarissa Clarissa M. M. Rodrigu Rodriguez New York tendent), New (Superin ents) from: vely, Respond in her official capacity capacity as the the Chair Chair of of the the WCB WCB (Chair) (Chair) (collecti (collectively, Respondents) from: her official in the ' 12 RVU nting the' "enforcing, enacting and and impleme implementing RVU Ground Ground ng, enacting "enforci the Rules lA Rules' (consisting of Medicine Ground Rules 1A and and 1B of of the Medicine Ground ing of Rules' (consist A, 22 Rules 1lA, Ground Rules Acupuncture Fee Schedul Schedule,e, Physica Physicall Medicin Medicinee Ground cture Fee Acupun and 3 of of the Chiropr Chiropractic Schedule,e, and Physica Physicall Medicin Medicinee actic Fee Schedul and Ground Rules Rules 2 and and 3 of of the the Physica Physicall Medicin Medicinee Fee Fee Schedul Schedulee for for Ground ent Scope sts) and the Occupational and Physica Physicall Therapi Therapists) the 'Treatm 'Treatment Scope ional and Occupat Ground Rules' Rules' (Genera (Generall Ground Ground Rules Rules 1B, 6 and and 7 of of the the Worker Workers's' Ground the Gen~ral Compensation Schedule,e, and and the General Ground Ground Fee Schedul Acupuncture Fee sation Acupuncture Compen the e) containe Rule of the Chiropr Chiropractic Schedule) containedd in the Fee Schedul actic Fee Rule 10 of that determining that es [and] determining Workers' Compensation Schedules sation Fee Schedul Worker s' Compen ons adoptin such rules rules and the the no-fault no-fault insuranc insurancee regulati regulations adoptingg such such such us, and contrary rules are irrationa irrational,l, arbitrary arbitrary,, capricio capricious, contrary to statute statute ... ..."" rules ove (Motion Respondents DFS, WCB, WCB, the Superin Superintendent and Chair Chair cross-m cross-move (Motion Seq. Seq. 2) 2) for for tendent and ents DFS, Respond without leave rly filed an order: order: (1) (1) to dismiss the amendedd petition improperly filed without leave of of court; court; or, or, in in the the petition as imprope the amende to dismiss an the to dismiss petition; (2) the petition; event that court retroactively grants Petitioners leave to amend amend the (2) to dismiss the Petitioners leave retroactively grants the court that the event new State their new Rule 10, actic Ground Petitioners' challengee to the Daily Cap, Chiropr Chiropractic Ground Rule 10, their State RVU Cap, Daily RVU ers' challeng Petition on statute based on Petitioners based Administrative Procedurere Act Act (SAPA) (SAP A) claim claim and the eleven eleven new new Petitioners statute of of strative Procedu Admini limitations; or (3) (3) to give give Respond Respondents thirty (30) days days to file an answer answer to the amende amendedd petition. petition. ents thirty ns; or limitatio Additionally, DFS, WCB, WCB, and the the Chair Chair cross-m cross-move (Motion Seq. 3), for an order order to to strike strike the the ove (Motion nally, DFS, Additio ndum of ers' reply argumentsts imprope improperly raised for the the first first time time in the the Petition Petitioners' reply memora memorandum of law law and and rly raised argumen paper. position paper. assemblyy caucus caucus position assembl Mark I. Partnow before Justice Motion Seq. Seq. 1 and and 2 were Justice Mark Partnow. . By By returnable before previously returnable were previously Motion the that the the extent was granted decision dated dated August August 16, 16,2021, cross motion motion was granted to the extent that Respondents' cross 2021, Respondents' decision By decision dated dated August 2021, Justice Justice Mark Mark I. Partnow Partnow granted granted leave leave to amend amend the the original original August 16, 2021, By decision l cause additiona one and rs Petitione new eleven petition, retroactively. The amended petition added eleven new Petitioners one additional cause of of added petition amended The vely. retroacti petition, 11 action. action. 2 [* 2] 2 of 18 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 INDEX NO. 522601/2020 RECEIVED NYSCEF: 10/20/2023 to time to Respond ents' time extende d Respondents' petition and extended court amende d petition of an amended filing of retroactive filing the retroactive permitted the court permitted (amended) the (amended) of the dismissal of seeking dismissal motion seeking file cross motion Respond ents' cross of Respondents' branch of The branch answer. The an answer. file an in held in were held cause were show cause order to show Petitioners' order petition grounds and Petitioners' limitations grounds of limitations statute of based on statute petition based the address the will address decision will instant decision The instant abeyancee pending of Respondents' answer. The Respondents' answer. filing of pending the filing abeyanc portions of the prior abeyancee in addition addition to Motion Motion Seq. Seq. 3. 3. held in abeyanc motions held prior motions portions of providers, health providers, two health On November original Petitioners, Petitioners, who are two the original 2020, the Novemb er 18, 2020, On petition verified petition commenced order to show show cause, cause, by filing filing a verified proceeding, by order Article 78 proceeding, this Article commen ced this NYCRR §S and 11 Law § Insurance Law under Insurance challenging S 5108 5108 and 11 NYCRR promulg ated by DFS under regulations promulgated challenging regulations an filed an providers, filed health providers, new health with 11 along with 68.1. 11, 2021, 11 new Petitioners, along original Petitioners, the original 2021, the March 11, On March 68.1. On and 5108 and Law §S 5108 Insurance Law under Insurance DFS under amendedd petition promulgated by DFS regulations promulgated challenging regulations petition challenging amende by reimbursable by of fees reimbursable amount of and amount nature and 11 NYCRR 68.1 ("Regul ("Regulation concerning ing the nature 83") concern ation 83") NYCRR §S 68.1 11 ctic care, therapy, chiropra physical therapy, insurers for (including chiropractic care, and and care, physical medical care, ng medical treatment (includi for treatment insurers Doc vehicle acciden motor vehicle acupuncture) accidentsts (NYSCE (NYSCEFF Doc injured in motor were injured patients who were provided to patients ture) provided acupunc es fee schedul No. ~ 36). services and fees are set set forth forth in fee schedules reimbursable services of reimbursable nature of The nature 36 ). The at ,r 40 at No. 40 to refer to they refer what they challenge what Petitioners challenge promulgated Specifically, ally, Petitioners DFS. Specific adopted by DFS. and adopted WCB and by WCB promulgated by fee the fee in the contained in Rules" contained Ground Rules" ent Scope as "12 RVU "Treatment Scope Ground and the "Treatm Rules" and Ground Rules" RVU Ground the "12 as the schedules.s. schedule relative treatme nt to 12 sement for treatment The "12 RVU Ground Ground Rules" reimbursement 12 relative limit to reimbur Rules" is a limit "12 RVU The has patient has providers aa patient number of value (RVUs) per of the number of providers regardless of per day, regardless patient per per patient units (RVUs) value units ed day. 2 The receives in a given patient receives visited of treatment given day.2 The challeng challenged modalities a patient treatment modalities number of the number or the visited or value of relative value has a relative treatment has physical treatment of physical fee scheduless allegedly 30-45 minutes of minutes of that 30-45 denote that allegedly denote fee schedule 30-35 and 30-35 RVUs, and 4.57-7.10 RVUs, of 4.57-7.1 value of 8.8-11.911 RVUs, manipulation has a value spine manipulation chiropractic spine RVUs, chiropractic 8.8-11.9 amended the amended to the Accordi ng to ,r,r 23, 52). According minutes RVUs (id. at ~~ of 9.88 RVUs value of has a value acupuncture has of acupuncture minutes of easily be easily can be cap can RVU cap the 12 RVU that the such that RVUs is such petition, calculates RVUs schedule calculates way the fee schedule the way petition, the leaving treatment leaving of treatment worth of hour's worth than an hour's reached single provider provide less than can provide who can provide r who by aa single reached by of that instead ers argue (id.). Petition patient (id.). other providers Petitioners argue that instead of that patient with for that work with RVUs to work with no RVUs providers with other the 12 provider, the health provider, RVUs for each capping amount of of treatment each health 12 reimbursement at 12 RVUs treatme nt and reimbursement the amount capping the RVUs of than 12 more than providing more RVU 12 RVUs of collectively providing providers from collectively prohibit providers Rules prohibit Ground Rules RVU Ground practice, employ ed by the same not employed they are not treatment same practice, though they even though given day even patient on any given to aa patient treatment to ,r at ~ 40 at No. 40 Doc No. (NYSCE F Doc service (NYSCEF particular service 22 An assigned to a particular that is assigned value that numerical value is aa numerical RVU is An RVU 23). 3 [* 3] 3 of 18 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 INDEX NO. 522601/2020 RECEIVED NYSCEF: 10/20/2023 provided to the treatment was provided much treatment how much have or how patient,_or the patient, treated the provider treated other provider if any other idea if have no idea specialties, various specialties, applies to various RVU cap applies patient the 12 RVU that the contend that Petitioners contend The Petitioners at ,i 24). The patient (id. at,-r workers the workers listed in the gamut of entire gamut specifically noting of services services listed applies to the entire that it applies noting that specifically treatment Thus, any treatment 25). Thus, at ,i 25). compensation specialties (id. at,-r practitioner specialties some practitioner schedule for some compensation fee schedule therapists are occupational therapists provided acupuncturists, chiropractors, therapists, and occupational physical therapists, chiropractors, physical provided by acupuncturists, services applies to all the services cap applies RVU cap the 12 RVU subject that the allege that Petitioners allege (id.). Petitioners cap (id.). RVU cap the· 12 RVU subject to the patient after the patient treated the Provider B treated listed Schedule and and that, even if Health Provider if Health that, even WCB Fee Schedule listed in the WeB Provider Health Provider payment for Health deny payment can deny Health carrier can insurance carrier day, an insurance particular day, on a particular Provider A on Health Provider units (id.). most or A's used up most or all of of 12 units (id.). Bused Provider B Health Provider if Health A's bill if there is no way for class as there their class others in their Petitioners them and others harm to them there is harm that there assert that Petitioners assert patient has whether the patient with any certainty certainty whether know with patient to know treating a patient who is treating provider who health provider a health same day, the same provider on the another provider already treated by another subsequently treated will be subsequently treatment or will received treatment already received used will be used have or will RVUs have many RVUs how many what of treatment receive, or how will receive, patient has or will the patient treatment the type of what type applies cap applies RVU cap the 12 RVU that the note that up by the provider Petitioners note at ,i 26). Petitioners day (id. at,-r same day that same provider on that treatment patient's treatment the patient's if different different specialties specialties are treating different diagnoses, diagnoses, irrespective irrespective of of the treating different even if treatment (id.). addressed by the treatment being addressed parts are being history, (id.). part or parts body part which body notwithstanding which and notwithstanding history, and treatment RVUs of many RVUs how many track how expected to track Moreover, contend that cannot be expected of treatment patients cannot that patients they contend Moreover, they divulge the refuse to divulge neglect to or refuse they neglect they if they and if given day, and provider on any given per provider receiving per they are receiving bills are recourse if provider has no recourse latter provider information to a subsequent subsequent provider, if its bills then the latter provider, then information seeking from seeking providers from prohibit providers denied regulations prohibit no-fault regulations cap as the no-fault RVU cap per the 12 RVU denied per health that since petition further reimbursement directly from from the patient (id.). The The petition further argues argues that since health patient (id.). reimbursement directly deny the bill, days to deny has 30 days carrier has providers and the carrier carrier and bill to the carrier submit a bill days to submit have 45 days providers have provided unti I long the provider cap until long after after it provided violated the 12 RVU cap if it violated unaware ifit would be unaware provider would of course of supplying a course could be supplying treatment provider could that a provider contends that petition contends The petition at ,i 27). The treatment (id. at,-r result of reimbursed as a result not be reimbursed bills.will that its bills. treatment aware that will not of made aware being made before being months before treatment for months cap (id.). exceeding (id.). RVU cap the 12 RVU exceeding the RVU cap is selfthe 12 RVU by the amended petition claims that financial harm imposed by harm imposed that the financial petition claims The amended what vitiated by what can be vitiated faith can good faith evident provider in good health provider rendered by a health services rendered that services and that evident and treatment "to another unrelated does is unheard giving each each treatment "to a toss toss of of the dice dice in a unheard of, giving provider does unrelated provider another expensive office is an expensive medical office game running a medical that running asserts that at ,i 30). It asserts odds" (id. at,-r terrible odds" with terrible game with drive that it will drive endeavor in New impact of of the 12 RVU RVU cap cap is that probable impact and the probable State and York State New York endeavor 4 [* 4] 4 of 18 INDEX NO. 522601/2020 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/20/2023 ,- begun already begun impact has already the impact that the claim that providers (id.). Furthermore, petitioners claim Furthermore, petitioners business (id.). of business out of providers out insured and insured to have holders and policy holders insured policy options to insured treatment options limiting treatment effect by limiting unsurprising effect have an unsurprising parties (id.). created for (id.). was created law was no-fault law that no-fault result that opposite result very opposite the very State, the York State, New York parties in New ceased operation providers have Petitioners assert that that upon health providers have ceased operation many health beliet: many information and belief, upon information Petitioners assert what rules challenged of the adoption adoption of of this ground rules challenged by what specific ground rule (id.). The specific this rule result of as a result IA and Rules 1A Medicine Ground rules are Medicine RVU ground Petitioners collectively refer ground rules Ground Rules refer to as the 12 RVU Petitioners collectively the of the IA, 2, and 3 of Rules lA, Ground Rules Schedule, Physical Medicine Ground Physical Medicine Fee Schedule, Acupuncture Fee the Acupuncture of the 1B of Physical the Physical of the and 3 of Rules 2 and Chiropractic Schedule, and Ground Rules Medicine Ground Physical Medicine and Physical Fee Schedule, Chiropractic Fee Medicine Schedule for Occupational ~ 51). Therapists (id. at 151). Physical Therapists and Physical Occupational and Fee Schedule Medicine Fee amended petition asserts that that the Treatment Treatment Scope Scope Ground Ground Rules, Rules, the other other set of of petition asserts The amended rules also harmful acupuncturists' and and chiropractors' chiropractors' hamstring acupuncturists' they hamstring that they harmful in that here, are also issue here, rules at issue no-fault law (id. under no-fault reimbursable under been reimbursable ability to bill common common services services that traditionally been have traditionally that have ability Law §S 5102 Insurance Law because Insurance law because contrary to the law rules are contrary that the rules contend that Petitioners contend at 1~ 28). Petitioners requires requires services be reimbursed 5108 requires Law §S 5108 Insurance Law reimbursed and Insurance necessary services reasonably necessary that reasonably requires that health ·. Respondents professional health the professional charges for the respect to charges with respect regulations with promulgate regulations Respondents to promulgate services in the the no-fault context (id. at 129). ~ 29). no-fault context services WCB regulations in the WCB The challenged challenged Treatment Scope Ground Ground Rules Rules concern concern regulations Treatment Scope patient require a patient which: (I) Acupuncture Schedule and the WCB Chiropractic Fee Schedule Schedule which: (1) require WCB Chiropractic Fee Schedule Acupuncture Fee to receive acupuncture treatment; deny additional additional reimbursement reimbursement for treatment; (2) deny referral for acupuncture receive a referral combined often combined that are often techniques that moxibustion medicine techniques integrative medicine complementary integrative other complementary and other moxibustion 3 and (services) codes (services) with CPT codes only bill for CPT may only acupuncturist may that an acupuncturist mandate that and (3) mandate acupuncture; and with acupuncture; listed in the Acupuncture Acupuncture Fee Schedule Schedule (id. at 180). ~ 80). These These ground ground rules rules are General General Ground Ground listed Rules and 7 of of the Workers' Compensation Acupuncture Schedule, and General General Acupuncture Fee Schedule, Workers' Compensation B, 6, and Rules 11B, petition alleges Ground Rule of the Chiropractic Chiropractic Fee Schedule (id. at 174). ~ 74). The amended amended petition alleges that Fee Schedule Rule 10 of Ground have· that have these "hamstring" an acupuncturist's acupuncturist's ability ability to bill for common common services services that regulations "hamstring" these regulations CPT always treatment to four CPT reimbursable treatment limiting reimbursable law and by limiting no-fault law under no-fault reimbursable under been reimbursable always been stimulation, codes, electric stimulation, heat, electric same heat, the same perform the licensed to perform acupuncturists are licensed though acupuncturists even though codes, even pressure, infrared infrared and other other therapies therapies that that a medical medical doctor, doctor, chiropractor, chiropractor, physical therapist, or physical therapist, pressure, occupational therapist can perform ~~ 80-81 80-81).). perform (id. at 11 therapist can occupational I •• bakes acupoints An external external treatment, of traditional Chinese medicine, acupoints usually bakes which usually medicine, which traditional Chinese theory of the theory based on the treatment, based with wood. moxa wood. burning moxa with burning 3 5 [* 5] 5 of 18 I FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 INDEX NO. 522601/2020 RECEIVED NYSCEF: 10/20/2023 irrational, discriminatory, irrational, approach is discriminatory, The foregoing approach that the foregoing alleges that petition alleges amended petition The amended necessary reasonably necessary reimbursement for reasonably contrary to Insurance Insurance Law§ Law S 5012, authorizes reimbursement which authorizes 5012, which and contrary regulations with promulgate regulations services, and Insurance 5018, which Respondents to promulgate requires Respondents which requires Law§S 5018, Insurance Law services, 82-83). ,r,r 82-83). context (id. at ~~ no-fault context "respect services" in the no-fault health services" professional health charges for professional "respect to charges New York licensing by New require licensing that require Since "professional "professional health services" are defined defined as services services that health services" Since adopting a rule that adopting allege that Petitioners allege State and are performed license, Petitioners that license; of that scope of the scope within the performed within State their of their scope of within the scope treatment within that billing for treatment from billing providers from care providers health care of health class of disallows a class that disallows ,r 29, 83). statute (id. at ~.29, license is contrary contrary to the enabling statute the enabling license Administration violated the State The further asserts State Administration Respondents violated that Respondents asserts that petition further amended petition The amended either provide either failing to provide Procedure (1) failing procedures by: (I) making procedures rule making concerning rule 202 concerning (SAPA) §S 202 Act (SAPA) Procedure Act rules proposed rules substance of purpose and substance the full text description of of the subject, of the proposed subject, purpose text or a description incorporating fee reference; (2) incorporating them by reference; concerning schedules, and incorporated them merely incorporated and merely concerning the fee schedules, therefore and therefore date as SAPA, same date 2019, the same July 3, 2019, schedules SAPA, and created on July were created that were reference that schedules by reference the of the the address failing to identify not in existence existence prior attempted incorporation; incorporation; (3) failing identify the address of the attempted prior to the would parties would interested parties posted so interested been posted website of the fee schedules schedules had had been text of which the full text website on which provide failing to provide (4) failing and (4) rule; and have proposed rule; the proposed comment on the and comment review and opportunity to review have the opportunity 86-90). ,r,r 86-90). searching (id. at ~~ extensive searching without extensive sufficient public access to such such information information without public access sufficient not 201-a by not SAP A 201-a violated SAPA Respondents violated that Respondents The contends that petition also contends amended petition The amended minimizes which minimizes manner which schedules in a manner and fee schedules accomplishing Rules and the Rules of the objectives of the objectives accomplishing the employment new employment of new adverse development of promotes the development and promotes jobs and existing jobs on existing impacts on adverse impacts underlying its rule methodology underlying and methodology opportunities, and and by failing failing to include statement and impact statement include an impact opportunities, small violated SAPA Respondents violated making ~ 77).4 SAPA 102-a, 102-a, the small that Respondents claim that Petitioners claim 77). 4 Petitioners making (id. at ,r explaining the guides explaining more guides one or more business website one post on its website failing to post guides, by failing regulation guides, business regulation Rules (id. at ,r RVU Ground actions that small business comply with Ground Rules ~ 92). with the 12 RVU take to comply may take business may that a small actions Respondents' that Respondents' alleging that action alleging of action Ultimately, causes of three causes asserts three petition asserts amended petition Ultimately, the amended Rules are: (1) Ground Rules Scope Ground enforcement Treatment Scope the Treatment and the Rules and Ground Rules RVU Ground the 12 RVU of the enforcement of capricious as arbitrary and and capricious capricious as against against DFS and the Superintendent; arbitrary and and capricious Superintendent; (2) arbitrary arbitrary permanent and permanent temporary and seek a temporary Petitioner.s seek against SAP A. Petitioners of SAP violation of and (3) is a violation WCB; and against WeB; rules. such rules. injunction enforcing such from enforcing Respondents from restraining Respondents injunction restraining petition amended petition the amended labeled "77" While "77," it is the second "77" in the paragraph labeled second paragraph enumerated "77," paragraph is enumerated this paragraph While this pa~agraph 92. before pa~agraph and is located paragraph 91 but before after paragraph located after 4 6 [* 6] 6 of 18 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 INDEX NO. 522601/2020 RECEIVED NYSCEF: 10/20/2023 history and legislative history fr)rth the legislative In their and statutory statutory Respondents set forth of law, Respondents memorandum of their memorandum brought to was brought action was instant action the instant that the argue that scheme Respondents argue schedules. Respondents the fee schedules. enabling the scheme enabling that the measures that frustrate the public long-established cost cost containment containment measures undermine long-established interest and undermine public interest frustrate treatments necessary treatments access to necessary have access patients have Legislature, ensure pati!ents enacted to ensure have enacted DFS have and DFS WCB, and Legislature, WCB, court to asking the court that by asking contend that Respondents contend without insurance premiums. The Respondents premiums. The rising insurance without rising no-fault DFS in no-fault and by DFS compensation and undermine workers' compensation WCB in workers' used by WCB Cap used RVU Cap daily RVU undermine the daily Respondents describe what Respondents loophole in what insurance seek to open describe as carefully carefully open a loophole Petitioners seek matters, Petitioners insurance matters, abuse. and abuse. fraud, and waste; fraud, limit waste! intended to limit calibrated that are intended schedules that calibrated fee schedules " and fall outside motivated and profit motivated Respondents outside the zone of of Petitioners are profit that Petitioners assert that Respondents assert that argue that further argue They further challenging. They they are challenging. interests measures they containment measures cost containment the cost served by the interests served have with have issue with take issue they take the bulk of Petitioners' challenges arc are time-barred schedules they time-barred as the fee schedules Petitioners' challenges bulk of the fourbeyond the well beyond 2018, well December 2018, been promulgated in December were promulgated and were years and books for years been on the books Respondents claim Additionally, Respondents 217. Additionally, month CPLR2:17. claim that forth in CPLR period set forth limitations period Article 78 limitations month Article 2018 the 2018 appeared in the time-barred as it appeared Petitioners' lOisis similarly similarly time-barred Rule 10 Ground Rule challenge to Ground Petitioners' challenge rnoxibustion sterns disallow separate WCB Fee Schedules, Schedules, while decision to disallow separate coverage coverage of of moxibustion stems WCB's decision while WCB's since effect since been in effect that has been Guidelines that from a separate Treatment Guidelines Medical Treatment the Medical called the document called separate document 2014. least 2014. at least that argue that Respondents argue cap, Respondents RVU cap, Even the 12 RVU of the rationality of the rationality reach the were to reach court were the court if the Even if plays an important the cap standard as the it should should be upheld arbitrary and capricious capricious standard cap plays important role under the arbitrary upheld under unscrupulous that an unscrupulous al_lege that Respondents al.lege cap, Respondents in preventing Without the cap, overbilling. Without abusive overbilling. preventing abusive treatment in any given unnecessary treatment provider could simply simply bill amount of of unnecessary given visit. unlimited amount bill an unlimited provider could modalities, an and modalities, practitioners and across all practitioners Additionally, applying across cap applying same cap the same without the Additionally, without patient from one passing a patient result by passing unscrupulous could achieve achieve the same same r,esult practice could medical practice unscrupulous medical straightforward and straightforward simple and colleague daily RVU cap is a simple that the daily note that Respondents note another. Respondents colleague to another. patient treatment as a patient necessary treatment way of measure overbilling but does not stand in the way of necessary not stand but does prevent overbilling measure to prevent treatment on receive the treatment variance or receive obtain a variance in need either obtain can either cap can of the cap excess of procedures in excess of procedures need of different day. a different apply to does not apply that SAP assert that As to Petitioners' SAP A cause SAP A does Respondents assert action, Respondents of action, cause of Petitioners' SAP fees under $100, and and that largest possible single fee,in challenged fee schedule schedule is $46.17. $46.17. fee:in the challenged possible single that the largest under $100, analyzed by requirement as analyzed Respondents SAPA's requirement fulfilled SAPA's have fulfilled DFS have and DFS WCB and that WCB claim that Respondents claim they circulated note ihat SAP A's "substantial compliance" compliance" standard. standard. They They note :ihat they circulated the content content of of the A's "substantial 7 .. 7 [* 7] 7 of 18 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 INDEX NO. 522601/2020 RECEIVED NYSCEF: 10/20/2023 proposed fee schedules schedules to intereste<;l interested parties parties in a wide wide variety variety of of formats, formats, generating generating over over 2,000 2,000 proposed pages of of public public comments comments which which lead to substantial substantial alterations alterations resulting resulting in a stronger stronger measure measure pages increase of of the Daily Daily RVU RVU Cap from 8 to 12 units. units. and an increase cross motion, motion, Respondents Respondents contend contend that that Petitioners' Petitioners' challenges challenges to the the 12 RVU RVU cap, In its cross because they Chiropractic Rule Rule 10, and and their their SAP SAP A claim claim are subject subject to dismissal dismissal because they ar~ are timetimeChiropractic Article 78 barred. argue that four-month statute statute of of limitations limitations applicable applicable to Article the four-month that the Respondents argue barred. Respondents proceedings begins begins to run on the date date that that a regulation regulation is promulgated. promulgated. With With respect respect to the 12 proceedings RVU cap, Respondents Respondents contend contend that that the challenged challenged regulations regulations are enumerated enumerated in: (1) the 2018 RVU 2018; WCB Fee Schedules, Schedules, which which were were formally formally adopted adopted in the State State Register Register on December December 26, 26,2018; WCB and (2) the 34thth Amendment Amendment to DFS DFS Regulation Regulation 83 applying applying the 2018 2018 WCB WCB Fee Schedules Schedules to noand law, which formally adopted adopted in the State State Register Register on February February 27, 2019. 2019. Respondents Respondents was formally which was fault law, the 12 RVU regulations and these regulations note statute of of limitations limitations to challenge challenge these and the RVU cap cap ran on that the statute note that April 26, 2019, 2019, and and June June 27, 2019, 2019, respectively. respectively. April Respondents further further assert assert that that Petitioners Petitioners do not not purport purport to challenge challenge the 2019 2019 WCB Fee Respondents 2020, and that Schedules, adopted adopted on December December 11, 11,2019, effective on January January 1, 1,2020, that in any event, event, 2019, effective Schedules, these schedules schedules did not not make make substantive substantive changes changes to the daily daily RVU RVU cap other other than than applying applying it to these , 'I physical previously applied basis as it previously newly covered covered field of of acupuncture acupuncture on the same same basis applied to physical the newly were separately Petitioners were therapy, occupational therapy, therapy, and and chiropractic chiropractic treatment. Even if if Petitioners separately treatment. Even therapy, occupational aggrieved by the 2019 2019 WCB WCB Fee Fee Schedules, Schedules, Respondents Respondents contend contend that that the subsequent subsequent agency agency aggrieved action does does not bring bring the 2018 2018 WCB WCB Fee Schedules Schedules or the daily daily RVU RVU cap into into the limitations limitations action period or serve serve to toll or renew renew the statute statute of of limitations: limitations~ With With respect respect to the the Treatment Treatment Scope Scope period because it appeared Ground Rules, Rules, Respondents Respondents contend contend that that it is likewise likewise time-barred time-barred because appeared in the Ground Respondents Moreover, Respondents December 2018. promulgated in December 2018 WCB Schedule, which 2018. Moreover, was promulgated which was Fee Schedule, WCB Fee 2018 covered, been covered, have been they contend practice they note specific chiropractic contend should should have chiropractic practice only specific the only that the note that manipulation under under anesthesia anesthesia (MUA), (MUA), has been been disapproved disapproved since since at least least 2013 2013 and and thus thus any manipulation i challenge to such such disapproval disapproval in the instant instant action action is untimely. untimely. challenge Regarding Petitioners' Petitioners' SAPA SAPA claim, claim, Respondents Respondents argue argue that that the four-month four-month statute statute of of Regarding limitations began began to run when when the the challenged challenged rule beCaIJ:?,e becall7'e effective. effective. Respondents Respondents assert assert that the limitations SAP A claim claim in the the amended amended petition vague and is seemingly seemingly only only directed directed against against WCB WCB and petition is vague SAPA 8 [* 8] 8 of 18 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 INDEX NO. 522601/2020 RECEIVED NYSCEF: 10/20/2023 Respondents state state that that Petitioners' Petitioners' SAPA SAPA challenges the 2018 2018 and 2019 2019 WCB WCB Fee Schedules. Schedules.s5 Respondents challenges claim would would be time-barred time-barred against against both schedules.,.. As for WCB's WCB's 2018 2018 Fee Fee Schedules, Schedules, claim both fee schedules Respondents note note that that it became became effective effective on April April I, 1, 2019, 2019, and and thus thus the SAPA claim would would Respondents SAPA claim have run four four months months later, later, on August August 1, 1,2019. 2019 Fee Fee Schedules, Schedules, Respondents Respondents have 2019. As for the 2019 assert that that they they went went into into effect effect on January January 1, 2020, 2020, and and the the SAP SAP A limitations limitations period period for the assert 2019 Schedules Schedules would would have have run run on April April 1, 2020. 2020. Additionally, Additionally, Respondents Respondents point point out out that that 2019 when the the limitations limitations period period had had 12 days days left left to run, Former Former Governor Governor Cuomo Cuomo tolled tolled the the when limitations period period via via executive executive order order until until November 3,2020. Respondents assert assert that that the limitations November 3, 2020. Respondents limitations period period ran ran 12 days days thereafter, thereafter, on Monday, Monday, ~ovember November 15, 15,2020. Since the the amended amended limitations 2020. Since petition, which Respondents Respondents contend contend first gave gave notice notice o_fthe of the Petitioners' Petitioners' new new SAPA SAPA claim, claim, was petition, which until March March 10, 2021, 2021, Respondents Respondents argue argue that that it is thus thus untimely. untimely. 66 not filed until Respondents also also contend contend that that the SAPA claim claim put forth in the the amended amended petition petition cannot cannot Respondents put forth viewed as an outgrowth outgrowth of of their their previous Article 78 arbitrary arbitrary and and capricious capricious argument argument be viewed previous Article because the the new new argument argument is fundamentally fundamentally distinct, distinct, asks asks different different legal legal questions questions under under a because different standard standard of of review, review, and and concerns concerns the administrative administrative mechanics mechanics of of rule rule promulgation promulgation in different State Register Register rather rather than than the the substance substance of of the agency's agency's action. action. Furthermore, Furthermore, the new new SAPA SAP A the State claim sets forth forth a fundamentally fundamentally new new theory, theory, where where WCB WCB's's regulations regulations are illegal illegal not not because because claim they are arbitrary arbitrary and and capricious capricious on the the merits, merits, as argued argued in the initial initial petition, rather that that they petition, but but rather they were were promulgated "in a shrouded shrouded manner manner bereft bereft of of necessary necessary transparency." transparency." Thus, Thus, since since the they promulgated "in addition of of this this new new claim claim is beyond beyond the statute statute of of limitations limitations and is entirely entirely unrelated unrelated to their their addition original pleading, respondents assert assert that that it cannot cannot be added added at this this late late date date in the the special special original pleading, respondents proceeding original allegations allegations did not not provide Respondents with with notice notice of of the need need to proceeding as the original provide the Respondents defend such allegations. allegations. defend opposition, Petitioners Petitioners contend contend that that their their challenge challenge to the 12 RVU RVU Ground Ground Rules Rules is In opposition, timely timely because because the the statute statute of of limitations limitations begins begins to run run when when a regulation regulation becomes effective. becomes effective. Petitioners assert assert that that they they dispute dispute DFS' DFS' adoption adoption and application application of of the the WCB WCB Fee Schedules, Schedules, Petitioners Respondents note note that that the the new new claim claim is confusing, confusing, makes makes rio distinction distinction between between the four four regulations regulations at Respondents issue, or the the two two agencies agencies that that promulgated them, and does does not not mention mention DFS DFS whereas whereas other other parts parts of of the issue, promulgated them, amended petition specifically designated designated DFS DFS as a respondent respondent and the the actions actions it took. took. amended petition specifically 6 6 Although Although the original original petition petition was was filed on November 2020, Respondents' Respondents' position position is that, for statute statute November 13, 2020, oflimitations SAPA claims claims cannot cannot relate relate back filing of of the the original original petition petition and the of limitations purposes, purposes, the SAPA back to the filing limitations period must therefore therefore be measured measured from the filing filing date date of of the the amended amended petition. petition. limitations period and must 55 9 [* 9] 9 of 18 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 INDEX NO. 522601/2020 RECEIVED NYSCEF: 10/20/2023 regulation, and claim which became effective on October October 1, 2020, 2020, pursuant emergency regulation, claim that pursuant to emergency became effective which timely. 2020, was timely. November 18, 2020, their filing of of the original original petition petition on November their filing of untimeliness of the untimeliness respect to the with respect Petitioners arguments with Respondents' arguments that Respondents' assert that further assert Petitioners further properly filed petition was the newly asserted SAP SAPA claim lack lack merit merit because: amended petition was properly because: (1) the amended A claim newly asserted within the four-month nineteen days after after Respondents filed their answer (well (well within four-month statute statute of of their answer Respondents filed nineteen days amended limitations pursuant to SAP A §9 202 [8]); (2) the amended of the rule, pursuant date of effective date the effective from the limitations from and (3) the claims petition contains the same same challenges challenges to the same same WCB WCB Fee Schedules; Schedules; and claims in the petition contains petition, and amended petition arise from from the same same transactions occurrences as in the original original petition, transactions and occurrences petition arise amended Essentially, stricken. Essentially, should be stricken. make same substantive substantive arguments rules should those rules why those arguments as to why make the same petition, as the original petition, back to the original relate back Petitioners contend contend that that their their new SAP A claim claim should should relate new SAPA Petitioners the SAP underlying the original pleading gave notice of the transactions occurrences underlying SAP A claim. claim. transactions and occurrences notice of pleading gave original of SAP A issue of the issue raised the In addition, Respondents raised that Respondents that the fact that assert that Petitioners assert addition, Petitioners affidavits, and attached compliance in their their answer answer to the original their supporting supporting affidavits, attached and petition, their original petition, compliance upon the same premised upon referenced added claim claim is premised saine facts, newly added that the newly reflects that releases, reflects referenced SAP A releases, Respondents that Respondents argue that thus argue transactions, Petitioners thus petition. Petitioners original petition. occurrences as the original transactions, and occurrences further Petitioners further newly added cannot claim claim that that they are are pre:iudiced prejudiced by the newly added SAPA SAP A claim. claim. Petitioners cannot with proceeding with this proceeding contend that Respondents previously consolidate this moved to consolidate previously moved that Respondents that the fact that contend J., index Rakower, 1., County, Rakower, York County, New York Rehab (Sup Ct, New al, (Sup Lacewell et ai, Linda Lacewell Acupuncture et al. v Linda Rehab Acupuncture included a No. 158112/20), 158112/20), a case which the Petitioners Petitioners filed an amended amended petition petition which which included case in which prejudiced. not be prejudiced. would not SAPA claim, is further further proof Respondents would that Respondents proof that A claim, SAP RVU cap has the 12 RVU challenge the Respondents, which to challenge time in which that the time reiterate that reply, reiterate Respondents, in reply, limitations of limitations expired. In addition, addition, Respondents Respondents dispute dispute Petitioners' contention that that the statute statute of Petitioners' contention expired. rather regulation, rather begins from the time individual Petitioner aggrieved by such such regulation, Petitioner is aggrieved that an individual time that begins to run from if even if that even assert that Respondents assert than issuance. Respondents promulgation or issuance. regulation's promulgation the regulation's of the date of the date than from the proceeding runs Petitioners were were correct correct that that the time limit in which special proceeding runs from the bring a special which to bring time limit Petitioners promulgated, any challenge was promulgated, that it was effective date date of of the regulation challenge than from the date that rather than regulation rather effective which Fee Schedules, WCB Fee 2018 WCB to the daily Schedules, which because the 2018 time-barred because would still be time-barred cap would RVU cap daily 12 RVU DFS' contained the cap, cap, became became effective effective on April further contend contend that that DFS' Respondents further April 1, 2019. Respondents contained does that the law does subsequent adoption of the WCB Schedules was a "ministerial "ministerial action," action," and that WCB Fee Schedules adoption of subsequent Fee Schedules WCB Fee 2018 WCB not allow allow Petitioners save their Schedules by against the 2018 claim against time-barred claim their time-barred Petitioners to save that the Respondents also dispute associating them them with with a later later action action taken another agency. agency. Respondents dispute that taken by another associating 10 [* 10] 10 of 18 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 INDEX NO. 522601/2020 RECEIVED NYSCEF: 10/20/2023 because it petition because original petition claims in the original capricious claims SAP A claim arbitrary and capricious back to the arbitrary relates back claim relates SAP respect to the eleven With respect requires different factual factual allegations allegations as to underlying conduct. With eleven underlying conduct. requires different time-barred. claims are time-barred. those claims that those additional argument that their argument reiterate their Respondents reiterate petitioners, Respondents additional petitioners, Law Act (Insurance Reparations Act Insurance Reparations New (Insurance Law Vehicle Insurance Motor Vehicle Comprehensi ve Motor York's Comprehensive New York's NYCRR §§ Act (11 NYCRR 995101 seq.) (CMVIRA) (CMVIRA) and and the regulations implementing the Act 99 65 et seq) regulations implementing 5101 et seq.) §§ personal provide personal insurers to provide automobile insurers (Regulation require automobile law) require no-fault law) the no-fault (collectively, the (Regulation 68) (collectively, motor of motor responsibilities of governs the responsibilities which governs injury Regulation 68, which insureds. Regulation benefits to insureds. protection benefits injury protection requires insurance vehicle insurance carriers carriers processing claims, currently currently requires insurance carriers carriers doing doing no-fault claims, processing no-fault vehicle insurance vehicle motor vehicle parties to motor suffered by parties loss" suffered business economic loss" "basic economic cover "basic York to cover New York business in New limited to, not limited but is not includes, but loss" includes, accidents 11 NYCRR 65-1.1).). "Basic "Basic economic economic loss" NYCRR 65-1.1 accidents (see 11 persons (see expenses incurred incurred for medical services and supplies supplies to injured injured persons (see Insurance Insurance Law§ Law 9 medical services expenses occupational and occupational acupuncture, and therapy, acupuncture, 5102 physical therapy, chiropractic, physical includes chiropractic, also includes 5102 [a] [1]). It also victims for "all injured accident compensate injured therapy (id.). Insurers accident victims "all required to compensate Insurers are required treatment (id.). therapy treatment maximum (see necessary expenses" incurred incurred during during to the automobile automobile accident, accident, up to a $50,000 $50,000 maximum (see necessary expenses" 5102 [a] [1]). Insurance Law§9 5102 Insurance Law must victims must vehicle accident motor vehicle Health services provided accident victims provided to motor who bill for services providers who Health providers services health services There is no fee schedule bill the patients' insurance carriers. carriers. There schedule for health vehicle insurance motor vehicle patients' motor Law§9 5108 Insurance Law However, Insurance co.ntext. However, that no-fault context. the no-fault apply in the enacted to apply specifically enacted was specifically that was under the permissible under the charges (a) directs directs that services "shall "shall not exceed the charges permissible not exceed health services charges for health that charges board for compensation board workers' compensation the workers' schedules prepared and established established by the chairman chairman of of the prepared and schedules procedures or unusual procedures that unusual determines that industrial arbitrator determines insurer or arbitrator the insurer where the except where accidents, except industrial accidents, DFS' 5108 (b) further Law§95108 unique circumstances justify excess charge." charge." Insurance Insurance Law further directs directs DFS' justify the excess unique circumstances regulations and regulations rules and "promulgate rules Chair to "promulgate Superintendent WCB Chair the WCB with the consult with Superintendent to consult compensation law workers' compensation the workers' implementing [CMVIRA] and the of [CMVIRA] provisions of coordinating the provisions and coordinating implementing and 5102 (a) with charges for professional services [specified [specified in Insurance Insurance Law§ Law 95102 health services professional health respect to charges with respect have not schedules have which schedules services for which such services (1)], schedules for all such of schedules establishment of the establishment including the (1 )], including Chair]." been [WCB Chair]''' established by the [WCB prepared and established been prepared WCB created its own own fee schedules, schedules, pursuant statutory authority authority found in pursuant to statutory previously created WCB previously input from received input having received after having Chair, after Workers' directs the Chair, which directs Law§9 13 (a), which Compensatio n Law Workers' Compensation parties, to interested parties, other interested various State medical societies and other professional societies medical and professional York State New York various New treatment and care medical treatment prepare establish a schedule schedule of of charges charges and fees for medical care in prepare and establish 11 11 [* 11] 11 of 18 INDEX NO. 522601/2020 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/20/2023 enacting purpose in enacting accordance Legislature's purpose The Legislature's Chair. The promulgated by the Chair. rules promulgated the rules with the accordance with reduce thereunder is to "significantly Insurance and the fee schedules schedules promulgated "significantly reduce promulgated thereunder Law §S 5108 and Insurance Law premium" no-fault premium" the no-fault contain the help contain thereby help the services, and thereby medical services, insurers for medical paid by insurers amount paid the amount Bill, Program Bill, Governor's Program (Goldberg 1989], quoting quoting Governor's Dept 1989], AD3d 113, 118 [2d Dept Corcoran, 153 AD3d (Goldberg v Corcoran, marks omitted]). Session Laws of NY, [internal quotation quotation marks omitted]). 2449 [internal NY, at 2449 Laws of McKinney's Session 1977 McKinney's referred to 68.1, referred NYCRR § Pursuant S 5108 (b), 11 NYCRR S 68.1, promulgated 11 (b), DFS promulgated Law § Insurance Law Pursuant to Insurance WCB Fee existing WCB modification," the existing as "Regulation appropriate modification," "with appropriate adopted, "with which adopted, 83," which "Regulation 83," DFS adopted While DFS Schedule for for use cases (see 11 11 NYCRR [aD. While adopted the NYCRR §S 68.1 [a]). no-fault cases use in no-fault Schedule procedure and procedure "charges" in the WCB Schedules, it did not "reporting and adopt the "reporting not adopt Fee Schedules, WCB Fee "charges" that states that further states Regulation 83 further requirements" 11 NYCRR [1]). Regulation NYCRR 68.1 [b] [l]). therein (see 11 forth therein set forth requirements" set workers' compensation "[t]he general general instructions instructions and ground ground rules compensation fee schedules schedules apply," apply," rules in the workers' "[t]he time approval, time preauthorization approval, forms, preauthorization claim forms, but "workers' compensation compensation claim referring to "workers' rules referring the rules but the reimbursement for enhanced reimbursement performed, enhanced limitations must be performed, services must health services which health within which limitations within unless not apply resolution guidelines" providers of certain certain designated designated services, services, and dispute dispute resolution guidelines" do not apply unless providers of specified. otherwise otherwise specified. stem from the Rules stem Ground Rules Scope Ground The Treatment Scope and Treatment Rules and Ground Rules RVU Ground challenged 12 RVU The challenged years: three years: last three DFS over following four regulations adopted by WCB over the last WCB and DFS regulations adopted following October 3, revised on October 2018, revised (1) The 2018 WCB WeB Fee June 6, 2018, Proposed on June Schedules. Proposed Fee Schedules. (]) April 1, 2019. effective April and effective 2018, 11,2018, 26, 2018, and December 26,2018, adopted on December 2018, adopted December 11, on December filed on 2018, filed least 5% - as the practitioners by at least This increased reimbursement rates for all practitioners reimbursement rates Schedule increased This Fee Schedule increases since been no increases had been there had prior, there that prior, regulatory statement for the legislation states that since legislation states impact statement regulatory impact public response to public RVUs) in response (from 8 RVUs) RVUs (from 1996 - and RVU cap level to 12 RVUs daily RVU the daily increased the and increased specified: also specified: comment. regulation also This regulation comment. This modalities and/or modalities "When multiple procedures and/or medicine procedures physical medicine multiple physical "When limited to 12.0 are performed reimbursement is limited same day, reimbursement the same performed on the billed, amount billed, the amount illness or the RVUs accident or illness per accident patient per per patient RVUs per physical whichever receives physical patient receives When a patient whichever is less .... Note: When one than one medicine more than modalities from more and/or modalities procedures and/or medicine procedures per day RVUs per provider, than 12.0 RVUs more than receive more not receive may not patient may provider, the patient 12 [* 12] 12 of 18 INDEX NO. 522601/2020 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/20/2023 per accident illness from all providers" providers" (WCB per accident or illness (WCB R. 2678-2679, 2678-2679, 77 NYSCEF Doc Doc No. 66). NYSCEF (2) Amendment to Regulation Regulation 83. Filed on February February 6, 2019, 2019, adopted (2) The 34tllth Amendment adopted via February 27, 2019, 2019, adopted adopted as a final rule rule on August August 7, 2019, 2019, and emergency rulemaking on February emergency rulemaking implementation delayed months until October October 1, 2020, in order "to give give no-fault no-fault insurers insurers implementation delayed by 18 months 1, 2020, order "to time to study costs so they they may time study the impact impact the fee schedule schedule changes changes will have have on loss costs appropriately premiums to cover costs." By this this Regulation, Regulation, DFS adopted appropriately adjust adjust premiums cover those those costs." adopted the 2018 WCB Fee Schedules promulgated by WCB WCB Chair no-fault. WCB Schedules promulgated Chair for use in no-fault. (3) Schedules. Proposed 2019, adopted adopted on December December 11, (3) The 2019 WCB WeB Fee Schedules. Proposed on July 3, 2019, 2019, 2020. Adopted Adopted after after the legislature legislature amended amended Workers' Workers' 2019, and effective effective January January 1, 2020. Compensation Law § permit acupuncturists, physical and occupational occupational therapists Compensation Law S 13-b, to permit acupuncturists, physical therapists and other health disciplines The proposed proposed amendment amendment added new fee other health disciplines to bill insurers insurers directly. directly. The added a new schedule physical and occupational therapists. schedule for acupuncturists, acupuncturists, and physical occupational therapists. According WCB 's Deputy Deputy General Heather McMaster, McMaster, the major According to WCB's General Counsel, Counsel, Heather major significant significant impact of promulgating a new new fee schedule schedule that that combined impact of the 2019 2019 Fee Schedules Schedules was promulgating combined acupuncture with physical physical and and occupational therapy and subjecting new schedule schedule to the acupuncture with occupational therapy subjecting the new RVU cap. already already existing existing 12 RVU (4) Amendment to Regulation Regulation 83. Adopted Adopted via emergency emergency rulemaking rulemaking on (4) The 35tllth Amendment December finally adopted April 22, 2020. 2020. This amendment adopted WCB's December 31, 2019, 2019, and finally adopted on April This amendment adopted WCB's 2019 no-fault use, but delayed implementation to October October 1, 2020, 2019 Fee Schedules Schedules for no-fault delayed implementation 2020, the same date that the 34thth Amendment would go into effect primarily in Amendment to the 2018 2018 WCB Fee Schedules Schedules would effect primarily order providers enough time to update update their their bill processing processing systems. order to give insures insures and providers enough time systems. CPLR 217, which specifies specifies the time action must commenced CPLR 217, which time period period in which which an action must be commenced against a body officer, expressly expressly provides: against body or officer, provides: "( 1) Unless Unless a shorter time is provided provided in the law law authorizing "(1) shorter time authorizing the proceeding, a proceeding officer must must be proceeding, proceeding against against a body body or officer commenced within within four four months months after after the determination determination to be commenced reviewed becomes and binding binding upon upon the the petitioner the petitioner or the reviewed becomes final and 77 Respondents, Respondents, in support support of of their their verified verified answer, answer, submitted submitted the the certified certified WCB WCB administrative administrative record record (NYSCEF Doc Doc Nos. 64-66), which which is comprised comprised of of 3606 3606 bates bates stamped stamped pages, pages, as well well as the the certified certified DFS DFS (NYSCEF Nos. 64-66), administrative record record (NYSCEF (NYSCEF Doc Doc No. 69), which which is comprised comprised of of 1296 bates bates stamped stamped pages. pages. No. 69), administrative 13 [* 13] 13 of 18 INDEX NO. 522601/2020 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/20/2023 person law or in fact, or after after the the represents in law whom he represents person whom respondent's's refusal, refusal, upon upon the the demand demand of of the the petitioner petitioner or the the respondent person whom whom he represents, represents, to perform perform its duty; duty; or with with leave leave of of person court where where the petitioner petitioner or the person person whom whom he represents, represents, at the court him or · upon him binding upon time such such determinat determination and binding became final and ion became the time of such such refusal, disability specified specified under a disability was under refusal, was time of the time at the in section section 208, 208, within within two two years years after after such such time.". time.", ' "A strong strong public.poli public policy underlies the abbreviated abbreviated statutory statutory time time frame: frame: the operation operation of of cy underlies "A (Matter of government t agencies agencies should should not not be unnecessar unnecessarily clouded by potential potential litigation~•: litigation" .(Matter of Best Best ily clouded governmen So/nick vv Whalen, Payphones,, Inc. v Dept. of of Info. Tech. and and Telecom., Telecom., 5 NY3d NY3d 30, 34 [2006]; [2006]; Solnick Payphones the statute ion is final 49 NY2d 224, 232 [1980] [1980] [emphasis [emphasis added]). added]). "A "A determinat determination final and and the statute of of NY2d 224,232 49 becomes readily position on the limitations begins run when when the the agency's agency's definitive definitive position the issue issue becomes readily begins to run limitations ascertainablele to the the complainin complainingg party, party, so that that the petitioner petitioner knew knew or should should have have known known that that it it ascertainab Park Corp., was aggrieved" aggrieved" (Save (Save The View Now Bridge Park Corp., 156 AD3d AD3d 928, 928, 932 [2d [2d Brooklyn Bridge Now v Brooklyn was keeper, Inc. v Crotty, Dept 2017] 2017] [internal [internal quotation quotation marks marks omitted], omitted], quoting quoting Matter Matter of of River Riverkeeper, Crotty, 28 28 Dept NY2d 158 , Axelrod, 78 NY2d Assn. of AD3d 957 [3d Dept 2006]; see New of Counties Counties v Axelrod, State Assn. New York State Dept 2006]; AD3d AD2d 776 [3d Dept Schodack, 294 [1991]; Matter of Zimmerman of Town of of Schodack, 294 AD2d Dept Planning Bd. of Zimmerman v Planning Matter of [1991]; CPLR 217 2002]). "A "A determinat determination binding within within the meaning meaning of ofCPLR 217 when 'when the ion is final and binding 2002]). decision maker maker arrives arrives at a definitive definitive position position on the issue issue that that inflicts inflicts an actual, actual, concrete concrete injury" injury" decision ' (SR PPW, LLC City of of New New York, 216 AD3d AD3d 969,970 969,970 [2d Dept Dept 2023], 2023], quoting quoting Town of of LLC v City (SR Stop-.:..The-Barge vv 2021]; see also Dept 2021]; Huntington v County County of of Suffolk, Suffolk, 195 AD3d AD3d 851 [2d Dept also Stop"'The-Barge Huntington Cahill, 1 NY3d [2003]). NY3d 218 [2003]). Cahill, The Court·of Court of Appeals Appeals "has "has identified identified two two requiremen requirementsts for fixing fixing the the time time when when agency agency The NY3d at 34). Inc., 5 NY3d Payphones, Inc., Best Payphones, action is is final and and binding binding upon upon the the petitioner" petitioner" (Matter (Matter of of Best action "First, the agency agency must must have have reached reached a definitive definitive position position on the issue issue that that inflicts inflicts actual, actual, "First, concrete injury injury and and second, second, the injury injury inflicted inflicted may may not not be prevented prevented or significantl significantlyy ameliorated ameliorated concrete Stopparty" (id.; see Stopto. the complainin by further further administrat administrative action or by steps steps available available to complainingg party" ive action by NY2d 447,453 Zagata, 91 NY2d The-Barge 1 NY3d 223; see also Matter of Essex Caunt); v Zagata, 447, 453 Essex Cqunty Matter of see also NY3d at 223; The-Barge ions such [1998]). "In "In the context context of of quasi-legis quasi-legislative determinations such as the the one one at issue issue here, here, actual actual lative determinat [19981). notice of of the the challenged challenged determinat determination not required required in order order to· to. start start the statute statute of of limitations limitations ion is not notice tive agency's clock; rather, rather, the the statute statute oflimitatio of limitations begins to run once once the administra administrative agency's definitive definitive ns begins clock; 14 [* 14] 14 of 18 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 INDEX NO. 522601/2020 RECEIVED NYSCEF: 10/20/2023 School ofSchool (Matter of party" (Matter complaining party" position ascertainable to the complaining readily ascertainable becomes readily issue becomes the issue position on the AD3d 1174, al., 124 AD3d Service et aI., of Civil Service Admin. York State State Dept. o/Civil New York State State v New New York ofNew Assn. of Adm in. Assn. Riverkeeper, Inc., of Riverkeeper, Matter of see Matter 1176-1177 [2d Dept quotation marks marks omitted]; omitted]; see [internal quotation 2015] [internal Dept 2015] 1176-1177 28 AD3d 961 ). AD3d at 961). final, courts determination is final, agency determination "When making determination as to whether an agency courts whether'an making the determination "When evaluation as pragmatic evaluation make a pragmatic action and make must administrative action of the administrative completeness of consider the completeness must consider of State of (Smith v State to whether actual, concrete concrete injury" injury" (Smith inflicts an actual, that inflicts reached that been reached position has been whether a position Regional Offof Capital Matter of New Capital Dist. Regional quoting Matter 2022], quoting Dept 2022], AD3d 1225, 1228 [3d Dept New York, 201 AD3d Dept AD3d 1044 [3d Dept Bd., 97 AD3d Track Betting Corp. v New York State Wagering Bd., and Wagering Racing and State Racing New York Betting Cmp. Track 2012]). 2012]). with the 2018, with December 11, promulgated on December Here, 11,2018, were promulgated Schedules were Fee Schedules WCB Fee 2018 WCB Here, the 2018 Register, York State New York the New of the issue of Notice State Register, 26, 2018, issue December 26,2018, the December published in the Adoption published of Adoption Notice of the DFS Furthermore, the to take (NYSCEF Doc Doc No. 65 at 999). Furthermore, 2019 (NYSCEF April 1, 2019 effect on April take effect established, 2018 and established, prepared and Chair prepared WCB Chair Superintendent adopted that the WCB schedules that the fee schedules adopted the Superintendent February 6, 2019, 5108 on February Insurance Law§ WCB Schedules, for use in no-fault Law 95108 2019, pursuant to Insurance no-fault pursuant WCB Fee Schedules, 2019, February 27, 2019, the February Register in the with State Register York State New York published in the New being published same being of same notice of with notice Doc No. 28 at 45). 2020 (NYSCEF issue effect on on October October 1, 2020 (NYSCEF Doc take effect issue to take WCB and DFS when WCB promulgated when In the officially promulgated was officially schedule was the fee schedule action, the instant action, the instant Register amending York State New York each published of adoption adoption in the New State Register amending the fee notice of their notice published their each ascertainable to readily ascertainable was readily schedule was schedules the fee schedule position on the definitive position agencies' definitive the agencies' since the schedules since Racing & State Racing York State vNew York Gill vNew the petitioners of such such publication (Matter of o/Gill publication (Matter time of the time petitioners at the accrued for action accrued of action causes of the causes that the Wagering Bd., 495 [1st Dept [holding that 2008] [holding Dept 2008] 494,495 AD3d 494, Bd., 50 AD3d Wagering Lenihan v see Lenihan promulgated]; see was promulgated]; rule was the rule statute of latest, the day the purposes, at the latest, limitations purposes, of limitations statute must be plan must reclassification plan the reclassification that the City of 681 [1982] [1982] [holding [holding that 679,681 NY2d 679, New York, 58 NY2d of New City was officially resolution was when the deemed to become the resolution officially binding when and binding and final and operative and become fully operative deemed Axelrod, 164 New York v Axelrod, ofNew Assn. of Hospital Assn. promulgated] [emphasis added]; of Hospital Matter of but see Matter added]; but promulgated] [emphasis New 2018, in the New notice on December AD2d 518,524 [3d Dept Dept 1990]). 1990]). The December 26, 26,2018, publication notice The publication AD2d 518,524 333.2, 329-1.3, 333.2, NYCRR Sections York State Register Sections 329-1.3, amended 12 NYCRR WCB amended that the WCB stated that clearly stated Register clearly York State claims compensation claims workers' compensation 343.2 and 348.2 348.2 to update medical treatment treatmentinin workers' paid for medical update the fees paid 343.2 included rule and included final rule the final of the text of (NYSCEF Doc 999). The further included included the text notice further The notice No. 65 at 999). Doc No. (NYSCEF public and addressing assessing and amendments to the Title 12 NYCRR sections after after assessing addressing public NYCRR sections relevant Title the relevant the amendments 15 [* 15] 15 of 18 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 INDEX NO. 522601/2020 RECEIVED NYSCEF: 10/20/2023 27, 2019, in Febr_uary 27,2019, ofadoption on Febr,uary comment notic~ o(adoption the notic~ Likewise, the changes. Likewise, proposed changes. the proposed comment on the NYCRR 68.1 was amending that theDFS was the same same publication amending 11 11 NYCRR notice thattheDFS pro~ided notice unequivocally provided publication unequivocally . Law§S Insurance Law pursuant to Insurance no-fault pursuant use in no-fault rRegulation 83") schedule for uSe WCB fee schedule the WCB adopt the 83") to adopt {"Regulation . underlying well as specific 5108 and contained specific reasons reasons underlying amended rule: as well the amended of the text of the text therein the contained therein 5108 necessity. the finding finding of of necessity. f' ee Sche~ules WCB fee 2018 WCB the 2018 Thus, to the Sche~ules and its challenge to Petitioners' challenge that Petitioners' finds that court finds the court Thus, the , ' WCB's and to the WCB's Petitioners' challenge adoption by the DFS apply to no-fault challenge to untimely. Petitioners' no-fault is untimely. DFS to apply adoption respectively. June 27, 2019, April 26, 2Ql9, and DFS' adoption adoption of of said said fee sched~les sched~les expired expired on and June 2019, respectively. on April26,2Q19, DFS' clearly was clearly determination was the determination DFS, as the There or DFS, WCB or the WCB taken by the action to be taken further action was no further There was petitioners' ~y either made apply the fee schedules schedules without further action action 9Y either agency. agency. Contrary Contrary to petitioners' without further made to apply effective date run oh position, statute of of limitations limitations did not not begin o'n the the effective date as the the notice notice of of begin to run position, the statute injury on concrete actual, concrete inflicted an actual, adoption injury action, inflicted agency action, of agency completion of the completion signaled the adoption signaled . ' Rather, the petitioners, and left doubt that further administrative administrative action. action. Rather, would be no further there would that there left no doubt petitioners, and was ·give adoption, to 'give the notice effective date date of of the change change by DFS DFS was delayed, delayed, according according to the notice of of adoption, effective noticeable· increase in the noticeable'increase absorb the rates to absorb premium rates insurers no-fault premium adjust no-fault appropriately adjust time to appropriately insurers time the · underlying the' policy underlying public policy no-fault claims costs costs (id.). (id.). Thus, Thus, in support support of of the stro~g strong public no-fault claims were final and WCB's andDFS' that weB's abbreviated statutory statutory time time frame? the court court finds andDFS' actions actions were finds that abbreviated was adoption was of adoption notice of when notice promulgated, when binding officially promulgated, were officially schedules were the schedules time the the time binding at the the;effective than the rather than given in the New State Register, , rather effective date. York StateRegister New York given referred to as the what is referred challenging what Furthermore, of the amended amended petition petition challenging portion of Furthermore, the portion petitioners the petitioners that the appears that untimely. It appears Treatment Scope Ground dismissed as untimely. likewise dismissed Rules is likewise Ground Rules Treatment Scope the f_rom ion's.. exclusion are challenging challenging mallipulation under anesthesia's and-moxibust and'm<;>xibustion's exclusion (rom the under anesthesia~s manipulation .. .. . established WCB established the WCB when the 2013, when since 2013, Chiropractic Schedule, which disapproved since been disapproved has been which has Fee Schedule, Chiropractic Fee . \\ under anesthesia manipulation under Medical specifically disapproving anesthesia for disapproving manipulation Guidelines specifically Treatment Guidelines Medical Treatment been have been moxibustion have under anesthesia chiropractors. Since of manipulation ane~thesia and and m'oxibustion manipulation under use of _Since the use chiropractors. untimely. dismissed as untimely. must be dismissed disapproved determinations must those determinations challenge to those any challenge 2013, any since 2013, disapproved since than rather than Schedule rather Fee Schedule To the extent extent the amended amended petition challenges the Chiropractic Chiropractic Fee petition challenges that challenge the prohibition of the of manipulation chal~enge is dismissed dismissed ·as 'as under anes~h~sia, that manipulation underanes~h~sia, the use of prohibition of the untim~ly as _the Rule 10 Ground Rule General Ground untimely. lOisis untirn~lyas the Chiropractic Gerleral the Chiropractic challenge to the Petitioners' challenge untimely. Petitioners' which, for billing which, challenged 18 Chiropra,ctic Chiropr~ctib Fee Schedule Schedule for billing 2018 appeared in the 20 provisions appeared challenged provisions of their notice of when notice binding when and· binding statute of of limitations limitations purposes, their adoption adoption was became final and purposes, became statute . \I , 16 [* 16] 16 of 18 , "- FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 INDEX NO. 522601/2020 RECEIVED NYSCEF: 10/20/2023 statute purposes, became became final and binding binding when statute oflimitations oflimitations purposes, when notice notice of of their their adoption adoption was published York State State Register Register on December December 26, 26,2018. Additionally, the 2018 published in the New New York 2018. Additionally, Chiropractic Fee Schedule Schedule was was adopted adopted by the DFS DFS Superintendent Superintendent for use use in no-fault no-fault pursuant pursuant Chiropractic Insurance Law§ Liw S 5108 on February February 6, 2019, 2019, with with notice notice of of same same being to Insurance being published published in the New New State Register Register on February February 27, 2019. Thus, Thus, the the instant instant petition York State petition is untimely untimely as the fee schedule became and binding no-fault, for statute statute oflimitations oflimitations purposes, schedule became final and binding for use in no-fault, purposes, on February 27, 2019. 2019. February newly included included SAPA SAPA claim claim in the amended amended petition, "[t]he relationrelationAs for petitioners petitioners newly petition, "[t]he back doctrine enables enables a plaintiff correct a pleading error-by adding adding either either a new new claim claim or a back doctrine plaintiff to correct pleading error-by new party-after limitations period expired" (Marcotrigiano (Marcotrigiano v Dental Specialty new party-after the limitations period has expired" Dental Specialty Associates, 209 AD3d AD3d 850, 851-852 851-852 [2d Dept Dept 2022], 2022], quoting quoting Buran Coupal, 87 NY2d Associates, P.e., P.C., 209 Buran v Coupal, NY2d [1995]). "[U]nder "[U]nder the the relation-back relation-back doctrine, doctrine, a (petitioner] [petitioner] may may interpose interpose a claim claim or cause cause of of 173 [1995]). action which which would would otherwise otherwise be time-barred, time-barred, where where the allegations allegations of of the original original [petition] [petition] action gave notice notice of of the the transactions transactions or occurrences occurrences to be proven cause of of action action would would have gave proven and the cause been timely timely interposed interposed if if asserted asserted in the original original [petition]" [petition]" ((Campbell Supply Co., 192 Campbell v Bradco Bradco Supply AD3d 967, 969 (2d [2d Dept Dept 2021], 2021], quoting quoting Carlino Carlino v Shapiro, Shapiro, 180 AD3d AD3d 989, 989, 990 990 [2d Dept Dept 2020]). 2020]). AD3d new legal legal theory theory of of recovery recovery may may be asserted, asserted, so long long as it arises arises from from the same same transactions transactions "A new alleged in the original original [petition], [petition], but the doctrine doctrine is unavailable unavailable where where the original original allegations allegations did alleged [respondents] notice notice of of the need need to defend defend against against the allegations allegations of of the amended amended not provide provide the [respondents] [petition]" (Carlino, (Carlino, 180 AD3d AD3d at 990, quoting quoting Pendleton City of of New AD3d 733, 733,736 [petition]" Pendleton v City New York, 44 AD3d 736 Dept 2007]). 2007]). Here, Here, the newly newly added added SAP A claim claim puts fundamentally new theory in [2d Dept puts forth a fundamentally new theory that WCB regulations "in a shrouded shrouded manner of the necessary necessary that the WCB regulations were were promulgated promulgated "in manner bereft bereft of transparency. " transparency." court finds finds that that the relation-back relation-back doctrine doctrine does does not apply apply and and petitioners' SAPA The court petitioners' SAPA claim must must be dismissed dismissed as untimely untimely since since it challenges challenges the procedures procedures and and administrative administrative claim mechanics of of rule rule promulgation rather than than what what was challenged challenged in the the original original petition, mechanics promulgation rather petition, that the enacted rules rules were were arbitrary arbitrary and capricious capricious in that that the government government action action was was taken taken without without enacted sound basis reason or regard regard of of the facts (see generally of Peckham Calogero, 12 generally Matter Matter of Peckham v Calogero, sound basis in reason NY3d [2009]). Contrary Contrary to petitioners' contentions in opposition opposition to the instant instant cross cross motion, motion, NY3d 424 [2009]). petitioners' contentions allegations in the the original original petition gave no notice notice of of the facts, transactions, transactions, and and occurrences occurrences the allegations petition gave giving rise rise to the newly newly asserted asserted SAPA cause cause of of action action as the original original petition contested the giving petition contested 17 [* 17] 17 of 18 INDEX NO. 522601/2020 FILED: KINGS COUNTY CLERK 10/20/2023 02:15 PM NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 10/20/2023 agencies procedures the agencies the procedures regarding the substance of schedules and did not issues regarding raise any issues not raise the fee schedules of the substance AD3d at 969). followed issue (see Campbell, Campbell, 192 AD3d regulations at issue promulgating the regulations when promulgating followed when of the Section IV of made in Section arguments made new arguments ~espondents' strike new seeks to strike three seeks mot. seq. no. three ~espondents' mot. made in arguments made address arguments papers is to address reply papers Petitioners' of reply function of "The function brief. "The reply brief. Petitioners' reply new grounds new arguments not to introduce opposition to the position introduce new arguments or new grounds movant, not taken by the movant, position taken opposition 2022], Dept 2022], 694, 695 [2d Dept AD3d 694, 206 AD3d for requested (Ditech Financial, Connors, 206 ~LC v Connors, Financial, ~LC relief' (Ditech requested relief' respondents did not the respondents 2018]). Since Dept 2018]). quoting Castro v Durban. 939,942 [2d Dept Since the AD3d 939,942 Durban. 161 AD3d quoting Castro would be improper reply, it would mitted in a reply, have opportunity to oppose oppose the new arguments'submitted improper for new arguments·sub have an opportunity papers reply papers raised in reply arguments first raised the court based on arguments petition based grant a petition and grant consider and court to consider 2005]). · In any event, Dept 2005]).' (Harleysville Ins. Co. v Rosario, 677, 677-678 677-678 [2d Dept event, since since the AD3d 677, Rosario, 17 AD3d (Harleysville the arguments not consider need not amended found to be time-barred, court need consider the arguments raised raised time-barred, the court was found petition was amended petition otherwise. new or otherwise. motion new in support, Petitioners' motion reply to Petitioners' opposition, or in reply support, in opposition, parties in connection All arguments evidence submitted submitted by the parties connection motions and evidence raised on the motions arguments raised discussed whether they thereto considered by this this court, court, regardless of whether they are specifically specifically discussed regardless of been considered have been thereto have .. hereby herein. Accordingly, it is hereby herein. Accordingly, moot; and denied as moot; ORDERED (Motion Seq. 1) is denied and it is further further motion (Motion Petitioners' motion that Petitioners' ORDERED that motion (Motion ORDERED that of Respondents' Respondents' cross cross motion (Motion Seq. 2) seeking seeking to branch of the branch that the ORDERED further a!ld it is further granted; a!1dit dismiss time-barred is granted; petition as time-barred amended petition dismiss the amended ORDERED amended petition dismissed in its entirety; entirety; and it is further further hereby dismissed petition is hereby the amended that the ORDERED that motion (Motion ORDERED that that the branch of Respondents' Respondents' cross cross motion (Motion Seq. 3) seeking seeking to branch of ORDERED moot. denied as moot. brief is denied reply brief Petitioners' reply strike Section IV of of the Petitioners' made in Section arguments made new arguments strike new judgment of This decision, order, order, and judgment of the court. court. constitutes the decision, This constitutes seph J.S.C. Ingnd Joseph Hon. lngnd Supreme Court Justice Justice Supreme Court 18 [* 18] 18 of 18

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