22-2537 GEICO v. Mayzenberg

In the United States Court of Appeals For the Second Circuit ______________

August Term, 2023

(Argued: February 15, 2024 Decided: November 12, 2024)

Docket No. 22-2537 ______________

GOVERNMENT EMPLOYEES INSURANCE COMPANY, GEICO INDEMNITY COMPANY, GEICO GENERAL INSURANCE COMPANY, GEICO CASUALTY COMPANY,

Plaintiffs-Appellees,

–v.–

IGOR MAYZENBERG, MINGMEN ACUPUNCTURE, P.C., SANLI ACUPUNCTURE, P.C., LAOGONG ACUPUNCTURE, P.C.,

Defendants-Appellants,

TAMILLA DOVMAN, AKA TAMILLA KHANUKAYEV, IGOR DOVMAN, JOHN DOE

Defendants. *

______________

* The Clerk of Court is respectfully directed to amend the caption as set forth above. When Defendants-Appellants originally filed this appeal, their case was consolidated with an appeal filed by Defendants Igor Dovman and Tamilla Dovman. Since then, the Dovmans have settled with Plaintiffs-Appellees and voluntarily dismissed their appeals under Federal Rule of Appellate Procedure 42. The Dovmans’ appellate case is now closed. Before: LIVINGSTON, Chief Judge, LYNCH, AND ROBINSON, Circuit Judges. ______________

This appeal raises an important, but unsettled, question of state law concerning New York’s “no-fault” auto insurance system. Plaintiffs- Appellees—four insurance entities commonly known as GEICO— presented evidence that the Defendants-Appellants—whom we collectively call the “Mayzenberg Defendants”—paid third parties for referring patients who were eligible for medical benefits under their no-fault insurance coverage to Defendant Mingmen, P.C. Under 11 N.Y.C.R.R. § 65- 3.16(a)(12) (the “Eligibility Regulation”), an insurance company can deny reimbursement to a provider of health care services for no-fault benefits if the provider “fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York . . . .” Here, we must decide whether, by paying third parties for patient referrals in violation of New York’s rules of professional misconduct, Mingmen has “fail[ed] to meet” a “licensing requirement” within the meaning of the Eligibility Regulation.

GEICO says yes. GEICO characterizes the patient referrals as an illegal “kickback” scheme, arguing that when a provider breaches its ethical duties, it necessarily violates the underlying terms of its licensure. In turn, under the Eligibility Regulation, the provider would not be entitled to receive no-fault payments.

The Mayzenberg Defendants disagree. They argue that paying for patient referrals may constitute professional misconduct, thereby subjecting the provider to licensure-related consequences, but does not constitute violation of a “licensing requirement” under the Eligibility Regulation. The Mayzenberg Defendants suggest that a “licensing requirement” refers to registration paperwork filed with the state to secure or maintain a license.

The United States District Court for the Eastern District of New York (Glasser, J.), agreed with GEICO. On cross motions for summary judgment, it awarded GEICO declaratory judgment on the question. The district court also granted GEICO summary judgment on its common law claim of fraud and statutory claims under the Racketeer Influenced and 2 Corrupt Organizations Act,

, largely based on the same conclusions about Mingmen’s ineligibility to receive assigned no-fault insurance benefits. The Mayzenberg Defendants appealed.

Because we cannot confidently predict how the New York Court of Appeals would interpret the Eligibility Regulation in this context, we hereby CERTIFY a question to that Court.

______________

BARRY I. LEVY (Michael A. Sirignano, Henry M. Mascia, Steven T. Henesey, on the brief), Rivkin Radler LLP, Uniondale, NY for Plaintiffs-Appellees.

MATTHEW J. CONROY, Schwartz, Conroy & Hack, PC, Garden City, NY, for Defendants-Appellants. ______________ ROBINSON, Circuit Judge:

This appeal raises an important, but unsettled, question of state law

concerning New York’s “no-fault” auto insurance system. Plaintiffs-Appellees

Government Employees Insurance Company and three affiliated entities

(collectively, “GEICO”) presented evidence that Defendants-Appellants Igor

Mayzenberg and two of his businesses—Laogong Acupuncture, P.C., (“Laogong”)

and Sanli Acupuncture, P.C. (“Sanli”)—paid third parties “kickbacks” for

referring patients who were eligible for medical benefits under their no-fault

insurance coverage to another Mayzenberg-owned business, Mingmen

Acupuncture, P.C., (“Mingmen”). Mingmen then provided medical services and

3 billed GEICO. In this opinion, we collectively refer to all four Defendants-

Appellants as “the Mayzenberg Defendants.”

The first question presented by the parties’ cross-motions for summary

judgment is whether the summary judgment record viewed in the light most

favorable to the Mayzenberg Defendants establishes as a matter of law that the

Mayzenberg Defendants paid third parties for patient referrals to Mingmen. If

so, the second question—the unsettled question of New York law—is whether

those facts render Mingmen ineligible to receive no-fault medical benefits from

GEICO.

Under 11 N.Y.C.R.R. § 65-3.16(a)(12) (the “Eligibility Regulation”), an

insurance company can deny reimbursement to a provider of health care services

for no-fault benefits if the provider “fails to meet any applicable New York State

or local licensing requirement necessary to perform such service in New York . . . .”

If GEICO has established that Mingmen—through Mayzenberg, Laogong, and

Sanli—paid third parties for patient referrals, in violation of New York’s rules of

professional misconduct, the legal question is whether Mingmen “fail[ed] to meet”

a “licensing requirement” within the meaning of the Eligibility Regulation.

GEICO says yes. According to GEICO, complying with the state’s

standards of professional conduct is necessary to maintaining a license. Thus, if

4 a provider pays “kickbacks” for patient referrals in breach of its ethical duties,

Appellee’s Br. at 26, the provider necessarily violates the underlying terms of its

licensure and cannot receive no-fault reimbursements. 1

The Mayzenberg Defendants disagree. They suggest that when the

Eligibility Regulation talks about a “licensing requirement,” it refers to registration

paperwork filed with the state to obtain or maintain a license. They also argue

that GEICO’s reading would allow insurance companies to engage in all sorts of

delay tactics to avoid paying no-fault claims.

The United States District Court for the Eastern District of New York

(Glasser, J.), agreed with GEICO as to both the facts and the law. It granted

GEICO’s motion for summary judgment and entered a declaratory judgment

absolving GEICO of any obligation to pay Mingmen’s pending claims. See

Government Employees Insurance Company v. Mayzenberg,

, at *13

(E.D.N.Y. Aug. 24, 2022) (declaring that “Mingmen is ineligible for reimbursement

on its pending no-fault claims . . . .”). The district court also granted GEICO

summary judgment on its common law claim of fraud and its statutory claims

1 Unless otherwise noted, when we quote the parties’ briefs, the summary judgment evidence, and caselaw, we omit all internal quotation marks, alterations, footnotes, ellipses, and citations. 5 under the Racketeer Influenced and Corrupt Organizations Act (“RICO”),

, both of which flowed from the same legal analysis.

at *13–14.

The Mayzenberg Defendants appealed, challenging the district court’s

rulings on the declaratory judgment and fraud claims. They argue that GEICO

failed to demonstrate that any kickbacks for referrals actually occurred here.

They also contend that even if they had paid referral fees, or “kickbacks” for patient

referrals, that would not be a basis to deny payment for Mingmen’s medical

services or to recoup payments already made.

We conclude that the undisputed facts, taken in the light most favorable to

the Mayzenberg Defendants, establish that they paid referral fees to third parties.

What’s less clear is whether that ethical violation renders Mingmen ineligible to

receive payments for no-fault benefits.

To date, the New York Court of Appeals has not decided whether engaging

in a patient-referral scheme constitutes a failure to satisfy a “licensing requirement”

under the Eligibility Regulation. A handful of decisions from New York’s

intermediate appellate and trial courts considering related “licensing

requirements” have reached inconsistent outcomes. Because we cannot

confidently predict how the New York Court of Appeals would rule on this issue,

which underlies the various counts within the judgment that the Mayzenberg

6 Defendants challenge on appeal, and because this question is a frequently

recurring one that potentially requires assessment of public policy considerations

in a highly regulated industry, we hereby CERTIFY a question to the New York

Court of Appeals.

BACKGROUND

Below, we begin with an overview of New York’s no-fault insurance system

before considering the relevant facts and procedural history of this lawsuit.

I. New York’s No-Fault Insurance System

Under New York’s Comprehensive Motor Vehicle Insurance Reparations

Act and its implementing regulations, auto insurance companies must provide

“no-fault benefits” to policyholders. See

, 5103(a) et seq.; 11

N.Y.C.R.R. §§ 65-1.1(a) et seq. These benefits require insurance companies to pay

up to $50,000 per insured for “basic economic loss[es],” which encompass

“necessary” “professional health services” like hospital care, dental work, and

physical therapy.

(a)(1). If a service is medically necessary,

an insurance company must pay for it, even if the policyholder was at fault for the

automobile accident (hence the “no-fault” nomenclature). Montgomery v. Daniels,

, 46–47 (1975).

7 New York enacted these measures to displace most of the state’s common

law tort regime for injuries arising from automobile accidents. See Matter of

Medical Society of State of N.Y. v. Serio,

(2003). In so doing, the

legislature hoped that the no-fault system would ensure prompt compensation for

individuals injured in motor vehicle accidents without regard to fault, reduce

litigation burdens on the courts, and lead to premium savings for New York

motorists. Id.; see also Montgomery, 38 N.Y.2d at 50–51 (explaining that, under the

common law system, litigation “was excessively and needlessly expensive and

inefficient,” that one quarter of injured persons “received no compensation

whatsoever,” and for those who received compensation, “minor injuries were

often overcompensated”).

Under the Act’s implementing regulations, insureds can assign their no-

fault benefits to healthcare providers, who, in turn, can bill the insurance company

directly and receive payment. 11 N.Y.C.R.R. § 65-3.11(a)–(b). “To guarantee

that insureds are promptly compensated, the regulations also establish[] strict, and

brief, time periods for claim processing.” State Farm Mut. Auto Ins. Co. v. Mallela,

(2d Cir. 2004) (“Mallela I”); see also Presbyterian Hosp. in City of

N.Y. v. Maryland Cas. Co.,

(1997) (describing the claims

8 processing period as “short-leashed” and “designed to avoid prejudice and red-

tape dilatory practices”).

For example, if an insurer wants to verify a claim, it must send specific forms

to the provider within 10 business days of receiving an application for no-fault

benefits. 11 N.Y.C.R.R. § 65-3.5(a). An insurer that seeks additional verification

to establish proof of the claim must make the request within 15 business days of

receiving the completed verification forms. Id. § 65-3.5(b). Such additional

verification may include an “examination under oath” of the assignee healthcare

provider or a medical examination of the insured. See id. § 65-3.5(d)–(e); IDS

Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C.,

, 1006–07 (2d Dep’t

2014) (examination under oath); Boulevard Multispec Med., P.C. v. Tri-State

Consumer Ins. Co.,

, 802–03 (N.Y. Dist. Ct. 2014) (medical

examination).

Once the insurer receives adequate evidence of proof of loss, it must pay

benefits within 30 calendar days.

(a); 11 N.Y.C.R.R. § 65-

3.8(a)(1). If it fails to do so without good cause, the insurer will owe interest and

reasonable attorneys’ fees.

(a). Plus, if the insurer fails to

adhere to this 30-day deadline, it will be precluded from raising most defenses in

any subsequent lawsuit. See Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10

, 563 (2008) (explaining that, except in one “narrow” circumstance,

insurers are generally precluded from asserting a defense against payment);

Presbyterian Hosp., 90 N.Y.2d at 285–86 (insurer precluded from asserting

intoxication exclusion defense).

Critical to this appeal is the Eligibility Regulation, which an insurer can

invoke as a ground to investigate a claim further and to deny payment. 2 The

Eligibility Regulation says:

A provider of health care services is not eligible for reimbursement under [

(a)(1)—the no-fault statute] if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York . . . .

11 N.Y.C.R.R. § 65-3.16(a)(12). Notably, the Eligibility Regulation does not define

the term “licensing requirement.” We consider New York caselaw applying the

Eligibility Regulation, and its implications for this case, in more detail below.

2 In the litigation context, an insurer can invoke the Eligibility Regulation offensively or defensively. It depends on who sues first. For example, if a healthcare provider sues an insurer to compel reimbursement, the insurer can raise the Eligibility Regulation as an affirmative defense. See, e.g., Huntington Regional Chiropractic, P.C. v. Allstate Ins. Co.,

(N.Y. Dist. Ct. Nassau Cty. 2013). On the flipside, if the insurer gets to the courthouse first, it can sue the provider and seek a declaratory judgment that the provider is not entitled to payment because it did not satisfy a licensing requirement under the Eligibility Regulation. See, e.g., Liberty Mut. Ins. Co. v. Raia Med. Health, P.C.,

(2d Dep’t 2016). 10 II. Factual Background

At the time of the parties’ cross-motions for summary judgment,

Mayzenberg was a naturalized U.S. citizen living in Brooklyn, New York. He

was licensed to practice acupuncture, and he is the sole owner of Mingmen,

Laogong, and Sanli—three acupuncture professional services corporations

(“PCs”) formed under New York law. Of these three PCs, only Mingmen treated

patients between January 2012 to February 2019, the relevant time period for this

lawsuit. Laogong and Sanli, on the other hand, have not treated a patient since

2012 and 2011, respectively.

From January 2012 to February 2019, Mingmen treated more than 1,300

individuals injured in motor vehicle accidents who were eligible for no-fault

benefits. It filed nearly $4.9 million in no-fault claims with GEICO, of which

nearly $3.2 million remained outstanding as of February 2019.

Although Mingmen was the only PC actively treating patients during this

time period, Mayzenberg’s two other PCs—Laogong and Sanli—made payments

to others via check. Of these check recipients, the most prominent in the record

and the most discussed in the briefing are a group of entities owned and controlled

by Igor Dovman and his spouse, Tamilla Dovman. The record shows that the

Dovmans served as the president or owner of at least twenty-three companies (the

11 “Dovman Companies”) that received payments from Laogong and Sanli. Igor

and Tamilla Dovman were also the signatories for the Dovman Companies’ bank

accounts.

Between September 2015 and August 2017, Laogong and Sanli paid the

Dovman Companies nearly $390,000, often in installments exceeding $10,000.

Even though Laogong and Sanli paid the Dovman Companies large sums of

money, the Dovman Companies never sent Laogong, Sanli, or Mingmen an

invoice that described what these payments were for. Instead, an unidentified

person would call Mayzenberg every month and tell him how much to remit.

When Mayzenberg wrote the checks, he sometimes left the “pay to the order”

section blank and let an unknown person fill in that line. He also left the “memo”

or “for” lines blank for all the checks. Mayzenberg explained that he left portions

of his checks blank because he struggles with English spelling and grammar. He

simply wrote the amount due as directed and let someone else fill out the

remaining sections so that the payments would go smoothly.

Mayzenberg claims that he paid the Dovman Companies through Laogong

and Sanli to do legitimate advertising work for Mingmen. Notwithstanding this

explanation, Mayzenberg could not identify any advertising activities undertaken

by the Dovman companies. Mayzenberg did not have copies of any flyers, nor

12 could he name a newspaper in which a supposed advertisement ran for Mingmen.

He also did not know whether the Dovman Companies had any phone number

and could not name a person associated with a Dovman Company. Additionally,

none of the Dovman Companies paid any identifiable employees, legitimate

vendors, government agencies, or tax collectors. They did not own or lease any

office space, and they did not maintain a website or social media presence

advertising their services. And, for at least three Dovman Companies, the

certificate of incorporation used someone else’s name as an incorporator, when, in

fact, the named incorporators never authorized the use of their identity for such

purposes.

In addition, a few Dovman Companies bore names suggesting they did not

engage in any advertising work at all, such as “ML Garbage Removal, Inc.,” “MN

Surgical Supplies, Inc.,” and “Rig Testing and Supply, Inc.” When pressed about

the incongruity of paying a garbage removal company for marketing, Mayzenberg

responded, “I don’t care what the name of the company is. . . . If garbage removal

company can find people, people in garbage there, and sends them to the clinic, I

don’t care how garbage company is called.” App’x at 175.

And when asked why Laogong and Sanli paid the Dovman Companies, as

opposed to Mingmen (the purported beneficiary of the advertising work),

13 Mayzenberg said that was easier for him. Because Mingmen treats the patients,

it was “an overload of a company” that required him to issue many checks for

many expenses. App’x at 136. In his view, because all three PCs belonged to

him, it didn’t matter where the money came from.

During discovery, when GEICO sought information from Igor Dovman, he

repeatedly invoked his Fifth Amendment privilege against self-incrimination.

For example, in response to interrogatories that asked him to identify the nature

of his relationship with the Mayzenberg Defendants and to describe the business

activities of each Dovman Company, Igor Dovman invoked the Fifth Amendment.

He did the same during his deposition, in which he was asked whether he had

ever received payment from the Mayzenberg Defendants in exchange for patient

referrals. In fact, Igor Dovman declined to answer any of the questions about any

of his companies, including whether he was the president of them.

In addition to paying the Dovman Companies, Mayzenberg’s inactive PCs

also paid four others—a personal injury attorney named Daniel Corley, a salon

owner named Desiree Reid, and two entities named Nina Brouk Advertisement

and Dona Catalina Marketing. On twelve occasions, Sanli issued checks to

Corley, which were deposited into his attorney operating account. Corley’s

account also issued 197 checks—a total of $1.4 million—to companies owned by

14 Igor Dovman. Curiously, the checks issued from Corley’s attorney operating

account bore Igor Dovman’s handwriting. When GEICO asked Corley about his

attorney operating account in a deposition, Corley invoked his Fifth Amendment

privilege. And when GEICO asked Corley about whether he ever referred his

personal injury clients to providers in exchange for payments, Corley, again,

invoked his Fifth Amendment privilege.

The record evidence regarding the checks to Desiree Reid, Nina Brouk

Advertisement, and Dona Catalina Marketing is less robust, and the details are not

particularly relevant to our decision to certify. 3

III. District Court Proceedings

In 2017, GEICO filed its original complaint against the Mayzenberg

Defendants, which was later superseded by an amended complaint. Of the eight

claims asserted in the amended complaint, only four are before us: GEICO’s claim

for declaratory judgment, its New York common law claim of fraud, and its two

statutory RICO claims—a civil RICO conspiracy and a substantive RICO violation.

3 The parties also dispute whether Mingmen’s services were medically necessary. GEICO says many weren’t. For purposes of the summary judgment ruling on appeal, which turns on Mingmen’s eligibility to receive no-fault benefits and not the medical necessity of the services it provided or the reasonableness of its no-fault claims, we assume that the services for which Mingmen billed GEICO were reasonable and medically necessary. 15 GEICO’s claim for declaratory judgment sought a declaration that Mingmen could

not receive payment for its pending no-fault claims.

The declaratory judgment claim is premised on the factual assertion that

Mingmen improperly paid fees for patient referrals, and the legal assertion that

under the Eligibility Regulation, this conduct renders Mingmen ineligible to

receive no-fault benefits as the assignee of its insured patients. As to its claim of

fraud, GEICO alleges in relevant part that Mayzenberg and Mingmen falsely

represented that Mingmen could receive no-fault payments, when, in fact, it was

not entitled to such reimbursement by virtue of its participation in a patient

referral scheme. 4 As for its RICO claims, GEICO alleged that Mayzenberg

repeatedly committed mail fraud, in violation of

, and his inactive

PCs conspired to further this criminal enterprise. The theory of RICO fraud

relevant to this appeal is the same as GEICO’s theory of common law fraud

described above. Lastly, GEICO alleged Mayzenberg and Mingmen unjustly

enriched themselves when they received payments for no-fault benefits they were

not entitled to.

4 GEICO’s amended complaint identifies multiple material misrepresentations and omissions to support its claim of fraud. However, it only moved for summary judgment on one alleged misrepresentation—that Mingmen falsely represented it could receive no-fault payments, even though it had engaged in a patient referral scheme. See Mayzenberg,

, at *5. Thus, only this theory of liability is before us on appeal.

16 After discovery closed, GEICO and the Mayzenberg Defendants filed cross

motions for summary judgment. The district court ruled in GEICO’s favor,

awarding it summary judgment on all claims except unjust enrichment. See

Mayzenberg,

, at *13–14. The district court first concluded that

there was no genuine dispute that the Mayzenberg Defendants paid the Dovmans

and others for improper patient referrals.

. In the district court’s view,

Mayzenberg’s “bare assertion[]” that he paid the Dovman Companies for

legitimate advertising work did not create a triable issue of fact.

Because it concluded that the patient referral scheme violated a licensing

requirement, the district court held that under the Eligibility Regulation, Mingmen

was disqualified from receiving any no-fault payments.

The court thus

issued a declaratory judgment that absolved GEICO of any duty to pay Mingmen’s

outstanding no-fault claims.

.

These initial rulings formed the basis for the district court’s subsequent ones.

Because Mingmen was ineligible for no-fault payments, the district court granted

summary judgment on GEICO’s claim of common law fraud. See

at *8–9. It

explained that when Mingmen submitted its claims to GEICO, it knowingly

omitted a material fact—that Mingmen got its patients through an unethical

patient referral arrangement.

The district court then found that, as a matter

17 of law, the evidence conclusively showed Mingmen intended for GEICO to rely

on that omission to its detriment.

. Because a reasonable factfinder

could not find for the Mayzenberg Defendants, the district court granted summary

judgment on GEICO’s claim of fraud.

.

So too with GEICO’s RICO claims. See

at *12–13. In the district court’s

view, there was no genuine dispute that Mayzenberg engaged in a pattern of

racketeering when he repeatedly mailed fraudulent no-fault claims to GEICO, in

violation of the federal mail fraud statute.

at *11–12. It also found that

Mayzenberg, Laogong, and Sanli conspired to further this racketeering enterprise

when they funneled money to the Dovman Companies.

.

Lastly, because New York law does not permit recovery on an unjust

enrichment claim that is duplicative of a conventional tort claim, the district court

dismissed the unjust enrichment claim as moot.

at *13 (citing Scifo v. Taibi,

(2d Dep’t 2021)). Given its rulings in GEICO’s favor, the district

court denied the Mayzenberg Defendants’ cross-motion for summary judgment,

id. at *14, and this timely appeal followed.

DISCUSSION

The Mayzenberg Defendants make two main arguments on appeal: (1) there

is a genuine issue of material fact as to whether the Mayzenberg Defendants paid

18 fees for patient referrals, and (2) paying for patient referrals, in violation of New

York Education Law § 6530(18) and 8 N.Y.C.R.R. § 29.1(b)(3), does not disqualify

a provider from receiving no-fault payments under the Eligibility Regulation.

With respect to the first argument—the factual one—we agree with the

district court that based on the summary judgment evidence, a rational factfinder

would be compelled to conclude that the Mayzenberg Defendants paid fees to

third parties for patient referrals. The second question—the legal one—is a close

one. For the reasons set forth below, we certify the question to the New York

Court of Appeals.

I. The Factual Question

“We review without deference the district court’s grant of summary

judgment when, as here, the parties filed cross-motions for summary judgment

and the district court granted one motion but denied the other.” Loomis v. ACE

American Insurance Company,

(2d Cir. 2024). “Summary

judgment is proper when there are no genuine disputes of material fact and the

movant is entitled to judgment as a matter of law.”

And where a movant has

shown the existence of a material fact and the nonmovant wishes to challenge it,

the nonmovant bears the burden of production to point to “significant probative

evidence” (that is, more than “a scintilla of evidence”) from which a reasonable

19 factfinder could find for the nonmovant. Anderson v. Liberty Lobby, Inc.,

(1986).

Here, there is no genuine dispute about the fact that the Mayzenberg

Defendants paid the Dovmans for patient referrals to Mingmen. The parties

don’t dispute the following: For almost two years, Mayzenberg’s clinically inactive

PCs paid the Dovman Companies nearly $390,000. Although Mayzenberg insists

that these payments were for general advertising and marketing work,

Mayzenberg had no invoices or flyers to support this factual assertion. Nor could

Mayzenberg point to a single individual from the Dovman Companies with whom

he had contact about the supposed advertising work. Plus, not only is the

summary judgment record bereft of any named employee who did advertising

work, the record undisputedly shows the Dovman Companies paid no employees.

Nor did they pay any vendors, government agencies, or tax collectors. The

Dovman Companies did not own or lease any office space, and they did not

maintain any website or social media presence to show that any entity did

advertising work.

Moreover, Mayzenberg essentially admitted that he paid the Dovman

companies to send him patients. When asked about a check written to a Dovman

company named “ML Garbage Removal, Inc.,” he said, “I don’t care what the

20 name of the company is. . . . If garbage removal company can find people, people

in garbage there, and sends them to the clinic, I don’t care how garbage company

is called.” App’x at 175. This admission, coupled with his inability to furnish

sufficient evidence to contradict GEICO’s evidence, entitles GEICO to judgment

as a matter of law on the factual issue in this case—whether Mayzenberg paid the

Dovmans for patient referrals.

Although the Mayzenberg Defendants dispute these facts, they have not

met their burden of production to create a triable issue over them. See McKinney

v. City of Middletown,

(2d Cir. 2022) (“[T]he nonmoving party must

come forward with evidence that would be sufficient to support a jury verdict in

its favor.”). Mayzenberg’s bare assertion that the Dovman Companies did

advertising work, unsupported by any detail or evidence, and contradicted by the

undisputed evidence about the nature of the Dovman Companies as well as his

own admission, is insufficient to create a disputed issue of fact.

Because the Mayzenberg Defendants have failed to point to more than “a

scintilla” of evidence sufficient to create a triable issue of fact, Anderson,

, and no rational factfinder could find for the Mayzenberg Defendants on

this issue, the district court did not err in assessing the facts for purposes of its

summary judgment ruling.

21 II. The Legal Question

The legal question is tougher—that is, whether paying for patient referrals,

in violation of New York Education Law § 6530(18) and 8 N.Y.C.R.R. § 29.1(b)(3),

disqualifies a provider from receiving no-fault payments under the Eligibility

Regulation. 5 Considering the regulatory framework and New York court

decisions, we cannot confidently predict how the New York Court of Appeals

would decide this question. Because the question frequently arises in litigation

and raises important public policy considerations that impact a highly regulated

industry, we opt to certify rather than deciding the question ourselves.

A. The Statutes and Regulations at Issue

Recall that the Eligibility Regulation says a provider cannot receive no-fault

reimbursements if it “fails to meet any applicable New York State or local licensing

requirement necessary to perform [the services it’s licensed for] in New York.”

11 N.Y.C.R.R. § 65-3.16(a)(12). Relevant here, Title VIII of New York’s Education

Law, which regulates physicians, acupuncturists, and other healthcare providers,

5 In passing, the parties’ briefs cite another statute prohibiting medical referral businesses: New York Public Health Law § 4501, which says: “No person . . . shall engage in for profit any business or service which in whole or in part includes the referral or recommendation of persons to a . . . health related facility . . . for any form of medical . . . care or treatment of any ailment or physical condition.”). Because they have not adequately briefed how this statutory provision applies to Mingmen, and whether it does or does not qualify as a licensing requirement, we deem any argument tied to this statute abandoned. United States v. Donziger,

, 306 n.17 (2d Cir. 2022) (declining to address inadequately briefed arguments raised in passing). 22 says the following will constitute professional misconduct: “Directly or indirectly

offering, giving, soliciting, or receiving or agreeing to receive, any fee or other

consideration to or from a third party for the referral of a patient or in connection

with the performance of professional services.”

(18). An

implementing regulation says the same. See 8 N.Y.C.R.R. § 29.1(b)(3). And if

New York’s state board for professional medical conduct finds a licensee guilty of

violating this prohibition on paying for patient referrals, the board can suspend,

revoke, or annul the license.

-a(2), (4)–(5).

B. New York Caselaw

To date, the New York Court of Appeals has issued two decisions

addressing the scope of the Eligibility Regulation: State Farm Mut. Auto. Ins. Co. v.

Mallela,

, 320–21 (2005) (“Mallela II”) and Andrew Carothers, M.D., P.C.

v. Progressive Ins. Co.,

, 404 (2019). These decisions explain that PCs

owned and controlled by people outside of the PCs’ practice area have failed to

meet a necessary “licensing requirement” under the Eligibility Regulation.

Mallela II, 4 N.Y.3d at 319–22; Carothers, 33 N.Y.3d at 393–94, 397, 403–07. See also

(a), 1508(a) (imposing restrictions on PC ownership

and control). They do not address the Eligibility Regulation’s application to

providers who violate the rules of professional conduct for healthcare providers.

23 We have located only one decision from New York’s intermediate appellate courts

and three from its trial courts that touch upon that question. As reflected below,

these decisions give us guidance, but do not clearly resolve the issue before us.

1. Mallela I and II

In Mallela I, an insurer sued several individuals and PCs in federal court,

alleging that nonphysicians fraudulently incorporated the PCs by paying doctors

to use their names in the PCs’ registration paperwork, even though the

nonphysicians actually owned and operated the companies. 372 F.3d at 503–04.

The insurer argued that the PCs’ fraudulent incorporation disqualified them from

receiving reimbursement under the Eligibility Regulation.

. The

district court dismissed the insurer’s operative pleading,

, and on appeal,

we certified to the New York Court of Appeals the following question: “Is a

medical corporation that was fraudulently incorporated . . . entitled to be

reimbursed by insurers, under New York Insurance Law §§ 5101 et seq., and its

implementing regulations, for medical services rendered by licensed medical

practitioners?” Id. at 509.

The New York Court of Appeals said no. Mallela II,

.

Citing the Eligibility Regulation, the Court of Appeals concluded that if the

insurer’s allegations were true, the defendant PCs “undisputedly fail[ed] to meet

24 the applicable state licensing requirements, which prohibit nonphysicians from

owning or controlling medical service corporations.”

at 320–21. It rejected

the argument that PCs were entitled to payment because the patients received

necessary medical care from licensed providers operating within the scope of their

licenses, explaining that the reimbursement would still go to a medical service

corporation that exists solely “because of its willfully and materially false filings

with state regulators.”

. In response to the argument that its

interpretation of the Eligibility Regulation would undermine the prompt payment

goals of the no-fault system, the Court of Appeals deferred to the expertise of the

Superintendent of Insurance in adopting a reasonable regulation.

It held

that “on the strength of [the Eligibility Regulation], carriers may look beyond the

face of licensing documents to identify willful and material failure to abide by state

and local law.”

Responding to the argument that its interpretation would invite insurers to

abuse the verification process authorized by statute, the Court of Appeals

explained that by regulation, carriers may delay the payment of claims to pursue

investigations solely for “good cause,” and in the licensing context, carriers would

“be unable to show ‘good cause’ unless they can demonstrate behavior

tantamount to fraud.”

. It continued: “Technical violations will not do.

25 For example, a failure to hold an annual meeting, pay corporate filing fees or

submit otherwise acceptable paperwork on time will not rise to the level of fraud.”

What’s not clear from Mallela II is whether its holding reaches only

fraudulent conduct connected with the formation and initial licensure or

relicensure of a PC, or whether it reaches any conduct that can lead to revocation

of an otherwise valid license.

2. Carothers

Likewise, Carothers, the only other decision from the Court of Appeals on

the Eligibility Regulation’s reach, does not resolve the issue. Carothers was

primarily concerned with how a trial court handled a request for a specific jury

instruction. 33 N.Y.3d at 400. Like Mallela II, Carothers involved PCs that were

nominally owned by a physician but actually controlled by nonphysicians. Id. at

397. During the trial, the PCs requested a jury instruction that would explain the

traditional elements of common law fraud. Id. at 399. Emphasizing Mallela II’s

language about conduct that is “tantamount to fraud,” the PCs argued an insurer

could only deny payment under the Eligibility Regulation if the PCs’ conduct

satisfied the elements of common law fraud. Id. The trial court declined to issue

the requested instruction. Id. Instead, it told the jury that it could find the PCs

26 were fraudulently incorporated if it found the nonphysicians were either the

actual owners of, or exercised substantial control over, the PCs. Id.

The Court of Appeals affirmed the trial court’s ruling. Id. at 405–06. It

noted that the confusion over the phrase “tantamount to fraud” likely stemmed

from the fact that we, the Second Circuit, used the term “fraudulently

incorporated” when we certified our question in Mallela I. Id. at 405. Carothers

acknowledged that Mallela II’s discussion of the word “fraud” was “misleading,”

and it clarified that insurers, PCs, and courts should not read too much into

Mallela I’s use of the word. Id. Rather, the focus should center on whether a

corporate practice showed a “willful and material failure to abide by licensing and

incorporation statutes,” which may or may not satisfy the traditional elements of

fraud. Id. And where a PC fails to abide by such licensing and incorporation

statutes, Carothers reiterated Mallela II’s guidance that insurers can only withhold

payment where such violations are “grave” ones rather than merely “technical”

ones. Id. at 406.

Though Carothers reaffirmed that the Eligibility Regulation only authorizes

non-payment for sufficiently severe violations, it tells us no more than Mallela II

about whether the Eligibility Regulation can reach beyond “licensing and

27 incorporation statutes” to professional misconduct that could implicate a

provider’s licensure.

3. Decisions from New York’s Intermediate and Trial Courts

The handful of cases from New York’s intermediate and trial courts that

touch more directly on the question before us yield conflicting answers. In H & H

Chiropractic Servs., P.C. v. Metropolitan Prop. & Cas. Ins. Co., a trial court in Queens

County essentially rejected an argument similar to the one GEICO presses here.

See

(N.Y. Civ. Ct. 2015). There, an insurer denied payment

because a PC engaged in “impermissible fee splitting,” which violated two

statutes, New York Education Law § 6509-a and § 6530(19), and one regulation, 8

N.Y.C.R.R. § 29.1(b)(4), that governed professional conduct. Id. at 1077. 6 For

purposes of its analysis, it appears that the court assumed the PC impermissibly

split its fees with a third-party vendor and focused on whether such impermissible

6 Impermissible fee splitting occurs where a licensee permits “any person to share in the fees for professional services, other than: a partner, employee, associate in a professional firm or corporation,” or other qualifying personnel. See

(19); see also

§ 6509-a (prohibiting similar conduct in more specific contexts); 8 N.Y.C.R.R. § 29.1(b)(4) (using similar language as § 6530(19)). In H & H, a PC agreed to pay its billing vendor five to six percent of all fees charged and collected.

. The PC disputed that paying its biller a percentage of receivables ceded “any form of ownership or control over the plaintiff.”

. In reaching its decision, the court did not decide the question of whether the PC’s contract with its billing vendor was, in fact, improper. 28 fee splitting, alone, could render the PC ineligible to receive no-fault benefits

under the Eligibility Regulation. See

at 1078–79.

The trial court said no. It first noted that the lawsuit presented a case of

first impression.

. To the best of its knowledge, all cases involving the

“successful[]” use of the Eligibility Regulation involved fraudulent incorporation

and never impermissible fee splitting alone.

. H & H observed that

Education Law § 6530 and its accompanying regulation committed punishment

for unprofessional conduct to the state board—not the courts. Id. And where

courts have been asked to review punishment meted by the state board, such

review is done through New York’s expedited Article 78 proceedings, not a

standard civil lawsuit. 7

H & H concluded that “impermissible fee-splitting, standing alone, is not a

violation of a licensing requirement, does not constitute an available defense to a

no-fault action and, as such, any action is solely within the purview of the

appropriate state licensing board.” Id. at 1079.

7 Article 78 proceedings differ from traditional civil proceedings—which New York calls “plenary civil actions”—by offering “a limited and expedited summary procedure.” Whitfield v. City of New York,

(2d Cir. 2024). The party initiating the Article 78 proceeding is not automatically entitled to discovery and must seek leave from the court to do so.

Similarly, parties cannot “be joined or impleaded, and no third-party practice or intervention is allowed, without leave of the court.”

29 Both the First Department and a trial court in Bronx County have adopted

H & H’s approach. See Matter of Allstate Prop. & Cas. Ins. Co. v. New Way Massage

Therapy P.C.,

(1st Dep’t 2015); Harvey Family Chiro PT & Acup,

PLLC v. Ameriprise Ins. Co.,

, 560 (N.Y. Civ. Ct. Bronx Cty. 2020). In

New Way Massage, the First Department issued a brief, two-paragraph decision

that cited H & H and held that impermissible fee splitting alone “does not

constitute a defense to a no-fault action.”

. It explained that

consequences flowing from impermissible fee splitting was “solely a matter for the

appropriate state licensing board.”

In Harvey, a trial court in Bronx County

summarily said impermissible fee splitting, alone, did not violate a licensing

requirement under the Eligibility Regulation. 68 Misc.3d at 560.

But a trial court in New York County went the other way on this issue. See

HKP Physical Therapy, P.C. v. Government Empls. Ins. Co.,

(N.Y. Civ.

Ct. N.Y. Cty. 2019). There, an insurer alleged a doctor wrote medically

unnecessary prescriptions, and a colluding pharmacy filled them.

at 284–85,

290–91. The insurer believed the pharmacy not only dispensed unnecessary

medications, but it also conspired with the doctor to engage in an improper patient

referral scheme.

, 299–300. It therefore requested documents so it

30 could verify or dispel its suspicions in processing the pharmacy’s no-fault claims.

, 290–91.

The trial court held that a pharmacy that participates in a patient referral

scheme, in violation of Education Law § 6530(18), could be denied payment under

the Eligibility Regulation. See id. at 300. It reasoned that the Eligibility

Regulation said any failure to meet a licensing requirement would render a

provider ineligible for no-fault payments. Id. at 299. Based on this expansive

language, HKP held that paying for patient referrals was a licensing violation and

thus fell within the Eligibility Regulation’s scope. See id. at 300. HKP then

concluded the insurer could properly request documentation to further its

investigation and dismissed the pharmacy’s lawsuit as prematurely filed (that is,

the lawsuit would’ve been ripe if the insurer had actually denied the claim). Id.

at 300–02.

In light of H & H, New Wave Massage, and Harvey, there’s a persuasive

argument that the district court should not have entered declaratory judgment for

GEICO—especially because New Wave Massage is a decision from the First

Department of the Appellate Division. See King v. Aramark Services, Inc.,

(2d Cir. 2024) (“Absent persuasive evidence that the New York Court of

31 Appeals would reach a different conclusion, we are bound to apply [the statute]

as interpreted by the First Department.”).

Moreover, H & H and New Wave Massage make a compelling point that

under New York Public Health Law § 230-a, the state has committed the

responsibility of disciplining providers to the state board for professional

misconduct. See H & H,

; New Wave Massage,

.

To hold that a private entity like an insurance company can use Education Law

§ 6530 and Public Health Law § 230-a to dispense sanctions for ethical violations

would be in tension with the statutory structure.

But HKP offers worthy insights of its own. The Eligibility Regulation

disqualifies a provider that “fails to meet any applicable New York State or local

licensing requirement” from receiving no-fault payments. 11 N.Y.C.R.R. § 65-

3.16(a)(12) (emphasis added). And insofar as loss of licensure is a potential

consequence for violating Education Law § 6530(18), isn’t compliance with that

provision a licensing requirement?

True, extending Mallela II and Carothers beyond the incorporation and initial

licensure or relicensure context could open the door to denying payment based on

a large swath of conduct. For example, Education Law § 6530 also considers the

following to be professional misconduct: failing to furnish copies of documents

32 requested by a patient, revealing a patient’s personal information without consent,

and advertising “for patronage that is not in the public interest.”

(22), (23), (27). But the New York Court of Appeals has cautioned that only

“grave” violations fall within the Eligibility Regulation’s purview. See Carothers,

33 N.Y.3d at 406. And that limiting principle could mitigate the potential

overbreadth of the HKP approach.

GEICO, not surprisingly, aligns with the HKP approach. In addition to

relying on the terms of the statute, GEICO leans on policy arguments. In

GEICO’s view, if the Eligibility Regulation’s goal is to prevent PCs from morphing

into profit-maximizing operations, then that principle should guide our analysis

here. That is to say, if PCs controlled by non-physicians are ineligible for no-fault

reimbursements because they prioritize personal riches over a patient’s quality of

care, the same should be true for PCs that pay others for patient referrals. Both

practices lead to costly, unnecessary treatment at the expense of insured motorists

who ultimately have to pay higher premiums as a result of this misconduct.

GEICO also analogizes the manipulative aspects of a fraudulently incorporated

PC to those of a patient referral scheme. In the same way that fraudulently

incorporated PCs are puppeteered by nonphysicians, patient referral schemes are

33 subject to an analogous form of marionetting: No payment to the referrer, no

patients. No patients, no money.

The Mayzenberg Defendants take a different view that aligns with H & H.

They emphasize that the prohibition against referral fees is a disciplinary

regulation, not a licensing one. Moreover, the Mayzenberg Defendants

contend that extending the Regulation’s reach to the rules of professional conduct

would create perverse incentives on the part of insurance companies, opening the

floodgates to an “onslaught of verification requests” to see if a PC has committed

any form of professional misconduct. Appellant’s Br. at 24.

For the reasons set forth below, we conclude that the New York Court of

Appeals is better positioned than we are to resolve these competing arguments.

III. Certification

The New York Court of Appeals authorizes us to certify claim-

determinative questions of New York law where there is no controlling Court of

Appeals precedent. 22 N.Y.C.R.R. § 500.27(a). Likewise, under our Local Rule

27.2, we may certify questions of New York law to the New York Court of Appeals.

Among the factors that guide our exercise of discretion to certify, or not, are: (1)

whether the New York Court of Appeals has addressed the issue; (2) whether the

question is “of importance to the state and may require value judgments and

34 public policy choices;” and (3) whether the certified question is “determinative of

a claim before us.” Barenboim v. Starbucks Corp.,

(2d Cir. 2012).

As set forth above, the New York Court of Appeals has not considered

whether compliance with Education Law § 6530 and its subsections are licensing

requirements for purposes of the Eligibility Regulation.

Three other considerations drive our decision to certify. First, answering

the question presented would require us to decide an issue that is not only likely

to be frequently litigated, but also one that comprises a vast portion of the dockets

of arbitral tribunals and courts. Second, deciding the question would require us

to make important policy judgments affecting a highly regulated industry—

something “we are singularly unsuited to decide.” Mallela I,

.

And third, the answer to the certified question would be determinative of this

appeal.

A. The Issue Is Frequently Recurring

In general, no-fault disputes are frequently litigated. In 2007, a trial court

in Queens County commented on the high-volume of no-fault litigation in New

York’s courts:

In calendar year 2006 alone, the New York City Civil Court had approximately 100,000 new no-fault case filings, of which roughly 70,000 were filed in Queens County Civil Court. In Queens County Civil Court, on a typical 2007 court day, a trial judge may be assigned 35 two to seven no-fault trials and, on the summary judgment no-fault motion calendar, 100 or so motions may appear; considering a larger time frame of the last six months of 2006 in that same court and all types of no-fault motions, a total of almost 11,000 no-fault motions were resolved on the no-fault motion calendars, with more than 3,000 cases marked disposed, primarily by and before this judge.

Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co.,

, 997 n.1 (N.Y.

Civ. Ct. 2007).

To provide a more recent picture, we only need to look at the instant lawsuit.

Before discovery closed in this case, GEICO sought a preliminary injunction to

pause numerous pending proceedings and prevent the Mayzenberg Defendants

from initiating new ones. See Government Employees Insurance Co. v. Mayzenberg,

, at *11–12 (E.D.N.Y. Nov. 16, 2018). When GEICO sought a

preliminary injunction, the Mayzenberg Defendants had already opened more

than 500 lawsuits and 180 arbitration proceedings against GEICO for refusing to

pay outstanding claims.

. In a lengthy decision, the district court

granted GEICO’s motion in part and stayed all pending and future arbitration

proceedings, but not any pending New York state litigation.

. The

district court also enjoined the Mayzenberg Defendants from opening any new

state lawsuits.

Preliminary injunctions recently issued from the Eastern District of New

York further confirm that no-fault disputes involving patient referral schemes are 36 voluminous. See, e.g., State Farm Mutual Automobile Insurance Company v. Metro

Pain Specialists P.C.,

, at *6 (E.D.N.Y. May 20, 2022) (involving

1,569 pending arbitrations and 215 lawsuits), aff’d in part, rev’d in part and remanded

sub nom, State Farm Mutual Automobile Insurance Company v. Tri-Borough NY Medical

Practice P.C., __ F.4th __,

(2d Cir. Oct. 24, 2024); Government

Employees Insurance Company v. Zilberman,

, at *1 (E.D.N.Y. Mar.

25, 2021) (120 pending arbitrations and 650 lawsuits); Government Employees

Insurance Company v. Cean,

, at *5 n.4 (E.D.N.Y. Nov. 22, 2019) (220

pending arbitrations).

Because no-fault litigation—including those implicating improper patient

referral arrangements—consume a substantial portion of the dockets of arbitration

tribunals and courts, we are loathe to decide this appeal without the benefit of the

Court of Appeals’ guidance, as any decision will have an immense impact on

arbitral fora, state courts, and the federal courts.

B. Important Policy Concerns Are Implicated

We are also mindful that our decision would require us to make policy

judgments affecting a highly regulated industry. On one hand, the no-fault

system was enacted to streamline litigation and claims processing. Serio,

. Expanding the Eligibility Regulation to encompass Education Law

37 § 6530(18) (and potentially other forms of professional misconduct) could

undermine that goal, since such a holding would expand the types of

documentation insurers could seek to process no-fault claims and, consequently,

increase the time it takes for insurers to process claims. See Mallela I,

(“[A]llowing insurers great latitude to inquire into potential flaws in a medical

providers’ license might also frustrate the goals of the speedy payment objective

of the No-Fault Law.”).

On the other hand, fraud is a serious concern in the no-fault insurance

industry. Twenty years ago, when we certified our question in Mallela I, we noted

that “between 1992 and 2001, reported incidents of automobile insurance fraud,

the bulk of which occurred in the no-fault area, increased by 1700 percent . . . .”

(citing Serio,

). This dramatic uptick in instances of fraud

“added an estimated $100 per year to the insurance costs of the average New York

driver.”

More recently, New York’s Department of Financial Services

reported that in 2023, it received 33,646 reports of suspected no-fault

fraud. Adrienne A. Harris, Superintendent of New York State’s Department of

Financial Services, Investigating and Combating Health Insurance Fraud, at 2 (Mar. 15,

2024), https://www.dfs.ny.gov/system/files/documents/2024/03/2023-health-

fraud-annual-report.pdf [https://perma.cc/99JE-XG6Q] (last accessed Nov. 8,

38 2024). By far, suspected no-fault fraud is the most common form of fraud that the

Department processes. The 33,646 reports received by the Department represent

94% of all healthcare fraud reports received by the Department in 2023 and 75% of

all fraud reports generally.

at 4–5. Given these concerns, a holding in

GEICO’s favor would further another policy goal of New York’s no-fault system—

“to provide substantial premium savings to New York motorists.” Serio,

.

As a federal court, we are ill-equipped to weigh these competing policy

considerations to the extent they may impact the proper analysis of the Eligibility

Regulation. See Mallela I,

(“Where public policy considerations

point in different directions, as they do here, certification is a particularly

appropriate course of action.”).

C. The Answer to the Certified Question Bears Heavily on Remaining Issues

Lastly, the answer to our certified question will be substantially

determinative of this appeal. If the district court incorrectly concluded that a

violation of Education Law § 6530(18) disqualified Mingmen from receiving no-

fault reimbursements, then it improperly granted summary judgment on all

counts that the Mayzenberg Defendants challenge on appeal. That is, if the

Mayzenberg Defendants’ reading of the Eligibility Regulation is correct, GEICO

39 was not entitled to declaratory judgment in its favor. It would also follow that

neither Mayzenberg nor Mingmen had a duty to disclose that they participated in

a patient referral scheme when they filed their no-fault claims, thereby defeating

GEICO’s allegation that they committed common law fraud and violated RICO.

Because resolution of this appeal hinges on the threshold question of

whether the Eligibility Regulation applies to violations of Education Law

§ 6530(18), this consideration also weighs in favor of certification.

CONCLUSION

Given the considerable stakes at issue and the risk that we may do harm to

New York law, we conclude that the New York Court of Appeals should have the

opportunity to decide the important and challenging question we have been called

to answer. See Loomis,

. Pursuant to our Local Rule 27.2 and 22

N.Y.C.R.R. § 500.27(a), we hereby CERTIFY the following question to the New

York Court of Appeals:

If an insurer determines a healthcare provider has improperly paid others for patient referrals, in violation of New York Education Law § 6530(18) and 8 N.Y.C.R.R. § 29.1(b)(3), can the insurer deny payment for no-fault benefits on the ground that the provider “fail[ed] to meet” a “necessary” State or local licensing requirement under 11 N.Y.C.R.R. § 65-3.16(a)(12)?

40 Consistent with our usual practice, we do not intend to limit the scope of

the New York Court of Appeals’ analysis through the formulation of our question,

and we invite the Court of Appeals to expand upon or alter this question as it

should deem appropriate. This panel will retain its jurisdiction.

It is therefore ORDERED that the Clerk of this Court transmit to the Clerk

of the Court of Appeals of the State of New York a Certificate, as set forth below,

together with a complete set of briefs and appendices, and the record filed in this

Court by the parties.

CERTIFICATE

The foregoing is hereby certified to the Court of Appeals of the State of New

York pursuant to Second Circuit Local Rule 27.2 and New York Codes, Rules, and

Regulations Title 22, section 500.27(a), as ordered by the United States Court of

Appeals for the Second Circuit.

41