New Chiropractic Care, P.C. v Nationwide Ins. Co. of N.Y. (2020 NY Slip Op 50652(U))

CV-746259-17/KI

Zara Javakov Esq., P.C. (Koenig Pierre and Zachary Albright Whiting of counsel), Brooklyn, for plaintiff.

Hollander Legal Group, P.C. (Johnathan Drapan of counsel), Melville, for defendant.

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

Papers/Numbered

Notice of Motion and Affidavits Annexed 1-4

Notice of Cross Motion and Affidavits Annexed 5-26

Answering Affidavits 27-28

Replying Affidavits 29-30

Exhibits

Other

In this action seeking to recover assigned first-party no-fault benefits for two assignors, plaintiff moves for summary judgment in its favor against defendant. Defendant opposes the motion and cross-moves for summary judgment dismissing the action on the grounds that [*2]plaintiff failed to appear for Examinations Under Oath (EUOs) and that plaintiff’s assignor Jason Dorvllier ^[FN1] failed to appear for Independent Medical Examinations (IMEs). Plaintiff opposes the cross motion.

BACKGROUND

This action arises out of services that plaintiff allegedly rendered to its two assignors, Selena Figueroa and Jason Dorvllier. On July 14, 2017, Selena Figueroa was allegedly injured in a motor vehicle accident (see plaintiff’s exhibit B in support of motion, Assignment of Benefits form and NF-3 forms). On May 1, 2017, Dorvllier was allegedly injured in a motor vehicle accident (see defendant’s exhibit AA in support of cross motion, NF-2 form). By a letter dated May 16, 2017, Ratsenberg & Associates, P.C. notified defendant that it represented “Jason Dorville” [sic] with respect to his claims for no-fault benefits for injuries resulting from the May 1, 2017 accident (id.). Plaintiff allegedly mailed to defendant six bills for services provided to Figueora from August 10 through September 26, 2017 and five bills for the services provided to Dorvllier from August 1 through September 27, 2017. The location where the services were allegedly provided to both assignors was 764 Elmont Road, Elmont, New York 11003 (see plaintiff’s exhibit B in support of motion, NF-3 forms).

Services provided to assignor Sandra Figueora

On August 10, 11, 17, 18, and 23, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $252.72 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 8/29/2017). Defendant allegedly received the bill for these dates of service (bill No.1) on September 8, 2017 (see defendant’s exhibit E in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On August 24, 25, 29, 31, 2017 and September 1, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $285.80 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/15/2017). Defendant allegedly received the bill for these dates of service (bill #2) on September 21, 2017 (see defendant’s exhibit F in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 5, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $57.16 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/15/2017). Defendant allegedly received a bill for this date of service (bill #3) on September 21, 2017 (see defendant’s exhibit G in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 7 and 8, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $114.32 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/22/2017). Defendant allegedly received a bill for these dates of service (bill #4) on September 27, 2017 (see defendant’s exhibit H in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 12, 14, 15, and 20, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $228.64 (see plaintiff’s exhibit B in support of motion, NF-3 [*3]form dated 9/22/2017). Defendant allegedly received a bill for these services (bill #5) on October 21, 2017 (see defendant’s exhibit I in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 21 and 26, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $114.32 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 10/2/2017). Defendant allegedly received a bill for these dates of service (bill #6) on October 7, 2017 (see defendant’s exhibit J in support of cross motion, affidavit of Douglas Taylor ¶ 12).

Services provided to assignor Jason Dorvllier

On August 1, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount $48.89 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 8/11/2017). Defendant allegedly received the bill for this date of service (bill #7) on August 21, 2017 (see defendant’s exhibit K in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On August 15, 16, and 23, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount of $146.67 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 8/29/2017). Defendant allegedly received the bill for these dates of service (bill #8) on September 8, 2017 (see defendant’s exhibit L in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On August 24 and 31, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount of $97.78 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/12/2017). Defendant allegedly received a bill for these dates of service (bill #9) on September 21, 2017 (see defendant’s exhibit M in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 13 and 18, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount of $97.78 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/28/2017). Defendant allegedly received a bill for these dates of service (bill #10) on October 2, 2017 (see defendant’s exhibit N in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 25, 26, and 27, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount of $146.67 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 10/2/17). Defendant allegedly received a bill for these dates of services (bill #11) on October 7, 2017 (see defendant’s exhibit O in support of cross motion, affidavit of Douglas Taylor ¶ 12).

IME of Jason Dorvllier on September 13, 2017

By a letter dated August 15, 2017 sent to Dorvllier and his counsel, defendant’s IME scheduler, D & D Associates, allegedly scheduled an IME of Dorvllier on August 28, 2017 at 9:45 a.m. before Janice Salayka at an office in Queens Village, New York (defendant’s exhibit CC in support of cross motion, scheduling letter). By a letter dated August 21, 2017 sent to Dorvllier and his counsel, defendant’s IME scheduler, D & D Associates, allegedly rescheduled the IME on August 28, 2017 to September 13, 2017 at 1:00 p.m. before John Johnson Jr. at an office in Flushing, New York (defendant’s exhibit DD in support of cross motion, scheduling letter).

A letter dated September 13, 2017, purportedly signed by John E. Johnson, Jr., states,

“Please be advised that I was present to perform an Independent Medical Examination of JASON DORVILIER who failed to appear for the scheduled Independent Medical Examination . . . on September 13, 2017 at 9:00 a.m.

I swear that the above information is correct”

(defendant’s exhibit EE in support of cross motion). In an affidavit, John E. Johnson, Jr., a licensed chiropractor, averred that he was present at the office on September 13, 2017 at 1:00 p.m., and that “[a]t no time did JASON DORVILLIER appear on September 13, 2017, for his scheduled IME . . . .” (defendant’s exhibit HH, Johnson aff ¶¶ 4-5).^[FN2]

IME of Jason Dorvllier on September 27, 2017

By a letter dated September 15, 2017 sent to Dorvllier and his counsel, D & D Associates allegedly scheduled an IME of Dorvllier on September 27, 2017 at 8:30 a.m. before John Johnson, Jr. at an office in Flushing, New York (defendant’s exhibit FF in support of cross motion, scheduling letter). A letter dated September 27, 2017, purportedly signed by John E. Johnson, Jr., states,

“Please be advised that I was present to perform an Independent Medical Examination of JASON DORVILIER who failed to appear for the scheduled Independent Medical Examination . . . on September 27, 2017 at 8:30 a.m.

I swear that the above information is correct”

(defendant’s exhibit GG in support of cross motion). In an affidavit, John E. Johnson, Jr., a licensed chiropractor, averred that he was present at the office on September 27, 2017 at 8:30 a.m., and that “[a]t no time did JASON DORVILLIER appear on September 27, 2017, for his schedule IME . . . .” (defendant’s exhibit HH, Johnson aff ¶¶ 8-9).

EUO of plaintiff on October 30, 2017

By a letter dated October 4, 2017, allegedly mailed by first-class and certified mail to plaintiff, defendant’s counsel requested plaintiff to appear for an EUO on October 30, 2017 at the office of defendant’s counsel, located at 445 Broadhollow Road in Melville, New York (defendant’s exhibit P in support of cross motion, scheduling letter). However, by a letter dated October 30, 2017 emailed to defendant’s counsel, plaintiff’s counsel, which acknowledged the EUO scheduling letter, requested that the EUO be rescheduled to December 8, 2017 at 1 p.m., at the office of plaintiff’s counsel in Brooklyn, New York (defendant’s exhibit Q in support of cross motion).

Follow-up EUO of plaintiff on December 8, 2017

By a letter dated October 31, 2017, allegedly mailed by first-class mail to plaintiff’s counsel and by certified mail to plaintiff, defendant’s counsel scheduled a final date for the EUO on December 8, 2017 at 10:00 a.m., at the office of defendant’s counsel in Melville, New York (see defendant’s exhibit R in support of cross motion, scheduling letter). According to defendant’s counsel, plaintiff failed to appear at the EUO on December 8, 2017, and defendant’s counsel placed a statement on the record at 11:00 a.m. accordingly (see defendant’s exhibit S, affidavit of Brian E. Kaufman ¶¶ 5-7, tr 4-5).

Follow-up EUO of plaintiff on February 14, 2018

By a letter dated December 12, 2017, allegedly mailed by first-class mail to plaintiff’s [*4]counsel and to plaintiff, defendant’s counsel scheduled a final date for the EUO on February 14, 2018 at 11:00 a.m., at the office of defendant’s counsel in Melville, New York (see defendant’s exhibit T in support of cross motion, scheduling letter).

In response, by a letter dated December 18, 2017, plaintiff’s counsel contended that plaintiff “has fulfilled his obligations to cooperate with your demand for an EUO” (see defendant’s exhibit II in support of cross motion). According to its counsel, plaintiff previously appeared for an EUO on December 8, 2017 at the office of plaintiff’s counsel in Brooklyn, New York, notwithstanding that defendant’s counsel had requested that the EUO be held at the office of defendant’s counsel in Melville, New York. The letter stated, in relevant part, “in spite of our repeated communications that your offices in Suffolk County are not convenient for our client . . . your letter[ ] dated December 12, 2017[ ] again purport [sic] to schedule an EUO at your offices in Suffolk County” (id.).

By a letter dated December 20, 2017 addressed to plaintiff’s counsel, defendant’s counsel wrote, in pertinent part:

“As you were advised in our prior correspondence dated December 11, 2017, Nationwide had agreed to the time change for the examination under oath which you had requested. Additionally, as you had requested a Brooklyn location for the examination under oath, we were in the process of securing a court reporting agency in Brooklyn, New York. As you may recall, you refused to produce your client unless it was at your office.

Once again, you are reminded that the language of the Regulation states that the examination under oath ‘shall be held at a place and time reasonably convenient to the Applicant’ (emphasis added). Regulations do not permit your office to dictate the exact location where the examination under oath is to proceed. As you are further aware, your client maintains a service of process address in Bayport, New York. To this extent, we advised that we would secure a court reporting location in Suffolk County, New York. The services at issue were rendered in Elmont, New York. To this extent, Nationwide had advised that the examination under oath could proceed at a Nassau County or Queens County, New York location. We further advised that in the event you would like a Brooklyn location, which was your request, Nationwide would agree to hold the examination at a court reporting agency in Brooklyn, New York. However, you are insisting that the only way the examination under oath of your client could proceed is if it is at your office. Nationwide is of the position that this is an unacceptable arrangement. The regulation does not permit you to dictate the exact location and only requires the location to be ‘reasonably convenient’. . . .Your office is not central to mass transit and on prior occasions had no available parking for attorneys and the court reporter appearing at your office”

(defendant’s exhibit JJ in support of cross motion).

By a letter dated January 12, 2018, plaintiff’s counsel stated, “Your client’s opinion that a court reporting agency would have been ‘reasonably convenient’ to our client is not determinative. As we have written previously, you are not in a position to determine what locations are convenient to our client. Your office has conducted EUOs in our offices before, and no issues have ever arisen which would justify your refusal of our client’s reasonable request to conduct the EUO in our office” (defendant’s exhibit II in support of cross motion).

By a letter dated January 26, 2018, allegedly mailed by first-class mail to plaintiff’s counsel and to plaintiff, plaintiff was informed that defendant had new counsel, and that the location the EUO on February 14, 2018 at 11:00 a.m. had been changed to the office of defendant’s new counsel located at 105 Maxess Road in Melville, New York (see defendant’s exhibit U in support of cross motion, scheduling letter).

By a letter dated February 6, 2018 addressed to defendant’s counsel, plaintiff’s counsel acknowledged receipt of the scheduling letter and responded,

“However, as we stated in our December 18, 2017 [ ] letter addressed to your former law firm, a copy of which is enclosed, we have already produced our client for the same EUO on December 8, 2017. At that time, Nationwide or its representative failed to appear.

In light of the above, our client has fulfilled his obligations to cooperate with Nationwide’s demand for an EUO”

(defendant’s exhibit II in support of cross motion).

According to defendant’s new counsel, plaintiff failed to appear at the EUO on February 14, 2018, and defendant’s counsel placed a statement on the record accordingly at 11:50 a.m. (see defendant’s exhibit V, affidavit of Brian E. Kaufman ¶¶ 5-7, tr 4).

Follow-up EUO of plaintiff on March 15, 2018

By a letter dated February 15, 2018, allegedly mailed by first-class mail to plaintiff’s counsel and to plaintiff, defendant scheduled a final date for the EUO on March 15, 2018 at 11:00 a.m., at the office of defendant’s counsel in Melville, New York (see defendant’s exhibit W in support of cross motion, scheduling letter). According to defendant’s counsel, plaintiff failed to appear at the EUO on March 15, 2018, and defendant’s counsel placed a statement on the record accordingly at 12:00 p.m. (see defendant’s exhibit X in support of cross motion, affidavit of Brian E. Kaufman ¶¶ 5-7, tr 4).

Denial of Claim Forms

On October 27, 2017, defendant allegedly mailed to plaintiff a denial of claim form, denying the claims for bill #9 (for services rendered to Dorvllier on 8/24 and 8/31/17), on the ground that Dorvllier failed to appear for IMEs on September 13, 2017 and September 27, 2017 (see defendant’s exhibit M in support of cross motion, NF-10 form and affidavit of Douglas Taylor ¶ 12).

On March 28, 2018, defendant allegedly mailed denial of claim forms to plaintiff, denying all the services rendered to Figueroa, on the ground that plaintiff failed to appear for EUOs “scheduled for 10/30/2017, 12/08/2017, 02/14/2018 and 03/15/2018” (see defendant’s exhibits E-J in support of cross motion, NF-10 forms, Explanations of Review, and affidavits of Douglas Taylor ¶ 12).

On March 28, 2018, defendant also allegedly mailed plaintiff denial of claim forms, denying all bills for the services rendered to Dorvllier (except bill #9, which was previously denied), on the ground that plaintiff failed to appear for EUOs “scheduled for 10/30/2017, 12/08/2017, 02/14/2018 and 03/15/2018” (see defendant’s exhibits K-L, N-O in support of cross motion, NF-10 forms, Explanations of Review, and affidavits of Douglas Taylor ¶ 12).

The chart below summarizes the claims, EUOs, IMEs and denials at issue:

The Instant Action

On December 29, 2017, plaintiff commenced this action to recover unpaid first-party no-fault benefits for the services rendered to Figueroa and Dorvllier, plus interest and attorneys’ fees (see plaintiff’s exhibit A in support of motion, summons and complaint). Defendant allegedly answered the complaint on February 7, 2018 (see defendant’s exhibit B in support of cross motion, affidavit of service of answer).

DISCUSSION

“On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action”

(Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).

Defendant argues that, with the exception of bill # 9, it is entitled to summary judgment dismissing the action on the ground that plaintiff failed to appear for EUOs. As to bill # 9, defendant contends those claims should be dismissed because Dorvllier failed to appear for IMEs.

A. EUO no-show defense

“[A]n appearance at an EUO is a condition precedent to the insurer’s liability on the policy” (GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50194[U] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2011]).

“To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims”

(Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 63 Misc 3d 152[A], 2019 NY Slip Op 50760[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal citations omitted]). Defendant must demonstrate “that its initial and follow-up requests for verification were timely mailed” (Urban Radiology, P.C. v Clarendon Natl. Ins. Co., 31 Misc 3d 132[A], 2011 NY Slip Op 50601[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

1. EUO on October 30, 2017

It appears that the EUO scheduled on October 30, 2017 was mutually rescheduled to December 8, 2017, and thus would not be deemed a failure to appear (Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In any event, defendant did not submit any evidence that plaintiff failed to appear that day.

2. EUO on December 8, 2017

Defendant established that the letter dated October 31, 2017, which scheduled the EUO on December 8, 2017, was mailed to plaintiff and its counsel, among others, on the same date that the letter was created and dated, by submitting the affidavit of Allan S. Hollander (defendant’s exhibit Y, affidavit of Alan S. Hollander ¶¶ 6, 18-26), who attested to the mailing in accordance with a standard office procedure (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Royal Med. Supply, Inc. v Nationwide Gen. Ins. Co., 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

As a threshold matter, the parties disagree as to whether the EUO should have been conducted at the office of defendant’s counsel in Melville, New York, or at the office of plaintiff’s counsel in Brooklyn, New York. Plaintiff asserts that, contrary to the contentions of defendant’s counsel in its December 20, 2017 letter, a Google map indicates that the area around the office of plaintiff’s counsel is, in fact, one block from mass transit (i.e., the D, N, and R subway trains) and across the street from a large parking lot (affirmation of Zachary Albright Whiting, Esq. in opposition to cross motion ¶ 41; Whiting affirmation in opposition, exhibit A).

11 NYCRR 65-3.5 (e) states, in relevant part, “All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant. . . .” First, the regulations do not grant the applicant (or its counsel) the right to designate the location of the EUO. Thus, so long as the insurer designated a location that is “reasonably convenient” to the applicant, then the EUO must go forward at the location that the insurer designated.

Unfortunately, there is a dearth of precedent on the issue of whether a designated EUO or IME location is “reasonably convenient.” The Appellate Term, Second Department has held, [*5]“there is nothing in the No-Fault regulations prohibiting an insurer from scheduling an EUO outside the county in which the applicant is located; it only need be held at a place and time reasonably convenient to the applicant” (Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90, 93 [App Term, 2d Dept, 2d, 11th & 13th Dists 2012]). One court found that an EUO scheduled “approximately 30 miles from plaintiff’s home” was “not an unreasonable distance” (Nordstrom v Nationwide Mut. Fire Ins. Co., 2014 NY Slip Op 32914[U], *6 [Sup Ct, Suffolk County 2014]).

Here, the court finds that the scheduling letter designated an EUO location that was, on its face, “reasonably convenient” under Nordstrom. As defendant’s counsel pointed out in the dueling correspondence between counsel for plaintiff and defendant, the NF-3 forms indicated that the place of service for all of the claims at issue was “764 Elmont Road, Elmont NY 11003” (see defendant’s exhibits E-O, NF-3 Forms). The court takes judicial notice that, according to Google Maps, the distance from the location where plaintiff provided services to the assignors to the location at 445 Broadhollow Road in Melville, New York for the EUO on December 8, 2017 is about 25 miles.

Plaintiff fails to raise a triable issue of fact as to whether the location in Melville, New York was not “reasonably convenient” to plaintiff. That plaintiff preferred a location that was more convenient than the location designated by the insurer does not render the designated location not “reasonably convenient.”

Defendant established that plaintiff failed to appear at the EUO in Melville, New York on December 8, 2017, by submission of a certified transcript from the EUO and the affidavit of Brian Kaufman, an attorney who was present at the EUO at the scheduled time and would have conducted the EUO if plaintiff had appeared (Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

3. Follow-up EUO on February 14, 2018

Defendant established that the letter dated December 12, 2017, which scheduled the plaintiff’s EUO on February 14, 2018, and the letter dated January 26, 2018, which changed the EUO location to the office of defendant’s new counsel, were mailed to plaintiff and its counsel, among others, on the same date that the letters were created and dated, by submitting the affidavit of Allan S. Hollander (Hollander aff ¶¶ 8-9, 18-26), who attested to the mailings in accordance with a standard office procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Royal Med. Supply, Inc., 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U]). Moreover, plaintiff’s counsel acknowledged receipt of these scheduling letters in its own letters dated December 18, 2017 and February 6, 2018, which again objected to the EUO location in Melville, New York and asserted that plaintiff had already fulfilled its obligations by purportedly appearing previously for an EUO at the office of plaintiff’s counsel.

As discussed above, the scheduling letters designated EUO locations that were, on their face, “reasonably convenient” (see Nordstrom, 2014 NY Slip Op 32914[U]). The court takes judicial notice that, according to Google Maps, the distance from the location where the plaintiff provided services to the assignors to the EUO location at the office of defendant’s new counsel at 105 Maxess Road in Melville, New York is about 25 miles as well. Plaintiff failed to raise a triable issue of fact as to whether the location was not “reasonably convenient.”

Defendant established that plaintiff’s assignor failed to appear at the EUO in Melville, New York on February 14, 2018, by submission of a certified transcript from the EUO and the affidavit of Brian Kaufman, an attorney who was present at the EUO at the scheduled time and would have conducted the EUO if plaintiff had appeared (Active Chiropractic, P.C., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]).

4. Follow-up EUO on March 15, 2018

Defendant established that the letter dated February 15, 2018, which scheduled the plaintiff’s EUO on March 15, 2018, was mailed to plaintiff and its counsel, among others, on the same date that the letter was created and dated, by submitting the affidavit of Allan S. Hollander (defendant’s exhibit Y, affidavit of Alan S. Hollander ¶¶ 11, 18-26), who attested to the mailing in accordance with a standard office procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Royal Med. Supply, Inc., 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U]). The record does not contain any letter from plaintiff’s counsel objecting to the location of the EUO scheduled on March 15, 2018.

Defendant established that plaintiff’s assignor failed to appear at the EUO in Melville, New York on March 15, 2018, by submission of a certified transcript from the EUO and the affidavit of Brian Kaufman, an attorney who was present at the EUO at the scheduled time and would have conducted the EUO if plaintiff had appeared (Active Chiropractic, P.C., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]).

In sum, defendant demonstrated that plaintiff failed to appear at EUOs scheduled on December 8, 2017, February 14, 2018, and March 15, 2018. Contrary to plaintiff’s argument, “there is no requirement to establish willfulness” (Goldstar Equip., Inc. v Mercury Cas. Co., 59 Misc 3d 138[A], 2018 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “The doctrine of willfulness . . . applies in the context of liability policies, and has no application in the no-fault context” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 561 [1st Dept 2011]).

5. Timeliness of the Denial of Claim Forms

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim”

(Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009] [internal citations omitted]).

In order to toll the 30-day deadline, an initial EUO request must be sent within 15 business days of receipt of the completed verification forms (see 11 NYCRR 65-3.5 [b]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and no later than 30 calendar days after receipt of the bill (Tsatskis v State Farm Fire & Cas. Co., 36 Misc 3d 129[A], 2012 NY Slip Op 51268[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Follow-up EUO requests must be sent within 10 calendar days of the missed EUO (see 11 NYCRR 65-3.6 [b]; see Avicenna Medical Arts, PLLC v Unitrin Advantage Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50382[U] [App Term 2d, 11th & 13th Dists 2015]).

“[O]nce defendant served plaintiff with requests for EUOs, the resulting toll of defendant’s time to pay or deny plaintiff’s claims applied to each claim form which was submitted by the same plaintiff for the same assignor subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs”

(ARCO Med. New York, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U], *3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 150[A], 2018 NY Slip Op 51759[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Here, to establish proof of mailing of the timely denial of claim forms, defendant submitted the affidavits of two claims specialists, Jaime Coe and Marie Green, and affidavits from Douglas Taylor, a Vice President employed by Auto Injury Solutions, Inc. (AIS), an authorized agent for receiving bills and/or correspondence for defendant, and the business records of AIS. Coe processed the claims pertaining to Figueroa’s accident on July 14, 2017; Green processed the claims pertaining to Dorvllier’s accident on May 1, 2017 (defendant’s exhibit C in support of cross motion, Coe aff ¶ 22; defendant’s exhibit D in support of cross motion, Green aff ¶ 26).

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013], affd 25 NY3d 498 [2015] [internal quotation marks and citations omitted]). “‘The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]). “Actual mailing may be established by a proper ‘certificate [of mailing] or by [an] affidavit of one with personal knowledge'” (J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [citation omitted]). “However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]).

a. Bill # 7

As to bill #7 (for services rendered to Dorvllier on 8/1/2017), the court agrees with plaintiff that defendant failed to establish that the denial was timely mailed. According to defendant, bill #7 was received on August 21, 2017, and the denial of claim form was issued on March 28, 2018, more than 30 days later (see defendant’s exhibit K in support of cross motion, Taylor aff ¶ 12). The court agrees with plaintiff that defendant failed to establish that the 30-day period had been tolled. As discussed above, defendant established that the first EUO scheduling letter was mailed October 4, 2017 (defendant’s exhibit Y in support of cross motion, affirmation of Alan S. Hollander, Esq. ¶ 5), which was more than 30 days after bill #7 was allegedly received, and therefore the denial is untimely (Tsatskis, 36 Misc 3d 129[A], 2012 NY Slip Op 51268[U]).

Although a claims specialist indicated on a chart that delay letters were sent on August 25, 2017 and September 25, 2017 (Green aff ¶ 30), neither the claims specialist nor AIS’s Vice President stated that any verification letters or delay letters were sent on those dates, and [*6]defendant did not submit copies of those letters (Green aff ¶ 18; see defendant’s exhibit K in support of cross motion, Taylor aff ¶ 12). In any event, “it is well settled that an insurer’s delay letters, which request no verification, do not toll the statutory time period within which a claim must be paid or denied” (Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Summary judgment dismissing the claims as to bill #7 based on the EUO no-show defense is therefore denied.

b. Bills # 1-6

With respect to bills #1-6, defendant established mailing of the denial of claim forms on March 28, 2018. Based on the affidavit of defendant’s claims specialist Jaime Coe, who prepared the denial of claim forms for bills #1-6, defendant established that the denial of claim forms were created on March 28, 2018, and AIS was notified electronically to generate and mail the forms, in accordance with claims processing procedures (Coe aff ¶¶ 17-19, 28, 30, 32, 34, 36, 38). Based on the AIS business records and the detailed affidavits of the AIS Vice President, defendant established that AIS printed and mailed the denial of claim forms on March 28, 2018, or the next business day (defendant’s exhibits F-J in support of cross motion, Taylor affs ¶¶ 6, 12-13),^[FN3] in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Compas Med., P.C. v Nationwide Ins., 46 Misc 3d 131[A], 2014 NY Slip Op 51826[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Defendant established that the mailing of the denial of claim forms on March 28, 2018 was timely. As discussed above, defendant established that the initial EUO scheduling letter had been timely mailed on October 4, 2017, which was either within 15 days of, or actually prior to, receipt of plaintiff’s NF-3 forms with respect to bills #2-6 (see 11 NYCRR 65-3.5 [b]). The follow-up EUO scheduling letters had been timely mailed within 10 calendar days of each missed EUO date (11 NYCRR 65-3.6 [b]).

With respect to bill # 1, the initial EUO scheduling letter was not mailed within 15 business days of the receipt of the NF-3 Forms, but rather was mailed five days beyond the deadline. However, an insurer’s mailing of an initial verification request beyond the 15 business day deadline does not render the request invalid but rather reduces the 30 days for it to pay or deny the claim once it receives the verification (11 NYCRR 65-3.8 [l]; see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300, [2007]; Stracar Med. Servs., 61 Misc 3d 150[A], 2018 NY Slip Op 51759[U]).

As discussed above, the denial of claim forms were mailed within 13 days of the missed EUO scheduled on March 15, 2018. Even when the 30-day determination period to pay or deny the claims for bill # 1 is reduced by five days due to the late initial EUO scheduling letter for that bill, the denial of claim form was still therefore timely mailed as to bill # 1.

c. Bills #8 and #10-11

With respect to bills #8 and #10-11, defendant established mailing of the denial of claim forms on March 28, 2018. Based on the affidavit of defendant’s claims specialist Marie Green, who prepared the denial of claim forms for those bills, defendant established that the denial of claim forms were created on March 28, 2018, and AIS was notified electronically to generate and mail the forms, in accordance with claims processing procedures (Green aff ¶¶ 19-22, 30, 35, 37). Based on the AIS business records and the detailed affidavits of the AIS Vice President, defendant established that AIS printed and mailed the denial of claim forms on March 28, 2018, or the next business day (defendant’s exhibits L, N-O in support of cross motion, Taylor affs ¶¶ 6, 12-13),^[FN4] in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Compas Med., P.C., 46 Misc 3d 131[A], 2014 NY Slip Op 51826[U]).

Defendant established that the mailing of the denial of claim forms on March 28, 2018 was timely. As discussed above, defendant established that the initial EUO scheduling letter had been timely mailed on October 4, 2017, which was either within 15 days of, or actually prior to, receipt of plaintiff’s NF-3 forms with respect to bills # 10-11 (see 11 NYCRR 65-3.5 [b]). The follow-up EUO scheduling letters had been timely mailed within 10 calendar days of each missed EUO date (11 NYCRR 65-3.6 [b]).

Like bill # 1, the initial EUO scheduling letter was not mailed within 15 business days of receipt of bill #8, but rather was mailed five days beyond the deadline. Like bill # 1, even when the 30-day determination period to pay or deny the claims for bill #8 is reduced by five days due to the late initial EUO scheduling letter for those bills (see 11 NYCRR 65-3.8 [l]; see Nyack Hosp., 8 NY3d at 300; Stracar Med. Servs., 61 Misc 3d 150[A], 2018 NY Slip Op 51759[U]), the denial of claim form was still timely mailed as to bill # 8. Like bill #1, the denial of claim form was mailed within 13 days of the missed EUO scheduled on March 15, 2018.

6. Whether the denial of claim forms are defective

Notwithstanding the above, plaintiff argues that the denial of claim forms are fatally defective. Plaintiff contends that they erroneously stated the claims were denied because plaintiff failed to appear for EUOs “scheduled for 10/30/2017, 12/08/2017, 02/14/2018 and 03/15/2018,” insofar as defendant failed to establish on its cross motion for summary judgment that plaintiff failed to appear at the EUO on October 30, 2017, citing Unitrin Advantage Insurance Company v All of NY, Inc. (158 AD3d 449, 449-50 [1st Dept 2018]).

There is a split between the First and Second Judicial Departments on the issue of whether a denial of claim form must specifically set forth the dates of the missed EUOs. In Unitrin Advantage Insurance Company, the Appellate Division, First Department ruled that, because the NF-10 form stated a missed EUO only on July 29, 2013, the denial of claim form did not sufficiently apprise the provider as to a missed EUO on August 12, 2013 (158 AD3d at 449-450). And yet, the Appellate Term, Second Department has consistently held that a denial of [*7]claim form based upon the failure to appear for scheduled EUOs “need not set forth the dates of the EUOs for which the plaintiff had failed to appear” (Aries Chiropractic, P.C. v Ameriprise Ins. Co., 66 Misc 3d 130[A], 2019 NY Slip Op 52064[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; JYW Med., P.C. v IDS Prop. Ins. Co., 58 Misc 3d 134[A], 2017 NY Slip Op 51800[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Plaintiff contends that this court must follow the Appellate Division, First Department instead of the Appellate Term, Second Department, because the Appellate Division, Second Department has not pronounced a contrary rule (see Fortune Med., P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 32, 34 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

Even assuming, for the sake of argument, that the denial of claim form must set forth the dates of the missed EUOs, plaintiff’s reliance upon Unitrin Advantage Insurance Company is misplaced. Unlike that case, defendant here is not relying upon a missed EUO date that was not set forth in the denial of claim forms. There is no surprise to the provider as to which EUO dates were missed. Defendant’s failure to substantiate that an EUO date was missed does not retroactively render a denial of claim form defective. Defendant merely failed to prove what it had set out to prove as to that EUO date. Following plaintiff’s logic, if a denial of claim form sets forth four missed EUO dates, and an insurer is unable to prove an applicant’s failure to appear at one of the four dates, then the insurer would not be entitled to summary judgment dismissing the claims, even in the face of overwhelming proof that the applicant failed to appear at three other scheduled EUOs. That is an absurd result.

Therefore, defendant is entitled to summary judgment dismissing plaintiffs’ claims as to bills # 1-6, 8, and 10-11, based on plaintiff’s failure to appear for EUOs scheduled on December 8, 2017, February 14, 2018, and March 15, 2018 in Melville, New York.

B. IME no-show defense

“The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]). “Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs ‘when, and as often as, the [insurer] may reasonably require'” (id. at 722, citing 11 NYCRR 65-1.1).

To meet its prima facie burden, the defendant-insurer must establish that it properly mailed scheduling letters for the IMEs to plaintiff’s assignor; that the IME was timely scheduled; that the assignor failed to appear at the initial IME and the rescheduled follow-up IME; and that defendant timely denied the claim on that ground (Motionpro Physical Therapy v Hereford Ins. Co., 58 Misc 3d 159[A], 2018 NY Slip Op 50251[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Longevity Med. Supply, Inc. v Citiwide Auto Leasing, 58 Misc 3d 142[A], 2017 NY Slip Op 51880[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Choice Health Chiropractic, P.C. v American Tr. Ins. Co., 58 Misc 3d 155[A], 2018 NY Slip Op 50185[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

1. Proof of Mailing of IME scheduling letters

Here, to establish the timely and proper mailing of the IME scheduling letters, defendant submitted the affidavit of Jean Rony Pressoir, a Coordinating Supervisor for D & D Associates, which purportedly mailed the IME scheduling letters (see defendant’s exhibit Z in support of cross motion). However, the court agrees with plaintiff that the affidavit is insufficient to establish mailing.

To the extent that Pressoir claimed to have personal knowledge of the actual mailing of [*8]the IME scheduling letters, her affidavit lacked any factual basis to support an inference of personal knowledge of actual mailing (see A.B. Med. Services PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]). Pressoir did not claim that she had first-hand knowledge of the mailing either because she herself had mailed the IME scheduling letters or because she had seen someone else mailing the IME scheduling letters (see e.g. Lenox Hill Radiology, PC v Tri-State Consumer Ins. Co., 31 Misc 3d 13, 14 [App Term, 1st Dept 2010]). Indeed, her statements about the mailing of each notice are written in the passive voice (see Pressoir aff ¶¶ 11-12).

To the extent that proof of mailing is based on a standard office practice or procedure, Pressoir established that she had knowledge of the office procedure, but her description of the office procedure did not adequately establish when the IME scheduling letters would have been mailed in accordance with the procedure. To the extent that Pressoir’s knowledge of the dates of mailing of the IME scheduling letters is based on a review of electronic business records (see Pressoir aff ¶ 4),

“it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Accordingly, ‘[e]vidence of the contents of business records is admissible only where the records themselves are introduced.’ ‘Without their introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay'”

(Bank of New York Mellon v Gordon, 171 AD3d 197, 205-06 [2d Dept 2019] [internal citations omitted]). Here, defendant did not submit any of the electronic business records that Pressoir purportedly reviewed.

2. Proof of the plaintiff’s assignor’s failure to appear at IMEs

Even assuming that defendant established proof of mailing of the IME scheduling letters, defendant did not establish that Dorvllier failed to appear at the scheduled IMEs. The letters from John Johnson, Jr., a chiropractor, are insufficient evidence to establish that Dorvllier failed to appear because they are not properly sworn (see Saunders v Mian, 176 AD3d 994, 995 [2d Dept 2019]; CPLR 2106). Moreover, the letter dated September 13, 2017 incorrectly stated that the time of the IME was at 9:00 a.m., whereas the IME had been scheduled for 1 p.m. (compare defendant’s exhibit EE in support of cross motion with defendant’s exhibit DD in support of cross motion). Neither does Johnson’s affidavit constitute sufficient evidence of the failure to appear. To the extent that Johnson’s knowledge is based “from a review of the office’s computerized system for the dates of September 13, 2017 and September 27, 2018 [sic]” (defendant’s exhibit HH in support of cross motion, Johnson aff ¶ 2), defendant did not submit the business records that Johnson reviewed (see Bank of New York Mellon, 171 AD3d at 205-06).

The affidavit also states, “At no time did JASON DORVILIER appear” on September 13 and 27, 2017 for his scheduled IMEs (Johnson aff ¶¶ 5, 9). However, the court agrees with plaintiff’s counsel that the affidavit, which purports to be based on personal knowledge, is conclusory (see Bright Med. Supply Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). The affidavit does not state that no one appeared at all before Johnson during the times when Dorvllier’s IMEs were scheduled. Because Johnson swore that he was present in the office at the time each IME was to be conducted, he would have known, by the use of his own senses, [*9]whether a person appeared in front of him at the time the IMEs were scheduled. However, the affidavit is conclusory as to the basis for Johnson’s knowledge of the identity of Jason Dorvllier. There is nothing in the record to indicate that Johnson had an existing relationship with Dorvllier or had previously met Dorvllier so as to be able to recognize him. If Johnson had not previously met Dorvllier, then his knowledge of Dorvllier’s identity would not be based on personal knowledge.

3. Timeliness of the Denial of Claim Form

With respect to bill #9, defendant established proof of mailing of the denial of claim form on October 27, 2017. Based on the affidavit of defendant’s claims specialist Marie Green, who prepared the denial of claim form for bill #9, defendant established that the denial of claim form was created on October 27, 2017, and AIS was notified electronically to generate and mail the form, in accordance with claims processing procedures (see defendant’s exhibit D in support of cross motion, Green aff ¶¶ 19-22, 32). Based on the AIS business records and the detailed affidavit of the AIS Vice President, defendant established that AIS printed and mailed the denial of claim form on October 27, 2017, or the next business day (defendant’s exhibit M in support of cross motion, Taylor aff ¶¶ 6, 12-13), in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Compas Med., P.C., 46 Misc 3d 131[A], 2014 NY Slip Op 51826[U]).

According to defendant, it received bill #9 on September 21, 2017,^[FN5] but the denial of claim was mailed on October 27, 2017, more than 30 days later. The issue presented is whether the 30-day determination was tolled.

Defendant failed to establish that the 30-day determination period was tolled by the request for IMEs. First, as discussed above, defendant failed to establish when the IME scheduling letters had been mailed. Second, the IME scheduling letters were purportedly mailed to plaintiff’s assignor Dorvllier before defendant received bill # 9. Assuming, for the sake of argument, that the IME scheduling letters were properly mailed, the issue presented is whether a pre-claim IME request tolled the 30-day period to pay or deny a claim. The Appellate Term, Second Department has issued conflicting decisions on this issue.

In Vitality Chiropractic, P.C. v Kemper Insurance Company (14 Misc 3d 94, 96 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), the Appellate Term held, “the tolling provisions of the insurance regulations do not apply” to pre-claim verification requests. There, the defendant had scheduled IMEs of the plaintiff’s assignor by letters dated May 22 and 23, 2002, which pre-dated the receipt of the plaintiff’s claim on May 30, 2002. The Appellate Term ruled that the defendant’s denial of the claim on July 11, 2002 (which was more than 30 days after the receipt of the plaintiff’s bill) was untimely (id. at 96).

In Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc. (56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), the Appellate Term rejected the argument that pre-claim EUO scheduling letters did not toll the 30-day period for an insurer to pay or deny a claim. There, the defendant mailed a scheduling letter to plaintiff’s assignor on January 4, 2011, and the defendant received the plaintiff’s bill on January 21, 2011 (id. at *1). The Appellate Term ruled, “defendant’s time to pay or deny these claims, which [*10]defendant received on January 21, 2011, was tolled” (id.).

Vitality Chiropractic, P.C. and Doctor Goldshteyn Chiropractic, P.C. cannot be reconciled. The logic of Vitality Chiropractic, P.C. has straightforward appeal: the toll is based on outstanding verification requests made pursuant to 11 NYCRR 65-3.5 (see 11 NYCRR 65-3.8 [a][1], [b][3]; see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]). Given that the Appellate Term, Second Department has held that 11 NYCRR 65-3.5 does not apply to pre-claim requests at all, it logically follows that pre-claim requests cannot toll the 30-day period. Vitality Chiropractic, P.C. relied upon the Appellate Term’s prior decision in Stephen Fogel Psychological, P.C. v Progressive Casualty Insurance Company, which held that “the detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of the claim form” (7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]). Citing Stephen Fogel Psychological, P.C., lower courts therefore concluded that a denial based on a pre-claim IME was proper so long as the insurer mailed the denial within 30 days of its receipt of the claim (see e.g. Lender Med. Supply, Inc. v Hartford Ins. Co., 35 Misc 3d 1226[A], 2012 NY Slip Op 50903[U] [Civ Ct, Kings County 2012]; Prime Psychological Servs., PC v ELRAC, Inc., 25 Misc 3d 1244[A], 2009 NY Slip Op 52579[U] [Civ Ct, Richmond County 2009]; cf. All-Boro Medical Supplies, Inc. v Progressive Northeastern Ins. Co., 20 Misc 3d 554 [Civ Ct, Kings County 2008] [if defendant insisted upon conducting a pre-claim EUO before deciding whether to pay or deny the claim, it had no choice but to reschedule the EUO to a date within 30 calendar days from the date it received the claim]).

By comparison, Doctor Goldshteyn Chiropractic, P.C. did not explain why it ruled that a pre-claim EUO request tolled the defendant’s time to pay or deny the plaintiff’s claim. The court cited ARCO Medical NY, P.C. v Lancer Insurance Company (34 Misc 3d 134[A], 2011 NY Slip Op 52382[U], supra), which had different facts. In ARCO Medical NY, P.C., the EUO requests were sent within 15 days after the defendant received the plaintiff’s claims (id. at *2). Also, it is not clear that the plaintiff in Doctor Goldshteyn Chiropractic, P.C. had actually argued that pre-claim requests could toll the 30-day period. Rather, the plaintiff apparently argued that there was no toll because an issue of fact arose as to whether the scheduling letters were mailed, which the court rejected (Doctor Goldshteyn Chiropractic, P.C., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U]). No reported cases have followed Doctor Goldshteyn Chiropractic, P.C.

In deciding which case this court should follow, the Appellate Division, Second Department’s decision in Sound Shore Medical Center v New York Central Mutual Fire Insurance Company (106 AD3d 157 [2d Dept 2013]) is instructive. There, the defendant-insurer received a UB-04 form from the plaintiff-hospital, which prompted the insurer to send two “requests for verification” to the hospital (id. at 159). Thereafter, the insurer received a NF-5 form from the hospital, which prompted the insurer to send another verification request, but the insurer neither denied the claim nor sent another verification request (id. at 160).

The insurer argued that the hospital’s claim was premature because the hospital did not respond either to the insurer’s initial verification request following receipt of the UB-04 form, or to the verification request following receipt of the NF-5 form. However, the hospital argued that it was entitled to summary judgment in its favor because the UB-04 form was not the functional equivalent of a NF-5 form. Because the insurer did not send a follow-up verification request after sending an initial verification request when it received the NF-5 form, the hospital argued that the insurer’s time to pay the claim had not been tolled.

The Appellate Division agreed with the hospital, and it held that the hospital’s submission of a UB-04 form was not the functional equivalent of a NF-5 form, which would have triggered the 30-day period for the insurer to pay or deny a claim, or to seek verification of the claim (id. at 162, 163). The Appellate Division also ruled, “a request for verification that precedes a no-fault insurer’s receipt of the prescribed N-F 5 claim form does not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny such a claim” (id. at 164 [emphasis supplied]).

Given all the above, this court therefore follows Vitality Chiropractic, P.C. Although Doctor Goldshteyn Chiropractic, P.C. is a more recent decision, Vitality Chiropractic, P.C. is based on the Appellate Term’s rulings in Stephen Fogel Psychological, P.C., which was affirmed by the Appellate Division, Second Department (7 Misc 3d 18 at 21, affd 35 AD3d 72). Additionally, Vitality Chiropractic, P.C. is consistent with the Appellate Division’s ruling in Sound Shore Medical Center, that pre-claim verification requests involving a hospital claim did not toll the 30-day period.

Notwithstanding the above, defendant did establish that the 30-day period was tolled as to bill # 9 due to the EUO scheduling letter mailed on October 4, 2017, scheduling an EUO on October 30, 2017, which was mailed within 15 business days of defendant’s receipt of bill # 9 on September 21, 2017. Thus, at the time when defendant mailed the denial of claim form on October 27, 2017, a toll was still in effect.

However, in light of the court’s determination that defendant neither proved mailing of the IME scheduling letters nor Dorvllier’s failure to appear at the IMEs, summary judgment dismissing the claims for bill #9 (for services rendered to Dorvllier on 8/24 and 8/31/17) based on an IME no-show defense is denied.

II. Plaintiff’s Motion for Summary Judgment

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law”

(Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Once plaintiff meets its prima facie burden, the burden shifts to defendant “to show that it has a meritorious defense and that such a defense is not precluded” (Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [internal citation omitted]).

Here, plaintiff submitted the affidavit of a billing representative, Yana Mironovich, to establish that it timely mailed all the bills at issue to defendant in accordance with a standard office practice or procedure (see plaintiff’s exhibit C in support of motion, Mironovich aff). However, this affidavit is insufficient. According to Mironovich, employees of Billing Services of NY, Inc. created and mailed the bills to defendant (see Mironovich aff ¶¶ 21-32). However, Mironovich does not state that she is either the owner or an employee of Billing Services of NY, Inc. At best, she states, “I am the billing representative of plaintiff” and that the procedures were “done in the ordinary course of business of my company” (see id. ¶¶ 1, 13). Thus, the affidavit [*11]did not adequately establish that Mironovich has any knowledge of the office practice or procedure of Billing Services of NY, Inc. (see Healthy Way Acupuncture, P.C. v Farmington Cas. Co., 49 Misc 3d 141[A], 2015 NY Slip Op 51595[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Nevertheless, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s cross motion papers, which admitted receipt of plaintiff’s bills (Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, DC, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

As discussed above, the court granted defendant’s cross motion for summary judgment in part, to the extent of dismissing claims for bills #1-6, 8, and 10-11, based on the failure of plaintiff to appear for EUOs scheduled on December 8, 2017, February 14, 2018, and March 15, 2018. Thus, the only remaining claims at issue in plaintiff’s motion for summary judgment in its favor are bills # 7 and #9.

As discussed above, the denial of claim form as to bill #7 was untimely, because it was purportedly mailed more than 30 days after bill #7 was allegedly received. Therefore, plaintiff is entitled to summary judgment in its favor against defendant as to bill # 7, in the amount of $48.89.

As to bill # 9, as discussed above, defendant failed to establish that it issued a timely denial and the evidence was insufficient to establish that plaintiff’s assignor Dorvllier failed to appear for IMEs scheduled on September 13 and 27, 2017. Therefore, plaintiff is entitled to summary judgment in its favor as to bill # 9, in the amount of $97.78.

Plaintiff is also entitled to prejudgment interest on bills #7 and # 9 at the rate of 2% per month from December 29, 2017, the date of the commencement of the action, because plaintiff did not commence a lawsuit within 30 days after those bills became overdue (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 205 [2d Dept 2009]).

Plaintiff is also entitled to attorneys’ fees (11 NYCRR § 65-4.6 [d]). The award of attorneys’ fees is calculated as 20% of the aggregate amount of bills #7 and #9, i.e. $146.67 ($48.89+$97.78) plus interest, subject to a maximum of $1,360 (id.; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]).

CONCLUSION

Upon the foregoing cited papers, it is hereby

ORDERED that plaintiff’s motion for summary judgment is GRANTED IN PART TO THE EXTENT that plaintiff is awarded summary judgment in its favor against defendant on a claim for a date of service on August 1, 2017 and on a claim for dates of service on August 24 and 31, 2017, for services rendered to Jason Dorvllier, and the Clerk of the Court is directed to enter judgment in plaintiff’s favor against defendant Nationwide Insurance Company of New York in the amount of $146.67, with prejudgment interest at the rate of 2% per month from December 29, 2017, plus attorneys’ fees to be calculated by the Clerk, with costs and disbursements to plaintiff as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further

ORDERED that the plaintiff’s motion for summary judgment is otherwise denied; and it is further

ORDERED that defendant’s cross motion for summary judgment is GRANTED IN [*12]PART TO THE EXTENT that so much of the complaint that seeks first-party no-fault benefits for claims for the dates of service on August 10, 11, 17, 18, 23, 24, 25, 29, 31, 2017 and September 1, 5, 7, 8, 12, 14, 15, 20, 21, and 26, 2017 for services rendered to Selena Figueroa, and claims for the dates of service on August 15, 16, and 23, 2017 and on September 13, 18, 25, 26, and 27, 2017 for services rendered to Jason Dorvllier, are severed and dismissed; and it is further

ORDERED that defendant’s cross motion for summary judgment dismissing the complaint is otherwise denied; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly

This constitutes the decision and order of the court.

Dated: June 1, 2020
New York, New York
ENTER:
_______________/s_________________
RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1:The record contains several spellings of this assignor’s last name. On the NF-2 form and Assignment of Benefits form, the assignor printed his last name by hand as “Dorvilier” (see defendant’s exhibit AA in support of cross motion; see plaintiff’s exhibit B in support of motion). This assignor’s counsel referred to him as “Jason Dorville” (see defendant’s exhibit AA in support of cross motion). The NF-3 forms and summons and complaint spell his name as “Dorvllier” (see plaintiff’s exhibits A-B in support of motion).

Footnote 2:Defendant submitted two affidavits from John Johnson, Jr. under exhibit HH. One was sworn to on October 10, 2018, and the other was sworn to on October 12, 2018. Otherwise, both appear substantively identical.

Footnote 3:According to AIS business records, the denial of claims forms were sent around 2 p.m. on March 28, 2018 (see defendant’s exhibits F-J in support of cross motion). According to Taylor, the letters to be mailed were picked up each business day by the United States Postal Service (see id., Taylor affs ¶ 13). Assuming, for the sake of argument, that the letters were not picked up on March 28, 2018, they would have therefore been picked up the next business day. Whether the letters were mailed on March 28 or March 29, 2018 is not a material issue of fact, given that the last EUO was scheduled on March 15, 2018.

Footnote 4:According to AIS business records, the denial of claims forms were sent around 2 p.m. on March 28, 2018 (see defendant’s exhibits L, N-O in support of cross motion). According to Taylor, the letters to be mailed were picked up each business day by the United States Postal Service (see id., Taylor affs ¶ 13). Assuming, for the sake of argument, that the letters were not picked up on March 28, 2018, they would have therefore been picked up the next business day. Whether the letters were mailed on March 28 or March 29, 2018 is not a material issue of fact, given that the last EUO was scheduled on March 15, 2018.

Footnote 5:Plaintiff did not dispute nor object to defendant’s proof that the bill #9 was received on September 21, 2017.