Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Office of Gabriel & Moroff, LLC (Matthew Sledzinski and Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated July 12, 2021. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). In an order dated July 12, 2021, the District Court denied the motion, but implicitly found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The District Court further found that the only remaining issue for trial was the reasonableness of defendant’s EUO requests.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the provider, that the provider twice failed to [*2]appear, and that the insurer issued timely denials of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014])—all elements that the District Court found to have been established (see CPLR 3212 [g]).

Plaintiff does not argue that defendant did not demonstrate its prima facie entitlement to summary judgment. Rather, plaintiff argues that defendant did not have an objective basis for requesting the EUOs. However, contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2d Dept 2014]; NY Wellness Med., P.C. v Nationwide Mut. Ins. Co., 75 Misc 3d 126[A], 2022 NY Slip Op 50359[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; cf. Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671 [1st Dept 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept 2015]). As plaintiff failed to raise a triable issue of fact, defendant’s motion should have been granted.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

DRISCOLL, J.P., GARGUILO and EMERSON, JJ., concur.

[*1]

The Rybak Firm, PLLC, Brooklyn (Michael I. Kroopnick of counsel), for appellants.

Freiberg, Peck & Kang, LLP, Armonk (Yilo J. Kang of counsel), for respondents.

Order, Supreme Court, Bronx County (Eddie J. McShan, J.), entered December 8, 2021, which, to the extent appealed from as limited by the briefs, denied defendants All City Family Healthcare, Aron Rovner, MD, PLLC, Averroes Physical Therapy PC, Burke Physical Therapy PC, Cavallaro Medical Supply, East 19 Medical Supply Corp., JSJ Anesthesia Pain Management PLLC, Jules F. Parisien, Longevity Medical Supply, Inc., LR Medical PLLC, Metro Pain Specialists, PC, Nova Medical Diagnostic, P.C., CMA Psychology, P.C., Danimark Physical Therapy PC, Fairpoint Acupuncture PC, and NYEEQASC, LLC’s (the Rybak defendants) motion to dismiss the complaint or, alternatively, to sever the claims, unanimously affirmed, without costs. Order, same court and Justice, entered December 8, 2021, which denied the Rybak defendants’ motion for a protective order, unanimously affirmed, without costs. Appeal from order, same court (Fidel E. Gomez, J.), entered June 14, 2022, which denied the Rybak defendants’ motion to sever the claims pursuant to the law of the case doctrine, unanimously dismissed, without costs, as academic.

On a motion to dismiss a declaratory judgment action for failure to state a cause of action, “the only question is whether a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment, and not whether the plaintiff is entitled to a declaration favorable to him” (Law Research Serv. v Honeywell, Inc., 31 AD2d 900, 901 [1st Dept 1969]). Here, plaintiffs stated causes of action for declaratory judgment. Contrary to the Rybak defendants’ contention, plaintiffs need not allege a proper claim for fraud in the complaint. Further, plaintiffs were not merely seeking an advisory opinion. Rather, their request for a declaration regarding the eligibility of defendants to recover no-fault benefits under the relevant policies amounts to a justiciable controversy sufficient to render declaratory judgment (State Farm Mut. Auto. Ins. Co. v Anikeyeva, 89 AD3d 1009, 1010-1011 [2d Dept 2011]).

The court providently exercised its discretion in declining to sever plaintiff’s claims into separate actions. Generally, “[t]o avoid the waste of judicial resources and the risk of inconsistent verdicts, it is preferable for related actions to be tried together” (Rothstein v Milleridge Inn, 251 AD2d 154, 155 [1st Dept 1998]). Although the Rybak defendants’ severance arguments carry some weight, after consideration of all relevant factors, including the potential prejudice that would be suffered by plaintiffs in having to litigate 32 separate actions involving many of the same parties and witnesses, the court properly declined to sever the claims (see Hempstead Gen. Hosp. v Liberty Mut. Ins. Co., 134 AD2d 569, 569-570 [2d Dept 1987]; cf. Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185, 185 [1st Dept 2004]). In view of the foregoing, the appeal from the order denying the Rybak defendants’ second motion to sever pursuant [*2]to the law of the case doctrine is dismissed as academic.

The court properly declined to dismiss the claims which had also been previously asserted by the Rybak defendants in separate Civil Court actions as Civil Court cannot grant the declaratory relief that plaintiffs seek here (see State Farm Fire & Cas. Co. v Jewsbury, 169 AD3d 949, 950-951 [2d Dept 2019]).

The court providently exercised its discretion in declining to grant the Rybak defendants a protective order to preclude plaintiffs from deposing them. Generally, a party seeking a protective order bears the initial burden of showing either that the discovery sought is irrelevant or that it is “obvious the process will not lead to legitimate discovery” (Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 403 [1st Dept 2018]). Where a party seeking a protective order fails to “substantiate their conclusory claims,” the motion must be denied (Ocean to Ocean Seafood Sales v Trans-O-Fish & Seafood Co., 138 AD2d 265, 266 [1st Dept 1988]). Here, the Rybak defendants did not meet their initial burden, as they simply asserted, in conclusory fashion, that they had no knowledge of the automobile accidents and did not witness the accidents, and thus could not attest to whether they had been staged (see id.; City Wide Social Work v NY Cent. Mut. Fire Ins. Co., 20 Misc 3d 134[A], 2008 NY Slip Op 51470[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The Rybak defendants’ affirmative defenses also support plaintiffs’ need to depose them. Concur—Kern, J.P., Kennedy, Scarpulla, Pitt-Burke, Higgitt, JJ.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered July 29, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.

Plaintiff correctly argues that defendant’s motion failed to establish that defendant had timely denied plaintiff’s claims after plaintiff’s assignor had allegedly failed to appear at both an initial and a follow-up EUO (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., — Misc 3d —, 2022 NY Slip Op 22383 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., — Misc 3d —, 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is [*2]not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint should have been denied.

However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; 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]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Tsai, J.), dated July 12, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and granting plaintiff’s cross motion for summary judgment.

Defendant’s motion failed to establish that it had timely denied plaintiff’s claims after plaintiff’s second failure to appear for an EUO (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., — Misc 3d —, 2022 NY Slip Op 22383 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., — Misc 3d —, 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. [*2]v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

As to plaintiff’s cross motion, defendant does not challenge plaintiff’s prima facie case and so we do not pass upon the propriety of the Civil Court’s determination with respect thereto. Moreover, defendant’s papers were insufficient to demonstrate that there is a triable issue of fact as to its EUO no-show defense so as to warrant denial of plaintiff’s cross motion.

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Jannine A. Gordineer of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), dated October 15, 2020. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking summary judgment dismissing the complaint on the alternate ground that the amounts sought to be recovered exceeded the amounts permitted by the workers’ compensation fee schedule.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had fraudulently procured the insurance policy in question by making material misrepresentations as to the vehicle in question and on the alternate ground that the amounts sought to be recovered exceeded the amounts permitted by the workers’ compensation fee schedule, a defense that is not subject to preclusion as to the claims at issue (see 11 NYCRR 65-3.8 [g]). Plaintiff cross-moved [*2]for summary judgment. The Civil Court granted the branch of defendant’s motion based on fraudulent procurement and denied plaintiff’s cross motion. The court did not pass on the branch of defendant’s motion that was based upon the alternate fee schedule ground.

The defense that an insured made a material misrepresentation when obtaining the insurance policy is subject to preclusion (see Empire State Med. Supplies, Inc. v Sentry Ins., 55 Misc 3d 130[A], 2017 NY Slip Op 50403[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 42 Misc 3d 147[A], 2014 NY Slip Op 50359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Thus, as plaintiff argues, defendant is not entitled to summary judgment on this ground as to the first cause of action, as defendant failed to offer proof that it ever denied the claim underlying that cause of action (see Empire State Med. Supplies, Inc. v Sentry Ins., 2017 NY Slip Op 50403[U]; Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 2014 NY Slip Op 50359[U]), and so did not demonstrate that it is not precluded from raising this defense as to that claim.

Defendant did establish that it is not precluded from raising its material misrepresentation defense as to the claim underlying the second cause of action, as it demonstrated that it timely denied that claim on that ground (see Empire State Med. Supplies, Inc. v Sentry Ins., 2017 NY Slip Op 50403[U]; Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 2014 NY Slip Op 50359[U]). However, a misrepresentation is only material “if the insurer would not have issued the policy had it known the facts misrepresented” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011]). Here, the alleged material misrepresentation was the failure to reveal that the vehicle being insured was a “for hire” livery vehicle, which defendant’s underwriting supervisor stated is an excluded operation, claiming that defendant does not issue livery policies in New York State. However, as plaintiff contends, defendant failed to “present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (id. at 994 [internal quotation marks omitted]). “Conclusory statements by insurance company employees, unsupported by documentary evidence, are insufficient to establish materiality as a matter of law” (Schirmer v Penkert, 41 AD3d 688, 690-691 [2007]). Consequently, defendant did not demonstrate as a matter of law that the misrepresentation was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993; Schirmer v Penkert, 41 AD3d 688; cf. Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855 [2009]).

Plaintiff’s contention that its cross motion for summary judgment should have been granted lacks merit because, among other things, the proof submitted in support thereof failed to establish either that defendant failed to timely deny the claims at issue (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; 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]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking summary judgment dismissing the complaint on the [*3]alternate ground that the amounts sought to be recovered exceeded the amounts permitted by the workers’ compensation fee schedule.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

Index No. 656455/2022

Law Office of Jaffe & Velazquez, LLP, New York, NY (Carl J. Gedeon of counsel), for plaintiff.

Rybak Law Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Lifeline Medical Imaging, P.C. and 334 Grand Concourse Medical, P.C.

No appearance for defendant Autumn PT, P.C.

In this no-fault-insurance-coverage action, plaintiff, Country-Wide Insurance Company, moves for summary judgment under CPLR 3212 against defendants Lifeline Medical Imaging, P.C., Autumn PT, P.C., and 334 Grand Concourse Medical, P.C., all medical-provider assignees of the eligible injured person (defendant Steven Henderson) that have appeared in this action. Lifeline Medical and 334 Grand Concourse (represented by the same counsel) have filed opposition papers. Autumn PT has not. The summary-judgment motion is denied without prejudice.

Country-Wide seeks a declaration of no coverage on the ground that Henderson failed twice to appear for duly scheduled examinations under oath (EUOs), vitiating coverage both for himself and for his assignees. In opposition, Lifeline Medical/334 Grand Concourse (opposing defendants) raise three main categories of arguments: (i) Country-Wide has not shown the EUOs were timely and properly scheduled; (ii) Country-Wide has not provided sufficient justification for having requested the EUOs; and (iii) Country-Wide moved for summary judgment prematurely before defendants could obtain discovery.

This court disagrees with the arguments made by opposing defendants with respect to the timeliness of Country-Wide’s EUO requests. As this court recently observed, many of those arguments are foreclosed by existing Appellate Division precedent (see Country-Wide Ins. Co. v Duff, 2022 NY Slip Op 51289[U], at *1 [Sup Ct, NY County Dec. 20, 2022]); and the remaining arguments are unpersuasive.

The court reaches a different conclusion about the issue of Country-Wide’s justification for asking Henderson to appear for EUOs. The governing regulations provide that a no-fault insurer must have a “specific objective justification supporting the use of such examination.” (11 NYCRR 65-3.5 [e].) If a medical-provider assignee defending a no-fault-coverage action questions whether the insurer had a proper basis for seeking the EUO, the insurer must identify its justification for the EUO request;^[FN1] in the “absence of any justification for the EUO,” the insurer cannot “establish, as a matter of law, that it complied with the governing regulations.” (Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 474 [1st Dept 2022]; accord Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671, 671 [1st Dept 2020].)

The affidavit of Country-Wide’s no-fault supervisor (Jessica Mena-Sibrian), submitted as part of Country-Wide’s opening motion papers, offers two justifications for seeking Henderson’s EUO: (i) “material facts surrounding the accident required clarification”; and (ii) “there is also a lapse of time between the date of the accident and the time the claimant first seeks treatment.” (NYSCEF No. 27 at ¶ 10.) The conclusory assertion that Country-Wide needed clarification about the facts of the accident, with no indication of what facts needed to be clarified, or why, is not sufficient. (See Country-Wide Ins. Co. v Delacruz, 71 Misc 3d 247, 251-252 [Sup Ct, NY County 2021], affd 205 AD3d 473.)

With respect to the lapse of time asserted by the Mena-Sibrian affidavit, that affidavit does not identify the basis of her knowledge for that assertion. Nor do the documents submitted by Country-Wide remedy this gap. At most, Country-Wide has provided the NF-3 treatment bills on which it relies to establish the timeliness of its EUO request, which reflect that approximately nine weeks elapsed between the date of the accident and the dates of treatment for which payment was being sought. (See NYSCEF NO. 30 at 1-2.) But Country-Wide has not shown that those bills were the first NF-3 forms it received from one of Henderson’s treating providers, or that the dates of service on the NF-3 bills submitted by Country-Wide were the earliest dates of treatment. Additionally, Country-Wide’s attorney affirmation submitted on reply, professing to rely on the Mena-Sibrian affidavit, offers an entirely different set of justifications, namely that “medical or lost earnings claim is extensive, but collision is a minor impact with minimal property damage to vehicles,” and that the “police report indicated no one involved sustained any injury and/or medical treatment at scene was refused.”^[FN2] (NYSCEF No. 71 at ¶ 39.) Given Country-Wide’s failure on this motion to identify and document a consistent justification for its EUO request, Country-Wide is not entitled on this record to summary judgment.

For similar reasons, this court agrees with opposing defendants that Country-Wide’s summary-judgment motion must be denied under CPLR 3212 (f) as premature. The record reflects that Country-Wide moved for summary judgment only two months after opposing defendants filed their answer and served discovery requests, without Country-Wide’s having provided the discovery being sought. (See NYSCEF Nos. 13 [discovery request], 34 [notice of motion].) The “reason for the EUO request is a fact essential to justify opposition to plaintiff’s summary judgment motion” that is “exclusively within the knowledge and control of the movant.” (American Tr. Ins. co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015].) As a result, a summary-judgment motion brought before the insurer has responded to a discovery request seeking that reason—as true here—is premature. (AB Med. Supply, 187 AD3d at 671; accord Delacruz, 205 AD3d at 473.)

As noted above, defendant Autumn PT has not opposed Country-Wide’s summary-judgment motion. At the same time, this court’s conclusion that the summary-judgment motion is premature and that defendants must be afforded a sufficient opportunity to obtain discovery from Country-Wide applies equally to Autumn PT as to the opposing defendants. Country-Wide’s request for summary judgment is therefore denied as against Autumn PT, in addition to opposing [*2]defendants (Lifeline Medical and 334 Grand Concourse).

Accordingly, it is

ORDERED that Country-Wide’s motion for summary judgment is denied without prejudice; and it is further

ORDERED that Country-Wide serve a copy of this order with notice of its entry on Lifeline Medical, 334 Grand Concourse, and Autumn PT.

Footnotes

Footnote 1:The assignee may raise the issue of the insurer’s EUO justification whether or not the eligible-injured-person assignor asked the insurer to provide that justification when the insurer first noticed the assignor’s EUO. (See Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 474 [1st Dept 2022].) Country-Wide’s assertion that any objection to the basis for the EUO has been waived is thus foreclosed by Appellate Division precedent. (See NYSCEF No. 71 at ¶ 58.) And that a no-fault insurer “need not provide a copy of its internal guidelines for requesting an EUO” (id. at ¶ 57) does not excuse the insurer from making “a more limited disclosure of the specific facts that, applied to those internal standards in a given case, prompted the insurer to request an EUO.” (Kemper Independence Ins. Co. v Accurate Monitoring, LLC, 73 Misc 3d 585-590 [Sup Ct, NY County 2021] [internal quotation marks omitted].)

Footnote 2:Country-Wide has not submitted the police report on this motion.

Index No. 655628/2021

Law Office of Jaffe & Velazquez, LLP, New York, NY (Carl J. Gedeon of counsel), for plaintiff.

Rybak Law Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Chohayea Duff, Maria Shiela Masigla-Buslon, D.PT., Energy Chiropractic, P.C., Kings Rehab Acupuncture, P.C., AB Medical Supply Inc., Strategic Medical Initiatives, P.C., and M. Bulson Physical Therapy, P.C.

This is a no-fault-insurance-coverage action. On motion sequence 001, plaintiff, Country-Wide Insurance Company, moves without opposition for default judgment under CPLR 3215 against nonappearing defendants Quality Custom Medical Supply, Inc., Atlas Radiology P.C., Zhong Qing Zhou L.A.C., and Guy Brewer Pharmacy, Inc., all medical-provider assignees of the eligible injured person, defendant Chohayea Duff.

On motion sequence 002, Country-Wide moves for summary judgment under CPLR 3212 against appearing defendants Duff and the remaining medical-provider assignees. The motion is opposed by all appearing defendants except Jamaica Hospital Medical Center Diagnostic and Treatment Center Corp.

Country-Wide’s default-judgment and summary-judgment motions are granted.

DISCUSSION

1. Default Judgment (Mot Seq 001) A party moving for default judgment must establish proper service, default, and the facts constituting the moving party’s claims. Country-Wide has established proper service on the four defendants who are the subject of its default-judgment motion, none of which have appeared. And Country-Wide has provided affidavits from its employees, supported by attached documentation, establishing that Country-Wide timely and properly requested that Duff appear for an independent medical examination (IME), and that Duff twice failed without justification to appear for scheduled IMEs. That suffices to establish Country-Wide’s claim for default judgment purposes.

2. Summary Judgment (Mot Seq 002) Country-Wide’s summary-judgment motion papers, based on the same affidavits and exhibits as its default-judgment motion, establishes prima facie that Country-Wide is entitled to judgment as a matter of law. And this court concludes that the opposing defendants fail to raise a dispute of material fact warranting trial.

Defendants, relying on an outdated and boilerplate affirmation of counsel, raise three principal legal arguments, and one factual one.^[FN1] (See NYSCEF No. 60.) None of defendants’ legal arguments has merit—indeed, they are foreclosed by controlling appellate precedent that counsel for defendants does not even acknowledge, much less address.^[FN2]

First, defendants contend that Country-Wide has not shown that Country-Wide’s initial IME request was timely relative to when Country-Wide received Duff’s NF-2 application for no-fault benefits. But the triggering date that begins the IME-request period is not receipt of the NF-2 benefits application, but instead receipt of NF-3 claims for payment submitted by treating providers. (See 11 NYCRR 65-3.5 [a]-[b]; Unitrin Direct Ins. Co. v Beckles, 188 AD3d 620, 621 [1st Dept 2020] [explaining that a timely request for an IME must be made within 15 days of receipt of an NF-3 medical-provider claim].)

Second, defendants assert that Country-Wide has failed to meet its (putative) obligation to show that its initial IME request was timely relative to the first bill it received from each treating medical provider. But Country-Wide is not required to make that showing. Rather, as the Appellate Division, First Department has held, the nonappearance coverage defense applies to any claim received by a no-fault insurer, rather than being “determined on a bill by bill basis.” (PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645, 646 [1st Dept 2020].) The insurer is required only to show that a request for an IME or examination under oath (EUO) is made within 15 days of receipt “of a medical provider claim (NF-3).” (Beckles, 188 AD3d at 61 [emphasis added]; see also Unitrin Advantage Ins. Co. v Dowd, 194 AD3d 507, 507 [1st Dept 2021] [holding that as long as an EUO was timely and properly requested of an assignee relative to a claim, the failure to appear for the EUO will “void[] the policy ab initio as to all claims” by the assignee].^[FN3] )

Third, defendants claim that Country-Wide’s motion fails because it has not shown when it made its initial IME request relative to receiving NF-3 claims from defendants, in particular. Again, that showing is not required. As the First Department held in 2020, if a no-fault insurer establishes that the eligible injured person failed twice to appear an IME scheduled within 15 days of receipt of an NF-3 bill, “summary judgment is properly awarded to the insurer with respect to further coverage obligations and reimbursement of outstanding medical bills with respect to all treating providers.” (Beckles, 188 AD3d at 621 [emphasis added].) This rule follows from the basic principle that medical-provider assignees stand in the shoes of their eligible-injured-person assignor. If an assignor’s claim is properly denied due to IME nonappearances, then the claims of all assignees are subject to denial, whether or not the IME was requested based on a given assignee’s requests for payment.

In addition to the legal arguments discussed above, defendants also raise the factual argument that Country-Wide has not properly authenticated the NF-3 forms on which Country-Wide relies to show the timeliness of its IME request. This court disagrees. Country-Wide has [*2]provided an affidavit from its no-fault supervisor that identifies several claims it has received from different providers, specifying the provider, the date received, the dates of service, and the amount of the bill. (NYSCEF No. 54 at ¶ 9.) Country-Wide has provided copies of those bills. (See NYSCEF No. 58.) And Country-Wide’s affirmation of counsel represents that the documents contained at NYSCEF No. 58 are copies of the bills that Country-Wide received. (NYSCEF No. 43 at ¶¶ 21-22.) These sworn representations, taken together, are sufficient.

Finally, defendants contend that Country-Wide’s summary-judgment motion is premature under CPLR 3212 (f) because discovery remains outstanding. This court is not persuaded. To be sure, in some circumstances it may be the case that an insurer’s early summary-judgment motion in a no-fault-coverage action is premature because it forecloses the provider defendants from obtaining discovery necessary to oppose the motion. (See Country-Wide Ins. Co. v Evans, 2022 NY Slip Op 33966[U], at *2 [Sup Ct, NY County Nov. 21, 2022] [denying insurer’s summary-judgment motion as premature].) But here, the record reflects that defendants served discovery requests on Country-Wide in November 2021 (simultaneous to their filing of the answer); and that within a week of service, defendants had not only received responses to those requests, but written back to Country-Wide objecting to them as incomplete. (See NYSCEF Nos. 19-20.) A year then elapsed before Country-Wide moved for summary judgment. (See NYSCEF No. 41 [notice of motion].) This court is not aware of any effort by defendants during that year to obtain additional discovery from Country-Wide—for example, through moving to compel, or simply requesting a discovery conference with the court. Given defendants’ ample opportunity to obtain discovery in these circumstances, Country-Wide’s summary-judgment motion is not premature.

Country-Wide’s default-judgment motion against the defaulting defendants (mot seq 001) is granted without opposition. The branch of Country-Wide’s motion seeking summary judgment against defendant Jamaica Hospital Medical Center Diagnostic and Treatment Center Corp. (mot seq 002) is granted without opposition. The branch of Country-Wide’s motion seeking summary judgment against the remaining defendants (mot seq 002) is granted.

Settle Order.

Footnotes

Footnote 1:All defendants opposing summary judgment are represented by the same counsel (the Rybak Firm, PLLC) and have filed one set of opposition papers.

Footnote 2:Country-Wide has not requested sanctions under 22 NYCRR 130-1.1. But this court is troubled by the extent to which defendants’ counsel repeatedly make the same rejected arguments in no-fault-coverage litigation, seemingly without regard to whether those arguments have any merit in existing law or are reasonable arguments for a change in that law. This is the second time in two years that this court has felt obliged to take the time to walk through why counsel’s arguments are (still) foreclosed by binding precedent. (See Country-Wide Ins. Co. v Ware, 2021 NY Slip Op 50506[U], at *2-3 [Sup Ct, NY County May 28, 2021].) The court hopes that a third such decision will not be required in the future.

Footnote 3:The First Department’s decision in Dowd reversed a decision of the undersigned on which defendants rely. (See NYSCEF No. 60 at ¶ 25, citing 2020 NY Slip Op 50594[U] [Sup Ct, NY County May 21, 2020].) Defendants do not mention that reversal.

Index No. 159039/2021

Law Office of Daniel J. Tucker, Brooklyn, NY (Megan Harris of counsel), for plaintiff.

Law Offices of Dominick W. Lavelle, Locust Valley, NY (Emily K. Lavelle of counsel), for defendant Shawarbi Graves.

No appearances for remaining defendants.

In this no-fault-insurance-coverage action, plaintiff, American Transit Insurance Company, moves for default judgment against the eligible injured person, defendant Shawarbi Graves, and a number of medical-provider assignees of defendant Graves. Plaintiff’s motion is denied as to defendants Graves, Dr. Ronald P. Mazza, Nassau Health Care Corp., and Nassau University Medical Center; and granted as to [*2]defendants Hector Melgar, PT P.C., Orthopro, Services, Inc., Prompt Medical Spine Care, PLLC, and Stand-Up MRI of Carle Place, P.C.^[FN1]

To obtain default judgment under CPLR 3215, a plaintiff must establish proper service on the defendant, the defendant’s default, and the facts constituting plaintiff’s claims. American Transit cannot show proper service on Graves, Mazza, Nassau Health Care, or Nassau University Medical Center.

American Transit commenced this action on October 1, 2021. (NYSCEF No. 1.) American Transit therefore was required to serve defendants within 120 days from that day. (See CPLR 306-b.) The 120th day of the period, January 29, 2022, was a Saturday, making American Transit’s deadline January 31. (See General Construction Law § 25-a.) But American Transit’s affidavits of service reflect that it did not serve Mazza, Nassau Health Care, and Nassau University Medical Center until February 4, 2022. (See NYSCEF No. 4 at 3, 5, 7 [affidavits of service].) And American Transit did not serve Graves until February 22, 2022.^[FN2] (NYSCEF No. 4 at 1.)

The length of these delays in service is not significant. But American Transit did not, then or later, seek additional time to serve these four defendants. Nor do American Transit’s papers on the current motion address this issue. (See NYSCEF No. 11 [affirmation of counsel].) This court may not sua sponte dismiss American Transit’s claim against these four defendants for untimely service (Daniels v King Chicken & Stuff, Inc., 35 AD3d 345, 345 [2d Dept 2006]); but absent proper service, no basis exists to grant default judgment against them, either.^[FN3]

The other defendants (Melgar, Orthopro, Prompt Medical, and Stand-Up MRI), were each timely served in December 2021. (See NYSCEF No. 3.) None of these defendants have answered or sought additional time to answer. And American Transit has provided the facts constituting its claims against these defendants. American Transit’s motion papers establish for default-judgment purposes that it timely requested and scheduled an independent medical examination, as required by 11 NYCRR 65-3.5; and that Graves twice failed without good cause to appear for the duly scheduled examinations. (See Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011].)

Accordingly, it is

ORDERED that the branch of American Transit’s motion seeking default judgment under CPLR 3215 against Melgar, Orthopro, Prompt Medical, and Stand-Up MRI is granted without opposition, and American Transit is directed to settle order with respect to judgment against those defendants; and it is [*3]further

ORDERED that the branch of American Transit’s motion seeking default judgment under CPLR 3215 against Graves, Mazza, Nassau Health Care, and Nassau University Medical Center is denied; and it is further

ORDERED that if American Transit does not bring a renewed motion for default judgment against defendants Mazza, Nassau Health Care, and Nassau University Medical Center within 30 days of entry of this order, the action will be dismissed as against those defendants.

Footnotes

Footnote 1:Plaintiff settled its claims against the remaining defendant, Advanced Orthopaedics, P.L.LC. (NYSCEF No. 29), and does not seek relief against it on this motion.

Footnote 2:American Transit served Graves by leave-and-mail under CPLR 308 (2), on February 19, 2022, and February 22, 2022, respectively. (See NYSCEF No. 4 at 1.)

Footnote 3:In any event, American Transit has not properly established that Graves defaulted. Given leave-and-mail service, Graves’s time to appear and respond expired 40 days from the filing of the affidavit of service, which occurred here on June 15, 2022. (See NYSCEF No. 4; CPLR 308 [2]; CPLR 320 [a].) Graves’s deadline to appear and respond, therefore, was July 25, 2022. Graves filed an answer on July 26, 2022. (NYSCEF No. 8.) Although that answer was one day late, American Transit did not serve a notice of rejection; nor separately argue in its default-judgment motion—filed on August 7, 2022—that Graves’s answer was late. As a result, American Transit waived Graves’s one-day default. (See U.S. Bank N.A. v Lopez, 192 AD3d 849, 850 [2d Dept 2021].) For that matter, even absent waiver, this court would be inclined to grant Graves a retroactive one-day enlargement of time under CPLR 2004, were that enlargement requested.

Thomas Torto, for appellant. Glinkenhouse Queen (Alan Queen of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Laurentina McKetney Butler, J.), dated November 15, 2021. The order denied defendant’s motion to, in effect, recalculate a judgment of that court entered May 20, 2021 so as to exclude all statutory no-fault interest therein, and granted plaintiff’s cross motion to recalculate the May 20, 2021 judgment to include interest for the period from June 28, 2019 to May 20, 2021.

ORDERED that the order is modified by providing that defendant’s motion is granted to the extent of tolling statutory no-fault interest from March 14, 2002 to June 27, 2019; as so modified, the order is affirmed, without costs.

In 2000, plaintiff commenced this action to recover assigned first-party no-fault benefits for medical equipment provided to its assignor in connection with injuries allegedly sustained in a motor vehicle accident in July 1999. Defendant appeared and answered. Plaintiff moved for summary judgment and defendant failed to submit opposition. By order dated March 14, 2002, the Civil Court (James J. Golia, J.) granted plaintiff’s motion on default and awarded plaintiff judgment in the sum of $1,057 with interest from January 24, 2000. Approximately 17 years later, on June 27, 2019, plaintiff applied for the entry of judgment upon the Civil Court’s March 14, 2002 order. On May 20, 2021, judgment was entered in the sum of $107,441.02, including [*2]$105,862.22 in statutory no-fault interest from January 24, 2000 to June 27, 2019. Defendant moved for an order “vacating, re-settling and recalculating” the judgment to exclude all statutory no-fault interest based upon plaintiff’s delay in entering judgment. Plaintiff cross-moved pursuant to CPLR 5019 (a) to recalculate the judgment to include interest for the period from June 28, 2019, the day after plaintiff applied for entry of judgment, to May 20, 2021, the date the clerk entered judgment. By order entered November 15, 2021, the Civil Court (Laurentina McKetney Butler, J.) denied defendant’s motion and granted plaintiff’s cross motion.

Statutory no-fault interest (see Insurance Law § 5106 [a]), which is 2 percent per month, is meant to be a penalty for an insurer’s failure to pay a valid claim, and it applies to both pre- and post-judgment interest (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 156 [2021]). However, the no-fault regulations provide that, “[i]f an applicant has submitted a dispute to arbitration or the courts, interest shall accumulate, unless the applicant unreasonably delays the arbitration or court proceeding” (former 11 NYCRR 65.15 [h] [now 11 NYCRR 65-3.9 (d)]). This court has rejected the argument that tolling should not apply simply “because [the] defendant could have attempted to move the case forward” (Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and held instead that a no-fault plaintiff “should not be rewarded for . . . years of inaction by receiving a windfall of interest” (id.). Similarly, here, plaintiff should not be rewarded with a huge sum of interest for inordinate delay in entering a judgment.

Contrary to plaintiff’s argument, this case is not analogous to the cases holding that interest should not be tolled between a settlement and the entry of a judgment upon that settlement agreement (see e.g. Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). A settlement is the resolution of a case to which both parties have agreed; accordingly, CPLR 5003-a requires a settling defendant to pay that mutually agreed-upon amount within three weeks (see CPLR 5003-a [a] [“any settling defendant . . . shall pay all sums due to any settling plaintiff within twenty-one days of tender” of the required paperwork] [emphasis added]; Herman v Country-Wide Ins. Co., 76 Misc 3d 132[A], 2022 NY Slip Op 50916[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). There is no such statutory mandate as to orders awarding summary judgment.

Therefore, the Civil Court should have granted defendant’s motion to the extent of tolling the accrual of statutory no-fault interest from March 14, 2002, the date of the order granting plaintiff summary judgment, to June 27, 2019, the date plaintiff applied to enter judgment based upon that order (see Herman, 2022 NY Slip Op 50916[U]). The Civil Court correctly declined to toll the accrual of interest from January 24, 2000 to March 13, 2002, which interest was awarded by the March 14, 2002 order, as there has been no finding that plaintiff unreasonably delayed this case during that period. For the same reason, the Civil Court correctly granted plaintiff’s cross motion to recalculate the judgment to include interest from June 28, 2019 to May 20, 2021, the time between plaintiff’s application for judgment and the clerk’s entry of judgment.

Accordingly, the order is modified by providing that defendant’s motion is granted to the extent of tolling statutory no-fault interest from March 14, 2002 to June 27, 2019.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

Decided on December 9, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS