[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for respondents.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered October 20, 2014, which, to the extent appealed from, denied plaintiff’s motion for summary judgment against Tam Medical Supply Corp., Charles Deng Acupuncture, P.C., Action Potential Chiropractic, PLLC, Maiga Products Corporation, Pierre J. Renelique, MD, Maria Masiglia PT, and Gentlecare Ambulatory Anesthesia Services (the answering defendants), unanimously affirmed, with costs.

Plaintiff no-fault insurer moved for summary judgment declaring that its policy does not provide coverage to the individual defendant for the subject accident based on her failure to appear for scheduled examinations under oath (EUO). Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), here defendants-respondents, assignees of the defaulting individual defendant, opposed plaintiff’s summary judgment motion on the ground that plaintiff had not established that it had requested the EUO within the time frame set by the no-fault regulations (see 11 NYCRR 65-3.5 [b]). In its reply, plaintiff failed to supply evidence bearing on whether the EUO had been requested within the appropriate time frame. Accordingly, plaintiff’s motion for summary judgment was properly denied. Concur—Tom, J.P., Friedman, Sweeny, Saxe and Clark, JJ.

[*1]

Law Offices of Melissa Betancourt, P.C., New York (Melissa Betancourt of counsel), for appellant.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered January 2, 2014, which, to the extent appealed from, granted plaintiff’s motion for summary judgment on its complaint against defendant KHL Acupuncture, P.C. (KHL), and declared that KHL is not entitled to receive no-fault benefits from plaintiff, reversed, on the law, without costs, the motion denied, and the declaration vacated.

Plaintiff failed to establish prima facie that it was entitled to deny KHL’s claim because KHL’s assignor, defendant Shateahah Vance, did not appear for independent medical examinations (IMEs) (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No-Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Vance did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5 (d), which prescribes a 30-calendar-day time frame for the holding of IMEs (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; American Tr. Ins. Co. v Jorge, 2014 NY Slip Op 30720[U] [Sup Ct, NY County 2014]). For the reasons set forth in American Tr. Ins. Co. v Longevity Med. Supply, Inc. (131 AD3d 841 [1st Dept 2015] [decided simultaneously herewith]), we disagree with the dissent’s view that this issue should not be reviewed because it was raised for the first time on appeal. Concur—Acosta, Moskowitz, Richter and Kapnick, JJ.

Friedman, J.P., dissents in a memorandum as follows: I respectfully dissent from the reversal of the grant of summary judgment to plaintiff in this case for substantially the same reason I dissent from the affirmance of the denial of summary judgment to the same plaintiff in American Tr. Ins. Co. v Longevity Med. Supply, Inc. (131 AD3d 841 [1st Dept 2015] [decided simultaneously herewith]). Here, as in Longevity, defendant medical vendor raised the issue of whether the IMEs were scheduled to be held within the 30-day time frame prescribed by Insurance Department Regulations (11 NYCRR) § 65-3.5 (d) for the first time on appeal. Had the issue been raised before the motion court, plaintiff may well have been able to establish that the IMEs had been scheduled in compliance with the regulation. Moreover, in this case, it seems unfair to reverse the motion court’s granting of summary judgment to plaintiff based on an issue that was not raised in defendant’s opposition to the motion.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

The Law Office of Melissa Beatancourt, P.C., Brooklyn (Melissa Beatancourt of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered October 15, 2014, which, to the extent appealed from, denied plaintiff’s motion for summary judgment declaring that it is not obligated to provide no-fault coverage to defendant Longevity Medical Supply, Inc. in connection with the October 7, 2012 motor vehicle accident, affirmed, without costs.

Plaintiff failed to establish prima facie that it was entitled to deny defendant Longevity Medical Supply, Inc.’s claim because Longevity’s assignor, defendant Estrella, did not appear for independent medical examinations (IMEs) (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No-Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Estrella did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5 (d), which prescribes a 30-calendar-day time frame for the holding of IMEs (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; American Tr. Ins. Co. v Jorge, 2014 NY Slip Op 30720[U] [Sup Ct, NY County 2014]).

Contrary to the position taken by the dissent, the issue of whether plaintiff has failed to establish that the notices for the IMEs were timely, pursuant to 11 NYCRR 65-3.5 (d), presents a question of law which this Court can review. Unlike the dissent, we find that plaintiff was required to submit proof of the timely notice in order to make a prima facie showing of entitlement to judgment as a matter of law. Any belated attempt by plaintiff to cure this deficiency in its prima facie showing by submitting evidence for the first time in reply would have been improper (see DiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 900-901 [2d Dept 2014]; Hawthorne v City of New York, 44 AD3d 544 [2007]; Scansarole v Madison Sq. Garden, L.P., 33 AD3d 517 [1st Dept 2006]).

The dissent mistakenly posits that the majority failed to “cite a single authority for supporting [our] position” that plaintiff was required to submit proof of the timely notice for the IMEs in order to make a prima facie showing of entitlement to judgment as a matter of law. In Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, we explicitly held that “[p]laintiff satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations, and that defendants’ assignors did not appear” (82 AD3d at 560 [emphasis added]).

Likewise, the dissent points out that “the majority negates the precedential authority of Lucas.” Contrary to the dissent’s assertion, Lucas does not support its position since in Lucas, the defendant did not argue on appeal that the plaintiff failed to satisfy its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations. Here, in contrast, the issue of whether plaintiff met its burden of showing compliance with the applicable time frame was fully briefed on appeal.

Also, contrary to the dissent’s suggestion, defendant was not in the best position to determine whether plaintiff complied with the 30-day requirement. As the dissent acknowledges, the 30-day period with which the IME was supposed to be scheduled is measured from the date on which plaintiff received the prescribed verification form from defendant. Yet, no evidence in affidavit form or any other form has been submitted by plaintiff indicating the date upon which plaintiff received the verification from defendant. Thus, contrary to the dissent’s assertion, it does not “appear[ ] from the record that plaintiff in fact may well have complied with the requirement in question.”

Finally, the dissent argues that a plaintiff’s failure to comply with the 30-day time frame for the scheduling of the IME does not affect a plaintiff’s right to deny a claim for services rendered to the insured after the date of the IME for which the insured failed to appear. This contention, however, was never raised by plaintiff in its appellate brief and we therefore decline to consider it. Concur—Renwick, Moskowitz, Richter and Clark, JJ.

Friedman, J.P., dissents in a memorandum as follows: I respectfully dissent.

The point on which the majority affirms the denial of summary judgment to the plaintiff insurer—the absence of evidence as to whether the independent medical examinations (IMEs) for which the insured injured person failed to appear were scheduled within the 30-day time frame contemplated by Insurance Department Regulations (11 NYCRR) § 65-3.5 (d)—was not raised by the defendant medical vendor (Longevity) in its opposition to plaintiff’s motion for summary judgment. Rather, Longevity raised the point for the first time in its brief opposing plaintiff’s appeal. Had Longevity raised this issue in opposing the motion, plaintiff may well have been able to establish compliance with the regulation in question.

It is undisputed that plaintiff has established that it sent notices of two successive IMEs to the insured and that the insured failed to appear for either IME—a breach of a condition precedent under the policy (as set forth by the mandatory personal injury protection endorsement prescribed by 11 NYCRR 65-1.1 [d]) that ordinarily would vitiate coverage for the loss (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Notwithstanding the undisputed failure of the insured (Longevity’s assignor) to appear for the scheduled IMEs, Longevity argues—as previously noted, for the first time on appeal—that plaintiff is not entitled to summary judgment because the record does not affirmatively establish that it complied with a regulation addressing the timing of the first IME. The subject regulation, 11 NYCRR 65-3.5 (d), provides that an insurer wishing to require an IME as additional verification of a claim for motor vehicle no-fault benefits after receipt of the initial prescribed verification “shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms.”^[FN1]

In pertinent part, 11 NYCRR 65-3.5 (“Claim procedure”) provides:

“(a) Within 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS form NF-2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim.

“(b) Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms . . .

“(c) The insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.

“(d) If the additional verification required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms.”

In this case, the accident occurred on October 7, 2012; the application for benefits was submitted on or about October 29, 2012; the first IME notice was sent out on November 21, 2012 for an IME to be held on December 12, 2012; and (after the insured failed to appear for the December 12 IME) the second IME notice was sent out on December 13, 2012 for an IME to be held on January 2, 2013 (for which the insured also failed to appear). The record does not reflect when plaintiff received the “prescribed verification forms,” but those forms must have been received some time after October 29, 2012, the date of the insured’s initial application for benefits. Thus, there is no reason to assume that the scheduling of the first IME on December 12, 2012, was not within 30 days of plaintiff’s receipt of the prescribed verification forms. On the contrary, from the aforementioned dates that do appear in the record, it seems highly likely that the first IME was scheduled to be conducted within the 30-day time frame set forth in the regulation.^[FN2] If Longevity wished to oppose the summary judgment on the ground that the IMEs were not scheduled to take place within 30 days from plaintiff’s receipt of the prescribed verification forms, it should have raised the issue before the motion court, as the provider did in National Liab. & Fire Ins. Co. v Tam Med. Supply Corp. (131 AD3d 851 [1st Dept 2015]), an appeal being decided simultaneously herewith in which the panel is unanimously affirming the denial of summary judgment to the insurer. In this case, however, instead of raising the issue in opposition to plaintiff’s summary judgment motion, Longevity raised the point for the first time in its respondent’s brief opposing plaintiff’s appeal. This is what the majority refers to when it asserts that the issue was “fully briefed on appeal.”

There is particularly no reason to excuse Longevity’s failure to raise this issue in its opposition to the motion when one considers that the 30-day period within which the IME was supposed to be scheduled is measured from the date on which plaintiff received the prescribed verification form from Longevity itself (see Ops Gen Counsel NY Ins Dept No. 03-02-12 [Feb. 2003], available at www.dfs.ny.gov/insurance/ogco2003/rg030212.htm [noting that the prescribed verification form to which section 65-3.5 (d) refers is, in the case of a non-hospital healthcare provider, “NYS Form N-F 3, Verification of Treatment by Attending Physician or Other Provider of Health Service”]). Thus, Longevity itself has information from which it can determine whether the first scheduled date of the IME (December 12, 2012) was within 30 days of the approximate date of plaintiff’s receipt of the verification form that Longevity sent to it. If Longevity had reason to believe that plaintiff failed to comply with the 30-day time frame for the scheduling of the IME, Longevity should have raised that point before the motion court and should have placed the relevant supporting evidence—namely, the verification form and the date Longevity sent that form to plaintiff—in the record.

The majority ascribes to me the position that Longevity was in “the best position” to determine whether plaintiff complied with the 30-day time frame. It is not my view that Longevity was in “the best position” to make this determination, but that it had information within its possession from which it could readily have determined whether it was likely that plaintiff had complied with the requirement. While it may be true, as the majority claims, that Longevity was not in the best position to make this determination, the majority cannot escape the fact that Longevity was well positioned to make this determination. After all, Longevity knows the date on which it sent the verification form to plaintiff.

The majority sidesteps the preservation issue by asserting that plaintiff was obligated to establish compliance with the section 65-3.5 (d) time frame as part of its prima facie burden in moving for summary judgment. However, no appellate court has ever so held. For example, in American Tr. Ins. Co. v Lucas (111 AD3d 423 [1st Dept 2013]), this Court reversed and granted the insurer’s motion for summary judgment declaring noncoverage based on the insured’s failure to appear for IMEs, even though the record of that appeal does not disclose whether the IMEs had been scheduled to be conducted within section 65-3.5 (d)’s 30-day time frame.^[FN3] While this Court, in affirming summary judgment for the insurer in Unitrin, stated that the insurer had “satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations” (82 AD3d at 560), the issue of the insurer’s compliance or noncompliance with section 65-3.5 (d) was not raised in that case. Thus, Unitrin‘s reference to the “time frames set forth in the no-fault implementing regulations” as part of an insurer’s prima facie burden on a motion for summary judgment is dictum, not (as mischaracterized by the majority) a holding. Contrary to the majority’s cavalier assertion that I “mistakenly” deny that it cites any authority for its position, Unitrin‘s statement about “time frames” does not constitute authority for the majority’s position because that statement is not a holding on any issue that was actually raised in that case.

It is curious that the majority negates the precedential authority of Lucas because the issue was not raised in the briefs, but inconsistently relies on Unitrin as establishing that the proof of compliance with the 30-day IME time frame is part of the prima facie case, even though there is no mention in the record or briefs for Unitrin of the issue of compliance with the 30-day time frame. Indeed, 11 NYCRR 65-3.5 (d), the source of the 30-day time frame, is not even cited in the Unitrin briefs, and whether the 30-day time frame was complied with cannot be determined from the Unitrin record. Thus, it is rather disheartening to see the majority cite Unitrin for the novel proposition they do. In fact, Unitrin holds that the assignor’s failure to appear for an IME absolves the insurer of the obligation to comply with the time requirement for denying a claim (see 82 AD3d at 560 [the assignor’s failure to appear for an IME gave the insurer “the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued”], citing 11 NYCRR 65-3.8 [c]). Nonetheless, the majority reads Unitrin as if [*2]it holds that the insurer’s noncompliance with a time requirement for scheduling an IME absolves the assignor of the obligation to appear for the IME. In other words, the majority reads Unitrin backwards.^[FN4]

The majority does not cite a single authority supporting its position and ignores Lucas, where we denied recovery even though the insurer did not submit proof of the matters that the majority now proclaims part of the prima facie case. In my view, the 30-day time frame for scheduling an IME is analogous to a statute of limitations and, like a statute of limitations, is a matter to be pleaded and proved by the opponent of the claim—here, the insured or the insured’s assignee. The requirement that the insured person appear for an IME as a condition precedent to coverage is a key tool for “preventing fraud” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]), fraud having long been recognized as an endemic problem in the field of no-fault insurance (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861-862 [2003]). In a case where there is no dispute either as to plaintiff’s sending the insured notice of the IMEs or as to the insured’s failure to appear for them, we should not allow this anti-fraud device to be defeated based on a timing provision that was not even raised in the motion court—especially given that it appears from the record that plaintiff in fact may well have complied with the requirement in question and, as previously discussed, Longevity itself has reason to know whether plaintiff did comply.^[FN5] As previously indicated, the pertinent information was, after all, particularly within Longevity’s possession.^[FN6]

The majority may be correct in taking the position that failure to schedule an IME within the time frame set by section 65-3.5 (d) bars an insurer from denying coverage based on the insured’s failure to appear for an IME.^[FN7] In this case, however, where the issue of the timing of the IME was not raised before the motion court and the record does not establish that IMEs were not timely scheduled, plaintiff should have been granted summary judgment declaring that the insured’s coverage for this loss was voided retroactive to the date of the accident by his failure to appear for the scheduled IMEs (see Unitrin, 82 AD3d at 560; Fogel, 35 AD3d at 721-722; Ops Gen Counsel NY Ins Dept No. 03-02-12 [Feb. 2003], available at www.dfs.ny.gov/insurance/ogco2003/rg030212.htm).

Finally, even if I were to accede to the majority’s view that plaintiff was required to demonstrate compliance with the 30-day time frame for the scheduling of the IME as part of its prima facie case, I would still hold that plaintiff is entitled to partial summary judgment barring Longevity from obtaining payments for services incurred after the dates of the scheduled IMEs for which the insured failed to appear. In the above-cited opinion issued by the Office of the General Counsel of the Insurance Department (now incorporated in the Department of Financial Services), the Department responded to the following question, among others: “What is the effect [of an insured’s failure to appear for a scheduled IME] on (a) pending claims for health services rendered submitted to the insurer, [and] (b) the submission of future claims . . . ?” The Department answered, with respect to (a), that the nonappearance allows the insurer to deny “any pending claim submitted for services rendered,” and, with respect to (b), “When an eligible injured person fails to meet the condition precedent for coverage due to that person’s failure to comply with a reasonable request for a medical examination, the breach of that policy condition obviates the obligation of the No-Fault insurer to provide coverage for any future claims for health services arising from the same accident provided to that person by any health provider.”

The Department’s bifurcation of the issue between benefits for past and future treatment suggests a way to harmonize the 30-day time frame of section 65-3.5 (d) with the previously noted provision of the mandatory personal injury endorsement requiring the insured person to “submit to medical examination . . . when, and as often as, the Company may reasonably require” (see 11 NYCRR 65-1.1 [d] [I] [Conditions]). If the insurer fails to comply with the 30-day time frame in scheduling the IME, it may lose the right to deny a claim for services rendered to the insured before the date of the IME for which the insured failed to appear.^[FN8] However, given that the insured’s failure to appear for an IME “when, and as often as, the [insurer] may reasonably require” is a breach of a condition precedent to coverage, whether or not the insurer has complied with the 30-day time frame, the breach of the condition should entitle the insurer to deny claims for treatment rendered to the insured after the date of the IME for which the insured failed to appear. Accordingly, even under the majority’s view of the law, we should modify to grant plaintiff partial summary judgment declaring it entitled to deny claims for any services rendered to the insured after the dates of the scheduled IMEs for which he failed to appear.^[FN9]

Footnotes

Footnote 1:The phrase “prescribed verification forms” apparently refers to certain of the forms enumerated in the preceding section, 11 NYCRR 65-3.4, and set forth in Appendix 13 to the Insurance Department regulations (specifically, forms NF-3, NF-4, NF-5, NF-6 and NF-7).

Footnote 2:Similarly, there is no reason to assume that the first IME notice, dated November 21, 2012 (23 days after October 29, 2012, the date of the initial application for benefits), was not sent out “within 15 business days of [plaintiff’s] receipt of the prescribed verification forms” (11 NYCRR 65-3.5 [b]).

Footnote 3:If the majority is correct that establishing compliance with the 30-day time frame for scheduling the initial IME is part of the insurer’s prima facie burden in moving for summary judgment, the motion court’s denial of summary judgment to the insurer in Lucas was correct and, contrary to the majority’s contention, should not have been reversed on appeal simply because the respondent assignee medical vendor failed to raise the point in its brief opposing the appeal.

Footnote 4:Also misplaced is the majority’s reliance on Interboro Ins. Co. v Perez (112 AD3d 483 [1st Dept 2013]), in which we affirmed an order denying the plaintiff insurer’s motion for a default judgment and compelling it to accept late answers. It appears from the briefs on which Interboro was decided that the parties disputed whether the insurer had established that it had sent notices for examinations under oath to the assignor, not whether such notices had been timely sent.

Footnote 5:The majority baselessly disputes my statement above that “plaintiff in fact may well have complied with the requirement in question.” As previously noted, from the dates that do appear in the record—the date of the initial application for benefits (October 29, 2012) and the date of the notice (November 21, 2012) that the first IME would be held on December 12, 2012—there is no reason to assume that the first IME on December 12 was not scheduled within 30 days of plaintiff’s receipt of the prescribed verification form from Longevity. In this regard, plaintiff’s receipt of the completed verification form must have occurred long enough after October 29 for Longevity to have received the form from plaintiff and then for the completed form to arrive from Longevity at plaintiff’s office.

Footnote 6:The majority’s assertion that it would have been “improper” for plaintiff to establish compliance with section 65-3.5 (d) in its reply papers in the motion court, had Longevity raised the issue in its opposition, assumes the matter in dispute, namely, whether the demonstration of such compliance was an element of the prima facie showing necessary for summary judgment. Again, the majority cites no authority supporting its position on this issue.

Footnote 7: I note that section 65-3.5 (d), ostensibly requiring that an IME be scheduled to be held within 30 days of the insurer’s receipt of the prescribed verification forms, is in tension with the mandatory personal injury protection endorsement prescribed by 11 NYCRR 65-1.1 (d) (I) (Conditions), which provides: “The eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require” (emphasis added).

Footnote 8:Again, in this case, there is no reason to believe that plaintiff failed to comply with the 30-day time frame in scheduling the IME, although plaintiff did not present evidence establishing that it did comply with the time frame.

Footnote 9:The effect of plaintiff’s establishing the insured’s failure to appear for the IME’s, but failing to establish its compliance with the 30-day time frame for scheduling the first IME, is a pure question of law arising from the record. Accordingly, we may consider it even though the parties have not addressed it in their briefs. The majority can hardly fault plaintiff for not making an alternative request for partial summary judgment in its brief, considering that the majority’s decision turns on an issue that was never even mentioned in Supreme Court.

[*1] (September 15, 2015)

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for appellant.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered April 7, 2014, to the extent appealed from as limited by the briefs, which granted plaintiff’s motion for summary judgment against defendant Sky Acupuncture, P.C., and declared that defendant Sky Acupuncture, P.C. is not entitled to no-fault insurance coverage for the subject motor vehicle accident, unanimously reversed, on the law, without costs, and the declaration vacated.

Plaintiff failed to establish prima facie that it was entitled to deny defendant Sky Acupuncture’s claim because Sky’s assignor, defendant Clark, did not appear for independent medical examinations (IMEs) (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No-Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Clark did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5 (d), which prescribes a 30-calendar-day time frame for the holding of IMEs (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; American Tr. Ins. Co. v Jorge, 2014 NY Slip Op 30720[U] [Sup Ct, NY County 2014]). Concur—Gonzalez, P.J., Acosta, Moskowitz, Richter and Feinman, JJ.

[*1]

Second Department, July 29, 2015

APPEARANCES OF COUNSEL

D’Amato & Lynch, LLP, New York City (Robert D. Lang, David A. Boyar, and Roy T. Caplinger of counsel), for appellant.

Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville (Leonard Porcelli of counsel), for respondent.

In the fall of 2006, a taxi insured by the petitioner was involved in a collision with a horse. The rider of the horse was seriously injured, and the petitioner paid him nearly $60,000 in no-fault benefits. The petitioner then sought reimbursement of the no-fault benefits that it had paid to the rider by filing a demand for mandatory arbitration against the respondent, American Bankers Insurance Company of Florida (hereinafter{**132 AD3d at 42} American Bankers), the carrier that provided commercial liability coverage to the stables where the horse was boarded. The arbitrator denied the petitioner’s claim, finding, in essence, that the petitioner could not recoup payment from American Bankers because American Bankers was not a motor vehicle insurer subject to the mandatory arbitration provisions of Insurance Law § 5105 and its implementing regulations. We conclude that the arbitrator had the authority to determine this threshold issue, and that the determination had a rational basis.

The facts underlying the commencement of this proceeding are not in dispute. On October 8, 2006, Jared Johnson was riding a horse named Romeo on a path alongside of North Conduit Avenue in Queens when Romeo suddenly bolted into the roadway, and collided with a taxi owned and operated by Parjit Singh. Johnson was thrown from the horse, and suffered serious injuries, including skull fractures and a broken leg. On the date of the accident, Singh’s taxi was insured by the petitioner, Fiduciary Insurance Company. Johnson filed a claim with the petitioner seeking to recover first-party benefits, more commonly known as “no-fault” benefits, under Insurance Law § 5103. The petitioner ultimately paid Johnson a total of $59,906.97 in no-fault benefits.

Romeo was owned by Julius Stanton, who had no insurance coverage in effect for the horse on the date of the accident. Stanton boarded Romeo at Cedar Lane Stables (hereinafter Cedar Lane), a facility owned by the City of New York, and licensed to the Federation of Black Cowboys, [*2]Inc. (hereinafter the Cowboys). Cedar Lane and the Cowboys (hereinafter together the insureds) were insured by American Bankers under a commercial liability policy that provided no-fault coverage only for accidents arising from the use of “mobile equipment,” a category that includes various types of machinery not generally used for travel on public roads. More specifically, the policy afforded supplemental coverage to the insureds for “all sums for which an insured is legally liable for bodily injury or property damages resulting” from its mobile equipment, including no-fault insurance coverage required by any insurance law. The subject accident, however, did not involve mobile equipment owned by the insureds, but, rather, a horse that the insureds merely boarded at their stables.

Following the accident, Johnson commenced an action to recover damages for personal injuries against several parties{**132 AD3d at 43} including the City, the Cowboys, and Singh. In an order dated November 30, 2009, the Supreme Court awarded summary judgment to the City, the Cowboys, and Singh dismissing the complaint insofar as asserted against them, based upon the doctrine of primary assumption of risk.

On October 19, 2012, nearly two years after Johnson’s action was dismissed against the insureds, the petitioner sought reimbursement of the no-fault benefits that it had paid him by filing a demand for mandatory arbitration against American Bankers pursuant to Insurance Law § 5105. That statute allows an insurer that has paid no-fault benefits to obtain mandatory arbitration to recoup its loss from the insurer of the party actually at fault for the accident.^[FN*] In its arbitration demand, the petitioner asserted that its insured, Singh, was not at fault for the accident because he had done nothing to cause the horse to “attack” his taxi, and that the insureds had negligently created “an extremely hazardous situation” by permitting the horse to travel upon “a riding path so close to a roadway without any barricade.” American Bankers did not file a response to the demand or otherwise participate in the arbitration.

In an award dated December 12, 2012, the arbitrator ruled that the petitioner could not obtain reimbursement from American Bankers because it had “failed to provide substantiation that [American Bankers] is [a] motor vehicle insurer that could be held liable under Section 5105 of Insurance Law.” The arbitrator added that, therefore, “[t]he proper forum would have been litigation.”

About three months later, on March 11, 2013, the petitioner commenced the instant proceeding pursuant to CPLR 7511 (b) to vacate the arbitration award, contending that the arbitrator erred in sua sponte raising an affirmative defense on behalf of American Bankers, which had elected not to appear in the arbitration proceeding. The petitioner further argued that, in any event, American Bankers was an insurer subject to mandatory arbitration of claims against it arising from an accident involving a motor vehicle for hire.

In opposition to the petition, American Bankers asserted that the arbitrator’s determination had a rational basis, and{**132 AD3d at 44} cross-petitioned pursuant to CPLR 7511 (e) to confirm the award.

In the order appealed from, the Supreme Court denied the petition to vacate the arbitration award, granted the cross petition, and confirmed the award. The court began its analysis by noting that

“[t]here are two types of no-fault disputes between insurers that are subject to mandatory arbitration: loss transfer and priority of payment (see Insurance Law § 5105; 11 NYCRR 65-3.12; 11 NYCRR 65-4.11). The arbitration procedures established pursuant to section 5105 of the Insurance Law apply to disputes over priority of payment among insurers who are liable for the payment of first-party benefits (see Insurance Law § 5105 [a] [b]; 11 NYCRR [65-]3.12 [b]).”

The court then rejected the petitioner’s argument that the arbitrator had improperly raised and disposed of an affirmative defense by determining that American Bankers was not a motor vehicle insurer liable for the payment of no-fault benefits. Rather, the arbitrator’s determination was that [*3]the petitioner had failed to meet “a threshold part” of its “required showing as the applicant seeking reimbursement under Insurance Law § 5105 and 11 NYCRR [65-]3.12 (b)” that American Bankers was an “insurer” within the meaning of the applicable statute and regulations and, thus, subject to mandatory arbitration of another insurance carrier’s claims against it.

[1] Contrary to the petitioner’s contention, the arbitrator had the authority to rule on the issue of whether the controversy was subject to mandatory arbitration under Insurance Law § 5105 and its implementing regulations. An arbitrator’s authority generally “extends to only those issues that are actually presented by the parties” (Matter of Joan Hansen & Co., Inc. v Everlast World’s Boxing Headquarters Corp., 13 NY3d 168, 173 [2009]). Therefore, an arbitrator is precluded from identifying and considering an affirmative defense that is not pleaded by a party to the arbitration. Here, however, the issue before the arbitrator cannot be characterized as an affirmative defense, such as lack of coverage (see New York Cent. Mut. Fire Ins. Co. v Amica Mut. Ins. Co., 162 AD2d 1009 [1990]). Nor was the issue whether the petitioner satisfied a condition precedent to recovery in a loss-transfer proceeding (see Matter of Allstate Ins. Co. v New York Petroleum Assn. Compensation {**132 AD3d at 45}Trust, 104 AD3d 682 [2013]). Rather, the issue before the arbitrator was the threshold issue of whether American Bankers was an “insurer” subject to the mandatory arbitration procedures of Insurance Law § 5105 and 11 NYCRR 65-3.12 (b) (see Hunter v OOIDA Risk Retention Group, Inc., 79 AD3d 1, 9 [2010]). Furthermore, the fact that American Bankers elected not to participate in the arbitration did not divest the arbitrator of the authority to determine, in the first instance, whether American Bankers was an “insurer” within the meaning of the subject statute and regulation. An arbitrator may hear and determine a controversy upon the evidence produced, notwithstanding the failure of a party to appear (see CPLR 7506 [c]; Matter of Whale Sec. Co. [Godfrey], 271 AD2d 226, 227 [2000]), and since American Bankers did not appear at the arbitration, it did not affirmatively waive the issue of whether it was an “insurer” subject to arbitration by participating in the arbitration and raising other issues to the exclusion of that issue (cf. Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 78 [2003]; Matter of Emerald Claims Mgt. for Ullico Cas. Ins. Co. v A. Cent. Ins. Co., 121 AD3d 481, 482-483 [2014]; Matter of Nelson v Queens Surface Corp., 283 AD2d 577 [2001]).

As noted by the Court of Appeals, a party may not be bound to arbitrate a dispute by mere inaction (see Matter of Commerce & Indus. Ins. Co. v Nester, 90 NY2d 255, 262 [1997]). Therefore, American Bankers’ failure to move to stay arbitration pursuant to CPLR 7503 did not render this dispute arbitrable, where, as here, no agreement to arbitrate was ever made (see id.; Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264, 267 [1982]; Matter of Allstate Ins. Co. v Marke, 121 AD3d 1107 [2014]), and where, as will be discussed, American Bankers was not an insurer subject to the statutory requirement to submit to mandatory arbitration.

[2] Turning to the merits, in this proceeding pursuant to CPLR article 75 to vacate the arbitrator’s award, our judicial review is limited. Since the petitioner sought arbitration pursuant to the mandatory arbitration provision of Insurance Law § 5105, the award may be considered to be one arising from a statutory obligation to arbitrate, notwithstanding the arbitrator’s ultimate determination that American Bankers was not subject to arbitration. Thus, we treat the award as one rendered after compulsory arbitration, and give the petitioner the benefit of affording “closer judicial scrutiny of the arbitrator’s {**132 AD3d at 46}determination under CPLR 7511 (b)” than would be warranted in reviewing an award made after a consensual arbitration (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Public Serv. Mut. Ins. Co. v Fiduciary Ins. Co. of Am., 123 AD3d 933, 934 [2014]; Matter of Philadelphia Ins. Co. [Utica Natl. Ins. Group], 97 AD3d 1153 [2012]). “To be upheld, an award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223 [citations omitted]; see Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23 NY3d 251, 261 [2014]; Matter of Public Serv. Mut. Ins. Co. v Fiduciary Ins. Co. of Am., 123 AD3d 933, 934 [2014]; Matter of State Farm Mut. Auto. Ins. Co. v City of Yonkers, 21 AD3d 1110, 1111 [2005]). Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether “any reasonable hypothesis can be found to support the questioned interpretation” (Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]; see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 224; Matter of Scottsdale Ins. Co. v Motor Veh. Acc. Indem. Corp., 107 AD3d 1003, 1003-1004 [2013]; Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005]; Matter of Hanover Ins. Co. v State Farm [*4]Mut. Auto. Ins. Co., 226 AD2d 533, 534 [1996]; Matter of Empire Mut. Ins. Co. v Jones, 151 AD2d 754 [1989]; Massapequa Gen. Hosp. v Travelers Ins. Co., 104 AD2d 638, 640 [1984]). Keeping our limited scope of judicial review in mind, and upon an application of the relevant law, we conclude that the Supreme Court properly determined that the arbitrator’s award was supported by a “reasonable hypothesis” and was not arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 224; Matter of Progressive N. Ins. Co. v Sentry Ins. A Mut. Co., 51 AD3d 800, 802 [2008]; Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d at 763).

At issue here is the applicability to this controversy of certain provisions of the Comprehensive Automobile Insurance Reparations Act (see L 1973, ch 13), commonly known as the No-Fault Law. Pursuant to the No-Fault Law, every automobile owner must carry automobile insurance covering “basic economic loss” resulting from the use or operation of the vehicle in New York State (Insurance Law § 5102 [a]; see Pommells v Perez, 4 NY3d {**132 AD3d at 47}566, 570-571 [2005]). The No-Fault Law is “aimed at ensuring ‘prompt compensation for losses incurred by accident victims without regard to fault or negligence’ ” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 504-505 [2015], quoting Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]), and alleviating unnecessary burdens on the courts by limiting litigation with respect to such claims (see Pommells v Perez, 4 NY3d at 570-571).

As relevant to this appeal, in certain limited circumstances an insurance carrier that has paid first-party no-fault benefits to an accident victim is afforded the remedy of mandatory intercompany arbitration to recoup those benefits, through a “loss transfer,” from the insurer of the party at fault for the accident (see Insurance Law § 5105; Matter of Emerald Claims Mgt. for Ullico Cas. Ins. Co. v A. Cent. Ins. Co., 121 AD3d at 482; Matter of Progressive Northeastern Ins. Co. [New York State Ins. Fund], 56 AD3d 1111, 1112 [2008]; Matter of State Farm Mut. Auto. Ins. Co. v City of Yonkers, 21 AD3d at 1111). “The No-Fault Automobile Insurance Law defines ‘first party benefits’ as ‘payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle’ ” (Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 18 [1994], quoting Insurance Law § 5102 [b]). “Basic economic loss” includes necessary expenses incurred by an accident victim for medical treatment, and lost wages (Insurance Law § 5102 [a] [1] [i]; [2]).

Insurance Law § 5105 states, in pertinent part:

“(a) Any insurer liable for the payment of first party benefits to or on behalf of a covered person and any compensation provider paying benefits in lieu of first party benefits . . . has the right to recover the amount paid from the insurer of any other covered person to the extent that such other covered person would have been liable, but for the provisions of this article, to pay damages in an action at law. In any case, the right to recover exists only if at least one of the motor vehicles involved is a motor vehicle weighing more than six thousand five hundred pounds unloaded or is a motor vehicle used principally for the transportation of persons or property for hire. . . .

“(b) The sole remedy of any insurer or compensation provider to recover on a claim arising pursuant to subsection (a) hereof, shall be the submission of the controversy to mandatory arbitration pursuant to procedures promulgated or approved by the superintendent.”

In 1977, the statute was amended to its present form, which restricts recovery to accidents involving vehicles for hire or vehicles weighing more than 6,500 pounds (see Hunter v OOIDA Risk Retention Group, Inc., 79 AD3d at 10). The scope of recovery was restricted by the 1977 amendment to address concerns that intercompany loss-transfer arbitration proceedings “contribute to overhead costs and delays under the no-fault system and are inconsistent with the basic objective of the no-fault system, which is to eliminate costly investigations and factual determinations concerning fault” (Governor’s Program Bill Mem at 7-8, Bill Jacket, L 1977, ch 892; see Hunter v OOIDA Risk Retention Group, Inc., 79 AD3d at 10).

Insurance Law § 5105 serves to mitigate the effect of placing the entire burden “of loss on the first-party insurer, even where its insured was not at fault” (Hunter v OOIDA Risk Retention Group, Inc., 79 AD3d at 9), and allows insurers to recover from each other the first-party [*5]no-fault benefits paid to their insureds, allocated on the basis of their relative fault (see id.; Matter of City of Syracuse v Utica Mut. Ins. Co., 61 NY2d 691, 693 [1984]). Since, generally, where a vehicle for hire is involved in an underlying accident, “mandatory arbitration is the sole remedy regarding disputes between insurers over responsibility for payment of first-party benefits,” no action at law lies in such a situation to adjudicate a dispute between insurers over liability for first-party no-fault benefits (State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d 976, 977 [1989]; see Matter of Philadelphia Ins. Co. [Utica Natl. Ins. Group], 97 AD3d 1153, 1157-1158 [2012]), or disputes over priority of payment of first-party benefits (see Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]).

The term “insurer” is defined in Insurance Law article 51 as an “insurance company or self-insurer, as the case may be, which provides the financial security required by article six or eight of the vehicle and traffic law” (Insurance Law § 5102 [g] [emphasis added]). In addition, the regulations implementing the No-Fault Law state that they apply to “mandatory arbitration of controversies between insurers, pursuant to the provisions{**132 AD3d at 49} of section 5105 of the Insurance Law, and shall apply to insurers, self-insurers and compensation providers” (11 NYCRR 65-4.11 [a] [1]). Insurers are defined in those regulations as both insurers and self-insurers “as those terms are defined in . . . Part [65 of Title 11 of the NYCRR] and article 51 of the Insurance Law; the Motor Vehicle Accident Indemnification Corporation (MVAIC); any company providing insurance pursuant to section 5103 (g) of the Insurance Law; and compensation providers as defined in section 5102 (1) of the Insurance Law” (11 NYCRR 65-4.11 [a] [1]).

Insurance Law § 5105 (b), which provides that the “sole remedy of any insurer or compensation provider to recover” first-party benefits on a no-fault claim “shall be the submission of the controversy to mandatory arbitration” (see Eagle Ins. Co. v ELRAC, Inc., 291 AD2d 272, 273 [2002]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d at 456), is binding only upon insurers or self-insurers, “as those terms are defined in . . . Part [65 of Title 11 of the NYCRR] and article 51 of the Insurance Law” (11 NYCRR 65-4.1; see 65-4.11 [a] [1], [5]), and not to insurance carriers which do not meet those definitions (see Aetna Health Plans v Hanover Ins. Co., 116 AD3d 538 [2014], lv granted 24 NY3d 912 [2015]). Thus, not all insurance carriers that insure those actually involved in an accident are subject to the mandatory arbitration provisions of Insurance Law § 5105 (b) and its implementing regulations. Furthermore, these provisions do “not apply where New York’s no-fault insurance law does not prevent the tortfeasor from being held liable to pay damages in an action at law” (Hunter v OOIDA Risk Retention Group, Inc., 79 AD3d at 12).

Here, the American Bankers’ policy did not provide no-fault insurance coverage for the type of accident underlying this dispute. Moreover, American Bankers did not insure a person, vehicle, or animal involved in the underlying accident, but only the stables at which the animal was boarded. Accordingly, American Bankers cannot be deemed to be an “insurer” as that term is defined by Insurance Law article 51 and the pertinent regulations.

Moreover, Insurance Law § 5105 does not apply here because New York’s No-Fault Law would not preclude American Bankers’ insureds from being held liable to pay damages in an action at law. The decision of this Court in Matter of Purex Indus. v Nationwide Mut. Ins. Co. (110 AD2d 67 [1985]) does not support a contrary result. In that case, this Court ruled that the{**132 AD3d at 50} petitioner was “the self-insured owner of the vehicle involved in the accident” (id. at 69) and, thus, satisfied the statutory definition of an “insurer” that is “subject to mandatory arbitration for adjusting the payment of no-fault benefits between insurers” (id. at 68), since, “[b]ut for the No-Fault Law, petitioner would be liable as an ‘insurer’ to [the respondent’s] insured in an action at law” (id. at 70). Here, on the other hand, the No-Fault Law would not preclude American Bankers’ insureds from being held liable in an action at law (see Hunter v OOIDA Risk Retention Group, Inc., 79 AD3d at 12).

Since American Bankers did not meet the definition of insurer or self-insurer under the No-Fault Law and the regulations promulgated thereunder (see Matter of Purex Indus. v Nationwide Mut. Ins. Co., 110 AD2d at 68-70), the determination of the arbitrator that the claims against it were not subject to compulsory arbitration was supported by a reasonable hypothesis. Accordingly, the Supreme Court properly denied the petition to vacate the arbitrator’s award, and properly granted the cross petition to confirm the award.

The order is affirmed.

Skelos, J.P., Dickerson and Miller, JJ., concur.

Ordered that the order is affirmed, with costs.

Footnotes

Footnote *:However, Insurance Law § 5105 only permits recoupment of no-fault benefits for accidents involving vehicles for hire, such as the taxi insured by the petitioner in this case, or vehicles weighing more than 6,500 pounds, such as trucks.

[*1]

The Rybak Firm, PLLC, Brooklyn, N.Y. (Damin J. Toell of counsel), for appellants.

McCormack & Mattei, P.C., Garden City, N.Y. (Rosemary E. Ross and Nicole Holler of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to pay certain no-fault claims submitted to it by the defendants, the defendants Active Care Medical Supply Corp. and Ultimate Health Products, Inc., appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Phelan, J.), entered October 21, 2013, as, upon an order of the same court entered August 7, 2013, among other things, granting those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against them, is in favor of the plaintiff and against them declaring that the plaintiff has no duty to provide coverage to them and that the policy issued by the plaintiff to the defendant Linwood Bates III is null and void with respect to them.

Ordered that the judgment is reversed insofar as appealed from, on the law, those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Active Care Medical Supply Corp. and Ultimate Health Products, Inc., are denied, the order is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

The plaintiff commenced this action for a judgment declaring, inter alia, that it is not obligated to pay no-fault claims submitted to it by the defendants Active Care Medical Supply Corp. and Ultimate Health Products, Inc. (hereinafter together the appellants), in connection with three automobile collisions involving an automobile owned by the defendant Linwood Bates III (hereinafter Bates) and insured by the plaintiff. The plaintiff moved for summary judgment on the complaint, arguing, among other things, that it is not required to pay no-fault claims to certain medical providers in connection with the three collisions on the ground that the collisions were intentional and staged in furtherance of a fraud scheme. The Supreme Court granted the plaintiff’s motion.

“[A]n intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance” (Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2006]; see Matter of Liberty Mut. Ins. Co. v Young, 124 AD3d 663, 664 [2015]).

[*2] In support of its motion for summary judgment on the complaint, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law. The plaintiff asserted that several defendants failed to attend their scheduled depositions, which was purportedly a breach of Bates’s insurance contract with the plaintiff. The plaintiff, however, failed to submit evidence from someone with personal knowledge of the mailings of the deposition requests (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547-548 [2006]; cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]). In addition, the uncertified police accident reports submitted by the plaintiff were not admissible (see Adobea v Junel, 114 AD3d 818, 820 [2014]; Cheul Soo Kang v Violante, 60 AD3d 991 [2009]; Gagliano v Vaccaro, 97 AD2d 430, 431 [1983]). Further, the unsigned and unsworn deposition transcript of the defendant Miguel Ortiz was inadmissible (see CPLR 3116; Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 51 [2014]; McDonald v Mauss, 38 AD3d 727, 728 [2007]). The plaintiff submitted an affidavit of its investigator, but the investigator relied, mostly, on inadmissible evidence, and lacked personal knowledge of the facts surrounding the three collisions. Accordingly, the plaintiff failed to establish, prima facie, through admissible evidence, that the subject collisions were deliberately caused to fraudulently obtain insurance benefits (cf. State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 491 [2003]).

Since the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against the appellants, and we need not consider the sufficiency of the appellants’ opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The appellants’ remaining contentions have been rendered academic in light of our determination. Skelos, J.P., Dillon, Duffy and LaSalle, JJ., concur.

[*1]

Khavinson & Associates, P.C., Brooklyn, N.Y. (Thomas T. Kranidas of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for respondent.

In an action, in effect, pursuant to Insurance Law § 5106 (c) for a de novo determination of a claim for no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated October 30, 2013, which granted the defendant’s motion pursuant to CPLR 3211 (a) (2) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction. The complaint, in effect, sought a de novo determination of the plaintiff’s no-fault claim pursuant to Insurance Law § 5106 (c). “The statute permits an insurer or a claimant to institute a court action to adjudicate the dispute de novo where the master arbitrator’s award is $5,000 or greater” (Green v Liberty Mut. Ins. Co. Trust, 16 AD3d 457, 457 [2005]). Here, the master arbitrator, by vacating the arbitrator’s award in its entirety, effectively made no monetary award, and, because the master arbitrator’s award was less than $5,000, neither party is entitled to maintain a court action to adjudicate the dispute de novo (see id.; General Acc. Fire & Life Ins. Co. v Avlonitis, 156 AD2d 424, 424 [1989]; Matter of Sansiviero v Royal Globe Ins. Co., 109 AD2d 840, 842 [1985]). Skelos, J.P., Balkin, Chambers and Miller, JJ., concur.

[*1]

Burke, Gordon, Conway & Loccisano, White Plains (Philip J. Dillon of counsel), for appellants.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered September 4, 2014, which, to the extent appealed from, denied plaintiffs’ motion for a default judgment seeking a declaration that they were not obligated to pay defendant for the submitted claims at issue, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiffs are not obligated to pay defendant for the claims at issue.

Plaintiffs are no-fault automobile insurers in New York State. Defendant is a provider of durable medical equipment in New York City. Defendant provides such equipment to claimants under plaintiffs’ policies. Plaintiffs came to suspect that defendant was over-billing them for the equipment. Accordingly, as was their right under the policy and the relevant regulations (11 NYCRR 65-1.1 et seq.), plaintiffs requested an examination under oath (EUO) of defendant in order to verify the billings.

Defendant never appeared for the scheduled EUOs. Plaintiffs then commenced this declaratory judgment action. Defendant never answered or appeared. Plaintiffs then moved for a default judgment. Defendant failed to oppose the motion. The IAS court denied plaintiffs’ motion for a default judgment, concluding that plaintiffs had not submitted sufficient proof of mailing the letters notifying defendant of the scheduled EUOs. We note that defendant has not submitted opposition to the instant appeal.

We reverse. The affirmation of plaintiffs’ counsel submitted in support of plaintiffs’ motion for default clearly set forth the mailing procedures to defendant. Indeed, counsel represented, under penalty of perjury, that he personally verified the mailing process for every EUO letter sent. This was adequate proof that the EUO letters were mailed to defendant (see e.g. Olmeur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Concur—Tom, J.P., Andrias, Feinman, Gische and Kapnick, JJ.

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for plaintiff-appellant.

Appeal from an order and judgment (one paper) of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered April 24, 2014. The order and judgment, among other things, denied that part of plaintiff’s motion for leave to enter a default judgment against defendants Bushra Naz, Cliffside Park Imaging & Diagnostic Center and Kimba Medical Supply, LLC.

It is hereby ordered that the order and judgment so appealed from is unanimously modified on the law by granting that part of the motion for leave to enter a default judgment against defendant Cliffside Park Imaging & Diagnostic Center and as modified the order and judgment is affirmed without costs.

Memorandum: Plaintiff appeals from an order and judgment that, inter alia, denied its motion pursuant to CPLR 3215 for leave to enter a default judgment against defendants Bushra Naz, Cliffside Park Imaging & Diagnostic Center (Cliffside), and Kimba Medical Supply, LLC (Kimba). Defendants Naz and Fatima Tahir made claims for no-fault benefits arising from injuries they allegedly sustained in an automobile accident covered by an insurance policy issued to plaintiff’s policyholder. Naz and Tahir assigned their rights to collect no-fault benefits to certain medical providers, including Cliffside and Kimba, each of which made claims for services rendered to Naz and Tahir as a result of the alleged accident. Plaintiff disclaimed coverage based on the failure of Naz and Tahir to provide timely written notice of the accident pursuant to the insurance policy, and thereafter commenced this action seeking a declaration that there is no coverage. Plaintiff subsequently moved for leave to enter a default judgment against each defendant on the ground that the summons and verified complaint had been properly served and defendants did not timely serve an answer or otherwise appear in the action. Supreme Court denied the motion with respect to Naz, Cliffside, and Kimba, and otherwise granted the motion.

“On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party’s default in answering or appearing” (Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651 [2011]; see CPLR 3215 [f]). Here, plaintiff submitted sufficient proof of the facts constituting its claim through the affidavit of a claims representative establishing that Tahir and Naz failed to satisfy the notice requirement of the insurance policy, which constitutes a failure to comply with a condition precedent and vitiates the contract as a matter of law (see generally New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592-593 [2011]; Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]; Matter of Progressive Northeastern Ins. Co. [Heath], 41 AD3d 1321, 1322 [2007]). Plaintiff also submitted proof of default in the form of “an affirmation from its attorney regarding . . . defendant[s’] default in appearing and answering” (599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726, 726 [2006]).

[*2] We further conclude, however, that plaintiff submitted sufficient proof of service of process, the remaining required element of proof, only with respect to Cliffside, a corporation, and thus the court erred in denying plaintiff’s motion to that extent. We therefore modify the order and judgment accordingly. Pursuant to CPLR 311 (a), “personal service on a corporation may be accomplished by, inter alia, delivering the summons ‘to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service’ ” (Rosario v NES Med. Servs. of N.Y., P.C., 105 AD3d 831, 832 [2013]). Here, “[t]he process server’s affidavit, which stated that the corporate defendant was personally served by delivering a copy of the summons and complaint to its ‘[authorized] agent’ and provided a description of that person, constituted prima facie evidence of proper service pursuant to CPLR 311 (a) (1)” (McIntyre v Emanuel Church of God In Christ, Inc., 37 AD3d 562, 562 [2007]; see Miterko v Peaslee, 80 AD3d 736, 737 [2011]; see generally Halas v Dick’s Sporting Goods, 105 AD3d 1411, 1413-1414 [2013]).

Contrary to plaintiff’s contention, the court properly denied its motion with respect to Naz, who was allegedly served by the “nail and mail” method of service. CPLR 308 (4) allows that method of service only “when service pursuant to CPLR 308 (1) and (2) cannot be made with due diligence” (Austin v Tri-County Mem. Hosp., 39 AD3d 1223, 1224 [2007]) and, although a process server’s affidavit of service ordinarily constitutes prima facie evidence of proper service, here the process server’s affidavit submitted by plaintiff fails to demonstrate the requisite due diligence (see D’Alesandro v Many, 137 AD2d 484, 484 [1988]; see generally Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d 929, 929-930 [2008]). The affidavit failed to indicate whether there was an attempt to effectuate service at Naz’s actual “dwelling place or usual place of abode” (CPLR 308 [4]), and there is no indication that the process server made genuine inquiries to ascertain Naz’s actual residence or place of employment (see Prudence v Wright, 94 AD3d 1073, 1074 [2012]; Earle v Valente, 302 AD2d 353, 353-354 [2003]).

We also reject plaintiff’s contention that the court erred in denying its motion with respect to Kimba, a limited liability company. Plaintiff alleged that Kimba was served pursuant to Limited Liability Company Law § 304. That statute is substantively identical to Business Corporation Law § 307, and both statutes apply to foreign business entities not authorized to do business in New York. We conclude that, just as strict compliance with the procedures set forth in Business Corporation Law § 307 is required pursuant to Flick v Stewart-Warner Corp. (76 NY2d 50, 54-55, 57 [1990], rearg denied 76 NY2d 846 [1990]), strict compliance is likewise required for the procedures set forth in Limited Liability Company Law § 304 (see Elzofri v American Express Co., 29 Misc 3d 898, 901 [2010]). Here, plaintiff failed to establish that it strictly complied with the filing requirements of Limited Liability Company Law § 304 (e). Present—Smith, J.P., Peradotto, Carni, Valentino and Whalen, JJ.

[*1]

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellants.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for respondent.

Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered July 12, 2013, which, to the extent appealed from, declared that defendants-appellants were not entitled to no-fault benefits as a result of a motor vehicle accident due to the claimant’s failure to appear for scheduled examinations under oath (EUO), unanimously reversed, on the law, without costs, the underlying motion for summary judgment denied, and the judgment vacated.

The reason for the EUO request is a fact essential to justify opposition to plaintiff’s summary judgment motion (see American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup Ct, NY County 2013]), and such fact is exclusively within the knowledge and control of the movant. Further discovery on plaintiff’s handling of the claim so as to determine whether, inter alia, the EUOs were timely and properly requested is also essential to justify opposition. Concur—Mazzarelli, J.P., Renwick, Manzanet-Daniels and Clark, JJ.