[*1]

Hollander Legal Group, P.C., Melville, NY (Allan S. Hollander and Brian Kaufman of counsel), for appellant-respondent.

The Wright Firm, LLC, Rochester, NY (Ronald F. Wright of counsel), for respondent-appellant.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, the plaintiff appeals, and the defendant cross-appeals, from an order of the Supreme Court, Nassau County (Steven M. Jaeger, J.), dated October 8, 2020. The order, insofar as appealed from, denied the plaintiff’s motion for leave to enter a default judgment against the defendant. The order, insofar as cross-appealed from, denied the defendant’s motion to change venue of the action to Monroe County based upon the convenience of material witnesses.

Ordered that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, and the plaintiff’s motion for leave to enter a default judgment against the defendant is granted; and it is further,

Ordered that the cross appeal is dismissed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The plaintiff, a no-fault insurance carrier, denied claims for reimbursement for medical treatment submitted by the defendant, a medical provider. Subsequently, the defendant commenced arbitration and was awarded the sum of $10,029.73. The plaintiff sought review of the award and the award was confirmed by a master arbitrator. The plaintiff thereafter commenced this action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, in Nassau County, premised on the location of its headquarters and principal place of business. In the complaint, the plaintiff asserted that the defendant was not entitled to reimbursement as the services provided by the defendant were not medically necessary and were not related to the subject motor vehicle accident.

The plaintiff moved for leave to enter a default judgment against the defendant based upon the defendant’s failure to timely answer the complaint or appear in this action. The defendant failed to oppose the motion. Almost two months later, the defendant moved to change venue of the action to Monroe County pursuant to CPLR 510 (3), based upon the convenience of material witnesses. The plaintiff opposed the motion, contending that it was untimely and unsupported on [*2]the merits. In an order dated October 8, 2020, the Supreme Court denied both motions. As to the plaintiff’s motion, the court, in its discretion, found that the issuance of an award in the defendant’s favor, in light of the overall policy in favor of the resolution of litigation on the merits, warranted denial of the plaintiff’s motion. As to the defendant’s motion, the court determined that the defendant failed to satisfy any of the criteria set forth in CPLR 510 (3). The plaintiff appeals and the defendant cross-appeals.

Pursuant to CPLR 3215 (f), “[a]n applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to answer or appear” (Countrywide Home Loans Servicing, L.P. v Vorobyov, 188 AD3d 803, 806 [2020]; see Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C., 170 AD3d 1125, 1126 [2019]; Fried v Jacob Holding, Inc., 110 AD3d 56, 59 [2013]). To demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine if the claim is viable (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Fried v Jacob Holding, Inc., 110 AD3d at 60; Neuman v Zurich N. Am., 36 AD3d 601, 602 [2007]).

“In order to successfully oppose a motion for leave to enter a default judgment, a defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action” (Maldonado v Mosquera, 186 AD3d 1352, 1353 [2020]). Where the defendant fails to demonstrate a reasonable excuse for its default, the court need not consider whether the defendant possesses a potentially meritorious defense to the action (see OneWest Bank v Schiffman, 175 AD3d 1543, 1545 [2019]). “[D]efaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” (Rosenzweig v Gubner, 194 AD3d 1086, 1088 [2021] [internal quotation marks omitted]).

In support of its motion, the plaintiff submitted proof of service of the summons and complaint via delivery to an employee at the defendant’s actual place of business (see CPLR 308 [2]). In further support, the plaintiff submitted its attorney’s affirmation, inter alia, attesting to the defendant’s failure to answer or appear in this action, thereby admitting all traversable allegations (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]; see also Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C., 170 AD3d at 1126). The plaintiff also submitted, inter alia, a copy of the complaint verified by its counsel, its expert’s affirmed peer review, and the arbitration award and the master arbitration award affirming the original arbitration award, which were sufficient to establish that the plaintiff had a viable cause of action against the defendant (see Woodson v Mendon Leasing Corp., 100 NY2d at 71; Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C., 170 AD3d at 1126).

Because the defendant failed to oppose the plaintiff’s motion, he failed to meet his burden of establishing a reasonable excuse. Accordingly, the Supreme Court’s denial of the plaintiff’s motion for leave to enter a default judgment against the defendant was an improvident exercise of discretion, and the plaintiff’s motion should have been granted.

In light of our determination, the cross appeal has been rendered academic. Rivera, J.P., Maltese, Ford and Taylor, JJ., concur.

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Jaffe & Velazquez, LLP, New York (Thomas Torto of counsel), for respondent.

Order, Supreme Court, New York County (Arlene Bluth, J.), entered on or about September 24, 2021, which granted plaintiff Country-Wide Insurance Company’s motion for summary judgment and declared that it owes no further duty to defendants to pay any no-fault claims with respect to a specified motor vehicle accident involving defendant Maria Aguilar, unanimously affirmed, without costs.

Country-Wide satisfied its prima facie burden of showing that it exhausted the policy by submitting the policy declaration page, an affidavit by its no-fault claim supervisor responsible for Aguilar’s claim, and the payment ledger showing that it had paid out $50,000 to Elmhurst Hospital Center by May 21, 2018. Country-Wide was under no further obligation to pay defendants once the policy limits were exhausted (see Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245 [1st Dept 2000]). Contrary to defendants’ contention, the affidavit by the no-fault claim supervisor, who had personal knowledge of the claim file and the procedures for processing no-fault claims, was sufficient to lay a foundation for admission of the documents as business records under CPLR 4518 (a) (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146, 146 [1st Dept 2003]).

In response to Country-Wide’s prima facie showing, defendants submitted no evidence at all, much less evidence sufficient to establish the existence of material issues of fact requiring a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Furthermore, we reject defendants’ suggestion that Country-Wide was required to show that it complied with 11 NYCRR 65-3.15’s priority of payment rule to make its prima facie case, as defendants did not raise the issue as an affirmative defense in their answer although the answer contained more than 20 other affirmative defenses (see generally GMAC Mtge., LLC v Coombs, 191 AD3d 37, 50 [2d Dept 2020]; Aimatop Rest. v Liberty Mut. Fire Ins. Co., 74 AD2d 516, 517 [1st Dept 1980]).

We have considered defendants’ remaining contentions and find them unavailing. Concur—Manzanet-Daniels, J.P., Moulton, González, Rodriguez, Higgitt, JJ.

[*1]

The Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak and Maksim Leyvi of counsel), for appellants.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Michael J. Giordano of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the plaintiffs are not obligated to pay certain no-fault claims, the defendants AB Medical Supply, Inc., AB Quality Health Supply Corp., ACH Chiropractic, P.C., Energy Chiropractic, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., JPF Medical Services, P.C., Jules Francois Parisien, Kings Rehab Acupuncture, P.C., and Maria Shiela Masigla appeal from a judgment of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered November 13, 2019. The judgment, upon an order of the same court entered October 9, 2019, granting that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against those defendants, inter alia, declared that the plaintiffs have no duty to provide coverage for the subject no-fault claims.

Ordered that the judgment is affirmed, with costs.

In April 2017 and June 2017, within days of the defendants Jerry Noland and Franklin Blasco procuring automobile insurance policies, the vehicles for which the policies were issued were involved in two separate automobile collisions when they each came into contact with two separate taxicabs. In or around April 2018, the plaintiffs, National General Insurance Online, Inc., and National General Insurance Company, commenced this action against Noland, Blasco and other individuals involved in the collisions, as well as, among others, the defendants AB Medical Supply, Inc., AB Quality Health Supply Corp., ACH Chiropractic, P.C., Energy Chiropractic, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., JPF Medical Services, P.C., Jules Francois Parisien, Kings Rehab Acupuncture, P.C., and Maria Shiela Masigla (hereinafter collectively the medical provider defendants), alleging, inter alia, that the collisions were intentional. After the Supreme Court granted the plaintiffs’ motion for leave to enter a default judgment against, among others, the individuals involved in the two collisions, the plaintiffs moved, among other things, for summary judgment on the complaint insofar as asserted against the medical provider defendants, arguing, inter alia, that they are not obligated to pay no-fault claims submitted to them by the medical provider defendants in connection with the collisions. In an order entered October 9, 2019, the Supreme Court granted that branch of the motion. A judgment was entered November 13, 2019. The medical provider defendants appeal. We affirm.

[*2] The medical provider defendants failed to sustain their burden of demonstrating that the branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against them was premature (see CPLR 3212 [f]; Shah v MTA Bus Co., 201 AD3d 833 [2022]). Further, an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2006]), and here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating, through admissible evidence, that the subject collisions were intentionally caused or staged (see State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2003]; cf. Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691 [2016]; Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795 [2015]). In opposition, the medical provider defendants failed to raise a triable issue of fact as to whether the collisions were intentionally caused or staged. Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against the medical provider defendants. Barros, J.P., Brathwaite Nelson, Chambers and Wan, JJ., concur.

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Correia, Conway & Stiefeld, White Plains (Nicole M. Bynum of counsel), for respondents.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about October 7, 2021, which granted plaintiff insurers’ motion for summary judgment to the extent of declaring that defendant medical providers are not entitled to any no-fault benefits under claimant-defendant Sandra Valera’s automobile insurance policy, unanimously reversed, on the law, without costs, the motion denied, the declaration vacated, and the matter remanded for further proceedings consistent with this decision.

In June 2019, the claimant was injured in a collision involving a vehicle that she insured under an automobile insurance policy issued by plaintiff insurers. The policy included an endorsement entitling the claimant to receive payment for accident-related medical expenses, and entitling her treating medical providers to collect her assigned no-fault benefits. In January 2020, the insurers filed this action for a declaration of no-coverage and an injunction barring defendant medical providers from seeking any no-fault reimbursement under the claimant’s automobile insurance policy. The insurers alleged that the claimant had intentionally and materially misrepresented her home address in procuring the policy, as the proper policy address was not the Wappingers Falls address she had stated, but rather, an address in the Bronx.

The insurers submitted undisputed evidence that the claimant misrepresented her address based on her testimony at the examination under oath (EUO). However, the insurers failed to establish, as a matter of law, that the alleged misrepresentation as to the correct address was a material misrepresentation. The affidavit of the insurers’ underwriter is conclusory and not supported by relevant documentary evidence such as underwriting manuals, rules, or bulletins (see 463 Saddle Up Tremont LLC v Union Mut. Fire Ins. Co., 205 AD3d 511, 511-512 [1st Dept 2022]; BX Third Ave. Partners, LLC v Fidelity Natl. Tit. Ins. Co., 112 AD3d 430, 430 [1st Dept 2013]; Feldman v Friedman, 241 AD2d 433, 434 [1st Dept 1997]). We therefore deny the insurers’ motion for summary judgment without prejudice and remand the matter for further discovery concerning the insurers’ claim and underwriting practices and guidelines. Concur—Webber, J.P., Kern, Singh, Moulton, Shulman, JJ.

[*1]

Lawrence N. Rogak, LLC, Oceanside, NY, for appellant.

Law Offices of Michael H. Joseph, PLLC, White Plains, NY (Clifford S. Nelson of counsel), for respondent.

In an action to recover first-party no-fault benefits under a policy of automobile insurance, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 30, 2017, and (2) a judgment of the same court, dated October 26, 2017. The order granted the plaintiff’s motion for summary judgment in the principal sum of $44,573.86. The judgment, upon the order, is in favor of the plaintiff and against the defendant in the principal sum of $44,573.86.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In 2008, a vehicle operated by the plaintiff and insured by the defendant, Merchants Mutual Insurance Company, was struck in the rear by a sanitation truck owned by the City of White Plains. The plaintiff subsequently underwent surgery to remove his L5-S1 disc and replace it with an artificial lumbar disc. After the defendant denied the subject claims on the ground that the surgery was not medically necessary, the plaintiff commenced the instant action to recover first-party no-fault benefits. The defendant answered the complaint and the plaintiff later moved for summary judgment in the principal sum of $44,573.86, representing unpaid first-party no-fault benefits under the insurance policy. The defendant opposed the motion. The Supreme Court granted the plaintiff’s motion and issued a judgment in favor of the plaintiff in the principal sum of $44,573.86. The defendant appeals.

“The No-Fault Automobile Insurance Law defines ‘first party benefits’ as ‘payments [*2]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]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 47 [2015]). The no-fault law defines “basic economic loss” (Insurance Law § 5102 [a]) as “[a]ll necessary expenses incurred for: (i) medical, hospital . . . [and] surgical . . . services” (id. § 5102 [a] [1] [i]) as well as loss of earnings from work. Like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of “necessary expenses” (11 NYCRR 65-1.1; see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]).

A plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2006]).

In support of his motion, the plaintiff submitted, inter alia, the disputed claims, the defendant’s form denials, the affidavit of his surgeon, Richard Peress, and the affidavit of Christine Taylor, assistant director of patient accounts for Phelps Memorial Hospital (hereinafter the hospital).

The plaintiff demonstrated, prima facie, that the prescribed statutory billing forms relative to the medical services provided by Peress were mailed and received, and that the defendant failed to pay or validly deny the claims within the permissible 30 days (see Insurance Law § 5102 [a] [1]; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768 [2016]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]; Hobby v CNA Ins. Co., 267 AD2d 1084 [1999]; see also DeGiorgio v Racanelli, 136 AD3d 734 [2016]; Geffner v North Shore Univ. Hosp., 57 AD3d 839 [2008]). In opposition, the defendant failed to submit evidence in admissible form sufficient to raise a triable issue of fact as to whether the claimed benefits were properly denied on the ground of lack of medical justification (see 11 NYCRR 65-3.8 [b] [4]).

Contrary to the defendant’s contention, the plaintiff had standing to pursue his claims for no-fault benefits (see Allstate Ins. Co. v Kapeleris, 183 AD3d 626 [2020]).

Given that the amount of the outstanding no-fault benefits relative to the medical services provided by Peress exceeds the principal sum awarded in the judgment, we need not reach the parties’ remaining contentions, including whether the plaintiff was entitled to no-fault benefits relative to the medical services provided by the hospital.

Accordingly, we affirm the judgment. Barros, J.P., Iannacci, Chambers and Christopher, JJ., concur.

[*1]

Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about June 24, 2021, which denied plaintiff’s motion for a default judgment on its claims seeking a declaration of noncoverage against all defaulting defendants, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.

This declaratory judgment action concerns claims for no-fault insurance benefits made in connection with an automobile crash that occurred on February 5, 2019. Contrary to the court’s ruling, plaintiff established, as to the first cause of action, that the individual claimants, who assigned their claims for no-fault insurance benefits to the defaulting medical service provider defendants, failed to appear for properly-noticed examinations under oath. A review of the court’s order indicates that it based its decision on plaintiff’s receipt of a NF-2 form (application for no-fault benefits), rather than the verification forms (e.g., NF-3 or NF-4 forms). The 15-business day timeframe is not measured based on receipt of the NF-2 application, but on the receipt of the verification forms (11 NYCRR 65-3.5 [a], [b]; see Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617 [1st Dept 2018]). Accordingly, plaintiff’s notices were timely and the failure to appear was a breach of a condition precedent to coverage and voids the policy ab initio (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454, 455-456 [1st Dept 2021]; Unitrin Advantage Ins. Co. v Dowd, 194 AD3d 507 [1st Dept 2021]).

As to the second cause of action, seeking a declaration of noncoverage because the crash was intentional or staged, plaintiff submitted sufficient evidence warranting entry of a default judgment (see CPLR 3215 [f]; Surgicore, 195 AD3d at 455). Plaintiff’s submissions were sufficient to determine that a viable declaratory judgment cause of action of noncoverage exists and, by failing to answer, the defaulting defendants are deemed to have admitted the factual allegations in the complaint (see generally Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Surgicore, 195 AD3d at 455).

Finally, as to the third cause of action, seeking a declaration of noncoverage based on the named insured’s failure to cooperate with the investigation of the claim, plaintiff also submitted sufficient evidence warranting entry of a default (CPLR 3215 [f]; see generally Pryor v New York Prop. Ins. Underwriting Assn., 18 AD3d 361, 362 [1st Dept 2005]). Concur—Manzanet-Daniels, J.P., Oing, González, Scarpulla, Rodriguez, JJ.

[*1]

Thomas Torto, New York, for appellant.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for respondents.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about February 4, 2021, which denied plaintiff’s motion for summary judgment as against defendants Healthway Medical Care P.C., Acupuncture Now P.C., SB Chiropractic, P.C., and Jules Francois Parisien MD, unanimously affirmed, without costs.

This appeal concerns plaintiff Country-Wide Insurance Company’s potential obligation to pay no-fault insurance benefits. Defendant Jeffrey Delacruz was the driver of a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by Country-Wide. Delacruz assigned his right to collect no-fault benefits under that policy to his treating medical providers. Those providers applied for no-fault benefits from Country-Wide but were denied.

Country-Wide then brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Delacruz or to the other defendants (all medical-provider assignees of Delacruz). Country-Wide moved for summary judgment on the ground that Delacruz’s failure to appear for scheduled examinations under oath (EUOs) defeats coverage under the no-fault policy, and thus forecloses the medical providers’ claim to benefits.

The court properly denied plaintiff’s motion for summary judgment as premature (see CPLR 3212 [f]). Plaintiff failed to provide a specific objective justification for requesting the examination under oath (EUO). Plaintiff’s reason for the EUO is essential for defendants to oppose plaintiff’s summary judgment motion and this fact is exclusively within the knowledge and control of the movant (11 NYCRR 65-3.5 [e]; see Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671, 671 [1st Dept 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]; cf. Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Further, plaintiff concedes that it provided no response to defendants’ discovery demands for the “specific objective justification” for its request that the injured claimant submit to an EUO.

We have considered and reject all of plaintiff’s arguments that it is not required to provide claimants with the reason it requested the EUO. An insurer must affirmatively establish that it complied with the strict no-fault insurance claim procedures set forth in 11 NYCRR 65-3.5 (see generally PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). In the absence of any justification for the EUO, plaintiff has failed to establish, as a matter of law, that it complied with the governing regulations (11 NYCRR 65-3.5 [e]; AB Med. Supply at 671; Jaga Med. Servs. at 441; see also American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup Ct, NY County 2013]).

The court properly rejected plaintiff’s contention that defendants waived any claim as to the reasonableness of the EUO notices by failing to object upon receipt. [*2]In its EUO notices, plaintiff provided no justification for these defendants to object to. In any event, the regulation does not require defendants to lodge any objection to the justification within a specific timeframe. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (262 AD2d 553, 555 [2d Dept 1999]) is inapposite. Concur—Renwick, J.P., Mazzarelli, Gesmer, González, JJ. [Prior Case History: 71 Misc 3d 247.]

[*1]

Law Office of Jonathan B. Seplowe, P.C., Malverne, NY (Alan M. Elis of counsel), for appellant.

Jaffe & Velazquez, LLP, New York, NY (Thomas Torto of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated April 10, 2018, which vacated an arbitration award in favor of the petitioner, and to confirm the arbitration award, the petitioner appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered October 2, 2018. The order denied the petition.

Ordered that the order is reversed, on the law, with costs, the petition to vacate the award of the master arbitrator dated April 10, 2018, is granted, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

“[A] master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator” (Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577 [2002]). “If the master arbitrator vacates the arbitrator’s award based upon an alleged error of ‘a rule of substantive law,’ the determination of the master arbitrator must be upheld unless it is irrational” (id. at 576 [internal quotation marks omitted]; see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168 [2019]).

The Supreme Court erred in denying the petition, inter alia, to vacate the award of the master arbitrator, as there was no rational basis to support the award. The master arbitrator’s determination that a denial of liability based upon a failure to appear at an examination under oath constitutes a defense of lack of coverage, which is not subject to preclusion, is irrational (see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d at 1168; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-1047 [2009]). Further, the master arbitrator’s application of 11 NYCRR 65-3.5 (p) is irrational, as it effectively allows an insurer to avoid the statutory timeliness requirements set forth in 11 NYCRR 65-3.8 (a). Where, as here, the initial request for an examination under oath is sent more than 30 days after receipt of the claim, the request is a nullity (see Excel Prods., Inc. v Farmington Cas. Co., 71 Misc 3d 137[A], 2021 NY Slip Op 50441[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]), and the insurer’s failure to timely notice the examination under oath is not excused by 11 NYCRR 65-3.5 (p) (see American Tr. Ins. Co. v Foster, 2019 NY Slip Op 30746[U], *4 [Sup Ct, NY County 2019]; cf. Z.M.S. & Y. Acupuncture, P.C. v [*2]Geico Gen. Ins. Co., 56 Misc 3d 926, 930 [Civ Ct, Kings County 2017]). Barros, J.P., Chambers, Zayas and Dowling, JJ., concur.

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Order and judgment (one paper), Supreme Court, New York County (Melissa A. Crane, J.), entered on or about March 2, 2021, declaring that defendants Metro Pain Specialists, P.C. and Right Aid Medical Supply Corp. are not entitled to no-fault benefits, unanimously reversed, on the law, with costs, and the judgment vacated.

Plaintiff insurer failed to make a prima facie showing that it complied with the time frames in scheduling defendant Louis Melendez’s independent medical examination (IME) as set forth in the no-fault implementing regulations (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Martinez, 202 AD3d 526 [1st Dept 2022]). Plaintiff did not provide evidence as to when it received the claims from Metro and Right Aid, and thus failed to establish that it scheduled the IME within the prescribed time frame (see 11 NYCRR 65-3.5 [b], [d]). Concur—Manzanet-Daniels, J.P., Kapnick, Webber, Gesmer, Oing, JJ.

[*1]

Law Offices of Peter C. Merani, P.C., New York, NY (Adam Waknine of counsel), for appellant.

Baker & Cantin, P.C., Rego Park, NY (Elyse R. Ulino of counsel), for respondent.

In an action to recover no-fault benefits, the defendant appeals from an order of the Supreme Court, Queens County (Chereé A. Buggs, J.), entered October 31, 2019. The order denied the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof denying those branches of the defendant’s motion which were for summary judgment dismissing so much of the first cause of action as sought reimbursement greater than $1,724.22 and so much of the third cause of action as sought reimbursement greater than $12,924.78, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, with costs payable to the defendant.

The plaintiff, a medical provider, commenced this action to recover assigned first-party no-fault benefits for medical services rendered. The defendant moved for summary judgment dismissing the complaint, arguing that the services lacked medical necessity and the amount sought exceeded the amount permitted by the applicable fee schedule. The Supreme Court denied the motion, and the defendant appeals.

The defendant failed to establish, prima facie, that the services provided were not medically necessary (see Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768 [2016]). The peer review reports submitted by the defendant did not establish a factual basis and medical rationale for the determination that there was a lack of medical necessity for the services, as each doctor merely set forth a conclusory opinion that the alleged motor vehicle injuries were degenerative and chronic, and conservative treatment would suffice (see Eagle Surgical Supply, Inc. v Mercury Cas. Co., 36 Misc 3d 131[A], 2012 NY Slip Op 51286[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the defendant’s failure to meet its prima facie burden, we need not consider the sufficiency of the opposing papers on that issue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Allstate Ins. Co. v Buffalo Neurosurgery Group, 172 AD3d 967 [2019]).

The defendant nevertheless established, prima facie, that the bills for the services provided were in excess of the proper fee schedule (see Insurance Law § 5108 [a], [c]; 11 NYCRR 68.6 [a] [1]). The defendant’s expert stated in an affidavit that if the services were determined to be [*2]medically necessary, the plaintiff would be entitled to a reimbursement of only $1,724.22 of the $2,586.34 claimed in the first cause of action, and only $12,924.78 of the $25,849.56 claimed in the third cause of action. As the plaintiff failed to raise a triable issue of fact in opposition to this showing, the Supreme Court should have granted those branches of the defendant’s motion which were for summary judgment dismissing so much of the first cause of action as sought reimbursement greater than $1,724.22 and so much of the third cause of action as sought reimbursement greater than $12,924.78 (see Allstate Ins. Co. v Buffalo Neurosurgery Group, 172 AD3d 967 [2019]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2007]). Brathwaite Nelson, J.P., Chambers, Roman and Zayas, JJ., concur.