Law Office of Marina Josovich, P.C. (Marina Josovich of counsel), for appellant. Law Office of Tina Newsome-Lee (Janice A. Robinson and Albert Galatan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), dated August 25, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification, and plaintiff cross-moved for summary judgment. By order dated August 25, 2020, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

Plaintiff correctly argues that defendant’s motion for summary judgment should have been denied, as defendant failed to establish, prima facie, that it properly requested any additional verification from plaintiff. The only request in the purported verification request letters, which defendant sent to plaintiff, is for an explanation as to how the medical supplies furnished by plaintiff affected the treatment plan. That information was specifically being sought from the [*2]prescribing doctor, not from plaintiff, as follows:

“By copy of this letter, we request the following information from the prescribing doctor, Albert Cianmino MD of AC Medical PC:

– Please advise as to how the use of the medical supplies prescribed for the patient above effected [sic] their treatment plan.”

Therefore, as plaintiff argues, these were delay letters, not verification requests (see 11 NYCRR 65-3.6 [b]; see JOA Chiropractic, P.C. v Hereford Ins. Co., 75 Misc 3d 140[A], 2022 NY Slip Op 50598[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Clear Water Psychological Servs., P.C. v Hereford Ins. Co., 68 Misc 3d 127[A], 2020 NY Slip Op 50847[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). While defendant correctly argues in its brief that it was entitled to seek verification directly from the prescribing doctor (see Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]), defendant’s claim that it actually “sought information from Dr. Albert Cianmino” is not supported by the record. Indeed, despite the statement in the first letter that defendant was, by copy of the letter, requesting information directly from the prescribing doctor, the doctor was not carbon copied on the letter and defendant did not allege, much less prove, that the letter was, in fact, mailed to the prescribing doctor.^[FN1] This is not a situation where plaintiff was even obligated to respond to the letter, if only to state that it does not possess the requested information or documents or to seek clarification (cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). On its face, the letter does not require a response from plaintiff.

Consequently, defendant did not demonstrate that this action is premature based on outstanding verification requests, and so its motion for summary judgment dismissing the complaint on that ground should have been denied.

Plaintiff’s cross motion for summary judgment was properly denied as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [*3][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: December 9, 2022

Footnotes

Footnote 1: Defendant relies on a “cover letter to the verification request” which defendant claims in its brief “lists the address of Dr. Cianmino as the primary recipient of the letter.” While such a letter would not constitute proof that the letter was mailed to Dr. Cianmino, it is noted, in any event, that there is no such cover letter in the record on appeal.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 9, 2022

APPEARANCES OF COUNSEL

Hollander Legal Group, P.C. (Allan S. Hollander and Jennifer B. Ettenger of counsel) for appellant.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel) for respondent.

Ordered that the order, insofar as appealed from, is affirmed, with $25 costs.

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

Contrary to defendant’s contention on appeal, defendant’s motion failed to establish that defendant had timely denied plaintiff’s claims after plaintiff’s assignor failed to appear at both an initial and a follow-up EUO (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Upon receipt of the claim forms at issue on March 18, [*2]2018, the first EUO was scheduled, by letter sent to assignor’s counsel on March 26, 2018, for April 9, 2018. Neither the assignor nor her counsel appeared on April 9, 2018. On April 12, 2018, defendant sent a letter scheduling the “final date” for the EUO for May 8, 2018. Neither the assignor nor her counsel appeared on May 8, 2018. On May 10, 2018, defendant sent a letter scheduling an EUO for June 6, 2018. The assignor did not appear, but apparently on that day, defendant received a call from the assignor’s counsel, asking for the EUO to be scheduled for June 13, 2018. On June 7, 2018, defendant sent a letter scheduling an EUO for June 13, 2018. On June{**77 Misc 3d at 17} 13, 2018, the assignor again did not appear. For each of these four scheduled dates, defendant’s counsel put a statement on the record documenting the nonappearance. On June 23, 2018, defendant issued a denial of the relevant claims, which denial states, “The claimant failed to attend an [EUO] scheduled on 4/9/18, 5/8/18, 6/6/18 and 6/13/18, which is a breach of the above policy condition . . . .” Defendant argues on appeal that this denial was timely because it was issued within 30 days of the June 13, 2018 failure to appear.

A no-fault claim must be paid or denied “within 30 calendar days after the insurer receives proof of claim” (11 NYCRR 65-3.8 [a] [1]; see e.g. New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]), which period may be tolled by timely and proper requests for verification, including an EUO request. Here, defendant properly commenced a toll of its time to pay or deny these claims by sending an EUO scheduling letter within 15 business days of its receipt of the claim forms (see 11 NYCRR 65-3.5 [b]).^[FN*] Defendant also properly continued the toll by sending a follow-up letter within 10 days of the April 9, 2018 failure to appear, giving the assignor a second opportunity to provide the requested EUO on May 8, 2018 (see 11 NYCRR 65-3.6 [b]). The assignor did not appear on May 8, 2018. As we have held before,

“[w]here, as here, no other verification request is outstanding, the 30-day period for an insurer to pay or deny a claim (see 11 NYCRR 65-3.8 [a] [1]) based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance, when an insurer is permitted to conclude that there was a failure to comply with a condition precedent to coverage” (Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020] [citation omitted][*3][Quality]).

In view of the foregoing, once the assignor failed to appear on{**77 Misc 3d at 18} May 8, 2018, defendant’s 30-day time period to pay or deny the claims at issue began to run, making defendant’s deadline to pay or deny those claims June 7, 2018.

In spite of the rule set forth in Quality, defendant argues that its June 23, 2018 denial was timely. Defendant notes that, under the no-fault regulations, insurers are not to treat their insureds in an adversarial fashion (see 11 NYCRR 65-3.2 [b]). Defendant asserts that it was acting in good faith in scheduling a third EUO due to confusion as to the date of the first EUO and that the fourth EUO was scheduled at the request of the assignor’s counsel. Thus, defendant contends, the facts herein are distinguishable from Quality. In any event, defendant argues, it should not be limited to offering a claimant only two opportunities to appear for an EUO.

While we agree that there is nothing in the no-fault regulations preventing an insurer from offering a claimant more than two opportunities to appear for an EUO, that issue is distinct from whether an insurer has properly continued a toll of its time to pay or deny a particular claim (see 11 NYCRR 65-3.6 [b]). For example, had the assignor appeared on June 6, 2018, the third scheduled date, or June 13, 2018, the fourth scheduled date, defendant could have properly conducted the EUO. However, the toll of defendant’s time to pay or deny the claims at issue ended on May 8, 2018, when the assignor failed to appear for the second scheduled EUO, and any denial based upon a precludable defense—like the defense that the assignor failed to appear for duly scheduled EUOs—would have had to have been issued by June 7, 2018, in order to be timely.

Neither the May 10, 2018 letter scheduling the EUO for June 6, 2018, nor the June 7, 2018 letter scheduling the EUO for June 13, 2018, continued the toll because the no-fault regulations only contemplate one follow-up request for verification (see 11 NYCRR 65-3.6 [b]) and that follow-up request was made on April 12, 2018, in a letter that scheduled a “final date” for the EUO for May 8, 2018. Once the assignor’s second and “final” opportunity to appear for an EUO was scheduled for May 8, 2018, to further toll defendant’s time to pay or deny the claims past June 7, 2018, the parties could have rescheduled that examination for a later date (see Progressive Health Chiropractic, P.C. v American Tr. Ins. Co., 55 Misc 3d 142[A], 2017 NY Slip Op 50603[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] [App{**77 Misc 3d at 19} Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see also Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 [2020]). However, rather than claiming that there was a rescheduling of a scheduled EUO that would have continued the toll past June 7, 2018, defendant clearly treated each of the four scheduled EUOs as a nonappearance, choosing to deny the claim after the fourth one. The no-fault regulations do not permit an insurer to indefinitely extend the toll to pay or deny a claim beyond a second nonappearance by scheduling successive additional EUOs and then arbitrarily choosing when to end its toll.

As defendant has not demonstrated that its June 23, 2018 denial was timely, it has not established that it is not precluded from raising the assignor’s nonappearance at duly scheduled EUOs as a defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). [*4]Thus, its motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order, insofar as appealed from, is affirmed.

Aliotta, P.J., Weston and Buggs, JJ., concur.

Footnotes

Footnote *:Indeed, here defendant had initially sent a letter on March 12, 2018, prior to receiving the claims at issue, which letter scheduled an EUO for April 8, 2018. Upon realizing that April 8, 2018, was a Sunday, defendant sent the March 26, 2018 letter changing the date of the EUO to April 9, 2018. It is noted that the March 12, 2018 pre-claim EUO scheduling letter was also sufficient to commence a toll for the bills subsequently received on March 18, 2018 (see ARCO Med. N.Y., P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Decided on December 2, 2022

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

Law Offices of Gabriel & Moroff, P.C. (Jason Moroff and Matthew Sledzinsky of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Claudia Lanzetta, J.), dated June 15, 2021. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first, fifth, and seventh causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the first, fifth, and seventh causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, the claims underlying the fifth and seventh causes of action were timely denied, as these claims were denied within 30 days of defendant’s receipt thereof (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Plaintiff also asserts that the claim underlying the first cause of action was not timely denied. However, an initial EUO had been [*2]scheduled before defendant received this claim; therefore, defendant’s time to pay or deny this claim was tolled when this claim was received (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Further, as defendant timely scheduled a follow-up EUO after plaintiff failed to appear for the initial EUO, defendant’s time to pay or deny the claim remained tolled (see 11 NYCRR 65-3.6 [b]). Consequently, defendant’s subsequent denial of this claim, which was issued within 30 days of the second nonappearance, was timely (see Island Life Chiropractic Pain Care, PLLC, 74 Misc 3d 17; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich of counsel), for appellant. Goldberg, Miller & Rubin, P.C. (Harlan R. Schreiber and Ruth Nazarian of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered December 11, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action is premature, as plaintiff failed to respond to defendant’s timely requests for additional verification. By order entered December 11, 2019, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Defendant’s cross motion should have been denied. With respect to the claim for date of service November 9, 2017, upon which the fourth cause of action of the complaint was based, the letters defendant sent seeking additional verification were incorrectly addressed to another [*2]provider, and, thus, the parties agree that defendant did not establish its entitlement to summary judgment dismissing that cause of action. With respect to the remaining claims, defendant failed to establish, prima facie, that it properly requested additional verification, since defendant’s letters to plaintiff, which were submitted in support of its cross motion, merely stated that defendant was waiting for specified documents without actually requesting verification from plaintiff (see Clear Water Psychological Servs., P.C. v Hereford Ins. Co., 68 Misc 3d 127[A], 2020 NY Slip Op 50847[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

Plaintiff’s motion for summary judgment was properly denied, as the proof submitted by plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

Husch Blackwell, LLP (Matthew A. Sarles of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered September 4, 2019. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint on the ground that there was an issue of fact as to whether the three-year limitation period of CPLR 214 (2) was applicable.

A review of the record reveals that defendant demonstrated, as a matter of law, that the vehicle in which plaintiff’s assignor was a passenger when the accident occurred was owned by U-Haul, Inc.; that the vehicle was self-insured by U-Haul, Inc.; that defendant did not insure the subject vehicle; and that defendant was a third-party claims handler which processed claims on behalf of U-Haul, Inc. Thus, the record establishes that there is no coverage for no-fault benefits from defendant as defendant had not issued an automobile insurance policy which would cover [*2]the underlying accident (see Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co., 69 Misc 3d 144[A], 2020 NY Slip Op 51379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Parisien v Gallagher Bassett Servs., 66 Misc 3d 128[A], 2019 NY Slip Op 52040[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). We note that, while the six-year statute of limitations for contracts is applicable to no-fault claims against an insurer (see CPLR 213 [2]), to the extent any causes of action accrued against the self-insurer upon plaintiff’s submission of bills in 2010, the three-year statute of limitations set forth in CPLR 214 (2) would apply (see Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]; Midwood Total Rehab Med., P.C. v Republic W. Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51206[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Midwood Total Rehab Med., P.C. v Republic W. Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51205[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; S & R Med., P.C. v NYCTA-MABSTOA, 61 Misc 3d 138[A], 2018 NY Slip Op 51582[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

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

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

Decided on December 2, 2022

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

Decided on December 2, 2022

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

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 18, 2022. The order denied defendant’s motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for, in effect, summary judgment dismissing the complaint is granted.

Plaintiff (Medical Supply) commenced this action to recover assigned first-party no-fault benefits, under claim number 757285-GH, for medical services that it had provided to its assignor as a result of injuries which, the complaint stated, had been sustained in an automobile accident on August 24, 2018. After Medical Supply commenced this action, defendant (Nationwide) answered and, separately, commenced a declaratory judgment action in the Supreme Court, Onondaga County, against Medical Supply, alleging that Nationwide had no duty to pay no-fault benefits to Medical Supply under claim number 757285-GH with respect to an accident which had occurred on August 22, 2018. In an order entered on March 9, 2020, the Supreme Court, upon Medical Supply’s default in appearance in the action, granted an unopposed motion by Nationwide for summary judgment, declaring that Nationwide was not obligated to provide coverage or reimbursements for any and all no-fault related services submitted by [*2]Medical Supply under claim number 757285-GH, with date of loss August 22, 2018.

Nationwide, thereafter, moved in the Civil Court for, in effect, summary judgment dismissing the complaint on the ground that the instant action is barred by virtue of the order in the declaratory judgment action. The Civil Court, in an order entered on January 18, 2022, denied Nationwide’s motion, finding that an issue of fact exists as to when the accident occurred.

Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same transaction or series of transactions which were raised or could have been raised in a prior proceeding between the same parties or those in privity (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; see also Watts v Swiss Bank Corp., 27 NY2d 270 [1970]).

Nationwide established, prima facie, that Medical Supply sought in this action to recover for medical supplies furnished to its assignor as a result of injuries allegedly sustained by its assignor in the August 22, 2018 accident that was the subject of the Supreme Court declaratory judgment action. All of the documentary evidence created by persons with personal knowledge of the accident alleged that the accident occurred on August 22, 2018. Medical Supply’s only evidence that the accident occurred on August 24, 2018 was the allegation in its own complaint, which was not based upon personal knowledge and which contradicts the documents created and executed by the assignor himself, the assignor’s counsel’s letter of representation, and the police accident report. Therefore, Medical Supply’s opposition was wholly insufficient to rebut Nationwide’s prima facie showing. Consequently, the instant action is barred by res judicata.

Accordingly, the order is reversed and defendant’s motion for, in effect, summary judgment dismissing the complaint is granted.

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

Decided on December 2, 2022

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