The defendant Repwest Insurance Company has moved pursuant to CPLR §3212 seeking summary judgement dismissing the action. The plaintiff has cross-moved seeking summary judgement. The motions have been opposed respectively. The court has reviewed all the papers submitted and now renders the following determination.

The assignor, Jose David Torres was involved in a motor vehicle accident on November 20, 2019 and sustained injuries. The plaintiff assignee performed medical services on his behalf and seeks $1,689.70 in payment for those services. The defendant, the insurer of the assignor, refused the payment on the grounds the assignor failed to appear for two scheduled examinations under oath [EUO]. The plaintiff commenced this action seeking payment. The defendant duly answered. The defendant has now moved seeking summary judgement dismissing the action arguing the assignor failed to appear for examinations under oath which is a condition precedent for payment. The plaintiff opposes the motion arguing there was no legitimate basis seeking any examination prior to payment and therefore summary judgement should be granted in plaintiff’s [*2]favor.

Concerning first party no-fault benefits, an insurer may move seeking summary judgement dismissing the action on the grounds the assignor failed to attend a timely-scheduled independent medical examination (Vega Chiropractic P.C. v. Clarendon National Insurance Company, 25 Misc 3d 144(A), 906 NYS2d 776 [Supreme Court Appellate Term Second Department 2009]). For a medical provider to obtain summary judgement there must be evidentiary proof that claims were mailed and received and that payment is overdue (Mary Immaculate Hospital v. Allstate Insurance Company, 5 AD3d 742, 774 NYS2d 564 [2d Dept., 2004]).

The No-Fault regulations permit an insurer to demand “all items necessary to verify the claim directly from the parties from whom such verification is requested” (11 NYCRR §65-3.5(c)). Indeed, there are no limits to the information an insurer may request other than the limitation found in 11 NYCRR §65-3.2(c). That regulation states that an insurer should not demand verification of facts “unless there are good reasons to do so” (id). There are no specific No-Fault regulations that provide any mechanism for a medical provider to contest the verification sought on the grounds it is improper or unnecessary (Burke 2 Physical Therapy P.C. v. State Farm Mutual Automobile Insurance Company, 71 Misc 3d 1229(A), 146 NYS3d 468 [Civil Court Kings County 2021]). Nevertheless, courts have suggested that a provider can specifically respond and object to the information sought (Victory Medical Diagnostics P.C. v. Nationwide Property and Casualty Insurance Company, 36 Misc 3d 568, 949 NYS2d 855 [District Court Nassau County 2012]).

In this case the insurer received bills for payment for services rendered from December 3, 2019 through December 10, 2019. Without paying or denying the bills the insurer sent a letter to the assignor informing him that “additional information is required in order to properly evaluate this claim” and that the assignor would have to submit to an examination under oath (see, Letter dated January 9, 2020 [NYSCEF Doc. No. 6 page 88]). The assignor failed to appear for the examination and a follow up letter was sent dated February 11, 2020 scheduling the examination under oath for February 25, 2020. The assignor failed to appear and never objected to the examinations on the grounds the insurer never provided a basis for such examinations. The claims were subsequently denied and this action was commenced. In seeking summary judgement the insurer argues the assignor failed to appear for the examination under oath and consequently failed to satisfy a necessary condition precedent obligating the insurance company to pay the claim. In opposition, the medical provider argues the insurer failed to present any reasonable basis requiring an examination under oath and therefore, the insurer failed to comply with the No-Fault regulations and the insurer’s summary judgement motion must be denied and summary judgement should be granted in favor of the medical provider.

Concerning 11 NYCRR §65-3.2(c) and the limits imposed upon insurers seeking verification only when there are good reasons to do so, there is some disagreement which party bears the initial burden. In State Farm Mutual Auto Insurance Company v. East Coast Medical Care P.C., 2023 WL 2711659 [Supreme Court New York County 2023] the court explained that once an insurer demonstrates the verification demands were reasonable then the burden shifts to the provider to explain why the demands were not reasonable. However, in Ameriprise Insurance Company v. Pugsley Medical Care P.C., 2016 WL 9176586 [Supreme Court New York County 2016] the court held the burden for reasonableness is on the provider not the [*3]insurer.

In any event, it is clear the information sought must have some rational relationship to the specific claims. Therefore, certain requests for verification are obvious, no explanation is required and are per se reasonable. For example, “requests for medical records for the treatment in question, letters of medical necessity for the testing or treatment, copies of x-ray or MRI films or test results” (Garden State Anesthesia Associates PA v. Progressive Casualty Insurance Company, 41 Misc 3d 996, 971 NYS2d 858 [District Court Nassau County 2013]). Likewise, a request to establish medical necessity is reasonable pursuant to 11 NYCRR §65-3.2(c) (Lenox Hill Radiology v. Global Liberty Insurance, 20 Misc 3d 434, 858 NYS2d 587 [Civil Court New York County 2008]).

Turning to the other extreme, some requests are so unreasonable they violate 11 NYCRR §65-3.2(c). In Omega Diagnostic Imaging P.C. v. MVAIC, 29 Misc 3d 129(A), 958 NYS2d 309 [Supreme Court Appellate Term First Department 2010]) the court held a verification request sent to the medical provider and the assignor seeking an affidavit of no-insurance from the out-of-state driver that struck the assignor was without any good reason. The court explained that out-of-state driver was not a party to the first party benefits action and was not under the control of the provider or the assignor. Again, in Pro-Align Chiropractic P.C. v. Travelers Property Casualty Insurance Company, 58 Misc 3d 857, 67 NYS3d 439 [District Court Suffolk County 2017]) the court held the insurer’s requests were not reasonable and were burdensome.

Turning to the specific question whether an insurer must furnish an objective and specific basis why an examination under oath has been requested, it appears to be a split among the Departments of the Appellate Division.

The First Department holds that “the reason for the EUO request is a fact essential to justify opposition to plaintiff’s summary judgment motion” (American Transit Insurance Company v. Jaga Medical Services P.C., 128 AD3d 441, 6 NYS3d 480 [1st Dept., 2015]). Further, in Country-Wide Insurance Company v. Delacruz, 205 AD3d 473, 168 NYS3d 68 [1st Dept., 2022] the First Department noted that an insurer seeking summary judgement must provide a “specific objective justification” requesting the examination under oath. The court held the reason why an examination was requested was essential to afford the provider an opportunity to oppose the motion seeking to dismiss the action for the failure of the assignor to appear for the examination. Without such reason the motion could not be adequately opposed necessitating its denial on the grounds the motion was premature (see, also, State Farm Mutual Auto Insurance Company v. Quality Orthopedic and Complete Joint Care P.C., 2023 WL 6206098 [Supreme Court New York County 2023] and State Farm Mutual Auto Insurance Company v. Access Medical Diagnostic Solutions P.C., 2023 WL 2572920 [Supreme Court New York County 2023]

The Second Department on the other hand has held the reason why an examination is requested does not play any role whether the request is proper. In Interboro Insurance Company v. Clennon, 113 AD3d 596, 979 NYS2d 83 [2d Dept., 2014]) the court granted summary judgement to an insurer where the assignor failed to attend an examination under oath. Notably, the court held that assignor and the provider failed to raise any issues of fact as to the “propriety of the demand for the examination under oath” (id, see, IDS Property Casualty Insurance Company v. Starcar Medical Services P.C., 116 AD3d 1005, 985 NYS2d 116 [2d Dept., 2004]). Recently, in Northern Medical Care P.C. v. Nationwide Affinity Insurance Company of America, 84 Misc 3d 136(A), 2024 WL 5347270 [Supreme Court Appellate Term Second [*4]Department 2024] the court, citing Interboro (supra) explained that the “defendant was not required to set forth objective reasons for requesting EUOs as, to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insurer need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground ‘following the [ ] failure to appear at the last scheduled EUO'” (id).

The discrepancy between the departments was presaged in the trial court opinion Country-Wide Insurance Company v. Delacruz, 71 Misc 3d 247, 142 NYS3d 313, footnote 5 [Supreme Court New York County 2021] and in MUA Chiropractic Healthcare PLLC v. Nationwide Mutual Insurance Company, 77 Misc 3d 140(A), 182 NYS3d 488 [Supreme Court Appellate Term Second Department 2022].

Moreover, the approach of the Second Department, which binds this court, does not conflict with 11 NYCRR §65-3.5(e). 11 NYCRR §65-3.5(e) states that “when an insurer requires an examination under oath of an applicant to establish proof of claim, such requirement must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination” (id). However, that does not mean a reasonable basis must be provided. Indeed, the very next sentence of the regulation provides that “insurer standards shall be available for review by department examiners” (id). Two counsel opinions issued by the Department of Financial Services (formerly the Department of Insurance) are illuminating. In the first, the opinion states that “the Department also added the provision in Section 65-3.5(e) to ensure that insurers would not request EUO’s on either a routine or arbitrary basis, but would only do so when reasonably warranted, based upon the application of specific facts to objective standards established by the insurer in order to provide a reasonable basis for the request” (Ops Gen Counsel NY Ins Dept No. 02-10-14 [October 2002]). The opinion continued that the Department itself could “perform market conduct examinations of insurers and to evaluate the practices of insurers in requiring EUOs. The regulation contains no requirement for insurers to provide those standards for review by a claimant or claimant’s attorney when an EUO has been requested” (id). Again, in a subsequent opinion, it was held that “with respect to whether an insurer must include language stating the reason(s) for requiring the EUO, the regulation contains no such requirement” (Ops Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]). Therefore, only the Department of Financial Services can monitor the “specific objective justification” of 11 NYCRR §65-3.5(e), not medical providers seeking reimbursement for claims (see, Bronx Chiropractic Care P.C. v. State Farm Insurance, 63 Misc 3d 132(A), 114 NYS3d 175 [Supreme Court Appellate Term Second Department 2019]). Lastly, there is little merit to the argument that once a request for justification has been made by a medical provider then the above opinions of the Department of Financial Services are no longer relevant and an explanation must be afforded to the provider (cf., Kemper Independence Insurance Company v. Accurate Monitoring LLC, 73 Misc 3d 585, 156 NYS3d 677 [Supreme Court New York County 2021]). As noted, only department examiners are tasked with insuring compliance with the specific rule the insurer must maintain a justification for serving an EUO. That task cannot somehow be abrogated merely because a medical provider requests the justification as well. To the extent those arguments have been accepted (see, e.g., Country-Wide Insurance Company v. Henderson, 77 Misc 3d 1218(A), 178 NYS3d 922 [Supreme Court New York County 2022]) they merely serve to highlight the split in authority as noted above.

Therefore, based on the foregoing, the plaintiff has failed to present any question of fact [*5]why they failed to attend the EUO. Consequently, defendant’s motion seeking summary judgement dismissing the action is granted. The plaintiff’s motion seeking summary judgement is therefore denied.

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

Upon the foregoing cited papers, pursuant to CPLR §3212(g), the Decision and Order on Defendant’s Motion for Summary Judgment is hereby Granted in its entirety.

Defendant’s burden has been met and not rebutted. Defendant has established: timely mailing of its EUO scheduling letters, timely issuance of the subject denials for each bill and Plaintiff’s failure to appear for the two scheduled EUOs. Plaintiff’s rebuttal argument that there is a triable issue of fact as to the timeliness of the denial for Bill 2 subsequently received by Defendant after the first EUO no-show but before the second EUO no-show and denied within 30 days of the second EUO no show is rejected. Although the No-Fault Regulations are silent as to the tolling effect of a pending EUO request upon a subsequent bill, it has been held that where an initial EUO scheduled before a defendant received a subsequent bill, a defendant’s time to pay or deny this subsequent bill remained tolled at the time that the subsequent bill was received by the defendant (NGM Acupuncture, P.C. v Nationwide Ins. Co., 77 Misc 3d 135[A], 2022 NY Slip Op 51271[U] [App Term 2022]), citing ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term 2011]). “We find that, once defendant served plaintiff with requests for EUOs, the resulting toll of defendant’s time to pay or deny plaintiff’s claims applied to each claim form which was submitted by the same plaintiff for the same [*2]assignor subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs” (ARCO Med v Lancer). In this instant matter, Plaintiff yet again failed to appear to the second timely scheduled follow-up EUO during the period of time that subsequent Bill 2 remained tolled. Thus, Defendant’s denial of this subsequent Bill 2 issued within 30 days of the second EUO no-show was timely.

Plaintiff’s motion for summary judgment is denied. Defendant’s cross-motion for summary judgment granted. This case is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

The following papers were read on Defendant’s Motion for SUMMARY JUDGMENT,

Defendant moves the court pursuant to CPLR 3212 seeking summary judgment and a dismissal of the complaint which seeks $558.02 in unpaid medical bills for services rendered to claimant, Edouard Eguelino, on the grounds that claimant failed to appear for several Examinations Under Oath (“EUO”). Defendant also asserts that claimant failed to appear for duly scheduled Independent Medical Exams (IMEs). Moreover, defendant asserts that the subject policy was issued in Florida and therefore Florida law controls.

In support of its motion, defendant annexes, inter alia, an affirmation in support establishing the facts; the EUO and IME scheduling letters; denial letters; the bills at issue; the affidavit of Joseph Celli, Vice President and Claims Manager for defendant’s underwriter, who attests to defendant’s standard business procedures regarding investigations of claims, and the [*2]scheduling of EUOs and IMEs and denials of claims.

Plaintiff opposes the motion and contends that defendant fails to meet their burden to demonstrate entitlement to summary judgment. Specifically, plaintiff argues that defendant fails to annex any documentation to demonstrate claimant’s failure to appear for an IME. Additionally, plaintiff argues that defendant fails to annex an affidavit of personal knowledge to support to the non-appearance insofar as defendant only annexes the affidavit of its claims manager and fails to annex any physician affirmations. Also, plaintiff posits that defendant fails to demonstrate a good faith basis for the scheduling of EUO’s and fails to annex any evidence to demonstrate that the EUO scheduling letters were properly sent. With respect to the conflict of laws issue, plaintiff argues that claimant received treatment in New York, utilized a New York address for treatment, and the accident occurred in New York, and thus New York has more significant contacts in this instance, and therefore New York law controls.

In reply, defendant argues that all the relevant contacts to the issuance of the insurance policy were in Florida and New York courts have consistently held that the state where the policy is issued has the strongest interest in the case and therefore its law controls. As such, defendant contends that plaintiff’s remaining opposition is unavailable under Florida law.

Summary judgment is a drastic remedy which a court should employ only when there is no doubt as to the absence of triable issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issues of fact and entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986] and Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (see Assaf v Ropog Cab Corp., 153 AD2d 520 [1st Dept 1989]). It is well-settled that issue finding, not issue determination, is the key to summary judgment (see Rose v Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). Summary judgment will only be granted if there are no material, triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant’s papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so (Zuckerman v City of New York, 49 NY2d 557 [1980]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833[2014]; Vega v Restani Construction Corp., 18 NY3d 499, 503 [2012]).

This Court finds that defendant has failed to establish a prima facie showing of entitlement to a summary determination.

As an initial matter, “the first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved” (Matter of Allstate Ins. Co. (Stolarz), 81 NY2d 219 [1993]). A conflict is shown to exist where the laws in question must provide different substantive rules in each jurisdiction that are ‘relevant’ to the issue at hand and have a significant possible effect on the outcome of the trial (TBA Glob., LLC v Proscenium Events, LLC, 114 AD3d 571 [1st Dept 2014]).

Here, defendant asserts that Florida law must be used to determine whether there is a lack [*3]of coverage due to breach of a condition precedent as a result of claimant’s failure to appear for an EUO. However, New York law also holds that 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 (Mapfre Ins. Co. of New York v. Manoo, 140 AD3d 468 [2016]). Therefore, defendant fails to demonstrate a conflict of law that would have a significant effect on the outcome of the instant matter. As such, the court applies the law of New York, the forum state.

Hence, plaintiff’s claims are without merit if a claimant has not fully complied with conditions precedent to reimbursement prior to seeking judicial intervention (see Insurance Department Regulations [11 NYCRR] § 65-1.1).

Turning to defendant’s assertions regarding claimant’s failure to appear for scheduled EUOs and IMEs. Despite defendant’s assertions regarding Florida substantive law, defendant moves for summary judgment under New York CPLR 3212. Pursuant to 3212, a motion for summary judgment shall be supported by affidavit of a person having knowledge of the facts.

Joseph Celli, Vice President and Claims Manager for defendant’s underwriter, avows that two IME notices were mailed to claimant pursuant to defendant’s standard mailing practices. Celli also avers that two EUO notices were mailed to claimant pursuant to the same procedures. This Court finds that the procedures described in the affidavit sufficiently ensure the likelihood that EUO and IME notices are properly addressed and mailed. Therefore, contrary to plaintiff’s assertions, this Court must presume that the notices at issue in this matter were duly addressed and mailed (see Nassau Ins. Co. v. Murray, 46 NY2d 828 [1978]).

However, defendant nonetheless fails to meet its burden insofar as it fails to submit proof in admissible form from anyone with personal knowledge of the nonappearances. The affidavit of Joseph Celli is insufficient insofar as Celli makes conclusory assertions that claimant failed to appear for the scheduled EUOs. Celli fails to attest as to how he is aware of such information and fails to describe a standard business procedure utilized to record the alleged non-appearance. As such, Celli fails to demonstrate personal knowledge of the office procedures to establish claimant’s failure to appear for an EUO (Am. Tr. Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]). Furthermore, defendant fails to annex an affidavit of anyone with personal knowledge of claimant’s failure to appear for the scheduled IMEs at the physician’s office indicated by defendant. The assertions made by Celli in his affidavit regarding claimant’s failure to appear are inadmissible hearsay insofar as Celli fails to either avow that he was personally present in the physician’s office at the time of the appointment or has any personal knowledge of said physicians offices’ standard business procedure utilized to record the alleged non-appearance. As such, defendant also fails to establish claimant’s failure to appear for the scheduled IMEs. Therefore, defendant’s motion for summary judgment is denied as issues of fact remain as to whether plaintiff breached a condition precedent vitiating coverage.

All other claims and arguments have been considered and need not be addressed given the findings above. Accordingly, it is hereby

ORDERED that, defendant, OCEAN HARBOR CASUALTY INSURANCE COMPANY’s motion for summary judgment is denied, and it is further

ORDERED that, the plaintiff shall file a Notice of Trial within thirty (30) days of the date herein; and it is further

ORDERED that, the scope of trial in this matter is limited to whether defendant failed to appear for the EUOs and/or IMES.

This constitutes the decision and order of the Court.

The following papers were read on Defendant’s Motion for SUMMARY JUDGMENT,

Defendant moves the court pursuant to CPLR 3212 seeking summary judgment and a dismissal of the complaint which seeks $558.02 in unpaid medical bills for services rendered to claimant, Edouard Eguelino, on the grounds that claimant failed to appear for several Examinations Under Oath (“EUO”). Defendant also asserts that claimant failed to appear for duly scheduled Independent Medical Exams (IMEs). Moreover, defendant asserts that the subject policy was issued in Florida and therefore Florida law controls.

In support of its motion, defendant annexes, inter alia, an affirmation in support establishing the facts; the EUO and IME scheduling letters; denial letters; the bills at issue; the affidavit of Joseph Celli, Vice President and Claims Manager for defendant’s underwriter, who attests to defendant’s standard business procedures regarding investigations of claims, and the [*2]scheduling of EUOs and IMEs and denials of claims.

Plaintiff opposes the motion and contends that defendant fails to meet their burden to demonstrate entitlement to summary judgment. Specifically, plaintiff argues that defendant fails to annex any documentation to demonstrate claimant’s failure to appear for an IME. Additionally, plaintiff argues that defendant fails to annex an affidavit of personal knowledge to support to the non-appearance insofar as defendant only annexes the affidavit of its claims manager and fails to annex any physician affirmations. Also, plaintiff posits that defendant fails to demonstrate a good faith basis for the scheduling of EUO’s and fails to annex any evidence to demonstrate that the EUO scheduling letters were properly sent. With respect to the conflict of laws issue, plaintiff argues that claimant received treatment in New York, utilized a New York address for treatment, and the accident occurred in New York, and thus New York has more significant contacts in this instance, and therefore New York law controls.

In reply, defendant argues that all the relevant contacts to the issuance of the insurance policy were in Florida and New York courts have consistently held that the state where the policy is issued has the strongest interest in the case and therefore its law controls. As such, defendant contends that plaintiff’s remaining opposition is unavailable under Florida law.

Summary judgment is a drastic remedy which a court should employ only when there is no doubt as to the absence of triable issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issues of fact and entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986] and Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (see Assaf v Ropog Cab Corp., 153 AD2d 520 [1st Dept 1989]). It is well-settled that issue finding, not issue determination, is the key to summary judgment (see Rose v Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). Summary judgment will only be granted if there are no material, triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant’s papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so (Zuckerman v City of New York, 49 NY2d 557 [1980]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833[2014]; Vega v Restani Construction Corp., 18 NY3d 499, 503 [2012]).

This Court finds that defendant has failed to establish a prima facie showing of entitlement to a summary determination.

As an initial matter, “the first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved” (Matter of Allstate Ins. Co. (Stolarz), 81 NY2d 219 [1993]). A conflict is shown to exist where the laws in question must provide different substantive rules in each jurisdiction that are ‘relevant’ to the issue at hand and have a significant possible effect on the outcome of the trial (TBA Glob., LLC v Proscenium Events, LLC, 114 AD3d 571 [1st Dept 2014]).

Here, defendant asserts that Florida law must be used to determine whether there is a lack [*3]of coverage due to breach of a condition precedent as a result of claimant’s failure to appear for an EUO. However, New York law also holds that 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 (Mapfre Ins. Co. of New York v. Manoo, 140 AD3d 468 [2016]). Therefore, defendant fails to demonstrate a conflict of law that would have a significant effect on the outcome of the instant matter. As such, the court applies the law of New York, the forum state.

Hence, plaintiff’s claims are without merit if a claimant has not fully complied with conditions precedent to reimbursement prior to seeking judicial intervention (see Insurance Department Regulations [11 NYCRR] § 65-1.1).

Turning to defendant’s assertions regarding claimant’s failure to appear for scheduled EUOs and IMEs. Despite defendant’s assertions regarding Florida substantive law, defendant moves for summary judgment under New York CPLR 3212. Pursuant to 3212, a motion for summary judgment shall be supported by affidavit of a person having knowledge of the facts.

Joseph Celli, Vice President and Claims Manager for defendant’s underwriter, avows that two IME notices were mailed to claimant pursuant to defendant’s standard mailing practices. Celli also avers that two EUO notices were mailed to claimant pursuant to the same procedures. This Court finds that the procedures described in the affidavit sufficiently ensure the likelihood that EUO and IME notices are properly addressed and mailed. Therefore, contrary to plaintiff’s assertions, this Court must presume that the notices at issue in this matter were duly addressed and mailed (see Nassau Ins. Co. v. Murray, 46 NY2d 828 [1978]).

However, defendant nonetheless fails to meet its burden insofar as it fails to submit proof in admissible form from anyone with personal knowledge of the nonappearances. The affidavit of Joseph Celli is insufficient insofar as Celli makes conclusory assertions that claimant failed to appear for the scheduled EUOs. Celli fails to attest as to how he is aware of such information and fails to describe a standard business procedure utilized to record the alleged non-appearance. As such, Celli fails to demonstrate personal knowledge of the office procedures to establish claimant’s failure to appear for an EUO (Am. Tr. Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]). Furthermore, defendant fails to annex an affidavit of anyone with personal knowledge of claimant’s failure to appear for the scheduled IMEs at the physician’s office indicated by defendant. The assertions made by Celli in his affidavit regarding claimant’s failure to appear are inadmissible hearsay insofar as Celli fails to either avow that he was personally present in the physician’s office at the time of the appointment or has any personal knowledge of said physicians offices’ standard business procedure utilized to record the alleged non-appearance. As such, defendant also fails to establish claimant’s failure to appear for the scheduled IMEs. Therefore, defendant’s motion for summary judgment is denied as issues of fact remain as to whether plaintiff breached a condition precedent vitiating coverage.

All other claims and arguments have been considered and need not be addressed given the findings above. Accordingly, it is hereby

ORDERED that, defendant, OCEAN HARBOR CASUALTY INSURANCE COMPANY’s motion for summary judgment is denied, and it is further

ORDERED that, the plaintiff shall file a Notice of Trial within thirty (30) days of the date herein; and it is further

ORDERED that, the scope of trial in this matter is limited to whether defendant failed to appear for the EUOs and/or IMES.

This constitutes the decision and order of the Court.

The following papers were read on Defendant’s Motion for SUMMARY JUDGMENT,

Defendant moves the court pursuant to CPLR 3212 seeking summary judgment and a dismissal of the complaint which seeks $1,949.69 in unpaid medical bills for services rendered to claimant, Damally Caine, on the grounds that plaintiff failed to submit a No-Fault Application to defendant. Defendant contends that claimant failed to timely submit a No-Fault Application within thirty (30) days of the alleged accident and therefore is not an eligible injured person for coverage. In support of its motion, defendant annexes, inter alia, an opinion letter from the Insurance Department; case precedent; and an affidavit authored by Stephanie Scarfino, No-Fault Claim Representative for defendant, wherein she attests that defendant mailed plaintiff a request for a complete No-Fault Application and to date has not received one.

Plaintiff opposes the motion and contends that defendant has failed to establish entitlement to a summary determination. Specifically, plaintiff argues that defendant is precluded from asserting a thirty-day rule defense insofar as it has not issued a denial of plaintiff’s claim.

Summary judgment is a drastic remedy which a court should employ only when there is no doubt as to the absence of triable issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issues of fact and entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986] and Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (see Assaf v Ropog Cab Corp., 153 AD2d 520 [1st Dept 1989]). It is well-settled that issue finding, not issue determination, is the key to summary judgment (see Rose v Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). Summary judgment will only be granted if there are no material, triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant’s papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so (Zuckerman v City of New York, 49 NY2d 557 [1980]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833[2014]; Vega v Restani Construction Corp., 18 NY3d 499, 503 [2012]).

This Court finds that defendant has made a prima facie showing of entitlement to a summary determination which plaintiff has failed to refute.

The court finds that defendant’s assertion that the failure to submit a properly completed No-Fault Application precludes coverage meritorious. However, plaintiff correctly notes that a defense grounded in the thirty-day written notice of claim requirement pursuant to 11 NYCRR 65-2.4(b) is subject to preclusion if defendant fails to issue a timely denial (Compas Med., P.C. v ELRAC, Inc., 53 Misc 3d 138(A) [App Term 2016]). Here, both parties misinterpret the relevant sections of the No-Fault statute.

As an initial matter, it is well settled that plaintiff’s claims are without merit if a claimant has not fully complied with conditions precedent to reimbursement prior to seeking judicial intervention (see Insurance Department Regulations [11 NYCRR] § 65-1.1).

11 NYCRR 65-2.4 establishes two broad categories of conditions precedent to coverage, notice of claim and proof of claim. The parties’ contentions seemingly stem from an interpretation that the provider’s submission of a completed No-Fault Application (hereinafter “NF-2″) solely constitutes written notice of claim. The court acknowledges that this interpretation has merit insofar as, pursuant to 11 NYCRR 65-3.3[d],”[t]he written notice required by section 65-2.4 of this Part and the mandatory and additional personal injury protection endorsement(s) shall be deemed to be satisfied by the insurer’s receipt of a completed prescribed application for motor vehicle no-fault benefits (NYS form N-F 2) forwarded to the applicant pursuant to section 65-3.4(b).” However, this court finds that although the statute allows for the submission of a completed NF-2 to satisfy the written notice of claim condition [*2]precedent, said submission is more appropriately interpreted as primarily satisfying the proof of claim condition precedent.

A review of the statute’s structure reveals the proper order of the steps involved in the processing of a No-Fault claim.

11 NYCRR 65-3.3 provides further detail of the requirements for insurers to be provided notice of the claim pursuant to § 2.4. Subsequently, § 3.4 mandates that insurers demonstrate to providers an acknowledgment of the claim once they are noticed. Thereafter, § 3.5 details the information and/or compliance insurers are entitled to request and receive for the purposes of verifying the claim. This structure of notice, acknowledgement, and then verification is consistent with the two conditions precedent established by § 2.4, notice and proof.

Pursuant to § 3.4(b), insurers are required to forward to providers a request for a completed NF-2 after they receive notice of the claim, “unless the insurer will pay the claim as submitted within 30 calendar days, then, within five business days after notice is received the insurer shall forward to the applicant the prescribed application for motor vehicle no-fault benefits” (11 NYCRR 65-3.4[b]).

Subsequently, pursuant to §3.5(a) it is the insurer’s receipt of the completed NF-2 that begins the verification process, “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.

Although the statute here once again equates the submission of a completed NF-2 with written notice, as it does in § 3.3(d), it more unequivocally associates same with proof of claim in § 3.5(f) where it states that “[a]n insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form. An insurer, however, may require the submission of the prescribed application for motor vehicle no-fault benefits” (11 NYCRR 65-3.5[f]).

11 NYCRR 65-2.4(c) identifies, explicitly, several forms of proof of claim that may be required by an insurer. This includes written proof of claim under oath; Examinations Under Oath (EUOs); and Independent Medical Examinations (IMEs). It is this Court’s opinion that a completed NF-2 primarily constitutes written proof of claim under oath. Same comports with the statutes allowance of the submission of a completed NF-2 to satisfy the written notice requirement. As stated earlier, where an insurer is provided notice of claim in some other fashion, it is required to acknowledge the claim by forwarding an NF-2 for completion and is entitled to require its submission for verification. Insofar as the submission of an NF-2 is a required step to begin the verification process, it is reasonable for same to constitute sufficient notice of claim and expedite the overall process as it already intrinsically eliminates the need for the acknowledgement step.

As the submission of a completed NF-2 primarily constitutes written proof of claim under oath, rather than notice, the thirty-day rule under 11 NYCRR 65-2.4(b) does not apply. The court may have been inclined to find that the forty-five (45) day rule for proof of claim under 11 NYCRR 65-2.4(d) was applicable, however, case precedent regarding the other forms of proof of claim that are explicitly recognized by § 2.4(d) dictates otherwise.

As previously stated, § 2.4(d) explicitly names written proof of claim under oath, EUOs and IMEs. It is well settled that when the latter two are requested by an insurer and the provider fails to comply, under certain conditions, said failure to comply is considered a breach of a [*3]condition precedent precluding coverage (see Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468 [2016]); see also Unitrin Advantage Ins. Co. v Advanced Orthopedics & Joint Preserv. P.C., 2018 NY Slip Op 33296[U], *9 [Sup Ct, NY County 2018], citing Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3D 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Therefore, this Court finds that the submission of a completed NF-2, just as the other explicitly named proofs of claim in 11 NYCRR 65-2.4(d), constitutes a condition precedent to coverage. Thus, failure to submit a completed NF-2 constitutes a breach of condition precedent, precluding coverage.

In the instant case, Stephanie Scarfino, No-Fault Claim Representative for defendant, avers in her affidavit that requests for a properly executed No-Fault application were mailed to plaintiff on June 24, 2022, July 25, 2022, and September 20, 2022, pursuant to defendant’s standard mailing procedures. This Court finds that the procedures described in said affidavit sufficiently ensure the likelihood that IME notices are properly addressed and mailed. Therefore, this Court must presume that the IME notices at issue in this matter were duly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]).

Furthermore, Scarfino avers, pursuant to her review of defendant’s electronic records in compliance with defendant’s standard office practice, that, to date, defendant has not received a properly executed No-Fault application from plaintiff. As such, defendant establishes their non-receipt of the documents necessary to determine coverage (Nationwide Ins. Co. v Dye, 170 AD2d 683 [2d Dept 1991]).

Therefore, defendant has established through its annexed exhibits that plaintiff failed to comply with a condition precedent to coverage and plaintiff’s opposition fails to raise an issue of fact. Thus, defendant’s motion for summary judgment is granted.

All remaining arguments have been considered and are either without merit or need not be addressed given the findings above. Accordingly, it is hereby

ORDERED that, defendant, Kemper Independence Insurance Company’s motion for summary judgment is granted, and the complaint is dismissed in its entirety as against said defendant; and it is further

ORDERED that, the clerk is hereby directed to enter judgment accordingly.

This constitutes the decision and order of the Court.

The following papers were read on Defendant’s Motion for SUMMARY JUDGMENT,

Defendant moves the court pursuant to CPLR 3212 seeking summary judgment and a dismissal of the complaint which seeks $1,949.69 in unpaid medical bills for services rendered to claimant, Damally Caine, on the grounds that plaintiff failed to submit a No-Fault Application to defendant. Defendant contends that claimant failed to timely submit a No-Fault Application within thirty (30) days of the alleged accident and therefore is not an eligible injured person for coverage. In support of its motion, defendant annexes, inter alia, an opinion letter from the Insurance Department; case precedent; and an affidavit authored by Stephanie Scarfino, No-Fault Claim Representative for defendant, wherein she attests that defendant mailed plaintiff a request for a complete No-Fault Application and to date has not received one.

Plaintiff opposes the motion and contends that defendant has failed to establish entitlement to a summary determination. Specifically, plaintiff argues that defendant is precluded from asserting a thirty-day rule defense insofar as it has not issued a denial of plaintiff’s claim.

Summary judgment is a drastic remedy which a court should employ only when there is no doubt as to the absence of triable issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issues of fact and entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986] and Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (see Assaf v Ropog Cab Corp., 153 AD2d 520 [1st Dept 1989]). It is well-settled that issue finding, not issue determination, is the key to summary judgment (see Rose v Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). Summary judgment will only be granted if there are no material, triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant’s papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so (Zuckerman v City of New York, 49 NY2d 557 [1980]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833[2014]; Vega v Restani Construction Corp., 18 NY3d 499, 503 [2012]).

This Court finds that defendant has made a prima facie showing of entitlement to a summary determination which plaintiff has failed to refute.

The court finds that defendant’s assertion that the failure to submit a properly completed No-Fault Application precludes coverage meritorious. However, plaintiff correctly notes that a defense grounded in the thirty-day written notice of claim requirement pursuant to 11 NYCRR 65-2.4(b) is subject to preclusion if defendant fails to issue a timely denial (Compas Med., P.C. v ELRAC, Inc., 53 Misc 3d 138(A) [App Term 2016]). Here, both parties misinterpret the relevant sections of the No-Fault statute.

As an initial matter, it is well settled that plaintiff’s claims are without merit if a claimant has not fully complied with conditions precedent to reimbursement prior to seeking judicial intervention (see Insurance Department Regulations [11 NYCRR] § 65-1.1).

11 NYCRR 65-2.4 establishes two broad categories of conditions precedent to coverage, notice of claim and proof of claim. The parties’ contentions seemingly stem from an interpretation that the provider’s submission of a completed No-Fault Application (hereinafter “NF-2″) solely constitutes written notice of claim. The court acknowledges that this interpretation has merit insofar as, pursuant to 11 NYCRR 65-3.3[d],”[t]he written notice required by section 65-2.4 of this Part and the mandatory and additional personal injury protection endorsement(s) shall be deemed to be satisfied by the insurer’s receipt of a completed prescribed application for motor vehicle no-fault benefits (NYS form N-F 2) forwarded to the applicant pursuant to section 65-3.4(b).” However, this court finds that although the statute allows for the submission of a completed NF-2 to satisfy the written notice of claim condition [*2]precedent, said submission is more appropriately interpreted as primarily satisfying the proof of claim condition precedent.

A review of the statute’s structure reveals the proper order of the steps involved in the processing of a No-Fault claim.

11 NYCRR 65-3.3 provides further detail of the requirements for insurers to be provided notice of the claim pursuant to § 2.4. Subsequently, § 3.4 mandates that insurers demonstrate to providers an acknowledgment of the claim once they are noticed. Thereafter, § 3.5 details the information and/or compliance insurers are entitled to request and receive for the purposes of verifying the claim. This structure of notice, acknowledgement, and then verification is consistent with the two conditions precedent established by § 2.4, notice and proof.

Pursuant to § 3.4(b), insurers are required to forward to providers a request for a completed NF-2 after they receive notice of the claim, “unless the insurer will pay the claim as submitted within 30 calendar days, then, within five business days after notice is received the insurer shall forward to the applicant the prescribed application for motor vehicle no-fault benefits” (11 NYCRR 65-3.4[b]).

Subsequently, pursuant to §3.5(a) it is the insurer’s receipt of the completed NF-2 that begins the verification process, “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.

Although the statute here once again equates the submission of a completed NF-2 with written notice, as it does in § 3.3(d), it more unequivocally associates same with proof of claim in § 3.5(f) where it states that “[a]n insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form. An insurer, however, may require the submission of the prescribed application for motor vehicle no-fault benefits” (11 NYCRR 65-3.5[f]).

11 NYCRR 65-2.4(c) identifies, explicitly, several forms of proof of claim that may be required by an insurer. This includes written proof of claim under oath; Examinations Under Oath (EUOs); and Independent Medical Examinations (IMEs). It is this Court’s opinion that a completed NF-2 primarily constitutes written proof of claim under oath. Same comports with the statutes allowance of the submission of a completed NF-2 to satisfy the written notice requirement. As stated earlier, where an insurer is provided notice of claim in some other fashion, it is required to acknowledge the claim by forwarding an NF-2 for completion and is entitled to require its submission for verification. Insofar as the submission of an NF-2 is a required step to begin the verification process, it is reasonable for same to constitute sufficient notice of claim and expedite the overall process as it already intrinsically eliminates the need for the acknowledgement step.

As the submission of a completed NF-2 primarily constitutes written proof of claim under oath, rather than notice, the thirty-day rule under 11 NYCRR 65-2.4(b) does not apply. The court may have been inclined to find that the forty-five (45) day rule for proof of claim under 11 NYCRR 65-2.4(d) was applicable, however, case precedent regarding the other forms of proof of claim that are explicitly recognized by § 2.4(d) dictates otherwise.

As previously stated, § 2.4(d) explicitly names written proof of claim under oath, EUOs and IMEs. It is well settled that when the latter two are requested by an insurer and the provider fails to comply, under certain conditions, said failure to comply is considered a breach of a [*3]condition precedent precluding coverage (see Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468 [2016]); see also Unitrin Advantage Ins. Co. v Advanced Orthopedics & Joint Preserv. P.C., 2018 NY Slip Op 33296[U], *9 [Sup Ct, NY County 2018], citing Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3D 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Therefore, this Court finds that the submission of a completed NF-2, just as the other explicitly named proofs of claim in 11 NYCRR 65-2.4(d), constitutes a condition precedent to coverage. Thus, failure to submit a completed NF-2 constitutes a breach of condition precedent, precluding coverage.

In the instant case, Stephanie Scarfino, No-Fault Claim Representative for defendant, avers in her affidavit that requests for a properly executed No-Fault application were mailed to plaintiff on June 24, 2022, July 25, 2022, and September 20, 2022, pursuant to defendant’s standard mailing procedures. This Court finds that the procedures described in said affidavit sufficiently ensure the likelihood that IME notices are properly addressed and mailed. Therefore, this Court must presume that the IME notices at issue in this matter were duly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]).

Furthermore, Scarfino avers, pursuant to her review of defendant’s electronic records in compliance with defendant’s standard office practice, that, to date, defendant has not received a properly executed No-Fault application from plaintiff. As such, defendant establishes their non-receipt of the documents necessary to determine coverage (Nationwide Ins. Co. v Dye, 170 AD2d 683 [2d Dept 1991]).

Therefore, defendant has established through its annexed exhibits that plaintiff failed to comply with a condition precedent to coverage and plaintiff’s opposition fails to raise an issue of fact. Thus, defendant’s motion for summary judgment is granted.

All remaining arguments have been considered and are either without merit or need not be addressed given the findings above. Accordingly, it is hereby

ORDERED that, defendant, Kemper Independence Insurance Company’s motion for summary judgment is granted, and the complaint is dismissed in its entirety as against said defendant; and it is further

ORDERED that, the clerk is hereby directed to enter judgment accordingly.

This constitutes the decision and order of the Court.

Upon reading Petitioner’s unopposed Petition to Vacate Arbitration Award (“Petition“), the Petition is decided as follows.

On August 2, 2019, Arbitrator Taylor awarded Respondent $3,129.75 in No-Fault benefits relating to an alleged motor vehicle accident on October 18, 2017. Master Arbitrator Godson upheld the award in a decision dated December 24, 2019. On February 11, 2020, Petitioner’s filed the Petition. Respondents have not opposed or otherwise appeared in this Petition.

Petitioner sought relief under CPLR 7511(b) which states that the grounds for vacating an arbitration decision are “(i) corruption, fraud or misconduct in procuring the award; or (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection” [emphasis added].

The Petitioner asserted, having submitted a peer review by Dr. Polavarapu alleging that the disputed services provided by Respondent EXCELL CLINICAL LAB were medically unnecessary, that the “burden” was then on Respondents to establish medical necessity. Respondents allegedly failed to do so. Indeed, they did not offer any IME Report or peer review of their own. Petitioner asserted that Respondents’ “failure” to meet their “burden” meant that the Arbitrators’ decisions were not “final and definite”.

The Court disagrees. Petitioner’s outline of how the evidentiary burden shifts between Petitioner and Respondent properly describes the dynamics during a trial determining entitlement or a motion for summary judgment (see Citywide Social Work & Psychological Servs., PLLC v Allstate Ins. Co., 20 Misc 3d 1124[A], 1124A, 2008 NY Slip Op 51601[U], *1 [Sup Ct, Nassau County 2008]; Amaze Med. Supply, Inc. v Eagle Ins. Co., 2 Misc 3d 128[A], 128A, 2003 NY Slip Op 51701[U], *1 [App Term 2003]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 18 Misc 3d 1147[A], 1147A, 2008 NY Slip Op 50456[U], *1 [Civ Ct, Kings County 2008]). However, the same evidentiary standards do not apply to no-fault arbitrations (see Am. Tr. Ins. Co. v Right Choice Supply, Inc., 78 Misc 3d 890, 891 [Sup Ct, Kings County 2023]). “When determining an issue of medical necessity, a No-Fault hearing arbitrator is not required to apply the well-settled case law holding that the health service provider must submit expert opinion evidence which meaningfully refers to and either discusses or rebuts the conclusions of the insurer’s expert witness” (Id.).

“Judicial review of arbitration awards is extremely limited” (Matter of O’Neill v GEICO Ins. Co., 162 AD3d 776, 777 [2d Dept 2018]). “Vacatur of an award pursuant to [CPLR 7511(b)(iii)] is warranted only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Id. [internal citations omitted]). Petitioner here did not allege a violation of strong public policy or that the award clearly exceeded a specifically enumerated limit. The Court does not find either Arbitrator’s reasoning to be irrational. Arbitrator Taylor’s decision indicated a “close examination” of the materials submitted by Petitioner and discussed her reasoning. In particular, she found that an MRI report showing “interstitial tear of the ACL and focal vertical tear medial meniscus . . . reasonably establish a basis to perform surgery to repair the tears of the ACL and medial meniscus” (Exhibit A, Petition). Master Arbitrator Godson concurred.

On the topic of finality: “Nothing in the award would lead the parties to a new controversy or litigation, the rights and obligations of the parties are clearly established, and the controversy between the parties is clearly resolved. Accordingly, the arbitrator’s award is sufficiently final and definite” (Geico Indem. Co. v. Ace USA Grp., 2022 NYLJ LEXIS 1101, *7).

Accordingly, it is

ORDERED that the Petition to Vacate Arbitration Award is DENIED in its entirety.

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

Plaintiff moves This Honorable Court by Notice of Motion to Amend Summons and Complaint and Add New Party pursuant to CPLR 305(c), CPLR 2001, and CPLR 3025(B) to remove Defendant Progressive Northern Insurance Company as outgoing defendant and to add [*2]Country Wide Insurance Company as incoming defendant, and for such other and further relief deemed just and proper.

Plaintiff medical provider UGP Acupuncture P.C. (hereinafter referred to as UGP) commenced this No-Fault action against Insurer Defendant Progressive Northern Insurance Company (hereinafter referred to as Progressive) for payment reimbursement for medical services rendered to alleged EIP-Assignor for injuries allegedly sustained as a result of a motor vehicle accident (hereinafter referred to as MVA) occurring on or about July 22, 2018. Summons and complaint filed with clerk of court on January 11, 2021. Defendant failed to serve Answer thus Plaintiff filed for Default Judgment on July 22, 2021, which was rejected by clerk of court on July 5, 2022. Thereafter, issue was joined on August 12, 2021, service of Defendant’s Answer, dated August 5, 2021, which was acknowledged as received by Plaintiff on August 16, 2021, and filed with clerk of court on or about October 14, 2021. The Parties executed Stipulation of Settlement and Discontinuance dated July 23, 2021 in which was contained: “The index number 700545/21 is preserved for Plaintiff to reserve the correct insurance carrier.” (NYSCEF document #4).

Thereabouts ten months after the execution of the Stipulation of Settlement and Discontinuance disposing the case, Plaintiff filed on May 28, 2022, the instant Motion to Amend to add new incoming Insurer Defendant Country Wide Insurance Company which was dated and served upon both outgoing No-Fault Insurer Defendant and purported incoming No-Fault Insurer Defendant on September 21, 2021, two months after the disposition of the case by the execution of the Stipulation of Settlement and Discontinuance. This instant motion to Amend was first on to be heard on June 30, 2022. On that date and continuing to the present, outgoing No-Fault Insurer Defendant did not file any responsive papers to the motion. After this first appearance on August 23, 2023, two years after the execution of the Stipulation of Settlement and Discontinuance disposing the case, it was uploaded to NYSCEF. The motion was adjourned to November 13, 2023, then to February 20, 2024. On February 20, 2024, This Court presided, upon which both Plaintiff and outgoing No-Fault Insurer Defendant did appear in which outgoing No-Fault Insurer Defendant asserted that it had no objection to the motion to amend, thereby in the routine matter of course, Interim Order was issued adjourning the motion to March 25, 2024 and ordering Plaintiff to mail the papers to incoming No-Fault Insurer Defendant with proof of its address within 20 days of the order. However, Plaintiff failed to state that incoming No-Fault Insurer Defendant had been previously served on September 21, 2021. More importantly, both Parties, more so particularly to the detriment of the outgoing No-Fault Insurer Defendant, failed to substantively convey to This Court’s attention the import of the August 31, 2023 NYSCEF filed Stipulation of Settlement which although unintended, was effectively nevertheless a de-facto and a de jure disposition of the case in its entirety. Having been adjourned from March 25, 2024 to May 22, 2024 then May 24, 2024, on which oral arguments were heard and decision was reserved.

Over the past year, This Court has presided over an exponentially rising trend of no-fault motions to amend to replace an incorrect outgoing No-Fault Insurer Defendant with an alleged purported incoming No-Fault Insurer Defendant, with cases having been filed many years [*3]previously. Many of these motions to amend at first blush ab initio evidenced various defenses available to the purported incoming No-Fault Insurer Defendant, i.e. statute of limitations as well as violations of the stringent no-fault insurance law timelines, inter alia. Nevertheless, This Court deemed it an unauthorized abuse of the exercise of judicial discretion to sua sponte address potential defenses of the incoming No-Fault Insurer Defendant. Most obviously, an outgoing No-Fault Insurer Defendant is incentivized and has a vested interest to either stipulate to such amendment, not oppose, or abstain for the amendment to be granted by the Court, which would relieve the outgoing No-Fault Insurer Defendant from further litigation of the case and the attendant costs thereof. In the interest of the administration of justice and judicial efficiency and economy, notwithstanding the No-Fault Plaintiff’s Bar objections, This Court devised an Interim Order, directing the plaintiffs to give notice by mailing a copy of the motion to amend to the purported incoming No-Fault Insurer Defendant within 20 days and motion adjourned to a date certain for oral argument and ultimate decision allowing incoming No-Fault Insurer Defendant to have an opportunity to be heard and present any of its dispositive defenses in opposition to the motion to amend.

At some point after This Court instituted the interim order procedure, plaintiffs and outgoing defendants of their own volition in attempt to circumvent court intervention would enter into stipulations to amend inuring to both their benefits in an attempt to bypass the court’s interim order, which This Court rejected. Similarly, albeit more so improperly, in this instant matter, Plaintiff and outgoing Defendant herein attempted to entirely bypass judicial intervention altogether and issue order and directive directly to the clerk of court. Here, Plaintiff filed motion to amend with clerk of court on May 28, 2022, although served September 21, 2021, upon outgoing No-Fault Insurer Defendant and purported incoming No-Fault Insurer Defendant Countrywide Insurance Company, of which parties failed to advise This Court at the February 20, 2024 appearance, which would have obviated the issuance of the Interim Order. It is a rarity for This Court to encounter the proposed incoming No-Fault Insurer Defendant having been served or given notice of the underlying motion to amend. On the contrary, plaintiffs have quite zealously argued against interim orders for providing notice to the purported incoming No-Fault Insurer Defendants since not yet a party and having no standing until the amendment is judicially granted. It is this lack of notice to the incoming No-Fault Insurer Defendant which propelled This Court to devise interim orders.

Here, since the parties failed to alert This Court that incoming No-Fault Insurer Defendant had been previously served thereby already being noticed, thus unnecessarily the interim order was issued accordingly as a matter of course for notice to incoming No-Fault Insurer Defendant Countrywide Insurance Company within 20 days and adjourned for oral argument, which occurred on May 24, 2024. It was at this time that Defendant first argued that it was no longer part of the case since it had previously settled with Plaintiff, notwithstanding that it full-well knew that it was not the proper Defendant-Insurer. In the interest of dispositive finality and reduction of litigation costs, nevertheless it settled for nuisance value for attorney fees and filing fee by Stipulation of Settlement and Discontinuance, fully executed, dated July 23, 2021. This Stipulation of Settlement and Discontinuance was not so ordered by any jurist. Therefore, this agreement was solely between the parties, without nary act of judicial intervention. Plaintiff woefully errs in its argument that the clause contained within the Stipulation of Settlement and Discontinuance, “1. The index number 700545/21 is preserved for Plaintiff to reserve the correct insurance carrier.” (NYSCEF document #4), binds the court to [*4]do what it says to do- namely to preserve the index number merely based on the agreement of litigating parties of their own volition without judicial intervention. Herein, based upon Plaintiff’s very argument that interim orders are procedurally improper since incoming No-Fault Insurer Defendant has no standing until amendment judicially granted, likewise, in the same vein, by virtue of settling and discontinuing with the sole party defendant with standing, the index number is thereby rendered extinguished and disposed.^[FN1] As herein, an index number without any party defendant is a rudderless nullity that cannot be preserved by mere contract by the party litigants in the court’s administration of justice. Certainly, party litigants may contractually mutually agree by stipulation to all manners and variations of relief, however, the relief may not be sanctioned by, nor be binding upon, nor be abided by the Court. The marking of this index number as disposed and the acceptance of the filing of the motion to amend as being filed post-disposition are merely ministerial acts of the clerk of court which is devoid of discretion. The discretion herein lies with the court’s judicial intervention to rectify, nullify and invalidate the improper language Plaintiff seeks to enforce upon the clerk of court herein. This Court rejects Plaintiff’s argument and finds that the Stipulation of Settlement and Discontinuance dated July 23, 2021 renders the index number entirely disposed ^[FN2] .

Plaintiff’s further argument that despite the foregoing, This Court lacks the judicial discretion to sua sponte vacate its Interim Order dated February 20, 2024, is rejected. The court is vested with judicial discretion to be exercised scrupulously and providently. Although, such exercise is not unfettered and is limited particularly in granting dispositive relief sua sponte ^[FN3] . Most recently but a mere few months ago, it has been upheld : “Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” (Hersko v Hersko, 224 AD3d 810, 812-813 [2d Dept 2024] citing Newburgh Commercial Dev. Corp. v Cappelletti, 216 AD3d 978, 981 [2d Dept 2023] and Robinson v Big City Yonkers, Inc., 179 AD3d 961, 963 [2d Dept 2020]). Further, but a mere month ago, it was held:

“Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment”

(Am. Home Mtge. Servicing, Inc. v Kaplan, — AD3d —, 2024 NY Slip Op 02294 [2024] quoting Adams v Fellingham, 52 AD3d 443, 444 [2d Dept 2008] citing US Bank N.A. v Ashley, 202 AD3d 1142, 1144 [2d Dept 2022]; United Airconditioning Corp. v Axis Piping, 194 AD3d 981, 984-985 [2d Dept 2021]; JSO Assoc., Inc. v Price, 104 AD3d 737, 738 [2d Dept 2013]).

“[A] substantive change to a prior order or judgment . . . cannot be made under CPLR 5019(a), even with notice to the parties and an opportunity to be heard. Trial courts have no revisory or appellate authority to correct by amendments any errors of substance in prior orders or judgments”

Unbeknownst to This Court, it was based upon erroneous facts that the Interim Order was granted on an entirely disposed index number and that the incoming Defendant Countrywide Insurance Company had previously been provided notice by service on September 21, 2021. It was incumbent on the parties to have advised This Court of these two facts, which they failed to so do. Thus, the Interim Order should not have been issued ab initio and it is a provident exercise of judicial discretion in the justiciable administration of justice that it be vacated sua sponte. This is not dispositive judicial relief here, since this index number was previously disposed prior to the May 28, 2022 filing of the motion to amend by party litigants’ own volition by virtue of the mutually contractually agreed upon Stipulation of Settlement and Discontinuance. Rather, this is a judicial administrative rectification of the clerk of court files and records. The procedurally improper language as to the contradictory and incongruous attempted hybrid Stipulation of Settlement and Discontinuance yet reserving the preservation of the index number devoid of any party defendant by mere contract of party litigants without judicial intervention, is wholly procedurally improper and is thus rejected. Neither is it herein revisory or an exercise of appellate authority in the sua sponte vacating of the Interim Order. This Court’s sua sponte exercise of judicial discretion to vacate this February 20, 2024 Interim Order is warranted by the mistake and irregularity of the foundation underlying its issuance based upon the facts and proof plainly appearing in the clerk of court files and records, Plaintiff’s and Defendant’s papers; it is consistent with the relief sought in the motion to amend; it does not affect a substantial right nor prejudices neither party since they both of their own volition mutually contractually settled and discontinued this action no matter how in artfully drafted to their detriment in attempt to improperly impose directive without judicial intervention upon the clerk of court.

For the foregoing reasons, This Court Sua Sponte Vacates Interim Order dated February 20, 2024, and Plaintiff’s Motion to Amend Summons and Complaint and Add New Party pursuant to CPLR 305 (c), CPLR 2001, and CPLR 3025 (b) to remove outgoing No-Fault Insurer Defendant Progressive Northern Insurance Company as outgoing defendant and to add proposed incoming No-Fault Insurer Countrywide Insurance Company is hereby deemed moot as index number was disposed as of July 23, 2021 by Stipulation of Settlement and Discontinuance.

This constitutes the opinion, decision, and order of This Honorable Court.