Upon the foregoing cited papers and after oral argument, Plaintiff’s Motion to Dismiss Affirmative Defenses and Advanced Motion to Compel Discovery; and Defendant’s Cross-Motion for Summary Judgment are Decided hereby as follows:

Defendant’s Cross-Motion for Summary Judgment is GRANTED; and Plaintiff’s Motions to Dismiss Affirmative Defenses and to Compel Discovery are DENIED as moot.

This Court finds that Defendant demonstrated Plaintiff failed to comply with the timely verification requests issued pursuant to 11 NYCRR §65-3.5(o) within 120 days, and that Plaintiff failed to demonstrate that it provided the requested verification or set forth a reasonable justification for its failure to comply with Defendant’s verification requests, as required pursuant to 11 NYCRR §65-3.5(o). Defendant submitted admissible evidence that it had not received the requested documentary verification. In Plaintiff’s first affirmation in opposition submitted, Doc. 10 on NYSCEF, the affidavit of Plaintiff’s owner merely states he mailed the requested verification on 5/16/19 to the address designated by the Defendant on the verification requests “to the extent such response was proper and, in [his] possession,” and without any corroborating documentary proof of compliance with the verification requests. Rendering, the affidavit insufficient to meet its burden (see NYSCEF Doc. 20 paragraph 6). This language has been found by Appellate Term 2nd Department to be “insufficient to raise a triable issue of fact.” In paragraph 8 of that same affidavit, Plaintiff attests that he “responded to and mailed all requested documentation that was “proper and which Plaintiff had access to” (see Doc. 20 paragraph 8). Furthering the insufficiency of this affidavit to raise a triable issue of fact pursuant to the Appellate Term 2nd Department. Therefore, Plaintiff failed to demonstrate that it had provided responses to the requested verifications or alternatively, failed to set forth a reasonable justification for its failure to comply with Defendant’s verification requests (see Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143 [A] [App. Term 2nd Dept. July 1, 2022]).

In Plaintiff’s Amended Opposition filed fifteen (15) months after Defendant served its Reply [*2]affirmation, Doc. 27 on NYSCEF, the amended affidavit of Plaintiff’s owner merely states that he mailed the requested verification responses on 5/16/19 to the address designated by Defendant on its verification requests. Yet, in paragraph 8 of that same affidavit, Plaintiff’s affiant still qualifies his response in attesting that he “responded to and mailed all requested documentation that was ‘proper and which Plaintiff had access to'”, and yet still without corroborating documentary proof of compliance with the verification requests. Once again, rendering the amended affidavit insufficient to meet its burden (see Doc. 27 paragraph 8). And yet again, furthering the insufficiency of this amended affidavit to raise a triable issue of fact pursuant to the Appellate Term 2nd Department. Therefore again, Plaintiff failed to demonstrate that it had provided responses to the requested verifications or alternatively, failed to set forth a reasonable justification for its failure to comply with Defendant’s verification requests (see Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143 [A] [App. Term 2nd Dept. July 1, 2022]; Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 77 Misc 3d 129 [A] [App. Term 2nd Dept. December 9, 2022]; Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 2023 NY Slip Op. 50794 [U] [App. Term 2nd Dept. July 21, 2023]).

Plaintiff submits 197 pages of correspondences from Plaintiff to Defendant objecting to the verification requests stating that State Farm was not entitled to the information requested and unilaterally determined the verification requests to be a nullity (see Doc. 37 of Plaintiff’s Amended Opposition). This issue was specifically addressed in a recent Appellate Term 2nd decision dated February 14, 2025. In Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 2025 NY Slip Op 50195(U) (App. Term 2nd Dept.), The Court held, “Contrary to plaintiff’s further contention, it was not improper for defendant to seek, during the claim verification stage, information – such as management agreements, W-2 forms, business-related bank records and lease agreements — for the purpose of determining whether plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16[2] [12]; State Farm Mut. Aut. Ins. Co. v. Mallela, 4NY3d 313, 827 NE2d 758, 794 NYS 2d 700 [2005]).” Moreover, the Court further held, “[a]s plaintiff objected to the verification requests claiming they were nullities, the record establishes that plaintiff did not “provide within 120 calendar days from the date of the initial request either all such verification under [plaintiff’s] control or possession or written proof providing reasonable justification for the failure to comply’ (11 NYCRR 65-3.5 [o]). Consequently, the arguments raised on appeal lack merit” (id. at [*3] [*4], 2025 NY Slip Op 50195 [U] [App. Term 2nd]).

Further, This Court rejects Plaintiff’s alternative argument that the voluminous correspondences of objections rendering Defendant’s verification requests as nullities, nevertheless sets forth a reasonable justification for its failure to respond thereby establishing a triable issue of fact (see Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 2025 NY Slip Op 50195 [U] [App Term 2nd Feb. 14, 2025]; City Care Acupuncture, P.C. & Jamaica Wellness Med., P.C., a/a/o Sergheiciuc v. Allstate Prop. & Cas. Ins. Co., No. 2015-1846 Q C, 2017 WL 6543604, at *[1] [App. Term, 2d, 11th, & 13th Jud. Dists. 2017]; Remedy Chiropractic, P.C. v Nationwide Ins. 2022 NY Slip Op 50935 [U] [App. Term 2nd Dept September 23, 2022]). Defendant has met its burden for summary judgment as a matter of law. Plaintiff fails to establish a scintilla of a triable issue of fact in rebuttal upon the shifting of the burden.JL.

Therefore, Plaintiff’s Complaint is hereby DISMISSED with PREJUDICE.

This Constitutes the Decision and Order of The Court.

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

Defendant moves pursuant to CPLR 3212 for an Order granting summary judgment based on the Assignor, Ismael Sejour’s failure to attend an examination under oath. On a motion for summary judgment, the moving party must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. CPLR § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039 (2016); Kershaw v. Hosp. for Special Surgery, 114 AD3d 75 (1st Dept. 2013). Thus, on this summary judgment motion, Defendant has the burden of demonstrating that there are no issues of fact regarding whether proper notices of the examination under oath were mailed to the Assignor, and that the Assignor failed to appear for the examination under oath. Bath Ortho Supply Inc. v New York Central Mut. Fire Ins. Co., 2012 NY Slip Op 50271(U), (App Term, 1st Dept 2002).

In order to meet this burden, the movant may submit an affidavit by someone with personal knowledge of the facts establishing that the Assignor was properly noticed and failed to appear. CPLR 3212(b). In 2024, the Legislature eased the affidavit requirement by permitting the submission of an affirmation instead. CPLR 2106. In support of the motion, Defendant submits the affirmation and affidavits of its attorney Mr. Allan S. Hollander, President of Hollander Legal Group, PC (Attorney) to establish that the notices directing the Assignor to appear were properly mailed and that the Assignor failed to appear. The Attorney’s affirmation and affidavits use many of the boilerplate language tailored to meet the statutory requirements such as: that the mailings were created and maintained in the ordinary course of business, that Defendant has the duty to create and mail the documents in the ordinary course of business, that [*2]the affidavit is made from personal knowledge, that the record is made at or near the time of the alleged transaction, and/or that the affiant has personal knowledge of the facts because they oversee the department or the office procedures. However, it is not sufficient to merely recite buzz words or boilerplate language tailored to meet evidentiary requirements. The affiant must demonstrate that the information alleged is obtained by personal knowledge of the facts from the affiant’s personal observation, personal experience, or personal involvement in the process. See: 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:18; and John H. Wigmore, Evidence in Trials at Common Law § 657 (Chadbourn rev. 1979)(personal knowledge is the impression derived through the exercise of one’s senses, not from the report of others).

Although the Attorney states that he oversees all the office procedures, he does not establish personal knowledge from observation or involvement with the procedures. The Attorney also states that his knowledge is “based upon a review of the file maintained by this office,” and that “counsel for” Defendant or “an individual with personal knowledge of the information therein” created and mailed the notices. Thus, contradicting the allegation of personal knowledge. Moreover, the Attorney states that the notices were mailed via the United States Post Office by certified mail, return receipt requested and first-class mail. However, the notices attached to the motion indicate that the notices were only sent via first-class mail. The Attorney also fails to attach proof of certified mail, which would have met the burden. The contradictory affidavit and notices raise issues of fact as to whether the notices were properly mailed and whether the Attorney has personal knowledge.

Alternatively, the movant may also meet its burden by providing proof of the actual mailings, such as affidavits/affirmations of mailing or post office receipts with attendant signatures, or by establishing the presumption of mailing and receipt by providing proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. U.S. Bank N.A. v Pickering-Robinson, 197 AD3d 757 (2021) quoting Citibank, N.A. v Conti-Scheurer, 172 AD3d 17 (2019); see Caliber Home Loans, Inc. v Weinstein, 197 AD3d 1232 (2021). In order for the presumption of mailing and receipt to arise, the standard mailing procedures followed by insurers in the regular course of business must be geared so as to ensure the likelihood that a notice is always properly addressed and mailed. Nassau Insurance Company v Diane M. Murray et al., 46 NY2d 828 (1978). This is the standard of proof that is often misapplied as Defendant insurers often recite boiler plate language describing their office procedures but do not establish that the office procedures ensure that the notices are always properly addressed and mailed.

As proof of its standard office procedure, Defendant submits the affidavit of Lenny H. LaFace, (LaFace) a Senior No-Fault Examiner located in Long Beach, New York. LaFace states that he is the custodian of the records, that the records were created by a person with knowledge of the facts or were made from information transmitted by a person with knowledge of the facts, that the records were made near the time of the transaction, that the records were created and kept in the regular course of business, and that he has personal knowledge of Defendant’s regular business practices relating to the handling of No-Fault claims. LaFace also describes the procedures for mailing notices which involves a chain of custody of at least two employees and coordination with separate offices when examinations under oath, verification requests, or independent examinations are requested. However, LaFace’s affidavit merely recites hearsay information and boilerplate language tailored to meet mailing requirements, and while the procedures described may increase the likelihood that notices are properly addressed and mailed, [*3]the procedures described fall short of the required standard to “ensure the likelihood that a notice is always properly addressed and mailed.” Thus, the mere recitation of boiler plate language describing standard office procedures is not sufficient where the office procedures do not ensure the likelihood that a notice is always properly addressed and mailed, particularly where the affiant is not personally involved in the process and the notices are handled by more than one person. One way to meet the burden and to establish that the office procedures “ensure the likelihood that the notice is always properly addressed and mailed” is to have each employee electronically log or document the chain of custody of the notice with their name, date and time each notice is handled along with a copy of the log. The affirmation/affidavit submitted on the motion should include said information, instead of generically reciting that an employee followed the office procedures. While this appears to add extra steps to the process, it is a necessary step as the grant of summary judgment deprives a litigant of their day in court and the burden to eliminate all triable issues is a very high burden which may not be based upon hearsay information, generic or boilerplate language.

Therefore, the court finds that Defendant failed to meet the burden of demonstrating the absence of any material issues of fact with respect to whether the Defendant mailed to the Assignor the notices to appear for the examination under oath. However, Defendant met its burden in establishing that the Assignor failed to appear at the examination under oath by submitting a certified transcript by a non-interested reporter and the Attorney’s affidavit of personal knowledge establishing the Assignor’s nonappearance.

Accordingly, Defendant’s motion is granted only to the extent of granting that portion of the motion finding that the Assignor failed to appear at an examination under oath and leaving the issue of the proper mailing of the notice to appear to be determined at trial.

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

Defendant moves pursuant to CPLR 3212 for an Order granting summary judgment based on the Assignor, Ismael Sejour’s failure to attend an examination under oath. On a motion for summary judgment, the moving party must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. CPLR § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039 (2016); Kershaw v. Hosp. for Special Surgery, 114 AD3d 75 (1st Dept. 2013). Thus, on this summary judgment motion, Defendant has the burden of demonstrating that there are no issues of fact regarding whether proper notices of the examination under oath were mailed to the Assignor, and that the Assignor failed to appear for the examination under oath. Bath Ortho Supply Inc. v New York Central Mut. Fire Ins. Co., 2012 NY Slip Op 50271(U), (App Term, 1st Dept 2002).

In order to meet this burden, the movant may submit an affidavit by someone with personal knowledge of the facts establishing that the Assignor was properly noticed and failed to appear. CPLR 3212(b). In 2024, the Legislature eased the affidavit requirement by permitting the submission of an affirmation instead. CPLR 2106. In support of the motion, Defendant submits the affirmation and affidavits of its attorney Mr. Allan S. Hollander, President of Hollander Legal Group, PC (Attorney) to establish that the notices directing the Assignor to appear were properly mailed and that the Assignor failed to appear. The Attorney’s affirmation and affidavits use many of the boilerplate language tailored to meet the statutory requirements such as: that the mailings were created and maintained in the ordinary course of business, that Defendant has the duty to create and mail the documents in the ordinary course of business, that [*2]the affidavit is made from personal knowledge, that the record is made at or near the time of the alleged transaction, and/or that the affiant has personal knowledge of the facts because they oversee the department or the office procedures. However, it is not sufficient to merely recite buzz words or boilerplate language tailored to meet evidentiary requirements. The affiant must demonstrate that the information alleged is obtained by personal knowledge of the facts from the affiant’s personal observation, personal experience, or personal involvement in the process. See: 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:18; and John H. Wigmore, Evidence in Trials at Common Law § 657 (Chadbourn rev. 1979)(personal knowledge is the impression derived through the exercise of one’s senses, not from the report of others).

Although the Attorney states that he oversees all the office procedures, he does not establish personal knowledge from observation or involvement with the procedures. The Attorney also states that his knowledge is “based upon a review of the file maintained by this office,” and that “counsel for” Defendant or “an individual with personal knowledge of the information therein” created and mailed the notices. Thus, contradicting the allegation of personal knowledge. Moreover, the Attorney states that the notices were mailed via the United States Post Office by certified mail, return receipt requested and first-class mail. However, the notices attached to the motion indicate that the notices were only sent via first-class mail. The Attorney also fails to attach proof of certified mail, which would have met the burden. The contradictory affidavit and notices raise issues of fact as to whether the notices were properly mailed and whether the Attorney has personal knowledge.

Alternatively, the movant may also meet its burden by providing proof of the actual mailings, such as affidavits/affirmations of mailing or post office receipts with attendant signatures, or by establishing the presumption of mailing and receipt by providing proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. U.S. Bank N.A. v Pickering-Robinson, 197 AD3d 757 (2021) quoting Citibank, N.A. v Conti-Scheurer, 172 AD3d 17 (2019); see Caliber Home Loans, Inc. v Weinstein, 197 AD3d 1232 (2021). In order for the presumption of mailing and receipt to arise, the standard mailing procedures followed by insurers in the regular course of business must be geared so as to ensure the likelihood that a notice is always properly addressed and mailed. Nassau Insurance Company v Diane M. Murray et al., 46 NY2d 828 (1978). This is the standard of proof that is often misapplied as Defendant insurers often recite boiler plate language describing their office procedures but do not establish that the office procedures ensure that the notices are always properly addressed and mailed.

As proof of its standard office procedure, Defendant submits the affidavit of Lenny H. LaFace, (LaFace) a Senior No-Fault Examiner located in Long Beach, New York. LaFace states that he is the custodian of the records, that the records were created by a person with knowledge of the facts or were made from information transmitted by a person with knowledge of the facts, that the records were made near the time of the transaction, that the records were created and kept in the regular course of business, and that he has personal knowledge of Defendant’s regular business practices relating to the handling of No-Fault claims. LaFace also describes the procedures for mailing notices which involves a chain of custody of at least two employees and coordination with separate offices when examinations under oath, verification requests, or independent examinations are requested. However, LaFace’s affidavit merely recites hearsay information and boilerplate language tailored to meet mailing requirements, and while the procedures described may increase the likelihood that notices are properly addressed and mailed, [*3]the procedures described fall short of the required standard to “ensure the likelihood that a notice is always properly addressed and mailed.” Thus, the mere recitation of boiler plate language describing standard office procedures is not sufficient where the office procedures do not ensure the likelihood that a notice is always properly addressed and mailed, particularly where the affiant is not personally involved in the process and the notices are handled by more than one person. One way to meet the burden and to establish that the office procedures “ensure the likelihood that the notice is always properly addressed and mailed” is to have each employee electronically log or document the chain of custody of the notice with their name, date and time each notice is handled along with a copy of the log. The affirmation/affidavit submitted on the motion should include said information, instead of generically reciting that an employee followed the office procedures. While this appears to add extra steps to the process, it is a necessary step as the grant of summary judgment deprives a litigant of their day in court and the burden to eliminate all triable issues is a very high burden which may not be based upon hearsay information, generic or boilerplate language.

Therefore, the court finds that Defendant failed to meet the burden of demonstrating the absence of any material issues of fact with respect to whether the Defendant mailed to the Assignor the notices to appear for the examination under oath. However, Defendant met its burden in establishing that the Assignor failed to appear at the examination under oath by submitting a certified transcript by a non-interested reporter and the Attorney’s affidavit of personal knowledge establishing the Assignor’s nonappearance.

Accordingly, Defendant’s motion is granted only to the extent of granting that portion of the motion finding that the Assignor failed to appear at an examination under oath and leaving the issue of the proper mailing of the notice to appear to be determined at trial.

The Decision//Order on the Defendant’s Motion to reargue the motion for summary Judgment is as follows:

The plaintiff, MEDICAL SUPPLY OF NY SERVICES, INC. (the “Plaintiff”), as assignee of FELIX JUMA DIAZ (the “Assignor”) commenced this action against STATE FARM MUTUAL AUTO INS. CO. (the “Defendant”) to recover assigned first-party No-Fault benefits for medical treatment provided to the Assignor on May 17, 2023. The Defendant moved for summary judgment based upon Assignor’s failure to attend two duly scheduled Examinations Under Oath (“EUOs”) on September 8, 2023. On March 27, 2024, this Court denied the Defendant’s motion, finding there was an issue of fact regarding the Assignor’s failure to attend the EUOs. The Notice of Entry for the decision and order was filed April 2, 2024.

The Defendant filed the instant motion on May 2, 2024, for leave to reargue the motion for summary judgment on the basis that the Court overlooked or misapprehended matters of fact or law in its prior decision. Plaintiff filed opposition on October 21, 2024. Arguments were heard on December 19, 2024, and decision was reserved.

This Court held in the March 27, 2024 decision that the Defendant did not meet its burden of proof to establish that the Assignor failed to appear for the two scheduled EUOs. This Court held that the Defendant did not submit an affidavit or affirmation from an attorney present to conduct the EUO, only transcripts of the EUO.

Here, Defendant alleges that this Court misapprehended facts or law when issuing the Order dated March 27, 2024, because the Court overlooked the affidavit of Richard Aitken, Esq. In his affidavit, Mr. Aitken states that “[o]n December 7, 2022, FELIX JUMA DIAZ failed to appear for the examination under oath. Accordingly, I, a partner with the law firm of Bruno, Gerbino & Soriano, LLP placed a default statement on the record.”

A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include [*2]any matters of fact not offered on the prior motion. CPLR §2221.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” (Midfirst Bank v. Agho, 121 AD3d 343, (Sup. Ct., App Div., 2nd Dept., August 13, 2014), citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]) “The submitted evidence in support of summary judgment must be in a form admissible at trial.” (Midfirst Bank v. Agho, 121 AD3d 343, [2014]) emphasis added.

An affidavit/affirmation from an attorney attesting the nonappearance of a plaintiff at an examination under oath (EUO) is of no probative value if it lacks personal knowledge of the plaintiff’s nonappearance. (Alrof, Inc. v. Safeco Nat. Ins. Co., 39 Misc 3d 130[A] [App. Term 2013].) In Alrof, the Court opined the affidavit submitted by defense counsel was of no probative value because his “personal knowledge” came from a review of the file. An affirmation submitted by an attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, is sufficient to establish that plaintiff had failed to appear. (Nat. Therapy Acupuncture, P.C. v. State Farm Mut. Auto. Ins. Co., 42 Misc 3d 137[A], 986 N.Y.S.2d 866 [App. Term 2014].)

The Court in New Capital Supply, Inc. v. State Farm Mut. Auto. Ins. Co., (45 Misc 3d 758 [NY County, 2014]) superbly explained the Appellate Term’s rulings in Alrof and its progeny. The elements of the proper attorney affidavit include a statement of personal knowledge that the attorney was present in the office to conduct the EUO of the witnesses on the schedule dates; that no one affiliated with the witness appeared for the EUO on those dates; that had the witness appeared for the scheduled EUO the affirmant, or an attorney the affirmant assigned that day, would have conducted the EUO of the witness. New Capital Supply, Inc. v. State Farm Mut. Auto. Ins. Co., 45 Misc 3d 758, 760-762.

In this matter, the affidavit of Richard C. Aitken Esq., the Defendant’s attorney, does not state that he was present at the time the EUO was scheduled to take place. Paragraph’s 4 and 6 of the affirmation state:

“On (relevant date) Felix Juma Diaz failed to appear for the examination under oath. Accordingly, I, a partner with the law firm of Bruno, Gerbino & Soriano, LLP, placed a default statement on the record. A certified copy of the default statement is annexed hereto as Exhibit G”.

The affidavit only states that the attorney placed a default statement on the record. Such a statement could have been made virtually, and therefore the deponent may not personally observe whether the witness attended. The act of placing the statement on the record does not mean the deponent was present at the scheduled time and location for the EUO. Without stating the attorney was present to observe the non-appearance, the declaration that the witness failed to appear is nothing more than a hearsay conclusory statement. The defense attorney’s statement did not meet the criteria described in New Capital Supply, Inc., et. al. above.

Furthermore, the transcript of EUO statement itself is not admissible evidence to be considered for a summary judgment motion. Charles Deng Acupuncture P.C. v. Titan Insurance Co., 74 Misc 3d 137(A) (Sup. Ct., App. Term, 2,11,13 Jud. Dist., April 1, 2022). While a deposition may be introduced as evidence provided the provisions of CPLR §3116 & §3117, the deponent did not submit a foundation for consideration of the transcript. Without such a [*3]foundation the document is hearsay, and therefore not admissible evidence to be considered regarding the summary judgment motion. Therefore, the Court cannot rely on the statements made within the default statement transcript as evidence or proof that the attorney was present in the office at the time the EUO was scheduled to take place.

For these reasons, the Court finds that the affidavit of Mr. Aitken was not overlooked when determining the prior motion because, as stated in the decision, the attorney affidavit did not establish the attorney was present at the time scheduled for the EUO.

Accordingly, Defendant’s motion to reargue is DENIED. The Court’s decision dated March 27, 2024 denying the Defendant’s motion for summary judgment stands.

This is the Decision and Order of the Court.

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.