[*1]

Civil Court of the City of New York, Richmond County, March 22, 2022

APPEARANCES OF COUNSEL

The Law Offices of Rubin & Nazarian for defendant.

Rizzo Law Group, PLLC, P.C. for plaintiff.

The decision on defendant’s motion for summary judgment is as follows:

Plaintiff, Kolb Radiology, P.C., as assignee of Claudia Walker (hereinafter, assignor), commenced this action against the defendant, Hereford Insurance Company, to recover assigned first-party no-fault benefits for medical treatment provided to assignor in the amount of $1,791.73.

Currently before the court is defendant’s motion seeking an order pursuant to CPLR 3212 granting summary judgment and dismissing plaintiff’s complaint as premature in that there are outstanding responses to defendant’s verification requests. By way of a cross motion, plaintiff submitted opposition to defendant’s motion. Defendant filed an affirmation in further support to its motion and in opposition to plaintiff’s cross motion. The motion was argued before the undersigned February 17, 2022, and submitted for decision.

Defendant moves for summary judgment dismissing plaintiff’s complaint on the grounds that defendant established its prima facie case in that plaintiff’s claim is premature as responses are outstanding to defendant’s verification requests. Plaintiff argues that its response to defendant’s request was made on August 28, 2020, with all documents in its control or possession. Plaintiff also cross-moves for summary judgment on the grounds that it has established its prima facie entitlement to judgment.

A motion for summary judgment should be granted if “upon all the papers and proof submitted, the cause of action . . . shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any [of the] part[ies]” (CPLR 3212 [b]). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Chiara v Town of New Castle, 126 AD3d 111, 125 [2d Dept 2015], citing Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57 [1966]).{**75 Misc 3d at 325}

The issue presented in the instant motion appears to be one of first impression in Richmond County, and a relatively novel issue in the Civil Court of New York City.^[FN*] The plaintiff performed an MRI that was billed and submitted to the defendant pursuant to the no-fault insurance regulations and subject to the applicable fee schedule. The defendant received the bills and made a timely demand for verification documents, which included a copy of the MRI films. The plaintiff responded to the verification demands but did not supply the MRI films requested by the defendant. Instead, the plaintiff demanded the payment of a $5 fee, as provided in ground rule 8 of the Workers’ Compensation Fee Schedule. The defendant replied to plaintiff stating its response was incomplete and improper but did not specifically address the demand for the payment of the fee. The result was a stalemate that must now be decided by this court.

The no-fault insurance system was established to expedite medical treatment and payment for injuries arising from motor vehicle accidents. In this instance, the plaintiff provided the MRI diagnostic test to the injured party, relying upon the contractual and statutory obligation of the defendant to pay for necessary health care pursuant to the fee schedule. Similarly, the plaintiff should have provided the films requested by the defendant and then billed defendant the statutory costs of $5. Instead, the plaintiff refused to provide the MRI films until it received the $5 from defendant. That act appears to this court to be more shortsighted than productive.

Conversely, the defendant received the demand for $5 and instead of promising or making payment of the $5, the defendant responded that the plaintiff only partially complied with the verification request and demanded the full compliance. An insurer is statutorily required to pay or deny a claim within 30 calendar days after proof of claim is received (11 NYCRR 65-3.8 [a]), but the deadline may be extended if the insurer makes a timely demand for additional verification of the claim (id. § 65-3.5; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept 1999]).

What concerns the court is that the defendant’s response appears strategic, aimed at promoting further litigation and thus delaying payment, rather than responding and addressing the{**75 Misc 3d at 326} dispute that was delaying the plaintiff’s compliance with the verification request.

For guidance, the court looks to the Office of the General Counsel of the NYS Department of Financial Services (formerly the State Insurance Department) that issued an opinion on April 4, 2008 (Ops Gen Counsel NY Ins Dept No. 08-04-08 [Apr. 2008]) entitled “Reproduction Cost of a Magnetic Resonance Imaging (‘MRI’) Film Necessary to Verify a No-Fault Insurance Claim.” That opinion directs that if the original MRI films are provided to the insurance company, then there is no charge. If a copy is provided to the insurance company, then the insurance company must pay the fee schedule rate. Since there is an option of producing an original or a reproduction, logically speaking, the insurance company would have to receive the reproduced MRI films first before payment would be made.

In this instance, the defendant would have had to receive the MRI film reproductions, and once in receipt of the copies, made payment to plaintiff. While this process appears overly bureaucratic, it is the procedure directed by the fee schedule.

Since both parties acknowledge that the films were not provided, and they were requested as part of the verification request, the fact that the defendant did not pay for the films in advance is not a sufficient justification for the delay in complying with the verification request.

Therefore, the defendant’s motion is granted, and the matter is dismissed without prejudice as premature. Plaintiff’s cross motion is denied without prejudice as moot.

Footnotes

Index No. CV-709085-19/QU

Plaintiff’s counsel:
Law Offices of Gabriel & Shapiro, L.L.C.
3361 Park Avenue, Suite 1000
Wantagh, NY 11793

Defendant’s counsel:
Gullo & Associates, LLP
520 86th Street
Brooklyn, NY 11209

I. Papers

The following papers were read on Defendant’s motion to dismiss Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion and Affirmation dated July 1, 2020 (“Motion”) and electronically filed with the court on the same date. 1

II. Background

In a summons and complaint dated November 1, 2018 and file stamped by the court on April 25, 2019, Plaintiff sued Defendant insurance company to recover $381.48 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Warren from [*2]January 2, 2013 to January 15, 2013 and from January 18, 2013 to February 7, 2013, plus attorneys’ fees and statutory interest (see Motion, Aff. of O’Shea, Ex. A). Defendant moved to dismiss the complaint on the ground that Plaintiff commenced its action after the applicable statute of limitations had expired (CPLR 3211[a][5]). Plaintiff did not oppose Defendant’s Motion. This matter was assigned to this Court for determination on November 17, 2021.

III. Discussion

“A party may move for judgment dismissing one or more causes of action asserted against [the party] on the ground that . . . the cause of action may not be maintained because of . . . statute of limitations” (CPLR 3211[a][5]). First-party No-Fault causes of action are governed by the six-year statute of limitations for actions arising out of contract (CPLR 213[2]; Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co., 39 Misc 3d 147[A], 2013 NY Slip Op 50900[U] *1 [App Term 2d Dept 2013]; EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51720[U] *1 [App Term 2d Dept 2011]; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] *1 [App Term 2d Dept 2011]).

For a motion to dismiss pursuant to CPLR 3211[a][5], Defendant bears the burden to show that “the time within which to commence the cause of action has expired” (Golden Jubilee Realty, LL v Castro, 196 AD3d 680, 683 [2d Dept 2021], see Siegler v Lippe, 189 AD3d 903, 904 [2d Dept 2020]; Shirom Acupuncture, P.C. v New York City Off. of Comptroller, 47 Misc 3d 150[A], 2015 NY Slip Op 50779[U] *1 [App Term 2d Dept 2015]; Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co., 2013 NY Slip Op 50900[U] *1). Here, Defendant argued that a No-Fault cause of action accrued thirty (30) days from the submission of the bills or the date of denial. Contrary to Defendant’s contention, in a No-Fault action, the cause of action accrues thirty (30) days after Defendant’s receipt of the bills (EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 2011 NY Slip Op 51720[U] *1; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 2011 NY Slip Op 51304[U] *1). In evaluating a motion to dismiss a complaint as time barred, the Court must accept the allegations in the complaint as true and resolve inferences in Plaintiff’s favor (Silver v. Silver, 162 AD3d 937, 939 [2d Dept 2018]; Cataldo v. Herrmann, 154 AD3d 641, 642 [2d Dept 2017]; EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 2011 NY Slip Op 51720[U] *1-2). In our instant case, Plaintiff’s complaint did not allege when or if Defendant received Plaintiff’s bills. In addition, Defendant’s “no-fault litigation claims” handler, Scarfino, attested that Defendant “[had] not received a properly executed No-Fault Application” as of May 28, 2020, the date of Ms. Scarfino’s affidavit (see Motion, Aff. of O’Shea, Ex. C).

It is well settled that the injured party or assignee of No-Fault benefits must submit proof of the claim to the insurer within 45 days of the date when health services were rendered (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 AD3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; 11 NYCRR § 65-1.1[d]) and that insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 501; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]). The accrual date [*3]of a No-Fault action may also be computed by adding forty-five (45) days from the date when health services were provided to the thirty (30) days when Defendant has to pay or deny the claim provided that the complaint also alleges Plaintiff’s timely submission of the claims and Defendant’s untimely denial of the claims (see Wexford Med., P.C. v Commerce Ins. Co., 40 Misc 3d 133[A], 2013 NY Slip Op 51193[U] *1 [App Term 1st Dept 2013]; Flatlands Acupuncture, P.C. Fireman’s Fund Ins. Co., 32 Misc 3d 17, 19-20 [App Term 2d Dept 2011]). Here, while the inartfully drafted complaint alleged that “there ha[d] been no payment” of the bill (Motion, O’Shea Aff. Ex. A at 4-5), it was completely silent as to Defendant’s denial of the claim, timely or not. It is noted, however, that Plaintiff also did not allege the date when the claim/bill was submitted to Defendant, other than stating that the bills were “submitted to [D]efendant more than 30 days ago” from the date of Plaintiff’s complaint which was dated as of November 1, 2018 (id.). Therefore, the accrual date of this No-Fault claim cannot be computed using this method. Since Defendant failed to establish the accrual date of Plaintiff’s claim, it cannot be determined if Plaintiff commenced action before expiration of the statute of limitations. Because Defendant did not meet its burden on its Motion to dismiss on the ground of statute of limitations, the Motion must be denied (see Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co., 2013 NY Slip Op 50900[U] *2; EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 2011 NY Slip Op 51720[U] *2); however, Defendant is not left without any other remedy.

To the extent that Defendant sought costs against Plaintiff for failing to oppose Defendant’s Motion, this Court finds that such conduct had not been shown “to delay or prolong the resolution of the litigation or to harass or maliciously injure another” (22 NYCRR 130-1.1[c][2]) as Defendant contended (Zhuoya Luo v Wensheng Wang, 176 AD3d 1016, 1018 [2d Dept 2019]). Therefore, the Court also denies Defendant’s request for costs as a sanction for frivolous conduct (22 NYCRR 130-1.1[a]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion to dismiss Plaintiff’s complaint on the ground of statute of limitations is denied; and it is further

ORDERED that Defendant’s request for costs against Plaintiff is denied.

This constitutes the Decision and Order of the court.

Dated: December 21, 2021
Queens County Civil Court
____________________________

Honorable Wendy Changyong Li, J.C.C.

Index No. CV-703234-20/QU

Plaintiff’s counsel:

Mandell and Santora, PC

29 Broadway

Lynbrook, NY 11563

Defendant’s counsel:

Moira A. Doherty

999 Stewart Avenue, Suite 200

Bethpage, NY 11714

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint:

Papers/Numbered

Defendant’s Notice of Motion and Affirmation in Support dated January 5, 2021 (“Motion“) and electronically filed with the court on January 21, 2021. 1

Plaintiff’s Affirmation in Opposition dated May 27, 2021 (“Opposition“) and electronically filed with the court on the same date. 2

Defendant’s Affirmation in Reply dated June 4, 2021 (“Reply“) and electronically filed with the court on the same date. 3

II. Background

In a summons and complaint filed on February 21, 2020, Plaintiff sued Defendant insurance company to recover $1,310.94 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Desocorro, plus attorneys’ fees and statutory interest (see Motion, Aff. of Slack-Dery, Ex. A). A notice of trial was filed on August 5, 2020. On January 21, 2021, Defendant moved for an extension of time to move for summary judgment, and for summary judgment dismissing Plaintiff’s complaint on the ground that the medical services provided to Desocorro were not medically necessary and alternatively, that the amount billed by Plaintiff had exceeded the applicable Workers Compensation fee schedules. Plaintiff opposed Defendant’s motion for summary judgment. An oral argument by both parties was conducted by this Court on November 8, 2021.

III. Decision

CPLR 3212[a] provides:

Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

Since the notice of trial was filed on August 5, 2020, December 3, 2020 was the deadline for moving for summary judgment (see id.). Because Defendant served its instant motion for summary judgment on January 21, 2021, it is untimely. Defendant candidly admitted to the lateness of its motion, but sought an extension of time (CPLR 2004; 2005). The Court of Appeals has held that good cause under CPLR 3212[a] “requires a showing of good cause for the delay in making the motion — a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial filings, however tardy” (Brill v City of New York, 2 NY3d 648, 652 [2004]). Absent a showing of good cause for the delayed filing, this Court lacks discretion to consider a late motion even if it is meritorious and does not prejudice any party (Bargil Assoc., LLC v Crites, 173 AD3d 958, 958 [2d Dept 2019]; Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d 796, 796 [2d Dept 2011]).

In our instant matter, the only explanation Defendant offered was that “Defendant’s counsel was prevented from serving the subject motion as [its] offices were closed due to the Coronavirus/Covid 19 pursuant to state requirements/regulations pertaining to professional services and non-essential businesses” (Motion, Slack-Dery Aff. ¶107). Executive Order 202.6, which went into effect on March 20, 2020, provided:

All businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize. Each employer shall reduce the in-person workforce at any work locations by 50% no later than March 20 at 8 p.m. Any essential business or entity providing essential [*2]services or functions shall not be subject to the in-person restrictions”

(9 NYCRR 8.202.6). Executive Order 202.8 (collectively with Executive Order 202.6, the “Executive Orders“) increased the in-person workforce reduction to 100% by March 22, 2020 (see 9 NYCRR 8.202.8). Thus, rather than closing non-essential businesses as Defendant contended, the Executive Orders prohibited in-person working but allowed businesses to operate remotely. In addition, by Administrative Order of the Chief Administrative Judge, on March 22, 2020, New York State Court prohibited paper and electronic filings for non-essential matters (see AO/78/20). However, effective May 4, 2020, New York State Court permitted electronic filing of, among other things, motions in pending matters (see AO/87/20). It is noted that Defendant did not claim its counsel’s offices could not work remotely or was unable to file its motion electronically.

Since Defendant failed to establish good cause for untimely filing its summary judgment motion, it must be denied (Bargil Assoc., LLC v Crites, 173 AD3d at 959; Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d at 796), without consideration of its merits (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 727 [2004]; Giambona v Hines, 104 AD3d 811, 812 [2d Dept 2013]; Czernicki v Lawniczak, 25 AD3d 581, 581 [2d Dept 2006]; Long v Children’s Vil., Inc., 24 AD3d 518, 519 [2d Dept 2005]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for an extension of time to file a motion for summary judgment is denied; and it is further

ORDERED that Defendant’s motion for summary judgment is denied as untimely.

This constitutes the DECISION and ORDER of the Court.

Dated: December 6, 2021

Queens County Civil Court

_________________________________

Honorable Wendy Changyong Li, J.C.C.

Index No. CV-711542-20/QU

Plaintiff’s counsel:

Lewin & Baglio, LLP

1100 Shames Drive, Suite 100

Westbury, NY 11590

Defendant’s counsel:

Law Offices of Goldstein, Flecker & Hopkins

2 Huntington Quadrangle, Suite 2N01

Melville, NY 11747

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment in its claims:

Papers/Numbered

Defendant’s Notice of Motion as well as Certification and Verification dated November 20, 2020 (“Motion“) and electronically filed with the court on the same date. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated March 31, 2021 (“Cross-Motion“) and electronically filed with the court on the same date. 2

Defendant’s Affirmation in Opposition to Cross-Motion dated April 26, 2021 (“Opposition to [*2]Cross-Motion“) and electronically filed with the court on the same date. 3

II. Background

In a summons and complaint filed July 17, 2020, Plaintiff sued Defendant insurance company to recover $2,141.70 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Browne, plus attorneys’ fees and statutory interest (see Motion, Aff. of Tapada, Ex. A). Defendant moved to dismiss the complaint on the grounds that Plaintiff submitted some claims untimely and other claims exceeded the fee amount prescribed by applicable fee schedules. Plaintiff cross-moved for summary judgment on its claims. An oral argument by both parties was conducted by this Court on November 15, 2021.

III. Discussion

The injured party or assignee of No Fault benefits must submit proof of the claim to the insurer within 45 days of the date health services were rendered (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 AD3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; 11 NYCRR § 65-1.1[d]). Compliance with the 45-day proof of claim requirement is a condition precedent to a No Fault insurer’s liability (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 590 [2011]; 11 NYCRR § 65-1.1[d]). In addition, automobile insurers must provide $50,000.00 coverage for “basic economic loss” (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016]). Basic economic loss expenses are limited by Insurance Law § 5108 (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). Charges for basic economic loss “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). No payment is due for services in excess of charges permitted by Insurance Law § 5108 (11 NYCRR 65-3.8[g][1][ii]; Excel Surgery Ctr., LLC v Metropolitan Prop. & Cas. Ins. Co., 65 Misc 3d 149[A], 2019 NY Slip Op 51843[U] * 1 [App Term 2d Dept 2019]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] *1 [App Term 2d Dept 2018]).

Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-82).

To support its motion, Defendant presented an affidavit sworn November 19, 2020, in which Victor (see Motion, Aff. of Tapada, Ex. C, Defendant’s Claims Associate, attested in detail to Defendant’s standard office practices and procedures for processing claims it received. Victor attested that Defendant submitted six (6) bills forming the claim for $2,141.70 in this case, which Defendant received respectively on September 16, 2019. A bill for $206.69 for services provided [*3]on July 10, 2019, a bill for $154.38 for services provided from July 9 to 13, 2019, a bill for $800.00 for services provided on July 9, 2019, a bill for $49.82 for services provided on July 11, 2019, and a bill for $235.31 for services provided on July 10, 2019 (“Early July 2019 Bills“) were denied on September 24, 2019 on the grounds that Plaintiff failed to timely submit proof of claim and that the bills exceeded the applicable fee schedule. Given the range of dates of service from July 9 to July 13, 2019, the deadline for filing proof of claim ranged from August 23 to 27, 2019. Regarding a bill for $898.94 for services provided July 30, 2019 (“Late July 2019 Bill“), Defendant paid $203.44 and denied the remainder of the claim on the ground that it exceeded the applicable fee schedule. The deadline for filing proof of claim for this bill was September 13, 2019. Copies of Plaintiff’s claim forms, Defendant’s denials of claim and explanations of review for each claim were attached to Victor’s affidavit. Defendant’s evidence demonstrated that Plaintiff untimely submitted all the claims for the Early July 2019 Bills. Thus, Defendant established that the Early July 2019 Bills were timely denied on the ground that proof of claim was untimely submitted (Lenox Hill Radiology & Mia, P.C. v American Mfrs. Mut. Ins. Co., 41 Misc 3d 131[A], 2013 NY Slip Op 51750[U] *1 [App Term 2d Dept 2013]; Lecia Supply, Inc. v American Tr. Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50711[U] *1 [App Term 2d Dept 2013]; Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51351[U] *1-2 [App Term 2d Dept 2012]; Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 26 Misc 3d 145[A], 2010 NY Slip Op 50449[U] *1 [App Term 2d Dept 2010]).

In opposition, Plaintiff argued that Defendant’s evidence was inadmissible, so that it was insufficient to establish timely denial of Plaintiff’s claim. While Plaintiff argued that Victor’s statements that Plaintiff untimely submitted its claims were hearsay because Defendant failed to present the forms upon which he based his statements (see Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1021 [2d Dept 2020]), as noted above, the denial of claim forms and explanations of review which Victor addressed in his affidavit were attached to his affidavit. Contrary to Plaintiff’s contention, Defendant’s denial of claim forms expressly advised that the untimely submission of claim would be excused if Plaintiff provided reasonable justification for the claim’s late submission, so complied with applicable regulations (11 NYCRR §§ 65-1.1[d]; 65-3.3[e]; Lenox Hill Radiology & Mia, P.C. v American Mfrs. Mut. Ins. Co., 2013 NY Slip Op 51750[U] *1; Lecia Supply, Inc. v American Tr. Ins. Co., 2013 NY Slip Op 50711[U] *1; Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51351[U] *2; Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 2010 NY Slip Op 50449[U] *1).

Plaintiff also presented an affidavit dated March 29, 2021, in which Higgins, Plaintiff’s office manager, attested that the claims were mailed to Defendant on September 10, 2019. Higgins acknowledged that the bills were not sent “within 45 days as the result of an internal office error” and explained that assignor’s “insurance information was misplaced and the office had difficulty getting in touch with [assignor] to verify the insurance information” (Cross-Motion, Aff. of Enright, Ex. 2 at 2). The court rejects this conclusory explanation as it did not detail Plaintiff’s attempts to contact assignor to justify the delay of at least 14 days between the deadline to submit the claims and the date Plaintiff sent them (see Synergy First Med., PLLC v MVAIC, 44 Misc 3d 127[A], 2014 NY Slip Op 50964[U] *1 [App Term 2d Dept 2014]). In any event, Plaintiff was required to provide “written proof providing clear and reasonable justification for the failure to comply with such time limitation” (11 NYCRR 65-1.1[d]; Synergy First Med., PLLC v MVAIC, 2014 NY Slip Op 50964[U] *1; AAA Chiropractic, P.C. v MVAIC, 29 Misc 3d 131[A], 2010 NY Slip Op 51896[U] *1 [App Term 2d Dept 2010]).

Finally, Regarding the Late July 2019 Bill, for which Defendant paid a reduced amount and denied the remainder on the ground it exceeded the applicable fee schedule, Defendant raised no arguments how the Late July 2019 Bill exceeded the fee schedule in support of its motion. Defendant only identified in its Explanation of Review regarding this bill the fee code that should have been applied warranting reduction of the amount billed. Although the court may take judicial notice of the fee schedules, they do not independently establish whether Plaintiff properly applied them in billing for the services provided (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20-22 [2d Dept 2009]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 2017 NY Slip Op 50207 *1-2). Rather, interpretation of the applicable fee schedule must be supported by expert opinion evidence (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 55 Misc 3d147[A], 2017 NY Slip Op 50706[U] *1 [App Term 2d Dept 2017]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] *2 [App Term 2d Dept 2012]). Here, Victor did not purport to be an expert in fee schedules in his affidavit. Since Defendant did not otherwise support its motion with an expert affidavit to interpret the fee schedule, Defendant failed to meet its initial burden of demonstrating its entitlement to summary judgment reducing the amount of the Late July 2019 Bill (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706[U] *1; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 2012 NY Slip Op 51335[U] *2, see Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 2017 NY Slip Op 50954[U] *2 [App Term 2d Dept 2017]). Since Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, the Court denies Defendant’s Motion regarding the Late July 2019 Bill (see Pullman v Silverman, 28 NY3d 1060, 1062 [2016]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). As discussed above, Higgins admitted that the bills were not timely submitted and provided a conclusory explanation for the untimely submission of the bills, which the court rejected. Plaintiff also relied on Defendant’s denials of claim (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]), but they demonstrated that the bills were untimely submitted and denied on that basis. Plaintiff presented no arguments that the Late July 2019 Bill complied with the applicable fee schedule and presented no expert evidence to support such a contention. Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claim against Defendant, this Court denies Plaintiff’s Cross-Motion (U.S. Bank N.A. v Atia, 178 AD3d 747, 749 [2d Dept 2019]; Zalewski v MH Residential 1, LLC, 163 AD3d 900, 901 [2d Dept 2018]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for summary judgment dismissing Plaintiff’s complaint is granted as to the Early July 2019 Bills (i.e., the bill for $206.69 for services provided on July 10, 2019, the bill for $154.38 for services provided from July 9 to 13, 2019, the bill for $800.00 for services provided on July 9, 2019, the bill for $49.82 for services provided on July 11, 2019, and the bill for $235.31 for services provided on July 10, 2019), but otherwise denied; and it is further

ORDERED Plaintiff’s cross-motion for summary judgment in its claims is denied.

This constitutes the Decision and Order of the court.

Dated: December 2, 2021

Queens County Civil Court

Honorable Wendy Changyong Li, J.C.C.

Index No: CV-714348/19

Attorney for plaintiff: Gabriel & Moroff, PC

Attorney for defendant: The Law Offices of Rubin & Nazarian

In this action for the payment of no-fault benefits, defendant moves seeking an order granting it summary judgment and dismissal of this action. Defendant avers that inasmuch as it timely and properly denied plaintiff’s claims for medical services under the no-fault portion of its policy, on grounds that it did not insure any of the vehicles involved in the assignor’s accident, the instant action must be dismissed. Plaintiff opposes the instant motion, asserting that insofar as defendant’s submissions fail to establish that it did not insure the vehicles involved in the assignor’s accident with admissible evidence, defendant fails to establish prima facie entitlement to summary judgment. Plaintiff also cross-moves seeking summary judgment, averring that defendant’s very own denial forms establish that it timely submitted the instant claim and is now overdue.

For the reasons that follow hereinafter, defendant’s motion is denied and plaintiff’s cross-motion is granted.

The instant action is for payment of no-fault insurance benefits for medical treatment. The complaint alleges, in relevant part, the following: STEAVEN MERCEDES (Mercedes) was involved in a motor vehicle accident and thereafter, sought medical treatment from plaintiff for injuries sustained. Mercedes was covered by an insurance policy issued by defendant, which pursuant to Article 51 of the Insurance Law, required payment of health related expenses and whose benefits Mercedes [*2]assigned to plaintiff. The treatments provided by plaintiff to Mercedes totaled $1,789.19, were covered by defendant’s policy, were billed to defendant, but were nevertheless not paid. Based on the foregoing, plaintiff seeks payment of the aforementioned sums pursuant to the Comprehensive Motor Vehicle Insurance Reparations Act ^[FN1] (11 NYCRR 65-3.1 et seq.).

Standard of Review

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not. As noted by the Court of Appeals,

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’ Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case

(Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in admissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]).

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]), [s]upreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding, not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).

No-Fault Law

Pursuant to 11 NYCRR 65-2.4(a), entitlement to no-fault benefits requires compliance with all conditions precedent, one of which is that the eligible injured person or that person’s assignee or legal representative shall submit written proof of claim to the self-insurer, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered. The eligible injured person or that person’s legal representative shall submit written proof of claim for work loss benefits and for other necessary expenses to the self-insurer as soon as reasonably practicable but, in no event, later than 90 days after [*3]the work loss is incurred or the other necessary services are rendered. The foregoing time limitations for the submission of proof of claim shall apply unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.

(11 NYCRR 65-2.4[c]^[FN2] ). Because the No-Fault Law is a derogation of common law, it must be strictly construed (Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]; Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049, 1050 [3d Dept 1983]), and thus, when an insurer fails to timely deny or pay a claim, as required by the statutory schedule, it is precluded from interposing a statutory exclusion defense (Presbyt. Hosp. in City of New York, 210 AD2d at 211; Presbyt. Hosp. in the City of New York v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2d Dept 2002]; Mount Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11, 16 [2d Dept 1999]; Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]).

Similarly, and for the same reasons, compliance with the technical requirements of the no-fault law are preconditions for payment to a medical provider thereunder. Accordingly, a medical provider’s failure to tender a claim and requisite proof to an insurer within 45 days generally warrants denial of said claims [*4](Kane v Fiduciary Ins. Co. of Am., 114 AD3d 405, 405 [1st Dept 2014] [“The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated.”]; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2d Dept 2010]; Sunrise Acupuncture PC v ELRAC, Inc., 52 Misc 3d 126[A], *1 [App Term 2016]; Nir v MVAIC, 17 Misc 3d 134[A], *1-2 [App Term 2007]). However, 11 NYCRR 65-2.4[c] and 11 NYCRR 65-1.1 state that the time limitations for the submission of proof of claim shall apply unless the eligible injured person or that person’s representative submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.

Accordingly, when the proponent of a belated claim establishes that the delay is reasonably justifiable, the insurer may not deny the same (Matter of Med. Socy. of State v Serio, 100 NY2d 854, 862-863 [2003] [“At the same time, the new regulations relax the standard for accepting late filings, replacing the previous rule that late filings were permitted only when written proof showed that compliance with a deadline was ‘impossible’ (11 NYCRR 65.11 [m] [2], [3]; 65.12), with a standard excusing a missed deadline when there is a “clear and reasonable justification” for the delay (11 NYCRR 65-2.4 [b], [c]; 65-1.1).”]). In such cases, plaintiff must assert its reasonable justification with its belated submission (Nir at *2 [“The record further reveals that, in opposition to MVAIC’s cross motion seeking summary judgment, plaintiff failed to proffer admissible evidence demonstrating that there was a ‘reasonable justification’ for the submission of the claim more than 130 days after the services were rendered.”]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89, 90 [App Term 2007] [“Even assuming, arguendo, that plaintiff’s inadvertent submission of the claim to State Farm initially justified its delay in submitting the claim to MVAIC (see 11 NYCRR 65-3.5 [1]), plaintiff failed to address, much less provide a ‘reasonable justification’ for the 3½-month delay between December 18, 2003, when plaintiff’s counsel advised plaintiff that there was no coverage, and plaintiff’s submission of the claim to MVAIC on March 26, 2004.”]; see Bronx Expert Radiology, P.C. v Motor Veh. Acc. Indem. Corp., 20 Misc 3d 140[A], *1 [App Term 2008]; Elm Med., P.C. v MVAIC, 20 Misc 3d 145[A], *1 [App Term 2008]).

Generally, once an insured receives a claim from a medical provider, it must pay or deny the same within 30 days thereof (11 [*5]NYCRR 65-3.8[c]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1168 [2d Dept 2010]; Nyack Hosp. v Gen. Motors Acceptance Corp., 27 AD3d 96, 100 [2d Dept 2005], affd as mod and remanded, 8 NY3d 294 [2007]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999]).

However, the foregoing period – within which to deny or pay a claim – can be extended by a proper request for verification (11 NYCRR 65-3.5[b] [“Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms.”]), and when such a request is made, “an insurer is not obligated to pay or deny a claim until all demanded verification is provided” (New York and Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2d Dept 2006]; see Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004]; Nyack Hosp. at 101; New York Hosp. Med. Ctr. of Queens at 584; New York & Presbyt. Hosp. v Am. Tr. Ins. Co., 287 AD2d 699, 700 [2d Dept 2001]). A request for verification submitted more than 15 days after a claim is received does not render the same invalid and merely serves to diminish the 30 day period within which to pay or deny a claim once verification is received; such time diminished by the number of days beyond the 15 days within which to request verification prescribed by the No-Fault Law (11 NYCRR 65-3.8[j]; Nyack Hosp. at 100-101 [“Therefore, inasmuch as the defendants mailed the request for additional verification two days beyond the 15-day period, the time within which the defendants had to either pay or deny the claim was reduced from 30 to 28 days.”]). A request for verification, thus, tolls the time within which to pay or deny a claim and such time does not begin to run until the documents are provided (New York & Presbyt. Hosp. at 700 [“Since the respondent did not supply the additional verification of the claim, the 30-day period in which the defendant had to either pay or deny the claim did not begin to run.”]; Westchester County Med. Ctr. at 555).

A medical provider seeking payments under the relevant no-fault policy establishes prima facie entitlement to summary judgment with proof of that it submitted a timely claim form to the defendant, proof of the fact and the amount of the loss sustained, and “proof either that the defendant [] failed to pay or deny the claim within the requisite 30-day period, or that the defendant [] issued a timely denial of claim that was conclusory, vague or without merit as a matter of law” (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A] [App Term 2011]; see, New York and Presbyt. Hosp. at 513; Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742 [2d Dept 2004]; E. Coast Psychological, P.C. v [*6]Allstate Ins. Co., 13 Misc 3d 133(A), *1 [App Term 2006]; Mollins v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 133(A), *1 [App Term 2007]). A provider can establish the foregoing with “evidentiary proof that the prescribed statutory billing forms were mailed and received [and] that payment of no-fault benefits [is] overdue” (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]). However, an insurer raises an issue of fact sufficient to preclude summary judgment when it tenders evidence evincing a timely denial (id. at 124 [“However, in opposition, the defendant submitted admissible evidence in the form of an affidavit of an employee with knowledge of the defendant’s standard office practices or procedures designed to ensure that items were properly addressed and mailed.”]; New York and Presbyt. Hosp. at 513 [“However, in opposition to the motion, the defendant established that it had made a timely request for additional information and that it timely denied the claim within 30 days of receipt of the hospital records it had requested to verify the claim. Accordingly, the Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action.”]), or that denial within the 30 day prescribed by law wasn’t given because such period was extended by a request for verification (Nyack Hosp. at 100 [“Here, the defendants presented evidence in opposition to the motion and in support of their cross motion demonstrating that the request for the complete inpatient hospital records mailed to the plaintiff on September 12, 2003, resulted in an extension of the 30-day statutory period.”]; New York Hosp. Med. Ctr. of Queens at 585; New York & Presbyt. Hosp. at 700).

Conversely, once an insurer establishes a timely denial on grounds that a plaintiff failed to tender a claim within 45 days, the insurer establishes prima facie entitlement to summary judgment (St. Barnabas Hosp. v Penrac, Inc. at 734; Sunrise Acupuncture PC at *1). In addition, an insurer who demonstrates that despite proper requests for verification, verification was never received resulting in a denial of the claim also establishes prima facie entitlement to summary judgment (New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 649 [2d Dept 2014]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2d Dept 2006]; Nyack Hosp. at 99; Cent. Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2d Dept 2005]; Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]; Westchester County Med. Ctr. at 555). This is particularly true when a demand for verification remains unanswered for more than 120 days. To be sure, 11 NYCRR 65-3.5(o) states that [a]n applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such [*7]verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply. The insurer shall advise the applicant in the verification request that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.

Additionally, 11 NYCRR 65-3.8(b)(3) states that

an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5(o) of this Subpart.

Thus, when the insurer establishes denial of a claim because a demand for verification went unanswered for 120 days or more, prima facie entitlement to summary judgment is established (Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004] [relying on 11 NYCRR 65.11[m][3] which is now 11 NYCRR 65-3.8[b][3], the court held that “[t]he defendant denied the claim on October 9, 2002, more than 180 days after NY & P Hospital first notified it of the claim. Under these circumstances, the claim was properly denied.”]; Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co., 232 AD2d 454, 454 [2d Dept 1996] [same]; TAM Med. Supply Corp. v Tri State Consumers Ins. Co., 57 Misc 3d 133(A), *1 [App Term 2017]). Significantly, in Hosp. for Joint Diseases, the court held that defendant – the insurer – established prima facie entitlement to summary judgment with an affidavit from a claims representative, who, based on his review of defendant’s business records, established defendant’s defense – timely denial (id. at 433-434)^[FN3] .

It is well settled that a party’s burden to establish that forms were mailed and therefore, presumed to have been received by another is established upon the tender of proof in admissible form “of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (New York and Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001] [“Here, the deposition testimony of AIC’s president, a certificate of mailing, and a mailing ledger signed and date-stamped by a U.S. Postal Service employee established the actual mailing of the notice of cancellation to the plaintiff, giving rise to a rebuttable presumption of delivery.”]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term 2007] [the law does not “requir[e] that an affidavit of mailing must state either that it was the affiant’s duty to ensure compliance with the insurer’s standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed.”]). Notably, an affidavit of mailing, which attests to the practice of mailing documents must contain information with respect to how the items mailed were accurately addressed and the absence of such information renders the affidavit inadequate (Orthotech Express Corp. v MVAIC, 37 Misc 3d 128(A), *1 [App Term 2012] [“In the absence of any recitation of such matters as how the names and addresses on the IME notices were checked for accuracy and how the notices were picked up for mailing, we cannot say, on this record, that the office practice and procedure followed by defendant’s contractor was designed to ensure that the IME notices were addressed to the proper parties and properly mailed.” (internal quotation marks omitted)]; Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676-677 [2d Dept 2007] [“The supervisor, however, had no personal knowledge that the verification requests were actually mailed on the dates they were issued, and her conclusory allegations regarding the defendant’s office practice and procedure failed to establish that the practice and procedure was designed to ensure that the verification requests were addressed to the proper party and properly mailed.”]).

In New York, no-fault benefits, also known as first party benefits are both promulgated and governed by the Insurance Law and the Comprehensive Motor Vehicle Insurance Reparations Act (CMVIRA) (11 NYCRR 65-1.1, et seq).

Insurance Law § 5103 (a) and (a)(1) state, in relevant part that [e]very owner’s policy of liability insurance issued on a motor vehicle . . . shall be liable for; the payment of first party benefits to . . . Persons, other than occupants of another motor vehicle or a motorcycle, for loss arising out of the use or operation in this state of such motor vehicle.

First party benefits “means payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle” (Insurance Law § 5102[b]). Basic economic loss “means, up to fifty thousand dollars per person of” medical expenses and lost earnings (Insurance Law § 5102[a]].

11 NYCRR 65-1.1 states that [e]very owner’s policy of liability insurance issued in satisfaction of the minimum requirements of article 6 or 8 of the Vehicle and Traffic Law and article 51 of the Insurance Law and every policy issued in satisfaction of the minimum requirements of article 44-B of the Vehicle and Traffic Law shall contain provisions providing minimum first-party benefits equal to those set out below in the mandatory personal injury protection endorsement (New York).

The foregoing insurance is required in all policies issued in New York after January 26, 2011 (11 NYCRR 65-1.1[b][1] [“An insurer shall provide . . . The Mandatory Personal Injury Protection Endorsement (New York) to every insured with respect to a policy issued, renewed, modified, altered or amended on or after January 26, 2011.”]). Per the relevant endorsement, an insurer “will pay first-party benefits to reimburse for basic economic loss sustained by an eligible injured person on account of personal injuries caused by an accident arising out of the use or operation of a motor vehicle” (11 NYCRR 65-1.1[d]). Per the endorsement, “[b]asic economic loss shall consist of medical expense, work loss, other expense[s.] (id.). An eligible person is defined as the named insured . . . any relative who sustains personal injury arising out of the use or operation of any motor vehicle . . . [and] any other person who sustains personal injury arising out of the use or operation of the insured motor vehicle in the State of New York while not occupying another motor vehicle (11 NYCRR 65-1.1[d]).

Based on the foregoing, it is clear, that first party or no-fault benefits are only available when the injuries claimed arise from an accident involving an insured vehicle by the defendant from whom first party benefits are sought. Indeed, a review of [*8]the plain language of the Insurance Law and the CMVIRA, evinces that first party benefits are only available from an insurer if, inter alia, the insurer insures one of the vehicles involved in an accident from which injuries arise. Specifically, Insurance Law § 5103 (a) and (1) require an owner to provide a policy that pays “first party benefits to . . . Persons, other than occupants of another motor vehicle or a motorcycle, for loss arising out of the use or operation in this state of such motor vehicle.” The word “such” is a direct reference to the insured vehicle on which there is a policy to pay said benefits. It is the relevant insurer, of course, which would necessarily have to provide the relevant policy under which claims need to be made.

The forgoing is bolstered by the CMVIRA, which per 11 NYCRR 65-1.1, requires that all policies of insurance in New York “contain provisions providing minimum first-party benefits equal to those set out below in the mandatory personal injury protection endorsement.” Per that endorsement, first party benefits are limited to an eligible person, meaning one “the named insured . . . any relative who sustains personal injury arising out of the use or operation of any motor vehicle . . . [and] any other person who sustains personal injury arising out of the use or operation of the insured motor vehicle in the State of New York while not occupying another motor vehicle.” Clearly, the “insured motor vehicle” is a reference to the relevant policy in place and of course to the relevant insurer, such that claims can only be made to an insurer if the same’s vehicle was involved in the accident giving rise to the injuries for which first party benefits are made.

Besides the clear language of the forgoing statutes, case law supports the proposition that no first party benefit claims can be made to an insurer who did not insure a vehicle at the time of an accident. For example, it is well settled that when an insurer cancels a policy on a vehicle, which is subsequently involved in an accident, the prior insurer is not required to pay first party benefits (SK Prime Med. Supply v Permanent Gen. Assur. Corp., 66 Misc 3d 129[A]], *1 [App Term 2019] [Court granted defendant’s motion for summary judgment on grounds that defendant insurer did not insure the assignor’s vehicle at the time of the accident.]; KJC Chiropractic, P.C. v Hartford Ins. Co., 65 Misc 3d 145[A], *1 [App Term 2019] [same]). The same is true when first party benefits are sought from an insurer who never provided insurance coverage to a vehicle involved in an accident. To be sure, in Compas Med., P.C. v Hereford Ins. Co., (49 Misc 3d 146[A] [App Term 2015]), defendant moved for summary judgment asserting that “plaintiff’s assignor was not entitled to receive no-fault benefits from defendant since plaintiff’s assignor had been injured while driving a vehicle insured by a different insurer” (id. at *1). The trial court granted [*9]defendant’s cross-motion on the grounds asserted, but the Appellate Term then reversed (id. at *1). Implicit in the Court’s holding however, is that but for the absence of proof that defendant did not insure the assignor’s vehicle, it would have affirmed the grant of summary judgment on the grounds asserted by defendant (id. at *1 [“In support of its cross motion for summary judgment dismissing the complaint, defendant relied upon a conclusory affidavit from its no-fault claims supervisor and a partially illegible copy of a police report which, according to defendant’s counsel, purported to establish that, when the accident occurred, plaintiff’s assignor was in a car insured by another insurer and not an occupant in the vehicle insured by defendant. However, as the foregoing was insufficient to establish, as a matter of law, that defendant did not insure the vehicle in which plaintiff’s assignor was riding when the accident occurred, defendant’s cross motion should have been denied.”]). The court in Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co. (127 AD3d 980 [2d Dept 2015]), is in accord with the holding in Compas Med., P.C. In Matter of Tri State Consumer Ins. Co., the court vacated an arbitration award requiring the insurer to pay first party benefits for an accident involving a vehicle it did not insure (id. at 981). The court, noting that there can be no payment of first party benefits unless the insurer insured the assignor’s vehicle, held that “there was no rational basis in the record for the arbitrators’ rejection of the appellant’s defense of lack of coverage, since the record demonstrated that the subject insurance policy issued by the appellant pertained to a vehicle and an insured different from those involved in the accident.” (id. at 981).

Notably, in cases where there is an allegation that the assignor’s injuries are unrelated to an insured accident, “an insurer, despite its failure to reject a claim within the 30—day period prescribed by [the] Insurance Law . . . may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Cent. Gen. Hosp. v Chubb Group of Ins. Companies, 90 NY2d 195, 199 [1997] [internal citations omitted]; see Mount Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11, 19 [2d Dept 1999]; Amaze Med. Supply, Inc. v Utica Mut. Ins. Co., 26 Misc 3d 129[A], *1 [App Term 2009] [“In opposition to plaintiff’s motion, defendant asserted that the alleged injuries did not arise out of an insured incident. We find that defendant’s submissions were sufficient to demonstrate that defendant possessed a founded belief that the alleged injuries do not arise out of an insured incident”] [internal citations and quotations marks omitted]; Ema Acupuncture, P.C. v State Farm Ins. Co., 16 Misc 3d 135[A], *1 [App Term 2007]; Ocean Diagnostic Imaging, P.C. v Lancer Ins. [*10]Co., 6 Misc 3d 62, 63 [App Term 2004]). This is because, it is well settled that the failure to timely deny coverage cannot create coverage where none existed in the first place (Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [“We conclude, however, that the Legislature did not intend by its use of the words ‘deny coverage’ to bring within the policy a liability incurred neither by the person insured nor in the vehicle insured, for to do so would be to impose liability upon the carrier for which no premium had ever been received by it and to give no significance whatsoever to the fact that automobile insurance is a contract with a named person as to a specified vehicle.”]; see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188 [2000] [“Disclaimer pursuant to section 3420 (d) is unnecessary when a claim falls outside the scope of the policy’s coverage portion. Under those circumstances, the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed.”]).

Defendant’s Motion

Defendant’s motion for summary judgment is denied. Significantly, defendant fails to establish that it did not insure the vehicle in which Mercedes, the assignor, was a passenger at the time of the instant accident. As such, defendant fails to establish its defense and therefore, fails to establish prima facie entitlement to summary judgment.

In support of its motion, defendant submits an affidavit by Tony Singh (Singh), a No-Fault Supervisor, employed by defendant, who states the following: Singh is responsible for the oversight and management of all no-fault claims made to defendant. Moreover, Singh is familiar with plaintiff’s claim with regard to Mercedes because he was the supervisor responsible for the handling of said claim and because Singh reviewed defendant’s file with regard to said claim. Singh states that defendant’s office procedure with regard to mail is that all mail is processed on the same day it is received. All mail, including bills, are date and time stamped upon receipt and then imported into a claim system used to track each bill. Each bill is then assigned an adjuster to process the bill and claim. When an adjuster creates a denial for a claim or requests additional verification, those documents are given to a mailing officer, which is either Singh or Carl Periana. The mailing officers then address the envelopes, the forgoing documents are placed therein, postage is applied and then they are mailed that same day. Specifically, the envelopes are given to an agent of the United States Postal Service, who picks up the mail on a daily basis. The foregoing documents are created and maintained in the ordinary course of defendant’s business. With regard to Mercedes and plaintiff’s claim, a bill for services rendered to Mercedes on November 7, 2018 was received by defendant on December 14, [*11]2018. A denial was subsequently issued on January 10, 2019. The basis of the denial was that Mercedes was not an eligible injured person insofar as his injuries did not arise out of the use and operation of the motor vehicle and/or the vehicle was not the proximate cause of Mercedes’ injuries. On November 28, 2018, defendant issued a global denial asserting that Mercedes was not an occupant in defendant’s vehicle.

Singh also states that the proximate cause of Mercedes’ accident was a collision between a vehicle owned by Mohammad Badrudoza and insured by American Transit Insurance Company and a vehicle owned by Alassane Yoda and insured by Park Insurance Company.

Defendant submits the documents described by Singh in his affidavit. Said documents, which deny the claim made by plaintiff, contain the information described by Singh. Specifically, the denial on January 10, 2019, states that Mercedes “is not an Eligible Injured Person as the applicant’s injuries did not arise out of the use or operation of the motor vehicle and/or the motor vehicle was not the proximate cause of the applicant’s injuries.” The denial dated November 28, 2018 states that Mercedes “was not an occupant in our vehicle.”

Defendant also submits a Police Accident Report, for which no foundation is laid.

Based on the foregoing, defendant fails to establish prima facie entitlement to summary judgment. Significantly, here, defendant denied the instant claim on grounds that it did not insure any of the vehicles involved in Mercedes’ accident such that it has no obligation to provide first party no-fault benefits to him. However, while, defendant’s submission establish some of the foregoing contentions with regard to the timely mailing of the denials, the record is bereft of competent and admissible evidence establishing the substance of said defense.

Preliminarily, here, defendant does establish that it timely ^[FN4] denied the instant claim on the grounds, that defendant urges warrants dismissal. First, defendant provides the denials it sent to plaintiff and laid the foundation for their admission [*12]into evidence ^[FN5] . These denials do evince that they were made within 30 days of receipt of plaintiff’s claim. One denial was actually made before the instant claim was submitted, presumably when plaintiff applied for first party benefits. Second, defendant established that it timely denied the claims. To be sure, it is well settled that a party’s burden to establish that forms were mailed and therefore, presumed to have been received by another is established upon the tender of proof in admissible form “of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (New York and Presbyt. Hosp. at 547; Residential Holding Corp. at 680; Delta Diagnostic Radiology, P.C. at 18). Here, Singh’s affidavit, which describes defendant’s procedure for the receipt, processing and mailing of no-fault claim related documents, establishes that the claims herein were timely denied insofar as the denials were mailed within 30 days of receiving plaintiff’s claim.

However, defendant’s evidence is wholly inadequate for purposes of establishing, as urged, that the claim herein warranted denial because defendant did not insure any of the vehicles involved in Mercedes’ accident, let alone the one in which he was a passenger. Again, an insurer who establishes that it never insured an assignor’s vehicle at the time of the accident giving rise to the claim for first party benefits is not liable to pay the same (Compas Med., P.C. v at *1; Matter of Tri State Consumer Ins. Co. at 981). Here, it is clear that Singh’s assertion – that defendant did not insure any of the vehicles involved in the instant accident – is entirely based on the Police Accident Report appended to defendant’s motion. The record, however, is bereft of any foundation for the same’s admission and as such it cannot be considered. As such, defendant fails to establish prima facie entitlement to summary [*13]judgment. Inasmuch as defendant fails to meet its burden, the Court need not consider the sufficiency of any of the opposition papers submitted (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). Accordingly, defendant’s motion is denied.

Plaintiff’s Cross-Motion

Plaintiff’s cross-motion seeking summary is granted. Significantly, plaintiff establishes that it timely submitted the instant claim, that although timely denied, the defense undergirding the denial has no legal merit, and that the claim is overdue.

A medical provider seeking payments under the relevant no-fault policy establishes prima facie entitlement to summary judgment with proof of that it submitted a timely claim form to the defendant, proof of the fact and the amount of the loss sustained, and “proof either that the defendant [] failed to pay or deny the claim within the requisite 30-day period, or that the defendant [] issued a timely denial of claim that was conclusory, vague or without merit as a matter of law” (Ave T MPC Corp. at *1; New York and Presbyt. Hosp. at 513; see Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Mary Immaculate Hosp. at 742; E. Coast Psychological, P.C. at *1; Mollins at *1).

Here although, plaintiff submits no evidence in support of its motion, it nevertheless establishes prima facie entitlement to summary judgment by relying on the denial forms submitted by defendant in support of its motion for summary judgment. To be sure, in no fault cases, the proponent of summary judgment may establish prima facie entitlement to summary judgment using the evidentiary submissions of the opposing party (Oleg Barshay, DC, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term 2006]; see E. Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128(A) [App Term 2007]; Fair Price Med. Supply Corp. v Elrac Inc., 12 Misc 3d 119, 120 [App Term 2006]. In Oleg Barshay, DC, P.C., the court granted plaintiff’s motion for summary judgment even though plaintiff had not submitted sufficient evidence to establish prima facie entitlement thereto (id. at *1-2). That court searched the record, noted that the missing elements of plaintiff’s prima facie case were annexed to defendant’s opposition papers, and granted plaintiff’s motion (id. at *1-2). Specifically, that court stated [w]hile in its motion papers, plaintiff proved that it prepared a claim setting forth the fact and amount of the loss, plaintiff’s proof that it submitted the claim to defendant was inadequate. We have held that a no-fault benefits applicant may cure deficiencies in its proof of mailing by annexing to its motion papers an insurer’s denial of claim form wherein the insurer acknowledges the claim’s receipt. Where, as here, plaintiff failed to annex the defendant’s denial of claim form to its motion papers, and the defendant annexes the denial of claim form to its opposing papers, the deficiency is similarly cured. We are aware of the well-established principle that the failure of a proponent of a motion for summary judgment to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion regardless of the sufficiency of the [*14]opposing papers. Moreover, it has been said that where a movant fails to demonstrate its entitlement to judgment as a matter of law, it is unnecessary for the court to even consider the sufficiency of the opposition papers. While opposition papers should not be reviewed for the sufficiency of the opposition, i.e., in order to determine whether a triable issue of fact has been raised, since in such cases the burden of proof will not have shifted to the party opposing the motion, this is not to say that where a movant fails to establish a prima facie case, the court may never review the opposition papers. Where the missing elements of a movant’s prima facie showing of entitlement to judgment as a matter of law (such as here, plaintiff’s submission of the claim forms) are supplied in the opposition papers, it is our opinion that the court may, in its discretion and pursuant to its power to search the record, find that a prima facie case exists, thereby shifting the burden of proof, notwithstanding the evidentiary deficiencies in the moving papers. Indeed, CPLR 3212 (b) authorizes the court to grant a motion for summary judgment, if upon ‘all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.’ The discretion of the court to review the opposition papers may be viewed as akin to the court’s discretionary power to grant reverse summary judgment in an appropriate case. This discretion exists both in the motion court and, in the first instance, in an intermediate appellate court. Thus, the opposition papers may, in the court’s discretion, be perused to determine whether the record as a whole establishes the movant’s prima facie entitlement to judgment. Were we to interpret the law otherwise, a court could not, for example, grant summary judgment to a plaintiff whose moving papers are insufficient, even where there has been a concession of liability in defendant’s opposition papers (internal citations omitted) (id. at *1-2).

Here, as previously noted, defendant’s denial form establishes that the claim herein was timely, that it was timely denied, but insofar as defendant denied the existence of coverage, never paid. Now that this Court, by denying defendant’s motion, has, by operation of law, determined that defendant’s defense lacks merit, payment on the claim is over due. Accordingly, plaintiff establishes prima facie entitlement to summary judgment and nothing submitted by defendant raises an issue of fact sufficient to preclude summary judgment in plaintiff’s favor. It is hereby

ORDERED that the Clerk enter judgment in plaintiff’s favor in the amount of 1,789.19, plus interest. It is further

ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon defendant within thirty (30) days hereof.

This constitutes this Court’s decision and Order.

Dated: November 19, 2021
FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1: 11 NYCRR 65-3.1 states that “[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law.”

Footnote 2: See also 11 NYCRR 65-1.1 [“No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage. . . . Medical, Work Loss, and Other Necessary Expenses. In the case of a claim for health service expenses, the eligible injured person or that person’s assignee or representative shall submit written proof of claim to the Company, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered. The eligible injured person or that person’s representative shall submit written proof of claim for work loss benefits and for other necessary expenses to the Company as soon as reasonably practicable but, in no event, later than 90 days after the work loss is incurred or the other necessary services are rendered. The foregoing time limitations for the submission of proof of claim shall apply unless the eligible injured person or that person’s representative submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.”]

Footnote 3: It bears mentioning that the court’s reasoning in Hosp. for Joint Diseases – that “[p]ersonal knowledge of [defendant’s] documents, their history, or specific content are not necessarily required of a document custodian” (id. at 433), for purposes of laying a business record foundation sufficient to admit the documents in evidence, or in that case, for consideration on summary judgment – is merely a recognition of well settled law. Indeed, the business record foundation only requires proof that (1) the record at issue be made in the regular course of business; (2) it is the regular course of business to make said record and; (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 NY2d 569, 579 [1986]). Accordingly, “[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity’s files” (DeLeon v Port Auth. of New York and New Jersey, 306 AD2d 146 [1st Dept 2003]).

Footnote 4: This is, of course, is irrelevant here since the defense is a lack of coverage defense which can be asserted even in the absence of a timely denial (Gen. Hosp. v Chubb Group of Ins. at 199; see Mount Sinai Hosp. at 19; Amaze Med. Supply, Inc. at *1; Ema Acupuncture, P.C. at *1; Ocean Diagnostic Imaging, P.C. at 63 [App Term 2004]). This is because, it is well settled that the failure to timely deny coverage cannot create coverage where none existed in the first place (Zappone at 135-136; see Matter of Worcester Ins. Co. at 188).

Footnote 5: Defendant’s denial forms are admissible insofar as Singh laid the requisite business records foundation. To be sure, the business record foundation only requires proof that (1) the record at issue be made in the regular course of business; (2) it is the regular course of business to make said record and; (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 NY2d 569, 579 [1986]). Accordingly, “[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity’s files” (DeLeon v Port Auth. of New York and New Jersey, 306 AD2d 146 [1st Dept 2003]).

Index No. CV 13288/21

GOLDBERG, MILLER & RUBIN P.C.
Attorneys for Petitioner
By: Harlan R. Schreiber, Esq.
1501 Broadway, Suite 715
New York, New York 10036
646.863.1531

ISRAEL, ISRAEL & PURDY, LLP
Attorneys for Respondent Corona Medical P.C.
By: Michael Hoenig, Esq.
11 Grace Avenue – Suite 11021
Great Neck, New York 11001
516.829.0363

MARSHALL & MARSHALL, PLLC
Attorneys for Respondent MVAIC
By: Jeffrey Kadsushin, Esq.
30 Jericho Executive Plaza, Suite 100 West
Jericho, New York 11753
516.997.6000

BACKGROUND

Mostafa Hekal (Assignor), a 29 year old male, was injured in a motor vehicle accident on March 8, 2019. Assignor was driving a 2018 Ford, with New Jersey plate L62KUG, when it was involved in a collision on the Southern State Parkway in Hempstead, New York. The 2018 Ford was a rental car owned by AutoTeam, Inc. and insured under New Jersey code 989, by Unitrin Preferred Insurance Company.

Assignor maintained a business policy in New York through Hereford, which is a New York State livery insurer. Assignor submitted the claim to Hereford and Hereford denied the claim, because the rental car was not an insured vehicle under the Hereford policy.

Assignor then submitted the claim to MVAIC who denied the claim because AutoTeam has a policy which covered the vehicle.

The amount in dispute was $550.00.

The parties submitted to arbitration to resolve the underlying dispute regarding no fault benefits. Corinne Pascariu (CP), the Arbitrator, held a hearing on June 29, 2020 and October 22, 2020 and issued a decision finding that MVAIC was not liable for the claim as a policy existed. CP further found:

… where, as here, there may be more than one insurer — the insurer providing coverage to the vehicle Assignor had been renting and the insurer providing for hire coverage to the vehicle Assignor had been driving — liable for providing first-party No-Fault benefits, and “a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first party benefits then the first insurer to whom notice of claim is given…shall be responsible for payment….

CP went on to find that as Hereford was the first to receive the notice of claim, it was responsible for processing the claim and its assertion that AutoTeam Inc is the insurer responsible must be resolved through intercompany arbitration.^[FN1]

The award was confirmed by Victor J. D’Ammora (VD), a Master Arbitrator pursuant to decision dated March 1, 2021. VD agreed with CP’s analysis and conclusions and found that CP’s decision was neither arbitrary and capricious nor incorrect as a matter of law.

THE PETITION

Hereford filed the petition commencing this proceeding on May 14, 2021. MVAIC and Corona Medical both appeared by counsel and filed opposition and cross-petitions. On October 14, 2021, the papers were fully submitted, and on October 15, 2021, the case was assigned to this court for determination.

The petition and cross-petitions are consolidated herein for determination.

For the reasons stated below, the petition to vacate the award is granted and the cross-petitions are denied.

There Was No Basis in the Record to Find Coverage by Hereford Existed

CPLR § 7511(b)(1)(iii) provides for an application for a party to vacate an arbitration [*2]award, where the arbitrator exceeded her power. While judicial review of arbitration awards is limited to the grounds set forth in CPLR 7511, an award that is the product of compulsory arbitration, such as the case at bar, has an additional layer of review to insure that the award is supported by evidence in the record and that the award is not arbitrary and capricious (Liberty Mutual Fire Insurance Co v Global Liberty Insurance Co. of NY 144 AD3d 1160, 1161).

In this case, the insurance policy issued by Hereford clearly on its face indicates it covers only the automobile owned by Assignor, and therefore provides no coverage for the vehicle Assignor rented and was driving when he got into the accident. The vehicle covered by Hereford is a 2015 Chevrolet, specifically identified by a PIN number on the declaration page of the policy issued by Hereford. The issue below was not one of priority of payment, as ruled on by the Arbitrator, but a lack of coverage defense, which the Arbitrator did not rule on, noting only that there “may” be coverage under the policy issued by Hereford without citing any evidence for this conjecture.

It is well settled that where an insurance company made no contract of insurance with the person and for the vehicle involved in the accident, liability is properly denied (Zappone v Homes Ins. Co. 55 NY2d 131, 136). In such a situation “… although the carrier may have some other relationship with the owner or driver of the vehicle, it has no contract with that person with respect to the vehicle involved and, there being no contractual relationship with respect to the vehicle, is not required to deny coverage or otherwise respond to a claim arising from an accident involving that vehicle except as statute mandates or courtesy suggests (Id at 136-137).” The court in Zapone further noted that the purpose of requiring company’s disputing priority of payment to go to intercompany arbitration was “.. to avoid prejudice to the injured claimant … not, however to provide an added source of indemnification which had never been contracted for and for which no premium had ever been paid (Id at 137).” Additionally, a lack of coverage defense may be raised regardless of whether the insurer’s denial was timely or in proper form [Gentlecare Ambulatory Anesthesia Services v Hereford 69 Misc 3d 144(A)].

Under these circumstances, and given the lack of evidence in the record for any finding that coverage by Herford exists, the award is arbitrary and capricious and must be vacated (Global Liberty Insurance Co. v Medco Tech, Inc. 170 AD3d 558; Progressive Cas. Ins.. Co. v New York State Ins. Fund 850 NYS2d 478; Allstate Insurance Co v Countrywide Insurance Co. 2002 NY Slip Op 40177(U)).

The cross-petition of Corona Medical PC is denied for the reasons stated above.

The cross-petition of MVAIC is also denied. Although, the court agrees with that portion of the arbitrator’s decision which found that there was no liability as pertains to MVAIC, because AutoTeam, Inc. had a policy, the court can not both vacate the award as against Hereford and confirm the award as to MVAIC. To do so would constitute a modification of the award, and there is no applicable basis under CPLR 7511( c) for this court to issue a modification.^[FN2]

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that the petition is granted to the extent of vacating and setting aside the award of Victor J’ D’Ammora, The Mater Arbitrator, dated March 1, 2021 with AAA [*3]Assessment Number 17-20-1157-8170, and the award of Corinne Pascariu, the Lower Arbitrator, dated October 28, 2020, upon the grounds that the award was arbitrary and capricious and exceeded the Master Arbitrator’s authority; and it is further

ORDERED that the cross-petitions of MVAIC and Corona Medical PC are denied in their entirety; and it is further

ORDERED that the Clerk of the Court shall enter judgment accordingly.

This constitutes the decision and order of this court.

New York, New York
October 20, 2021
Hon. Sabrina B. Kraus,
JCC

Footnotes

Footnote 1:CP also made a finding that Allstate’s denial was timely issued although Allstate does not appear to have been a party to the arbitration.

Footnote 2:Neither AutoTeam Inc, nor its insurer, Unitrin were party to the underlying arbitration. There is no discussion of why this party was not joined in the arbitrator’s decision.

Index No.: CV-031515-03/QU

Plaintiff’s counsel:

Law Offices of David O’Connor PC

807 Kings Highway

Brooklyn, NY 11223

Defendant’s counsel:

Bruno, Gerbino & Soriano, LLP

445 Broad Hollow Road, Suite 220

Melville, NY 11747

The following papers were read on Defendant’s motion to dismiss Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion and Affirmation dated November 9, 2017 (“Motion“) and file stamped by the court on November 14, 2017. 1

Plaintiff’s Affirmation in Opposition dated March 26, 2018 (“Opposition“). 2

Defendant’s Reply Affirmation dated April 6, 2018 (“Reply“). 3

Appellate Term for the 2nd, 11th and 13th Judicial Districts’ Decision and Order entered March 13, 2020. 4

Background

In a summons and complaint filed January 6, 2003, Plaintiff sued Defendant insurance company to recover $5,249.06 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Rodriquez on September 5, 2002, plus attorneys’ fees and statutory interest. Court’s case summary indicates that this action became “inactive” as of on [*2]June 1, 2007. However, in a notice of motion filed January 7, 2008 (“2008 Motion“), Defendant moved to dismiss Plaintiff’s complaint as a penalty for noncompliance with discovery (CPLR 3126). According to court’s case summary and court’s marking on the original 2008 Motion, the 2008 Motion was marked withdrawn on February 5, 2008.

Defendant further moved to dismiss Plaintiff’s complaint on November 14, 2017 through the Motion as abandoned (CPLR 3404) or as barred by laches, which Plaintiff opposed. In an order entered June 4, 2018 (“Prior Order“), the court (H., J.) granted Defendant’s Motion on the ground it was barred by laches and dismissed Plaintiff’s complaint with prejudice, but did not rule on the other branches of Defendant’s Motion. By notice of appeal dated July 13, 2018, Plaintiff appealed the Prior Order. In a decision and order dated March 13, 2020, the Appellate Term for the 2nd, 11th and 13th Judicial Districts reversed the Prior Order and remitted the matter to Civil Court to determine the remaining branches of Defendant’s Motion. Defendant’s Motion was assigned to this Court on May 20, 2021. Several attempts to schedule an oral argument by both parties before this Court were not successful.

Discussion and Decision

Defendant moved to dismiss Plaintiff’s complaint as abandoned (CPLR 3404) or as barred by laches, and alternatively sought to stay interest from the time the action was marked “disposed” on June 1, 2007. The Appellate Term reversed the Prior Order which dismissed the action as barred by laches. The remaining branches of Defendant’s Motion sought dismissal on the ground that the Plaintiff abandoned the action by failing to restore the action since it was marked disposed on June 1, 2007, and alternatively, sought to stay interest from June 1, 2007, the date the matter was marked off, until the date the matter was restored.

CPLR 3404 provides:

A case in the supreme court or a county court marked “off” or struck from the calendar or unanswered on a clerk’s calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.

CPLR 3404 does not apply to actions in New York City Civil Court (Chavez v 407 Seventh Ave. Corp., 39 AD3d 454, 456 [2d Dept 2007]; Gaetane Physical Therapy, P.C. v Kemper Auto & Home Ins. Co., 50 Misc 3d 144[A], 2016 NY Slip Op 50255[U] *1 [App Term 2d Dept 2016]; Halpern v Tunne, 38 Misc 3d 126[A], 2012 NY Slip Op 52321[U] * 2 [App Term 2d Dept 2012]; Small v Metropolitan Prop. & Cas. Ins. Co., 35 Misc 3d 134[A], 2012 NY Slip Op 50760[U] * 1 [App Term 2d Dept 2012]). Even if CPLR 3404 were to apply in New York City Civil Court, CPLR 3404 would not have applied to pre-note of issue actions (Guillebeaux v Parrott, 188 AD3d 1017, 1017 [2d Dept 2020; Onewest Bank, FSB v Kaur, 172 AD3d 1392, 1393 [2d Dept 2019]; Kapnisakis v Woo, 114 AD3d 729, 730 [2d Dept 2014]; Arroyo v Board of Educ. Of City of NY, 110 AD3d 17, 19 [2d Dept 2013]), because CPLR 3404 would not have furnished grounds for dismissal since no party filed a notice of trial, which is the Civil Court equivalent of the note of issue (Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75, 76 [App Term 2d Dept 2014]; Tong Li v Citiwide Auto Leasing, Inc., 43 Misc 3d 128[A], 2014 NY Slip Op 50481[U] *1 [App Term 2d Dept 2014]; Richman v Obiakor Obstetrics & Gynecology, P.C., 32 Misc 3d 135[A], 2011 NY Slip Op 51461[U] *1 [App Term 2d Dept 2011]). Therefore, this Court denies Defendant’s motion to dismiss pursuant to CPLR 3404.

In its Reply, Defendant also contended that Plaintiff’s complaint must be dismissed [*3]pursuant to 22 N.Y.C.R.R. § 208.14[c], which provides that “[a]ctions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken.” Defendant’s arguments regarding 22 N.Y.C.R.R. § 208.14[c] were improperly raised for the first time in its Reply (Grocery Leasing Corp. v P & C Merrick Realty Co., LLC, NY Slip Op 04701*2 [2d Dept Aug. 18, 2021]; Deutsche Bank Natl. Trust Co. v March, 191 AD3d 762, 763 [2d Dept 2021]). In any event, 22 N.Y.C.R.R.§ 208.14[c] “makes no provision for dismissing an action for neglect to prosecute” (Chavez v 407 Seventh Ave. Corp., 39 AD3d at 456; Hillside Place, LLC v Shahid, 55 Misc 3d 101, 103 [App Term 2d Dept 2017]; Marone v Bevelaqua, 36 Misc 3d 140[A], 2012 NY Slip Op 51484[U] *2 [App Term 2d Dept 2012]), which was what Defendant argued here. Despite the inapplicability of CPLR 3404 and 22 N.Y.C.R.R. § 201.14[c], Defendant is not without remedy (see Guillebeaux v Parrott, 188 AD3d at 1018; Onewest Bank, FSB v Kaur, 172 AD3d at 1393; General Assur. Co v Lachmenar, 45 Misc 3d 134[A], 2014 NY Slip Op 51722[U] *2 [App Term 2d Dept 2014].)

Defendant alternatively argued that interest accrual should be stayed from the time the case was marked off until the time it is restored. “If an applicant has submitted a dispute to arbitration or the courts, interest shall accumulate, unless the applicant unreasonably delays the arbitration or court proceeding” (11 NYCRR § 65-3.9[d]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 204 n. 2 [2d Dept 2009]; Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] *1 [App Term 2d Dept 2016]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term 2d Dept 2014]). Here, although Plaintiff commenced the action on January 6, 2003, court’s case summary reveals that the only activity occurred was Defendant’s motion to dismiss filed on January 7, 2008, which was withdrawn, Defendant’s instant Motion to dismiss, which was filed on November 14, 2017 and the subsequent appellate practice culminating in the order of the Appellate Term dated March 13, 2020.

As noted above, Plaintiff has not filed a notice of trial. Although the case was “inactive” as of June 1, 2007, a disposed marking of a pre-note of issue case is not permitted (Bilkho v Roosevelt Sq., LLC, 157 AD3d 849, 850 [2d Dept 2018]; Khaolaead v Leisure Video, 18 AD3d 820, 821 [2d Dept 2005], see Arroyo v Board of Educ. Of City of NY, 110 AD3d at 21). Here, the disposed marking does not prevent Plaintiff from prosecuting the case because undoing such marking does not require a motion to restore (Arroyo v Board of Educ. of City of NY, 110 AD3d at 20; General Assur. Co. v Lachmenar, 2014 NY Slip Op 51722[U] *2 [App Term 2d Dept 2014]). Plaintiff should not be rewarded for the years of inactivity in the court proceeding “by receiving a windfall of interest” (Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 2016 NY Slip Op 51240[U] *1; V.S. Medical Services, P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] *2 [App Term 2d Dept 2015]; Aminov v Country Wide Ins. Co., 43 Misc 3d at 89). Therefore, this Court grants this branch of Defendant’s motion and in the event Plaintiff prevails on its claims, fixes the date interest accrues to such date as a notice of trial is filed (see V.S. Medical Services, P.C. v Travelers Ins. Co., 2015 NY Slip Op 51760[U] * 2; Aminov v Country Wide Ins. Co., 43 Misc 3d at 89).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion to dismiss on the ground that Plaintiff abandoned the action is denied; and it is further

ORDERED that Defendant’s motion to fix accrual of interest is granted; and it is further

ORDERED that in the event Plaintiff prevails on its claims, interest shall accrue from the filing date of the notice of trial.

This constitutes the Decision and Order of this Court.

Dated: October 8, 2021

Queens County Civil Court

Hon Wendy Changyong Li, J.C.C.

Index No. CV-723275-19/QU

Plaintiff’s counsel:
Mandell & Santora PC
29 Broadway
Lynbrook, NY 11563

Defendant’s counsel:
Rosillo & Licata LLP 355 Post Avenue, Suite 204
Westbury, NY 11590

I. Papers

Papers/Numbered

Defendant’s Notice of Motion and Affirmation in Support for summary judgment dismissing Plaintiff’s complaint under index number CV-723275-19/QU dated February 10, 2020 (“Motion 1“) and file stamped by the court on February 13, 2020. 1

Plaintiff’s Affirmation in Opposition under index number CV-723275-19/QU dated May 19, 2020 (“Opposition 1“) and electronically filed with the court on May 20, 2020. 2

Defendant’s Reply Affirmation under index number CV-723275-19/QU dated April 27, 2021 (“Reply 1“) and electronically filed with the court on May 12, 2021. 3

Defendant’s Notice of Motion and Affirmation in Support for summary judgment dismissing Plaintiff’s complaint under index number CV-723253-19/QU dated February 10, 2020 (“Motion 2“, together with Motion 1, the “Motions“) and file stamped by the court on February 13, 2020. 4

Plaintiff’s Affirmation in Opposition under index number CV-723253-19/QU dated May 19, 2020 (“Opposition 2“) and electronically filed with the court on May 20, 2020. 5

Defendant’s Reply Affirmation under index number CV-723253-19/QU dated April 27, 2021 (“Reply 2“) and electronically filed with the court on May 12, 2021. 6

In a summons and complaint under index number CV-723275-19/QU filed on October 31, 2019, Plaintiff sued Defendant insurance company to recover $1,110.36 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Allen from June 29, 2019 to July 18, 2019, plus attorneys’ fees and statutory interest (see Motion 1, Aff. of Scozzari, Ex. A). In a summons and complaint under index number CV-723253-19/QU filed on October 31, 2019, Plaintiff sued Defendant to recover $970.96 in unpaid first party No-Fault benefits for medical services provided to Allen from August 14, 2019 to August 30, 2019 (see Motion 2, Aff. of Scozzari, Ex. A). In both actions, Defendant moved for summary judgment dismissing Plaintiff’s complaints on the ground that the services Plaintiff rendered to Allen were not medically necessary. Plaintiff opposed Defendant’s Motions. An oral argument by both parties was conducted before this Court on September 1, 2021. Both parties agreed that the arguments in both actions were identical except for the dates of service and the respective amounts claimed. For judicial efficiency, this Court decides both motions together because they raise identical issues of law within a virtually identical factual background.

III. Decision

Insurers must pay or deny No-Fault benefit claims within thirty (30) days of receipt of proof of the claim (Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). Here, the affidavits of Defendant’s No-Fault examiner Dougert sworn February 6, 2020, which were appended to the Motions, establishing Defendant’s regular office mailing procedures showed Defendant timely denied Plaintiff’s claim (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2d Dept 2020]; see Progressive Cas. Ins. Co. v Infinite Ortho Prods, Inc., 127 AD3d 1050, 1051 [2d Dept 2015]).

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

In our instant matters, Defendant based its denials of Plaintiff’s claims on lack of medical necessity. Defendant presented the sworn peer review report of Dr. T. McLaughlin, an acupuncturist and chiropractor, who reviewed Allen’s chiropractic examination report, pain fiber nerve conduction study, initial physical examination report, physical therapy progress notes, and physical therapy prescription from March 2019 (see Motions, Scozzari Aff., Ex. B). Dr. McLaughlin also performed a physical examination of Allen on April 30, 2019, in which he specified the tests he performed. Dr. McLaughlin tested Allen’s range of motion in the cervical, thoracic, and lumbar spine and the upper and lower extremities which revealed normal ranges of motion as compared to the maximum range and no other abnormalities. Dr. McLaughlin’s evaluation of Allen under traditional Chinese medicine also revealed normal findings. Here, Dr. McLaughlin’s report established lack of medical necessity for the services Plaintiff provided (Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 134[A], 2017 NY Slip Op 50954[U] *1 [App Term 2d Dept 2017]; Westcan Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066 * 1 [App Term 2d Dept 2015]; Lenox Hill Radiology & MIA, [*2]P.C. v Great N. Ins. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50680 *1 [App Term 2d Dept 2015]; Ayoob Khodadadi, M.D., MRI, P.C. v Clarendon Natl. Ins. Co., 37 Misc 3d 130[A], 2012 NY Slip Op 51968 * 1 [App Term 2d Dept 2012]).

In opposition, Plaintiff presented an affidavit dated May 4, 2020, in which Winslow, LA, who treated Allen, attested that she “reviewed the IME Report of Dorothy McLaughlin, DC, dated April 30, 2019.” (Opposition 1 and Opposition 2, Aff. of Nof, Ex. A at 1). Initially, this Court assumes that the reference to “Dorothy McLaughlin” in Winslow’s report was a typographical error. Based on review of medical records and treatment notes, Winslow attested that Allen had “reduced range of motion, continued complaints of pain and weakness, and reduced muscle strength, and continued complaints of tenderness and spasm,” (Id.) which indicated that Allen required further treatment. Winslow also attested that her treatment notes contradicted Dr. McLaughlin’s opinion, and concluded that additional physical therapy after the IME was medically necessary. Winslow’s affidavit “did not meaningly refer to, or discuss” Dr. McLaughlin’s report, so is insufficient to raise factual issues regarding medical necessity of the services Plaintiff provided (Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50884[U] *2 [App Term 2d Dept 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] *2 [App Term 2d Dept 2009]). Similarly, Winslow’s statement that her treatment notes contradicted Dr. McLaughlin’s opinion was conclusory (Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50884 *2; Pan Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 51495[U] *2), particularly since Plaintiff did not present the notes to which she referred.

It is well established that “expert’s affidavit must contain four elements: (1) the expert’s qualification; (2) the facts underlying the expert’s opinion; (3) the technical, scientific or other authoritative basis supporting the opinion; and (4) the opinion itself” (Avoiding the Conclusory When Preparing Experts’ Affidavits, Feb. 27, 2015 N.Y.L.J.) and that conclusory opinions in expert affidavits lack probative value (Sparks v Detterline, 86 AD3d 601, 602 [2d Dept 2011]; Borras v Lewis, 79 AD3d 1084, 1085 [2d Dept 2010]). Once a moving party establishes its prima facie case in a motion for summary judgment, the burden then shifts to the non-moving party to defeat moving party’s showing (De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 79 [2015]). Here, in our instant matters, Defendant’s expert applied various facts, i.e., Allen’s medical history and current complaint, experts’ physical examination on Allen, Allen’s range of motion and Allen’s medical condition at cervical spine, upper extremities, thoracic, lower extremities and lumbar, to western modern medical science, technology and cited authorities, as well as to traditional Chinese medicine, and had come to a conclusion that Allen’s treatment was not medically necessary. On the contrary, Plaintiff’s expert omitted the requirements of an expert’s affidavit, i.e., the underlying facts and the scientific basis upon which her opinion relied, but simply stated a conclusion/an opinion that Allen’s treatment by her was medically necessary. Here, Plaintiff’s expert affidavit failed to sufficiently rebut Defendant’s expert affidavit, and thus failed to defeat Defendant’s prima facie showing.

This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact, that the controversy regarding Plaintiff’s claims in both actions can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]), that Plaintiff has failed to raise factual issues requiring a trial (Innovative Chiropractic, P.C. v New York Cent. [*3]Mut. Fire Ins. Co., 2010 NY Slip Op 50884 *2; Pan Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 51495[U] *2), and that Defendant is entitled to dismissal of Plaintiff’s complaints in both actions.

IV. Order

Accordingly, it is

ORDERED that Defendant’s motions for summary judgment are granted and that Plaintiff’s complaints are dismissed in both actions, and it is further

ORDERED that the part clerk is directed to mark the index numbers in both actions disposed for all purposes.

This constitutes the Decision and Order of the court.

Dated: September 17, 2021
Queens County Civil Court
____________________________________
Honorable Wendy Changyong Li, J.C.C.

CV-714768-19/QU

Plaintiff’s counsel:

Lewin & Baglio, LLP

1100 Shames Drive, Suite 100

Westbury, NY 11590

Defendant’s counsel:

Jaffe & Velasquez LLP

40 Wall Street, 12th Floor

New York, NY 10005

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment on its claim:

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated January 24, 2020 (“Motion”) and file stamped by the court on February 7, 2020. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated August 19, 2020 (“Cross-Motion”) and electronically filed with the court on August 24, 2020. 2

Defendant’s Affirmation in Opposition dated February 10, 2021 (“Opposition to Cross-Motion”) and electronically filed with the court on February 12, 2021. 3

II. Background

In a summons and complaint filed July 25, 2019, Plaintiff sued Defendant insurance company to recover $1,893.00 in unpaid first party No-Fault benefits for medical prescriptions provided to Plaintiff’s assignor Styles, plus attorneys’ fees and statutory interest (see Motion, Aff. of Kang, Ex. A). Defendant moved for summary judgment dismissing Plaintiff’s complaint (CPLR 3212[b]) on the ground that Plaintiff lacked standing (CPLR 3211[a][3]) and failed to state a cause of action (CPLR 3211[a][7]). Plaintiff cross-moved for summary judgment on its claim against Defendant.

III. Discussion

The Mandatory Personal Injury Protection Endorsement is required in all automobile insurance contracts (11 NYCRR § 65-1.1[a]) which provides that “[i]n the event of an accident, written notice setting forth details sufficient to identify the eligible injured person, along with reasonably obtainable information regarding the time, place and circumstances of the accident, shall be given by, or on behalf of, each eligible injured person, to the [insurance] Company, or any of the [insurance] Company’s authorized agents, as soon as reasonably practicable, but in no event more than 30 days after the date of the accident, unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation” (see 11 NYCRR § 65-1.1[d]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 589-90 [2011]). Thus, as here, Plaintiff assignor Styles was required to provide notice of the accident to Defendant within thirty (30) days of the accident (Hosp. for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317, 879 N.E.2d 1291, 1293 (2007), see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 562-63 [2008]). The notice of accident requirement is a condition precedent to a No-Fault insurer’s liability (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d at 590).

As to the matter before this Court, in an affidavit sworn January 28, 2020, Mena-Sibrian, Defendant’s No-Fault Litigation/Arbitration Supervisor, attested that Defendant first received notice of Styles’ accident in a correspondence from MVAIC dated January 17, 2019 and postmarked February 5, 2019, which was more than thirty (30) days after Styles’ accident on October 9, 2018 (see Motion, Kang Aff., Ex. C). Mena-Sibrian claimed to have personal knowledge of the file based on her responsibility for the claim and “review of the file which was kept in the ordinary course of business by [Defendant]” (Motion, Kang Aff., Ex. C at 1). Since review of records kept in the ordinary course of business does not confer upon the affiant personal knowledge, Mena-Sibrian’s statement that Defendant first received notice of Plaintiff’s accident in the January 17, 2019 correspondence postmarked February 5, 2019 (see Motion, Kang Aff., Ex. F) is hearsay (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934, [*2]935 [2d Dept 2021]). Because Mena-Sibrian did not identify the correspondence postmarked February 5, 2019 annexed as Exhibit F, she failed to authenticate it to render it admissible evidence (see Antoine v Kalandrishvili, 150 AD3d 941, 942 [2d Dept 2017]; Hefter v Elderserve Health, Inc., 134 AD3d 673, 675 [2d Dept 2015]). Likewise, Mena-Sibrian’s account that Defendant “contacted MCVIAC [sic] via the telephone, and a MVIA [sic] representative notified [Defendant] that MVIAC received the initial notification of the loss on November 20, 2018” (Motion, Kang Aff., Ex. C at 3) was vague and clearly not based on Mena-Sibrian’s personal knowledge, so also failed to demonstrate the untimeliness of Plaintiff’s notice of the accident to MVAIC (see Nuzzi v Gallagher, 60 AD3d 653, 654 [2d Dept 2009]).

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968). Here, Defendant failed to establish its prima facie case with admissible evidence. Since Defendant failed to meet its burden of demonstrating entitlement to summary judgment, this Court denies Defendant’s motion for summary judgment without consideration of Plaintiff’s opposition (Luigi v Avis Cab Co., Inc., 96 AD3d 809, 810 [2d Dept 2012]; Alexander v Gordon, 95 AD3d 1245, 1246 [2d Dept 2012]).

Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Plaintiff presented an affidavit dated March 27, 2020, in which Munson, Plaintiff’s biller, attested that, based on her review of Plaintiff’s records maintained in the ordinary course of business, Plaintiff submitted proof of claim to Defendant within 45 days of providing prescriptions to Styles (see Cross-Motion, Aff. of Jillian M. Enright, Ex. 2 at 1). Munson’s affidavit suffered from the same infirmity as the affidavit of Mena-Sibrian, in that the review of records did not imbue an affiant with personal knowledge, so Munson’s assertion regarding Plaintiff’s timely submission of claim was also hearsay (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d at 935). In addition, it is noted that the fact that Plaintiff submitted proof of claim to Defendant within 45 days of providing prescriptions to Styles (even if it was established by admissible evidence, while it did not here), does not provide that Styles had notified the insurance company within 30 days of the alleged car accident as required.

Although an insurer’s denial of claim form may establish the insurer’s receipt of a medical service provider’s claim and untimely denial of that claim, (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]), Defendant’s denial of claim form dated May 7, 2019, which acknowledged receipt of Plaintiff’s claim on April 25, 2019, demonstrated that Defendant denied Plaintiff’s claim twelve (12) days after receiving it (see Motion, Kang Aff. Ex. E). Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claim against Defendant, this Court denies Plaintiff’s Cross-Motion without consideration of Defendant’s opposition (U.S. Bank N.A. v Atia, 178 AD3d 747, 749 [2d Dept 2019]; Zalewski v MH Residential 1, LLC, 163 AD3d 900, 901 [2d Dept 2018]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint is denied, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant is denied.

This constitutes the Decision and Order of the court.

Dated: September 15, 2021

Queens County Civil Court

____________________________

Honorable Wendy Changyong Li, J.C.C.

CV-711495-18/QU

Plaintiff’s counsel:
Baker & Cantin P.C.
63-36 99th Street
Rego Park, NY 11374

Defendant’s counsel:
Jaffe & Koumourdas LLP
40 Wall Street, 12th Floor
New York, NY 10005
Wendy Changyong Li, J.

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion and Affirmation dated February 14, 2020 (“Motion”) and file stamped by the court on March 3, 2020 1

In a summons and complaint filed August 23, 2018, Plaintiff sued Defendant insurance company to recover $1,837.68 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Javier for injuries sustained in an automobile accident, plus attorneys’ fees and statutory interest (see Motion, Aff. of Kang, Ex. A). In a summons and [*2]complaint dated and filed on November 5, 2018, Defendant commenced an action in Supreme Court, New York County (“Supreme Court Action“) against Javier, Plaintiff, and other nonparty medical service providers, seeking a judgment declaring that Defendant owed no duty to pay No Fault claims arising from Javier’s automobile accident because Javier failed to appear for scheduled examinations under oath (“EUO“) (see Motion, Kang Aff., Ex. C). On September 16, 2019, Defendant moved in the Supreme Court Action for a default judgment against all defendants, including Javier and Plaintiff (see Motion, Kang Aff., Ex. F). In an order dated December 17, 2019 and entered December 19, 2019, Supreme Court granted Defendant’s motion for a default judgment and declared that Defendant was “not required to provide, pay or honor any current or future claim for no-fault benefits” under Defendant’s policy to Javier (Country-Wide Ins. Co. v Javier, Sup. Ct. NY County, December 17, 2019, K., J., Index No. 655488/18; Motion, Kang Aff., Ex. E). Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that the action is barred by res judicata. Plaintiff did not oppose Defendant’s motion.

III. Discussion

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, 111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Simmons v Trans Express Inc., 37 NY3d at 111; O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]).

The parties and subject matter in the instant matter and the Supreme Court Action are identical (Healthway Med. Care, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *1). Any judgment in Plaintiff’s favor in our instant action would adversely affect the rights and interests created by the judgment in the Supreme Court Action (Metro Health Prods., Inc. v Nationwide Ins., 55 Misc 3d 142[A], 2017 NY Slip Op 50607[U] *2 [App Term 2d Dept 2017]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *2). Thus res judicata bars Plaintiff’s action (Active Care Med. Supply Corp. v American Commerce Ins. Co., 54 Misc 3d 128[A], 2016 NY Slip Op 51813[U] *2 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1). Here, Judge K. rendered an order in the Supreme Court Action deciding Defendant in our instant case was “not required to provide, pay or honor any current or future claim for no-fault benefits” under Defendant’s policy to Plaintiff’s assignor, Javier (Motion, Kang Aff., Ex. E at 4). Therefore, Defendant is entitled to summary judgment dismissing Plaintiff’s complaint (Metro Health Prods., Inc. v Nationwide Ins., 2017 NY Slip Op 50607[U] *1; Active Care Med. Supply Corp. v American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Atlantic Chiropractic, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51072[u] *2 [App Term 2d Dept 2016]). Even though Supreme Court entered judgment on Plaintiff’s default in the Supreme Court Action, the judgment constitutes a conclusive final determination because Plaintiff’s [*3]default in the Supreme Court action has not been vacated (Active Care Med. Supply Corp. v American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion to dismiss Plaintiff’s complaint is granted and Plaintiff’s complaint is dismissed; and it is further

ORDERED that the part clerk is directed to dispose the index number for all purposes.

This constitutes the Decision and Order of the court.

Dated: September 8, 2021
Queens County Civil Court
Honorable Wendy Changyong Li, J.C.C.