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.

[*1]

Civil Court of the City of New York, Kings County, July 28, 2021

APPEARANCES OF COUNSEL

Brian E. Kaufman for defendant.

Richard Rozhik for plaintiff.

The decision/order on defendant’s motion for summary judgment and plaintiff’s cross motion for summary judgment is decided as follows:

It is well settled that a proponent for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

A moving defendant seeking summary judgment to dismiss the complaint based upon failure to appear for an examination under oath (hereinafter EUO) must show timely mailing of the EUO scheduling letters and that the assignee, in fact, failed to appear (see 11 NYCRR 65-1.1; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]).

Defendant did so here. Defendant established that it scheduled plaintiff’s EUO four times by letters dated, October 26, 2017, January 10, 2018, March 26, 2018, and May 25, 2018, for EUOs noticed for January 8, 2018, March 20, 2018, May 23, 2018, and July 12, 2018, respectively. Defendant also established that plaintiff failed to appear at each of the noticed EUOs.

Moreover, defendant demonstrated that plaintiff repeatedly sent letters to counsel for Nationwide stating that it needed two additional months to appear for the EUO, while requesting [*2]an explanation regarding the basis of the EUO and impermissibly demanding a $3,500 appearance fee per claimant to appear at the noticed examinations under oath. The said letters were sent on December 27, 2017 (in relation to the January 8, 2018 EUO), March 16, 2018 (in relation to the March 20, 2018 EUO), May 9, 2018, and May 21, 2018 (in relation to the May 23, 2018 EUO), and June 28, 2018 (in relation to the July 12, 2018 EUO). Each of the aforementioned letters were sent within days or weeks of the respective scheduled EUOs although each EUO request provided nearly two months’ notice as per plaintiff’s request to accommodate plaintiff’s claim that it had a busy calendar. Despite repeatedly claiming to be unavailable to attend the EUO and successfully obtaining two{**73 Misc 3d at 253} months’ adjournment, plaintiff failed to submit an affidavit of an individual with personal knowledge to establish its unavailability on any of the dates the EUO was noticed for or an affidavit attesting to any date it provided defendant that plaintiff would be available to appear.

The purpose of the No-Fault Law and regulations, Insurance Law § 5102 et seq. and 11 NYCRR part 65, is to ensure prompt payment of medical claims for treatment provided to people injured in automobile accidents regardless of fault. If an EUO is requested as additional verification an insurer must schedule it within a reasonable time frame and as “expeditiously as possible.” (Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].) Plaintiff frustrated the intent of the no-fault regulation by attempting to delay the claim over a period of nine months by claiming it needed two months’ notice for each noticed EUO, thereafter receiving two months’ notice of the EUOs and then continuing to claim it was unavailable and further, without authority, requiring $3,500 for the appearance.

The record demonstrates that plaintiff failed to appear for EUOs scheduled on four occasions, January 8, 2018, March 20, 2018, May 23, 2018, and July 12, 2018. Moreover, the record demonstrates that although defendant Nationwide attempted to accommodate plaintiff by noticing the EUO four times at plaintiff’s request, plaintiff nonetheless failed to appear for any of the noticed EUOs. The last scheduled EUO was for July 12, 2018, and the claims were timely denied on July 19, 2018.

Both parties were given an opportunity to orally argue this motion, at which time plaintiff raised the issue of a timely denial based on a recent case, Quality Health Supply Corp. v Nationwide Ins. (69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). It appears that Quality Health stands for the proposition that a denial issued more than 30 days after the second EUO no-show, despite the scheduling of subsequent EUOs, is untimely. In Quality Health, the record before the court failed to establish that there were any objections to the EUO request and/or requests seeking an adjournment or postponement of the EUO.

The court finds that the case herein is distinguishable from Quality Health because the defendant herein demonstrated to the court that plaintiff requested that defendant Nationwide notice the EUO additional times, and that defendant in good faith was attempting to accommodate plaintiff’s request by rescheduling the EUOs.{**73 Misc 3d at 254}

Defendant has submitted sufficient proof to demonstrate that plaintiff failed to appear at four duly scheduled EUOs and therefore, failed to comply with a condition precedent to coverage. The plaintiff failed to provide evidence to rebut defendant’s showing.

Plaintiff’s contention that defendant is unable to establish the January 8, 2018 no-show as the transcript states a time of 11:45 p.m. (as opposed to 11:45 a.m.) lacks merit. The court finds that the EUO was noticed for 11:00 a.m. and that the affidavit of Allan Hollander stated that the scheduled start time of the EUO was 11:00 a.m. This is an obvious error in the transcript. Further, the December 27, 2017 correspondence from The Rybak Firm, PLLC, confirmed that FJL Medical Services PC would “be unavailable to appear for the requested EUO currently scheduled for [*3]January 8, 2018.” The court finds that the error in the transcript is insignificant to raise a triable issue of fact.

In light of the above, defendant’s motion for summary judgment is granted and plaintiff’s complaint is hereby dismissed.

CV-739339-17/KI

Hollander Legal Group, P.C., Melville (Jonathan Drapan of counsel), for Nationwide Ins., defendant.

The Rybak Firm, LLC, New York City (Oleg Rybak of counsel), for MSB Physical Therapy P.C., plaintiff.

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

Papers Numbered

Notice of Motion, Affirmation and Affidavits Annexed

Exhibits A-Z 1-18

Notice of Cross Motion, Affirmation in Support of Cross Motion and In Opposition to Motion, Affidavits Annexed Exhibits 1-8 19-22

Affirmation in Opposition to Cross Motion Exhibits A-B 23-24

Replying Affidavits NONE

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the complaint on the ground that plaintiff failed to appear at duly scheduled Examinations Under Oath (EUOs) on four separate occasions (Motion Seq. No. 001). Plaintiff opposes the motion and cross-moves for summary judgment in its favor against defendant, or in the alternative, moves for an order compelling defendant to provide discovery (Motion Seq. No. 002). Defendant opposes the cross motion.

The issue presented is whether plaintiff raised triable issues of fact as to whether plaintiff had failed to appear at the EUOs, where defendant refused plaintiff’s requests to reschedule the EUOs for lengthy adjournments of two to three months. Additionally, another issue presented is [*2]whether the EUOs scheduled before defendant received the bills at issue tolled the 30-day period for defendant to pay or otherwise deny the bills received, where the record contains no evidence that defendant had otherwise sent any requests for additional verification during the relevant 30-day periods for some of those bills.

A prior decision and order dated July 12, 2021 decided both the motion and cross motion. However, that decision and order is hereby recalled and vacated, because this court inadvertently overlooked defendant’s opposition papers to plaintiff’s cross motion, which are now considered in this amended decision and order.

BACKGROUND

On September 7, 2016, plaintiff’s assignor, Sayquan U. Bright, was allegedly injured in a motor vehicle accident (see defendant’s exhibit A in support of motion, complaint ¶ 2). This action concerns eight bills for dates of service during the period of January 13, 2017 through February 15, 2017:

(see defendant’s exhibits E-H in support of motion).

Prior to the alleged receipt of the bills, by a letter dated November 8, 2016, purportedly sent by certified mailed and first class mail to plaintiff, defendant’s counsel scheduled an EUO of plaintiff on November 21, 2016 at 2:00 p.m., at its office in Melville, New York, regarding 14 claimants which plaintiff treated, including Bright (see defendant’s exhibit I in support of motion, scheduling letter).

By a letter dated November 17, 2016 (four days before the scheduled EUO), purportedly sent by fax, the Rybak Firm PLLC responded that it represented plaintiff, requested that the EUO be rescheduled to a location in Brooklyn, New York, and advised that plaintiff “will be unavailable for the months of November and December due to the upcoming seasonal holidays” (defendant’s exhibit J in support of motion). Plaintiff’s counsel also noted that the EUO date conflicted with another scheduled EUO for a different medical provider which plaintiff’s counsel [*3]represented (id.). Plaintiff’s counsel therefore requested that plaintiff’s EUO be rescheduled to January, and requested reimbursement of $1,500 per claimant prior to the commencement of the EUO (id.). In closing, the letter stated, “Your failure to respond to this letter at least three (3) business days prior to the next scheduled EUO will be deemed a waiver of Nationwide’s rights to conduct EUO for the above named assignee(s)” (id.).

According to defendant’s counsel, Allan S. Hollander, plaintiff failed to appear at the EUO, and counsel placed a statement on the record accordingly at 2:53 p.m. (see defendant’s exhibit K in support of motion, aff of Allan S. Hollander ¶ 5 and tr. at 5). Hollander stated that plaintiff’s counsel “asked for a date in January . . . and I responded to him via a letter, that we would select a date in January to conduct his client’s examination under oath” (tr. at 6).

EUO of plaintiff on January 23, 2017

By a letter dated November 22, 2016, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel scheduled an EUO of plaintiff on January 23, 2017 at 11:00 a.m. at American Stenographic Court Reporting in Brooklyn, New York regarding the 14 claimants, including Bright (see defendant’s exhibit L in support of motion, scheduling letter). The letter further stated,

“Provided your client appears at the examination under oath and answers questions with respect to the corporate structure of MSB Physical Therapy and the treatment of the patients named herein, Nationwide will honor your client’s reimbursement request and present your client a check for $1,500.00. Nationwide will show your client the check prior to the examination under oath and will provide your client with the check subsequent to its completion”

(id.). By a letter dated November 28, 2016, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel again notified plaintiff of the EUO on January 23, 2017 at 11:00 a.m. in Brooklyn, New York (defendant’s exhibit M in support of motion).

By a letter dated January 10, 2017, purportedly sent by first class mail, plaintiff’s counsel responded,

“MSB Physical has extended their schedule till the end of February 2017, and will be unavailable to appear for the requested EUO currently scheduled for January 23, 2017. Please take further notice that it is very common amongst medical providers to have their schedules fully booked for about the same period of 2-4 months depending on the circumstances, as well to clear or extend them accordingly, which is usually the main reason of their unavailability to appear for a potential EUO”

(defendant’s exhibit N in support of motion). Plaintiff’s counsel again indicated that the EUO was scheduled on the same date as the EUO of another provider which plaintiff’s counsel represented (id.). Plaintiff’s counsel requested an EUO be scheduled in March (id.). Lastly, plaintiff’s counsel indicated that it had suggested an amount of $1,500 per claimant for reimbursement (id.).

By a letter dated January 17, 2017 addressed to plaintiff’s counsel, defendant’s counsel responded, in relevant part,

“Please be advised that a representative from this office will be present to place a default statement on the record concerning your client’s non-appearance at the EUO on January 23, 2017. Your correspondence further states that your client now needs an additional [*4]two to four months to appear and be ready for the examination under oath.

As such, this office will document the default of your client’s appearance at the EUO on January 23, 2017. Thereafter, this office will send notification noticing your client for a third and final EUO to take place on March 21, 2017. You should already be aware that your client failed to appear and/or asked to adjourn an EUO scheduled for November 21, 2016. Thereafter, your client was noticed two months later for the EUO to take place on January 23, 2017. As such, in good faith, Nationwide will afford your client one final opportunity to appear for an EUO for March 21, 2017.

Additionally, your correspondence asks for reimbursement in the amount of $1,500 for appearing at an examination under oath. . . . If your client wants more than $1,500.00 for its appearance at the EUO, your client will have to substantiate same by submitting proof of actual loss of earnings in the amount greater than $1,500.00″‘

(defendant’s exhibit O in support of motion).

According to defendant’s counsel, Christopher Volpe, plaintiff failed to appear at the EUO on January 23, 2017, and counsel placed a statement on the record accordingly at 1:35 p.m. (see defendant’s exhibit P in support of motion, aff of Christopher Volpe ¶ 4 and tr. at 5-6).

EUO of plaintiff on March 21, 2017

By a letter dated January 25, 2017, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel scheduled an EUO of plaintiff on March 21, 2017 at 11:00 a.m. at American Stenographic Court Reporting in Brooklyn, New York regarding 14 claimants, including Bright (see defendant’s exhibit Q in support of motion, scheduling letter).

By a letter dated March 16, 2017, purportedly sent by fax, plaintiff’s counsel responded,

“Please accept this letter as a good faith effort on the part of MSB Physical to comply with all the policy requirements of Nationwide Affinity Insurance Company of America and Titan Indemnity Company (“Nationwide”). As mentioned before, our client is prepared to meet its obligations to cooperate in the investigation of all claims, and is ready to proceed with a mutually convenient and properly scheduled EUO with the basis for this request provided. . . .

However, once again Nationwide has failed to provide our client with all good cause and objective reasons for determination that an EUO of MSB Physical is necessary to verify and establish proof of claim, while our client has an absolute right to request for the basis of this EUO request, and Nationwide has a corresponding basis to provide such an explanation. . . .

As for the scheduled EUO, please be advised that MSB Physical has extended their schedule for the next two (2) months, and will be unavailable to appear for the requested EUO currently scheduled for March 21, 2017. There is nothing wrong or illegal about that, but common medical practice for medical providers to have their schedules fully booked for about the same period 2-4 months depending on the circumstances, as well as to clear or extend them accordingly, which is usually the main reason of their unavailability to appear for a potential EUO.

Accordingly, as the law provides that an EUO be scheduled for a time and place that is convenient to the person who is being examined, we preserve our client’s rights. Please let our office know which other dates in May 2017 Nationwide is available to conduct the EUO of MSB Physical so that we may arrange for a mutually convenient date, time and location. Pursuant to 11 NYCRR 65-3.2 and 11 NYCRR 65-3.5(e), the refusal to adjourn an EUO is a direct violation of the No-Fault regulations”

(defendant’s exhibit R in support of motion).

According to defendant’s counsel, Caitriona McCarthy, plaintiff failed to appear at the EUO on March 21, 2017, and counsel placed a statement on the record accordingly at 12:01 p.m. (see defendant’s exhibit S in support of motion, aff of Caitriona McCarthy ¶ 4 and tr. at 6-7).

EUO of plaintiff on May 19, 2017

By a letter dated March 23, 2017, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel scheduled an EUO of plaintiff on May 19, 2017 (see defendant’s exhibit T). The letter further stated, in pertinent part,

“Your client has now missed its March 21, 2017 EUO date. You had asked this office previously to notice the examination under oath two months in advance due to the fact that your client’s calendar was booked in January. As such, Nationwide, in good faith, noticed the EUO two months from January to March 21, 2017 to afford your client every opportunity to clear its calendar and appear for its noticed examination under oath.

Nevertheless, once again, on the eve of the examination under oath, four days before said examination under oath, you are contacting this office and stating your client cannot appear due to its busy schedule.

You are stating in this correspondence that Nationwide has not provided your client with its good reasons and objective basis for noticing your client for an examination under oath. Please be advised that your client has been noticed for an examination under oath for the following reasons, which included but are not limited to:

1. The listed owner of MSB Physical Therapy, Maria Sheila Buslon, P.T., lives and works in Florida. This raises questions as to the true ownership and control of the New York P.C.;

2. The treating physical therapist, Ankit Baldevbhai Patel, is performing services as an employee of MSB Physical Therapy, P.C. and PFJ Medical P.C. on the same dates;

3. There is no Workers’ Compensation policy found for your client’s entity;

4. There is no phone number found on any of the bills or letterhead for your client’s company; and

5. Clinic inspections into your client’s facility have been refused.

The aforementioned are some of the reasons why Nationwide has noticed your client for an examination under oath. Nationwide is trying to determine whether or not your client is properly structured under the Business Corporation Laws of the State of New York and eligible to receive New York State No-Fault Benefits.

* * *

Your client has failed to appear for three examinations under oath with respect to the above claims. Nationwide will notice the examination under oath of your client for a day in May, 2017. The May examination under oath will be the final opportunity for your client to appear for an examination under oath with regard to the claims at issue. The date of that examination under oath will be May 19, 2017 . . . “

(defendant’s exhibit T in support of motion; see also defendant’s exhibit Y in support of motion, aff of Linda Arnold ¶ 4).

By a letter dated March 29, 2017, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel scheduled an EUO of plaintiff on May 19, 2017 at 11:00 a.m. at American Stenographic Court Reporting in Brooklyn, New York regarding 14 claimants, including Bright (see defendant’s exhibit U in support of motion, scheduling letter).

According to defendant’s counsel, Michael Weaver, plaintiff failed to appear at the EUO on May 19, 2017, and counsel placed a statement on the record accordingly at 12:10 p.m. (see defendant’s exhibit V in support of motion, aff of Michael Weaver ¶ 4 and tr. at 6-7).

By a letter dated June 23, 2017, purportedly sent by first class mail, plaintiff’s counsel wrote,

“This correspondence is in reply to your letter dated June 1, 2017 pertaining our client’s outstanding EUO, which is still required to be submitted by our client to Nationwide Affinity Insurance Company of America and Titan Indemnity Company (“Nationwide”).

Please accept this letter as another good faith effort on the part of MSB Physical to comply with all policy requirements of Nationwide. . . .

However, upon numerous requests, up to date our client has not been provided with all good cause and objective reasons for determination that an EUO of MSB Physical is necessary to verify and establish proof of claim. Instead, you repeatedly list the same irrelevant and misleading reasons (based upon mere speculation and suspicion as opposed to a good faith substantive basis), which we have already objected to in our previous correspondence regarding this matter dated May 18, 2017.

At this point, while Nationwide’s reasons for the EUO being objected to before are irrelevant under the circumstances, we have no other choice, but to reiterate our previous request to provide our client will all good cause and objective reasons for determination that an EUO of MSB Physical is necessary to verify and establish proof of claim. As you know, our client has an absolute right to request that Nationwide explains the basis for this EUO request, and Nationwide has a corresponding obligation to provide such explanation.

Once provided with same, once an agreement is reach as for a mutually convenient and properly scheduled EUO, and once the issue of our client’s reimbursement is negotiated, our client is ready to proceed”

(defendant’s exhibit W in support of motion).^[FN1]

By a letter dated June 29, 2017, defendant’s counsel responded to plaintiff’s counsel dated June 23, 2017, stating, in relevant part, “Your client has now failed to attend its examination under oath on four separate occasions with respect to the claims at issue” (defendant’s exhibit X in support of motion). Defendant’s counsel reiterated the five reasons for plaintiff’s EUO from its prior letter dated March 23, 2017 (id.).

Denial of Claim Forms

On June 8, 2017, defendant allegedly issued denials of all eight bills at issue in this action, stating, in relevant part:

“MSBP Physical Therapy PC has failed to respond to multiple requests for additional verification and has refused to provide pertinent information that will assist Nationwide in determining the amounts due and payable, pursuant to section 65-1.1(d). Additionally, this failure to submit to the examination under oath scheduled for 11/21/2016, 01/23/2017, 03/21/2017 and 05/19/2017, duly requested, is a violation of the policy[‘]s contractual duties and a violation of proof of claim conditions that precede coverage . . . , and as a result, all no fault billing for services rendered under this policy are being denied”

(see defendant’s exhibits E-H in support of motion, NF-10 forms Box 33).

On November 2, 2017, plaintiff commenced this action asserting eight causes of action to recover assigned first-party no-fault benefits for the eight bills, with interest, plus a ninth cause of action attorneys’ fees (see defendant’s exhibit A in support of motion, summons and complaint). ^[FN2] On December 7, 2017, defendant allegedly answered the complaint (see defendant’s exhibit B in support of motion, answer and affidavit of service).

DISCUSSION

“On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action”

(Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).

Defendant argues that it is entitled to summary judgment dismissing the complaint because plaintiff failed to appear for duly scheduled EUOs on four separate occasions, i.e., on November 26, 2016, January 23, 2017, March 21, 2017, and May 29, 2017 (affirmation of [*5]defendant’s counsel ¶¶ 18, 23-70).

“[A]n appearance at an EUO is a condition precedent to the insurer’s liability on the policy” (GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 30 Misc 3d 137 [A], 2011 NY Slip Op 50194 [U] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2011]).

“To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims”

(Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 63 Misc 3d 152[A], 2019 NY Slip Op 50760 [U], * 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal citations omitted]).

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2d Dept 2013], affd 25 NY3d 498 [2015] [internal quotation marks and citations omitted]). A party can establish proof of mailing “through evidence of actual mailing (e.g., an affidavit of mailing or service) or—as relevant here—by proof of a sender’s routine business practice with respect to the creation, addressing, and mailing of documents of that nature” (CIT Bank N.A. v Schiffman, 36 NY3d 550, 556 [2021]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006], citing Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).

“Actual mailing may be established by a proper certificate of mailing or by an affidavit of one with personal knowledge” (J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [internal citation, emendations and quotation marks omitted]). For proof by office practice, “the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]).

Here, to establish proof of mailing of the EUO scheduling notices, defendant submitted an affidavit from Allan S. Hollander, a former partner with the firm of Bruno, Gerbino & Soriano LLP (see defendant’s exhibit Z in support of motion, aff of Allan S. Hollander). According to Hollander, tracking confirmations from the United States Postal Service established delivery by certified mail of the EUO scheduling notices dated November 28, 2016, January 25, 2017, and March 29, 2017 (Hollander aff ¶¶ 9, 13,17, 24). However, as plaintiff’s counsel points out, the record does not contain any copies of such tracking confirmations. Thus, defendant failed to prove mailing by proof of actual mailing via certified mail.

Neither did Hollander’s affidavit establish proof of mailing by a standard office practice or procedure. Hollander stated,

“At the time of the subject correspondence, including the EUO scheduling letters and responses to Plaintiff’s correspondence, it was the ordinary course of business at Bruno Gerbino & Soriano to mail such correspondences, via the United States Postal Service by Certified Mail, Return Receipt Requested, and 1st class mail on the same date that they [*6]are created and dated and to the address and facsimile numbers listed thereon.

Specifically, after it was created, the EUO request letters were placed in a United States Postal Service bin, located on the third (3rd) floor of the law office of Bruno, Gerbino & Soriano, and the envelope with the proper Certified Mail, Return Receipt Requested material annexed thereto.

Thereafter, a different individual would affix the proper postage to the envelope to the envelope containing the EUO request letter. This parcel of mail, as well as other mail contained in the above-referenced bin, were taken to the mail room located in the lower lobby of Bruno Gerbino & Soraino’s [sic] building. . . . A member of the United States Postal Service would then take the mail to the U.S. Post Office located in Melville, New York. The empty mail bin would be returned to Bruno Gerbino & Soriano the following business day”

(Hollander aff ¶¶ 24-26).

Although Hollander maintained that the EUO scheduling letters were mailed on the same date that they were created and dated, nothing in office procedures described supported that assertion. Hollander described the procedures, but did not state when they occurred, except to say that the empty mail bin was returned the following business day. Hollander also maintained that the envelopes containing the EUO scheduling letters were addressed to the addresses listed on the scheduling letters, but he did not state that the letters were mailed in windowed envelopes. In the absence of any recitation of as to how the names and addresses on the EUO scheduling letters were checked for accuracy on the unwindowed envelopes, this court agrees with plaintiff’s counsel that, on this record, defendant did not establish that the office practice and procedure followed was designed to ensure proper mailing (Orthotech Express Corp. v MVAIC, 37 Misc 3d 128[A], 2012 NY Slip Op 51913[U], *1 [App Term, 1st Dept 2012] [“in any event, defendant acknowledged receipt of the claim”]).

Notwithstanding the above, defendant established proof of mailing of the EUO scheduling letters based on the letters in response from plaintiff’s counsel, which acknowledged receipt of the EUO scheduling letters (see Socrates Med. Health, P.C. v Motor Vehicle Acc. Indemnification Corp., 28 Misc 3d 141[A], 2010 NY Slip Op 51606[U], *1 [App Term, 1st Dept 2010] [“in any event, defendant acknowledged receipt of the claim”]). Thus, plaintiff fails to raise a triable issue of fact as to whether the EUO scheduling letters were mailed.

2. Plaintiff’s failure to appear

Although plaintiff did not appear at the EUO scheduled on November 21, 2016, this does not constitute a failure to appear because Hollander’s statement on the record on November 21, 2016 appears to suggest that the parties mutually agreed to reschedule the EUO to a date in January 2017 (Avicenna Med. Arts, P.L.L.C. v. Ameriprise Auto & Home, 47 Misc 3d 145 [A], 2015 NY Slip Op 50701 [U][App Term 2d Dept, 2d, 11th & 13th Jud Dists 2015).

Defendant established that plaintiff failed to appear for EUOs on January 23, 2017, March 21, 2017, and May 19, 2017, by submitting certified transcripts from the EUOs scheduled and held on those days. Although plaintiff argues that defendant must also submit an affidavit from someone with personal knowledge that plaintiff failed to appear at an EUO and that the [*7]EUO transcripts must be signed or notarized by defendant’s SIU investigator (see affirmation of plaintiff’s counsel in support of cross motion and in opposition to motion [Rybak affirmation] ¶¶ 146, 163, 175, 198, 205, 208, 227), the transcripts memorializing the missed appearances, which were certified as true and accurate by stenographers, are sufficient (Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2014]; see also Atlantic Radiology Imaging, P.C. v Metro. Prop. & Cas. Ins. Co., 50 Misc 3d 147[A], 2016 NY Slip Op 50321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). ^[FN3] In any event, defendant submitted affidavits from the attorneys who were physically present at the court reporting location in Brooklyn, New York on the dates and scheduled times of the EUOs (NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

In opposition, plaintiff argues that defendant failed to establish that it had objective reasons for requesting plaintiff’s EUO (see Rybak affirmation ¶¶ 154, 160-162). However, the Appellate Term, Second Department has repeatedly ruled, “contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment” (21st Century Pharmacy, Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020], citing Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]; see also Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 65 Misc 3d 138[A], 2019 NY Slip Op 51684[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Contrary to plaintiff’s argument (see Rybak affirmation ¶¶ 152, 155), “there is no requirement to establish willfulness” (Goldstar Equip., Inc. v Mercury Cas. Co., 59 Misc 3d 138[A], 2018 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “The doctrine of willfulness . . . applies in the context of liability policies, and has no application in the no-fault context” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 561 [1st Dept 2011]).

Plaintiff’s reliance upon Meridian Psychological Services, P.C. v Allstate Insurance Company (51 Misc 3d 128[A], 2016 NY Slip Op 50375[U] [App Term, 2d Dept, 2d, 11th & [*8]13th Jud Dists 2016]) is misplaced. There, the attorney testified at a nonjury trial that, “for the second EUO, she checked at 11:30 a.m. to see whether the assignor had appeared and continued to check for another 15 minutes, but plaintiff’s assignor never appeared. However, the letter scheduling the second EUO scheduled the EUO for 11:00, not 11:30” (id.). Here, unlike Meridian Psychological Services, P.C., the certified EUO transcripts reflect that defendant’s counsel stated on the record that EUO were to begin at 11:00 a.m. (see defendant’s exhibits P, S, and V in support of motion), which was the time reflected on the EUO scheduling letters. Thus, no reasonable inference could be drawn that plaintiff had appeared at the EUOs and left before defendant’s counsel had checked for plaintiff’s appearance. Additionally, for the EUO on January 23, 2017, counsel expressly stated that he had been present since 11:00 a.m. (see defendant’s exhibit P, tr at 7). Neither does plaintiff submit an affidavit from anyone claiming that plaintiff had appeared for any of the EUOs.

Contrary to plaintiff’s argument, the EUO scheduling letters complied with 11 NYCRR 65-3.5 (e). They identically stated, in relevant part, “Nationwide will reimburse you for the reasonable cost of transportation and any loss of earnings of earnings in order to comply with this request, upon submission of receipts and proper documentation” (see defendant’s exhibits M, Q, and U in support of motion).

To the extent that plaintiff argues that the EUO scheduling letters were not in “proper form” because the defendant did not designate a location and time was not “mutually convenient” for plaintiff (see Rybak affirmation ¶ 159), this argument is unavailing. The no-fault regulations do not require an insurer to schedule EUOs according to plaintiff’s convenience. Rather, they provide, “All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant” (11 NYCRR 65-3.5 [e]). On the record presented, plaintiff fails to raise a triable issue of fact as to whether the EUO were scheduled at reasonably convenient times.

The regulations do not place a limit on the number of times an applicant for no-fault benefits can request to reschedule an EUO. Courts have ruled that an EUO that is mutually rescheduled prior to the appointed time would not be deemed to constitute a failure to appear (Avicenna Med. Arts, P.L.L.C. v. Ameriprise Auto & Home, 47 Misc 3d 145 [A], 2015 NY Slip Op 50701[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Psychological Servs., P.C. v Mercury Cas. Co., 49 Misc 3d 143[A], 2015 NY Slip Op 51644[U] [App Term, 1st Dept 2015]).

However, one cannot assume that an EUO is mutually rescheduled merely because a request to reschedule an EUO was made (Alas Lifespan Wellness, PT, P.C. v Citywide Auto Leasing, Inc., 64 Misc 3d 131[A], 2019 NY Slip Op 51040[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [a phone call from the assignor on the day of the scheduled IME asking to adjourn the IME, without more, is insufficient to show that an issue of fact exists as to whether the IME was mutually rescheduled]).

If plaintiff requested to reschedule an EUO and received no response, then the insurer is not entitled to summary judgment dismissing the complaint as a matter of law (Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 130[A], 2019 NY Slip Op 51038[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [plaintiff’s owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant’s investigator, but that plaintiff was not contacted by defendant in response to the messages]).

If an insurer refuses a timely and proper request to reschedule, then an issue of fact arises as to whether the EUOs were scheduled to be held at a time or place which was “reasonably convenient” to plaintiff (Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). One lower court has ruled that an insurer may not unreasonably refuse to adjourn the exams “where a good-faith request is made to re-schedule and the adjournment sought is not excessive” (Diagnostic Radiographic Imaging, P.C. v GEICO, 42 Misc 3d 1205[A], 2013 NY Slip Op 52247[U] [Civ Ct, Kings County 2013]; see also A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19, 22, 2005 NY Slip Op 25297 [App Term, 2d Dept 2005]).

Here, defendant’s submissions indicate that the requests of plaintiff’s counsel to reschedule were made days before the EUOs were to occur, even though defendant’s counsel had mailed the scheduling letters well in advance before the scheduled EUOs. Assuming, for the sake of argument, that the requests of plaintiff’s counsel were timely, plaintiff did not raise a triable issue of fact as to whether these requests to reschedule were proper, or that they were made in good faith. Plaintiff requested lengthy adjournments of the EUO for two to three months, ostensibly for the reason that plaintiff is a doctor. If that reason, without more, constituted a good faith basis for an adjournment, then plaintiff could postpone an EUO indefinitely.

As discussed above, when an insurer schedules an EUO, the insurer must inform the applicant seeking no-fault benefits that “the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request” (11 NYCRR 65-3.5 [e]), which occurred here. Thus, any concern for the loss of earnings would not be a valid reason to reschedule an EUO. Additionally, when requesting to reschedule, plaintiff offered no specific dates which would be convenient for plaintiff. On this motion, plaintiff did not come forward within any additional information to support the contention that such lengthy adjournments would be reasonable under the circumstances. Thus, plaintiff fails to raise a triable issue of fact as to whether its requests for adjournments for two to three months were either proper, or made in good faith.

To the extent plaintiff contends that defendant “failed to provide[ ] that . . . Assignor [sic] is reasonably paid for his or her time and traveling expenses” and “failed to agree to reimburse the provider” (Rybak affirmation ¶¶159, 166), this argument is similarly unavailing. Plaintiff demanded a flat, up-front reimbursement in the amount of “$1,500 per claimant” at the commencement of the EUO (see defendant’s exhibit J in support of motion, letter from plaintiff’s counsel dated November 17, 2016). However, plaintiff’s counsel cites no authority for the proposition that the insurer must reimburse the lost earnings before the EUO takes place, and that the lack of reimbursement prior to the EUO would excuse the person to be examined from having to appear. As a practical matter, the duration of an EUO may be an important factor in calculating the reimbursement of lost earnings. Additionally, defendant indicated that it wished to inquire about defendant’s ownership and operations, which would be information common to all the claimants (defendant’s exhibit T in support of motion). In this case, the request of plaintiff’s counsel for a flat, up-front fee of $1,500 per claimant was improper (Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [“plaintiff improperly demanded that defendant pay a flat, up-front fee of $4,500 for plaintiff to attend the EUO, as opposed to seeking reimbursement for any loss of earnings and reasonable transportation [*9]expenses as set forth in the regulations”]).

Thus, plaintiff fails to raise a triable issue of fact as to whether plaintiff failed to appear for duly scheduled EUOs.

3. Timely Denial of the Claims

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim”

(Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009] [internal citations omitted]).

According to Kathleen McAndrews, a Claims Specialist employed by defendant Nationwide Mutual Insurance Company (Nationwide Mutual) at the claims office in Liverpool, New York, the policy upon which these claims have been presented is a policy underwritten by Nationwide Affinity Insurance Company of America, which is a company of Nationwide Mutual (defendant’s exhibit D in support of motion, McAndrews aff ¶¶ 1-3). McAndrews stated that all New York No-Fault related mail “regardless of where it is addressed is forwarded to P.O. Box 26005, Daphne, AL 36526-1126 for processing” (id. ¶ 10). It is undisputed that the claim forms were sent to “Nationwide Insurance Company” at “P.O. Box 26005, Daphne, AL 36526” (see defendant’s exhibits E-H in support of motion, NF-3 forms).

According to Douglas Taylor, a Vice President employed by Auto Injury Solutions, Inc. (AIS), AIS is defendant’s authorized agent “for receiving bills and/or correspondence at Post Office Box 26005, Daphne, AL 36526” (see defendant’s exhibits E-H in support of motion, Taylor long affs ¶ 2).^[FN4] He stated,

“Upon receipt of a bill . . . via regular mail at Post Office Box 26005, Daphne, AL 36526, or facsimile, the following process is utilized: Once the mail is delivered, the inbound mailroom team sorts all of the mail. Each envelope is opened by an electronic machine and then distributed to the batching team. The batchers take the contents of each envelope out, assign an identifying ID number to the contents of each envelope, and then the contents are given to the scanners to create an electronic image. The scanner machine affixes the receive date that the document was received onto each page of the document, as it is imaged. The hard copies of the records are filed and maintained in the file room for Thirty (30) days. The documents are imaged to Nationwide Affinity Insurance Company of America on the same day that the scanner machines affixes the receive date. The scanner machine affixes the received date to the document the same [*10]date the document is received by AIS”

(Taylor long affs ¶ 4). Defendant also submitted the business records of AIS (see defendant’s exhibits E-H in support of motion), which Taylor established as admissible business records under CPLR 4518 (see Taylor long affs ¶¶ 12-13). Based on the date stamps that appeared at the top of bills submitted to defendant, and based on the business records, defendant established that it received the bills on the following dates shown in Table 1 below:

Table 1. Date of Receipt of Bills

b. Proof of Mailing of Denials

To establish proof of timely mailing of the denials, defendant again relied upon the affidavits of McAndrews and Taylor, and the business records of AIS.

According to McAndrews, NF-10 forms are prepared by Claims Specialists, who then electronically notify AIS that the denials are ready for printing (McAndrews aff ¶¶ 17-18). The NF-10 forms use the address(es) contained on the billing documents provided by the medical provider and/or the medical provider’s attorney (id.¶ 15).

According to Taylor, it is AIS’s practice to mail all Explanations of Review (EORs) and NF-10 forms to the provider in duplicate on the same day that they are generated (see defendant’s exhibits E-H, Taylor long affs ¶ 6). The date that the EOR and NF-10 form are generated is noted in the lower left hand corner of the document (id.). Once an EOR and an NF-[*11]10 form are printed for a particular claim, the documents are then placed into a mail machine by AIS mailroom personnel (Taylor long affs ¶ 13). A notation in the history of the record verifies that the documents have been printed, which is entered automatically in the bill history when the print job is run and cannot be altered (id.). The mail machine reads a unique bar code number generated by the system to separate the documents, places the printed documents into a clear windowed envelope, and then prints first class postage on the envelope (id.). The letters to be mailed are maintained in a secure area in the AIS mailroom until they are picked up by the United States Postal Service, which picks up the mail each business day (id.). Any document processed by the AIS mailroom after 2:00 PM is mailed the next business day (Taylor long affs ¶ 14).

McAndrews’s and Taylor’s affidavits and AIS business records establish proof of mailing of the denials in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Royal Med. Supply, Inc. v Nationwide Gen. Ins. Co., 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), either on the dates listed in Table 2 below, or on the next business day:

Table 2. Dates when denials were issued

“[T]o rebut the presumption [of mailing], there must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put [*12]another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient”

(CIT Bank N.A, 36 NY3d at 557).

Contrary to plaintiff’s argument, defendant did submit an affidavit from someone with personal knowledge of the denials, because McAndrews stated that she was the Claims Specialist who issued the denials, and McAndrews also had personal knowledge of the claims procedures and mailing procedures (McAndrews aff ¶¶ 5-7, 22-23).^[FN5] Although plaintiff’s counsel contends that the affidavit of Kelly Weaver, Claims Representative, was insufficient (see Rybak affirmation ¶¶ 317-334), defendant did not submit an affidavit from Kelly Weaver. The affidavit of Linda Arnold was not offered to establish proof of mailing, but rather discussed defendant’s reasons for requesting the EUO of plaintiff (see defendant’s exhibit Y in support of motion).

As plaintiff points out, McAndrews indicated that she had reviewed electronic claim file (McAndrews aff ¶ 23), but defendant did not submit copies or printouts of the electronic claim file. “Evidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness’s testimony as to the contents of the records is inadmissible” (Bank of New York Mellon v Gordon, 171 AD3d 197, 205-06 [2d Dept 2019] [internal citations and internal quotation marks omitted]). Thus, any information that McAndrews could only have obtained from the electronic log would not be admissible. However, in this case, McAndrews had personally issued the denials, and had submitted copies of the denials themselves, which McAndrews established as defendant’s business records (see McAndrews aff ¶ 38). Plaintiff does not point to any information in McAndrews’s affidavit relevant to proof of mailing that could only have been derived from a review of the electronic claims file.

Plaintiff’s reliance upon Acupuncture Prima Care, P.C. v State Farm Mutual Auto Ins. Co. (17 Misc 3d 1135[A], 2007 NY Slip Op 52273[U] [Dist Ct, Nassau County 2007]) and Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co. (19 Misc 3d 1139[A] [Dist Ct, Nassau County 2008]) is misplaced. The same court which decided Carle Place Chiropractic and Acupuncture Prima Care, P.C. acknowledged that its prior cases were no longer good law in light of St. Vincent’s Hospital of Richmond:

“It was the opinion of this court that, when stripped of all of its excess verbiage, the insurance companies’ mailing procedures were simply to place a denial form in an envelope and to have someone subsequently mail same. Carle Place Chiropractic v. New York Central Mutual Fire Insurance Company, 19 Misc 3d 1139(A), Slip Copy, 2008 WL 2228633 (Dist.Ct. Nassau Co. 2008); Acupuncture Prima Care, P.C. v. State Farm Mutual Auto Ins. Co., 17 Misc 3d 1135 (A), 851 NYS2d 67 (Dist.Ct. Nassau Co. 2007); New York Hospital Medical Center of Queens v. Liberty Mutual Insurance Company, 16 [*13]Misc 3d 1104 (A), 841 NYS2d 827 (Dist.Ct. Nassau Co. 2007) Recently, however, the Appellate Division, Second Department has found just such a practice and procedure to adequately describe “a standard office practice[] or procedure[] designed to ensure that items were properly addressed and mailed (citations omitted).” St. Vincent’s Hospital of Richmond v. Government Employees Insurance Company, 50 AD3d 1123, 857 NYS2d 211 (2nd Dept. 2008). This court is now constrained to follow this appellate authority”

(Uniondale Chiropractic Off. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 1130[A], 2008 NY Slip Op 51687[U] [Dist Ct, Nassau County 2008]).

Contrary to plaintiff’s assertion, boxes #23 through #33 on each of the denials were not blank, and so plaintiff fails to raise a triable issue of fact as to whether the denials were facially defective. Plaintiff also asserts that defendant “fails to use the proper denial of claim form (statutory version of the NF-10 form) (Rybak affirmation ¶ 186). To the extent that plaintiff is arguing that the denial of claim forms were not issued using the most current version of the NF-10 form, defendant’s use of “outdated” denial of claim forms is not a fatal defect, “as they contain substantially the same, pertinent information as prescribed forms” (Sheepshead Bay Med. Supply, Inc. v Erie Ins. Co. of NY, 71 Misc 3d 140[A], 2021 NY Slip Op 50491[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Contrary to plaintiff’s argument, the denials adequately apprised plaintiff that the bills were denied due to plaintiff’s failure “to submit to the examination under oath scheduled for 11/21/2016, 01/23/2017, 03/21/2017 and 05/19/2017” (see defendant’s exhibits E-H, NF-10 forms). Notably, “a denial of claim form based upon the failure to appear for scheduled EUOs need not set forth the dates of the EUOs” (JYW Med., P.C. v IDS Prop. Ins. Co., 58 Misc 3d 134[A], 2017 NY Slip Op 51800[U], * 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

c. Timeliness of Denials

Because all the denials were issued more than 30 days after the bills were received, the issue presented is whether the 30-day period for defendant to pay or otherwise deny plaintiff’s claims was properly tolled for each bill. Plaintiff generally asserts that defendant failed to toll the payment period by timely requesting an EUO (Rybak affirmation ¶ 169).

If the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of receipt of the proof of claim (11 NYCRR 65—3.5[b]; see New York Univ. Hosp.-Tisch Inst. v Government Empls. Ins. Co., 117 AD3d 1012, 1014 [2d Dept 2014]).

“Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the expiration of that 30—day period, must follow up with a second request for verification (see 11 NYCRR 65—3.6 [b])”

(Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 120 AD3d 561, 563 [2d Dept 2014]).Defendant must demonstrate “that its initial and follow-up requests for verification were timely mailed” (Urban Radiology, P.C. v Clarendon Natl. Ins. Co., 31 Misc 3d 132 [A], 2011 NY Slip Op 50601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). “[A] follow-up [*14]request is not premature when sent within 10 days of the failure to appear for the initial scheduled examination” (ARCO Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

As plaintiff correctly points out, delay letters which inform plaintiff that defendant was investigating the claims and was in the process of obtaining verification, which included examinations under oath, are insufficient to toll the 30-day statutory time period (Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Because defendant requested plaintiff’s EUO prior to its receipt of the bills, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 did not apply to those pre-claim EUO requests (Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468, 469 [1st Dept 2016]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]). However, once the bills are received, defendant is required to comply with the follow-up provisions of 11 NYCRR 65.36 (b) (Mapfre Ins. Co. of NY, 140 AD3d at 470).

i. Tolling with respect to Bill #1

For bill #1, an EUO was scheduled on January 23, 2017, after receipt of bill #1 on January 20, 2017, and plaintiff failed to appear. A follow-up EUO scheduling letter was timely sent on January 25, 2017, within 10 days of the missed EUO, for another EUO to take place on March 21, 2017, where plaintiff did not appear as well. Another follow-up scheduling letter was timely sent on March 23, 2017, within 10 days of the missed EUO, for an EUO to take place on May 19, 2107. Thus, plaintiff failed to appear at three EUOs scheduled to take place after the receipt of bill #1.

“Where, as here, no other verification request is outstanding, the 30-day period for an insurer to pay or deny a claim based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance, when an insurer is permitted to conclude that there was a failure to comply with a condition precedent to coverage”

(Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

As defendant did not deny bill #1 until June 8, 2017, which was more than 30 days after plaintiff’s second failure to appear, for the EUO scheduled for March 21, 2017, defendant is not entitled to summary judgment dismissing bill#1, because defendant did not demonstrate that it is not precluded from raising its proffered defense as to bill #1 (see id.).

Therefore, summary judgment dismissing the first cause of action is denied.

iii. Tolling with respect to Bills #2-5

For bills #2-5, a pre-claim EUO scheduling letter was sent on January 25, 2017 before the defendant’s receipt of bills #2-5 on February 6, 2017. The only EUO scheduling letter in the record after receipt of bills #2-5 was a follow-up EUO scheduling letter sent on March 23, 2017, more than 30 days after the receipt of bills #2-5.

On the issue of whether pre-claim EUO requests toll the 30-day determination period to pay or otherwise deny a claim, the Appellate Term, Second Department has issued conflicting decisions on that issue.

In Doctor Goldshteyn Chiropractic, P.C., the Appellate Term rejected the argument that pre-claim EUO scheduling letters did not toll the 30-day period for an insurer to pay or deny a [*15]claim. There, the defendant mailed a scheduling letter to plaintiff’s assignor on January 4, 2011, and the defendant received the plaintiff’s bill on January 21, 2011 (Doctor Goldshteyn Chiropractic, P.C., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] at *1). The Appellate Term ruled, “defendant’s time to pay or deny these claims, which defendant received on January 21, 2011, was tolled” (id.).

In Vitality Chiropractic, P.C. v Kemper Insurance Company (14 Misc 3d 94, 96 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), the Appellate Term held, “the tolling provisions of the insurance regulations do not apply” to pre-claim verification requests. There, the defendant had scheduled IMEs of the plaintiff’s assignor by letters dated May 22 and 23, 2002, which pre-dated the receipt of the plaintiff’s claim on May 30, 2002. The Appellate Term ruled that the defendant’s denial of the claim on July 11, 2002 (which was more than 30 days after the receipt of the plaintiff’s bill) was untimely (id. at 96).

Vitality Chiropractic, P.C. and Doctor Goldshteyn Chiropractic, P.C. cannot be reconciled. The logic of Vitality Chiropractic, P.C. has straightforward appeal: the toll is based on outstanding verification requests made pursuant to 11 NYCRR 65-3.5 (see 11 NYCRR 65-3.8 [a][1], [b][3]; see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]). Given that the Appellate Term, Second Department has held that 11 NYCRR 65-3.5 does not apply to pre-claim requests at all, it logically follows that pre-claim requests cannot toll the 30-day period. Vitality Chiropractic, P.C. relied upon the Appellate Term’s prior decision in Stephen Fogel Psychological, P.C. v Progressive Casualty Insurance Company, which held that “the detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of the claim form” (7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]). Citing Stephen Fogel Psychological, P.C., lower courts therefore concluded that a denial based on a pre-claim IME was proper so long as the insurer mailed the denial within 30 days of its receipt of the claim (see e.g. Lender Med. Supply, Inc. v Hartford Ins. Co., 35 Misc 3d 1226[A], 2012 NY Slip Op 50903[U] [Civ Ct, Kings County 2012]; Prime Psychological Servs., PC v ELRAC, Inc., 25 Misc 3d 1244[A], 2009 NY Slip Op 52579[U] [Civ Ct, Richmond County 2009]; cf. All-Boro Medical Supplies, Inc. v Progressive Northeastern Ins. Co., 20 Misc 3d 554 [Civ Ct, Kings County 2008] [if defendant insisted upon conducting a pre-claim EUO before deciding whether to pay or deny the claim, it had no choice but to reschedule the EUO to a date within 30 calendar days from the date it received the claim]).

By comparison, Doctor Goldshteyn Chiropractic, P.C. did not explain why it ruled that a pre-claim EUO request tolled the defendant’s time to pay or deny the plaintiff’s claim. The court cited ARCO Medical NY, P.C. v Lancer Insurance Company (34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), which had different facts. In ARCO Medical NY, P.C., the EUO requests were sent within 15 days after the defendant received the plaintiff’s claims (id. at *2). Also, it is not clear that the plaintiff in Doctor Goldshteyn Chiropractic, P.C. had actually argued that pre-claim requests could toll the 30-day period. Rather, the plaintiff apparently argued that there was no toll because an issue of fact arose as to whether the scheduling letters were mailed, which the court rejected (Doctor Goldshteyn Chiropractic, P.C., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U]). No appellate cases have followed Doctor Goldshteyn Chiropractic, P.C.

In deciding which case this court should follow, the Appellate Division, Second Department’s decision in Sound Shore Medical Center v New York Central Mutual Fire [*16]Insurance Company (106 AD3d 157 [2d Dept 2013]) is instructive. There, the defendant-insurer received a UB-04 form from the plaintiff-hospital, which prompted the insurer to send two “requests for verification” to the hospital (id. at 159). Thereafter, the insurer received a NF-5 form from the hospital, which prompted the insurer to send another verification request, but the insurer neither denied the claim nor sent another verification request (id. at 160).

The insurer argued that the hospital’s claim was premature because the hospital did not respond either to the insurer’s initial verification request following receipt of the UB-04 form, or to the verification request following receipt of the NF-5 form. However, the hospital argued that it was entitled to summary judgment in its favor because the UB-04 form was not the functional equivalent of a NF-5 form. Because the insurer did not send a follow-up verification request after sending an initial verification request when it received the NF-5 form, the hospital argued that the insurer’s time to pay the claim had not been tolled.

The Appellate Division agreed with the hospital, and it held that the hospital’s submission of a UB-04 form was not the functional equivalent of a NF-5 form, which would have triggered the 30-day period for the insurer to pay or deny a claim, or to seek verification of the claim (id. at 162, 163). The Appellate Division also ruled, “a request for verification that precedes a no-fault insurer’s receipt of the prescribed N-F 5 claim form does not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny such a claim” (id. at 164 [emphasis supplied]).

Given all the above, this court therefore follows Vitality Chiropractic, P.C. Although Doctor Goldshteyn Chiropractic, P.C. is a more recent decision, Vitality Chiropractic, P.C. is based on the Appellate Term’s rulings in Stephen Fogel Psychological, P.C., which was affirmed by the Appellate Division, Second Department (Stephen Fogel Psychological, P.C., 7 Misc 3d 18 at 21, affd 35 AD3d 72). Additionally, Vitality Chiropractic, P.C. is consistent with the Appellate Division’s ruling in Sound Shore Medical Center, that pre-claim verification requests involving a hospital claim did not toll the 30-day period, and is consistent with the Appellate Term, First Department’s decision in Okslen Acupuncture, P.C. (39 Misc 3d 144[A], 2013 NY Slip Op 50821[U]).

Accordingly, the pre-claim EUO scheduling letter was sent on January 25, 2017 did not toll the 30-day period for defendant to pay or otherwise deny bills #2-5, which ended on March 8, 2017. Although the follow-up EUO scheduling letter was sent within 10 days of missed EUO on March 21, 2017, the follow-up EUO scheduling letter was sent on March 23, 2017, more than 30 days after the receipt of bills #2-5 on February 6, 2017. Thus, defendant failed to demonstrate any tolling with respect to bills #2-5 (see Tsatskis v State Farm Fire & Cas. Co., 36 Misc 3d 129 [A], 2012 NY Slip Op 51268 [U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).

Therefore, summary judgment dismissing the second, third, fourth, and fifth causes of action is denied.

For bills #6-8, a pre-claim EUO scheduling letter was sent on January 25, 2017, for an EUO to take place on March 21, 2017, which was within 30 days of the receipt of bills #6-8 on February 25, 2017. A follow-up EUO scheduling letter was sent on March 23, 2017, for an EUO to take place on May 19, 2017.

As discussed above, defendant’s pre-claim EUO scheduling letter sent on January 25, [*17]2017 did not toll the 30-day period to pay or otherwise deny bills #6-8.

The only verification request in the record which was sent after bills #6-8 were received was the follow-up EUO scheduling letter sent on March 23, 2017. Because this verification request was sent within 30 days of the receipt of bills #6-8, and was sent within10 days after the missed EUO on March 21, 2017, the follow-up EUO scheduling letter sent on March 23, 2017 was timely and tolled defendant’s time to pay or otherwise deny bills #6-8 through the EUO scheduled on May 19, 2017. Because defendant issued the denial of bills #6-8 on June 8, 2017, which was within 30 days of the missed EUO on May 19, 2017, defendant demonstrated that the denial of bills #6-8 was timely.

In this court’s view, Quality Health Supply Corp. v Nationwide Insurance (69 Misc 3d 133[A], 2020 NY Slip Op 51226[U]) does not dictate a different result. Although plaintiff failed to appear at the EUOs on January 23, 2017, March 21, 2017, and May 19, 2017, it is this court’s view that defendant’s time to pay or otherwise deny bills #6-8 did not run from missed EUO on March 21, 2017, because the January 23, 2017 EUO was scheduled to take place prior to the receipt of bills #6-8.

As discussed above, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply to pre-claim EUO requests (Manoo, 140 AD3d at 469; Stephen Fogel Psychological, P.C., 7 Misc 3d 18, 21, affd 35 AD3d 720). Also, as discussed above, pre-claim EUO requests do not toll the 30-day period for an insurer to pay or otherwise deny a claim. Therefore, it would not make sense to consider any pre-claim EUO in determining when the insurer’s toll has ended.

To illustrate, suppose the insurer had scheduled two EUOs of plaintiff to take place on January 23, 2017 and March 21, 2017, prior to receipt of the bills on May 19, 2017, and plaintiff had failed to appear at those pre-claim EUOs. Taking Quality Health Supply Corp. literally, the insurer’s time to pay or otherwise deny the claims would run from the second missed EUO on March 21, 2017, even though the insurer has yet to receive the bills.

Thus, this court interprets Quality Health Supply Corp. to apply to those EUOs that are scheduled to occur after the insurer’s receipt of the bills at issue. In this case, because the only EUOs that were scheduled to occur after the receipt of the bills #6-8 were the EUOs on March 21, 2017 and May 19, 2017, the 30-day period for defendant to pay or otherwise deny bills #6-8 ran from May 19, 2017.

Plaintiff fails to raise a triable issue of fact as to whether the 30-day period was tolled as to bills #6-8.

Therefore, defendant is entitled to summary judgment dismissing the sixth, seventh, and eighth causes of action, based on plaintiff’s failure to appear at EUO scheduled on March 21, 2017 and May 19, 2017.

Although defendant is entitled to judgment dismissing three out of the eight causes of action against it, this court exercises its discretion not to grant any costs to defendant with respect that judgment (see CPLR 8103). As discussed in the next section of this decision, on the issue of costs and disbursements (which was not addressed by either party), plaintiff is the prevailing party in this action. Because much of the elements of defendant’s prima facie burden for the sixth, seven, and eighth causes of action were the same as the elements of the other causes of action on which plaintiff prevailed, this court does not view the sixth, seventh and eighth causes of action being as substantially different for this court to exercise its discretion under CPLR 8103 to award costs to defendant (cf. Gibson v Tsandikos, 23 AD3d 801, 802—03 [*18][3d Dept 2005]).

II. Plaintiff’s Cross Motion (Motion Seq. No. 002)

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had 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], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Once plaintiff meets its prima facie burden, the burden shifts to defendant “to show that it has a meritorious defense and that such a defense is not precluded” (Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [internal citation omitted]).

Here, plaintiff established its prima facie entitlement for summary judgment in its favor against defendant as to bills #1-5, based on the denial of claim forms in defendant’s motion papers, which admitted receipt of plaintiff’s bills (see Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, DC, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). The denials also establish that the bills were not paid within 30 days after defendant’s receipt of those bills. As discussed above, the denials themselves were also untimely, and thus were without merit as a matter of law.

Thus, plaintiff is granted summary judgment in its favor against defendant on the first, second, third, fourth, and fifth causes of action against defendant, in the sum of $922.15. Plaintiff is also entitled to prejudgment interest on bills #1 through #5 at the rate of 2% per month from November 2, 2017, the date of the commencement of the action, because plaintiff did not commence a lawsuit within 30 days after those bills became overdue (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 205 [2d Dept 2009]).

Plaintiff is also granted summary judgment in its favor on the ninth cause of action against defendant, for attorneys’ fees (11 NYCRR § 65-4.6 [d]). The award of attorneys’ fees is calculated as 20% of the aggregate amount of bills #1 through #5 ($922.15) plus interest, subject to a maximum of $1,360 (id.; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]).

On the issue of costs and disbursements (which was not addressed by either party), plaintiff prevailed in obtaining summary judgment in its favor on five out of the eight causes of action against defendant, and plaintiff is entitled to recover exactly half of the total amount sought against defendant (exclusive of interest and attorneys’ fees). Thus, plaintiff is the prevailing party entitled to recover costs of the action from defendant, in the amount of $20.00, as a notice of trial has not been filed and the amount of the judgment is not more than $6,000 (CPLR 8101; NY City Civ Ct Act § 1901 [b] [1]). Having been awarded costs, plaintiff is also therefore entitled to recover any disbursements (CPLR 8301; NY City Civ Ct Act § 1908).

The branch of plaintiff’s motion for summary judgment in its favor on the sixth through eighth causes of action against defendant is denied. As discussed above, defendant demonstrated that it timely denied bills #6-8 based on the failure of plaintiff to appear for duly scheduled [*19]EUOs on March 21, 2017 and May 19, 2017.

The branch of plaintiff’s motion to compel defendant to comply with discovery demands is denied as academic.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED that defendant’s motion for summary judgment dismissing the complaint (Motion Seq. No. 001) is GRANTED IN PART TO THE EXTENT that the sixth, seventh, and eighth causes of action are severed and dismissed, and the remainder of defendant’s motion is otherwise denied; and it is further

ORDERED that the branch of plaintiff’s cross motion for summary judgment in its favor against defendant (Motion Seq. No. 002) is GRANTED IN PART TO THE EXTENT that summary judgment is granted in plaintiff’s favor against defendant on the first, second, third, fourth, and fifth causes of action against defendant, in the sum of $922.15, with prejudgment interest from the date of November 2, 2017; and judgment is granted in plaintiff’s favor on the ninth cause of action for attorneys’ fees in the amount of 20% of the sum of $922.15 plus the accrued prejudgment interest, as calculated by the Clerk, subject to a maximum of $1,360, with costs and disbursements to plaintiff upon submission to the Clerk upon an appropriate bill of costs, and the remainder of plaintiff’s cross motion is denied; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that the prior decision and order dated July 12, 2021 is hereby recalled and vacated.

This constitutes the amended decision and order of the court.

Dated: July 13, 2021
New York, New York
ENTER:
________________________________
RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1: Defendant did not submit a copy of the purported letter from plaintiff’s counsel dated May 18, 2017 or the purported letter from defendant’s counsel dated June 1, 2017.

Footnote 2: Plaintiff also commenced a separate action against defendant to recover assigned first-party no-fault benefits concerning eight bills for dates of service during the period of November 8, 2016 through January 5, 2017, MSB Physical Therapy P.C. a/a/o Bright, Sayquan U v Nationwide Ins., Civ Ct, Kings County, Index No. CV-739338-17/KI.

Footnote 3: In opposition to plaintiff’s cross motion, defendant also argues that, in another action involving the parties for different dates of service from September 9, 2016 through November 3, 2016, another judge of this court determined that plaintiff failed to appeared at EUOs (see defendant’s exhibit A in opposition to plaintiff’s cross motion, MSB Physical Therapy, P.C. a/a/o Sayquan U. Bright v Nationwide Ins., Civ Ct, Kings County, May 8, 2019, Walker-Diallo, J., index No. CV-729770-17/KI).

In light of this court’s determination that defendant’s submissions in its moving papers established plaintiff’s failures to appear at the EUOs on January 23, 2017, March 21, 2017, and May 19, 2017, this court need not reach defendant’s arguments of res judicata and collateral estoppel, which were essentially new arguments raised for the first time in reply in support of summary judgment dismissing this action.

This court notes that the decision in the other action, which ruled that plaintiff had failed to appear at EUOs, appears to concern only the EUOs on November 21, 2016 and January 23, 2017 (see id., at 7-8). The decision did not discuss any proof with respect to the other EUOs scheduled on March 21, 2017 or May 19, 2017.

Defendant also submitted another affidavit from Taylor that is nine paragraphs long and is identical for each bill (see defendant’s exhibits E-H [hereinafter, Taylor short aff]).

CV-35369/10

Counsel for plaintiff: Gary Tsirelman PC

Counsel for defendant: McDonnell Adels & Klestzick PLLC

In this action for the payment of no-fault benefits, defendant seeks an order pursuant to CPLR § 3126, striking the complaint for plaintiff’s failure to provide court-ordered discovery. Defendant contends that despite this Court’s two prior orders, one of which conditionally calls for preclusion, and both requiring responses to defendant’s discovery demands and that plaintiff appear for a deposition, plaintiff has failed to provide the responses requested and has failed to appear for a deposition. Plaintiff opposes the instant motion, asserting that it has fully complied with the prior orders by providing responses to defendant’s discovery demands, that defendant has waived plaintiff’s deposition by refusing to hold and/or attend the same, and that insofar as this Court’s prior order is a self-executing order of preclusion, the instant motion seeks duplicative relief.

For the reasons that follow hereinafter, defendant’s motion is granted, in part.

The instant action is for the payment of medical benefits pursuant to Article 51 of the New York State Insurance Law. It is alleged that secondary to a motor vehicle accident on April 1, 2006, plaintiff provided medical services to PABLO BELLO, who assigned his no-fault benefits under the Insurance Law and defendant’s policy to plaintiff. Plaintiff, upon presenting proof of the foregoing services, requested payment totaling $1,560. Defendant has failed to pay the foregoing amount and thus, plaintiff seeks a judgment in the amount of $1,560.

Within its answer, defendant interposes a legion of affirmative defenses, including number 21, wherein defendant alleges that it is not obligated to pay plaintiff “[b]ecause the services at issue were not conducted and/or supervised by a licensed physician/medical professional.”

Defendant’s motion seeking to strike the complaint based on plaintiff’s failure to provide complete and meaningful responses to defendant’s Demand for Interrogatories and Notice for Discovery and Inspection is granted to the extent of striking the complaint should plaintiff fail to [*2]provide the discovery previously ordered by this Court and reiterated below. As will be discussed hereinafter, plaintiff was required to produce the discovery at issue pursuant to the Court’s two prior orders. Although the last order conditionally ordered sanctions for plaintiff’s noncompliance, such sanction did not accord defendant complete relief and instead incentivized plaintiff’s noncompliance.

In support of the instant motion, defendant submits its Demand for Interrogatories and Notice for Discovery and Inspection dated June 19, 2014 ^[FN1] . To the extent relevant, question six of the Demand for Interrogatories seeks information regarding plaintiff’s owners and shareholders. Question eight seeks salary information for plaintiff’s owners and shareholders. Similarly, many requests in defendant’s Notice for Discovery and Inspection seek information related to the plaintiff’s corporate structure. For example, question two seeks lease information for plaintiff’s office space and questions seven and 12 seek tax information for Oksana Lendel (Lendel), purportedly plaintiff’s owner.

Defendant submits the Court’s (Doherty, J.) prior order dated June 14, 2017, which was issued in response to defendant’s first motion to strike plaintiff’s Notice of Trial, strike the complaint, and/or compel plaintiff to comply with defendant’s discovery demands. Within said order, the Court directed that plaintiff “provide complete and verified responses to defendant’s discovery demands within 60 days.” The Court also ordered that plaintiff was to appear for a deposition within 60 days.

Defendant also submits plaintiff’s first response to defendant’s Demand for Interrogatories and Notice for Discovery Inspection, dated July 12, 2017. A review of the responses evinces that plaintiff objected to disclosure of much of the information sought. For example, plaintiff objected to questions six and eight in the Demand for Interrogatories and questions seven and 12 of defendant’s Notice for Discovery and Inspection, which sought tax and financial records for plaintiff and Lendel.

Defendant submits a letter it sent to plaintiff dated June 29, 2017, wherein defendant scheduled Lendel’s deposition for August 14, 2017. Defendant submits a deposition transcript dated August 14, 2017, wherein defendant’s counsel states that he was present for plaintiff’s deposition but that neither anyone on plaintiff’s behalf, Lendel, nor its counsel appeared.

Defendant submits the Court’s (Semaj, J.) order dated January 7, 2020, wherein in response to defendant’s second motion to strike the complaint and compel discovery, the Court again ordered that plaintiff provide “complete and verified responses to defendant’s discovery demands within 30 days.” The Court also ordered the same with regard to plaintiff’s deposition and indicated that the failure to comply with the foregoing would result in preclusion at trial.

Defendant submits plaintiff’s second response to defendant’s Demand for Interrogatories and Notice for Discovery Inspection, dated January 24, 2020. A review of the responses evinces that they are similar to the responses previously provided in that plaintiff still objected to the disclosure of much of the information sought. For example, plaintiff still objected to question eight in the Demand for Interrogatories, seeking salary information for plaintiff’s owner and its [*3]shareholders and questions seven and 12 of defendant’s Notice for Discovery and Inspection, seeking tax and financial information for plaintiff and Lendel.

Defendant submits an affidavit by Joseph Aterno (Aterno), an Investigator employed by defendant, who states, in pertinent part, as follows. Defendant has been investigating plaintiff with regard to its treatment methods, procedures and billing practices. Defendant suspects that plaintiff is not properly licensed, thereby violating, inter alia, the Business Corporation Law. Defendant also believes that plaintiff has been rendering treatment via independent contractors. Significantly, defendant believes that Lendel, who per documents filed with the Department of Education of the State of New York, is plaintiff’s owner, does not actually own plaintiff, a corporation. Instead, defendant believes that plaintiff is actually owned and controlled by individuals not licensed to practice medicine, which is a violation of New York State Law. Aterno states that plaintiff renders medical treatment in at least eight locations and each location is affiliated with other providers who are under investigation by defendant for illegal incorporation and for ties to management companies, which are owned by unlicensed laypersons.

In addition to plaintiff, Lendel owns JOV Acupuncture PC (JOV). It is defendant’s belief that plaintiff and JOV are reincarnations of prior acupuncture clinics owned by Valentina Anikeyeva (Anikeyeva), which defendant found were controlled and operated by her husband, Andrey Anikeyeva (Andrey). Significantly, on July 28, 2009, at a deposition, Anikeyeva testified that Andrey was responsible for almost every aspect of Anikeyeva’s clinics. On May 4, 2007, at an arbitration, Andrey testified that he was the only person authorized to sell shares of Anikeyeva’s clinic’s shares. Plaintiff was formed in 2004, just as Anikeyeva closed her clinics in 2005. After Lendel incorporated JOV, he then took over Anikeyeva’s practice at the same locations where Anikeyeva’s clinics had previously been. On March 7, 2006, at a deposition, Lendel testified that JOV and plaintiff used the same treatment locations as Anikeyeva’s prior clinics, used the same acupuncturists, employees, billing department, and attorney.

“The purpose of disclosure procedures is to advance the function of a trial, to ascertain truth and to accelerate the disposition of suits” (Rios v Donovan, 21 AD2d 409, 411 [1st Dept. 1964]). Accordingly, our courts possess wide discretion to decide whether information sought is “material and necessary” to the prosecution or defense of an action (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). The terms

material and necessary, are, in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. CPLR 3101 (subd. [a]) should be construed, as the leading text on practice puts it, to permit discovery of testimony which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable

(id. at 406 [internal quotation marks omitted]). In other words, information that is relevant to an issue in a case is discoverable (Wadolowski v Cohen, 99 AD3d 793, 794 [2d Dept 2012] [“It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy.”]; Crazytown Furniture, Inc. v Brooklyn Union Gas Co., 150 AD2d 420, 420 [2d Dept 1989]). Whether information is [*4]discoverable does not hinge on whether the information sought is admissible and information is therefore discoverable merely if it “may lead to the disclosure of admissible proof” (Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance, 226 AD2d 175, 175 [1st Dept 1996]). That said, however, “unlimited disclosure is not mandated, and the court may deny, limit, condition, or regulate the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (Diaz v City of New York, 117 AD3d 777, 777 [2d Dept 2014]). Thus, the trial court has broad discretion in determining the scope and breadth of discovery, must supervise disclosure and set reasonable terms and conditions therefor (id.). Absent an improvident exercise of discretion, the trial court’s determinations should not be disturbed on appeal (id.).

Pursuant to CPLR § 3126,

[i]f any party, or a person . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them . . . an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or . . . an order striking out pleadings or parts thereof.

It is well settled that “[t]he nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court’s discretion” (Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 738 [2d Dept 2012]). Striking a party’s pleading for failure to provide discovery, however, is an extreme sanction, and warranted only when the failure to disclose is willful and contumacious (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1st Dept 1999]). Similarly, since the discovery sanction imposed must be commensurate with the disobedience it is designed to punish, the less drastic sanction of preclusion is also only appropriate when there is a clear showing that a party has willfully and contumaciously failed to comply with court-ordered discovery (Zakhido at 739; Assael v Metropolitan Transit Authority, 4 AD3d 443, 444 [2d Dept 2004]; Pryzant v City of New York, 300 AD2d 383, 383 [2d Dept 2002]). Willful and contumacious behavior can be readily inferred upon a party’s repeated non-compliance with court orders mandating discovery (Pryzant at 383). When a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez v Bernard, 267 AD2d 65, 66 [1st Dept 1999]) and repeatedly violates discovery orders, thereby delaying the discovery process, the striking of pleadings is warranted (Moog v City of New York, 30 AD3d 490, 491 [2d Dept 2006]; Helms v Gangemi, 265 AD2d 203, 204 [1st Dept 1999]). Stated differently, discovery sanctions should ensue when there is a willful failure to “disclose information that the court has found should have been disclosed” (Byam v City of New York, 68 AD3d 798, 801 [2d Dept 2009]).

Where the failure to disclose is neither willful nor contumacious, and instead constitutes a single instance of non-compliance for which a reasonable excuse is proffered, the extreme sanction of striking of a party’s pleading is unwarranted (Palmenta v Columbia University, 266 AD2d 90, 91 [1st Dept 1999]). Nor is the striking of a party’s pleading warranted merely by virtue of “imperfect compliance with discovery demands” (Commerce & Industry Insurance [*5]Company v Lib-Com, Ltd, 266 AD2d 142, 144 [1st Dept 1999]).

Under 11 NYCRR 65-3.16(a)(12), a provider need only be licensed for reimbursement. However, it is also settled that in New York, while “a fraudulently incorporated medical company is a provider of health care services within the meaning of the regulation[s]” (State Farm Mut. Auto. Ins. Co. v Robert Mallela, 4 NY3d 313, 321 [2005]), such provider is not entitled to reimbursement under the no-fault laws (id. at 320 [“We accepted the certification and now answer that such corporations are not entitled to reimbursement.”]). Indeed, merely being licensed is not dispositive because “[t]he fact remains that the reimbursement goes to the medical service corporation that exists to receive payment only because of its willfully and materially false filings with state regulators” (id. at 320). Whether a corporation is fraudulently incorporated for purposes of reimbursement turns on whether the corporation runs afoul of BCL § 1508(a), which states that

[n]o individual may be a director or officer of a professional service corporation unless he is authorized by law to practice in this state a profession which such corporation is authorized to practice and is either a shareholder of such corporation or engaged in the practice of his profession in such corporation.

Accordingly, in cases where there is an issue as to whether a medical provider is entitled to reimbursement under the no-fault law for medical services provided to an injured party on grounds that said provider was fraudulently incorporated, in violation of state and local law, disclosure of said provider’s financial records is warranted as they are material and necessary (One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008] [“The Supreme Court properly granted that branch of the plaintiffs’ cross motion which was for disclosure of certain financial documents. Contrary to the appellants’ contention, the plaintiffs were not required to make a showing of “good cause” for such disclosure, as the documents were material and necessary in the prosecution of this action”] [internal citation and quotation marks omitted].). Indeed, in cases where fraudulent incorporation is at issue, broad discovery on that issue, meaning information to determine whether plaintiff was fraudulently incorporated, is warranted (Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58, 60 [App Term 2006] [“Consequently, we find that discovery requests seeking information to determine whether the owners of a medical service corporation are improperly licensed are germane to the question of whether said corporation is eligible for reimbursement.”]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90, 93 [App Term 2006]; Val. Physical Medicine and Rehabilitation P.C. v New York Cent. Mut. Ins. Co., 193 Misc 2d 675, 676 [App Term 2002]). Such discovery extends to information related to a provider’s licensing status and corporate structure (Val. Physical Medicine and Rehabilitation P.C. at 676).

Based on the foregoing, defendant’s motion must be granted to the extent of striking the complaint should plaintiff fail to provide the information requested within defendant’s Demand for Interrogatories and Notice for Discovery Inspection, dated June 19, 2014. The same is true should plaintiff fail to appear for a deposition. Here, it is clear that given the Court’s two prior orders requiring plaintiff to produce the information within the aforementioned discovery demands, plaintiff’s failure to respond, by objecting and withholding discovery, constitutes a clear violation of the Court’s orders.

Any contention that plaintiff complied with the Court’s prior orders because it was only [*6]required to respond to the foregoing demands and it reserved its right to object, is without merit. To be sure, while the prior orders facially merely required that plaintiff respond to defendant’s discovery demands, it is clear – given the nature of the motions giving rise to the orders and the submissions therewith – that the Court meant to compel compliance with defendant’s demands such that plaintiff was precluded from interposing objections. This is more true here, where defendant, after receiving plaintiff’s first response to its demands, moved to compel discovery pursuant to CPLR § 3124.

CPLR § 3124 allows a court to compel disclosure “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question, or order.” Thus, when a party responds to discovery demands but provides inadequate responses, the proper remedy is a motion to compel pursuant to CPLR § 3124 as opposed to a motion to strike or preclude pursuant to CPLR § 3126 (Double Fortune Property Investors Corp. v Gordon, 55 AD3d 406, 407 [1st Dept 2008] [“Plaintiff having responded to defendant’s discovery requests, the proper course for defendant, rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compel further discovery pursuant to CPLR 3124.”]). Thus, by ordering plaintiff to provide further responses to defendant’s demand, it stands to reason that the Court found plaintiff’s objection inappropriate, requiring disclosure of the information to which plaintiff objected.

Notably, although plaintiff previously cross-moved for a protective order pursuant to CPLR § 3103, it did so belatedly and the fact that the prior Court orders are silent on that issue indicates that no such relief was granted. Indeed, when a party fails

to challenge the propriety of a notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122 [such failure] forecloses inquiry into the propriety of the information sought, except as to material which is privileged under CPLR 3101 or as to requests which are palpably improper

(Muller v Sorensen, 138 AD2d 683, 684 [2d Dept 1988]). A review of the case law, however, evinces that generally, in order to avoid a waiver of the right to challenge requested discovery, a party must not merely object, but must also timely move for a protective order pursuant to CPLR 3103 (Roman Catholic Church of Good Shepherd v Tempco Sys., 202 AD2d 257, 258 [1st Dept 1994]; Zurich Ins. Co. v State Farm Mut. Auto. Ins. Co., 137 AD2d 401, 401 [1st Dept 1988]; Wood v Sardi’s Rest. Corp., 47 AD2d 870, 871 [1st Dept 1975]).

Pursuant to CPLR §3103, a court, by issuing a protective order, can limit or preclude disclosure. CPLR §3103 reads, in pertinent part,

[t]he court may at anytime on its own initiative, or on motion of any party or any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure devise. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the court.

Thus, by issuing a protective order, a court can circumscribe the otherwise liberal scope of discovery, and in the exercise of its discretion, regulate the discovery process (Church & Dwight Co., Inc., v UDDO & Associates, Inc., 159 AD2d 275, 276 [1st Dept 1990]).

While CPLR § 3103 states that a motion for a protective order can be made at any time, a review of the case law indicates that with respect to discovery demands made pursuant to CPLR § 3120 or CPLR § 3121, such motion must be made within the 20 days prescribed by CPLR § [*7]3122, namely the time within which to assert any objections to duly served discovery demands (Roman Catholic Church of Good Shepherd at 258 [citing CPLR § 3122 as prescribing the time period within which to make a timely motion for a protective order]; Haller v North Riverdale Partners, 189 AD2d 615, 616 [1st Dept 1993] [same]). As noted above, the failure to timely move for a protective order within the 20 days prescribed by CPLR § 3122 constitutes a waiver and generally bars a party from obtaining a protective order (Coffey v Orbachs, Inc., 22 AD2d 317, 319-320 [1st Dept 1964]. The exception to this general rule only arises when a discovery demand is palpably improper (Haller at 616; 2 Park Avenue Associates v Cross & Brown Company, 60 AD2d 566, 566-567 [1st Dept 1977]; Wood at 870; Zambelis v Nicholas, 92 AD2d 936, 936-937 [2d Dept 1983]). When the discovery for which a protective order is sought is palpably improper, failure to timely move for a protective order will not constitute a waiver (id.).

Here, aside from the absence of any mention of a protective order – specifically, that one was granted – in the Court’s prior order, insofar as plaintiff made its prior cross-motion on or about February 8, 2016 and defendant’s demands are dated June 19, 2014, it is clear that the plaintiff sought such relief almost two years after 20 days within which to make a timely motion pursuant to CPLR § 3103 had expired. As such, plaintiff cannot object to any of the discovery demands sought.

Indeed, in order to foreclose all doubt about plaintiff’s obligation to produce all of the information requested in defendant’s discovery demand and because this Court’s two prior orders were very brief short form orders, bereft of any discussion of the law and how it applies to the facts in the record, the Court will now endeavor to detail why the discovery sought is both material and necessary, thereby requiring plaintiff to produce the same.

As noted above, when a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez at 66) and repeatedly violates discovery orders, thereby delaying the discovery process, the striking of pleadings is warranted (Moog at 491; Helms at 204). Stated differently, discovery sanctions should ensue when there is a willful failure to “disclose information that the court has found should have been disclosed” (Byam at 801). With respect to discovery and what information can be discovered, the test is whether the information sought is material and necessary in that it bears “on the controversy which will assist preparation for trial by sharpening the issues” (Allen at 406). Stated differently, if the information sought is relevant to the issues raised by a party, it ought to be discovered (Wadolowski at 794; Crazytown Furniture, Inc. at 420). In cases where fraudulent incorporation is at issue, broad discovery on that issue, meaning information to determine whether plaintiff was fraudulently incorporated, is warranted (Midborough Acupuncture P.C. at 60; Lexington Acupuncture, P.C. at 93; Val. Physical Medicine and Rehabilitation P.C. at 676). Such discovery extends to information related to a provider’s licensing status and corporate structure (Val. Physical Medicine and Rehabilitation P.C. at 676).

Here, given defendant’s affirmative defense, sounding in fraudulent incorporation and Aterno’s affidavit, which in discussing facts which call into question whether plaintiff was fraudulent incorporated in violation of applicable laws, it is clear that the discovery sought by defendant, which seeks to discover plaintiff’s corporate structure by way of corporate, tax, and financial records, is relevant – material and necessary – and thus, discoverable. To be sure, if plaintiff was fraudulently incorporated, in that it is owned by non-medical laypersons, then [*8]plaintiff would not be entitled to no-fault payments for any treatment rendered. Indeed, it is precisely because of this very finding that the Court previously granted defendant’s two applications seeking to compel the very disclosure which plaintiff has sought to shield.

To the extent that plaintiff avers that it has already been sanctioned for its noncompliance – in that the Court (Semaj, J.) already issued a self-executing order of preclusion – such argument is without merit. To be sure, a defendant bears the burden of establishing all affirmative defenses (Flatau v Fairchild Camera & Instrument Corp., 40 AD2d 990, 990 [2d Dept 1972] [“The burden of such proof was on defendant in connection with its affirmative defense that procurement of Workmen’s Compensation benefits was plaintiff’s exclusive remedy.”]; Averbuck v Becher, 134 NYS 1112, 1113 [App Term 1912] [“The burden was on defendant to prove the affirmative defense.”]). Accordingly, here, where the information necessary to establish defendant’s defense is squarely in plaintiff’s possession, the remedy of preclusion only serves to shield that information from defendant, and incentivizes plaintiff from producing the same. As such, the appropriate remedy is dismissal of the action – meaning the striking of the complaint – should plaintiff fail to provide the discovery requested.

Contrary to plaintiff’s assertion, defendant’s decision to cancel the deposition scheduled for March 23, 2020 did not constitute a waiver of the same. As urged by defendant, in the absence of the document discovery sought by defendant, plaintiff’s deposition would have been relatively fruitless. Thus, defendant is entitled to plaintiff’s deposition once plaintiff complies with the Court’s two prior orders and this one. It is hereby

ORDERED that the plaintiff provide defendant with all of the information requested in defendant’s Demand for Interrogatories and Notice for Discovery and Inspection, dated June 19, 2014, within 60 days hereof. It is further

ORDERED that plaintiff is precluded from interposing objections to any of the foregoing discovery demands and unless it does not posses the information requested, it must provide the same. It is further

ORDERED that should plaintiff fail to comply with the foregoing directives, the complaint is automatically stricken and this case is dismissed, without further leave of court. It is further

ORDERED that plaintiff appear for a deposition at a date and time mutually convenient to all parties within 90 days hereof. It is further

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

This constitutes this Court’s decision and Order.

Dated: July 9, 2021

Bronx, New York
FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1:Defendant’s submissions primarily consist of its prior two motions seeking discovery sanctions and the Court discusses only those documents contained therein, which are pertinent to the instant decision.

CV-740154-19/KI

Attorney for Plaintiff: Oleg Rybak, Esq. The Rybak Firm, PLLC1810 Voorhies Ave., 3rd Floor, Ste. 7, Brooklyn, NY 11235

Attorney for Defendant: Alisa Burns, Esq., McDonnell Adels & Klestzick, PLLC 401 Franklin Ave., 2nd Floor, Garden City, NY 11530

The court’s Decision and Order is based upon consideration of the following papers:

CPLR 2219(a) Recitation

NOTICE OF MOTION & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION 3

EXHIBITS

In this No-Fault action, Plaintiff medical provider seeks reimbursement for seven bills which cover a period of medical services provided from October 2, 2018 through January 24, 2019. Defendant acknowledges timely receipt of Plaintiff’s seven bills and now moves for summary judgment on its outstanding verification request defense. Plaintiff cross moves for summary judgment pursuant to CPLR 3212 and to dismiss Defendant’s affirmative defenses pursuant to CPLR 3211(b).

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). “The failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (id.). In order to prevail on a motion based on an outstanding additional verification request defense, the movant must establish that the plaintiff failed to comply with its additional verification requests (Compas Medical, P.C. v. New [*2]York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A] [App Term, 2d Dept., 11th & 13th Jud. Dists. 2016]; Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists. 2013]; TAM Medical Supply Corp. v. Tri State Consumers Ins. Co., 57 Misc 3d 133[A] [App Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017]).

As an initial matter, the court finds that Defendant established timely mailing of its verification requests pursuant to 11 NYCRR 65-3.5(b) for each of the seven bills at issue through the affidavit of claims specialist Timothy Dacey. However, the proper denial of the bills remains an issue of fact as Defendant failed to establish its outstanding verification request defense.

Defendant mailed post-EUO requests for additional verification to Plaintiff on December 4, 2018, January 18, 2019, February 7, 2019 and March 5, 2019 wherein it requested the following documents:

1. Burke’s federal and state tax returns for 2017 to the present, including any W-2s, 1099’s, and quarterly payroll tax returns.

2. Burke’s bank records for the period December 1, 2017 to the present, including any statements, deposits slips and cancelled checks.

3. Burke’s general ledgers for the period December 1, 2017 to the present, or such other documents as reflect its financial condition, payments made and payments received.

4. Any documents relating to or reflecting any agreement, contract, lease, deal, arrangement or understanding with any person or entity providing management, billing, collection, consulting, or administrative services to Burke during the period December 1, 2017 to the present, including Expert Billing Solutions and Streamline Services.

5. Any documents relating to or reflecting any payment to or received from any person or entity providing management, billing, collection, consulting, or administrative services to Burke during the period December 1, 2017 to the present, including Expert Billing Solutions and Streamline Services.

6. All contracts, leases, subleases and agreements concerning Burke’s operations at 941 Burke Avenue, Bronx, New York, including the written agreement with Seo Han Medical, P.C.

7. All contracts, leases, subleases and agreements concerning Burke’s operations at 764 Elmont Road, Elmont, New York, including the written agreement with Starmed Group, Inc.

8. All contracts, leases, subleases and agreements concerning Burke’s operations at 2625 Atlantic Avenue, Brooklyn, New York, including the written agreement with 2625 Group, Inc.

9. All contracts, leases, subleases and agreements concerning Burke’s operations at 152-180 Rockaway Boulevard, Jamaica, New York.

10. All contracts, leases, subleases and agreements concerning Burke’s operations at 80-12 Jamaica Avenue, Woodhaven, New York, including the written with 19413 Northern Boulevard, Inc.

11. All contracts, leases, subleases and agreements concerning Burke’s operations 424 East 147th Street, Bronx, New York, including the written agreement with 19413 Northern Boulevard, Inc.

12. All contracts, leases, subleases and agreements concerning Burke’s operations at 5037 Broadway, New York, New York, including the written agreement with 19413 Northern Boulevard, Inc.

13. All contracts, leases, subleases and agreements concerning Burke’s operations at 2510 Westchester Avenue, Bronx, New York, including the written agreement with 19413 Northern Boulevard, Inc.

14. All contracts, leases, subleases and agreements concerning Burke’s operations 90-04 Merrick Road, Merrick, New York, including any written agreement with Life Health Care Medical, P.C.

15. All contracts, leases, subleases and agreements concerning Burke’s operations at 2025 Davidson Avenue, Bronx, New York, including any written agreement with Seasoned Chiropractic P.C.

16. All contracts, leases, subleases and agreements concerning Burke’s operations at 550 Remsen Avenue, Brooklyn, New York.

17. All contracts, leases, subleases and agreements concerning Burke’s operations at 1122A Coney Island Avenue, Brooklyn, New York, including the written agreement with Marina Gadaborshev/MG Chiropractic, P.C.^[FN1]

Defendant states that it properly denied all seven bills due to Plaintiff’s failure to provide the requested documentation within 120 days or “written proof providing a reasonable justification for the failure to comply” (Defendant 1, ¶17). However, in the following paragraph, Defendant acknowledges receipt of Plaintiff’s written responses, by letters dated February 26, 2019 and April 16, 2019. Defendant attaches these letters and two of State Farms’ response letters dated March 11, 2019 and April 24, 2019 as an exhibit to its motion papers (Def. 1, exh. 4).

In Plaintiff’s four-page letter dated February 26, 2019, Plaintiff objects to Defendant’s verification request on both procedural and substantive grounds, citing case law and the No-Fault statutes in support of its arguments. The letter further demonstrates that Plaintiff provided similar written objections in previous correspondences along with specific responses to each of the items on Defendant’s list:

“State Farm has now received from Burke Physical all documents in its possession that are responsive to State Farm’s verification requests. As noted in previous correspondences with regards to State Farm’s unduly burdensome, improper and illegal request for additional documents/information listed in paragraphs 1-17 on page 4-5 of your Letter, it should be stated again for the record that the carrier has already been provided with the items in paragraphs 4, 5, 6, 7, 8, 10, 11, 12, 13 and 17 during the EUO. Meanwhile, the items in paragraphs 9, 14, 15 and 16 cannot be provided due to their verbal/oral nature. As for items in paragraphs 1, 2 and 3, they are improper to be requested by the carrier in the first place for the reasons supra.”

In cases where a medical provider sent a similar response to a verification request, courts have denied an insurer summary judgment based on an outstanding verification request defense. In Mount Sinai Hosp. v. Auto One Ins. Co., the Second Department found that the defendant insurer failed to demonstrate its prima facie entitlement to summary judgment as the record [*3]revealed that the medical provider hospital replied to the verification requests with respect to the records in its possession that it was authorized to release. However, the court did find triable issues of fact regarding the “propriety” of the defendant’s verification requests and whether the documents requested existed or were in the possession of the hospital (Mount Sinai Hosp. v. Auto One Ins. Co., 121 AD3d 869 [2d Dept. 2014]; Pro-Align Chiropractic, P.C. v. Travelers Property Casualty Ins. Co., 58 Misc 3d 857 [Dist Ct, Suffolk County 2017]).

Further, the No-Fault rules do not require a medical provider to provide each and every document requested by the insurer. New York Insurance Law Section 65-3.5(o) states that the applicant must provide “all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.” (11 NYCRR 65-3.5[o] [emphasis added]). Just as Defendant asserts its right to request all information necessary to verify a claim, Plaintiff’s right to object to such requests is codified in the no fault statute as noted in each of Defendant’s verification request letters:

“Please be advised that pursuant to 11 NYCRR 65-3.5(o), State Farm may deny the claim if Burke Physical Therapy does not provide within 120 calendar days from the date of this initial verification request all of the documents identified above under Burke Physical Therapy control or possession or written proof providing reasonable justification for the failure to comply” [emphasis added].

This principle is affirmed by the caselaw Defendant directly quotes in its opposition affirmation: “If a plaintiff deems a verification request to be defective and or unreasonable, it is incumbent on that plaintiff to convey that information to the defendant and to state the reasons thereof, thereby giving the defendant the opportunity to respond accordingly” (Canarsie Chiropractic P.C. a/a/o Day v. Adirondack Mut. Auto. Ins., 27 Misc 3d 1228[A] [Civ. Ct. Kings Cty., 2010]).

Here, Plaintiff objected to Defendant’s requests with strong and detailed arguments in its February 26, 2019 and April 16, 2019 letters. In its response letters dated March 11, 2019 and April 24, 2019, Defendant argued that its requests were proper and repeated its demand for all seventeen items listed in its original request, including those items which Plaintiff stated did not exist. In the instant motion, Defendant disregards these correspondences and either denies Plaintiff’s response altogether or characterizes Plaintiff’s response as a “generic refusal to provide any of the requested verification” (Def. 3, ¶16). Defendant also fails to properly address the arguments and issues raised in Plaintiff’s objection letters. Rather, Defendant argues that Plaintiff is barred from objecting to the propriety of the requests because of its failure to respond. This argument is without merit under the circumstances and wholly inconsistent with the documents provided in Defendant’s motion papers. Further, the objection letters raise an issue of fact regarding Plaintiff’s compliance with 11 NYCRR 65-3.5(o). Based on the foregoing, Defendant failed to meet its summary judgment burden on its outstanding verification defense.

The timely mailing of Plaintiff’s bills is established as Defendant acknowledged timely receipt of those bills. However, in its cross motion, Plaintiff failed to establish its full compliance with Defendant’s verification requests or that the requests themselves were improper. It is well settled that summary judgment is appropriate when sufficient evidence in admissible form is presented to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In support of its cross-motion, Plaintiff attaches the December 8, 2020 affidavit of John Nasrinpay, wherein he avers the following: “I personally responded and mailed on 01/18/2019, 03/07/2019, [*4]04/05/2019 and 05/07/2019 the verification response in issue in this case to the address designated by defendant on the verification requests, to the extent that such response was proper and in my possession.” The affiant provides no further details as to which documents constituted the “verification response in issue” that were “proper” and in his “possession.” Further, while the affidavit refers to the responses provided, there is no admissible documentation to that effect as Plaintiff fails to attach copies of the allegedly mailed responses to its motion. The arguments within Plaintiff’s motion objecting to the propriety of Defendant’s verification requests are equally vague and conclusory. Accordingly, Plaintiff’s request for summary judgment is denied.

Likewise, Plaintiff failed to provide the court with any legal or factual grounds to dismiss Defendant’s affirmative defenses. To prevail on a motion to dismiss an affirmative defense pursuant to CPLR 3211(b), ” the plaintiff bears the burden of demonstrating that the affirmative defense is ‘without merit as a matter of law'” (Bank of New York v. Penalver, 125 AD3d 796, 797 [2d Dept. 2015] quoting Vita v. New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept. 2006]). Plaintiff cites no legal authority and provides no substantive or even intelligible argument to support dismissal of Defendant’s affirmative defenses. The bulk of Plaintiff’s arguments against Defendant’s verification requests are conclusory, vague and repetitive. They are also intertwined with Plaintiff’s arguments against Defendant’s discovery demands, a matter which Plaintiff improperly raises in its motion. Further, as both Plaintiff’s arguments and supporting papers fail to establish, in evidentiary form, Plaintiff’s allegations of having mailed verification in compliance with Defendant’s request, this court will not hear Plaintiff’s objections regarding the substance of those requests (see Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept. 1999]; Compas Medical, P.C. v. New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A]).

Further, Defendant’s fraudulent incorporation defense is a non-precludable affirmative defense (State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]; 11 NYCRR 65-3.16[a]). An insurance carrier may, at any time, assert a non-precludable “Mallela defense” and deny payment based on the medical provider’s fraudulent incorporation (Matter of Acuhealth Acupuncture, P.C. v. Country-Wide Ins. Co., 149 AD3d 828 [2d Dept. 2017]; Lexington Acupuncture, P.C. v. General Assur. Co., 35 Misc 3d 42, 44, [App. Term, 2d, 11th & 13th Jud. Dists 2012]). “Inasmuch as the defense of ‘fraudulent incorporation’ is not subject to the preclusion rule, the defendant may raise this defense in its answer, even if not asserted in the claim denial” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 35 Misc 3d 1235[A] [Dist Ct, Suffolk County 2012]). Accordingly, Plaintiff failed to establish that dismissal of any of Defendant’s affirmative defenses, including its outstanding verification defense, is warranted under CPLR 3211 (b).

Finally, in its opposition, Plaintiff objects to the discovery demands served with Defendant’s Answer. However, as noted above, the matter is not properly before the court as Plaintiff does not move for relief based on the discovery demands. Plaintiff states, “Defendant has failed to demonstrate its entitlement to the discovery demanded in these matters. In light of that fact, Defendant cannot possibly be entitled to an Order compelling responses to improper discovery demands.” Yet, Defendant has not moved to compel discovery demands.

Based on the foregoing, Defendant’s motion for summary judgment is granted solely to the extent that it established timely mailing of its verification requests. Plaintiff’s cross-motion for summary judgment is granted to the extent that timely receipt of the bills has also been [*5]established. The remainder of Plaintiff’s cross-motion is denied. Defendant’s outstanding verification defense remains an issue of fact for trial.

This constitutes the decision and order of this court.

ENTER.

June 30, 2021

Brooklyn, NY

Hon. Consuelo Mallafre Melendez

Judge, Civil Court

Footnotes

Footnote 1:In its letter dated February 26, 2019, intra, Plaintiff claims that items 4, 5, 6, 7, 8, 10, 11, 12, 13 and 17 were provided during the EUO and items 9, 14, 15 and 16 could not be provided due to their verbal nature. Plaintiff objected to the propriety of Defendant’s request for items 1, 2 and 3.