CV-724222-19/QU

Plaintiff’s Counsel:
Gabriel & Shapiro, L.L.C.
2 Lincoln Avenue, Suite 302
Rockville Centre, NY 11570

Defendant’s Former Counsel:
Bruno, Gerbino & Soriano, LLP
445 Broad Hollow Road, Suite 420
Melville, New York, 11747

Defendant’s Current Counsel:
Callinan & Smith, LLP
3361 Park Avenue, Suite 104
Wantagh, NY 11793

Papers

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

PapersNumbered

Defendant’s Notice of Motion seeking summary judgment and Supporting1

Affirmation dated as of January 10, 2020 (“Motion”) and entered by the court on

February 3, 2020.

Plaintiff’s Notice of Cross-Motion seeking summary judgment and Affirmation2

in Support dated as of October 16, 2020 (“Cross-Motion”) and electronically filed

with the court on October 19, 2020.

Defendant’s Affirmation to Cross-Motion dated as of October 20, 2020 (“Reply”) and

electronically filed with the court on October 20, 2020.3

Background

In a summons and complaint filed on October 24, 2019, Plaintiff sued Defendant insurance company to recover a total of $2,034.58 in unpaid first party No-Fault benefits for chiropractic services provided to Plaintiff’s assignor Martinez throughout 2018, plus attorneys’ fees and statutory interest. The First cause of action was for recovery of a $92.48 bill for services provided May 8 to 9, 2018 (“First Bill“). The Third cause of action was for recovery of a $458.16 bill for services provided June 18 to July 11, 2018 (“Second Bill“). The Fifth cause of action was for recovery of a $285.94 bill for services provided April 2 to 13, 2018 (“Third Bill“). The Seventh cause of action was for recovery of a $226.96 bill for services provided July 17 to 27, 2018 (“Fourth Bill“). The Ninth cause of action was for recovery of a $138.72 bill for services provided September 6 to 14, 2018 (“Fifth Bill“). The Eleventh cause of action was for recovery of a $231.20 bill for services provided August 10 to 27, 2018 (“Sixth Bill“). The Thirteenth cause of action was for recovery of a $92.48 bill for services provided August 2 to 3, 2018 (“Seventh Bill“). The Fifteenth cause of action was for recovery of a $369.92 bill for services provided April 17 to May 2, 2018 (“Eighth Bill“). The Seventeenth cause of action was for recovery of a $138.72 bill for services provided June 11 to 15, 2018 (“Ninth Bill“). The Second, Fourth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, Sixteenth, and Eighteenth causes of action sought recovery of attorneys’ fees for each of the separate bills.

Defendant now moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO“) and failed to timely submit a claim to Defendant, or alternatively for judgment that Defendant established its prima facie case. Plaintiff cross-moved for summary judgment on its claims against Defendant. After [*2]various adjournments, the motion papers were deemed to be fully submitted and subsequently assigned to this Court during the coronavirus pandemic. An oral argument by both parties was conducted by this Court on March 17, 2021.

Discussion and Decision

Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-82). Noncompliance with an insurance policy provision requiring disclosure through an examination under oath is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Regarding notification of the EUO, the insurer must present proof of the actual mailing or its standard office practices that ensure notices “are properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016]; Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051 [2d Dept 2015]). An insurer must request verification within ten (10) days after receipt of claim (11 NYCRR § 65-3.5[a], see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604 [2d Dept 2011]).

In the instant matter, Plaintiff alleged that Defendant failed to timely pay or deny nine (9) separate bills for chiropractic services provided from April to September 2018. Defendant denied receiving Plaintiff’s Second Bill. With respect to the eight (8) remaining bills, Defendant maintained that it properly denied the claims based on those bills because Plaintiff failed to attend EUOs.

Plaintiff’s Second Bill/Plaintiff’s Third Cause of Action

Regarding Plaintiff’s Second Bill in the amount of $458.16 for chiropractic services rendered from June 18 to July 11, 2018 that Plaintiff prayed for in its third cause of action, Defendant denied receiving the bill. Defendant presented an affidavit sworn January 7, 2020, in which Overly, an employee of IDS Property Casualty Insurance Company, which works for Defendant, attested in detail to Defendant’s office practices and procedures for processing claims it received and that a records search revealed no bill for $458.16 for service performed from June [*3]18 to July 11, 2018. Here, such evidence sufficiently demonstrated that Defendant did not receive Plaintiff’s claim in the amount of $458.16 (Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] *1 [App Term 2d Dept 2013]; Vincent Med. Servs., P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 158[A], 2012 NY Slip Op 50431[U] *3 [App Term 2d Dept 2012]). In opposition, Plaintiff presented the affirmation of Moroff, a partner in Plaintiff’s law firm, who attested to the firm’s standard procedures for processing bills it received and submitting them to the insurer for payment (see Cross-Motion, Aff, of John E. Fagan Ex. B). An affidavit of mailing attached to Moroff’s affirmation indicated that the bill was mailed on July 24, 2018. Contrary to Defendant’s contention, Plaintiff properly used an affirmation from Moroff, instead of an affidavit because Moroff is not a party to this action (see Finger v Saal, 56 AD3d 606, 607 [2d Dept 2008]; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466, 466 [2d Dept 2004]; Radiology Today, P.C. v Mercury Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50148[U] *1 [App Term 2d Dept 2012]). Here, Plaintiff has raised factual issues regarding its timely submission of the Second Bill (BAB Nuclear Radiology, P.C. v Mercury Cas. Co., 50 Misc 3d 147[A]; 2016 NY Slip Op 50318[U] *1 [App Term 2d Dept 2016]; Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] *1 [App. Term 2d Dept 2016]), and such issue must be resolved at trial.

Plaintiff’s Third Bill and Eighth Bill/Plaintiff’s Fifth and Fifteenth Causes of Action

Defendant acknowledged receiving Plaintiff’s Third Bill in the amount of $285.94, on May 12, 2018, and Plaintiff’s Eighth Bill in the amount of $369.92, on June 4, 2018, which respectively constituted Plaintiff’s fifth and fifteenth causes of action. Although Defendant sent two separate explanations of benefits dated May 24, 2018 and June 6, 2018, which advised Plaintiff that payment was being delayed pending an EUO, this Court finds that these explanations of benefit are insufficient to delay payment or denial because they did not request verification (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [2d Dept 1999]; Parsons Med. Supply Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] *2 [App Term 2d Dept 2012]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *2 [App Term 2d Dept 2010]; Alur Med. Supply, Inc. v Progressive Ins. Co., 21 Misc 3d 134[A], 2008 NY Slip Op 52191[U] *1 [App Term 2d Dept 2008]). Therefore, regarding the Third Bill and Eighth Bill respectively received on May 12 and June 4, 2018, Defendant’s denial of Plaintiff’s claims based on these bills on July 27, 2018 was untimely (Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90, 92 [App Term 2d Dept 2012]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-47 [2d Dept 2009]; Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 2012 NY Slip Op 51649 *2). As a result, Defendant is not entitled to a judgment dismissing Plaintiff’s fifth and fifteenth causes of action based on the Third Bill and Eighth Bill respectively.

Plaintiff’s First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill, and Ninth Bill/

Regarding the remaining six (6) bills, i.e., Plaintiff first, fourth, fifth, six, seventh and ninth bills, which constituted Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action, Defendant presented an affidavit sworn January 10, 2020, in which Callinan, a partner in Defendant’s counsel’s office, attested to the standard mailing procedures for requests for EUOs and that counsel’s office mailed a request to Sayyed and his attorney on June 5, 2018, scheduling an EUO for June 21, 2017 (see Motion, Aff. of Michael Soriano, Ex. E). Defendant also presented a letter from Plaintiff’s counsel dated June 18, 2018, which acknowledged receipt of the June 5, 2018 scheduling letter (see Motion, Soriano Aff. Ex. K). Here, such evidence established Defendant’s timely submission of the EUO request (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2 [App Term 2d Dept 2017]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1. The transcripts of the EUO proceedings (see Motion, Soriano Aff., Ex. I and J) further constituted adequate proof of Sayyed’s nonappearance (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] *1 [App Term 2d Dept 2017]; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). In addition, Defendant established the timeliness of the second EUO request letter dated June 26, 2018, which scheduled the EUO for July 13, 2018 (see Motion, Soriano Aff. Ex. F), after Sayyed failed to attend the first EUO (11 NYCRR § 65-3.6[b]; see Active Care Med. Supply Corp. v Ameriprise Auto & Home, 58 Misc 3d 138[A], 2017 NY Slip Op 51835[U] *2 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] *2 [App Term 2d Dept 2011]). Since Defendant received the remaining bills after the request for EUO was sent to Plaintiff, the EUO request letter dated June 5, 2018 tolled Defendant’s time to pay or deny the claims (Sharp View Diagnostic Imaging, P.C. v Esurance, 57 Misc 3d 146[A], 2017 NY Slip Op 51466[U] *1 [App Term 2d Dept 2017]; Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] *1 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 2011 NY Slip Op 52382[U] *2).

Overly’s affidavit established Defendant’s standard mailing procedures designed to ensure timely mailing and the timely denial of Plaintiff’s claim within thirty (30) days after the second scheduled EUO (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Tam Med. Supply Corp. v 21st Century Ins. Co., 2017 NY Slip Op 51510[U] *1; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). Therefore, Defendant’s denial of these claims on July 27, 2018 was timely (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757, see 11 NYCRR §§ 65-3.5[a]; 65-3.5[a]). Here, Defendant’s evidence that it twice requested EUOs from Sayyed, that he failed to appear both times and that Defendant denied Plaintiff’s claim on that basis satisfied Defendant’s burden of establishing a material policy breach by Plaintiff (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d at 1007; Interboro Ins. Co. v Clennon, 113 AD3d at 597). As a result, Defendant has met its initial burden of demonstrating that Sayyed failed to attend duly scheduled EUOs and that Defendant timely denied the claims [*4]based on the First Bill, the Fourth Bill, the Fifth Bill, the Six Bill, the Seventh Bill and the Ninth Bill, which were embodied in Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action.

In opposition, Plaintiff contended that factual issues existed precluding Defendant’s motion for summary judgment. While Plaintiff contended that Defendant failed to respond to Plaintiff’s objections to the EUOs, here, such a response is not required to establish noncompliance with a scheduled EUO (see Interboro v Clennon, 113 AD3d at 597; 21st Century Pharm., Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] *1 [App Term 2d Dept 2020]; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U] *1 [App Term 2d Dept 2019]). Also, contrary to Plaintiff’s argument, Defendant was not required to provide “objective reasons for requesting [an] EUO” (21st Century Pharm., Inc. v Integon Natl. Ins. Co., 2020 NY Slip Op 51364[U] *1; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U] *1 [App Term 2d Dept 2017], see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 136[A], 2019 NY Slip Op 51158[U]*2 [App Term 2d Dept 2019]; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 2019 NY Slip Op 50171[U] *2).

Since Plaintiff failed to raise factual issues regarding Defendant’s defense, Defendant is entitled to dismissal of Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action.

Plaintiff’s Cross-Motion

Regarding the Cross-Motion, Plaintiff bore the 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]). Although Plaintiff presented no evidence supporting its Cross-Motion, Defendant’s denial of claim forms constituted prima facie evidence that Defendant received Plaintiff’s claims (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]).

With respect to Plaintiff’s fifth and fifteenth causes of action, as addressed above, Defendant failed to toll the time to pay or deny the claims based on Plaintiff’s Third Bill and Eighth Bill in the respective amount of $285.94 and $369.92. Therefore, Plaintiff is entitled to a summary judgment on its claims based on these bills in the total amount of $655.86, plus statutory interest (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d at 1046-47; Alur Med. Supply, Inc. v Progressive Ins. Co., 2008 NY Slip Op 52191[U] *1-2).

With respect to Plaintiff’s third cause of action, as noted above, factual issues remain regarding Defendant’s receipt of the Second Bill in the amount of $458.16. Such issue must be resolved at trial.

Finally, regarding the remaining six (6) bills alleged in Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action, given Defendant’s unrebutted evidence of its timely submission of EUO request letters, Sayyed’s failure to attend the two scheduled EUOs, and Defendant’s timely denial of Plaintiff’s claims on that basis, this Court dismisses these causes of action as set forth above. Plaintiff is not entitled to a payment for the First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill, and Ninth Bill.

It is noted that in its second, fourth, sixth, eighth, tenth, twelfth, fourteenth, sixteenth, and eighteenth causes of action, Plaintiff improperly pleaded claims for attorneys’ fees based on each individual bill. It is well established by case law that in No-Fault actions, attorneys’ fees are calculated based on a single insured, not on each bill submitted by a provider (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 26 Misc 3d 140[A], 2010 NY Slip Op 50264[U] *2 [App Term 2d Dept 2010]). Although the Court finds that Defendant failed to timely pay or deny the claims under the fifth and fifteenth causes of action, which entitles Plaintiff to recover attorneys’ fees (Insurance Law § 5106[a]; 11 NYCRR 65-3.9[a]; 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 278), given that Plaintiff’s third cause of action must proceed to trial, determination of attorneys’ fees is premature.

IV.Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment is granted to the extent of dismissing Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action based on Plaintiff’s First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill and Ninth Bill, but is otherwise denied, and it is further

ORDERED that Plaintiff’s Cross-Motion is granted to the extent of judgment in Plaintiff’s favor on Plaintiff’s fifth and fifteenth causes of action based on the Third Bill and Eighth Bill in the total amount of $655.86 plus statutory interest, but is otherwise denied, and it is further

ORDERED that Plaintiff’s third cause of action to recover the Second Bill in the amount of $458.16 for services provided June 18 through July 11, 2018, shall proceed to trial; and that Plaintiff’s attorneys’ fees shall be decided during or upon the conclusion of the trial.

This constitutes the DECISION and ORDER of the Court.

Dated: April 13, 2021
Queens County Civil Court
_____________________________________
Honorable Li, J.C.C.

CV-730032-18/KI

The Rybak Firm, PLLC (Oleg Rybak of counsel), New York City, for Barakat P.T., P.C., plaintiff. Law Offices of Rachel Perry, Lake Success (Edward R. Johannes of counsel), for Progressive Insurance Company, defendant.

BACKGROUND

On April 22, 2017, plaintiff’s assignor, Jerrod Bratcher, was allegedly injured in an automobile accident (see plaintiff’s exhibit 4 in support of motion, complaint ¶ 2).

On April 27, 2017, plaintiff allegedly provided the following services to Bratcher:

(see plaintiff’s exhibit 3 in support of motion, NF-3 form dated 5/16/17). According to Amro S Mohamed, P.T., the sole proprietor of plaintiff, the bill was mailed to the insurance carrier on May 16, 2017 (see plaintiff’s exhibit 2 in support of motion, Mohamed aff ¶¶ 1, 21).

On May 30, 2017, defendant allegedly denied the bill in its entirety. According to the Explanation of Benefits (EOB), the amount allowed was $103.95, based on the Workers’ Compensation fee schedule, and the amount fell within a deductible/copay (see defendant’s exhibit C in support of cross motion, NF-10 form and EOB).

The instant action

On July 13, 2018, plaintiff commenced this action seeking to recover assigned first-party no-fault benefits, with interest plus attorneys’ fees (see plaintiff’s exhibit 4 in support of motion, summons and complaint). On August 1, 2018, defendant allegedly answered the complaint (see defendant’s exhibit A in support of cross 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 generally argues that it is entitled to summary judgment dismissing the complaint because plaintiff billed in excess of the fee schedule, and defendant was reimbursed pursuant to the Workers’ Compensation fee schedule (see affirmation of defendant’s counsel ¶¶ 6-10 ^[FN1] ). Defendant contends that the allowable amount was properly applied to the assignor’s deductible (id. ¶¶ 11-12).

A. Workers’ Compensation Fee Schedule

“Insurance Law § 5108 provides, with some exceptions, that charges for services covered under Insurance Law § 5102 ‘shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents'” (Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd 27 NY3d 22 [2016], quoting Insurance Law § 5108 [a]).

To meet its prima facie burden that it fully paid the claims in accordance with the fee schedule, the defendant must submit an affidavit from a no-fault/litigation examiner or from a professional medical coder/biller (Merrick Med., P.C. v A Cent. Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Renelique v American Tr. Ins. Co., 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018][certified medical coder and biller]; Compas Med., P.C. v American Tr. Ins. Co., 56 Misc 3d 133[A], 2017 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [professional coder]).

The affidavit must show that defendant properly applied the appropriate relative value units and conversion factor assigned to the CPT code(s) for the services rendered in calculating the amount plaintiff was entitled to be reimbursed (see Renelique, 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U]; Renelique v American Tr. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op [*2]51450[U], [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [conversion factor not provided]; see also Adelaida Physical Therapy, P.C. v 21st Century Ins. Co., 58 Misc 3d 135[A], 2017 NY Slip Op 51808[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [defendant failed to demonstrate that it had used the correct conversion factor]; Liberty Chiropractic, P.C. v 21st Century Ins. Co., 53 Misc 3d 133[A], 2016 NY Slip Op 51409[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [defendant failed to demonstrate correct conversion factor was applied]). Lastly, the applicable portion of the fee schedule must be annexed to defendant’s papers (Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Here, defendant failed to meet its prima facie burden demonstrating that plaintiff billed in excess of the fee schedule. Defendant’s counsel argues that, based on an examination of plaintiff’s bill, plaintiff, a physical therapist, used a conversion factor of 8.45, which is reserved for medical doctors, instead of using the conversion factor for physical therapists (affirmation of defendant’s counsel ¶ 8). Defendant’s counsel asserts that the correct conversion factor for plaintiff is 7.70 (id. ¶ 7). However, defendant did not submit an affidavit from a no-fault/litigation examiner or from a professional medical coder/biller, stating that a physical therapist may only bill for services using the conversion factor for physical therapists, or that a physical therapist may not bill for services using the conversion factor for physical medicine, which is 8.45. Neither did defendant’s counsel cite to any ground rules from the fee schedule nor any statutory or case law authority to support his contention. Defendant therefore failed to demonstrate that it had used the correct conversion factor in calculating the reimbursement rate (Laga v GEICO Ins. Co., 58 Misc 3d 127[A], 2017 NY Slip Op 51713[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

B. Reduction of the claim due to a policy deductible

Although defendant did not demonstrate that the bill was properly reduced in accordance with the Workers’ Compensation fee schedule, defendant also argues that the policy under which no-fault benefits are being claimed had a $200 deductible. Insofar as the amount of the bill was within the deductible amount, the court must reach defendant’s alternative argument that the bill was validly denied due to the policy deductible.

To meet its prima burden that the bill was properly denied due to application of a deductible, defendant must submit affidavits and documents establishing that that the automobile insurance policy in question had a personal injury protection deductible, and that the claim at issue was timely denied due to said deductible (Healthy Way Acupuncture, P.C. v 21st Century Indem. Ins. Co., 54 Misc 3d 142[A], 2017 NY Slip Op 50204[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Innovative Chiropractic, P.C. v Progressive Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

1. Policy Deductible

Here, defendant submitted a copy of the policy declarations page, which indicates that the automobile policy that defendant issued to the named insured, Jerrod Bratcher, in effect at the time of the accident, has “Mandatory Personal Injury Protection” up to $50,000 for each person, with a $200 deductible (see defendant’s exhibit E in support of motion, Declarations Page at 2). Plaintiff did not raise any objections to this document (see affirmation of plaintiff’s counsel in further support of motion and in opposition to cross motion ¶¶ 14-52).

[*3] 2. Timely Denial

“[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 defendant’s counsel, the denial was mailed on May 30, 2017 (see affirmation of defendant’s counsel ¶ 11 [table]).

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 [2013], affd 25 NY3d 498 [2015] [internal quotation marks 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, —NY3d&mdash, 2021 NY Slip Op 01933, *3 [2021]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]; accord American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]).

“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]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 229-30 [1st Dept 2004]).

Here, to establish proof of mailing, defendant submitted an affidavit from Tamu Jordan, a Litigation Representative employed by defendant since June 1999 (see defendant’s exhibit B in support of cross motion, Jordan aff ¶ 1), and copies of the denial of claim form and a mailing report (see defendant’s exhibit C in support of motion), which Jordan established were business records (Jordan aff ¶ 6).

According to Jordan, the claims representative electronically creates the document to be mailed, which includes the mailing address, and places the document into a digital file in a centralized computer for mailing (see Jordan aff ¶ 3 [l]). Once the claims representative creates the documents to be mailed, the centralized computer system generates the document with the mailing address (id. ¶ 3 [n]). Documents are printed from the centralized computer system at mailing facilities located in either Highland Heights, Ohio or Colorado Springs, Colorado (see id. ¶ 3 [l]). Once printed, an automated mail machine inserts the document into a windowed envelope so the mailing address is visible (id. ¶ 3 [n]).

Documents mailed in the same windowed envelope are identified with the same Envelope ID, and the sixth and seventh digit of the Envelop ID indicate the facility from which the documents were mailed (id. ¶ 3 [m]). If the sixth and seventh digits are 00 or 02, the documents were mailed from Highland Heights, Ohio; if the sixth and seventh digits are 01, the documents were mailed from Colorado Springs, Colorado (id. ¶ 3 [m]).

In Highland Heights, Ohio, mail is picked up by a United States Postal Service by 1:00 p.m. and 5:00 p.m. Eastern Standard Time, Monday through Friday; in Colorado Springs, Colorado, the mail is picked up by a United States Postal Service by 1:30 p.m. and 5:30 p.m. Mountain Time, Monday through Friday (id. ¶¶ 3[o]-[p]). As the mail is placed into the custody and control the United States Postal Service, information on a Medical Payments Proof of Mailing Report is contemporaneously captured (id. ¶ 3 [a]). The information cannot be altered once it is captured in defendant’s computer system, and the data on the report is compiled the same date that the documents were mailed (id. ¶ 3 [b]).

For denials, two copies are mailed, along with two EOBs (id. ¶ 3 [g]). The information appearing in the NF-10 form and the EOB regarding the recipient, recipient address, patient, dates of service, and the amount billed is obtained from the bill(s) submitted by plaintiff (id. ¶ 3 [i]).

Here, defendant established prima facie proof of mailing of the denial on May 31, 2017, in accordance with a standard office practice or procedure (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50997[U] [App Term, 2d Dept, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). The Medical Payments Proof of Mailing Report indicates that two NF-10s and two EOBs were mailed to plaintiff on May 31, 2017, with Envelope ID CMBPI02Q00566 (see defendant’s exhibit C in support of cross motion). Based on the sixth and seventh digits of the Envelope ID on the mailing report and on Jordan’s affidavit, the denial was therefore mailed from Highland Heights, Ohio.

Plaintiff’s arguments in opposition to proof of mailing are unavailing.

“[T]o rebut the presumption, 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 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. v Schiffman, —NY3d—, 2021 NY Slip Op 01933, *3 [2021]). Contrary to plaintiff’s argument, the affidavit stated Jordan’s current title as Litigation Representative (Jordan aff ¶ 1). Additionally, Jordan established personal knowledge of the standard mailing procedures in both Ohio and Colorado, based on training that Jordan received from the facilities at both Ohio and Colorado (id. ¶ 2).

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]), which plaintiff cites, is distinguishable.

There, to establish proof of mailing, the defendant submitted two affidavits—an affidavit from a claims representative from the defendant’s office in Ballston Spa, New York and an affidavit from a claims support supervisor from the defendant’s office in Melville New York. The claims representative described the procedure for generating the denial of claim forms, which were then sent to Claims Support Services personnel for processing (id. at *2). The affidavit from the Claims Support Services Supervisor stated, in essence, that the generated denial of claim forms are retrieved from a printer, placed in an envelope, and picked up by a courier who delivers the envelope to the United States Postal Service (id. at *2-3).

The court in Acupuncture Prima Care, P.C. ruled, “while this may describe a ‘standard office practice and procedure,’ it does not describe one “used to ensure that items were properly addressed and mailed” (id. at *3 [internal citation omitted]). The court reasoned that the procedure described did not contain enough safeguards to “take into account the possibility that an item of mail might get misplaced or lost anywhere between the CSA pool and the United States Post Office” (id.) The court also faulted the affiants for not indicating the basis for their knowledge that the office practice and procedure was followed, and the affiants failed to indicate that they were familiar with the defendant’s office practices and procedures when the first of the denials were allegedly mailed (id. at *3-4). Finally, the court indicated that neither of the affiants (who were in Ballston Spa and Melville) indicated from which office the denials were allegedly mailed, when the denials bore an address from Parsippany, New Jersey (id.).

Here, unlike the affiants in Acupuncture Prima Care, P.C., Jordan established personal knowledge of the standard mailing procedures in both Ohio and Colorado, based on training that Jordan received from the facilities at both Ohio and Colorado (Jordan aff ¶ 2). It is part of Jordan’s duties to ensure compliance with those procedures (id. ¶ 5). Unlike the affidavits in Acupuncture Prima Care, P.C., which did not state the office from which the denials were issued, Jordan provided information about the Envelope ID to establish that the denial was issued from Highland Heights, Ohio. In any event, the same court which decided Acupuncture Prima Care, P.C. acknowledged that its prior cases were no longer good law in light of St. Vincent’s Hospital of Richmond v Government Employees Insurance Co. (50 AD3d 1123 [2d Dept 2008]) (see 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]).

Defendant’s copies of the NF-3 Form that plaintiff submitted to defendant are date-stamped “Received Date: 05/22/2017” (see defendant’s exhibit C in support of motion), and plaintiff does not dispute that defendant received the bills on May 22, 2017. Even assuming, for the sake of argument, that the NF-3 Form was received on May 16, 2017, the same date on the NF-3 Form, defendant’s denial on May 31, 2017 was well within 30 days of defendant’s receipt of the bill.

Therefore, defendant met its prima facie burden that the claim was properly denied because the amount allowed was within the $200 policy deductible (Healthy Way Acupuncture, P.C., 54 Misc 3d 142[A], 2017 NY Slip Op 50204[U]; Innovative Chiropractic, P.C., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U]).

Plaintiff failed to raise a triable issue of fact warranting denial of summary judgment.^[FN2]

Therefore, defendant’s motion for summary judgment dismissing the complaint is granted.

“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, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim form in defendant’s motion papers, which admitted receipt of the bill (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]).

However, plaintiff’s motion for summary judgment in its favor against defendant is denied. As discussed above, defendant timely denied the bill on the ground that the amount sought was within a $200 deductible.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED that plaintiff’s motion for summary judgment in its favor (Motion Seq. No. 001) is DENIED; and it is further

ORDERED that defendant’s cross motion for summary judgment dismissing the complaint (Motion Seq. No. 002) is GRANTED, and the complaint is dismissed, with costs and disbursements to defendant as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment in defendant’s favor accordingly.

This constitutes the decision and order of the court.

Dated: April 9, 2021

New York, New York

ENTER:

RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1:The paragraphs in defendant’s affirmation in opposition to the motion and in support of the cross motion are misnumbered. The paragraphs are numbered sequentially from 1 through 11, but the paragraphs that follow are numbered 6 through 12. The citation here refers to latter numbering.

Footnote 2:As defendant points out, plaintiff’s affirmation in further support of motion and in opposition to defendant’s cross motion was purportedly served on January 14, 2020, past the December 26, 2019 agreed-upon deadline for opposition to cross motion (see defendant’s exhibit A in reply). However, the court will consider these papers, in the absence of any demonstrable prejudice to defendant (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874, 875 [2d Dept 2011] [“Supreme Court did not abuse or improvidently exercise its discretion in considering the plaintiff’s untimely opposition papers inasmuch as the defendants were not prejudiced thereby”]).

CV- 704318-19/NY

John E. Fagan, Esq.
Restorative Chiropractic Solutions

Dianne M. Galluzzo, Esq. and Michael A. Soriano
State Farm Mutual Automobile Ins. Co.

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

Papers/Numbered

Notices of Motion and Affidavits Annexed 1

Answering Affidavits and Notice of Cross-Motion 2

Replying Affirmation and Opposition to Cross-Motion 3

Exhibits

Email Correspondence 4

Other

BACKGROUND

Plaintiff medical provider, Restorative Chiropractic Solutions, PC, brings this action against insurer defendant State Farm Mutual Automobile Ins. Co., to recover first-party no-fault benefits for medical services provided to its assignor, Lourdes Clyne (“plaintiff assignor”). Defendant makes the instant motion for summary judgment based on its denials of the claims. The bulk of the denials — three out of five of them — allege material misrepresentation in the procurement of the policy. Defendant asks that if this court does not grant summary judgment on a proper denial of material misrepresentation, that it determine its denials were at a minimum timely. Plaintiff [*2]opposes the motion and cross-moves for summary judgment.

Plaintiff assignor was involved in a motor vehicle accident on June 14, 2017, and sought medical treatment. This action seeks reimbursement for five claims corresponding to dates of service between August 1, 2017 to September 7, 2017, totaling $505.98. Defendant supplied the following chart that provides information relevant to its request for verification and denials:

Plaintiff assignor acquired the policy with a residential address in Florida. The subject motor vehicle accident occurred in New York. Defendant’s investigation of the claims prompted questions about plaintiff assignor’s residency and principal garaging location of the insured vehicle (Galluzo Aff., ¶¶ 18-19). Defendant mailed verification request letters to plaintiff seeking an examination under oath (“EUO”) of plaintiff assignor to ascertain if there was a material misrepresentation in procurement of the policy (Galluzo Aff., Exh. E).

The EUO was held on November 3, 2017 (Galluzo Aff., Exh. G). Plaintiff assignor testified that at the time of the subject accident she resided in Brooklyn, New York, and principally garaged the insured vehicle there as well (id.; Galluzo Aff., ¶¶ 20 — 22 ). In fact, plaintiff assignor stated that the subject vehicle never entered the state of Florida (Galluzo Aff., Exh. G, p 44). Defendant claims that had it known plaintiff assignor resided in New York and would principally garage the subject vehicle there, it would not have issued the policy (Galluzo Aff., ¶ 22). Defendant issued Denial of Claim Forms (“NF-10s”) on September 12, 2017, and November 27, 2017 (Galluzo Aff., Exh. D).

DISCUSSION

The movant on a motion for summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by 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]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). CPLR 3212(b) provides that a summary judgment motion must be supported by an affidavit of a person with knowledge of the facts, as well as other admissible evidence (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-85 [2005]). Once such a showing is made, “the burden shifts to the party [*3]opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing Zuckerman v City of New York, 49 NY2d at 562).

The no-fault insurance scheme is designed to provide a quick resolution of the reimbursement of claims, avoid litigation, and incentivize an insurer to seek verification of a claim, deny it, or pay it in short order (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506-07 [2015]; Matter of Med. Socy. of State v Serio, 100 NY2d 854, 860 [2003]). The procedure to verify, deny, or pay claims is codified and governed by Insurance Law § 5106(a).

A claimant has 45 days after medical services are rendered to submit claims (see 11 NYCRR 65-1.1). An insurer may request verification of the claim(s) which shall be requested within 15 business days of receipt of the prescribed verification forms (see 11 NYCRR 65-3.5 [b]). If the requested verification has not been received within 30 days of the request, the insurer shall make a second request within 10 calendar days and, at the same time, “inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested” (11 NYCRR 65-3.6 [b]). An insurer shall either pay or deny the claim in whole or in part within 30 calendar days after proof of the claim(s), including the requested verification, is received (see 11 NYCRR 65-3.8[c]).

Timeliness of Defendant’s Denials

Even though plaintiff did not submit any evidence, this court searches the record presented and determines that plaintiff’s initial burden is met. There is no dispute that plaintiff timely submitted its claims to defendant. Defendant asks this court to find that it timely denied plaintiff’s claims as a matter of law. The claims for dates of service August 1st through August 10th, were timely denied after partial payment was made. As to claims for dates of service from August 11th through September 11th, defendant mailed verification requests and conducted an EUO before denying the claims for a material misrepresentation in the procurement of the policy. Plaintiff in its cross motion asks that this court determine that all the claims are overdue and unpaid, and thus, it is deserving of summary judgment.

Defendant submits the affidavits of Cathy Shandera, Lisa Edwards, Matthew Allen, and Paul Kosowski to demonstrate that it timely mailed delay letters, explanations of review, and NF-10s to plaintiff on the dates reflected in the chart above. Defendant claims that the affidavits are sufficient to establish the standard office practices and procedures of mailing these forms. Defendant argued that the contents of its delay letters clearly advised that it was investigating the loss and would request an EUO of plaintiff assignor, which consequently tolled the insurer’s obligation to deny or pay the claims (Soriano Aff. in Reply and Opp, ¶17).

In its opposition to defendant’s motion for summary judgment, plaintiff argues that defendant’s delay letters failed to toll the time to pay or deny plaintiff’s claims (Fagan Aff in Opp, ¶¶ 4, 18). Plaintiff claims the contents of the delay letters do not specifically inform it about what verification is needed other than stating an EUO is required (Fagan Aff in Opp, ¶ 18). Plaintiff also claims that defendant failed to provide copies of the EUO requests to plaintiff (Fagan Aff. in Opp, ¶19). As a result, it argues defendant’s NF-10s were untimely and defendant is precluded from the defense of material misrepresentation in the procurement of an insurance [*4]policy (Fagan Aff. in Opp, ¶¶ 17, 22).

Defendant’s affidavits and supporting exhibits establish the dates that the subject claims were received. Also, the delay letters to plaintiff were sufficient to toll the 30-day period (Galluzo Aff., Exh. E). Defendant’s additional verification letters were mailed within 15 days after it received plaintiff’s claims (see 11 NYCRR 65-3.5 [a],[b]; Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 618 [1st Dept 2018]). The delay letter was specific enough to communicate to plaintiff that an EUO was required. No further specificity is necessary. If plaintiff required any additional explanation of the delay letter, it is plaintiff’s responsibility to communicate about it (see Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 1228(A) [Civ Ct, Kings Cty 2010]; Dilon Med. Supply Corp. v Travelers Ins. Co., 7 Misc 3d 927, 929 [Civ Ct, Kings Cty 2005]).

As to the claim that defendant failed to provide copies of the EUO request to plaintiff, this claim is controverted by the affidavit of Richard C. Aitken who submitted that his law office mailed plaintiff and the assignor an EUO scheduling letter (Galluzo Aff., p 14 [Aitken affidavit], and Exh. F). After the EUO took place on November 3, 2017, defendant denied those claims for material misrepresentation in procurement of the policy.

Defendant’s summary judgment motion established that plaintiff timely mailed the claims and that the claims were denied in a timely manner. As a result, plaintiff cannot establish that the claims are overdue.

Material Misrepresentation

As to the later three claims that were denied on the basis of material misrepresentation in the procurement of the policy, defendant refers the court to the affidavit of its underwriter, Dawn Thompson (Galluzo Aff., ¶¶4, 22; Soriano Aff. in Reply and Opp, ¶¶17, 38). Plaintiff correctly points out that no such affidavit was annexed to defendant’s submissions.

The insurer may raise the defense of fraudulent procurement of an insurance policy against health service providers seeking to recover assigned no-fault benefits, but this defense must be supported with sufficient proof that the misrepresentation was material (see Quality Medical Care, PC v Progressive Casualty Ins. Co., 56 Misc 3d 1214[A] [Civ Ct, Bronx Cty 2017]). A misrepresentation is material only if the insurer can demonstrate that it would not have issued the insurance policy if the correct information was known (see Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2d Dept 2011]; Novick v Middlesex Mut. Assur. Co., 84 AD3d 1330 [2d Dept 2011]; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855 [2d Dept 2009]). Materiality of a misrepresentation is ordinarily a question for trial (see Kiss Const. NY, Inc. v Rutgers Cas. Ins. Co., 61 AD3d 412, 413-14 [1st Dept 2009]). A court may determine the issue of materiality when evidence is presented that is clear and substantially uncontradicted (see id. citing Process Plants Corp. v Beneficial Natl. Life Ins. Co., 53 AD2d 214 [1st Dept 1976], affd 42 NY2d 928 [1977]).

After reviewing defendant’s 286-page motion, and 14-page reply and opposition to the cross motion, this court emailed the parties on February 22, 2021, for help locating the underwriter’s affidavit. Defendant’s counsel responded by email that the underwriter’s affidavit was not annexed to its papers and any references to the affidavit were “a typographical error.” Without this evidence, defendant cannot establish materiality as a matter of law and therefore, its motion for summary judgment fails.

Accordingly, it is hereby

ORDERED, defendant’s motion for summary judgment and plaintiff’s cross motion for same are granted to the extent that the issues preserved for trial are the bases for the timely denials. Plaintiff’s bills were timely submitted, as were defendant’s denials. An issue of fact exists as to whether plaintiff assignor’s misrepresentation about her residence and garaging of the vehicle was material in the procurement of the insurance policy.

This constitutes the decision and order of the court.

Dated: New York, New York
March 12, 2021
______________________
Ilana J. Marcus
Civil Court Judge

CV-734629-18

Plaintiff’s Firm
Richard Rozhik
The Rybak Firm, PLLC
1810 Voorhies Avenue, Suite 7
Brooklyn, New York 11235
Telephone: (718) 975 – 2035
Facsimile: (718) 975 – 2037
rrozhik@rybakfirm.com

Defendant’s Firm
Sabiha Farkas, Esq.
Law Office of Patrick Neglia
200 Broadhollow Road, Suite 207
Melville, New York 11747
(T) (866) 543-0404 x60405
(F) (877) 389-1097
sfarkas@mercuryinsurance.com

Upon the foregoing cited papers and after oral arguments on January 8, 2021, pursuant to [*2]CPLR §3212(g), the Decision and Order on Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment, is as follows:

PROCEDURAL POSTURE:

In this No-Fault proceeding, Mercury Casualty Insurance Company (“Defendant/Insurer”), appearing through its attorney, pursuant to CPLR §3212(a) moves for Summary Judgment and dismissal of the complaint as barred by the doctrines of collateral estoppel and res judicata. In the alternative, Defendant moves for partial Summary Judgment seeking a prima facie finding that it timely and properly denied the bills in dispute. Total Chiropractic, P.C. (“Plaintiff/Provider”), appearing through its attorney, opposes Defendant’s motion. Pursuant to CPLR §3212(a), Plaintiff cross-moves for an Order granting Summary Judgment seeking a prima facie finding that it timely and properly mailed said bills totaling $2,100.00. Plaintiff further submits that the Declaratory Judgment issued against it, was entered on default, the issues have not been litigated therefore collateral estoppel and res judicata do not apply.^[FN1] Based on the foregoing, Defendant’s motion is GRANTED and Plaintiff’s cross-motion is DENIED.

FACTUAL BACKGROUND:

Plaintiff commenced the instant No-Fault action seeking payment for medical services it rendered to Assignor Santia Louis as a result of alleged injuries related to a July 10, 2015 motor vehicle accident under claim number 2015004500398710.

Defendant commenced the Declaratory Judgment action against Plaintiff on October 6, 2016, in Supreme Court of the State of New York in Orange County, under Index Number EF 004083-2016 seeking an Order that Plaintiff not be entitled to payment for the claims submitted to Defendant. Specifically, Defendant alleged that the Assignor made material misrepresentations about her actual place of residence, which began with the procurement of the policy and continued until the date of motor vehicle accident. The Assignor’s misrepresentation reduced the amount of her policy premiums.^[FN2]

Defendant was granted its application for a Declaratory Judgment on December 5, 2016, where Orange County Supreme Court Justice Vazquez-Doles concluded “…the [Defendant] has no duty to provide any first party benefits coverage to [Assignor], and other interested parties [*3]listed as defendants,” and that Defendant “is entitled to monetary relief against [Assignor]”^[FN3] . Plaintiff failed to file an answer or a motion to renew or re-argue or appeal the Orange County Declaratory Judgment action. On December 13, 2016, Defendant served the Plaintiff the Orange County Declaratory Judgment.^[FN4]

Plaintiff commenced the instant No-Fault action on August 2, 2018 and issue was joined on September 19, 2018.^[FN5]

POSITION OF THE PARTIES:

Defendant avers its Motion for Summary Judgment should be granted in its entirety and Plaintiff’s complaint should be dismissed with prejudice. Defendant relies on the above-referenced Orange County Declaratory Judgement in support of its collateral estoppel and res judicata position since said Declaratory Judgment ordered that Mercury “has no duty to provide any first party benefits coverage to Defendant Santia Louis, and other interested parties listed as Defendants, arising out of the same July 10, 2015 motor vehicle accident as in the instant matter, given the Defendant’s misrepresentation of her place of residence was “material” as defined in Insurance Law §3105(b).” The Defendant also relies on the October 23, 2017 Decision and Order issued by Kings County Civil Court Judge Richard Montelione dismissing with prejudice a related matter bearing the caption Total Chiropractic, P.C. a/a/o Santia Louis, et. al., Index Number 073058/15, that also relied on the same Orange County Declaratory Judgment.

Plaintiff avers that said Declaratory Judgment has no preclusive effect in this case because it applies only to the Assignor and not the service provider Plaintiff in this matter. Plaintiff points to Jamaica Wellness Med., P.C. v. Mercury Cas. Co. where the Appellate Term opined the “Supreme Court order in the declaratory judgment action merely awarded a default judgment to Mercury against [Plaintiff]’s assignor, but did not declare the rights of Mercury as against [Plaintiff], the Supreme Court order cannot be considered a conclusive final determination of [Plaintiff]’s rights and, thus, can have no preclusive effect on the no-fault action at bar.”^[FN6]

Plaintiff also argues that Defendant failed to establish it timely and properly denied Plaintiff’s claim and is now precluded from raising the defense of the Assignor’s material misrepresentations to procure the underlying insurance policy. Plaintiff relies on the Appellate Division holding in Westchester Med. Ctr. v. GMAC Ins. Co. Online, Inc, which found that “although the defendants contend that they submitted evidence showing that the plaintiff’s assignor misrepresented his state of residence in connection with the issuance of the subject insurance policy, the defendants are precluded from asserting that defense, as a result of their [*4]untimely denial of the claim.”^[FN7] See also Gutierrez v. United Servs. Auto. Assn., holding that “Plaintiff correctly argues that defendant failed to demonstrate that it is not precluded from asserting its proffered defense—that the insurance policy at issue was fraudulently procured—as it failed to establish that it had timely denied plaintiff’s claim on that ground.”^[FN8] Any so-called global or blanket denial of claim form that does not specifically address Plaintiff’s claim is insufficient to avoid the preclusion of the defense.^[FN9]

ANALYSIS:

In deciding a motion for Summary Judgment, the Court’s role is solely to determine if any triable issues exist, not to determine the merits of any such issues. Sillman v. Twentierth Centry-Fox Film Corp., 3 NY.2d 395 (1957). Summary Judgment may only be granted if no genuine triable issue of fact is presented. See Gomes v. Courtesy Bus Co., 251 AD2d 625 (2nd Dep’t 1998).

The movant must establish the cause of action “sufficiently to warrant the court as a matter of law in directing judgment” in the movant’s favor and must do so by evidentiary proof in admissible form. See CPLR §3212(b); Friends of Animals, Inc. v. Associated Fur Mfrs., 46 NY2d 1065 (1979). “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 University Medical Center, 64 NY2d 851, 853 (1986).

Once such entitlement has been demonstrated by the movant, then the burden shifts to the party opposing the motion to demonstrate by admissible evidence that existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so. Zuckerman v. City of New York, 49 NY2d 557, 560 (1980). However, the Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat such a motion. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978).

Under New York state law, Default Judgments that have not been vacated, are final orders and can preclude Plaintiff’s claims for payment. See Lazides v P & G Enters., 58 AD3d 607, 871 NYS2d 357 [2nd Dept 2009], revg 2007 WL 6861118 [Sup Ct, Kings County 2007]. The courts have reasoned that to hold otherwise would destroy or impair the rights or interests established by Default Judgments. See Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307, 165 NE 456 [1929]; Great Health Care Chiropractic, P.C. v Progressive Ins. Co., 48 Misc 3d 134[A], 18 NYS3d 579, 2015 NY Slip Op 51077[U] [App Term, 2nd Dept, 2d, 11th & 13th Jud. Dists. 2015] An order specifying the court’s Declaratory Judgment is a conclusive [*5]final determination, notwithstanding that it was entered on default. See Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85, 16 NYS3d 366 [App. Term, 2nd Dept, 2d, 11th & 13th Jud. Dists., 2015].

New York State Insurance Law and Regulations 11 NYCRR §65 (“Regulations”) provide that an insurer must pay or deny a claim for No-Fault benefits within thirty days from the receipt of the claim. See Insurance Law§5106 and Regulations §65-3. Defendant must produce legally sufficient evidence that a denial form was generated and mailed within 30-days of the receipt of the claim for No-Fault benefits, or the time was tolled by issuing a proper verification request. Jul Pol Corp. v State Farm Fire and Casualty Company, 2003 NY Slip 51153 (U) (App. Term, 2nd and 11th Jud. Distrs., July 9, 2003).

The threshold issue hereis whether a default judgment that was not vacated has preclusive effects to permit the Plaintiff to collect payment for a claim submitted as first party benefits under New York’s No-Fault Insurance law. If established, this Court does not have to consider the issue of whether Plaintiff met its prima facie burden warranting payment for medical services or whether the Defendant established the bills in dispute were appropriately denied.

The Court finds that the Orange County Declaratory Judgment is a final Order that names both the Assignor and the Plaintiff and clearly delineates the rights and obligations of the parties.^[FN10] The Declaratory Judgment clearly recites the relief requested by the Defendant and decrees the Defendant “has no duty to provide any first party benefits coverage to [Assignor], and other interested parties listed as defendants.”^[FN11] The Plaintiff and Assignors are named Defendants on the Orange County Declaratory Judgment.^[FN12] In its affidavits, Plaintiff failed to produce any evidence to raise a triable issue of fact regarding whether it is covered as a Defendant in the Orange County Declaratory Judgment.

The Court is not persuaded by Plaintiff’s reliance on Jamaica Wellness Med P.C. v. Mercury Cas. Co., 2018 NY Slip Op 51128 (U), as its inapplicable to the instant matter. The default judgment granted in the Jamaica Wellness Medical case was only against the Assignor, as the Plaintiff provider had appeared in the action and served an Answer. The Appellate Term specifically notes that “upon review of the record, we find that, as the March 23, 2016 Supreme Court order in the declaratory judgment action merely awarded a default judgment action to Mercury against Jamaica’s assignor, but did not declare the rights of Mercury as against Jamaica.”^[FN13] Therefore the facts here are distinguishable given that Mercury’s Declaratory Judgment Order entered on default was specifically against both Assignor Santia Louis and Plaintiff provider Total Chiropractic P.C., who were both named in the Orange County Declaratory Judgment action and the case herein, and both failed to respond to the Orange County Declaratory Judgment action.

Finally, the Appellate Division, 2nd Department held that when an accident victim assigns his or her No-Fault claim to a medical provider, pursuant to 11 NYCRR 65-3.11, the medical provider as the “assignee ‘stands in the shoes’ of an assignor and thus acquires no greater rights than its assignor.” Long Island Radiology v. Allstate Ins. Co., 36 AD3d 763, 830 N.Y.S.2d 192 (2nd Dept. 2007). If a certain defense may be raised by the Defendants against the injured party, it is available as against the provider who accepts the assignments of no-fault benefits. As such, a finding of material misrepresentation of an assignor would be imputed onto the health care provider who takes an assignment of benefits and assumes this risk when accepting the assignment.

CONCLUSION:

Accordingly, the Orange County Declaratory Judgment declared the rights and obligations of both the Plaintiff and the Assignor which found there is no coverage based on the Assignor’s material misrepresentations about her residence. The Court need not consider whether either party established their respective prima facie cases.

The Defendant’s motion is GRANTED and the Plaintiff’s motion is DENIED as moot. The complaint is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Date: February 8, 2021
Brooklyn, New York
Hon. Patria Frias-Colón
Civil Court, Kings County

Footnotes

Footnote 1:On January 11, 2017 Defendant held an inquest against the Assignor wherein Defendant was awarded judgment in the amount of $81,021.15 for damages plus $5,745.50 in court costs and attorney fees. See the Trial Decision in Defendant’s Exhibit G.

Footnote 2:See Defendant’s Exhibit C, Summons and Verified Complaint, Index Number EF 004083-2016 and Exhibit E, Transcript of Santia Louis Examination Under Oath (EUO) dated November 4, 2015.

Footnote 3:See Defendant’s Motion Exhibit A, Judgment, Notice of Entry, and Affidavit of Service.

Footnote 4:Id.

Footnote 5:See Plaintiff’s Exhibit 2 and 3.

Footnote 6:60 Misc 3d 139(A) (App. Term, 2d Dep’t, 2018).

Footnote 7:80 AD3d 603, 604 (2d Dep’t, 2011).

Footnote 8:47 Misc 3d 152(A) (App. Term, 2d Dep’t, 2015).

Footnote 9:See St. Barnabas Hosp. v. Allstate Ins. Co., 66 AD3d 996 (2d Dep’t, 2009); A & S Med. P.C. v. Allstate Ins. Co., 15 AD3d 170 (1st Dep’t, 2005), affirming 196 Misc 2d 322 (App. Term, 1st Dep’t, 2003).

Footnote 10:See Defendant Motion Exhibit A, Judgment, Notice of Entry, and Affidavit of Service.

Footnote 11:Id.

Footnote 12:Id.

Footnote 13:Jamaica Wellness Med P.C. v. Mercury Cas. Co., 2018 NY Slip Op 51128 (U)

[*1]

Civil Court of the City of New York, Kings County, October 29, 2020

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Oleg Rybak of counsel), for plaintiff.

The Law Offices of Perry & Frankson, North New Hyde Park (Erin L. McFadzen of counsel), for defendant.

In this no-fault action seeking reimbursement for medical services, plaintiff medical provider moves, inter alia, for an order granting summary judgment pursuant to CPLR 3212. Defendant insurer also moves, inter alia, for summary judgment pursuant to CPLR 3212.

The court finds that plaintiff established its prima facie showing of entitlement to summary judgment. 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]). Here, in support of its motion, plaintiff submits the affidavit of Sean B. Diamond, D.C., the owner of Bronx Chiropractic Rehabilitation, P.C., in which he establishes that the claim forms had been timely and properly mailed to defendant (see Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U] [App Term, 2d Dept, 11th & 13th Jud Dists 2013]). Accordingly, plaintiff established its prima facie entitlement to summary judgment and the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d [*2]320 [1986]).

The court finds that defendant failed to raise a triable issue of fact in opposition to plaintiff’s motion and to establish their own entitlement to summary judgment pursuant to CPLR 3212. Defendant asserts that they properly denied plaintiff’s claims for failure to provide a requested verification within 120 days of the initial request and that plaintiff’s case must be dismissed as premature. However, defendant fails to submit adequate evidence in support of their requests for verification. Defendant relies on attached copies of the verification request letters as well as the affidavit of their litigation representative, Joseph M. Andre, who establishes mailing of the letters. In the verification request letters at issue, defendant states that they requested that the assignor provide a recorded statement via a scheduled phone call. Defendant claims that the assignor failed to respond to the calls they scheduled in all three verification request letters.^[FN*] Accordingly, defendant asserts that dismissal {**70 Misc 3d at 363}of plaintiff’s case is appropriate based on outstanding verification.

However, based on the language contained in the verification request letters, defendant was required to call the assignor on a certain date, at a certain time, to a certain telephone number in order to obtain the requested information: “In order to determine your eligibility for benefits, all benefits remain delayed pending your cooperation with our request for a recorded statement. You will be contacted at the number below to provide a statement on the date and time indicated.” (Emphasis added.)

Although defendant established that the verification requests were mailed, they failed to establish that a representative placed the phone call which they claim the assignor failed to answer on each of the scheduled dates. As a result, the verification requests are incomplete.

In a similar Appellate Term case, Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., the defendant insurer also denied the plaintiff’s claim based on outstanding verification (13 Misc 3d 141[A], 2006 NY Slip Op 52266[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). The Appellate Term found that the defendant insurer failed to submit adequate proof to support their claim of mailing the verification requests. As a result of this evidentiary deficiency, the Appellate Term found that the defendant’s time to pay or deny the claim was not tolled and their denials were untimely.

Although there is no case that addresses the specific issue herein, the reasoning in Dilon is applicable to the issue of inadequate proof of verification. Here, while defendant establishes the mailing of the verification requests, they do not establish the substantive portion of the verification inquiry. Thus, the incomplete verification requests did not toll defendant’s time to pay or deny the claim and defendant is “precluded from raising most defenses as a result of its untimely denial” (Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 13 Misc 3d 141[A], 2006 NY Slip Op 52266[U], *2). Accordingly, defendant both fails to meet their own prima facie burden for summary judgment and raise an issue of fact in opposition to plaintiff’s motion based on its outstanding verification argument (see Zuckerman v City of New York, 49 NY2d 557 [1980];{**70 Misc 3d at 364} St. Anna Wellcare, P.C. v GEICO Ins. Co., 56 Misc 3d 133[A], 2017 NY Slip Op 50948[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Based on the foregoing, plaintiff’s motion for summary judgment pursuant to CPLR 3212 is granted. Defendant’s motion for summary judgment pursuant to CPLR 3212 to dismiss plaintiff’s case as premature is denied.

Footnotes

Footnote *:In the first verification letter, the recorded phone statement was scheduled to take place on May 16, 2016, at 10:00 a.m. On May 17, 2016, defendant mailed a second verification request letter scheduling a recorded phone statement to take place on May 30, 2016, at 10:00 a.m. On May 31, 2016, defendant mailed a third verification request scheduling a recorded phone statement to take place at 10:00 a.m. on June 10, 2016.

[*1]

Civil Court of the City of New York, Kings County, October 20, 2020

APPEARANCES OF COUNSEL

Erin O’Neil and Melanie J. Rosen, Garden City, for defendant.

The Rybak Firm, PLLC, Brooklyn (Oleg Rybak of counsel), for plaintiff.

In this action by plaintiff medical provider to recover no-fault benefits, defendant insurer moves for dismissal of the complaint on grounds that the plaintiff’s claims are barred by a declaratory judgment in Supreme Court. Plaintiff opposes the motion and cross-moves for summary judgment.

Relying on the recently decided Quality Health Supply Corp. v Hertz Co. (68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [2020]), plaintiff argues that the Supreme Court declaratory judgment issued in Progressive Max Ins. Co. v Mykia Black (Sup Ct, Nassau County, Sept. 28, 2017, Parga, J., index No. 003809/16) does not apply to or otherwise bar this action under the doctrine of res judicata or collateral estoppel because the defendant herein is Progressive Insurance Company not Progressive Max Insurance Company. In the Supreme Court action, which named Essie Bryant (assignor herein), Mykia E. Black (the insured) and Bronx Chiropractic Rehabilitation, P.C. among the defendants, the Honorable Anthony Parga declared the policy null and void as to the December 2, 2015 incident.

In Quality Health Supply Corp. v Hertz Co., a declaratory judgment action brought on by Hertz Vehicles, LLC against Quality Health and its assignor was granted on default. Thereafter, Hertz Co. sought to amend the caption of the civil court case to name Hertz Vehicles, LLC as the proper party and to dismiss the action against it pursuant to the declaratory judgment. The Appellate Term found that the defendant had failed to submit evidence that plaintiff had sued the wrong party and therefor it couldn’t show that there had been a final adjudication of the civil court claims on the merits by the declaratory judgment.

In this case, however, defendant proffered the affidavit of Christina Plante, a Senior Medical Claims Representative{**69 Misc 3d at 1073} employed by Progressive Casualty Insurance Company, who averred that the declaration page lists Progressive Max Insurance Company as the insuring entity for Mykia E. Black under her policy number 907911812. Defendant also attached to its motion papers a certified copy of the declaration page which lists Progressive Max as the insurance company underwriting the policy at issue. Thus, the court finds that the proper insurer has always been Progressive Max Insurance Company, not Progressive Insurance Company as plaintiff erroneously named herein. Accordingly, plaintiff’s action is barred by the doctrine of res judicata. The declaratory judgment issued by the Honorable Anthony Parga collaterally estops this civil court action.

While it would have been better practice for defendant herein to have also moved to amend the caption to name Progressive Max the proper party, the failure to do so does not affect a substantial right of the plaintiff and it is sua sponte granted herein. It is noted that the declaration page of the policy at issue gave notice to the plaintiff that Progressive Max was the entity insuring the driver Mykia E. Black. Plaintiff’s mistake in not naming Progressive Max should not be to the detriment of defendant.

The caption shall be amended as follows:

Accordingly, the caption is amended to name Progressive Max Insurance Company as the correct defendant and the action is dismissed with prejudice pursuant to the declaratory judgment issued by the Honorable Anthony Parga as noted herein.

[*1]

Civil Court of the City of New York, Queens County, October 8, 2020

APPEARANCES OF COUNSEL

Rubin, Fiorella, Friedman & Mercante LLP, New York City, for defendant.

Sanders Barshay Grossman, LLC, Garden City, for plaintiff.

I. Papers

Papers filed with the court on June 18, 2019, were read on this motion by defendant for a summary judgment seeking to dismiss plaintiff’s complaint pursuant to CPLR 3212. The motion was submitted on March 13, 2020, without opposition, after respective adjournments on July 18, 2019, October 2, 2019, and January 27, 2020, by various courts. This matter is now before this court during the coronavirus pandemic before its trial date of February 5, 2021.

II. Background

Assignor allegedly had a car accident on October 11, 2017. Assignor “was the driver in the insured vehicle . . . [which] was insured by . . . [defendant] in the name of [assignor]” (affirmation at 1-2). Two passengers, Akeil C. and Jayquone B., were in the insured vehicle when the alleged incident occurred. “Passenger in . . . [the insured vehicle] did RMA with complaint of leg pain” (police rep at 1, 3) while defendant stated that the police report “indicated no injuries at the scene” (affirmation {**69 Misc 3d at 941}at 2). Assignor underwent treatment at plaintiff’s facility between October 23, 2017, and December 6, 2017, incurring a medical bill in the total amount of $845.78 (see exhibit A, plaintiff’s summons and complaint). Plaintiff [*3]submitted its medical bill to defendant. Defendant denied such claim based on a “finding that the loss was not an accident and [assignor] made false statements with the intent to conceal or misrepresent material facts or circumstances related to [the] loss in furtherance of an insurance fraud scheme.” In addition, defendant denied all claims related to the alleged collision based on fraud. (See claim specialist aff.)

III. Discussion

In the motion, defendant prayed for a summary judgment seeking to dismiss plaintiff’s complaint on the following grounds: (1) defendant’s “founded belief that the alleged injury [did] not arise out of an insured incident” (affirmation at 3); and (2) assignor’s failure to subscribe the transcript.

CPLR 3212 states that “[a] motion [for summary judgment] shall be granted if . . . the cause of action . . . [is] established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” and that “there is no defense to the cause of action” (CPLR 3212 [b]; Rodriguez v City of New York, 31 NY3d 312 [2018]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

1. Defendant’s “founded belief that the alleged injury [did] not arise out of an insured incident”

In support of its “founded belief that the alleged injury [did] not arise out of an insured incident” (affirmation at 3), defendant argued that: (1) “the insured vehicle [drove] directly into [the adverse] vehicle” pursuant to the adverse driver; (2) “the insured vehicle was destroyed prior to the collision” pursuant to the adverse driver; (3) defendant “had difficulty obtaining statements from the insured or occupants of the insured vehicle after the collision”; (4) “[o]ne of the occupants was involved in a prior loss less than one month before the collision”; and (5) “[t]he EUO testimony of [assignor] consist[ed] of incomplete and inconsistent testimony” due to the fact that assignor’s “answer to questions were so vague or she would respond ‘I [didn’t] know’ or ‘I [didn’t] remember’ to essentially every question asked.” As a result, defendant suspected that the collision was “staged,” and, therefore, was not a true accident covered by the insurance, citing V.S. Med. Servs., P.C. v Allstate Ins. Co. (11 Misc 3d 334 [2006]) (affirmation at 2-5).{**69 Misc 3d at 942}

The court in V.S. Med. Servs., P.C. stated that

“[i]n the no-fault context, the plaintiff need not prove coverage as part of its prima facie case . . .

“[A] defendant asserting a lack of coverage defense must set forth admissible evidence of ‘the fact or [a] founded belief that the alleged injury [did] not arise out of an insured incident’ ” (V.S. Med. Servs., P.C. v Allstate Ins. Co. at 340).

After trial, the V.S. Med. Servs., P.C. court dismissed plaintiff’s complaint based on the following factors:

“profile and claim history of the car (older model, accident shortly after insurance taking effect and policy cancelled shortly thereafter for nonpayment on two separate occasions), several passengers in the car, no emergency room treatment for any passenger, several material discrepancies in the car’s occupants’ stories as to the number and gender of people in the car, where they were going, and the driver denying knowing the owner of the car[,] . . . [adverse vehicle] suffered only a ‘small scratch’ in the alleged accident . . . which allegedly resulted in over $15,000 in treatment for these assignors alone” (V.S. Med. Servs., P.C. v Allstate Ins. Co. at [*4]343, 344).

Such court reasoned that if an alleged collision was not a true accident, in another word, was an intentional act, “then it [was] outside the scope of the no-fault policy regardless of why or how it occurred or who was behind it” (V.S. Med. Servs., P.C. v Allstate Ins. Co. at 341).

In our instant case, plaintiff submitted its medical bills to defendant, therefore establishing its prima facie case of coverage. It is then defendant’s burden to “rebut the presumption of coverage” by establishing “that the alleged collision was intentionally caused” (V.S. Med. Servs., P.C. v Allstate Ins. Co. at 342-344). Here, defendant formed its belief that the alleged collision at issue was not a covered incident based on the grounds that assignor’s insured vehicle, which was previously damaged, intentionally hit the other vehicle, one of the passengers in the insured vehicle claimed another loss shortly before the alleged collision, assignor’s answers to the examination under oath (EUO) were vague, and it was difficult for defendant to obtain statements from the passengers.

As to the matter at hand, the passengers of the insured vehicle are not parties to the instant proceeding; this court{**69 Misc 3d at 943} therefore will not address issues related to the passengers and is left to weigh the evidence presented by defendant, based on the pretrial motion papers, to determine if assignor’s car intentionally hit the other car and if assignor’s EUO answers were so vague that a dismissal of plaintiff’s complaint is warranted.

[1] Unlike the claim history of the car in the V.S. Med. Servs., P.C. case, defendant here failed to put forward evidence to demonstrate that assignor took her insurance policy with defendant shortly before the alleged incident and cancelled such insurance policy shortly after. In addition, it appears that there is a factual issue to be resolved in terms of how the alleged incident happened. Pursuant to the adverse driver, his vehicle “stopped . . . [at a stop sign, but] had inched further W/B to get a [b]etter vantage point of traffic” when assignor’s vehicle allegedly intentionally hit his vehicle; while pursuant to assignor, adverse driver’s vehicle “suddenly collide[d] with . . . [her vehicle] while heading W/B” (see police rep). Furthermore, this court finds that assignor has answered most of the questions during the EUO as indicated by the transcript.

It is well established that a movant for a summary judgment must present prima facie admissible evidence proving that there is no material issue of fact and that the controversy can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v City of New York at 561).

Here, this court is not persuaded, based on the evidence presented by defendant’s motion paper, that the alleged incident was staged and, therefore, not an insured incident. Although defendant argued that it did not believe that assignor’s alleged injury arose out of an insured incident, it failed to present evidence or argument that assignor had an existing condition prior to the alleged incident and that her treatment received at plaintiff’s facility did not arise out of the alleged incident at issue. In summary, defendant failed to rebut the presumption of no-fault medical coverage. Defendant’s motion seeking to dismiss plaintiff’s complaint based on its belief that the alleged injury did not arise out of an insured incident is denied without prejudice.{**69 Misc 3d at 944}

2. Assignor’s Failure to Subscribe the Transcript

Defendant also moved to dismiss plaintiff’s complaint because assignor failed to [*5]subscribe the transcript. Defendant argued that

“[p]ursuant to the No-Fault regulations, ‘[u]pon request by the [insurance company], the eligible injured person or that person’s assignee or representative [should]: (b) as may reasonably be required submit to examinations under oath by any person named by the [insurance company] and subscribe the same[;]’ [and that] [d]ue to the failure of . . . [assignor] to return a signed and executed copy of the [t]ranscript, the [assignor] [had] failed to comply with a condition precedent to coverage” (affirmation at 7, citing DTG Operations, Inc. v Park Radiology, P.C., 2011 NY Slip Op 32467[U] [2011], Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997], Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011], and Skeaney v Silver Beach Realty Corp., 10 AD2d 537 [1st Dept 1960]).

Defendant further argued that because assignor failed to return the signed transcript within 120 calendar days of request for subscription, defendant “reserve[d] the right to deny coverage for failure to provide an executed transcript within the allotted time period” (see demand for subscription).

In the instant case, assignor submitted herself to an EUO and, therefore, has satisfied one of the requirements of 11 NYCRR 65-1.1 which requires a no-fault insurance benefit claimant “submit to [an] examination[ ] under oath . . . and subscribe the same” (11 NYCRR 65-1.1). However, assignor failed to sign the transcript of the EUO. The issue before this court is how late is too late for assignor to sign the transcript, or alternatively until when can assignor sign the transcript in order to ensure that the complaint is not dismissed.

Regulation 68-C 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” (11 NYCRR 65-3.8 [b] [3]), and that “[i]n the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day the examination was performed” (11 NYCRR 65-3.8 [a] [1]). Here, {**69 Misc 3d at 945}Regulation 68-C provides a statutory ground for an insurer’s denial of a no-fault benefit due to an insured’s failure to submit to an EUO or provide the insurer with “verification under the [insured]’s control or possession” within 120 calendar days of first request (11 NYCRR 65-3.5 [o]; 65-3.8 [b] [3]); however, it is silent as to if an insurer can issue a denial if an insured fails to return a signed transcript of an examination under oath within 120 calendar days of initial demand. Although defendant reserved the right to deny plaintiff’s claim if a signed transcript was not received within 120 calendar days of demand for subscription, it failed to present this court with a copy of an insurance contract outlining such term.

[2] It is undoubted that subscribing the transcript is a condition precedent for assignor/plaintiff to receive no-fault benefits pursuant to 11 NYCRR 65-1.1; however, defendant failed to provide this court with evidence that the insurance contract between assignor and defendant had a provision mandating assignor to subscribe the transcript within 120 calendar days of first demand. In Skeaney v Silver Beach Realty Corp., cited by defendant, the insured did not return the executed transcript of examination under oath until the opposing party “obtained an order directing the [insured] to execute and return the transcript” (Skeaney v Silver Beach Realty Corp. at 537). Here, this court finds that there is no basis to dismiss plaintiff’s complaint, pretrial, because assignor failed to sign the transcript within 120 calendar days of demand. In another word, defendant’s motion seeking to dismiss plaintiff’s complaint, pretrial, due to assignor’s failure to subscribe the transcript, is premature when defendant has not exhausted remedies provided by law and absent evidence of insurance contract terms requiring [*6]the same. Defendant’s motion for summary judgment seeking to dismiss plaintiff’s complaint because assignor failed to sign the transcript is denied without prejudice.

IV. Order

Accordingly, it is ordered that defendant’s motion for summary judgment seeking to dismiss plaintiff’s complaint is denied in its entirety, without opposition and without prejudice.

CV-56687-15/KI

Oleg Rybak, Esq.
The Rybak Firm, PLLC
1810 Voorhies Avenue, Suite 7
Brooklyn, New York 11235
(718) 975-2035
Counsel for Plaintiff

Christin Brown, Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP
1133 Westchester Avenue
White Plains, New York 10604
(914) 323-7000
Counsel for Defendant

RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION

NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2

AFFIRMATION IN SUPPORT & EXH. ANNEXED 3-4

AFFIRMATION IN OPPOSITION & EXH. ANNEXED 5-6

Plaintiff moves This Honorable Court by Notice of Motion pursuant to CPLR 2221 (d) for an Order granting Plaintiff Leave to Reargue and pursuant to CPLR 2221 (e) Leave to Renew Decision and Order of This Court dated September 10, 2019, Denying Plaintiff’s Motion for Summary Judgment and Granting Defendant’s Motion to Dismiss for removal to Court of Claims [*2]for lack of jurisdiction pursuant to the New York State Constitution, Article VI, Section 9, Court of Claims Act Section 9. For the reasons set forth below, Plaintiff’s Motion for Leave to Reargue and Renew is hereby DENIED.

PROCEDURAL AND FACTUAL HISTORY

Action commenced by Plaintiff for Defendant’s failure to pay first party No-Fault benefits as a result of medical services rendered to Eligible Injured Party (hereinafter EIP) as result of motor vehicle accident (hereinafter MVA) on December 18, 2009. Summons and Complaint served September 15, 2015 and filed on September 16, 2015. Issue joined by Defendant’s service of Verified Answer on January 25, 2016. Subsequently, Plaintiff filed for Motion for Summary Judgment on September 28, 2018 pursuant to CPLR 3211 (c) or CPLR 3212 (a) and dismissal of Defendant’s affirmative defenses pursuant to CPLR 3211 (b), premised on grounds that it timely mailed its claims to Defendant, Defendant received these claims, but failed to timely pay nor timely deny the claims within the statutory thirty (30) day period. In opposition thereto, Defendant cross-moved for summary judgment pursuant to CPLR 3211 (a) (2), CPLR 3211 (a) (7), CPLR (a) (8), and CPLR 3212 on June 10, 2019, arguing that this Court lacks jurisdiction to entertain this case as NYSIF is a state agency and that any action brought against it must be brought in the New York State Court of Claims.

Underlying Oral Argument Held September 10, 2019

At initial oral argument of the dueling underlying motions, Plaintiff’s main arguments were based upon first party No-fault Benefits Law. Whereas, in sum and substance, Defendant argued quite vehemently that time and time again it has explained to Plaintiff’s Counsel that it was not the proper party; It is not a No-Fault insurer; it does not administer first party No-Fault claims; it is not responsible for the payment of No-Fault benefits; rather, it is a New York State statutorily created Worker’s Compensation Carrier; Kings County Civil Court has no Jurisdiction over this New York State statutorily created agency; Jurisdiction, except for worker’s compensation matters, lies solely with New York State Court of Claims pursuant to New York State Constitution Article VI, Section 9, Court of Claims Act §9. More so persuasive, Defendant argued that this very same lack of jurisdiction issue had already been decided in a similarly situated action brought by Plaintiff’s Counsel likewise for motion for summary judgment filed on May 1, 2017, which was presided over by Retired Kings County Civil Court Judge, Honorable Michael Gerstein by Decision/Order dated December 10, 2018. Judge Gerstein held that Kings County Civil Court lacked Jurisdiction over this New York State Actor Defendant in first party No-Fault benefit actions and granted Plaintiff leave to transfer this action to the Court of Claims (Ultimate Care Chiropractic, P.C. a/a/o Garris, Kenneth v NYSIF, Index No. 716668/2016 [hereinafter Ultimate Care]). Thereafter, Plaintiff’s Counsel filed Notice of Removal in the New York Court of Claims for Ultimate Care stating, “The Claimant brings this present action in the Court of Claims, State of New York as the court of competent jurisdiction over the Defendant New York State Insurance Fund” (affirmation in opposition, Exhibit I). However, Court of Claims rejected Ultimate Care because it does not accept transfer of cases and the matter was time-barred since a claim for breach of contract must be brought within six (6) months of the accrual date (New York State Constitution Article VI, Section 9, Court of Claims Act §10). Defendant expressed utter frustration that Plaintiff Counsel nevertheless continued to send No-Fault medical bills for payment and when no payment or denial was received (parenthetically, which should have been the anticipated outcome) commenced similarly situated first party No-Fault benefit actions against this very same New York State Actor Defendant since December [*3]10, 2018 Decision/Order by Judge Gerstein:

1. Allay Medical Services, P.C. a/a/o Duplessis, Mario v NYSIF — Index 706448/19

2. Jules Francois Parisien, M.D. a/a/o Cooper, Edweena v NYSIF — Index 706446/19

3. Jules Francois Parisien, M.D. a/a/o Guirand, Deromme v NYSIF — Index 706444/19

4. Jules Francois Parisien, M.D. a/a/o Magloire, Bueno v NYSIF — Index 706445/19

5. Jules Francois Parisien, M.D. a/a/o Magloire, Bueno v NYSIF — Index 706455/19

6. Jules Francois Parisien, M.D. a/a/o Cooper, Edweena v NYSIF — Index 706449/19

7. Quality Health Supply Corp., a/a/o Cooper Edweena v NYSIF — Index 706450/19

8. Ksenia Pavlova D.O. a/a/o Cooper, Edweena v NYSIF — Index 706452/19

9. Pierre J. Renelique, M.D. a/a/o Magloire, Bueno v NYSIF — Index 706457/19

10. Island Life Chiropractic Pain Care PLLC a/a/o Magloire, Bueno v NYSIF 706458/19

11. Excel Products Inc., a/a/o Gabriel, Marc v NYSIF — Index 706440/19

12. Charles Deng Acupuncture, P.C. a/a/o Cooper, Edweena v NYSIF — Index 706454/19

13. Maiga Products Corp., a/a/o Magloire, Bueno v NYSIF — Index 706459/19

14. Solution Bridge, Inc., a/a/o Goulbourne, Alfred v NYSIF — Index 706441/19

15. Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. a/a/o Magloire, Bueno v NYSIF Index — 706460/19

16. Allay Medical Services, P.C. a/a/o Guirand, Deromme v NYSIF Index — 706442/19

17. Allay Medical Services, P.C. a/a/o Guirand, Deromme v NYSIF Index — 706443/19

18. Allay Medical Services, P.C. a/a/o Petit-Saint, Marceau v NYSIF Index — 706445/19

19. Darren T. Mollo D.C., a/a/o Cooper, Edweena v NYSIF Index — 706453/19

20. Allay Medical Services, P.C. a/a/o Duplessis, Mario v NYSIF — Index 706447/19

(affirmation in opposition, paragraph 17).

Defendant argued that Plaintiff asked that if it is not the proper party for No-Fault benefits then identify the proper party, to which Defendant bristled that it is not its job to so do. Nevertheless, with full knowledge and admittedly conceding that indeed Court of Claims is the court of competent jurisdiction (exception for worker’s compensation claims), Plaintiff’s Counsel unexplainedly continued to seek relief in Kings County Civil Court. Defendant further argued, This Court was collaterally estopped by Judge Gerstein’s Decision/Order in Ultimate Care. This Court opined that collateral estoppel is not viable where, although argument may be made as to similarly situated actions, yet still, there were different parties and different specific facts. Therefore, issue preclusion may be persuasive but not dispositive with the instant matter, particularly where deciding jurist is of concurrent jurisdiction in the lower courts. Nevertheless, This Court in agreement with Ultimate Care similarly ruled jurisdiction lies with Court of Claims and not with Kings County Civil Court. Defendant quite frustratedly implored This Court to admonish Plaintiff to withdraw all the improperly filed pending cases including the instant action and cease sending medical bills for No-Fault Benefits to Defendant. This Court responded that Kings County Civil Court similarly lacks Jurisdiction in Equity to issue any such broad wide-ranging Declaratory Judgment in this regard and could merely rule on the instant matter before it. Consequently, This Court denied Plaintiff’s motion for summary judgment and to dismiss affirmative defenses, removing the action to the Court of Claims pursuant to the New York State Constitution Article VI, Section 9, Court of Claims Act §9.

Post-Underlying Oral Argument

Plaintiff filed This instant Motion to Reargue and Renew pursuant to CPLR 2221 (d) and CPLR 2221 (e) on September 27, 2019, returnable October 21, 2019. In the interim, Plaintiff’s [*4]Counsel similarly filed Motion to Reargue and Renew Judge Gerstein’s Decision pursuant to CPLR 2221 (d) and CPLR 2221 (e) for Ultimate Care, which was Denied with prejudice on February 4, 2020. This instant motion was ultimately adjourned to September 22, 2020, where oral argument was held and similarly as with Ultimate Care, Motion Denied.

DISCUSSION

LEAVE TO REARGUE: CPLR 2221(d)

Movant for leave to reargue underlying motion must persuade court that “matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion” is reversible error (CPLR 2221 [d]; Matter of Miness v Deegan, 41 Misc 3d 1206 [A], 977 NYS 2d 668, 2013 NY Misc LEXIS 4359, 2013 NY Slip Op 51601 [U], 2013 WL 5480399; Bolos v Staten Island Hosp., 217 AD2d 643, 629 NYS 2d 809 [2d Dept 1995]; Schneider v Solowey, 141 AD2d 813, 529 NYS 2d 1017 [2d Dept 1988]). It has been held that proper practice requires that motion for relief to reargue must be brought by order to show cause in lieu of by notice of motion for judicial economy and failure to do so may be sufficient basis for denial (Application of Central States Paper & Bag Co., Inc., 132 NYS 2d 69, 72 [Sup Ct, NY County 1954], aff’d mem 284 AD 841, 134 NYS 2d 271 [1st Dept 1954]; Rubin v Dondysh, 147 Misc 2d 221, 222, 555 NYS 2d 1004 [Civ Ct, Queens County 1990]). Nevertheless, it has also been held that CPLR 2221 (a) allows that said motions to reargue “shall be made, on notice, to the judge who signed the order” (Alta Apartments LLC v Wainwright, 4 Misc 3d 1009 [A], 791 NYS 2d 867, 2004 NY Slip Op 50797 [U], 2004 WL 1717573 [Civ Ct, NY County 2004]), as is herein.”A Motion to reargue is not an aggrieved party’s second bite of the apple to present new or divergent arguments from its original failed arguments” (819 Realty Group LLC v Beast Fitness Evolved LLC, 2019 NY Misc. LEXIS 5038, *14, 2019 NY Slip Op 51496 [U], 8, 65 Misc 3d 1204 [A], 118 NYS 3d 367, citing Giovanniello v Carolina Wholesale Off. Mach. Co., Inc., 29 AD3d 737, 815 NYS 2d 248 [2d Dept 2006]; Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388, 797 NYS 2d 316 [2d Dept 2005]; Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434, 793 NYS 2d 452 [2d Dept 2005]; Amato v Lord & Taylor, Inc., 10 AD3d 374, 781 NYS 2d 125 [2d Dept 2004]; Frisenda v X Large Enters., 280 AD2d 514, 720 NYS 2d 187 [2d Dept 2001]; Foley v Roche, 68 AD2d 558, 418 NYS 2d 588 [1st Dept 1979]), nor does it allow aggrieved party to reargue the same issues already previously considered and decided by the court (id, citing William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 588 NYS 2d 8 [1st Dept 1992]; Pro Brokerage v Home Ins. Co., 99 AD2d 971, 472 NYS 2d 661 [1st Dept 1984]).

In the instant matter, Plaintiff failed to state any misapprehension of fact or law nor any fact or law that had been overlooked by This Court. Rather, Plaintiff made the very same arguments as made in the underlying motion. Court explicitly queried several times of Plaintiff to be specific as to its re-argument: What law or fact was misapprehended or overlooked by Court. Recurringly, there was merely a restating of the very same argument by Plaintiff – “this court has jurisdiction.” Court noted to Plaintiff that said motion to reargue is not a second bite of the apple to relitigate its very same arguments. On the contrary, there shall be no relitigating of the very same arguments as made in the underlying motion. Failure to present any law or fact misapprehended or overlooked therefore failed to establish basis for leave to reargue.

However, on further inquiry by the Court, Plaintiff conceded that there was a fact that was overlooked, to wit, this matter was time-barred by Court of Claims. Court pointed out to Plaintiff that this is not a fact that had been argued in its underlying motion. On the contrary, the first introduction of this fact is in this instant motion rendering it a new fact being proffered for [*5]the first time by the movant. Therefore, it is indeed a new matter of fact not offered on the prior motion pursuant to CPLR 2221 (d) (2). Accordingly, Plaintiff’s argument fails in the second prong of CPLR 2221 (d) (2), in that leave to reargue “shall not include any matters of fact not offered on the prior motion“. Clearly, this is not the case here. Plaintiff failed to argue this fact and therefore, this fact could not have been misapprehended nor overlooked where not presented to the court. Jurists cannot “overlook” facts that are not argued by the adversarial parties. Jurists cannot “misapprehend” facts that are not argued by the parties. Jurists are but blank canvases upon which the parties provide the facts as to the issue in controversy, to paint their respective parts of the picture, upon which the jurist completes the picture as she applies any and all law at her ken as deemed relevant to the legal reasoning to the ultimate completion of the picture, to wit, her decision. It is the zealous advocacy of all parties to present the relevant and material facts to the jurist, make its law-based arguments upon which it desires the jurist to rely upon. However, presiding jurist is not so constrained to limit its legally reasoned decision making merely upon the parties’ cited legal arguments and rebuttals. Rather, jurist is duty-bound in the interest of justice, fairness, and judicial economy to make a fully extensively reasoned decision regardless of parties’ failure to so do. Notwithstanding Plaintiff contended in error at oral argument that this motion is actually for reargument as opposed to motion to renew, clearly, its introduction of a new fact renders this matter beyond the statutory scope of a motion to reargue and rather for a leave to renew.

LEAVE TO RENEW: CPLR 2221(e)

CPLR 2221 (e) (2) requires that a leave to renew, “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination.” Here, court finds it necessary to repeat its findings, supra for this branch of its Decision: Plaintiff conceded that it had not in its underlying motion contended that this instant matter was time-barred by Court of Claims. In Plaintiff’s failing to do so, renders this a new fact being proffered for the first time not previously offered on the prior underlying motion by the aggrieved Plaintiff-Movant, in compliance with the first prong of CPLR 2221 (e) (2). In addition, CPLR 2221 (e) (3) requires that leave to renew “shall contain reasonable justification for the failure to present such facts on the prior motion.” “The Second Department has repeatedly held that the additional evidence offered on a motion to renew must be either newly discovered or have been unavailable to the movant at the time of the prior application” (Matter of Miness v Deegan 41 Misc 3d 1206 [A], 977 NYS 2d 668, 2013 NY Misc LEXIS 4359, 2013 NY Slip Op 51601 [U], 2013 WL 5480399, citing Winograd v Neiman Marcus Group, 11 AD3d 455, 782 NYS 2d 753 [2d Dept 2004]; Seltzer v City of New York, 288 AD2d 207, 732 NYS 2d 364 [2d Dept 2001]; Delvecchio v Bayside Chrysler Plymouth Jeep Eagle, 271 AD2d 636, 706 NYS 2d 724 [2d Dept 2000]). The Second Department has also held, “a court, in its discretion may grant renewal where the additional facts were known to the party seeking renewal at the time of the original motion, provided the moving party offers a reasonable justification for the failure to submit the addition of facts on the original motion” or if the moving party offers a reasonable excuse for not having presented those facts (Granato v Waldbaum’s, Inc., 289 AD2d 289, 734 NYS 2d 498, 2001 NY App Div LEXIS 11962; see also Doviak v Finkelstein & Partners, LLP., 90 AD3d 696, at 700-01 [2d Dept 2011]; Schenectady Steel Co. v Meyer Contracting Corp., 73 AD3d 1013, at 1015 [2d Dept 2010]; Smith v State, 71 AD3d 866, at 867-68 [2d Dept 2010]; Surdio v Levittown Public School District, 41 AD3d 486, at 486-87 [2d Dept 2007]). When Plaintiff was queried by [*6]court for justification as to why it did not provide this fact at the September 10, 2019 argument on the underlying motion, there was no justification offered, in contravention to CPLR 2221 (e) (3). It thereby became apparent to this court that the fact that this matter was time barred in the Court of Claims was not known by Plaintiff until after the oral argument date of the underlying motion on September 10, 2019. Consequently, the fact that the instant action is time barred claim in the Court of Claims is a new fact not offered on the prior underlying motion pursuant to CPLR 2221 (e) (2) although it should have been readily available to Plaintiff during the prior underlying motion. Nevertheless, the introduction of this new fact proffered must also be deemed, as statutorily mandated by CPLR 2221 (e) (2), to change the outcome of the prior underlying decision. Here it does not.

In sum and substance, Plaintiff errs as it now argues that since this case is time-barred (“breach of contract must be brought within (six) 6 months of the accrual date” [affirmation in support at 7, ¶ 20, citing NY CT CL Act §10]) in its proper forum court of competent jurisdiction, to wit, Court of Claims, this court already has jurisdiction and should therefore maintain its jurisdiction of this case towards trial. However, the introduction of this new fact does not change the prior underlying motion’s Decision and Order. Jurisdiction is a very basic tenet of jurisprudence. This Court’s jurisdiction is not a fail-safe, not a fallback and not a court of contingent jurisdiction for Court of Claim cases. Either this Court has jurisdiction, or this Court does not have jurisdiction. There is no hybrid jurisdiction here. There is no contingent jurisdiction here. This Court’s finding of no jurisdiction in the underlying case is final and unalterable unless higher court upon appeal holds otherwise. Until then, this Court cannot reverse its previous decision premised upon this irrelevant new fact of being time-barred and therefore rejected by proper forum court of competent jurisdiction, Court of Claims. Where this Court has no jurisdiction over the subject matter in controversy then the only limited action within its authority is dismissal. Plaintiff fails both prongs to establish leave to renew- new fact not having been available at the time of underlying motion and new fact would change the outcome of the underlying decision.

For the foregoing reasons Plaintiff’s Motion pursuant to CPLR 2221 (d) for an Order granting Leave to Reargue and pursuant to CPLR 2221 (e) Leave to Renew Decision and Order of This Court dated September 10, 2019, Denying Plaintiff’s Motion for Summary Judgment and Granting Defendant’s Motion to Dismiss for removal to Court of Claims pursuant to the New York State Constitution, Article VI, Section 9, Court of Claims Act Section 9 is hereby DENIED.

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

Dated: September 30, 2020
Brooklyn, New York
SO ORDERED:
SANDRA E. ROPER
Judge of the Civil Court

CV-707605/17-BX

Eppinger, Reingold & Korder (Ronald M. Eppinger of counsel), for plaintiff

Law Offices of Rubin & Nazarian (Tasnim Hassanali of counsel), for defendant

In this action to recover assigned first-party benefits for medical services rendered (see Insurance Law § 5101, et seq.), defendant Hereford Insurance Company (defendant) moves, pursuant to CPLR 3212, for an order of summary judgment dismissing the complaint of plaintiff Doctors United Inc., as assignee of Keith Davis (plaintiff). In opposition, plaintiff argues that the court should dismiss defendant’s motion as untimely and that the court should grant plaintiff summary judgment for defendant’s failure to either pay or deny the subject claims.

The court now dismisses defendant’s motion as untimely without good cause shown and declines to grant plaintiff’s request for the same relief, as also belatedly asserted without satisfactory excuse.

BACKGROUND

Plaintiff filed a summons and complaint against defendant, seeking overdue no-fault benefits plus interest thereon and attorneys’ fees. Annexed to the summons and complaint is an incomplete copy of a spreadsheet, entitled “Details of Disputed Claim” (summons and complaint). Said document includes, among other things, a column identified as “Date Bill Mailed” with numerous rows of noted dates (id.). The “Details of Disputed Claim” does not indicate what services, if any, were billed to defendant and does not chronicle where defendant allegedly “mailed” the bills (id.).

Defendant filed an answer, demand for verified written interrogatories and various demands. In response, plaintiff alleges that it provided defendant with discovery, including “a complete set of all of the bills at issue in this action” (affirmation in opposition, ¶ 6). However, no proof of mailing for those bills and no copies of the bills exist in the record.

Plaintiff filed a notice of trial, dated July 3, 2018.^[FN1] On November 16, 2018, defendant served plaintiff, by mail, with this motion for an order of summary judgment, dismissing the complaint on the ground that plaintiff never billed defendant (affidavit of service, dated Nov. 16, 2018). Plaintiff opposes the motion arguing that the motion should be dismissed as untimely, pursuant to CPLR 3212 (a).^[FN2] Plaintiff also seeks an order of summary judgment, contending that defendant neither paid nor denied any of the subject bills (see CPLR 3212 [b] [governing the grounds and supporting proof for a summary judgment motion]).

DISCUSSION

A motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (CPLR 3212 [a]; see also Uniform Rules for New York State Trial Courts [22 NYCRR] § 208.7 [b] [providing that “(a)ll formal pleadings in this court and verifications thereof shall be in conformity with CPLR article 30”]). The Court of Appeals defined “good cause” as requiring “a satisfactory explanation for the untimeliness” of the motion, and the Court interpreted Rule 3212 as otherwise prohibiting tardy, but “meritorious, nonprejudicial filings” (Brill v City of New York, 2 NY3d 648, 652 [2004, Kaye, Ch. J.] [construing rule 3212 (a) in the context of a Civil Court proceeding]; see also Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2006 mem] [citing Brill for the proposition that “statutory time frames . . . are not options, they are requirements”]; Rivera v State of New York, 34 NY3d 383, 402, n 12 [2019, Rivera, J., dissenting] [providing, in dicta, “that trial courts may only permit late summary judgment where the movant gives ‘a satisfactory explanation for the untimeliness'”]).

In refusing to countenance violations of the statutory deadline — absent good cause [*2]shown — the Court of Appeals emphasized with hope that “movants will develop a habit of compliance with [CPLR 3212 (a)] . . . rather than delay [motions for summary judgment] until trial looms” (id., at 653). The Court was firm that “not considering the merits of an unexcused, untimely motion” is both (1) “the correct remedy under the law” and (2) the result best calculated to “bring an undesirable practice to an end” (id., n 4).

Applying these principles here, defendant’s motion for summary judgment must be dismissed. Defendant concedes that it served this motion on plaintiff after the conclusion of the 120-day time period set forth in CPLR 3212 (a) (see CPLR 2103 [b] [2] [providing that, where the law prescribes a time period for service, the time “is measured from the service of a paper”]; see also CPLR 2211 [providing that “[a] motion on notice is made when a notice of the motion . . . is served”]; Esdaille v Whitehall Realty Co., 61 AD3d 435, 435-436 [1st Dept 2009] [applying the same]).^[FN3] Moreover, defendant merely contends that the belatedly filed motion does not prejudice plaintiff, appearing to overlook the need to establish a proper excuse for its tardiness. “No excuse at all . . . cannot be ‘good cause'” (Brill, 2 NY3d at 652).

Similarly, plaintiff’s request for summary judgement fails as asserted late without any proffered excuse. Plaintiff seeks summary judgment for the first time in opposition to defendant’s motion, and plaintiff served its affirmation in opposition well beyond 120 days after service of the notice of trial (affidavit of service, dated March 6, 2019).

Accordingly, it is

ORDERED that defendant’s motion for an order of summary judgment, dismissing plaintiff’s cause of action, is dismissed as untimely.

The constitutes the decision and order of the court.

DATE: August 11, 2020
Emily Morales-Minerva, J.

Footnotes

Footnote 1:Neither party indicates when plaintiff served the notice of trial on defendant, although there is no dispute that plaintiff served the notice of trial over 120 days prior to defendant serving this motion for summary judgment.

Footnote 2: Rule 3212 (a) of the CPLR provides, among other things, that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.”

Footnote 3: Defendant states: “The motion was drafted, signed and dated November 13, 2018 — which is within 120 days of the notice of trial. While the motion was not served until a few days later, Plaintiff is not prejudiced by the late motion” (affirmation in reply, ¶ 4).

[*1]

Civil Court of the City of New York, Bronx County, August 7, 2020

APPEARANCES OF COUNSEL

McDonnell Adels & Klestzick, PLLC, Garden City (Joseph A. Schwarzenberg of counsel), for defendant.

Sanders Barshay Grossman, PLLC, Garden City (Edward A. Cespedes of counsel), for plaintiff.

The plaintiff filed the instant action against the defendant seeking to recover assigned no-fault insurance benefits. The defendant now moves the court pursuant to 22 NYCRR 208.17 (c) and CPLR 3126 to strike plaintiff’s notice of trial and dismiss the complaint on the ground that further pretrial discovery is warranted on its Mallela defense (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), or in the alternative to strike plaintiff’s notice of trial and direct plaintiff to appear for a deposition and to provide responses to defendant’s written discovery demands pertaining to Mallela material.

Plaintiff filed a notice of trial and certificate of readiness for trial on August 9, 2019, which stated that discovery proceedings were complete and no outstanding requests for discovery remained. On August 26, 2019, defendant objected to plaintiff’s discovery responses by letter. In its motion, defendant argues that the responses received by the plaintiff are nonresponsive, because the plaintiff objected to all of the defendant’s demands requesting documents and/or information intended to shed light on plaintiff’s ownership, corporate structure, and operations. The plaintiff argues that the defendant’s motion is moot as it served responses and documents on the defendant.

Plaintiff also contends that defendant’s defenses are confined to the four corners of its denial, which was based on the fee schedule, such that Mallela material is irrelevant. The court notes that responses to the interrogatories, combined demands, and notice to preserve attached to defendant’s motion were objections with respect to Mallela material. However, plaintiff [*2]provided medical records, NYS Forms NF-3 and NF-10, and an assignment of benefits form pertaining to the medical services at issue.

Standard of Review

Pursuant to 22 NYCRR 208.17 (c), a party may move within 20 days after service of a notice of trial to strike the action from the calendar. CPLR 3126 permits the court to dismiss the{**68 Misc 3d at 881} action where a party “wilfully fails to disclose information which the court finds ought to have been disclosed.” Dismissal of a complaint pursuant to CPLR 3126 is a drastic remedy that is only appropriate where a party’s conduct is shown to be willful, contumacious or in bad faith. (Henderson-Jones v City of New York, 87 AD3d 498, 503-504 [1st Dept 2011]; see also Sigma Psychological, P.C. v Chubb Indem. Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51107[U] [App Term, 2d Dept, 2d, 11th &13th Jud Dists 2013].) Willful and contumacious behavior can be inferred by a failure to comply with court orders without adequate excuse. (Henderson, 87 AD3d at 503-505.) The court finds that plaintiff did not engage in willful, contumacious or bad faith conduct. Thus, the court denies defendant’s motion to dismiss the complaint pursuant to CPLR 3126.

The court may vacate a notice of trial where the certificate of readiness falsely states that there are no outstanding discovery requests. (Tahir Med., P.C. v Central Mut. Fire Ins. Co., 42 Misc 3d 135[A], 2014 NY Slip Op 50092[U] [App Term, 1st Dept 2014]; 22 NYCRR 208.17 [c].) As the court explains below, defendant is entitled to further discovery. Thus, the court grants defendant’s motion to strike plaintiff’s notice of trial.

Pursuant to CPLR 3124, defendant moves to compel compliance with its outstanding discovery requests for Mallela material. Contrary to plaintiff’s assertion, a Mallela defense is not precludable. (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 Dept, 2d, 11th & 13th Jud Dists 2012].) A motion to compel responses to discovery demands and interrogatories is properly denied where the demands and interrogatories seek information that is irrelevant, overly broad, or burdensome. (See Pesce v Fernandez, 144 AD3d 653 [2d Dept 2016].) The moving party bears the burden of demonstrating that the method of discovery sought would result in the disclosure of relevant evidence or was reasonably calculated to lead to the discovery of information bearing on the claims. (See id.; CPLR 3101 [a].)

Where an insurer requests discovery concerning a Mallela defense, the request should be granted as long as there are sufficient allegations supporting such a defense. (Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012].) Courts have {**68 Misc 3d at 882}permitted extensive discovery where the movant alleges that an unlicensed individual receives a disproportionate share of the corporation’s revenue. (See One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2d Dept 2008].) But where a party does not set forth case-specific allegations in support of its defense of fraudulent incorporation, discovery is not justified. (Pomona Med. Diagnostic P.C. v Adirondack Ins. Co., 36 Misc 3d 127[A], 2012 NY Slip Op 51165[U] [App Term, 1st Dept 2012].)

Defendant’s motion relies on the affidavit of Michelle Whalen, who works at defendant’s Special Investigative Unit. Whalen affirms that plaintiff consistently billed identical units of pf-NCS testing for the cervical and lumbar spine. Whalen affirms that this suggests a pattern of billing designed by profit-motivated, unlicensed laypersons. Whalen also affirms that according to an expert retained by defendant, this testing was medically unnecessary. Such allegations have been found sufficient to warrant discovery pertaining to a Mallela defense. (See Statewide Med. Servs., P.C. v Travelers Ins. Co., 16 Misc 3d 127[A], 2007 NY Slip Op 51253[U] [App Term, 1st Dept 2007], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005].) In light of the case-specific allegations set forth by defendant about the pattern of treatment provided by plaintiff, the court now grants defendant’s motion to compel in part as to matters that are material and necessary to the prosecution of this action.

The court finds that the defendant’s interrogatories are not fully or meaningfully responded to. (See Total Chiropractic, P.C. v USAA Cas. Ins. Co., 56 Misc 3d 1213[A], 2017 NY Slip Op 50977[U] [Suffolk Dist Ct 2017], citing Kihl v Pfeffer, 94 NY2d 118, 121, 123 [1999] [affirming trial court’s striking of complaint where plaintiff failed to correct initial interrogatory responses that were “not responsive” and “lack(ed) any reasonable detail”].) Moreover, plaintiff’s responses were untimely. (CPLR 3133 [a] [“Within twenty days after service of interrogatories, the party upon whom they are served shall serve upon each of the parties a copy of the answer to each interrogatory, except one to which the party objects . . . .”].) When a party fails to object to interrogatories in the time and manner prescribed by CPLR 3133, the court’s inquiry is limited to whether the demands call for disclosure of privileged information or whether the demands are palpably improper. ({**68 Misc 3d at 883}Reichmann v Pro Performance Sports, LLC, 2009 NY Slip Op 33059[U] [Sup Ct, NY County 2009], citing Cooper v Drobenko Bros. Realty, 200 AD2d 415 [1st Dept 1994]; see also Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10, 12 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].) The defendant is entitled to further responses to their interrogatories where they are not palpably improper, privileged, or adequately responded to.

The plaintiff is directed to fully and adequately respond to the following interrogatories: Nos. 2, 3, 4, 5, 6, 8, 9, 10 and 11. The plaintiff must fully respond to the questions asked with a written response, verified by a person with knowledge. (See CPLR 3133 [b].)

The plaintiff is directed to answer the following combined demands: Nos. 2, 3, 6, 7, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21. The court denies defendant’s application as to the remaining demands.

Defendant’s application for an order directing plaintiff to appear for a deposition is granted, as defendant is entitled to discovery on its Mallela defense. (See Bonsai Med. Acupuncture, P.C. v Chubb Group of Ins., 22 Misc 3d 140[A], 2009 NY Slip Op 50430[U] [App Term, 1st Dept 2009]; New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009].)

Conclusion

Accordingly, it is ordered that the clerk of the court vacate the notice of trial. It is further ordered that the defendant’s motion to compel discovery is granted in accordance with this order. And it is further ordered that within 60 days from the date of service of a copy of this order with notice of entry upon the parties, the plaintiff shall serve supplemental responses in accordance with this order. And it is further ordered in light of the ongoing COVID-19 pandemic, that plaintiff appear for a telephonic or videoconference deposition at a date and time mutually convenient to all parties, using audio-video technology mutually agreed upon by all parties, within 45 days of receipt of all responses to discovery. And it is further ordered that the plaintiff may be precluded upon motion from offering any evidence at trial as to items it fails to provide or respond to per this order.