[*1]

Civil Court of the City of New York, Kings County, June 17, 2020

APPEARANCES OF COUNSEL

Law Offices of Rachel Perry, Lake Success (Marhall D. Arnett of counsel), for defendant.

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

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the first, second, and third causes of action, on the ground that plaintiff’s assignor failed to appear for an independent medical examination (IME) scheduled on [*2]August 28 and September 11, 2017. Plaintiff opposes the motion and cross-moves for summary judgment in its favor. Defendant opposes the cross motion.{**68 Misc 3d at 750}

Background

On June 16, 2017, plaintiff’s assignor, Saddiq Waiters, was allegedly injured in a motor vehicle accident (see defendant’s exhibit A, complaint ¶ 2).

At issue in this lawsuit are four bills that plaintiff submitted to defendant for medical equipment/supplies allegedly provided to plaintiff’s assignor on July 10, 2017, August 15, 2017, and August 23, 2017 (two bills were submitted for Aug. 23, 2017). Defendant allegedly received these bills on August 21, 2017, September 1, 2017, and September 12, 2017, respectively (see defendant’s exhibit C, NF-3 forms and denial of claim forms). Defendant “concedes the balance of $200.00” for the date of service on July 10, 2017 (affirmation of defendant’s counsel in support of mot ¶ 12).

IME on August 28, 2017

By a letter dated August 16, 2017, from Exam Works, Inc., plaintiff’s assignor was scheduled to appear for an IME on August 28, 2017, at 7:45 p.m. before Alan Handelsman, a licensed acupuncturist (see defendant’s exhibit D, scheduling letter). According to Handelsman, he was in the office from 7:35 p.m. to 8:10 p.m., and plaintiff’s assignor did not appear for the IME (see defendant’s exhibit E, aff of Alan Handelsman ¶ 5).^[FN1]

Follow-Up IME on September 11, 2017

By a letter dated August 30, 2017, from Exam Works, Inc., plaintiff’s assignor was scheduled to appear for an IME on September 11, 2017, at 2:30 p.m. before Jane Yiu, a licensed acupuncturist (see defendant’s exhibit D, scheduling letter). The record does not contain any affidavit from Jane Yiu. According to a litigation manager from Exam Works, Inc., “On 8/29/17 and 9/12/17, a representative from the above-named Examiner’s office informed my office that claimant did not appear for the scheduled MEs” (see defendant’s exhibit D, aff of Georgianna Michios).

Denial of Claim Forms

On September 13, 2017, defendant allegedly partially denied and partially paid $677.37 for the date of service on July 10, {**68 Misc 3d at 751}2017 (defendant’s exhibit C, mailing report). The explanation of benefits states, in relevant part, “In accordance to the New York No-Fault Law, Regulation 68, this base fee was calculated according to the New York Workers’ Compensation Board Schedule of fees, pursuant to Regulation 83 and/or Appendix 17-C of 11 NYCRR” (id., explanation of benefits).

On September 20, 2017, defendant allegedly mailed to plaintiff a denial of claim form for the date of service on August 15, 2017 (defendant’s exhibit C, proof of mailing report). On September 28, 2017, defendant allegedly mailed to plaintiff denial of claim forms for the two bills for the date of service on August 23, 2017 (id.). The explanation of benefits accompanying each denial of claim form identically states, “Failure to submit to multiple requests for Medical Examinations is a violation of both this policy’s contractual Duties and Conditions under Proof [*3]of Claim that precede coverage under Reg 68, Section 65-1. No fault benefits under this policy are denied” (id.).

The table below summarizes the claims, IMEs, and denials at issue:

The Instant Action

On May 11, 2018, plaintiff commenced this action asserting four causes of action to recover unpaid first-party no-fault benefits for the services rendered, plus interest, and a fifth cause of action for attorneys’ fees (see defendant’s exhibit A, summons and complaint). The first, second, and third causes of action relate to the dates of service on August 23, 2017, August{**68 Misc 3d at 752} 23, 2017, and August 15, 2017, respectively (id.). The fourth cause of action concerns the date of service on July 10, 2017 (id.).

Defendant allegedly answered the complaint on May 25, 2018 (see defendant’s exhibit A, aff of service of answer).

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 [*4]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] [citations and internal quotation marks omitted]).

Defendant’s Motion for Summary Judgment

“The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]). “Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs ‘when, and as often as, the [insurer] may reasonably require’ ” (id. at 722, citing 11 NYCRR 65-1.1).

To meet its prima facie burden, the defendant insurer must establish that it properly mailed scheduling letters for IMEs to plaintiff’s assignor; that the IME was timely scheduled; that the assignor failed to appear at the initial IME and the rescheduled follow-up IME; and that defendant timely denied the claim on that ground (Motionpro Physical Therapy v Hereford Ins. Co., 58 Misc 3d 159[A], 2018 NY Slip Op 50251[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Longevity Med. Supply, Inc. v Citiwide Auto Leasing, 58 Misc 3d 142[A], 2017 NY Slip Op 51880[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Choice Health Chiropractic, P.C. v American Tr. Ins. Co., 58 Misc 3d 155[A], 2018 NY Slip Op 50185[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

IME on August 28, 2017

According to defendant, plaintiff’s assignor was scheduled to appear for an IME on August 28, 2017, at 7:45 p.m. before Alan Handelsman, a licensed acupuncturist, by a letter dated{**68 Misc 3d at 753} August 16, 2017, from Exam Works, Inc. (see defendant’s exhibit D, scheduling letter). To establish proof of mailing, defendant submitted the affidavit of Georgianna Michios, a litigation manager at Exam Works, Inc. (see id., Michios aff).

[1] As plaintiff correctly indicates, the affidavit of the litigation manager was insufficient to show proof of mailing based on personal knowledge or in accordance with a standard office practice or procedure (Parisien v Maya Assur. Co., 59 Misc 3d 147[A], 2018 NY Slip Op 50771[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Ying E. Acupuncture, P.C. v Global Liberty Ins., 20 Misc 3d 144[A], 2008 NY Slip Op 51863[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). To the extent that proof of mailing is based on personal knowledge, the litigation manager does not state in her affidavit that she either mailed the scheduling letter herself or saw another person mailing the scheduling letter. Rather, the litigation manager stated that the appointment letter was stamped and delivered to the United States Post Office by the mail department, which appears not to be her office (Michios aff ¶ 4).

To the extent that proof of mailing is based upon a standard office practice or procedure, the affidavit of the litigation manager was not sufficient to establish when the scheduling letter was mailed. The affidavit states, in relevant part, “All requests printed out during any given day get placed in a U.S. Post Office Depository by a mail-room employee the same day that they are generated and stamped” (id.). However, the litigation manager does not state when the scheduling letter was generated in accordance with the office practice or procedure; the affidavit does not state that the date that appears on the scheduling letter is the date that the letter was generated.

Even if defendant had demonstrated timely mailing of the scheduling letter, defendant [*5]did not establish that plaintiff’s assignor failed to appear at the IME. Defendant submitted the affidavit of Alan Handelsman, a licensed acupuncturist (defendant’s exhibit E). The affidavit indicates that the basis of Handelsman’s knowledge is “based upon my review of electronic and physical files pertaining to the claimant” (defendant’s exhibit E, Handelsman aff ¶ 4). However,

“it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Accordingly, [e]vidence of the contents of business records is admissible only where the records themselves are introduced. Without their{**68 Misc 3d at 754} introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay” (Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205-206 [2d Dept 2019] [citations and internal quotation marks omitted]).

Here, Handelsman did not submit any business records.

The affidavit also states, “In addition, I was in the scheduled examining office on 8/28/17 from 7:35 PM to 8:10 PM and I have personal knowledge that Saddiq Waiters did not appear” (Handelsman aff ¶ 5). However, the court agrees with plaintiff’s counsel that the affidavit, which purports to be based on personal knowledge, is conclusory (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

The affidavit does not state that no one appeared at all before Handelsman from 7:35 p.m. until 8:10 p.m. Because Handelsman swore that he was present in the office at the time the IME was to be conducted, he would have known, by the use of his own senses, whether a person appeared in front of him at the time IME was scheduled. However, the affidavit is conclusory as to the basis for Handelsman’s knowledge of the identity of Saddiq Waiters (see 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, 2d, 11th & 13th Jud Dists 2016] [“While defendant submitted properly sworn statements by the chiropractor and doctor who had been scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations”]). There is nothing in the record to indicate that Handelsman had an existing relationship with Waiters or had previously met Waiters so as to be able to recognize that person. If Handelsman had not previously met Saddiq Waiters, then his knowledge of Waiters’s identity would not be based on personal knowledge.

Follow-up IME on September 11, 2017

By a letter dated August 30, 2017, from Exam Works, Inc., plaintiff’s assignor was scheduled to appear for an IME on September 11, 2017, at 2:30 p.m. before Jane Yiu, a licensed acupuncturist (see defendant’s exhibit D, scheduling letter). As discussed above, the affidavit of the litigation manager from{**68 Misc 3d at 755} Exam Works, Inc. was insufficient to establish proof of mailing of this scheduling letter based on personal knowledge or in accordance with an office practice or procedure (Parisien, 2018 NY Slip Op 50771[U]; Ying E. Acupuncture, P.C., 2008 NY Slip Op 51863[U]).

Defendant failed to establish that plaintiff’s assignor failed to appear at the IME on September 11, 2017. As plaintiff correctly points out, defendant did not submit an affidavit from someone with personal knowledge of the failure to appear (see affirmation of plaintiff’s counsel in support of cross mot ¶¶ 128, 146). Defendant did not submit an affidavit from Yiu, or anyone else from the examiner’s office who would have seen plaintiff’s assignor at the scheduled IME exam. As plaintiff’s counsel also indicates, the statement purportedly made by a [*6]representative from the examiner’s office to a litigation manager at Exam Works, Inc. of the failure to appear at the IME is hearsay (see id. ¶ 128; see Quality Psychological Servs., P.C. v Travelers Home & Mar. Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50750[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Timeliness of the Denial of Claim Forms

“[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] [citations omitted]).

With respect to the bills for the dates of service on August 15, 2017, and August 23, 2017, defendant maintains that these bills were received on September 1 and September 12, 2017, respectively. According to defendant, the denial of claim forms for these bills were mailed on September 20 and 28, 2017, and thus within the 30-day period.

To establish proper mailing, defendant submits the affidavit of Lori Curtin, a litigation representative (see defendant’s exhibit B, aff of Lori Curtin) and business records of mailing reports of the denial of claim forms (see defendant’s exhibit C). According to Curtin, the denial of claim forms were printed and mailed from facilities in either Colorado Springs, Colorado or Highland Heights, Ohio (see Curtin aff ¶ 3). Curtin’s {**68 Misc 3d at 756}affidavit and the mailing reports established proof of mailing of the denial of claim forms on September 20 and September 28, 2017, in accordance with a standard office 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, 11th & 13th Jud Dists 2010]).

Contrary to plaintiff’s arguments, Curtin demonstrated firsthand knowledge of the mailing procedures, because she averred that she has been trained in defendant’s claims handling and mailing procedures, and that she has personally observed the mailing procedures at the mailing facilities in both Colorado and Ohio (Curtin aff ¶ 2). Although plaintiff’s counsel points out that Curtin did not specify the mailing facility from which the denial of claim forms had been mailed, Curtin stated that she has personal knowledge of the mailing procedures at both facilities (id.). In any event, Curtin explained how one could ascertain which mailing facility sent the denial of claim forms.^[FN10] Curtin’s affidavit also properly laid the foundation for the admission of the mailing receipts of the denial of claim forms as business records (see id. ¶¶ 3, 3 [g]).

Plaintiff’s counsel also asserts that Curtin stated that she had “personal knowledge of the [*7]defendant’s file ‘maintained at that [Albany, NY] office’ ” (affirmation of plaintiff’s counsel in support of cross mot ¶ 70). However, plaintiff’s counsel does not reference any paragraph of Curtin’s affidavit, and the quoted words do not, in fact, appear anywhere in Curtin’s affidavit. Rather, Curtin states that her knowledge is based “on a complete review of the documents contained in the electronic claims file, which is maintained in the ordinary course of business of Defendant and which is Defendant’s duty to maintain said file” (Curtin aff ¶ 2). Nowhere in her affidavit does Curtin {**68 Misc 3d at 757}state that the electronic file which she reviewed pertained only to the records at the Albany, NY office (see id. ¶¶ 2, 5).^[FN11]

As plaintiff’s counsel points out, “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]). Prior cases have ruled that the office procedure was inadequate where, for example, an employee has not checked that the names and addresses on envelopes matched the names and addresses of the intended recipients (see Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656 [2d Dept 1994] [“when reliance is placed on a mailing sheet, testimony that an employee normally checks the names and addresses on the envelopes with those on the mailing sheet is sufficient to constitute proof of mailing”]).

Here, Curtin states that “[t]he information appearing in the NF-10 and the EOB regarding the recipient, recipient address, patient, dates of service and the amount bill is obtained from the bill(s)/cover letter submitted by Plaintiff,” and that “the Progressive claims representative electronically creates the document(s) to be mailed” (Curtin aff ¶ 3 [i], [l], [n]). The printing/mailing system is automated, and it is reviewed, inspected, and monitored by Progressive employees (id. ¶ 3 [a], [q]). The name and address of the recipient and date of mailing are captured electronically by defendant’s computer onto mailing reports which cannot be altered once captured (id. ¶ 3 [b]). Given these procedures, the court is satisfied this office procedure is geared to ensure that the denial of claim forms were properly addressed and mailed. It is undisputed that the name and address on the mailing reports and on the denial of claims forms were correct.

Therefore, defendant timely issued denial of claims for the dates of service on August 15 and August 23, 2017.

Nevertheless, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs on August 28 and September 11, 2017. Accordingly, defendant’s motion for summary judgment dismissing the first through third causes of action is denied.{**68 Misc 3d at 758}

Plaintiff’s Cross Motion for Summary Judgment

“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], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud [*8]Dists 2011]).

Once plaintiff meets its prima facie burden, the burden shifts to defendant to raise a triable issue fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Here, plaintiff established prima facie entitlement to summary judgment by submitting the affidavit of Eugene Nemets, the owner of plaintiff, who established that bills were timely submitted to defendant and that payment of no-fault benefits was overdue (see plaintiff’s exhibit 4 in support of cross mot; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2d Dept 2005]). Nemets stated the dates when each of the bills at issue were mailed to defendant, which were all within 45 days of the dates of the service (see plaintiff’s exhibit 4 in support of cross mot, Nemets aff ¶¶ 34-35, 40-41, 43-44). His affidavit also established that the bills were mailed in accordance with a standard office procedure (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Great Wall Acupuncture, P.C. v New York Cent. Mut. Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50224[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). According to Nemets, the bills were neither paid nor denied within 30 days (Nemets aff ¶¶ 36, 42, 45).

Assuming, for the sake of argument, that plaintiff’s submissions did not establish proof of mailing, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s motion papers, which admitted receipt of plaintiff’s bills (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, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

{**68 Misc 3d at 759}As to the three bills for the dates of service on August 15 and August 23, 2017, defendant proved that it timely denied those claims. However, as discussed above, defendant did not establish that plaintiff’s assignor twice failed to appear for an IME. The issue presented is whether the timely denials warrant denial of plaintiff’s cross motion for summary judgment in its favor, even though the evidence of the grounds of the denials was insufficient.

The Appellate Term, Second Department has issued two decisions with conflicting results. In Rockaway Med. & Diagnostic, P.C. v Country-Wide Ins. Co. (29 Misc 3d 136[A], 2010 NY Slip Op 52012[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), the plaintiff moved for summary judgment in its favor against an insurer, and the insurer opposed the plaintiff’s motion on the ground of lack of medical necessity. The Appellate Term found that, contrary to the insurer’s argument, the plaintiff met its prima facie burden (2010 NY Slip Op 52012[U], *1). Although the Appellate Term found that the insurer had proved that it had timely denied the claim for lack of medical necessity, the Appellate Term awarded the plaintiff summary judgment because the peer review report was from a nurse, which was insufficient to raise a triable issue of fact as to medical necessity (id. at *2).

Three years later, the Appellate Term, Second Department reached the opposite result in Shara Acupuncture, P.C. v Allstate Ins. Co. (41 Misc 3d 129[A], 2013 NY Slip Op 51731[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). There, the plaintiff moved for summary judgment in its favor against the insurer on six causes of action, and the insurer raised the defense of a fee schedule. The court below denied the plaintiff’s motion for summary judgment and instead granted the defendant reverse summary judgment dismissing all six causes of action (2013 NY Slip Op 51731[U]). On appeal, the Appellate Term found that the insurer timely denied the claims, but it reinstated the second cause of action, because the insurer failed to address whether that claim had been paid in accordance with the fee schedule. Although the insurer submitted no evidence as to the fee schedule defense, the Appellate Term denied the plaintiff’s motion for [*9]summary judgment, reasoning, “As defendant established that the claim for $75.11 had been timely denied, and plaintiff failed to establish that defendant’s denial of claim form was conclusory, vague or without merit as a matter of law, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on that claim” (id. at *2).

{**68 Misc 3d at 760}Under Rockaway Med. & Diagnostic, P.C., once the plaintiff met its prima facie burden, the Appellate Term required the defendant not only to come forward with evidence that the denial was timely, but also to lay bare the evidence of the grounds of the denial, which had to be sufficient to establish the grounds (2010 NY Slip Op 52012[U]). Under Shara Acupuncture, P.C., once the plaintiff met its prima facie burden that the claims were neither paid nor denied within the 30-day period after defendant’s receipt of the bill, the Appellate Term required the insurer only to come forward with evidence that the denial was timely to defeat the plaintiff’s motion for summary judgment (2013 NY Slip Op 51731[U]). Put differently, once the insurer came forward with evidence that the denial was timely, the burden in Shara Acupuncture, P.C. appears to shift back to the plaintiff to establish the denial was conclusory, vague or without merit as a matter of law to be entitled to summary judgment (see id.).

Shara Acupuncture, P.C. controls here (id.). As discussed above, the plaintiff’s prima facie burden can be established in two ways: (1) proof that the defendant had failed to pay or deny the claim within the requisite 30-day period, or (2) proof 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., 2011 NY Slip Op 51292[U]). If plaintiff cannot meet its prima facie burden under the first method because defendant submitted evidence of a timely denial (see e.g. Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2d Dept 2010] [defendant made a partial payment and partial denial within 30 days after receipt of the bill]), then the court should consider whether plaintiff met the prima facie burden under the second method (see Longevity Med. Supply, Inc. v Global Liberty Ins. Co., 67 Misc 3d 135[A], 2020 NY Slip Op 50527[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

[2] Here, the plaintiff’s prima facie burden was based solely on proof that the claims were neither paid nor denied within the 30-day period, and the defendant raised a triable issue of fact as to whether the claims were timely denied. Because plaintiff had not demonstrated that the denial was conclusory, vague, or without merit as a matter of law, plaintiff is not entitled to judgment in its favor as to the bills for the dates of service on August 15 and August 23, 2017. Plaintiff’s cross motion for summary judgment is therefore denied, in part, as to the first, second, and third causes of action.{**68 Misc 3d at 761}

As to the fourth cause of action, defendant conceded its liability for the bill for the date of service on July 10, 2017, which it had partially paid (affirmation of defendant’s counsel in support of mot ¶ 12). Although defendant conceded the balance of $200, the difference was, in fact, $240. Plaintiff had billed $917.37 and defendant paid $677.37 (see defendant’s exhibit C, denial of claim form). Therefore, plaintiff is entitled to summary judgment on the fourth cause of action against defendant, in the amount of $240.

Plaintiff is also entitled to prejudgment interest on the fourth cause of action at the rate of 2% per month, from May 11, 2018, the date of the commencement of the action, because plaintiff did not commence a lawsuit within 30 days after receipt of the denial of claim forms dated May 23, 2017 (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 205 [2d Dept 2009]).

Because plaintiff prevailed against defendant on the fourth cause of action, plaintiff is [*10]also entitled to recover attorneys’ fees from defendant (11 NYCRR 65-4.6 [d]). However, partial summary judgment is granted in plaintiff’s favor as to liability only on the fifth cause of action, because it remains to be seen whether plaintiff will be entitled to attorneys’ fees with respect to the other bills.^[FN12]

Conclusion

Upon the foregoing cited papers, it is hereby ordered that defendant’s motion for summary judgment dismissing the complaint is denied; and it is further ordered that plaintiff’s cross motion for summary judgment in its favor against defendant is granted in part to the extent that plaintiff is granted summary judgment in its favor and against defendant on the fourth cause of action in the amount of $240, plus prejudgment interest at the rate of 2% per month, from May 11, 2018; and plaintiff is granted partial summary judgment as to liability only on the fifth cause of action; and it is further ordered that{**68 Misc 3d at 762} the remainder of plaintiff’s cross motion for summary judgment is otherwise denied, and the action shall continue.

Footnotes

Footnote 1:Defendant’s counsel refers to the affidavits of John Johnson, DC, and Karen Thomas, DC, which were purportedly included in exhibit E (affirmation of defendant’s counsel in opp to cross mot ¶ 21). However, these affidavits were not included in the papers submitted to court, and in any event, the IME scheduling letters indicated that the IMEs were scheduled before Alan Handelsman and Jane Yiu.

Footnote 2:Defendant’s exhibit C, NF-3 forms.

Footnote 3:Id., denial of claim forms.

Footnote 4:Defendant’s exhibit D.

Footnote 5:Id.

Footnote 6:Id.

Footnote 7:Defendant’s exhibit C.

Footnote 8:Id., denial of claim forms.

Footnote 9:Id., mailing reports.

Footnote 10:According to Curtin, the mailing facility can be determined from the sixth and seventh digits of the envelope ID (Curtin aff ¶ 3 [m]). “If the sixth and seventh digits are 00 or 02, the document was mailed from Highland Heights, Ohio; if the sixth and seventh digits are 01, the document was mailed from Colorado Springs, Colorado” (id.). Here, the mailing reports indicate that the envelope IDs for the denial of claim forms for the dates of service on August 15, 2017, and August 23, 2017, were “CMBPI02H000540″ and “CMBPG00P00018,” respectively (defendant’s exhibit C in support of mot [emphasis added]).

Footnote 11:Plaintiff’s counsel also purports to quote extensively from Curtin’s affidavit (see affirmation of plaintiff’s counsel in support of cross mot ¶ 74), but the quoted statements do not appear in Curtin’s affidavit.

Footnote 12:In the prayer for relief in its cross motion, plaintiff’s counsel incorrectly asserted that plaintiff was entitled to a maximum of $850 in attorneys’ fees per cause of action. However, each bill was asserted as a separate cause of action. Following the opinion of the Superintendent of Insurance, the Court of Appeals expressly rejected the calculation of attorneys’ fees on a per bill basis; the award of attorneys’ fees is calculated as 20% of the aggregate amount of all bills in the action pertaining to a single insured, plus interest, subject to a maximum of $1,360 (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; 11 NYCRR 65-4.6 [d]).

[*1]

Civil Court of the City of New York, Bronx County, June 15, 2020

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

Law Offices of Chris McCollum P.C., Brooklyn, for plaintiff.

The plaintiff filed the instant action against the defendant seeking to recover assigned no-fault insurance benefits. The amount in dispute is $5,503.90.

The defendant now moves pursuant to CPLR 3212 for an order granting summary judgment in favor of the defendant on the grounds that (1) the plaintiff lacks standing to receive no-fault reimbursement because it is not properly owned and controlled by licensed medical professionals as required by 11 NYCRR 65-3.16 (a) (12) and State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]); (2) the defendant timely and properly denied the claim as the medical treatment was not medically necessary; and (3) the defendant properly paid and denied the remainder of the claims pursuant to the New York State Workers’ Compensation Fee Schedule.

The plaintiff opposes and cross-moves for an order of summary judgment in favor of the plaintiff. The plaintiff also moves for an order deeming certain facts established pursuant to [*2]CPLR 3212 (g), as to its prima facie case.

Standard of Review

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law by advancing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact. (See Zuckerman v City of New York, 49 NY2d 557 [1980].) Summary judgment is inappropriate where there are material issues of fact in dispute or where more than one conclusion may be drawn from the facts. (See Friends of Thayer Lake LLC v Brown, 27 NY3d 1039 [2016].) In considering a motion for summary judgment, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. (See Negri v Stop & Shop, 65 NY2d 625 [1985].)

{**68 Misc 3d at 559}Once a movant meets its burden, the burden is shifted to the opposing party to come forward with proof, again in evidentiary form, to show the existence of genuine triable issues of fact. (See Piccolo v De Carlo, 90 AD2d 609 [3d Dept 1982].)

Discussion

Defendant’s Motion for Summary Judgment as to a Mallela Defense

Pursuant to 11 NYCRR 65-3.16 (a) (12), an insurer may withhold payment for medical services that a professional corporation provides, where there is a “willful and material failure to abide by” licensing and incorporation statutes, even if the services were provided by licensed health care providers. (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005].) A party may support a finding that a provider is not eligible for reimbursement under 11 NYCRR 65-3.16 (a) (12) without meeting the traditional elements of common-law fraud. (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 405 [2019].) But in order to withhold payment, the violations of incorporation and licensing statutes must be “more than merely technical and ‘rise to the level of’ a grave violation such as fraud.” (Id. at 405-406, citing Mallela at 322.)

Although Mallela is typically a defense mounted at trial, the defendant is free to use Mallela as a mechanism to keep claims open. (High Definition MRI, P.C. v Countrywide Ins. Co., 2019 NY Slip Op 32009[U] [Sup Ct, NY County 2019].) In deciding a motion for summary judgment, the court must draw all reasonable inferences in favor of the nonmoving party and deny summary judgment if there is any doubt as to the existence of a material issue of fact. (Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007].) Where different conclusions may be reasonably drawn from the evidence, the motion should be denied. (Sommer v Federal Signal Corp., 79 NY2d 540, 555 [1992].)

Defendant argues that plaintiff is not properly owned and controlled by licensed medical professionals, which is required by 11 NYCRR 65-3.16 (a) (12). In support of its argument, defendant offers the affidavit of James Glampe, a special investigator in its SIU department. Glampe contends that in the examinations under oath on March 3, 2015, and August 16, 2016, Dr. Harvey “admitted” that he owns 97% of Harvey Family Chiro PT & Acup, PLLC, with a physical therapist owning 2% and an acupuncturist owning the remaining 1% of the{**68 Misc 3d at 560} PLLC. Dr. [*3]Harvey testified in March 2015 that “he was responsible for the day to day management of the company, and that the physical therapists and acupuncturist do not have general management responsibilities.” Dr. Harvey testified in August 2016 that profits are distributed in accordance with the ownership shares. Defendant argues that this allows Dr. Harvey to receive a disproportionate share of the income from professions he is not licensed to perform. Dr. Harvey testified in August 2016 that 70% of the practice is chiropractic treatment, 20-25% is physical therapy, and 10% is acupuncture.

Plaintiff argues that the conduct at issue in Mallela and Carothers is easily distinguishable from the ownership structure and services provided at Harvey Family. Plaintiff argues that defendant merely objects to the ownership split at Harvey Family, but that fee splitting alone is not sufficient to mount a Mallela defense. In addition, plaintiff contends that such a fee split is permissible under article 15 of the Business Corporation Law.

[1] The court now denies defendant’s motion on the Mallela defense. Although Dr. Harvey owns a sizeable majority of plaintiff and receives income from services provided by professionals operating under different licenses, impermissible fee splitting alone is not a violation of a licensing requirement as required by Mallela. (See H & H Chiropractic Servs., P.C. v Metropolitan Prop. & Cas. Ins. Co., 47 Misc 3d 1075, 1079 [Civ Ct, Queens County 2015].) In Mallela and Carothers, the Court was deeply concerned with the corporate practice of medicine by nonphysicians. Both cases involve physicians that essentially rented out their license to nonphysicians, who ran the day-to-day operations of the medical practices and received the bulk of the profits. Here, all owners are licensed to provide medical care. Nor does it appear that Dr. Harvey provides, supervises, or otherwise interferes with services that he is not licensed to render. However, the extreme equity distribution in the PLLC raises issues of fact for trial as to the level of control exerted by Dr. Harvey over services outside the scope of his license.

Defendant’s Motion for Summary Judgment as to Lack of Medical Necessity

The claim form itself gives rise to a presumption of medical necessity. (See Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d Dept, 2d & 11th Jud Dists 2004].) The insurer may rebut the inference of medical{**68 Misc 3d at 561} necessity by proof in admissible form establishing that the health benefits were not medically necessary. (See A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007].) The proof must provide a factual basis and medical rationale that the services were not medically necessary. (See Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009].) Once a defendant submits evidence establishing a lack of medical necessity for the services rendered, the burden shifts to the plaintiff to rebut the defendant’s evidence. (See Foster Diagnostic Imaging, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 138[A], 2011 NY Slip Op 52074[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011].)

The court finds that the defendant proved that it timely mailed the denial through the affidavit of its litigation examiner, Tara Piontek. Ms. Piontek’s affidavit established that the defendant timely mailed its denial of claim form based upon standard office practice or procedure, designed to ensure that items are properly addressed and mailed. (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001].)

The court finds that the defendant met its burden in establishing that the treatment was not medically necessary through the affidavits and reports of Daniel Sposta, D.C., L.Ac., and Sathish Modugu, M.D., CIME. Dr. Sposta’s affidavit and affirmed report state that he is a licensed chiropractor and acupuncturist, and that he conducted an independent chiropractic and acupuncture examination of the assignor. Dr. Sposta’s report states that he reviewed various medical records, including records from plaintiff, Jacobi Medical Center, and Stand-Up MRI of Yonkers. These records were annexed to defendant’s motion. Dr. Sposta determined that continued chiropractic and acupuncture services in relation to assignor’s motor vehicle accident were not medically justified and that treatment should have been discontinued. Dr. Sposta reported the assignor’s complaints of pain, but noted that several test results were negative for pain. Dr. Modugu’s affidavit and report state that he is a licensed physician and that he conducted an independent medical examination of the assignor. Dr. Modugu’s report states that he reviewed various medical records and diagnostic studies, including records from plaintiff, claim forms, and Dr. Sposta’s independent medical{**68 Misc 3d at 562} evaluation. These records were annexed to defendant’s motion. Dr. Modugu determined that continued physical therapy in relation to the accident was not necessary, as the assignor had received extensive treatment already. However, Dr. Modugu’s physical examination noted that the assignor’s range of motion was lower than normal. Dr. Modugu also reported the assignor’s complaints of pain and suggested that follow up with pain management may be appropriate.

[2] The court finds that the plaintiff met its burden rebutting the defendant’s evidence through the affidavit of Richard Harvey, D.C., a licensed chiropractor and majority owner of plaintiff. Dr. Harvey’s affidavit reviews the assignor’s medical records, detailing the assignor’s complaints of neck, back, shoulder, and knee pain, as well as headaches, muscle spasms, and spinal subluxations. These records were annexed to plaintiff’s cross motion. The assignor’s medical records reflect abnormal moderate pain, muscle spasms, and significant myalgia in the lumbar region of the back. Dr. Harvey contends that based off these complaints and medical issues, “conservative care was continued.” Dr. Harvey also notes that “there are no specific guidelines delineating the absolute structured path for treatment to be universally prescribed to all patients,” such that “[g]reat deference should be given to the treating provider charged with the responsibility to examine, diagnose and treat” patients. Dr. Harvey’s affidavit puts into question whether assignor’s condition had been resolved, such that continued medical services were not necessary.

Based on a reading of the affidavits and reports submitted by both parties, the court finds that a material issue of fact exists as to the medical necessity of assignor’s treatment. Therefore, the defendant’s motion for summary judgment is denied.

Defendant’s Motion for Summary Judgment as to Proper Payment under the Fee Schedule

Where the insurer determines that a medical bill contravenes the applicable fee schedule, the burden then shifts to the insurer to assert a defense that the provider billed in excess of the fee schedule. (See 11 NYCRR 65-3.8 [g] [1].) Once an insurer makes a prima facie showing that the amount charged by a medical provider is in excess of the fee schedule, the burden then shifts to the provider to show that the charges involved a different interpretation of such schedules or an inadvertent miscalculation or error. (SeeCornell Med., P.C. v Mercury Cas. {**68 Misc 3d at 563}Co., 24 Misc 3d [*4]58 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009].)

[3] The defendant argues that it properly and timely paid the claims pursuant to the New York State Workers’ Compensation Fee Schedule, and that it denied the remainder as billed in excess of the fee schedule. Defendant contends that the applicable fee schedule is the New York Workers’ Compensation Medical Fee Schedule effective June 1, 2012, and that the amounts paid under the fee schedule were calculated by multiplying the relative value unit for the CPT code by the conversion factor for the region in which the provider is located. Notably, defendant did not submit an affidavit from an individual who is familiar with coding and fee schedules. The court cannot accept the attorney’s affirmation as proof that the bills were improperly coded as it is not based on personal knowledge and has no probative value in a motion for summary judgment. (See W. W. Norton & Co. v Roslyn Targ Literary Agency, 81 AD2d 798 [1st Dept 1981]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]; see also Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U] [App Term, 1st Dept 2011].) The court finds that the defendant has not met its prima facie burden of proof showing the absence of a material issue of fact as to the amount that it paid.

Plaintiff’s Cross Motion for Summary Judgment

A medical provider seeking reimbursement from a no-fault insurer demonstrates prima facie entitlement to reimbursement by submitting evidence that payment of no-fault benefits is overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer. (See Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015].) To establish entitlement to summary judgment on overdue no-fault benefits, the medical provider is required to submit proof of mailing through evidence in admissible form. Such proof may include an affidavit from a person or entity with knowledge of the claim and how it was sent to the insurer. (See id.) The claim form itself gives rise to a presumption of medical necessity. (See Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d Dept, 2d & 11th Jud Dists 2004].)

[4] The court denies the plaintiff’s cross motion for summary judgment. Plaintiff attached some documentation of its claim,{**68 Misc 3d at 564} but did not attach documentation from one of its billers stating that a bill was generated and mailed. In addition, plaintiff did not state when the bill was mailed and failed to attach proof of said mailing.

Conclusion

Accordingly, the defendant’s motion is denied in its entirety. The plaintiff’s cross motion is also denied in its entirety.

CV-746259-17/KI

Zara Javakov Esq., P.C. (Koenig Pierre and Zachary Albright Whiting of counsel), Brooklyn, for plaintiff.

Hollander Legal Group, P.C. (Johnathan Drapan of counsel), Melville, for defendant.

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

Papers/Numbered

Notice of Motion and Affidavits Annexed 1-4

Notice of Cross Motion and Affidavits Annexed 5-26

Answering Affidavits 27-28

Replying Affidavits 29-30

Exhibits

Other

In this action seeking to recover assigned first-party no-fault benefits for two assignors, plaintiff moves for summary judgment in its favor against defendant. Defendant opposes the motion and cross-moves for summary judgment dismissing the action on the grounds that [*2]plaintiff failed to appear for Examinations Under Oath (EUOs) and that plaintiff’s assignor Jason Dorvllier ^[FN1] failed to appear for Independent Medical Examinations (IMEs). Plaintiff opposes the cross motion.

BACKGROUND

This action arises out of services that plaintiff allegedly rendered to its two assignors, Selena Figueroa and Jason Dorvllier. On July 14, 2017, Selena Figueroa was allegedly injured in a motor vehicle accident (see plaintiff’s exhibit B in support of motion, Assignment of Benefits form and NF-3 forms). On May 1, 2017, Dorvllier was allegedly injured in a motor vehicle accident (see defendant’s exhibit AA in support of cross motion, NF-2 form). By a letter dated May 16, 2017, Ratsenberg & Associates, P.C. notified defendant that it represented “Jason Dorville” [sic] with respect to his claims for no-fault benefits for injuries resulting from the May 1, 2017 accident (id.). Plaintiff allegedly mailed to defendant six bills for services provided to Figueora from August 10 through September 26, 2017 and five bills for the services provided to Dorvllier from August 1 through September 27, 2017. The location where the services were allegedly provided to both assignors was 764 Elmont Road, Elmont, New York 11003 (see plaintiff’s exhibit B in support of motion, NF-3 forms).

Services provided to assignor Sandra Figueora

On August 10, 11, 17, 18, and 23, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $252.72 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 8/29/2017). Defendant allegedly received the bill for these dates of service (bill No.1) on September 8, 2017 (see defendant’s exhibit E in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On August 24, 25, 29, 31, 2017 and September 1, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $285.80 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/15/2017). Defendant allegedly received the bill for these dates of service (bill #2) on September 21, 2017 (see defendant’s exhibit F in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 5, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $57.16 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/15/2017). Defendant allegedly received a bill for this date of service (bill #3) on September 21, 2017 (see defendant’s exhibit G in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 7 and 8, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $114.32 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/22/2017). Defendant allegedly received a bill for these dates of service (bill #4) on September 27, 2017 (see defendant’s exhibit H in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 12, 14, 15, and 20, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $228.64 (see plaintiff’s exhibit B in support of motion, NF-3 [*3]form dated 9/22/2017). Defendant allegedly received a bill for these services (bill #5) on October 21, 2017 (see defendant’s exhibit I in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 21 and 26, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $114.32 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 10/2/2017). Defendant allegedly received a bill for these dates of service (bill #6) on October 7, 2017 (see defendant’s exhibit J in support of cross motion, affidavit of Douglas Taylor ¶ 12).

Services provided to assignor Jason Dorvllier

On August 1, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount $48.89 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 8/11/2017). Defendant allegedly received the bill for this date of service (bill #7) on August 21, 2017 (see defendant’s exhibit K in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On August 15, 16, and 23, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount of $146.67 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 8/29/2017). Defendant allegedly received the bill for these dates of service (bill #8) on September 8, 2017 (see defendant’s exhibit L in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On August 24 and 31, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount of $97.78 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/12/2017). Defendant allegedly received a bill for these dates of service (bill #9) on September 21, 2017 (see defendant’s exhibit M in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 13 and 18, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount of $97.78 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/28/2017). Defendant allegedly received a bill for these dates of service (bill #10) on October 2, 2017 (see defendant’s exhibit N in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 25, 26, and 27, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount of $146.67 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 10/2/17). Defendant allegedly received a bill for these dates of services (bill #11) on October 7, 2017 (see defendant’s exhibit O in support of cross motion, affidavit of Douglas Taylor ¶ 12).

IME of Jason Dorvllier on September 13, 2017

By a letter dated August 15, 2017 sent to Dorvllier and his counsel, defendant’s IME scheduler, D & D Associates, allegedly scheduled an IME of Dorvllier on August 28, 2017 at 9:45 a.m. before Janice Salayka at an office in Queens Village, New York (defendant’s exhibit CC in support of cross motion, scheduling letter). By a letter dated August 21, 2017 sent to Dorvllier and his counsel, defendant’s IME scheduler, D & D Associates, allegedly rescheduled the IME on August 28, 2017 to September 13, 2017 at 1:00 p.m. before John Johnson Jr. at an office in Flushing, New York (defendant’s exhibit DD in support of cross motion, scheduling letter).

A letter dated September 13, 2017, purportedly signed by John E. Johnson, Jr., states,

“Please be advised that I was present to perform an Independent Medical Examination of JASON DORVILIER who failed to appear for the scheduled Independent Medical Examination . . . on September 13, 2017 at 9:00 a.m.

I swear that the above information is correct”

(defendant’s exhibit EE in support of cross motion). In an affidavit, John E. Johnson, Jr., a licensed chiropractor, averred that he was present at the office on September 13, 2017 at 1:00 p.m., and that “[a]t no time did JASON DORVILLIER appear on September 13, 2017, for his scheduled IME . . . .” (defendant’s exhibit HH, Johnson aff ¶¶ 4-5).^[FN2]

IME of Jason Dorvllier on September 27, 2017

By a letter dated September 15, 2017 sent to Dorvllier and his counsel, D & D Associates allegedly scheduled an IME of Dorvllier on September 27, 2017 at 8:30 a.m. before John Johnson, Jr. at an office in Flushing, New York (defendant’s exhibit FF in support of cross motion, scheduling letter). A letter dated September 27, 2017, purportedly signed by John E. Johnson, Jr., states,

“Please be advised that I was present to perform an Independent Medical Examination of JASON DORVILIER who failed to appear for the scheduled Independent Medical Examination . . . on September 27, 2017 at 8:30 a.m.

I swear that the above information is correct”

(defendant’s exhibit GG in support of cross motion). In an affidavit, John E. Johnson, Jr., a licensed chiropractor, averred that he was present at the office on September 27, 2017 at 8:30 a.m., and that “[a]t no time did JASON DORVILLIER appear on September 27, 2017, for his schedule IME . . . .” (defendant’s exhibit HH, Johnson aff ¶¶ 8-9).

EUO of plaintiff on October 30, 2017

By a letter dated October 4, 2017, allegedly mailed by first-class and certified mail to plaintiff, defendant’s counsel requested plaintiff to appear for an EUO on October 30, 2017 at the office of defendant’s counsel, located at 445 Broadhollow Road in Melville, New York (defendant’s exhibit P in support of cross motion, scheduling letter). However, by a letter dated October 30, 2017 emailed to defendant’s counsel, plaintiff’s counsel, which acknowledged the EUO scheduling letter, requested that the EUO be rescheduled to December 8, 2017 at 1 p.m., at the office of plaintiff’s counsel in Brooklyn, New York (defendant’s exhibit Q in support of cross motion).

Follow-up EUO of plaintiff on December 8, 2017

By a letter dated October 31, 2017, allegedly mailed by first-class mail to plaintiff’s counsel and by certified mail to plaintiff, defendant’s counsel scheduled a final date for the EUO on December 8, 2017 at 10:00 a.m., at the office of defendant’s counsel in Melville, New York (see defendant’s exhibit R in support of cross motion, scheduling letter). According to defendant’s counsel, plaintiff failed to appear at the EUO on December 8, 2017, and defendant’s counsel placed a statement on the record at 11:00 a.m. accordingly (see defendant’s exhibit S, affidavit of Brian E. Kaufman ¶¶ 5-7, tr 4-5).

Follow-up EUO of plaintiff on February 14, 2018

By a letter dated December 12, 2017, allegedly mailed by first-class mail to plaintiff’s [*4]counsel and to plaintiff, defendant’s counsel scheduled a final date for the EUO on February 14, 2018 at 11:00 a.m., at the office of defendant’s counsel in Melville, New York (see defendant’s exhibit T in support of cross motion, scheduling letter).

In response, by a letter dated December 18, 2017, plaintiff’s counsel contended that plaintiff “has fulfilled his obligations to cooperate with your demand for an EUO” (see defendant’s exhibit II in support of cross motion). According to its counsel, plaintiff previously appeared for an EUO on December 8, 2017 at the office of plaintiff’s counsel in Brooklyn, New York, notwithstanding that defendant’s counsel had requested that the EUO be held at the office of defendant’s counsel in Melville, New York. The letter stated, in relevant part, “in spite of our repeated communications that your offices in Suffolk County are not convenient for our client . . . your letter[ ] dated December 12, 2017[ ] again purport [sic] to schedule an EUO at your offices in Suffolk County” (id.).

By a letter dated December 20, 2017 addressed to plaintiff’s counsel, defendant’s counsel wrote, in pertinent part:

“As you were advised in our prior correspondence dated December 11, 2017, Nationwide had agreed to the time change for the examination under oath which you had requested. Additionally, as you had requested a Brooklyn location for the examination under oath, we were in the process of securing a court reporting agency in Brooklyn, New York. As you may recall, you refused to produce your client unless it was at your office.

Once again, you are reminded that the language of the Regulation states that the examination under oath ‘shall be held at a place and time reasonably convenient to the Applicant’ (emphasis added). Regulations do not permit your office to dictate the exact location where the examination under oath is to proceed. As you are further aware, your client maintains a service of process address in Bayport, New York. To this extent, we advised that we would secure a court reporting location in Suffolk County, New York. The services at issue were rendered in Elmont, New York. To this extent, Nationwide had advised that the examination under oath could proceed at a Nassau County or Queens County, New York location. We further advised that in the event you would like a Brooklyn location, which was your request, Nationwide would agree to hold the examination at a court reporting agency in Brooklyn, New York. However, you are insisting that the only way the examination under oath of your client could proceed is if it is at your office. Nationwide is of the position that this is an unacceptable arrangement. The regulation does not permit you to dictate the exact location and only requires the location to be ‘reasonably convenient’. . . .Your office is not central to mass transit and on prior occasions had no available parking for attorneys and the court reporter appearing at your office”

(defendant’s exhibit JJ in support of cross motion).

By a letter dated January 12, 2018, plaintiff’s counsel stated, “Your client’s opinion that a court reporting agency would have been ‘reasonably convenient’ to our client is not determinative. As we have written previously, you are not in a position to determine what locations are convenient to our client. Your office has conducted EUOs in our offices before, and no issues have ever arisen which would justify your refusal of our client’s reasonable request to conduct the EUO in our office” (defendant’s exhibit II in support of cross motion).

By a letter dated January 26, 2018, allegedly mailed by first-class mail to plaintiff’s counsel and to plaintiff, plaintiff was informed that defendant had new counsel, and that the location the EUO on February 14, 2018 at 11:00 a.m. had been changed to the office of defendant’s new counsel located at 105 Maxess Road in Melville, New York (see defendant’s exhibit U in support of cross motion, scheduling letter).

By a letter dated February 6, 2018 addressed to defendant’s counsel, plaintiff’s counsel acknowledged receipt of the scheduling letter and responded,

“However, as we stated in our December 18, 2017 [ ] letter addressed to your former law firm, a copy of which is enclosed, we have already produced our client for the same EUO on December 8, 2017. At that time, Nationwide or its representative failed to appear.

In light of the above, our client has fulfilled his obligations to cooperate with Nationwide’s demand for an EUO”

(defendant’s exhibit II in support of cross motion).

According to defendant’s new counsel, plaintiff failed to appear at the EUO on February 14, 2018, and defendant’s counsel placed a statement on the record accordingly at 11:50 a.m. (see defendant’s exhibit V, affidavit of Brian E. Kaufman ¶¶ 5-7, tr 4).

Follow-up EUO of plaintiff on March 15, 2018

By a letter dated February 15, 2018, allegedly mailed by first-class mail to plaintiff’s counsel and to plaintiff, defendant scheduled a final date for the EUO on March 15, 2018 at 11:00 a.m., at the office of defendant’s counsel in Melville, New York (see defendant’s exhibit W in support of cross motion, scheduling letter). According to defendant’s counsel, plaintiff failed to appear at the EUO on March 15, 2018, and defendant’s counsel placed a statement on the record accordingly at 12:00 p.m. (see defendant’s exhibit X in support of cross motion, affidavit of Brian E. Kaufman ¶¶ 5-7, tr 4).

Denial of Claim Forms

On October 27, 2017, defendant allegedly mailed to plaintiff a denial of claim form, denying the claims for bill #9 (for services rendered to Dorvllier on 8/24 and 8/31/17), on the ground that Dorvllier failed to appear for IMEs on September 13, 2017 and September 27, 2017 (see defendant’s exhibit M in support of cross motion, NF-10 form and affidavit of Douglas Taylor ¶ 12).

On March 28, 2018, defendant allegedly mailed denial of claim forms to plaintiff, denying all the services rendered to Figueroa, on the ground that plaintiff failed to appear for EUOs “scheduled for 10/30/2017, 12/08/2017, 02/14/2018 and 03/15/2018” (see defendant’s exhibits E-J in support of cross motion, NF-10 forms, Explanations of Review, and affidavits of Douglas Taylor ¶ 12).

On March 28, 2018, defendant also allegedly mailed plaintiff denial of claim forms, denying all bills for the services rendered to Dorvllier (except bill #9, which was previously denied), on the ground that plaintiff failed to appear for EUOs “scheduled for 10/30/2017, 12/08/2017, 02/14/2018 and 03/15/2018” (see defendant’s exhibits K-L, N-O in support of cross motion, NF-10 forms, Explanations of Review, and affidavits of Douglas Taylor ¶ 12).

The chart below summarizes the claims, EUOs, IMEs and denials at issue:

The Instant Action

On December 29, 2017, plaintiff commenced this action to recover unpaid first-party no-fault benefits for the services rendered to Figueroa and Dorvllier, plus interest and attorneys’ fees (see plaintiff’s exhibit A in support of motion, summons and complaint). Defendant allegedly answered the complaint on February 7, 2018 (see defendant’s exhibit B in support of cross motion, affidavit of service of answer).

DISCUSSION

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

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

Defendant argues that, with the exception of bill # 9, it is entitled to summary judgment dismissing the action on the ground that plaintiff failed to appear for EUOs. As to bill # 9, defendant contends those claims should be dismissed because Dorvllier failed to appear for IMEs.

A. EUO no-show defense

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

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

(Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 63 Misc 3d 152[A], 2019 NY Slip Op 50760[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal citations omitted]). Defendant must demonstrate “that its initial and follow-up requests for verification were timely mailed” (Urban Radiology, P.C. v Clarendon Natl. Ins. Co., 31 Misc 3d 132[A], 2011 NY Slip Op 50601[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

1. EUO on October 30, 2017

It appears that the EUO scheduled on October 30, 2017 was mutually rescheduled to December 8, 2017, and thus would not be deemed a failure to appear (Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In any event, defendant did not submit any evidence that plaintiff failed to appear that day.

2. EUO on December 8, 2017

Defendant established that the letter dated October 31, 2017, which scheduled the EUO on December 8, 2017, was mailed to plaintiff and its counsel, among others, on the same date that the letter was created and dated, by submitting the affidavit of Allan S. Hollander (defendant’s exhibit Y, affidavit of Alan S. Hollander ¶¶ 6, 18-26), who attested to the mailing in accordance with a standard office procedure (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Royal Med. Supply, Inc. v Nationwide Gen. Ins. Co., 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

As a threshold matter, the parties disagree as to whether the EUO should have been conducted at the office of defendant’s counsel in Melville, New York, or at the office of plaintiff’s counsel in Brooklyn, New York. Plaintiff asserts that, contrary to the contentions of defendant’s counsel in its December 20, 2017 letter, a Google map indicates that the area around the office of plaintiff’s counsel is, in fact, one block from mass transit (i.e., the D, N, and R subway trains) and across the street from a large parking lot (affirmation of Zachary Albright Whiting, Esq. in opposition to cross motion ¶ 41; Whiting affirmation in opposition, exhibit A).

11 NYCRR 65-3.5 (e) states, in relevant part, “All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant. . . .” First, the regulations do not grant the applicant (or its counsel) the right to designate the location of the EUO. Thus, so long as the insurer designated a location that is “reasonably convenient” to the applicant, then the EUO must go forward at the location that the insurer designated.

Unfortunately, there is a dearth of precedent on the issue of whether a designated EUO or IME location is “reasonably convenient.” The Appellate Term, Second Department has held, [*5]“there is nothing in the No-Fault regulations prohibiting an insurer from scheduling an EUO outside the county in which the applicant is located; it only need be held at a place and time reasonably convenient to the applicant” (Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90, 93 [App Term, 2d Dept, 2d, 11th & 13th Dists 2012]). One court found that an EUO scheduled “approximately 30 miles from plaintiff’s home” was “not an unreasonable distance” (Nordstrom v Nationwide Mut. Fire Ins. Co., 2014 NY Slip Op 32914[U], *6 [Sup Ct, Suffolk County 2014]).

Here, the court finds that the scheduling letter designated an EUO location that was, on its face, “reasonably convenient” under Nordstrom. As defendant’s counsel pointed out in the dueling correspondence between counsel for plaintiff and defendant, the NF-3 forms indicated that the place of service for all of the claims at issue was “764 Elmont Road, Elmont NY 11003” (see defendant’s exhibits E-O, NF-3 Forms). The court takes judicial notice that, according to Google Maps, the distance from the location where plaintiff provided services to the assignors to the location at 445 Broadhollow Road in Melville, New York for the EUO on December 8, 2017 is about 25 miles.

Plaintiff fails to raise a triable issue of fact as to whether the location in Melville, New York was not “reasonably convenient” to plaintiff. That plaintiff preferred a location that was more convenient than the location designated by the insurer does not render the designated location not “reasonably convenient.”

Defendant established that plaintiff failed to appear at the EUO in Melville, New York on December 8, 2017, by submission of a certified transcript from the EUO and the affidavit of Brian Kaufman, an attorney who was present at the EUO at the scheduled time and would have conducted the EUO if plaintiff had appeared (Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

3. Follow-up EUO on February 14, 2018

Defendant established that the letter dated December 12, 2017, which scheduled the plaintiff’s EUO on February 14, 2018, and the letter dated January 26, 2018, which changed the EUO location to the office of defendant’s new counsel, were mailed to plaintiff and its counsel, among others, on the same date that the letters were created and dated, by submitting the affidavit of Allan S. Hollander (Hollander aff ¶¶ 8-9, 18-26), who attested to the mailings in accordance with a standard office procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Royal Med. Supply, Inc., 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U]). Moreover, plaintiff’s counsel acknowledged receipt of these scheduling letters in its own letters dated December 18, 2017 and February 6, 2018, which again objected to the EUO location in Melville, New York and asserted that plaintiff had already fulfilled its obligations by purportedly appearing previously for an EUO at the office of plaintiff’s counsel.

As discussed above, the scheduling letters designated EUO locations that were, on their face, “reasonably convenient” (see Nordstrom, 2014 NY Slip Op 32914[U]). The court takes judicial notice that, according to Google Maps, the distance from the location where the plaintiff provided services to the assignors to the EUO location at the office of defendant’s new counsel at 105 Maxess Road in Melville, New York is about 25 miles as well. Plaintiff failed to raise a triable issue of fact as to whether the location was not “reasonably convenient.”

Defendant established that plaintiff’s assignor failed to appear at the EUO in Melville, New York on February 14, 2018, by submission of a certified transcript from the EUO and the affidavit of Brian Kaufman, an attorney who was present at the EUO at the scheduled time and would have conducted the EUO if plaintiff had appeared (Active Chiropractic, P.C., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]).

4. Follow-up EUO on March 15, 2018

Defendant established that the letter dated February 15, 2018, which scheduled the plaintiff’s EUO on March 15, 2018, was mailed to plaintiff and its counsel, among others, on the same date that the letter was created and dated, by submitting the affidavit of Allan S. Hollander (defendant’s exhibit Y, affidavit of Alan S. Hollander ¶¶ 11, 18-26), who attested to the mailing in accordance with a standard office procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Royal Med. Supply, Inc., 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U]). The record does not contain any letter from plaintiff’s counsel objecting to the location of the EUO scheduled on March 15, 2018.

Defendant established that plaintiff’s assignor failed to appear at the EUO in Melville, New York on March 15, 2018, by submission of a certified transcript from the EUO and the affidavit of Brian Kaufman, an attorney who was present at the EUO at the scheduled time and would have conducted the EUO if plaintiff had appeared (Active Chiropractic, P.C., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]).

In sum, defendant demonstrated that plaintiff failed to appear at EUOs scheduled on December 8, 2017, February 14, 2018, and March 15, 2018. Contrary to plaintiff’s argument, “there is no requirement to establish willfulness” (Goldstar Equip., Inc. v Mercury Cas. Co., 59 Misc 3d 138[A], 2018 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “The doctrine of willfulness . . . applies in the context of liability policies, and has no application in the no-fault context” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 561 [1st Dept 2011]).

5. Timeliness of the Denial of Claim Forms

“[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]).

In order to toll the 30-day deadline, an initial EUO request must be sent within 15 business days of receipt of the completed verification forms (see 11 NYCRR 65-3.5 [b]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and no later than 30 calendar days after receipt of the bill (Tsatskis v State Farm Fire & Cas. Co., 36 Misc 3d 129[A], 2012 NY Slip Op 51268[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Follow-up EUO requests must be sent within 10 calendar days of the missed EUO (see 11 NYCRR 65-3.6 [b]; see Avicenna Medical Arts, PLLC v Unitrin Advantage Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50382[U] [App Term 2d, 11th & 13th Dists 2015]).

“[O]nce defendant served plaintiff with requests for EUOs, the resulting toll of defendant’s time to pay or deny plaintiff’s claims applied to each claim form which was submitted by the same plaintiff for the same assignor subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs”

(ARCO Med. New York, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U], *3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 150[A], 2018 NY Slip Op 51759[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Here, to establish proof of mailing of the timely denial of claim forms, defendant submitted the affidavits of two claims specialists, Jaime Coe and Marie Green, and affidavits from Douglas Taylor, a Vice President employed by Auto Injury Solutions, Inc. (AIS), an authorized agent for receiving bills and/or correspondence for defendant, and the business records of AIS. Coe processed the claims pertaining to Figueroa’s accident on July 14, 2017; Green processed the claims pertaining to Dorvllier’s accident on May 1, 2017 (defendant’s exhibit C in support of cross motion, Coe aff ¶ 22; defendant’s exhibit D in support of cross motion, Green aff ¶ 26).

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 and citations omitted]). “‘The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'” (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]). “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], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [citation omitted]). “However, for the presumption to arise, 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]).

a. Bill # 7

As to bill #7 (for services rendered to Dorvllier on 8/1/2017), the court agrees with plaintiff that defendant failed to establish that the denial was timely mailed. According to defendant, bill #7 was received on August 21, 2017, and the denial of claim form was issued on March 28, 2018, more than 30 days later (see defendant’s exhibit K in support of cross motion, Taylor aff ¶ 12). The court agrees with plaintiff that defendant failed to establish that the 30-day period had been tolled. As discussed above, defendant established that the first EUO scheduling letter was mailed October 4, 2017 (defendant’s exhibit Y in support of cross motion, affirmation of Alan S. Hollander, Esq. ¶ 5), which was more than 30 days after bill #7 was allegedly received, and therefore the denial is untimely (Tsatskis, 36 Misc 3d 129[A], 2012 NY Slip Op 51268[U]).

Although a claims specialist indicated on a chart that delay letters were sent on August 25, 2017 and September 25, 2017 (Green aff ¶ 30), neither the claims specialist nor AIS’s Vice President stated that any verification letters or delay letters were sent on those dates, and [*6]defendant did not submit copies of those letters (Green aff ¶ 18; see defendant’s exhibit K in support of cross motion, Taylor aff ¶ 12). In any event, “it is well settled that an insurer’s delay letters, which request no verification, do not toll the statutory time period within which a claim must be paid or denied” (Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Summary judgment dismissing the claims as to bill #7 based on the EUO no-show defense is therefore denied.

b. Bills # 1-6

With respect to bills #1-6, defendant established mailing of the denial of claim forms on March 28, 2018. Based on the affidavit of defendant’s claims specialist Jaime Coe, who prepared the denial of claim forms for bills #1-6, defendant established that the denial of claim forms were created on March 28, 2018, and AIS was notified electronically to generate and mail the forms, in accordance with claims processing procedures (Coe aff ¶¶ 17-19, 28, 30, 32, 34, 36, 38). Based on the AIS business records and the detailed affidavits of the AIS Vice President, defendant established that AIS printed and mailed the denial of claim forms on March 28, 2018, or the next business day (defendant’s exhibits F-J in support of cross motion, Taylor affs ¶¶ 6, 12-13),^[FN3] in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Compas Med., P.C. v Nationwide Ins., 46 Misc 3d 131[A], 2014 NY Slip Op 51826[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Defendant established that the mailing of the denial of claim forms on March 28, 2018 was timely. As discussed above, defendant established that the initial EUO scheduling letter had been timely mailed on October 4, 2017, which was either within 15 days of, or actually prior to, receipt of plaintiff’s NF-3 forms with respect to bills #2-6 (see 11 NYCRR 65-3.5 [b]). The follow-up EUO scheduling letters had been timely mailed within 10 calendar days of each missed EUO date (11 NYCRR 65-3.6 [b]).

With respect to bill # 1, the initial EUO scheduling letter was not mailed within 15 business days of the receipt of the NF-3 Forms, but rather was mailed five days beyond the deadline. However, an insurer’s mailing of an initial verification request beyond the 15 business day deadline does not render the request invalid but rather reduces the 30 days for it to pay or deny the claim once it receives the verification (11 NYCRR 65-3.8 [l]; see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300, [2007]; Stracar Med. Servs., 61 Misc 3d 150[A], 2018 NY Slip Op 51759[U]).

As discussed above, the denial of claim forms were mailed within 13 days of the missed EUO scheduled on March 15, 2018. Even when the 30-day determination period to pay or deny the claims for bill # 1 is reduced by five days due to the late initial EUO scheduling letter for that bill, the denial of claim form was still therefore timely mailed as to bill # 1.

c. Bills #8 and #10-11

With respect to bills #8 and #10-11, defendant established mailing of the denial of claim forms on March 28, 2018. Based on the affidavit of defendant’s claims specialist Marie Green, who prepared the denial of claim forms for those bills, defendant established that the denial of claim forms were created on March 28, 2018, and AIS was notified electronically to generate and mail the forms, in accordance with claims processing procedures (Green aff ¶¶ 19-22, 30, 35, 37). Based on the AIS business records and the detailed affidavits of the AIS Vice President, defendant established that AIS printed and mailed the denial of claim forms on March 28, 2018, or the next business day (defendant’s exhibits L, N-O in support of cross motion, Taylor affs ¶¶ 6, 12-13),^[FN4] in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Compas Med., P.C., 46 Misc 3d 131[A], 2014 NY Slip Op 51826[U]).

Defendant established that the mailing of the denial of claim forms on March 28, 2018 was timely. As discussed above, defendant established that the initial EUO scheduling letter had been timely mailed on October 4, 2017, which was either within 15 days of, or actually prior to, receipt of plaintiff’s NF-3 forms with respect to bills # 10-11 (see 11 NYCRR 65-3.5 [b]). The follow-up EUO scheduling letters had been timely mailed within 10 calendar days of each missed EUO date (11 NYCRR 65-3.6 [b]).

Like bill # 1, the initial EUO scheduling letter was not mailed within 15 business days of receipt of bill #8, but rather was mailed five days beyond the deadline. Like bill # 1, even when the 30-day determination period to pay or deny the claims for bill #8 is reduced by five days due to the late initial EUO scheduling letter for those bills (see 11 NYCRR 65-3.8 [l]; see Nyack Hosp., 8 NY3d at 300; Stracar Med. Servs., 61 Misc 3d 150[A], 2018 NY Slip Op 51759[U]), the denial of claim form was still timely mailed as to bill # 8. Like bill #1, the denial of claim form was mailed within 13 days of the missed EUO scheduled on March 15, 2018.

6. Whether the denial of claim forms are defective

Notwithstanding the above, plaintiff argues that the denial of claim forms are fatally defective. Plaintiff contends that they erroneously stated the claims were denied because plaintiff failed to appear for EUOs “scheduled for 10/30/2017, 12/08/2017, 02/14/2018 and 03/15/2018,” insofar as defendant failed to establish on its cross motion for summary judgment that plaintiff failed to appear at the EUO on October 30, 2017, citing Unitrin Advantage Insurance Company v All of NY, Inc. (158 AD3d 449, 449-50 [1st Dept 2018]).

There is a split between the First and Second Judicial Departments on the issue of whether a denial of claim form must specifically set forth the dates of the missed EUOs. In Unitrin Advantage Insurance Company, the Appellate Division, First Department ruled that, because the NF-10 form stated a missed EUO only on July 29, 2013, the denial of claim form did not sufficiently apprise the provider as to a missed EUO on August 12, 2013 (158 AD3d at 449-450). And yet, the Appellate Term, Second Department has consistently held that a denial of [*7]claim form based upon the failure to appear for scheduled EUOs “need not set forth the dates of the EUOs for which the plaintiff had failed to appear” (Aries Chiropractic, P.C. v Ameriprise Ins. Co., 66 Misc 3d 130[A], 2019 NY Slip Op 52064[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; JYW Med., P.C. v IDS Prop. Ins. Co., 58 Misc 3d 134[A], 2017 NY Slip Op 51800[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Plaintiff contends that this court must follow the Appellate Division, First Department instead of the Appellate Term, Second Department, because the Appellate Division, Second Department has not pronounced a contrary rule (see Fortune Med., P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 32, 34 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

Even assuming, for the sake of argument, that the denial of claim form must set forth the dates of the missed EUOs, plaintiff’s reliance upon Unitrin Advantage Insurance Company is misplaced. Unlike that case, defendant here is not relying upon a missed EUO date that was not set forth in the denial of claim forms. There is no surprise to the provider as to which EUO dates were missed. Defendant’s failure to substantiate that an EUO date was missed does not retroactively render a denial of claim form defective. Defendant merely failed to prove what it had set out to prove as to that EUO date. Following plaintiff’s logic, if a denial of claim form sets forth four missed EUO dates, and an insurer is unable to prove an applicant’s failure to appear at one of the four dates, then the insurer would not be entitled to summary judgment dismissing the claims, even in the face of overwhelming proof that the applicant failed to appear at three other scheduled EUOs. That is an absurd result.

Therefore, defendant is entitled to summary judgment dismissing plaintiffs’ claims as to bills # 1-6, 8, and 10-11, based on plaintiff’s failure to appear for EUOs scheduled on December 8, 2017, February 14, 2018, and March 15, 2018 in Melville, New York.

B. IME no-show defense

“The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]). “Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs ‘when, and as often as, the [insurer] may reasonably require'” (id. at 722, citing 11 NYCRR 65-1.1).

To meet its prima facie burden, the defendant-insurer must establish that it properly mailed scheduling letters for the IMEs to plaintiff’s assignor; that the IME was timely scheduled; that the assignor failed to appear at the initial IME and the rescheduled follow-up IME; and that defendant timely denied the claim on that ground (Motionpro Physical Therapy v Hereford Ins. Co., 58 Misc 3d 159[A], 2018 NY Slip Op 50251[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Longevity Med. Supply, Inc. v Citiwide Auto Leasing, 58 Misc 3d 142[A], 2017 NY Slip Op 51880[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Choice Health Chiropractic, P.C. v American Tr. Ins. Co., 58 Misc 3d 155[A], 2018 NY Slip Op 50185[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

1. Proof of Mailing of IME scheduling letters

Here, to establish the timely and proper mailing of the IME scheduling letters, defendant submitted the affidavit of Jean Rony Pressoir, a Coordinating Supervisor for D & D Associates, which purportedly mailed the IME scheduling letters (see defendant’s exhibit Z in support of cross motion). However, the court agrees with plaintiff that the affidavit is insufficient to establish mailing.

To the extent that Pressoir claimed to have personal knowledge of the actual mailing of [*8]the IME scheduling letters, her affidavit lacked any factual basis to support an inference of personal knowledge of actual mailing (see A.B. Med. Services PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]). Pressoir did not claim that she had first-hand knowledge of the mailing either because she herself had mailed the IME scheduling letters or because she had seen someone else mailing the IME scheduling letters (see e.g. Lenox Hill Radiology, PC v Tri-State Consumer Ins. Co., 31 Misc 3d 13, 14 [App Term, 1st Dept 2010]). Indeed, her statements about the mailing of each notice are written in the passive voice (see Pressoir aff ¶¶ 11-12).

To the extent that proof of mailing is based on a standard office practice or procedure, Pressoir established that she had knowledge of the office procedure, but her description of the office procedure did not adequately establish when the IME scheduling letters would have been mailed in accordance with the procedure. To the extent that Pressoir’s knowledge of the dates of mailing of the IME scheduling letters is based on a review of electronic business records (see Pressoir aff ¶ 4),

“it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Accordingly, ‘[e]vidence of the contents of business records is admissible only where the records themselves are introduced.’ ‘Without their introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay'”

(Bank of New York Mellon v Gordon, 171 AD3d 197, 205-06 [2d Dept 2019] [internal citations omitted]). Here, defendant did not submit any of the electronic business records that Pressoir purportedly reviewed.

2. Proof of the plaintiff’s assignor’s failure to appear at IMEs

Even assuming that defendant established proof of mailing of the IME scheduling letters, defendant did not establish that Dorvllier failed to appear at the scheduled IMEs. The letters from John Johnson, Jr., a chiropractor, are insufficient evidence to establish that Dorvllier failed to appear because they are not properly sworn (see Saunders v Mian, 176 AD3d 994, 995 [2d Dept 2019]; CPLR 2106). Moreover, the letter dated September 13, 2017 incorrectly stated that the time of the IME was at 9:00 a.m., whereas the IME had been scheduled for 1 p.m. (compare defendant’s exhibit EE in support of cross motion with defendant’s exhibit DD in support of cross motion). Neither does Johnson’s affidavit constitute sufficient evidence of the failure to appear. To the extent that Johnson’s knowledge is based “from a review of the office’s computerized system for the dates of September 13, 2017 and September 27, 2018 [sic]” (defendant’s exhibit HH in support of cross motion, Johnson aff ¶ 2), defendant did not submit the business records that Johnson reviewed (see Bank of New York Mellon, 171 AD3d at 205-06).

The affidavit also states, “At no time did JASON DORVILIER appear” on September 13 and 27, 2017 for his scheduled IMEs (Johnson aff ¶¶ 5, 9). However, the court agrees with plaintiff’s counsel that the affidavit, which purports to be based on personal knowledge, is conclusory (see Bright Med. Supply Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). The affidavit does not state that no one appeared at all before Johnson during the times when Dorvllier’s IMEs were scheduled. Because Johnson swore that he was present in the office at the time each IME was to be conducted, he would have known, by the use of his own senses, [*9]whether a person appeared in front of him at the time the IMEs were scheduled. However, the affidavit is conclusory as to the basis for Johnson’s knowledge of the identity of Jason Dorvllier. There is nothing in the record to indicate that Johnson had an existing relationship with Dorvllier or had previously met Dorvllier so as to be able to recognize him. If Johnson had not previously met Dorvllier, then his knowledge of Dorvllier’s identity would not be based on personal knowledge.

3. Timeliness of the Denial of Claim Form

With respect to bill #9, defendant established proof of mailing of the denial of claim form on October 27, 2017. Based on the affidavit of defendant’s claims specialist Marie Green, who prepared the denial of claim form for bill #9, defendant established that the denial of claim form was created on October 27, 2017, and AIS was notified electronically to generate and mail the form, in accordance with claims processing procedures (see defendant’s exhibit D in support of cross motion, Green aff ¶¶ 19-22, 32). Based on the AIS business records and the detailed affidavit of the AIS Vice President, defendant established that AIS printed and mailed the denial of claim form on October 27, 2017, or the next business day (defendant’s exhibit M in support of cross motion, Taylor aff ¶¶ 6, 12-13), in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Compas Med., P.C., 46 Misc 3d 131[A], 2014 NY Slip Op 51826[U]).

According to defendant, it received bill #9 on September 21, 2017,^[FN5] but the denial of claim was mailed on October 27, 2017, more than 30 days later. The issue presented is whether the 30-day determination was tolled.

Defendant failed to establish that the 30-day determination period was tolled by the request for IMEs. First, as discussed above, defendant failed to establish when the IME scheduling letters had been mailed. Second, the IME scheduling letters were purportedly mailed to plaintiff’s assignor Dorvllier before defendant received bill # 9. Assuming, for the sake of argument, that the IME scheduling letters were properly mailed, the issue presented is whether a pre-claim IME request tolled the 30-day period to pay or deny a claim. The Appellate Term, Second Department has issued conflicting decisions on this issue.

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

In Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc. (56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), the Appellate Term rejected the argument that pre-claim EUO scheduling letters did not toll the 30-day period for an insurer to pay or deny a claim. There, the defendant mailed a scheduling letter to plaintiff’s assignor on January 4, 2011, and the defendant received the plaintiff’s bill on January 21, 2011 (id. at *1). The Appellate Term ruled, “defendant’s time to pay or deny these claims, which [*10]defendant received on January 21, 2011, was tolled” (id.).

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

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

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

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

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

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

Notwithstanding the above, defendant did establish that the 30-day period was tolled as to bill # 9 due to the EUO scheduling letter mailed on October 4, 2017, scheduling an EUO on October 30, 2017, which was mailed within 15 business days of defendant’s receipt of bill # 9 on September 21, 2017. Thus, at the time when defendant mailed the denial of claim form on October 27, 2017, a toll was still in effect.

However, in light of the court’s determination that defendant neither proved mailing of the IME scheduling letters nor Dorvllier’s failure to appear at the IMEs, summary judgment dismissing the claims for bill #9 (for services rendered to Dorvllier on 8/24 and 8/31/17) based on an IME no-show defense is denied.

II. Plaintiff’s Motion for Summary Judgment

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law”

(Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Once plaintiff meets its prima facie burden, the burden shifts to defendant “to show that it has a meritorious defense and that such a defense is not precluded” (Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [internal citation omitted]).

Here, plaintiff submitted the affidavit of a billing representative, Yana Mironovich, to establish that it timely mailed all the bills at issue to defendant in accordance with a standard office practice or procedure (see plaintiff’s exhibit C in support of motion, Mironovich aff). However, this affidavit is insufficient. According to Mironovich, employees of Billing Services of NY, Inc. created and mailed the bills to defendant (see Mironovich aff ¶¶ 21-32). However, Mironovich does not state that she is either the owner or an employee of Billing Services of NY, Inc. At best, she states, “I am the billing representative of plaintiff” and that the procedures were “done in the ordinary course of business of my company” (see id. ¶¶ 1, 13). Thus, the affidavit [*11]did not adequately establish that Mironovich has any knowledge of the office practice or procedure of Billing Services of NY, Inc. (see Healthy Way Acupuncture, P.C. v Farmington Cas. Co., 49 Misc 3d 141[A], 2015 NY Slip Op 51595[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Nevertheless, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s cross motion papers, which admitted receipt of plaintiff’s bills (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]).

As discussed above, the court granted defendant’s cross motion for summary judgment in part, to the extent of dismissing claims for bills #1-6, 8, and 10-11, based on the failure of plaintiff to appear for EUOs scheduled on December 8, 2017, February 14, 2018, and March 15, 2018. Thus, the only remaining claims at issue in plaintiff’s motion for summary judgment in its favor are bills # 7 and #9.

As discussed above, the denial of claim form as to bill #7 was untimely, because it was purportedly mailed more than 30 days after bill #7 was allegedly received. Therefore, plaintiff is entitled to summary judgment in its favor against defendant as to bill # 7, in the amount of $48.89.

As to bill # 9, as discussed above, defendant failed to establish that it issued a timely denial and the evidence was insufficient to establish that plaintiff’s assignor Dorvllier failed to appear for IMEs scheduled on September 13 and 27, 2017. Therefore, plaintiff is entitled to summary judgment in its favor as to bill # 9, in the amount of $97.78.

Plaintiff is also entitled to prejudgment interest on bills #7 and # 9 at the rate of 2% per month from December 29, 2017, the date of the commencement of the action, because plaintiff did not commence a lawsuit within 30 days after those bills became overdue (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 205 [2d Dept 2009]).

Plaintiff is also entitled to attorneys’ fees (11 NYCRR § 65-4.6 [d]). The award of attorneys’ fees is calculated as 20% of the aggregate amount of bills #7 and #9, i.e. $146.67 ($48.89+$97.78) plus interest, subject to a maximum of $1,360 (id.; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]).

CONCLUSION

Upon the foregoing cited papers, it is hereby

ORDERED that plaintiff’s motion for summary judgment is GRANTED IN PART TO THE EXTENT that plaintiff is awarded summary judgment in its favor against defendant on a claim for a date of service on August 1, 2017 and on a claim for dates of service on August 24 and 31, 2017, for services rendered to Jason Dorvllier, and the Clerk of the Court is directed to enter judgment in plaintiff’s favor against defendant Nationwide Insurance Company of New York in the amount of $146.67, with prejudgment interest at the rate of 2% per month from December 29, 2017, plus attorneys’ fees to be calculated by the Clerk, with costs and disbursements to plaintiff as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further

ORDERED that the plaintiff’s motion for summary judgment is otherwise denied; and it is further

ORDERED that defendant’s cross motion for summary judgment is GRANTED IN [*12]PART TO THE EXTENT that so much of the complaint that seeks first-party no-fault benefits for claims for the dates of service on August 10, 11, 17, 18, 23, 24, 25, 29, 31, 2017 and September 1, 5, 7, 8, 12, 14, 15, 20, 21, and 26, 2017 for services rendered to Selena Figueroa, and claims for the dates of service on August 15, 16, and 23, 2017 and on September 13, 18, 25, 26, and 27, 2017 for services rendered to Jason Dorvllier, are severed and dismissed; and it is further

ORDERED that defendant’s cross motion for summary judgment dismissing the complaint is otherwise denied; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly

This constitutes the decision and order of the court.

Dated: June 1, 2020
New York, New York
ENTER:
_______________/s_________________
RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1:The record contains several spellings of this assignor’s last name. On the NF-2 form and Assignment of Benefits form, the assignor printed his last name by hand as “Dorvilier” (see defendant’s exhibit AA in support of cross motion; see plaintiff’s exhibit B in support of motion). This assignor’s counsel referred to him as “Jason Dorville” (see defendant’s exhibit AA in support of cross motion). The NF-3 forms and summons and complaint spell his name as “Dorvllier” (see plaintiff’s exhibits A-B in support of motion).

Footnote 2:Defendant submitted two affidavits from John Johnson, Jr. under exhibit HH. One was sworn to on October 10, 2018, and the other was sworn to on October 12, 2018. Otherwise, both appear substantively identical.

Footnote 3:According to AIS business records, the denial of claims forms were sent around 2 p.m. on March 28, 2018 (see defendant’s exhibits F-J in support of cross motion). According to Taylor, the letters to be mailed were picked up each business day by the United States Postal Service (see id., Taylor affs ¶ 13). Assuming, for the sake of argument, that the letters were not picked up on March 28, 2018, they would have therefore been picked up the next business day. Whether the letters were mailed on March 28 or March 29, 2018 is not a material issue of fact, given that the last EUO was scheduled on March 15, 2018.

Footnote 4:According to AIS business records, the denial of claims forms were sent around 2 p.m. on March 28, 2018 (see defendant’s exhibits L, N-O in support of cross motion). According to Taylor, the letters to be mailed were picked up each business day by the United States Postal Service (see id., Taylor affs ¶ 13). Assuming, for the sake of argument, that the letters were not picked up on March 28, 2018, they would have therefore been picked up the next business day. Whether the letters were mailed on March 28 or March 29, 2018 is not a material issue of fact, given that the last EUO was scheduled on March 15, 2018.

Footnote 5:Plaintiff did not dispute nor object to defendant’s proof that the bill #9 was received on September 21, 2017.

CV-702750/18

Counsel for Plaintiff: Law Offices of Olga Skyut

Counsel for Defendant: McDonnell, Adels & Klestzick, PLLC

In this action for the payment of no-fault benefits, defendant seeks an order pursuant to 22 NYCRR 2018.17 striking the Notice of Trial on grounds that, inter alia, plaintiff did not provide the information requested in its Demand for Verified Interrogatories (interrogatories) and failed to appear for a deposition. Defendant also seeks an order striking the complaint for failure to provide the discovery requested and/or an order compelling plaintiff to provide the foregoing discovery. Plaintiff opposes the instant motion asserting that it has responded to the foregoing demand.

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

The instant action is for the payment of medical benefits pursuant to Article 51 of the New York State Insurance Law. It is alleged that secondary to a motor vehicle accident on August 26, 2017, plaintiff provided medical services to MARTIN PATERSON, who assigned his no-fault benefits under the Insurance Law and defendant’s policy to plaintiff. Plaintiff, upon presenting proof of the foregoing services, requested payment totaling $4,000. Defendant has failed to pay the foregoing amount and, thus, plaintiff seeks a judgment in the amount of $4,000.

Motion to Strike the Notice of Trial

Defendant’s motion seeking to strike the Notice of Trial is granted insofar as the instant motion is timely and the Notice of Trial misrepresents that discovery is complete.

22 NYCRR 208.17, inter alia, promulgates the circumstances under which the Civil Court can order vacatur of a Notice of Trial. 22 NYCRR 208.17(c), states that

[w]ithin 20 days after service of such notice of trial, any party may move to strike the action from the calendar or to keep it from being placed thereon. The affidavit in support of the application must specify the reason the action is not entitled to be on the calendar.

Additionally, 22 NYCRR 208.17(d) states that

[a]fter any action has been placed on the trial calendar pursuant to this rule, no pretrial examination or other preliminary proceedings may be had, except that if some unusual or unanticipated conditions subsequently develop which make it necessary that further pretrial examination or further preliminary proceedings be had, and if without them the moving party would be unduly prejudiced, the court may make an order granting permission to conduct such examination or proceedings and prescribing the time therefor. Such an order may be made only upon motion on notice showing in detail, by affidavit, the facts claimed to entitle the moving party to relief under this subdivision.

A review of the foregoing language evinces that it is virtually identical to the rule applicable to cases venued in the Supreme Court and promulgated by 22 NYCRR 202.21. Indeed, when discussing the substance of 202.17, the Appellate Term routinely refers to and applies Appellate Division case law related to 22 NYCRR 202.21. For example, in Tahir Med., P.C. v Cent. Mut. Fire Ins. Co. (42 Misc 3d 135[A][App Term 2014]), the court relied on Nielsen v New York State Dormitory Auth. (84 AD3d 519 [1st Dept 2011]), a case venued in Supreme Court to hold that “[d]efendant’s timely motion to strike the action from the trial calendar should have been granted, since plaintiff’s August 15, 2011 certificate of readiness falsely stated that there were no outstanding discovery requests” (Tahir Med., P.C. at *1; see Allstate Social Work and Psychological Services, P.L.L.C. v Autoone Ins. Co., 34 Misc 3d 128[A], *1 [App Term 2011] [Court relied on, inter alia, Fausto v City of New York (17 AD3d 520 [2d Dept 2005]), which discussed the need to timely move to vacate a Note of Issue.]). Similarly, in Galdi v Kaliya, (32 Misc 3d 128[A] [App Term 2011]), relying on (Schissler v Brookdale Hosp. Ctr. (289 AD2d 469, 470 [2d Dept 2001]), a case venued in the Supreme Court, the court held that “[t]he unanticipated death of defendants’ orthopedist after examining plaintiff constituted an unusual and unanticipated condition which warranted a further physical examination of plaintiff after the action had been placed on the trial calendar” (Galdi at *1 [internal quotation marks omitted]). Thus, because there is substantially more case law discussing 22 NYCRR 202.21 than 22 NYCRR 208.17 and for purposes of vacating a Note of Issue/Notice of Trial the law is the same, hereinafter, this Court shall discuss the law governing 202.21 and shall apply the same to the instant motion.

Pursuant to 22 NYCRR 202.21(e), the court can vacate a note of issue when it is based on a Certificate of Readiness which contains erroneous facts (Ortiz v Arias, 285 AD2d 390, 390 [1st Dept 2001]). Specifically, a note of issue premised upon a Certificate of Readiness which asserts that all discovery is complete when, in fact, it is not, should be vacated (Savino v Lewittes, 160 AD2d 176, 178 [1st Dept 1990]; Spilky v TRW, Inc., 225 AD2d 539, 540 [2d Dept 1996]; Levy v Schaefer, 160 AD2d 1182, 1183 [3d Dept 1990]). Additionally, a motion pursuant to 22 NYCRR 202.21(e) must be made within 20 days of the note’s service upon the party seeking to vacate it (22 NYCRR 202.21[e]; Tirado v Miller, 75 AD3d 153, 157 [2d Dept 2010]). A belated motion should be denied (Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794 [2d Dept 2006]; Rodriguez v Sau Wo Lau, 298 AD2d 376, 377 [2d Dept 2002]), and a defendant to whom discovery is owed then waives the right to such discovery (Manzo v City of New York, 62 AD3d 964, 965 [2d Dept 2009] [“The defendants waived their right to conduct an additional physical examination of the injured plaintiff when they failed to move to vacate the note of issue within [*2]20 days after service of the note of issue and the certificate of readiness.”]; James v New York City Transit Authority, 294 AD2d 471, 472 [2d Dept 2002]). Notably, when the party seeking to vacate a note of issue because discovery remains outstanding has had ample time to procure the discovery sought prior to the filing of the note, and made no effort to do so, the failure to procure discovery is deemed solely the fault of the party seeking vacatur, and the court, in the exercise of its discretion, can deny a motion to vacate the note (Torres v New York City Transit Authority, 192 AD2d 400, 400 [1st Dept 1993]). Under the foregoing circumstances, it is not an abuse of discretion to allow the note of issue to stand while concomitantly ordering that discovery be conducted to completion (id.).

As noted above, generally, a defendant to whom discovery is owed waives the right to such discovery when a plaintiff files his or her note of issue and the defendant fails to timely move to vacate it (Manzo at 965 [“The defendants waived their right to conduct an additional physical examination of the injured plaintiff when they failed to move to vacate the note of issue within 20 days after service of the note of issue and the certificate of readiness.”]; James at 472). However, “[w]here unusual or unanticipated circumstances develop subsequent to the filing of a note of issue, which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by an affidavit, may grant permission to conduct such necessary proceedings (22 NYCRR 202.21[d]). Thus, when it is demonstrated that unusual and unanticipated circumstances merit post-note discovery, the court has the discretion to order the same (Schroeder v IESI NY Corp., 24 AD3d 180, 181 [1st Dept 2005] [“The other method of obtaining post-note of issue disclosure is found in 22 NYCRR 202.21 (d). This section permits the court to authorize additional discovery ‘[w]here unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness’ that would otherwise cause ‘substantial prejudice.’ Because this section requires both unusual and unanticipated circumstances and substantial prejudice, it has been described as the ‘more stringent standard.'”]; Audiovox Corp. v Benyamini, 265 AD2d 135, 140 [2d Dept 2000] [“Applying the above rules to the facts of this case, it is undisputed that the defendant did not move to vacate the note of issue within 20 days of its filing. Accordingly, the defendant was required to demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness which required additional discovery to prevent substantial prejudice.”]). The foregoing is equally applicable to non-party discovery and can form the basis for the grant of a motion seeking to quash a subpoena on grounds that post-note of issue discovery is unwarranted (Maron v Magnetic Const. Group Corp., 128 AD3d 426, 427 [1st Dept 2015]; White v Bronx Lebanon Hosp. Ctr., 240 AD2d 212, 212 [1st Dept 1997]).

Notably, the mere need for further discovery (Price v Bloomingdale’s, a Div. of Federated Dept. Stores, Inc., 166 AD2d 151, 152 [1st Dept 1990] [“Notwithstanding that the physical examination sought by defendant might enhance the prospect of settlement without prejudice to plaintiff, we think it clear that such considerations do not fall within the ‘unusual and unanticipated circumstances’ rubric of the rule permitting post-note of issue pretrial proceeding.”]), or the absence of prejudice if post-note discovery is authorized, is not an unusual or unanticipated circumstance warranting further post-note discovery (Price v Brody, 7 AD2d 204, 205 [1st Dept 1959] [“In the case at bar, no claim of special, unusual or extraordinary circumstances was made by the defendant nor was there any such finding at Special Term. [*3]Absent any special, unusual or extraordinary circumstances, it was an inappropriate exercise of discretion to deny plaintiffs’ motion to vacate defendant’s notice of examination before trial. The oft-enunciated policy of encouraging pre-trial disclosure in most cases in and of itself is not sufficient to excuse a party’s failure to comply with the Special Rule Respecting Calendar Practice. The further fact, as stated here, that neither party will be prejudiced by allowing the examination, should not be a decisive factor in permitting departure from the general rule. Present special, unusual or extraordinary circumstances, spelled out factually, the court has discretion to depart from this interpretation of the rule. In all cases involving this rule, however, the judicial discretion to be exercised should be discreet, circumspect, prudent and cautious, and no party should be relieved of compliance with its provisions unless it clearly appears that the interests of justice require it” (internal citations omitted)]).

In support of the instant motion, which as per the affidavit of service was served upon plaintiff on September 4, 2018, defendant submits several discovery demands served upon plaintiff, only two of which are relevant to this decision. First, defendant submits its interrogatories dated May 23, 2018. Notably, the interrogatories contain 13 questions. Second, defendant submits a Notice of Examination Before Trial (demand for deposition), also dated May 23, 2018, which sought a deposition on July 9, 2018.

Defendant also submits plaintiff’s response to defendant’s interrogatories, which is dated May 29, 2018. Notably, the foregoing document is responsive to 42 questions. Defendant also submits Plaintiff’s Objection to Defendant’s Demand for Deposition, wherein plaintiff objects to the deposition sought. Significantly, plaintiff interposes two objections, namely that it is not required to attend a deposition until defendant establishes a timely denial of the claims made and that no depositions are required until defendant establishes that the information sought cannot be obtained via less burdensome discovery.

Defendant submits a letter, dated June 26, 2018, wherein it apprises plaintiff that its respons to defendant’s interrogatories are insufficient inasmuch as they appear to be responsive to other unrelated interrogatories and in any event are unverified

Lastly, defendant submits plaintiff’s Notice of Trial, dated August 6, 2018, wherein it is alleged that all discovery is complete.

In opposition to the instant motion, plaintiff submits a response to defendant’s interrogatories dated March 4, 2019. The response addresses 13 questions. However, plaintiff objects to five of the questions and articulates why ^[FN1] .

Defendant’s motion seeking to strike the Notice of Trial is granted. As noted above, 22 NYCRR 208.17, inter alia, promulgates the circumstances under which the court can order vacataur of a Notice of Trial. Such section is, virtually identical to the rule applicable to cases venued in the Supreme Court and promulgated by 22 NYCRR 202.21. As such when discussing the substance of 202.17, the Appellate Term routinely refers to Appellate Division case law [*4]related to 22 NYCRR 202.21 (Tahir Med., P.C. at *1; P.L.L.C. at *1; Galdi at *1). A note of issue premised upon a Certificate of Readiness which asserts that all discovery is complete when, in fact, it is not, should be vacated (Savino at 178; Spilky at 540; Levy at 1183). Additionally, a motion pursuant to 22 NYCRR 202.21(e) (or as relevant here, 22 NYCRR 208.17[c]) must be made within 20 days of the note’s service upon the party seeking to vacate it (Tirado at 157). Otherwise, the court should deny such motion (Utica Mut. Ins. Co. at 794; Rodriguez at 377), and a defendant to whom discovery is owed then waives the right to such discovery (Manzo at 965; James at 472).

Based on the foregoing, the instant motion is timely. CPLR § 2211 states that “[a] motion on notice is made when a notice of the motion or an order to show cause is served” (see Ageel v Tony Casale, Inc., 44 AD3d 572, 572, 845 [1st Dept 2007]; Gazes v Bennett, 38 AD3d 287, 288[1st Dept 2007]). Per the affidavit of service appended to defendant’s motion, the instant motion was made on September 4, 2018. As per the Court’s file, the Notice of Trial was served upon defendant on August 7, 2018. Applying CPLR § 2103(2), which states that “where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period, defendant had 25 days from August 7, 2018 to timely make the instant motion, or until Saturday, September 1, 2018. Applying General Construction Law §25-a ^[FN2] , defendant had until Tuesday, September 4, 2018 to make the instant motion because Monday, September 3, 2018, was Labor Day, a holiday.

Defendant correctly contends, that because the responses to the interrogatories were provided by counsel and were unsworn, in violation of CPLR 3133(b), they were defective. Moreover, defendant asserts that plaintiff never appeared for a duly requested deposition. Thus, defendant correctly argues that plaintiff misrepresented that discovery was complete when it filed its Notice of Trial, thereby warranting vacatur of the same.

Preliminarily, plaintiff concedes that its response to the interrogatories, dated May 29, 2018 was unresponsive to defendant’s demand. However, plaintiff’s response to defendant’s interrogatories, dated March 4, 2019 – which plaintiff claims is fully responsive – is also deficient because it is unsworn and the responses are provided by counsel. To be sure, CPLR § 3133(b) states that

[i]interrogatories shall be answered in writing under oath by the party served, if an individual, or, if the party served is a corporation, a partnership or a sole proprietorship, by an officer, director, member, agent or employee having the information.

While there is a dearth of case law regarding whether an attorney can respond to interrogatories, three cases make clear that generally an attorney may not interpose answers to [*5]interrogatories. In Lubell v Work Wear Corp. (82 Misc 2d 1000, 1001 [Civ Ct 1975], affd, 86 Misc 2d 1001 [App Term 1976]), the court rejected plaintiff’s claim that responses to interrogatories by counsel were proper and compliant with CPLR § 3134(a), which like CPLR § 3133(b), required that interrogatories

be answered in writing under oath by the party upon whom served, if an individual, or, if the party served is a corporation, a partnership, or sole proprietorship, by any officer, director, agent or employee having the information

(82 Misc 2d 1001). Instead, the court noted that pursuant to CPLR § 3131, answers to interrogatories may be used to the same extent as the depositions of a party, and are therefore, “a disclosure device, to seek evidence, under oath, from the [] defendant by individuals connected with it who have personal knowledge of the facts” (id. at 1002). Thus, the trial court ruled that answers to interrogatories are proper when given under oath by someone with personal knowledge (id. at 1002; see Corriel v Volkswagen of Am., Inc., 127 AD2d 729, 730 [2d Dept 1987] [“The appellant served interrogatories on the plaintiff simultaneously with its answer on September 30, 1985. No objection was made thereto (CPLR 3133) nor did the plaintiff move for a protective order (CPLR 3103). On or about December 18, 1985, unverified answers to the interrogatories were served by the plaintiff’s counsel. The answers did not comply with the requirements of CPLR 3134 which provides that such answers shall be ‘in writing under oath by the party upon whom served’ and ‘shall be preceded by the question to which it responds’. The plaintiff’s answers were in an incorrect form and lacked the requisite verification.”]). In MOPS Med. Supply v Geico Ins. Co. (4 Misc 3d 185 [Civ Ct 2004]), the court came to the same conclusion in rejecting answers to interrogatories that were unverified and provided by counsel (id. at 188-89 [“As an initial matter, the responses to the interrogatories were not verified, and they fail to identify the name and address of the individual responding to the interrogatories; rather, they state only that they were answered by the plaintiff’s attorney.”]). Despite the dearth of case law on this issue, the clear and express language of CPLR § 3133(b) when examined against the backdrop of well-settled principles of statutory construction support the position that counsel may not provide answers to interrogatories. To be sure, CPLR § 3133(b) states that interrogatories are to “be answered in writing under oath by the party upon whom served.” Pursuant to Statutes Law § 92, “[t]he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature.” Moreover, when interpreting statutes, it is well settled that the legislative intent is ascertained from “the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction” (Statutes Law § 94; Kuzmich v 50 Murray St. Acquisition LLC, 34 NY3d 84, 91 [2019], rearg denied, 33 NY3d 1135 [2019], cert denied, 140 S Ct 904 [2020] [“As we have repeatedly explained, courts should construe unambiguous language to give effect to its plain meaning. Absent ambiguity the courts may not resort to rules of construction to alter the scope and application of a statute because no such rule gives the court discretion to declare the intent of the law when the words are unequivocal” (internal citations and quotation marks omitted)]). Thus, the use of the word “party” as the person who must answer interrogatories rather than the words “attorney,” “counsel,” or “lawyer,” makes it clear that the intent of the statute is to have the individual party, [*6]in the case of an individual, provide responses to interrogatories.

Based on the foregoing, the instant interrogatories are deficient as a matter of law because they are unsworn and responded to by counsel. Accordingly, when plaintiff filed its Notice of Trial, certifying that discovery was complete, it misrepresented the same.

Insofar as despite defendant’s demand for a deposition plaintiff failed to appear, plaintiff further misrepresented the completion of discovery when it filed its Notice of Trial. Notably, plaintiff never addresses the portion of defendant’s motion, premised on plaintiff’s failure to appear for a deposition, which is akin to a concession. Significantly, however, plaintiff’s response to the demand for deposition – that defendant is not entitled a deposition unless it demonstrates that the responses provided to the interrogatories were insufficient – would have been availing had plaintiff provided a proper response to the interrogatories. Instead, this Court’s decision is in and of itself evidence that the response provided was insufficient.

It is well settled that

[a]lthough a party is generally free to choose the disclosure devices it wishes to use and the order in which it uses them, it is a generally accepted rule that one method of disclosure should be completed before resorting to another

(Samsung Am., Inc. v Yugoslav-Korean Consulting & Trading Co., Inc., 199 AD2d 48, 49 [1st Dept 1993] [“Further, the overly broad interrogatories which called for all bank accounts and information concerning tax filings must also await completion of Dizdarevic’s oral deposition so as to more particularly pinpoint the documents needed to prosecute this lawsuit or defend against the counterclaims.”]; Curran v Upjohn Co., 122 AD2d 929 [2d Dept 1986]; Giffords Oil Co. v Spinogatti, 96 AD2d 851, 851 [2d Dept 1983]; Katz v Posner, 23 AD2d 774, 775 [2d Dept 1965] [“With respect to the interrogatories, it is our opinion that although under the statute (CPLR 3101) a party may be entitled to an examination both orally and by written interrogatories, he should first invoke one or the other of these devices. If the device first chosen does not adequately disclose all evidence material and necessary to the prosecution or defense of the action (CPLR 3101), then the other available remedy may be utilized.”]).

Here, where, as noted above, defendant’s interrogatories were insufficiently answered, the information sought therein was not provided via defendant’s use of interrogatories. Thus, this Court holds, that defendant is entitled to a deposition because “the device first chosen does not adequately disclose all evidence material and necessary to the prosecution or defense of the action (Katz at 775).

Motion to Strike the Complaint

Defendants’ motion seeking to strike the complaint based on plaintiff’s failure to provide proper responses to defendant’s interrogatories and for plaintiff’s failure to appear at a deposition, is denied insofar as this Court holds that plaintiff’s conduct was neither willful nor contumacious a matter of law, thereby, precluding relief pursuant to CPLR § 3126

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

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

(id. at 406 [internal quotation marks omitted]). Whether information is discoverable does not hinge on whether the information sought is admissible and information is therefore discoverable merely if it “may lead to the disclosure of admissible proof” (Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance, 226 AD2d 175, 175 [1st Dept 1996]). That said, however, “unlimited disclosure is not mandated, and the court may deny, limit, condition, or regulate the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (Diaz v City of New York, 117 AD3d 777, 777 [2d Dept 2014]). Thus, the trial court has broad discretion in determining the scope and breadth of discovery, must supervise disclosure and set reasonable terms and conditions therefor (id.). Absent an improvident exercise of discretion, the trial court’s determinations should not be disturbed on appeal (id.).

Pursuant to CPLR § 3126

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

It is well settled that “[t]he nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court’s discretion” (Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 738 [2d Dept 2012]). Striking a party’s pleading for failure to provide discovery, however, is an extreme sanction, and warranted only when the failure to disclose is willful and contumacious (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1st Dept 1999]). Similarly, since the discovery sanction imposed must be commensurate with the disobedience it is designed to punish, the less drastic sanction of preclusion is also only appropriate when there is a clear showing that a party has willfully and contumaciously failed to comply with court-ordered discovery (Zakhido at 739; Assael v Metropolitan Transit Authority, 4 AD3d 443, 444 [2d Dept 2004]; Pryzant v City of New York, 300 AD2d 383, 383 [2d Dept 2002]). Willful and contumacious behavior can be readily inferred upon a party’s repeated non-compliance with court orders mandating discovery (Pryzant at 383). When a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez v Bernard, 267 AD2d 65, 66 [1st Dept 1999]) and repeatedly violates discovery orders, thereby delaying the discovery process, the striking of pleadings is warranted (Moog v City of New York, 30 AD3d 490, 491 [2d [*7]Dept 2006]; Helms v Gangemi, 265 AD2d 203, 204 [1st Dept 1999]). Stated differently, discovery sanctions should ensue when there is a willful failure to “disclose information that the court has found should have been disclosed” (Byam v City of New York, 68 AD3d 798, 801 [2d Dept 2009]).

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

A review of the relevant evidence submitted by defendant and discussed above, establishes that with regard to the interrogatories, plaintiff provided a response in 2018, which apparently was provided in error. Plaintiff then provided responses responsive to the defendant’s interrogatories, which this Court holds were deficient insofar as they were not sworn and the responses were provided by counsel. With regard to the deposition, contrary to plaintiff’s contention, generally a defendant has the right to depose plaintiff (CPLR § 3109 [“A party desiring to take the deposition of any person upon written questions shall serve such questions upon each party together with a notice stating the name and address of the person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and the name or descriptive title and address of the officer before whom the deposition is to be taken.”]). Moreover, as discussed above, here, where defendant’s interrogatories have yielded incomplete information, nothing in our jurisprudence bars the deposition sought by defendant.

The foregoing, specifically, plaintiff’s refusal to submit to a deposition does not demonstrate that plaintiff’s noncompliance has been willful or contumacious. To be sure, here, there has been no transgression of a court order mandating the discovery sought. Indeed, the record is bereft of any repeated yet fruitless effort by defendant to obtain the discovery sought. Notably, when plaintiff became aware that it had erroneously responded to defendant’s demand, it provided a more appropriate response, albeit one which this Court deems defective. Again, it is well settled that “striking a party’s pleading for failure to provide discovery is an extreme sanction [and] it is only warranted when the failure to disclose is willful and contumacious” (Bako at 561). Generally, willful and contumacious behavior can be readily inferred upon a party’s repeated non-compliance with court orders mandating discovery (Pryzant at 383), and only when a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez at 66) and repeatedly violates discovery orders, thereby delaying the discovery process, is the striking of pleadings warranted (Moog at 491; Helms at 204). Nor is the striking of a party’s pleadings warranted merely by virtue of “imperfect compliance with discovery demands” (Commerce & Industry Insurance Company at 144).

Motion to Compel Discovery

Defendant’s motion to compel a further response to its interrogatories and to compel plaintiff to appear for a deposition is granted. As noted above, defendant has demonstrated that the response to its interrogatories is deficient and that it is entitled to a deposition.

CPLR § 3124 allows a court to compel disclosure “[i]f a person fails to respond to or [*8]comply with any request, notice, interrogatory, demand, question, or order.” Thus, when a party responds to discovery demands but provides inadequate responses, the proper remedy is a motion to compel pursuant to CPLR § 3124 as opposed to a motion to strike or preclude pursuant to CPLR § 3126 (Double Fortune Property Investors Corp. v Gordon, 55 AD3d 406, 407 [1st Dept 2008] [“Plaintiff having responded to defendant’s discovery requests, the proper course for defendant, rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compel further discovery pursuant to CPLR 3124.”]).

Here, contrary to plaintiff’s contention, it provided an inadequate response to defendant’s interrogatories and has failed to appear for a deposition to which defendant is entitled. Accordingly, this Court holds that pursuant to CPLR § 3124, plaintiff must provide the discovery sought. It is hereby

ORDERED that the Clerk vacate the Notice of Trial. It is further

ORDERED that plaintiff provide a further response to defendant’s Interrogatories consistent with this Court’s Decision and Order within 60 (sixty) days ^[FN3] of service of this Decision and Order upon it with Notice of Entry. It is further

ORDERED that plaintiff appear for a deposition at a date and time mutually convenient to all parties within 90 (ninety) days of service of this Decision and Order upon it with Notice of Entry. It is further

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

This constitutes this Court’s decision and Order.

Dated: May 25, 2020

Bronx, New York

______________________________

FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1:Notably, in its motion, defendant also asserts that plaintiff improperly objected to several questions within the interrogatories. However, defendant’s wholesale failure to articulate why the objections were improper precludes this Court from ruling on that portion of the motion.

Footnote 2:General construction Law § 25-a states that “[w]hen any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day and if the period ends at a specified hour, such act may be done at or before the same hour of such next succeeding business day”)

Footnote 3:Because we are in the midst of the Covid 19 Pandemic with all of the attendant disruptions to people’s lives and indeed the Court System, the time periods for compliance with this Court’s directives must necessarily be long.

732680/17

Plaintiff, Law Office of Zara Javakov Esq., P.C., Zachary Albright Whiting, Esq., 100 Livingston Street, 4th Floor Brooklyn, NY 11201

Defendant Rivkin Radler LLP, Michelle Rita, Esq., 926 RXR Plaza, Uniondale, NY 11556-0926

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

CPLR 2219(a) Recitation

ORDER TO SHOW CAUSE & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION

EXHIBITS

In an order to show cause dated August 7, 2019, Defendant moves pursuant to CPLR 2221(d)(2) to reargue this court’s Decision/Order dated March 27, 2019.^[FN1] Defendant asserts that this court misapplied the law when it denied Defendant’s motion for summary judgment which was based upon Plaintiff’s failure to appear at the scheduled Examinations Under Oath (EUO). Defendant states that the Nassau County Supreme Court made a final determination on this issue in a declaratory judgment dated August 22, 2018 (Supreme Court Order). Defendant argues that under the doctrine of res judicata the Supreme Court Order was a declaratory judgment which made a final determination of fact that now precludes Plaintiff’s cause of action to recover no-fault benefits. Defendant disputes this court’s finding that the Supreme Court Order was an order granted on default with no preclusive effect rather than a declaratory judgment with the full force and effect of a court’s ruling on substantive issues of fact and law.

Based on the following analysis, this court grants Defendant’s motion to reargue, vacates its prior Decision/Order and issues this Decision in its place.

This court acknowledges that it erred in finding that the Supreme Court Order did not have a preclusive effect because it was granted on default. As Defendant correctly argues, the fact that its declaratory judgment was granted on Plaintiff’s default is irrelevant to its preclusive effect: “[a] Supreme Court’s order is a conclusive final determination, notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default” (Ava Acupuncture, P.C. v. NY Central Mut. Fire Ins. Co., 34 Misc 3d 149[A] [App Term, 2d Dept. 2d, 11th and 13th Jud Dists 2012]; Atlantic Chiropractic, P.C. v. Utica Mutual Ins. Co., 62 Misc 3d 145[A] [Sup Ct, App Term, 2d Dept. 2d, 11th and 13th Jud Dists 2019]).

The language in the Supreme Court Order, while sparse, is sufficient to articulate a final determination concerning Plaintiff’s failure to satisfy a condition precedent in order to seek reimbursement of no-fault benefits. ^[FN2] The Supreme Court Order does not mention EUO’s, but it does refer to the Summons and Verified Complaint Defendant submitted in support of its application for a declaratory judgment. In the second paragraph of the Verified Complaint Defendant explicitly stated that it sought a declaratory judgment based upon Plaintiffs’ failure to appear for the EUO’s (Def. 1 exh. 2). Therefore, the Supreme Court Order does have a preclusive effect on this matter and the doctrine of res judicata bars Plaintiff’s action to recover no-fault benefits.

Accordingly, the court’s Decision/Order dated March 27, 2019 is vacated and this Decision stands in its place.

This constitutes the decision and order of this court.

December 2, 2019

Brooklyn, NY

ENTER.

CONSUELO MALLAFRE MELENDEZ

Judge, Civil Court

Footnotes

Footnote 1: The relevant portion of the Order reads as follows: “Defendant’s motion is denied to the extent it claims the order dated August 22, 2018 in State Farm Mutual Automotive Ins. Co et al v. Psychology After Accident, PC Nassau Cty Index #614025/18 has a preclusive affect. The Court finds that the Nassau County order is merely a judgment on default and not a declaratory judgment…” See, Active Chiro v. 21st Century Ins. Co., 58 Misc 3d 140 (A) (App Term, 2d Dept 2018).”

Footnote 2: The Supreme Court Order only states that Defendant “seeks declaration that it is under no obligation to reimburse [Plaintiff] for services based upon [Plaintiff’s] failure to satisfy conditions precedent to coverage or verify their claims as required by law” (Supreme Court Order).

[*1]

Civil Court of the City of New York, New York County, December 2, 2019

APPEARANCES OF COUNSEL

Rivkin Radler LLP (Angelica M. Barcsansky, Andrea C. Sacks, Garin Scollan and Amy Wiedmann of counsel) for defendant.

Law Offices of Leon Kucherovsky (David Forman of counsel) for plaintiffs in the first and second above-entitled actions.

These actions, addressed together here solely for the purposes of this decision, relate to assigned, unpaid no-fault claims submitted by plaintiffs Taira RX Corp., a pharmacy, and HKP Physical Therapy, P.C. (collectively plaintiffs), a medical clinic, to defendant Government Employees Insurance Company (Geico). In every Taira action, Geico moves pursuant to CPLR 3212 for summary judgment, alleging that plaintiffs filed these actions prematurely because verification requests remain outstanding, and that Geico had no obligation to deny the claims before receiving a complete verification response. In the HKP action, Geico argues that the denials were justified because HKP failed to respond to reasonable verification requests. Plaintiffs oppose each motion, arguing that the requests are inappropriate and/or unjustified, and that plaintiffs have substantially complied. Plaintiffs also ask the court to search the record and grant summary judgment in their favor. For the reasons below: (1) Geico’s motions in the Chen (index No. CV-702201/17), Devito (index No. CV-702185/17), Generoso (index No. CV-700042/18), Nauth (index No. CV-702243/17), Williams (index No. CV-702247/17), Xu (index No. CV-703115/17), and Zahmoul (index No. CV-700208/18) actions are granted and those complaints are dismissed without prejudice as premature; (2) Geico’s motion in the Hyppolite action (index No. CV-702191/16) is granted, and the complaint dismissed with prejudice; (3) Geico’s motion in the Gomez action (index No. CV-701984/17) is granted in part and denied in part; and (4) the Flores (index No. CV-702233/17) and Fores (index No. CV-702213/17) motions are denied and summary judgment is granted in favor of plaintiffs.

Background Facts and Procedural History

I. Taira

A. Facts Common to All Taira Actions

In 2016, prior to any relevant claim submission, the owner of MSB Rx, doing business as Forest Drugs (MSB), Michael Bassanell, sold MSB to Taira, which continued to operate Forest Drugs.^[FN1] According to Geico, its investigation revealed “an alarming increase in the amount of prescription drug products{**67 Misc 3d at 285} prescribed to no-fault patients suffering from minor injuries sustained in fender-bender type automobile accidents” (defendant/Sacks affirmation ¶ 11). Geico alleges that the prescriptions were “medically unnecessary,” prescribed at “no-fault clinics” operating as “medical mills . . . for the sole purpose of submitting inflated, fraudulent billing” (id.).

In furtherance of Geico’s investigation, in addition to document requests including financial and prescription records, Geico sought an examination under oath (EUO) of Bassanell. After Bassanell’s EUO on April 27, 2017, Geico requested additional categories of documentation that it determined to be necessary and reasonable for its investigation (defendant’s reply, exhibit 2):^[FN2]

1. contracts/agreements between MSB Rx Corp./Bassanell and Taira/Mikhail Borukhov relating to the sale, transfer, and ongoing relationship between the two entities;

2. applications, registration forms, and accompanying documents submitted by or on behalf of Taira and/or MSB Rx Corp. to the New York State (NYS) Board of Pharmacy in connection with its request for registration or licensing;

3. documents filed with NYS evidencing the sale, transfer, and/or change in ownership of MSB Rx Corp. from Bassanell to Taira and Mikhail Borukhov;

4. tax forms, payroll tax returns, and employment agreements for all persons who have performed work for or on behalf of Taira as a pharmacist or pharmacy technician;

5. 2016 and 2017 federal, NYS, and NYC quarterly payroll tax returns prepared or filed by Taira and MSB Rx Corp.;

6. purchase invoices, wholesale receipts, or related documentation evidencing the purchase of all pharmaceutical products, including those used in any compounded drugs;

7. information regarding the prescriptions relating to diclofenac gel, diclofenac/lidocaine compound cream, lidocaine patches, and flector patches from June 2016 onward; and

8. the number of prescriptions that Taira dispensed from June 2016 onward pursuant to prescriptions from Mani Ushyarov,{**67 Misc 3d at 286} Solomon Halioua, Oleg Fuzaylov, Terry-Jan Blackett-Bonnett, and Danny Fuzaylov.^[FN3]

B. Specific Taira Actions^[FN4]

1. Gengguan Chen (index No. CV-702201/17)

a. Bills 1-3 ($357.32, $7.07, $13.16 for Mar. 6, 2017 Prescriptions)

On June 22, 2017, Geico received the first bill (Geico exhibit A [Chen action]).^[FN5] Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on July 1, 2017, then again on August 11, 2017 (id.). Geico has not yet issued a denial.

b. Bills 4-5 ($56.90, $313.28 for June 14, 2017 Prescriptions)

On July 14, 2017, Geico received the subject bills (Geico exhibit B [Chen action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on July 31, 2017, then again on August 31, 2017 (id.). Geico has not yet issued a denial.

2. John Devito (index No. CV-702185/17)

a. Bills 1-2 ($2,364, $232.19 for June 1, 2017 Prescriptions)

On July 6, 2017, Geico received the subject bills (Geico exhibit A [Devito action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on July 26, 2017, then again on August 28, 2017 (id.). After a January 3, [*4]2018 exam by Dr. Russ, on January 10, 2018, Geico issued a denial of all future benefits, but this claim remains pending (Taira exhibit G [Devito action]).

3. Angie Flores (index No. CV-702233/17)

a. Bills 1-3 ($399, $2,364, $125.02 for May 15, 2017 Prescriptions)

On June 7 and 8, 2017, Geico received the subject bills (Geico exhibit A [Flores action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, {**67 Misc 3d at 287}Geico sought verification on June 26, 2017, then again on August 10, 2017 (id.).^[FN6] After a January 3, 2018 exam by Dr. Yang, on October 27, 2017, Geico issued a denial of all future benefits, but this claim remains pending (Taira exhibit G [Flores action]).

4. Damarys Fores (index No. CV-702213/17)

a. Bill 1 ($1,432.05 for May 15, 2017 Prescription)

On June 8, 2017, Geico received the subject bill (Geico exhibit A [Fores action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on June 26, 2017, then again on August 10, 2017 (id.).^[FN7] After receiving some of the requested items, Geico sent a subsequent letter on October 31, 2017, outlining which items Geico considered to be outstanding (id.). Geico has not yet issued a denial.

5. Michael Generoso (index No. CV-700042/18)

a. Bill 1 ($1,528.80 for June 26, 2017 Prescription)

On August 7, 2017, Geico received the subject bill (Geico exhibit A [Generoso action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on August 18, 2017, then again on September 19, 2017 (id.). After receiving some of the requested items, Geico sent a subsequent letter on November 1, 2017, outlining which items Geico considered to be outstanding (id.). After a July 17, 2017 exam by Drs. Silverman and Lyons, Geico issued a denial of all future benefits on October 27, 2017, but this claim remains pending (Taira exhibit G [Flores action]).

6. Jose Gomez (index No. CV-701984/17)

a. Bill 1 ($891.50 for May 3, 2017 Prescription)

On June 21, 2017, Geico received the subject bill (Geico exhibit A [Gomez action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on July 10, 2017, then again on August 11, 2017 (id.). Geico has not yet issued a denial.

b. Bill 2 ($703 for May 3, 2017 Prescription)

On June 21, 2017, Geico received the subject bill (Geico exhibit A [Gomez action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, {**67 Misc 3d at 288}Geico sought verification on July 10, 2017, then again on August 11, 2017 (id.). On July 12, 2017, Geico denied the claim for lack of medical necessity based on a November 8, 2016 exam by Dr. Hershon (Geico exhibit B [Gomez action]).

7. Deonarine Nauth (index No. CV-702243/17)

a. Bill 1 ($313.28 for May 16, 2017 Prescriptions)

On June 22, 2017, Geico received the subject bill (Geico exhibit A [Nauth action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on July 11, 2017, then again on August 14, 2017 (id.).^[FN8] After receiving some of the requested items, Geico sent a subsequent letter on November 1, 2017, outlining which items Geico considered to be outstanding (id.). After a September 12, 2017 exam by Dr. Krishnan, Geico issued a denial of all future benefits on September 21, 2017, but this claim remains pending (Taira exhibit G [Flores action]).

8. Armmeen Williams (index No. CV-702247/17)

a. Bill 1 ($1,700.11 for May 8, 2017 Prescriptions)

On June 22, 2017, Geico received the subject bill (Geico exhibit A [Williams action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on July 12, 2017, then again on August 15, 2017 (id.). After receiving some of the requested items, Geico sent a subsequent letter on November 1, 2017, outlining which items Geico considered to be outstanding (id.). After a July 25, 2017 exam by Dr. Littman, Geico issued a denial of all future benefits on July 31, 2017, but this claim remains pending (Taira exhibit G [Williams action]).

b. Bill 2 ($1,700.11 for May 31, 2017 Prescriptions)

On June 22, 2017, Geico received the subject bill (Geico exhibit A [Williams action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on July 26, 2017, then again on August 28, 2017 (id.). After receiving some of the requested items, Geico sent a subsequent letter on November 1, 2017, outlining which [*6]items Geico considered to be outstanding (id.). After a July 25, 2017 exam by Dr. Littman, Geico issued a denial of all future benefits on July 31, 2017, but this claim remains pending (Taira exhibit G [Williams action]).{**67 Misc 3d at 289}

9. Ke Xu (index No. CV-703115/17)

a. Bill 1 ($1,442.61 for July 19, 2017 Prescriptions)

On August 11, 2017, Geico received the subject bill (Geico exhibit A [Xu action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on August 23, 2017 (id.). Geico sent a follow-up verification request letter on September 27, 2017 (id.). After Taira responded with some of the documents and objections to the other categories, Geico sent another follow-up letter on November 3, 2017, outlining which items remained outstanding (id.). Geico has not yet issued a denial.

b. Bill 2 ($1,184.50 for Aug. 3, 2017 Prescriptions)

On September 1, 2017, Geico received the subject bill (Geico exhibit B [Xu action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on September 12, 2017 (id.). Geico sent a follow-up verification request letter on October 16, 2017 (id.). After Taira responded with some of the documents and objections to the other categories, Geico sent another follow-up letter on November 7, 2017, outlining which items remained outstanding (id.). Geico has not yet issued a denial.

10. Hiba Zahmoul (index No. CV-700208/18)

a. Bills 1-2 ($703 and $1,432.05 for July 14, 2017 Prescriptions)

On September 7, 2017, Geico received the subject bill (Geico exhibit A [Zahmoul action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on September 22, 2017, then again on October 24, 2017 (id.). After receiving some of the requested items, Geico sent a subsequent letter on November 1, 2017, outlining which items Geico considered to be outstanding (id.). Geico has not yet issued a denial.

b. Bill 3 ($1,432.05 for July 29, 2017 Prescriptions)

On September 25, 2017, Geico received the subject bill (Geico exhibit A [Zahmoul action]). Due to the concerns raised in its investigation, including those raised by the Bassanell EUO, Geico sought verification on October 3, 2017, then again on November 1 and 6, 2017, one of which explicitly outlined which items Geico considered to be outstanding (id.). Geico has not yet issued a denial.

C. Requests and Responses Common to All Taira Actions

Taira’s responses to the verification requests, as reflected in all of its submissions here, [*7]are identical. Taira’s first response{**67 Misc 3d at 290} dated August 8, 2017, contains a litany of objections including, as relevant here, that no “good faith basis” existed for Geico’s verification requests (Taira exhibit A). On August 28, 2017, Geico objected to Taira’s “voluminous boilerplate objections” and characterized Taira’s response as “minimal” (Geico exhibit C). Geico justified its request by noting that Dr. Ushyarov had been sued multiple times in connection with no-fault fraud, that “New York State has numerous laws and regulations governing the licensing of pharmacies,” and that there were numerous deficiencies in Bassanell’s testimony (id.).

Taira also sent a further “comprehensive reply” on August 17, 2017 (Taira exhibit B). Taira’s August 17 reply again argued that there was no good faith, case-specific basis for the verification request and asserted numerous objections, but provided a limited response (Taira exhibit C). In a response on September 7, 2017, Geico argued that its requests were reasonable by invoking various concerns including the nature and frequency of the pharmaceutical products prescribed and dispensed, arrangements between Taira and physicians and clinic locations, compounding formulations and practices, billing and coding practices, and compliance with licensing laws (Geico/McCarthy aff ¶ 4; Geico exhibit C). Part of the alleged scheme involved a transfer by Michael Bassanell, Pharm.D., of an entity known as MSB Rx, doing business as Forest Drugs, to Taira Rx, owned by Mikhail Borukhov, Bassanell’s former assistant (Geico/McCarthy aff ¶ 6). According to Geico, the investigation ultimately revealed practices, including inaccurate billing, meant to maximize profits rather than meet medical necessity, as well as potential noncompliance with licensing laws (Geico/McCarthy aff ¶¶ 5, 8, 9). The Bassanell EUO raised additional questions, including Bassanell’s continuing role with Taira as a supervising pharmacist and the practice of continuing to pay the salary of all employees—including Taira’s employees—from MSB Rx’s bank account, even after the transfer of MSB Rx to Taira (Geico/McCarthy aff ¶ 10). Similarly, one doctor associated with Taira, Mani Ushyarov, has twice been sued by insurance carriers (Geico/McCarthy aff ¶ 11). According to Geico’s September 7, 2017 letter, “multiple claimants have indicated . . . that they did not actually receive the prescriptions that were purportedly written by Dr. Ushyarov and Dr. Sudberg and then billed to [Geico]” (Geico reply, exhibit 2).

Taira’s subsequent objection on October 17, 2017, summarized its prior compliance, again asserting that Geico had not{**67 Misc 3d at 291} justified its request, and arguing among other things that Geico had not asserted which pharmaceutical laws or regulations had allegedly been violated (Taira exhibit C). Geico replied again on October 17, 2017, this time identifying several specific deficiencies: (1) complete records of the number of Dr. Ushyarov’s prescriptions submitted by Taira to Geico; (2) wholesale invoices which “would have a direct bearing on the fees that [Taira] can charge to . . . Geico”; (3) “documents concerning the number of prescriptions originating from certain high-volume prescribing physicians, and certain federal and state documents” (id.).

Geico’s subsequent replies, dated November 22, 2017, and August 8, 2018, supplemented its responses to Taira’s objections and provided further justification for Geico’s requests, including citation to provisions of New York laws and regulations pertaining to pharmacies and kickbacks (see Geico reply, exhibit 2, citing Education Law §§ 6530 [18], [38]; 6811, 6509-a; 8 NYCRR 29.1 [b] [3]). Taira’s final response is dated July 19, 2018, essentially reiterating its objections (Taira exhibit E).

II. HKP (index No. CV-702191/16)

On February 15, 2016, Geico conducted EUOs of Hitenkumar Patel, P.T. and Chin Yeung Chan, LAc (Geico/Scollan affirmation ¶ 2, exhibit 4). Those depositions, as well as other Geico investigations, raised suspicions that HKP could, among other things, “be engaged in unlawful fee-splitting arrangements and illegal kickback schemes with non-physicians” and billing improperly with “pre-determined treatment protocols” to maximize profits (Geico/Scollan affirmation ¶ 6; Geico/Simmons aff ¶ 4). According to Geico, several factors contributed to this suspicion: (1) one of HKP’s locations in Brooklyn having been implicated in layperson control, unlawful referral relationships, and predetermined treatment protocols; (2) bills regularly exceeding the actual care that patients received; (3) “anonymous calls” advising patients to treat at the Brooklyn location and that they would be represented by the Mandel Law Firm downstairs from HKP’s Lynbrook location; (4) the use of employees or independent contractors essentially conceded in Patel’s EUO (Geico/Simmons aff ¶¶ 6-8, citing exhibit 4). Based on the prior investigation, preliminary investigation here, and EUOs, on March 22, 2016, Geico requested (Geico/Simmons aff ¶ 9, exhibit B):

1. written agreement between Achiever United Inc. (an employment agency) and Patel and/or HKP;{**67 Misc 3d at 292}

2. invoices from and payments to George Davinner’s taxi company to Patel and/or HKP for the past six months;

3. written lease agreement between Patel and/or HKP and Rexco Property, LLC for the location at 225-21 Linden Boulevard, Cambria Heights along with cashed rent checks for the last six months;

4. W-2s of all HKP employees;

5. intake forms for all of the patients subject to the EUO;

6. HKP’s incorporation documents;

7. copies of cashed rent checks (front and back) from Patel and/or HKP to Dr. August at 4009 Church Avenue, Brooklyn for the past six months;

8. invoices from and payments to “Mike” for transportation service to Patel and/or HKP for the past six months; and

9. corporate bank records from Chase Bank to HKP for the past six months.

Geico concedes that it received some of the requested information, but did not receive: (1) copies of cashed checks paid to “Mike” for transportation services from Patel and/or HKP for all six months prior to claim submission, specifically September through December 2015; (2) HKP’s Chase records for six months; or (3) proof of rent payments from subtenants to Patel and/or HKP at the Cambria Heights location (Geico/Scollan affirmation ¶ 11). According to Geico, these records are necessary to determine whether illegal kickback payments were disguised as rent or transportation payments (Geico/Scollan affirmation ¶ 12).

Geico sent second requests for the subject claims on April 25, 2016 (Geico exhibit C; Geico/Lamirande aff [discussing Geico’s mailing procedures]). On July 27, 2016, having failed to receive a response, Geico denied the subject claims for September 19, 2015 treatment totaling $122.53, [*8]September 29 through October 24, 2015 treatment totaling $246.40, and November 5 through November 24, 2015 treatment totaling $369.60 (Geico exhibits D-L). On July 27, 2017, one year after Geico’s denial, HKP responded in writing to Geico, making essentially the same arguments made here: (1) that at the EUO, HKP provided a justification for not responding to the verification requests: they could not produce the subtenant’s checks because they were returned; and (2) the other arguments addressed below; in sum and substance, that the demands were improper (HKP exhibit A, citing Geico exhibit 4 at 86-87).{**67 Misc 3d at 293}

Discussion

I. Threshold Considerations

A. Denial of Future Claims Based on Lack of Medical Necessity (Devito [index No. CV-702185/17], Flores [index No. CV-702233/17], Generoso [index No. CV-700042/18], Nauth [index No. CV-702243/17], Williams [index No. CV-702247/17])

Taira asserts in various actions that Geico’s post-independent medical examination denial of future no-fault benefits obviates Taira’s responsibility to respond to any outstanding verification demands. Indeed, “[a]n insurance carrier may not, after repudiating liability, create grounds for its refusal to pay by demanding compliance with proof of loss provisions of the policy. Rather, the insurance carrier must stand or fall upon the defense upon which it based its refusal to pay” (Matter of State Farm Ins. Co. v Domotor, 266 AD2d 219, 220-221 [2d Dept 1999] [internal quotation marks omitted]). The denials here, however, pertain to “further acupuncture, chiropractic, massage therapy, diagnostic testing, and supplies treatment [sic],” not the pharmaceutical treatment at issue here (see generally Taira exhibit G). Moreover, even if the denial did pertain to pharmaceutical treatment, the denial explicitly limits treatment going forward, not the prior charges at issue here. Accordingly, with the limited exception of the Gomez action discussed below, this branch of Taira’s motion is denied.

B. Estoppel (All Actions)

Plaintiffs also assert that Geico’s arguments should be estopped because more than a dozen arbitrations involving the same or similar parties and issues were decided in Taira’s favor. Geico also cites numerous decisions in its favor. However, because no-fault arbitrations are designed as “expedited, simplified affair[s] meant to work as quickly and efficiently as possible” with “limited or non-existent” discovery, complex fraud claims—like the one asserted here by Geico—”cannot be shoehorned into this system” (21st Century Ins. Co. v Gladstein, 2015 NY Slip Op 30527[U],*6 [Sup Ct, NY County 2015], quoting Allstate Ins. Co. v Mun, 751 F3d 94, 95 [2d Cir 2014] [emphasis omitted]). Accordingly, no-fault arbitration decisions are not afforded preclusive effect and this branch of plaintiffs’ motion is denied.

II. Summary Judgment

“[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to{**67 Misc 3d at 294} judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a [*9]denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party 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] [citations omitted]; CPLR 3212 [b]).

A. Taira Actions

1. Flores (index No. CV-702233/17) and Fores (index No. CV-702213/17) Actions (Timeliness of Verification Follow-Up)

“Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the expiration of that 30-day period, must follow up with a second request for verification” (see Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 163 [2d Dept 2013]; 11 NYCRR 65-3.6 [b]).

“At a minimum, if any requested [additional] verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested” (11 NYCRR 65-3.6 [b]).

With the two exceptions noted here and in footnote 5 above, the court finds that both parties have demonstrated through attached affidavits that all mailings, including claims, initial post-EUO verification requests, follow-up letters, subsequent follow-up letters, responses, and denials referenced in the papers and recounted above, were properly and timely sent pursuant to the no-fault regulations. The parties do not dispute receipt of any of the relevant documents.

In the Flores and Fores actions, however, Geico timely sought verification on June 26, 2017, but did not send a follow-up{**67 Misc 3d at 295} until August 10, 2017 (Geico exhibit A [Flores/Fores actions]).^[FN9] Where an insurer does not follow up within the 10-day period, “guided by the principle that the no-fault regulations are in derogation of the common law and must be strictly construed,” an insurer’s time to deny a claim is not tolled (Sea Side Med., P.C. v State Farm Mut. Auto Ins. Co., 12 Misc 3d 1127, 1130-1131 [Civ Ct, Richmond County 2006]). Accordingly, Geico’s motion for summary judgment is denied.

Additionally, in searching the record pursuant to Taira’s request and CPLR 3212 (b), the court also finds that, on these two actions, plaintiff has set forth the fact and amounts of the loss and the fact that payment is overdue, thereby demonstrating entitlement to judgment (Sea Side Med., P.C., 12 Misc 3d at 1131, citing Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2d Dept 2004] [“the plaintiff hospitals made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed [*10]statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue”]). Accordingly, the court awards summary judgment to plaintiff in these actions.

2. Gomez Action (index No. CV-701984/17) (Medical Necessity Defense)

In the Gomez action (index No. CV-701984/17), Geico denied the second claim for lack of medical necessity (Geico exhibit B [Gomez action]; see Background Facts and Procedural History [I] [B] [6] [b] at 287-288). Taira correctly argues that a denial of the second Gomez claim would, pursuant to Domotor, absolve Taira of any responsibility to respond to outstanding verification requests (see Discussion [II] [A], supra; Domotor, 266 AD2d at 220-221). The court finds that the affidavit of Michael Tamburo, DO sufficiently rebuts Geico’s prima facie demonstration of a lack of medical necessity (Taira exhibit H [Gomez action]). Accordingly, while the court, for the reasons below, finds the first claim subject to severance and dismissal, summary judgment on the second claim (Taira’s first and second causes of action) is denied based on an issue of fact.

3. All Other Taira Actions (Validity of Verification Requests/Responses)

In all actions involving Taira as plaintiff, Taira argues that corporate verification requests are inappropriate because{**67 Misc 3d at 296} pharmacies, unlike medical providers, are not subject to the same scrutiny, particularly in the context of corporate structure, and in any event that plaintiffs have substantially complied. Geico argues that this action is premature because the demands are justified and remain outstanding. While the court agrees that the considerations applicable to actions involving medical providers and pharmacies are not identical, they are similar enough to justify Geico’s verification requests, and therefore justify dismissal, as premature, of any actions in which Taira has failed to fully respond to timely verification requests.

[1] “The insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested” (11 NYCRR 65-3.5 [c] [emphasis added]). Upon request, an insured individual or their assignee must, among other things, “provide any other pertinent information that may assist the [insurer] in determining the amount due and payable” (11 NYCRR 65-1.1 [d] [sec I] [Proof of Claim. Medical, Work Loss, and Other Necessary Expenses] [d]). “No-Fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to [11 NYCRR 65-3.5]” (11 NYCRR 65-3.8 [a] [1]).

As Taira argues, however, insurers must not demand verification of facts unless there are good reasons to do so. The lodestar for “good cause” was, until recently, State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]). In Mallela, the Second Circuit certified to the Court of Appeals the question whether

“a medical corporation that was fraudulently incorporated under N.Y. Business Corporation Law §§ 1507, 1508, and N.Y. Education Law § 6507(4)(c) [is] entitled to be reimbursed by insurers, under New York Insurance Law §§ 5101 et seq., and its implementing regulations, for medical services rendered by licensed medical practitioners” (Mallela, 4 NY3d at 320, citing State Farm Mut Auto. Ins. Co. v Mallela, 372 F3d 500, 510 [2004]).

The Court of Appeals held that such providers were not eligible for reimbursement, but also that “carriers may look beyond the face of licensing documents to identify willful and material failure to abide by state and local law,” provided that “[t]he regulatory scheme, however, does not permit abuse of the truth-seeking opportunity that 11 NYCRR 65-3.16 (a) (12){**67 Misc 3d at 297} authorizes” (Mallela, 4 NY3d at 321-322). Importantly, the Court of Appeals found that “carriers will be unable to show ‘good cause’ unless they can demonstrate behavior tantamount to fraud. Technical violations will not do” (id. at 322).

The Mallela Court addressed the concern that carriers might “turn this investigatory privilege into a vehicle for delay and recalcitrance” (Mallela, 4 NY3d at 321-322). That is, while “carriers may look beyond the face of licensing documents to identify willful and material failure to abide by state and local law, . . . [t]he regulatory scheme . . . does not permit abuse of the truth-seeking opportunity that 11 NYCRR 65-3.16 (a) (12) authorizes” (Mallela, 4 NY3d at 321-322; see also Pomona Med. Diagnostic P.C. v Adirondack Ins. Co., 36 Misc 3d 127[A], 2012 NY Slip Op 51165[U],*1 [App Term, 1st Dept 2012] [to avoid employing “pretrial discovery as a fishing expedition (without) a reliable factual basis for what amounts to, at best, mere suspicions,” a defendant must set forth “case-specific allegations” to justify pretrial disclosure]; Omega Diagnostic Imaging, P.C. v MVAIC, 29 Misc 3d 129[A], 2010 NY Slip Op 51779[U],*1 [App Term, 1st Dept 2010] [action was not premature for outstanding verification request where there was “no good reason” for defendant to demand that plaintiff and its assignor obtain an “affidavit of no insurance” from the out-of-state driver who struck the assignor]; cf. Brownsville Advance Med., P.C. v Country-Wide Ins. Co., 33 Misc 3d 1236[A], 2011 NY Slip Op 52255[U], *2-3 [Nassau Dist Ct 2011] [no-fault law’s purpose “not served when an insurer repeatedly request the same verification from the same provider, especially in the situation where the material demanded has previously been provided or is readily obtainable from easily accessible public records”]; see also American Chiropractic Care, P.C. v GEICO Ins., 57 Misc 3d 529, 535 [Civ Ct, Kings County 2017] [to balance the need to address no-fault fraud with burden on medical professionals of preparing and appearing for EUOs, insurer could and should have responded to provider’s request for explanation “to demonstrate a good faith basis for the EUO”]).

Where the record reveals “detailed and specific reasons for believing that plaintiff may be ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation,” special circumstances exist which justify disclosure of documents such as “plaintiff’s certificate of incorporation, management agreements, and the names of plaintiff’s{**67 Misc 3d at 298} shareholders” (Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10, 12 [App Term, 2d Dept, 2d & 11th Jud Dists 2008], citing Mallela, 4 NY3d 313; see also Dore v Allstate Indem. Co., 264 AD2d 804, 804-805 [2d Dept 1999] [finding, based on “indicia of fraud,” special circumstances to warrant the disclosure of income tax returns, bank account information, and employment records]).

Numerous post-Mallela cases focused on a similar concern—whether an insurer can deny a medical claim (or pursue more information) when there is good cause to believe that a medical practice is fraudulently incorporated—for example, if the provider was not wholly owned or controlled by physicians (see e.g. Pro-Align Chiropractic, P.C. v Travelers Prop. Cas. Ins. Co., [*12]58 Misc 3d 857, 861 [Suffolk Dist Ct 2017]). Indeed, disclosure aimed at investigating that concern has come to be known as Mallela material (see Victory Med. Diagnostics, P.C. v Nationwide Prop. & Cas. Ins. Co., 36 Misc 3d 568, 574 [Nassau Dist Ct 2012]). The contested issues here, however, are whether Mallela disclosure is available for other regulated disciplines, including—as relevant here—pharmacies, and what type of alleged conduct constitutes “good cause” for the purposes of requesting Mallela-type disclosure. The governing statutes and regulations, together with a recent Court of Appeals decision, Andrew Carothers, M.D., P.C. v Progressive Ins. Co. (33 NY3d 389 [2019]), support Geico’s position.^[FN10]

The Carothers Court revisited Mallela‘s holding that “[i]n the licensing context, carriers will be unable to show ‘good cause’ unless they can demonstrate behavior tantamount to fraud” (33 NY3d at 405). In determining that the trial judge did not err in declining to issue a charge requiring a “tantamount to fraud” finding by the jury, the Carothers Court determined that “[a] corporate practice that shows ‘willful and material failure to abide by’ licensing and incorporation statutes may support a finding that the provider is not an eligible recipient of reimbursement under 11 NYCRR 65-3.16 (a) (12) without meeting the traditional elements of common-law fraud” (33 NY3d at 405-406 [“The no-fault insurance regulations make providers ineligible for reimbursement when their violations of the cited statutes are more than merely technical and ‘rise to the level of’ a grave violation such as fraud”]).

{**67 Misc 3d at 299}Although Carothers, like Mallela, addressed “good cause” in the context of medical licensing, nothing in either case, the Insurance Law, or laws and regulations governing pharmaceutical practice suggest that pharmaceutical practice is not subject to regulation. Generally, Insurance Law § 5102 et seq. requires no-fault carriers to reimburse patients (or their assignees) for “basic economic loss” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320 [2005]). “Basic economic loss” includes, as relevant here,

“[a]ll necessary expenses incurred for . . . medical, hospital (including services rendered in compliance with article forty-one of the public health law, whether or not such services are rendered directly by a hospital), surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; . . . and . . . any other professional health services” (Insurance Law § 5102 [a] [1] [emphasis added]).

Providers are not, however, eligible for reimbursement by a carrier “if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York or meet any applicable licensing requirement necessary to perform such service in any other state in which such service is performed” (11 NYCRR 65-3.16 [a] [12] [emphasis added]; Mallela, 4 NY3d at 320).

Of course, “New York State or local licensing requirement[s]” are not limited to medicine and include pharmaceutical practice. Although Geico concedes that pharmacies, unlike medical practices, may be owned by a layperson, Geico identifies—and identified in at least one letter to Taira—additional statutory and regulatory bases for its verification requests. These include Education Law § 6530 (18) and (38), which define, respectively, professional [*13]misconduct as “[d]irectly or indirectly offering, giving, soliciting, or receiving or agreeing to receive, any fee or other consideration to or from a third party for the referral of a patient or in connection with the performance of professional services” and “[e]ntering into an arrangement or agreement with a pharmacy for the compounding and/or dispensing of coded or specially marked prescriptions”; Education Law § 6811 (7), which makes it unlawful for “[a]ny person to enter into an agreement with a physician, dentist, podiatrist or veterinarian for the compounding or dispensing of secret formula (coded) prescriptions”; Education Law § 6509-a, which prohibits regulated professionals, including pharmacists, {**67 Misc 3d at 300}from “directly or indirectly request[ing], receiv[ing] or participat[ing] in the division, transference, assignment, rebate, splitting or refunding of a fee for, or . . . directly request[ing], receiv[ing] or profit[ing] by means of a credit or other valuable consideration as a commission, discount or gratuity in connection with the furnishing of . . . drugs [or] medication” (citing Education Law § 6800 et seq.); and 8 NYCRR 29.1 (b) (3), which prohibits any professional licensee from “directly or indirectly offering, giving, soliciting, or receiving or agreeing to receive, any fee or other consideration to or from a third party for the referral of a patient or client or in connection with the performance of professional services.”

To investigate potential violations of those provisions—thereby rendering Taira ineligible for benefits—Geico justified the requests in its verification letters. Geico noted in those letters, among other things, that “Bassanell was unable to testify as to the medical necessity of the prescriptions at issue,” that Bassanell stayed on as Taira’s supervising pharmacist despite owning two other pharmacies, that “certain doctors repeatedly prescribed the same exorbitantly priced items,” that Bassanell continued to control Taira’s bank account despite selling the business, and that individuals working for Taira are not Taira employees (defendant’s reply, exhibit 2). These requests (and accompanying demonstrations of good cause) would have been sufficient even under Mallela, which required behavior “tantamount to fraud. Technical violations will not do” (Mallela, 4 NY3d at 322). But the requests were certainly appropriate under Carothers, which clarified that Mallela‘s holding was not limited to “behavior tantamount to fraud,” thereby bolstering this court’s finding of “good cause.” The requests are appropriately tailored to the nature of the pharmacy sale, licensing, payroll, pricing, individual prescriptions, and prescriptions by individual doctors.

[2] Moreover, just as an insurer must have “good cause” to demand verification, so too must a provider have a “reasonable justification” for refusal to provide a response. 11 NYCRR 65-3.8 (b) (3) provides, with exceptions not relevant here, that “an insurer shall not issue a denial of claim form . . . prior to its receipt of verification of all of the relevant information requested pursuant to sections 65-3.5 and 65-3.6 . . . (e.g., medical reports, wage verification, etc.).” A 2013 amendment aimed to correct two shortcomings of the prior regulations: that the regulations{**67 Misc 3d at 301}

“(1) impose[d] no deadline for responding to a verification request nor permit[ted] an insurer to deny a claim if it never receives the requested verification, allowing some claims to remain open indefinitely; [and] (2) d[id] not address how a verification request, notice . . . , or denial of claim should be treated when the document contains an immaterial defect or omission, resulting in unnecessary legal actions and arbitrations” (NY St Dept of Fin Servs, Notices of Adoption, 11 NYCRR 65-3.5, 65-3.8, available at 2013 NY Reg Text 292688 ¶ 3 [eff Apr. 1, 2013]).

One of the amendments granted additional discretion to the insurer, providing that “an [*14]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] [emphasis added]). The second required that “[a]n applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply” (11 NYCRR 65-3.5 [o] [emphasis added]).

The amendments, read together in the context of its stated regulatory aims and in the context of the verification process generally, demonstrate clear overlap and an inverse relationship between “good cause” for verification requests and “reasonable justification” for denial; that is, the more “good cause” there is, the less “reasonable” any justification for denial, and vice versa. Because Geico has made a strong showing of good cause, Taira’s justification for withholding any responsive items within its control must be equally compelling. To the extent, however, that Taira’s arguments merely categorize the verification requests as irrelevant (because pharmacies are not regulated in precisely the same manner as medical practices), unduly burdensome, or moot because they have already been substantially complied with, the arguments cannot prevail. Taira’s opposition papers, in ably delineating which requests it believes are reasonable or unreasonable, undermine its own argument that it was unable to identify what materials it had chosen or refused to provide.

Accordingly, Geico’s requests are reasonably tailored toward investigation of Taira’s eligibility for benefits. Because the{**67 Misc 3d at 302} claims at issue here were never affirmatively denied, and because Geico had no obligation to do so, these actions are premature and summary judgment dismissing the complaints is appropriate.

The court is not persuaded by Taira’s citations to several cases standing for the proposition that “an insurer is not entitled to obtain documentary material relating to a potential Mallela or fraudulent corporation defense” (plaintiffs’ affirmation), as none are binding upon this court. Indeed, in one of the few appellate cases on this issue, the Appellate Term, First Department held that “[d]efendant is entitled to discovery pertaining to its defense of fraudulent incorporation” (Statewide Med. Servs., P.C. v Travelers Ins. Co., 16 Misc 3d 127[A], 2007 NY Slip Op 51253[U],*1 [App Term, 1st Dept 2007], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U],*8 [Civ Ct, Bronx County 2005] [denying depositions because “defendant’s submission in this case lacks a reliable foundation to infer that the medical providers are engaging in behavior that can be described as ‘tantamount to fraud’ ”]).

Accordingly, the court holds that Geico’s post-EUO verification requests were appropriate, and therefore finds Taira’s response deficient. Because certain items, according to Taira’s own responses, are admittedly outstanding, summary judgment dismissing the complaints as premature is therefore appropriate.

4. HKP Action

HKP argues that “once an application appears for an EUO the carrier is not entitled to [*15]further disclosure and must pay or deny the claim within 30 days of the applicant’s appearance at an EUO” (plaintiffs/Forman affirmation ¶ 21 [HKP action]). The court cannot identify any support for the proposition that all post-EUO demands are improper, including in HKP’s own citation in support of that proposition; to the contrary, the no-fault regulations explicitly provide that “[t]he insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested” (11 NYCRR 65-3.5 [c] [emphasis added]). Notably, HKP did not argue that a physical therapy practice would not be subject to inquiries into corporate or employment structure; rather, it repeated the pharmacy arguments made in the Taira action—despite the fact that HKP is not a pharmacy—which the court addressed above (plaintiffs/Forman affirmation ¶ 23 et seq. [HKP action]).

{**67 Misc 3d at 303}HKP also argues that it has substantially complied with the verification requests and cannot produce the remainder of the records. Specifically, HKP focuses on Patel’s EUO testimony that HKP could not produce records of its subtenant’s payments because it did not possess the rent checks (plaintiffs/Forman affirmation ¶¶ 34-38, citing Geico exhibit 4 at 86-87 [HKP action]). Relying on this testimony, HKP argues that responding to Geico’s follow-up demands was unnecessary because Geico “did not respond to [or acknowledge HKP’s] objection at the EUO” (plaintiffs/Forman affirmation ¶ 39 [HKP action]). But Geico did respond; in addition to the subsequent letters, Geico’s counsel followed up Patel’s statements regarding the rent check by asking if HKP could produce rent invoices (Geico exhibit 4, tr at 87, lines 7-24).

In any event, however, other than disputing that the requests were inappropriate, HKP does not argue that it substantially complied with the other verification requests seeking checks to “Mike” for transportation services from Patel and/or HKP from September through December 2015 or Chase records. Based on the court’s holding that such requests were appropriate, the regulations authorized Geico’s denial of HKP’s claims for HKP’s failure to respond to timely verification requests. Accordingly, summary judgment dismissing the HKP action is appropriate.

Conclusion and Order

For the above reasons, it is hereby ordered that in Chen (index No. CV-702201/17), Geico’s motion for summary judgment (seq No. 001) is granted, and the complaint shall be dismissed without prejudice as premature; and it is further ordered that in Devito (index No. CV-702185/17), Geico’s motion for summary judgment (seq No. 001) is granted, and the complaint shall be dismissed without prejudice as premature; and it is further ordered that in Flores (index No. CV-702233/17), Geico’s motion for summary judgment (seq No. 001) is denied, and upon searching the record, it is ordered and adjudged that in Flores (index No. CV-702233/17), the Clerk of Court shall enter judgment for plaintiff on the first and second causes of action in the [*16]amount of $2,364, plus interest at 2% per month from August 7, 2017, pursuant to 11 NYCRR 65-3.9 (a) and attorneys’ fees pursuant to 11 NYCRR 65-4.6; and it is further ordered and adjudged that in Flores (index No. CV-702233/17), the Clerk of Court shall enter judgment for plaintiff on the third and fourth causes of action in the amount of $125.02, plus interest at 2% per month{**67 Misc 3d at 304} from August 7, 2017, pursuant to 11 NYCRR 65-3.9 (a) and attorneys’ fees pursuant to 11 NYCRR 65-4.6; and it is further ordered and adjudged that in Flores (index No. CV-702233/17), the Clerk of Court shall enter judgment for plaintiff on the fifth and sixth causes of action in the amount of $399, plus interest at 2% per month from August 7, 2017, pursuant to 11 NYCRR 65-3.9 (a) and attorneys’ fees pursuant to 11 NYCRR 65-4.6; and it is further ordered that in Fores (index No. CV-702213/17), Geico’s motion for summary judgment (seq No. 001) is denied; and upon searching the record, it is further ordered and adjudged that in Fores (index No. CV-702213/17), the Clerk of Court shall enter judgment for plaintiff on the first and second causes of action in the amount of $1,432.05, plus interest at 2% per month from August 7, 2017, pursuant to 11 NYCRR 65-3.9 (a) and attorneys’ fees pursuant to 11 NYCRR 65-4.6; and it is further ordered that in Generoso (index No. CV-700042/18), Geico’s motion for summary judgment (seq No. 001) is granted, and the complaint shall be dismissed without prejudice as premature; and it is further ordered that in Gomez (index No. CV-701984/17), Geico’s motion for summary judgment (seq No. 001) is granted in part and denied in part to the extent that Taira’s third and fourth causes of action shall be severed and dismissed without prejudice as premature; and it is further ordered that in Nauth (index No. CV-702243/17), Geico’s motion for summary judgment (seq No. 001) is granted, and the complaint shall be dismissed without prejudice as premature; and it is further ordered that in Williams (index No. CV-702247/17), Geico’s motion for summary judgment (seq No. 001) is granted, and the complaint shall be dismissed without prejudice as premature; and it is further ordered that in Xu (index No. CV-703115/17), Geico’s motion for summary judgment (seq No. 001) is granted, and the complaint shall be dismissed without prejudice as premature; and it is further ordered that in Zahmoul (index No. CV-700208/18), Geico’s motion for summary judgment (seq No. 001) is granted, and the complaint shall be dismissed without prejudice as premature; and it is further[*17] ordered that in Hyppolite (index No. CV-702191/16), Geico’s motion for summary judgment (seq No. 001) is granted, and the complaint shall be dismissed with prejudice; and it is further ordered that Geico shall serve a copy of this order with notice of entry for each action under separate cover/index number within 20 days of receipt.

Footnotes

Footnote 1:In early 2019, Geico sued MSB, Bassanell, and several others in the federal Eastern District of New York, alleging a “massive, on-going fraudulent scheme . . . spearheaded by a pharmacist, Michael Slava Bassanell, who has used a series of three pharmacies . . . to submit thousands of fraudulent no-fault insurance charges for medically unnecessary, illusory, ‘pain relieving’ prescription drug products” (defendant’s reply, exhibit 1; ED NY, case No. 1:19-cv-00232-NG-PK).

Footnote 2:Defense counsel submitted numerous, unpaginated letters as one exhibit, and also failed to paginate affirmations (defendant’s reply, exhibit 2). In the future, given the size and detail of such submissions, counsel are encouraged to submit and flag each communication as individual exhibits.

Footnote 3:These individuals were also named in the federal complaint (see n 1).

Footnote 4:While each Geico submission is tailored to its respective claim, it appears that Taira’s responses are all identical. Accordingly, they are addressed together below.

Footnote 5:It appears that Taira did not submit the bills within 45 days after services were rendered. However, 11 NYCRR 65-1.1 permits extension when “the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation” and, in any event, Geico does not dispute that the claim was timely.

Footnote 6:As discussed in detail below, though Geico characterizes this follow-up as timely, it is not.

Footnote 7:Geico attaches letters dated June 26 and June 28, 2017, which appear to be identical.

Footnote 8:As discussed in Background Facts and Procedural History (I) (C) below, in this action and others in which Geico sent a follow-up letter in mid-to-late August, Taira’s first consolidated response is dated August 8, 2017, but likely not received and processed until after Geico’s follow-up letter.

Footnote 9:To the extent a second letter, also attached as exhibit A, bears a June 28, 2017 date, the August 10, 2017 letter is nevertheless untimely.

Footnote 10:Carothers was decided before these motions were argued and fully submitted, and was discussed by counsel at oral argument.

[*1]

Civil Court of the City of New York, Richmond County, November 12, 2019

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

Law Offices of Gabriel & Shapiro, Wantagh, for plaintiff.

{**66 Misc 3d at 420}This action for first-party no-fault benefits arises out of a motor vehicle accident that occurred on August 2, 2014, involving plaintiff’s assignor, Chetram Paraboo. Due to the injuries that he sustained in the accident, plaintiff’s assignor received treatment at Krasner Chiropractic, P.C. (hereinafter, plaintiff). Plaintiff commenced this action seeking to recover $1,754.62 for services that were performed between August 4, 2014, and January 15, 2015, plus statutory interest and attorney’s fees.

Defendant IDS Property & Casualty Insurance Company now moves for summary judgment dismissing the complaint pursuant to CPLR 3212. Defendant argues it is entitled to summary judgment as the subject occurrence was not a covered event as it was an intentional act and plaintiff’s assignor made misrepresentations of fact and false and/or fraudulent statements in the presentation of the claim. Alternatively, defendant argues that it is entitled to summary judgment based upon plaintiff provider’s failure to appear for duly scheduled examinations under oath (EUOs) or partial summary judgment as to defendant’s prima facie case.

Plaintiff cross-moves for partial summary judgment as to its own prima facie case and opposes defendant’s motion. In response, defendant has submitted opposition to plaintiff’s cross motion.

In support of its motion, defendant submits the affidavit of Michael A. Callinan, Esq., of Bruno, Gerbino & Soriano, LLP, and the affidavits of senior special investigator James Glampe and litigation examiner Carrie Erickson. Defendant also submits copies of the police accident report relating to the subject occurrence and the EUO transcripts of Liloutie Sydnor (nonparty owner of the vehicle operated by nonparty Lisa Brown) taken on October 13, 2014; of plaintiff’s assignor, Chetram Paraboo, taken on November 24, 2014; of Lisa Brown (nonparty operator of the vehicle in which plaintiff’s assignor was a passenger) taken on December 2, 2014; and of Glenis Brown (nonparty husband of Liloutie Sydnor and the father of operator Lisa Brown) taken on March 23, 2015.

In his affidavit, Mr. Glampe states that the subject occurrence was not a covered event in that it was an intentional or staged act. He selectively provides a recitation of alleged discrepancies in the testimony of each of the above stated EUO witnesses regarding the subject occurrence. He also claims that the police accident report relating to the subject occurrence {**66 Misc 3d at 421}and a witness stated that the driver of the host vehicle, nonparty Lisa Brown, was attempting to make an extremely dangerous and illegal right turn.^[FN1]

In his affidavit, Mr. Callinan states that he is a partner with the firm of Bruno, Gerbino & Soriano, LLP, attorneys for defendant. In that capacity, he is personally responsible for the day-to-day handling of the within matter and all claims referred to his firm by defendant and its parent company Ameriprise Financial, Inc. Mr. Callinan sets forth the policies and procedures relating to the scheduling, confirmation and taking of EUOs in the ordinary course of business for the within matter. According to Mr. Callinan, in an effort to verify the medical bills for treatment rendered an EUO of plaintiff provider was scheduled for January 19, 2015, and February 27, 2015 (see defendant’s moving papers at exhibits S, T, X). The EUO request, dated December 19, 2014,^[FN2] scheduled the EUO of plaintiff provider for January 19, 2015. An amended EUO request, dated December 24, 2014,^[FN3] was sent requesting the EUO for the same date. On January 15, 2015, a letter was received from plaintiff’s counsel advising that plaintiff provider would not appear at the scheduled EUO since the claims had been denied. In response, defendant sent a letter acknowledging plaintiff’s letter, advising that the previously denied claims were being reconsidered and requesting alternate dates for the EUO. On January 19, 2015, plaintiff provider failed to appear for the EUO, and defendant proceeded to place a statement on the record. A second EUO request letter, dated January 22,{**66 Misc 3d at 422} 2015,^[FN4] scheduled the EUO for February 27, 2015. On or about January 23, 2015, and February 2, 2015, correspondence was exchanged between the attorneys as to defendant’s previously issued denials and the status of plaintiff provider’s claims in light of Lisa Brown’s request to be provided with another opportunity to appear for her EUO. By letter, dated February 25, 2015,^[FN5] defendant reiterated to plaintiff provider’s counsel that the previously denied claims were being reconsidered and to provide dates upon which plaintiff provider would be available to appear for an EUO. On February 27, 2015, plaintiff provider failed to appear, and a statement was placed on the record. Mr. Callinan was present in his office on January 19, 2015, and February 27, 2015. If plaintiff provider had appeared for its EUO on either day, he personally would have conducted said examination.

In her affidavit, Ms. Erickson initially states that an investigation of the subject occurrence determined that it was a staged intentional loss rather than an accident. She also asserts that plaintiff provider failed to appear for three EUOs^[FN6] that were needed to determine the facts of the alleged loss and{**66 Misc 3d at 423} to verify that all treatment and medical supplies billed on behalf of plaintiff’s assignor were received. She further asserts that each of the five claimed bills was denied within 30 days of receipt or within 30 days of plaintiff’s failure to appear for an EUO.^[FN7] Ms. Erickson also sets forth the policies and procedures utilized in the regular course of business for the creation and maintenance of delay letters with the explanation of benefits and the denial of claim forms—including those relating to the within matter (see defendant’s moving papers at exhibits D, E, F, G, H, I, J, L). She also sets forth the policies and procedures by which mail is received and sent from defendant’s offices and the methods by which the dates of same are recorded in the appropriate claim files.

In opposition to defendant’s motion and in support of its cross motion, plaintiff argues that defendant has failed to demonstrate that the subject incident was not a covered event; defendant’s denials are late and invalid as defendant failed to establish that it properly sought the EUOs; defendant deliberately defaulted plaintiff at the EUOs; defendant never formally rescinded its earlier denials; and there is no authority which would allow defendant to belatedly assert a new defense or issue verification requests beyond the statutory deadline. Plaintiff also argues that the testimony contained within the above stated affidavit of Ms. Erickson and the NF-3s annexed{**66 Misc 3d at 424} to defendant’s moving papers as exhibit C clearly demonstrate and establish plaintiff’s prima facie case.

Defendant opposes the within cross motion arguing that plaintiff has failed to establish that defendant failed to timely deny any of the claims at issue or prove its prima facie case that the prescribed statutory billing forms had been mailed and received, and that the payment of the no-fault benefits was overdue.

The portion of defendant’s motion seeking summary judgment on the basis that the subject occurrence was not a covered event because it was an intentional act and that plaintiff’s assignor made misrepresentations of fact and false and/or fraudulent statements in the presentation of the claim is denied. Defendant has failed to make a prima facie showing of entitlement to summary judgment. While assorted portions of the EUO testimony offered by the above stated affiants do conflict, said conflicts serve to create, rather than remove, issues of fact regarding how the subject occurrence took place. Furthermore, even if the above stated police accident report were in admissible form, which it is not as it is not certified as a business record pursuant to CPLR 4518, the officer did not witness or perform any investigation into the occurrence.

The portion of defendant’s motion seeking summary judgment on the basis that plaintiff failed to appear for a duly scheduled EUO is also denied and the defense of EUO no-show is precluded. As noted above, defendant initially requested plaintiff provider’s appearance at an EUO after it had received and denied plaintiff provider’s first three bills on the basis that the subject occurrence was not a covered event and that plaintiff’s assignor, Chetram Paraboo, had failed to appear for an EUO. Defendant’s request for plaintiff provider’s appearance at an EUO was sent after the denial of the first three bills and prior to defendant’s receipt of bills 4 and 5. At the time of the initial EUO request of plaintiff provider, there were no outstanding bills or claims.

This is a case of first impression wherein the defendant, after issuing a denial for one or more timely submitted claims, without notice to the plaintiff, decides to “reconsider” said claims while demanding that plaintiff provider appear for an EUO relating to the previously denied claims. The legislature established specific and uniform guidelines relating to the time and way no-fault claims are submitted, reviewed and denied. In Dermatossian v New York City Tr. Auth. (67 NY2d 219, 225 [1986]), the Court of Appeals stated that{**66 Misc 3d at 425}

“[t]o implement this legislative aim of curtailing delay and reducing expense in the adjustment of motor vehicle accident claims, the regulations (see,11 NYCRR 65.15) are written to encourage prompt payment of claims, to discourage investigation by insurers, and to penalize delays. Permitting evidence in a personal injury lawsuit of the fact that the defendant (if self-insured) or its insurer had paid the plaintiff the statutorily obligated first-party benefits would unquestionably frustrate the very purpose of the No-Fault Law by discouraging insurers from making prompt and voluntary payment of claims.”

There is no provision or exception in the no-fault statutes that provides for the defendant to unilaterally “review” cases again. This would obviate the intent and purpose of the No-Fault Law and create a dangerous precedent that could be used by defendants to improperly request additional verification such as EUOs or independent medical examinations.

Defendant is bound by its denials of November 17, 2014, and November 25, 2014 (see exhibits E, F, H of defendant’s moving papers), thereby making any EUO request of plaintiff provider untimely. Accordingly, defendant’s motion for summary judgment is denied and plaintiff’s cross motion is granted to the extent that plaintiff has demonstrated its prima facie case. The sole issue for trial is whether this is a covered event due to misrepresentations of the facts or it being a staged accident.

The remaining contentions of the parties are denied as moot.

Footnotes

Footnote 1:The court is given pause by what appears to be an attempt by defendant, through Mr. Glampe, to mislead this court. Defendant has clearly cherry-picked portions of the police accident report (see exhibit M of defendant’s moving papers) entitled “Accident Description/Officer’s Notes.” A whole reading of the section finds that it actually states:

“At t/p/o driver #1 states while driving W/B N. Conduit third lane/right lane driver #2 went from the middle lane attempted to make illegal right on Dumont causing her vehicle to collide with driver #2; Driver #2 states while driving straight on N. Conduit driver #1 rear ended her causing collision. No injuries; witness added to report.”

The police officer did not witness the incident and there are no affidavits from the driver of vehicle number 1 or the listed witness.

Footnote 3:Which addresses EIP/Claimant: Liloutie Sydnor and Lisa Brown (see exhibit T of defendant’s moving papers).

Footnote 4:Which addresses EIP/Claimant: Liloutie Sydnor & Lisa Brown (see exhibit X of defendant’s moving papers).

Footnote 5:Responding to a letter from plaintiff’s counsel that was received on February 24, 2015. Said letter requested proof that the previous denials had been properly rescinded and advised that plaintiff would not be available to appear for an EUO on February 27, 2015.

Footnote 6:Scheduling letters annexed to defendant’s moving papers as exhibits S, T and X only address EUOs scheduled for January 19, 2015, and February 27, 2015. Bills 1-3 were denied by defendant prior to the issuance of defendant’s first letter, dated December 19, 2014, requesting that plaintiff provider appear for an EUO (see defendant’s moving papers at exhibit S). Defendant’s second EUO letter, dated December 24, 2014 (prior to defendant’s receipt of bills 4 and 5), informed plaintiff provider’s attorney for the first time that defendant had elected to reconsider plaintiff’s previously submitted claims based on the request of Lisa Brown and plaintiff’s assignor Chetram Paraboo for an additional opportunity to appear at an EUO (see defendant’s moving papers at exhibit T). Said letter solely addressed the first three bills that had previously been submitted and were denied prior to defendant’s first EUO letter requesting that plaintiff provider appear for an EUO (see defendant’s moving papers at exhibits S, T). Defendant’s third letter, dated January 15, 2015, confirms receipt of a letter from plaintiff’s counsel advising that plaintiff would not appear at the EUO scheduled for January 19, 2015, and advised that based on the request of Lisa Brown to appear at an EUO, the claims for the first three bills were reopened and would be considered for payment (see defendant’s moving papers at exhibits U, V). As such, defendant would reschedule plaintiff’s EUO one final time (see defendant’s moving papers at exhibit V). Defendant’s letter of January 22, 2015 (see defendant’s moving papers at exhibit X), attempts to relate back to defendant’s original request of December 24, 2014 (which requested an EUO relating to the bills that had already been denied), as opposed to any new bills (i.e., bill 4 or 5) that may have been received. In addition, despite multiple requests from plaintiff’s counsel, defendant never advised plaintiff provider whether the previously served denials were formerly rescinded and never requested that plaintiff appear for EUOs relating to bills 4 or 5 as each succeeding letter from the defendant related to the initial EUO letter (see defendant’s moving papers at exhibits S, T, U, V, X, Y, Z, AA, BB).

Footnote 7:Bill 1 for date(s) of service (DOS) August 4, 2014-September 3, 2014, was received on September 22, 2014, delayed on October 8, 2014, denied on November 17, 2014, and re-denied on March 19, 2015, and July 7, 2015; bill 2 for DOS September 4, 2014-September 25, 2014, was received on October 6, 2014, delayed on October 20, 2014, denied on November 17, 2014, and re-denied on March 19, 2015, and July 7, 2015; bill 3 for DOS October 10, 2014, was received on November 17, 2014, denied on November 25, 2014, and re-denied on March 19, 2015, and July 7, 2015; bill 4 for DOS November 20, 2014-December 17, 2014, was received on December 29, 2014, allegedly delayed on January 12, 2015, and February 12, 2015, denied on March 12, 2015, and re-denied on July 7, 2015; bill 5 for DOS December 30, 2014-January 15, 2015, was received on February 5, 2015, allegedly delayed on February 12, 2015, denied on March 12, 2015, and re-denied on July 7, 2015 (see affidavit of Carrie Erickson ¶ 9; defendant’s moving papers at exhibits D-L).

741615/17

Pryanka Arora, Esq.

Law Office of Natalia Vassilieva, P.C.

3042 Ocean Avenue, 1st Floor

Brooklyn, NY 11235

Lawrence N Rogak, Esq.

Lawrence N Rogak LLC

3355 Lawson Boulevard

Oceanside, NY 11572

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

Notice of Motion and Affirmation in Support 1,2

Notice of Cross-Motion and Affirmation in Support 3, 4

Affirmation in Opposition 5

The Court hereby sua sponte vacates its decision and order dated June 9, 2019, and substitutes the following:

In an action to recover assigned first-party no-fault insurance benefits arising from an [*2]accident which occurred on November 30, 2015 in New Jersey, defendant moves for summary judgment based on a lack of New York insurance coverage as well as for a determination that New Jersey law applies to this action. Plaintiff, a New York corporation which rendered medical services in New York to its assignor, a New York resident, opposes defendant’s motion and cross-moves for summary judgment in its favor seeking payment of bills submitted in the amount of $3,745.37 based on the bills and an affidavit showing that the plaintiff had mailed them to the defendant more than thirty days prior to starting suit and had not received any denials of benefit.

The basis of defendant’s motion is the claim that plaintiff will be unable to submit proof that defendant’s policy covers the subject incident. To maintain a meritorious action, defendant claims plaintiff “must necessarily establish that either 1) the underlying policy under which NYS statutory no-fault benefits are sought contained a mandatory NYS PIP endorsement, and/or 2) that the actual motor vehicle accident giving rise to plaintiff’s claim occurred within New York State.” Defendant also argues that the laws of New Jersey should be applied since “The claimant was a pedestrian struck by a vehicle insured under a New Jersey policy.”

To support these claims, the defendant submits an uncertified copy of a police report purporting to show that the subject accident occurred in New Jersey and an affidavit from its claim representative Ms. Outhouse which simply states that defendant’s policy does not cover the alleged incident based on her review of the file.

As the plaintiff has not objected to the admissibility of the police report, its contents will be considered by the court. See, Bank of NY Mellon v Gordon 171 AD3d 197 [2d Dept 2019]. The police report indicates that the subject accident occurred in New Jersey between a pedestrian who resided in New York and a New Jersey driver driving a vehicle registered in New Jersey.

Plaintiff responds that New York law should apply as it is a New York corporation which rendered treatment to a New York resident in New York. Additionally, the plaintiff argues that the defendant has failed to produce a copy of its policy and thus failed to show its lack of a New York State no-fault endorsement.

New York utilizes the ‘grouping of contacts’ or ‘center of gravity’ analysis as the appropriate approach to resolve choice of law questions in cases premised on breach of contract. The ‘grouping of contacts’ approach seeks to determine which state has the most significant relationship to the contract or the parties. (See Matter of Arbitration between Allstate Ins. Co. (Stolarz), 81 NY2d 219 [1993], revg 178 AD2d 899 [3d Dept 1991]. The court must consider the spectrum of significant contacts, rather than a single possible gratuitous event, in its determination as to which state has the most significant relationship to the parties or the contract. (Id. See also, Matter of Eagle Ins. Co. v. Singletary, 279 AD2d 56 [2d Dept 2000]). Among the contacts to be considered are the state where the parties entered into the contract, negotiated and performed the contract, the domicile of the parties, and the place of subject matter of the contract. In the context of insurance contracts, the jurisdiction with the most significant relationship to the transaction and the parties will generally be the jurisdiction which the parties understood was to be the principal location of the insured risk. See Matter of Midland Ins. Co., 16 NY3d 536 [2011], revg 71 AD3d 221 [1st Dept 2010].

In Advanced Med. Diagnostics of Queens, P.C. v Geico Ins. Co., 38 Misc 3d 140(A) [App Term 2d Dept, 2d, 11th and 13th Jud Dists 2013], the court applied a ‘grouping of contacts’ or ‘center of gravity’ analysis to a first-party no-fault case in which the plaintiff’s assignor was injured in a motor vehicle accident which occurred in New York. The vehicle in question was [*3]being driven by a New Jersey resident who owned the vehicle which was insured by a New Jersey automobile insurance policy. Plaintiff, a New York corporation, rendered medical services to its assignor in New York. In that case, the court held that New Jersey law applied.

When dealing with procedural matters, such as the burden of proof and the admissibility of evidence, the law of the forum state applies. (See, Emmons v Country Lincoln Mercury Sales, Inc., 111 AD2d 213 [2d Dept 1985]; Able Cycle Engines, Inc. v Allstate Ins. Co., 84 AD2d 140 [2d Dept 1981]). Contrary to defendant’s contention, as the movant for summary judgment, the burden of proof is on the defendant to establish its policy does not cover the subject incident and that the laws of New Jersey apply to this case.

To prevail, the movant must establish entitlement to judgment as a matter of law by submitting admissible evidentiary proof (Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065 [1979]), with which includes an affidavit of a person having knowledge of the facts and other admissible evidence (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965 [1985]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]). Summary judgment should not be granted if there is any doubt as to the existence of a triable issue of fact. (Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978]). The court’s function in determining such a motion, is issue finding, not issue determination. (Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]).

In the case at bar, defendant submits no admissible evidence to establish its policy does not cover the subject incident. Ms. Outhouse’s affidavit states defendant’s policy does not cover the subject incident based on her review of the claim file. However, she does not specify what records she reviewed, including whether she even reviewed defendant’s subject insurance policy at issue. Ms. Outhouse further makes no attempt to establish the foundation of any reviewed records nor proffer the records for the court’s review. In fact, Ms. Outhouse does not even state whether she reviewed defendant’s subject insurance policy, nor does she submit a copy in support of defendant’s motion.

The contents of business records are inadmissible without the introduction of the records themselves. (See, Bank of NY Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]), and it is far from clear here what contents of what records Ms. Outhouse relied upon. Accordingly, Ms. Outhouse’s affirmation is conclusory and lacks probative value (Utica Acupuncture P.C. v. Amica Mut. Ins. Co., 55 Misc 3d 126(A), 2017 NY Slip Op. 50331(U) [App. Term., 1st Dept., 2017]). Similarly, the defendant’s failure to proffer its insurance policy or any admissible evidence as to its contents leaves open the possibility that the policy covering the subject accident was issued in New York or otherwise contains a New York no-fault endorsement which would permit the application of New York law. The defendant has failed to sustain its burden of proof to establish either that its policy does not cover the subject incident or that the laws of New Jersey apply to this case. Accordingly, defendant’s motion is denied.

Plaintiff seeks summary judgment based upon proof of the submission to the defendant of a timely claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant failed to pay or deny the claim within the requisite 30-day period. Defendant neither rebuts the sufficiency of the proof of claim nor submits either proof of payment or any denials.

In New York, a no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a timely claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant either failed to pay or deny the [*4]claim within the requisite 30-day period or issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2nd Dept 2006].

Plaintiff’s motion must nonetheless be denied. Although the defendant failed to dispel all issues of fact as to whether this case should be controlled by New Jersey law, its submission of the police accident report without objection by the plaintiff sufficiently raises an issue of fact regarding which state’s substantive law should be applied to this case.

In Advanced Med. Diagnostics of Queens, P.C. v Geico Ins. Co., the court pointed out that a conflict does exist between New York law and New Jersey law, since under New Jersey law, unlike New York Law, a provider has the burden to establish that the provided services were medically necessary, and this defense is non-precludable, that is, an insurer can raise a lack of medical necessity defense at any time.

Under New Jersey law, as the defendant has failed to show that the plaintiff’s assignor was, under a different insurance policy, a “named insured” or “a resident relative in [a] named insured’s household,” as those terms are used in N.J. Stat. § 39:6A-4.2, this case would fall under N.J. Stat. § 39:6A-4 which provides that no-fault (PIP) coverage is afforded to pedestrians injured by a qualifying automobile. See e.g., Lumpkins v Mkt. Transition Facility of New Jersey, 283 NJ Super 181 [Super Ct 1995]. Plaintiff has shown by admissible evidence that it gave defendant timely notice within twenty-one days of commencement of treatment as required by N.J. Stat. § 39:6A-5(a). Plaintiff additionally has shown that its bills are overdue, both as that term is defined by N.J. Stat. § 39:6A-5(g) and by our own 11 NYCRR 65-3.8(a). Plaintiff has not, however, submitted evidence proving the medical necessity of the services it rendered.

Accordingly, plaintiff’s cross-motion is granted only to the extent that it has proven that bills totaling $3,745.37 were timely submitted to the defendant and that no denial was issued. Defendant has raised a triable issue of fact as to whether New Jersey law should apply to this case. Should the defendant prove at trial that its policy in question contains only a New Jersey no-fault (PIP) endorsement and not a New York no-fault endorsement, then the plaintiff shall bear the burden of proving the medical necessity of the services it rendered.

Defendant’s motion is denied and plaintiff’s cross-motion is granted only to the extent indicated. This constitutes a decision and order of the court.

Dated: October 22, 2019

________________________

HON. ODESSA KENNEDY

Judge of the Civil Court

744329/16

Attorney for Plaintiff
Oleg Rybak, Esq.
The Rybak Firm, PLLC
1810 Voorhies Ave., 3rd Floor, Ste. 7
Brooklyn, NY 11235
(718) 975-2035

Attorney for Defendant
Katherine A. Hazelton, Esq.
Law Office of Goldstein & Flecker
2 Huntington Quadrangle, Ste. 2N01
Melville, NY 11747
(516) 714-7927

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

NOTICE OF MOTION & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION 3

SUR REPLY

This is an action by Plaintiff medical provider to recover assigned first-party no-fault benefits for treatment provided to its assignor, David Cenevil (Injured Party). Plaintiff argues that it met its prima facie burden and requests that summary judgment be granted in its favor pursuant to CPLR 3212. Defendant opposes Plaintiff’s motion and cross moves for dismissal on grounds that the injuries were the result of an intentional assault when the insured, Bernard Foy (Insured), used his vehicle as a weapon to deliberately strike the Injured Party. Accordingly, Defendant asserts that the Injured Party’s injuries were not the result of an accident, but an intentional act which is not a covered loss under 11 N.Y.C.R.R. § 65-2.2(a). This court agrees.

In New York, an insurer must provide no-fault insurance benefits for injuries resulting from an accident. 11 N.Y.C.R.R. § 65-2.2(a), requires coverage for “personal injuries caused by an accident arising out of the use or operation of a motor vehicle” (emphasis added). In order for an insurer to be relieved of its obligation to cover a loss, it must come forward with evidence to demonstrate that the injuries were a result of an intentional or deliberate action (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d 349 [2011]; Liberty Mut. Ins. Co. v. Goddard, 29 AD3d 698 [2d Dept. 2006]). An insurer must establish its “founded belief” that the incident was an intentional act by a preponderance of the evidence (A.B. Med. Services PLLC v. Eagle Ins. Co., 3 Misc 3d 8, 9 [2d Dept. 2003]; V.S. Med. Servs., P.C. v. Allstate Ins. Co., 25 Misc 3d 39 [2d Dept. 2009]), and can meet its burden with circumstantial evidence (State Farm Mut. Auto. Ins. Co., v. Laguerre, 305 AD2d 490 [2d Dept. 2003]).

Here, Defendant has met its burden through substantial documentary evidence including a police accident report, a criminal complaint an arrest report and an affidavit from Defendant’s Special Investigation Unit (SIU) investigator Doug Pfleging. These documents consistently support a clear finding that the incident which lead to the Injured Party’s injuries was a result of an intentional act. According to the police accident report, the Insured deliberately hit the Injured Party with his vehicle: “At TPO witness stated that deft had a verbal dispute with his step son [sic]. Witness stated that deft (step father) used his vehicle to hit c/v and fled the accident scene” (Deft. Exh. B). Pursuant to the arrest report, the Insured was subsequently arrested on several charges including felony assault with intent to cause serious physical injury and felony assault for using his vehicle as a weapon (Deft. Exh. C).

In New York, to determine whether an event was accidental “it is customary to look at the casualty from the point of view of the insured, to see whether or not it was unexpected, unusual and unforeseen'” (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d at 355 quoting Miller v. Continental Ins. Co., 40 NY2d 675, 677 [1976]). The view point of the injured party is not considered “[b]ecause an injury is always fortuitous to a non-consenting victim” (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d at 355 quoting Michaels v. City of Buffalo, 85 NY2d [*2]754, 759 [1995]). The same is true when the injured party seeks benefits under the policy’s uninsured motorist endorsement (Castillo v. Motor Vehicle Indemnification Corp., 161 AD3d 937 [2d Dept. 2018]; Utica Mut. Ins. Co. v. Burrous, 121 AD3d 910 [2d Dept. 2014]). Here, both the witness’ statement and the testimony from the Injured Party are consistent with a finding that from the Insured’s perspective, the incident was a deliberate act meant to cause injury (Deft. Exh. D; see generally McCarthy v. Motor Vehicle Indemnification Corp., 12 NY2d 922 [1963]).

Plaintiff’s arguments concerning its prima facie case and timely denial of the claims are irrelevant. Defendant insurer “is not precluded, despite untimely disclaimer, from raising as a defense its denial of liability on the ground that the services rendered to treat the injuries at issue did not arise from a covered accident” (General Hospital v. Chubb Group of Insurance Companies, 90 NY2d 195, 201 [1997]). Furthermore, Defendant’s “strict compliance with the time requirements of both statute and regulations may be obviated and the preclusion remedy rendered unavailable when denial of claims is premised on a lack of coverage” (General Hospital v. Chubb Group of Insurance Companies, 90 NY2d at199).

Based on the foregoing, Plaintiff’s motion for summary judgment is denied. Defendant’s cross motion to dismiss is granted.

This constitutes the decision and order of this court.

September 4, 2019
Brooklyn, NY
ENTER.
__________________________________
CONSUELO MALLAFRE-MELENDEZ
Judge, Civil Court

732771/17

Attorney for plaintiff:
Oleg Rybak, Esq.
The Rybak Firm PLLC
1810 Voorhies Avenue
3rd Floor Suite 7
Brooklyn, New York 11235

Attorney for defendant
Lawrence N. Rogak, Esq.
Lawrence N. Rogak LLC
3355 Lawson Boulevard
Oceanside, New York 11572

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

Notice of Motion and Affirmation in Support 1,2

Notice of Cross-Motion and Affirmation in Support 3,4

Affirmation in Opposition to the Cross-Motion 5

The Court hereby sua sponte vacates its decision and order dated November 15, 2017, and substitutes the following:

In an action to recover assigned first-party no-fault insurance benefits arising from an accident which occurred on October 1, 2015, defendant moves for summary judgment based on plaintiff’s assignor’s alleged failure to appear for an examination under oath (“EUO”) and upon the defense of policy exhaustion. Plaintiff cross-moves for an order: 1) awarding summary judgment in favor of plaintiff pursuant to CPLR 3211(c) or CPLR 3212(a); 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits was overdue; and 3) dismissing defendant’s affirmative defenses pursuant to CPLR 3211(b).

It is well settled that summary judgment is a drastic remedy (See Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]), which should not be granted if there is any doubt as to the existence of a triable issue of fact. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978]). Hence, the court’s function in determining such a motion, is issue finding, not issue determination. (Id. Sillman supra at 404).

To prevail, the movant must establish entitlement to judgment as a matter of law, by submitting admissible evidentiary proof. (See Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (See Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]).

EUO NON

APPEARANCE DEFENSE

While plaintiff’s non-appearance at an EUO vitiates defendant’s obligation to provide coverage (see Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]), to show entitlement to summary judgement, defendant must prove that it properly mailed the EUO requests to the plaintiff, who failed to appear for the EUO, and that defendant mailed plaintiff a timely denial. (Interboro Ins. Co. v Clennon, 113 AD3d 596, 979 N.Y.S.2d 83, 2014 NY Slip Op 00092 [2d Dept 2014]).

Proof of mailing may be shown based on actual mailing or that the item was mailed pursuant to the affiant’s standard office practices and procedures designed to ensure proper mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 857 N.Y.S.2d 211, 2008 NY Slip Op 04072 [2d Dept 2008]). Defendant’s affidavit submitted in the case at bar, fails to establish that the described procedures was designed to ensure that the EUO letters were addressed to the correct recipient and properly mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 7 N.Y.S.3d 429, 2015 NY Slip Op 03340 [2d Dept [*2]2015]).

To establish the proper mailing of the EUO requests, defendant submits an affidavit from its claim representative, Christina Valentin. Ms. Valentin states that an EUO notice was sent to plaintiff’s assignor, on December 9, 2015, scheduling the EUO for January 6, 2016; and upon assignor’s non-appearance, a follow up notice was sent on January 7, 2016 re-scheduling the EUO for February 9, 2016. Ms. Valentin describes the documents which purport to the be the notices as ” true and accurate copies of the scheduling notices sent by the Law offices of Lawrence N. Rogak LLC” to plaintiff’s assignor.

Contrary to Ms. Valentin’s statement, however, the EUO notices which were attached to defendant’s motion are not generated by the Law Office of Lawrence N. Rogak LLC, but by the Law Firm of Milber Makris Plousadis & Beiden, LLP. Ms. Valentin’s assertions are further erroneous in that the notices seek an EUO of the plaintiff’s employee, Dr. Darren T. Mollo, DC, and not of plaintiff’s assigner, who notably is not even among the named claimants listed in the notices. Thus, defendant fails to establish that it requested an EUO of plaintiff’s assignor, and further, that it accurately addressed and mailed the request to him. Each of said deficiencies, warrants denial of defendant’s motion.

In addition, defendant fails to meet its burden of showing that plaintiff’s assignor failed to appear for the EUOs. (Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]). Generally, to establish burden of plaintiff’s failure to appear for a scheduled EUO, a statement from an attorney alleging that he or she was present in the office on the relevant dates and that he or she would have been the one to conduct the EUO is sufficient to demonstrate personal knowledge of the no-show (T & J Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op. 50406(U) [App Term, 2d Dept, 2d 11th & 13th Jud Dists, 2015]).

In the instant matter, the only indication of plaintiff’s assignor’s nonattendance at the EUO is defense counsel’s conclusory affirmation in support of the instant motion which is devoid of evidence of his personal knowledge of the alleged non-attendance. Counsel neither indicates whether he was assigned to conduct the EUO nor whether he was present at the EUO. Accordingly, defendant’s motion is further denied on the basis of failure to establish the assignor’s EUO non-appearance.

Moreover, defendant fails to show the timeliness of its denial. “A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) If plaintiff fails to provide the requested verification within 120 calendar days from the date of the initial request, the insurer may deny the claim. (11 NYCRR 65-3.5 [o]). No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, (11 NYCRR 65-3.8(a)(1)),

According to the denial, the “final verification” requested was on January 31, 2016. Yet, the moving papers contain no verification request, or any document dated January 31, 2016. As discussed above, the only verification requests annexed to defendant’s papers pertain to claimants whose treatment is not at issue in the instant action.

As defendant has failed to establish entitlement to judgment as a matter of law on the issues of proper mailing of the EUO request, the nonappearance of the plaintiff’s assignor at the EUOs and the timeliness of its denial, its motion for summary judgment, based on the EUO [*3]nonappearance is denied.

POLICY EXHAUSTION DEFENSE

Defendant also seeks to dismiss the complaint on the basis that its policy limits have been properly exhausted.An insurer is not required to pay a claim where the policy limits have been properly exhausted (Hospital for Joint Diseases v. State Farm Mut. Auto Ins. Co., 8 AD3d 533 [2nd Dept., 2004]). An insurer’s payment of full monetary limits set forth in the policy, terminates its duties under the contract (Presbyterian Hosp. in City of New York v. Liberty Mut. Ins. Co., 216 AD2d 448 [2nd Dept., 1995]).

Moreover, when an insurer receives claims for more than $50,000, payments for claims that are submitted prior to the exhaustion of the $50,000 shall be made in the order in which each service was rendered or each expense was incurred (11 NYCRR 65-3.15; Alleviation Medical Services, P.C. v. Allstate Ins. Co., 55 Misc 3d 44 [App. Term, 2nd Dept., 2d, 11th & 13th Jud. Dists., 2017]).

In the case at bar, to demonstrate the policy’s exhaustion based on priority of payment when defendant received the bill, defendant relies on a payment “ledger” which it contends is admissible based on its claim examiner’s statement that the document is “a true and accurate copy of the payment ledger maintained on this claimant.” Defendant, however does not satisfy the evidentiary requirements of CPLR §4518 absent information regarding who or by whom the ledger was created or maintained, or whether the data in the ledger was recorded contemporaneously or soon after the occurrence. As defendant must prove its defense in admissible form, the failure to establish the evidentiary foundation of the ledger, which is the essence of its policy exhaustion defense, warrants denial of its motion.

Aside from its inadmissibility, the ledger’s ambiguity, further prevents defendant from demonstrating the exhaustion defense. The ledger does not specify when defendant received any of the prior bills leading to the exhaustion of the policy, but contains vague headings such as ‘paid date,’ ‘service period start’ and ‘service period end’ without proof that any of the headings represent the date that defendant in fact received or paid the bill at issue.

Finally, defendant fails to establish that its exhaustion of policy defense was based on proper priority of payment of claims. The term “claims,” in the priority of payment regulation excludes claims that are incomplete because verification requests are outstanding (Nyack Hospital v. General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, while an insurer awaits verification of an unverified claim, it may pay subsequently received verified claims, even if that will result in exhaustion of the policy before the requested verification is finally received (Id.).

In the instant matter, defendant admits receipt of the bills at issue on December 16, 2015, when, as per the ledger, the entire $50,000 policy was still available to pay claims since no claims had been yet been paid. Since defendant has failed show that the 30-day period it had to pay the bill was tolled by a properly mailed verification request or by non-compliance with such verification, it failed to justify its nonpayment within the 30-days.

Defendant has failed to establish as a matter of law either the defense of EUO non-appearance or that of policy exhaustion. Thus, its motion for summary judgment is denied.

PLAINTIFF’S CROSS-MOTION

In opposition to the plaintiff’s cross-motion for summary judgment, defendant attaches a copy of a decision in Budget Truck Rental, LLC v. Mollo, Index No.: 150666/15 [Sup. Court, NY County, Lebovits, J.] which included a finding that the time that plaintiff in this case was not [*4]properly incorporated when it submitted its billing in that case which arose from a November 7, 2013 accident and therefore not entitled to payment for those bills.

If it is proven in this case that the plaintiff was ineligible to receive payment as of the date services were rendered, that would constitute a defense. (See, e.g., State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]) Although the defendant presents no denial of claim on this basis of improper or fraudulent incorporation of the plaintiff, it is nonwaivable and may be asserted at any time notwithstanding the absence of a timely denial. (Lexington Acupuncture, P.C. v. General Assur. Co., 35 Misc 3d 42 [App Term, 2d Dept 2012]). Accordingly, there are material issues of fact as to plaintiff’s corporate status at the time that services were rendered necessitating the denial of plaintiff’s cross-motion.

All of the motions before this court are denied with one exception. Plaintiff’s cross-motion pursuant to pursuant to CPLR 3212(g) is granted only to the extent that it has been established that the bills at issue were mailed to and received by the defendant.

Dated: May 17, 2019
______________________
ODESSA KENNEDY
Judge of the Civil Court