[*1]

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

APPEARANCES OF COUNSEL

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

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

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

The court finds that plaintiff established its prima facie showing of entitlement to summary judgment. It is well settled that summary judgment is appropriate when sufficient evidence in admissible form is presented to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Here, in support of its motion, plaintiff submits the affidavit of Sean B. Diamond, D.C., the owner of Bronx Chiropractic Rehabilitation, P.C., in which he establishes that the claim forms had been timely and properly mailed to defendant (see Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U] [App Term, 2d Dept, 11th & 13th Jud Dists 2013]). Accordingly, plaintiff established its prima facie entitlement to summary judgment and the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d [*2]320 [1986]).

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

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

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

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

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

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

Footnotes

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

[*1]

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

APPEARANCES OF COUNSEL

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

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

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

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

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

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

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

The caption shall be amended as follows:

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

[*1]

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

APPEARANCES OF COUNSEL

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

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

I. Papers

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

II. Background

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

III. Discussion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Assignor’s Failure to Subscribe the Transcript

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

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

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

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

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

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

IV. Order

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

CV-56687-15/KI

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

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

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

NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2

AFFIRMATION IN SUPPORT & EXH. ANNEXED 3-4

AFFIRMATION IN OPPOSITION & EXH. ANNEXED 5-6

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

PROCEDURAL AND FACTUAL HISTORY

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

Underlying Oral Argument Held September 10, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(affirmation in opposition, paragraph 17).

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

Post-Underlying Oral Argument

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

DISCUSSION

LEAVE TO REARGUE: CPLR 2221(d)

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

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

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

LEAVE TO RENEW: CPLR 2221(e)

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

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

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

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

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

CV-707605/17-BX

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

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

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

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

BACKGROUND

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

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

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

DISCUSSION

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

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

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

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

Accordingly, it is

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

The constitutes the decision and order of the court.

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

Footnotes

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

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

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

[*1]

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

APPEARANCES OF COUNSEL

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

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

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

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

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

Standard of Review

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

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

Pursuant to CPLR 3124, defendant moves to compel compliance with its outstanding discovery requests for Mallela material. Contrary to plaintiff’s assertion, a Mallela defense is not precludable. (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]; Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012].) A motion to compel responses to discovery demands and interrogatories is properly denied where the demands and interrogatories seek information that is irrelevant, overly broad, or burdensome. (See Pesce v Fernandez, 144 AD3d 653 [2d Dept 2016].) The moving party bears the burden of demonstrating that the method of discovery sought would result in the disclosure of relevant evidence or was reasonably calculated to lead to the discovery of information bearing on the claims. (See id.; CPLR 3101 [a].)

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

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

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

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

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

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

Conclusion

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

[*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.