706182/16

Attorney for Plaintiff: Olga Sklyut, Esq.

Attorney for Defendant: Law Office of Jason Tenenbaum, PC

In this action for the payment of no-fault benefits, defendant moves seeking an order, inter alia, granting it summary judgment and dismissal of this action. Saliently, and to the extent relevant to this Court’s decision, defendant avers that insofar as it timely denied plaintiff’s claims for medical services under the no-fault portion of the assignor ROBERT PEGUERO’s (Peguero) insurance policy, on grounds that Peguero failed to appear for two Independent Medical Examinations (IMEs), the instant action must be dismissed. Plaintiff opposes the foregoing portion of defendant’s motion asserting, inter alia, that insofar as the evidence presented by defendant with respect to whether Peguero appeared at the IMEs is conclusory. Thus, plaintiff contends that defendant fails to establish prima facie entitlement to summary judgment on this dispositve issue. Plaintiff also cross-moves seeking an order, inter alia, granting it summary judgment with respect to the IME defense raised by defendant. Specifically, plaintiff contends that the IME notices sent to the assignor were defective, null, and void as a matter of law. Defendant opposes plaintiff’s cross-motion for the same reasons it contends it is entitled to summary judgment, reiterating the timeliness of the IME notices and denials for Peguero’s failure to appear thereat.

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

The instant action is for payment of no-fault insurance benefits for medical treatment. The endorsed complaint alleges, in relevant part, the following: Between August and November 2013, plaintiff, as a result of a covered event occurring on August 5, 2013, provided medical treatment to Peguero. The value of said treatment was $4,004.11. Defendant, a no-fault ^[FN1] insurer, whose insurance policy issued to Peguero covered the foregoing treatment was presented with proof of the treatment and failed to pay plaintiff for the same. Thus, plaintiff seeks a judgment in the amount of $4,004.11.

Standard of Review

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

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

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

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

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),

[s]upreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial

(see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).

No-Fault Law

Pursuant to 11 NYCRR 65-2.4(a) entitlement to no-fault benefits requires compliance with all conditions precedent, one of which is that

the eligible injured person or that person’s assignee or legal representative shall submit [*2]written proof of claim to the self-insurer, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered

(11 NYCRR 65-2.4[c]). Because the No-Fault Law is a derogation of common law, it must be strictly construed (Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]; Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049, 1050 [3d Dept 1983]). Thus, compliance with the technical requirements of the no-fault law are preconditions for payment to a medical provider thereunder. Accordingly, a medical provider’s failure to tender a claim and requisite proof to an insurer within 45 days after medical services were rendered authorizes an insurer to deny the claim (Kane v Fiduciary Ins. Co. of Am., 114 AD3d 405, 405 [1st Dept 2014] [“The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated.”]; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2d Dept 2010]; Sunrise Acupuncture PC v ELRAC, Inc., 52 Misc 3d 126[A], *1 [App Term 2016]).

Generally, once an insurer receives a claim from a medical provider, it must pay or deny the same within 30 days thereof (11 NYCRR 65-3.8[c]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1168 [2d Dept 2010]; Nyack Hosp. v Gen. Motors Acceptance Corp., 27 AD3d 96, 100 [2d Dept 2005], affd as mod and remanded, 8 NY3d 294 [2007]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999]). When an insurer fails to timely deny or pay a claim, as required by the statutory schedule, it is precluded from interposing a statutory exclusion defense (Presbyt. Hosp. in the City of New York v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2d Dept 2002]; Mount Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11, 16 [2d Dept 1999]; Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]).

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

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

Conversely, once an insurer establishes a timely denial on grounds that a plaintiff failed to tender a claim within 45 days, the insurer establishes prima facie entitlement to summary judgment (St. Barnabas Hosp. v Penrac, Inc. at 734; Sunrise Acupuncture PC at *1). In addition, an insurer who demonstrates that despite proper requests for verification, verification was never received resulting in a denial of the claim also establishes prima facie entitlement to summary judgment (New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 649 [2d Dept 2014]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2d Dept 2006]; Nyack Hosp. at 99; Cent. Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2d Dept 2005]; Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]; Westchester County Med. Ctr. at 555). This is particularly true when a demand for verification remains unanswered for more than 120 days. To be sure, 11 NYCRR 65-3.5(o) states that

[a]n applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply. The insurer shall advise the applicant in the verification request that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.

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

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

Thus, when the insurer establishes denial of a claim because a demand for verification went unanswered for 120 days or more, prima facie entitlement to summary judgment is established (Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004] [relying on 11 NYCRR 65.11[m][3] which is now 11 NYCRR 65-3.8[b][3], the court held that “[t]he defendant denied the claim on October 9, 2002, more than 180 days after NY & P Hospital first notified it of the claim. [*4]Under these circumstances, the claim was properly denied.”]; Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co., 232 AD2d 454, 454 [2d Dept 1996] [same]; TAM Med. Supply Corp. v Tri State Consumers Ins. Co., 57 Misc 3d 133[A], *1 [App Term 2017]). Significantly, in Hosp. for Joint Diseases the court held that defendant – the insurer – established prima facie entitlement to summary judgment with an affidavit from a claims representative, who based on his review of defendant’s business records established defendant’s defense – timely denial (id. at 433-434)^[FN2] .

It is well settled that a party’s burden to establish that forms were mailed and therefore, presumed to have been received by another is established upon the tender of proof in admissible form “of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (New York and Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001] [“Here, the deposition testimony of AIC’s president, a certificate of mailing, and a mailing ledger signed and date-stamped by a U.S. Postal Service employee established the actual mailing of the notice of cancellation to the plaintiff, giving rise to a rebuttable presumption of deliver.”]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term 2007] [the law does not “requir[e] that an affidavit of mailing must state either that it was the affiant’s duty to ensure compliance with the insurer’s standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed.”]).

With respect to denial of claims based on reasons other than a claimant’s belated submission, an insurer establishes prima facie entitlement to summary judgment on its defense for a denial when it both timely denies a claim and tenders substantive evidence supporting the reason for the denial (Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], *1 [App Term 2015] [“The evidentiary proof submitted by defendant established that, following the timely denial of plaintiff-provider’s claim on the ground of lack of medical necessity, the governing insurance policy’s coverage limits had been exhausted through payment of no-fault benefits in satisfaction of arbitration awards rendered in favor of other health care providers, and that such payments were made in compliance with the priority of payment regulation.”]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A], * 1 [App Term 2015] [“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the first-party no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation (“plaintiff”) in the aggregate sum of $2,220, by establishing that it timely denied the claims based on the independent medical examination (IME) report and follow-up report of its examining orthopedic doctor, which set forth a factual basis and medical rationale for her stated conclusion that the assignor’s injuries were resolved and that there was no need for further physical therapy treatment. In opposition, plaintiff failed to raise a triable [*5]issue.”]).

When requested by the insurer, submission by the claimant to an Independent Medical Examination (IME) is a condition precedent to the receipt of no-fault benefits. To be sure, the Comprehensive Motor Vehicle Insurance Reparations Act, with regard to first-party or no-fault benefits, states, in pertinent part, that

[n]o action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage [,] which includes, that] [t]he eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require

(11 NYCRR 65-1.1).

Accordingly, an insurer establishes prima facie entitlement to summary judgment on its defense that denial of benefits is warranted because the claimant failed to appear at an IME when it demonstrates that an IME was timely requested via and properly mailed the notices to the claimant and that the claimant failed to appear (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]; Coast Med. Diagnostic, PC v Praetorian Ins. Co., 38 Misc 3d 148[A], *1 [App Term 2013]; City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co., 39 Misc 3d 128[A], *1 [App Term 2013]; Shore Med. Diagnostic, P.C. v Praetorian Ins. Co., 34 Misc 3d 131[A], *1 [App Term 2011]). Notably, the failure to appear for an IME warrants denial of all claims made by the claimant, not just those arising after the date that claimant fails to appear for the IME, and regardless of whether prior denials were timely (Unitrin Advantage Ins. Co. at 560). Stated differently,

[t]he failure to appear for IMEs requested by the insurer when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the No—Fault policy, and therefore fits squarely within the exception to the preclusion doctrine, [such that], when defendants’ assignors fail[] to appear for the requested IMEs, plaintiff ha[s] the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued

(id. at 560).

A request that a claimant submit to an IME is a request for additional verification pursuant to 11 NYCRR 65-3.5(b) and upon failure of the claimant to appear any further request for an IME are follow-up verification requests governed by 11 NYCRR 65-3.6(b) (Celtic Med. P.C. v NY Cent. Mut. Fire Ins. Co., 15 Misc 3d 13, 14 [App Term 2007] [“Contrary to plaintiff’s contentions, the affidavits submitted by defendant were sufficient to establish that defendant’s requests and follow-up requests for IMEs were mailed in accordance with the time periods prescribed by the insurance regulations (11 NYCRR 65-3.5 [b]; 65-3.6 [b]).”]; A.B. Med. Services PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 54 [App Term 2005] [“All post-claim IME verification requests must be made within prescribed time frames, the initial request within 10 days of the claim’s filing (to be scheduled within 30 days of the claim’s receipt) and a “follow-up” request within 10 days of a subject’s non-appearance at the initially-scheduled IME (11 NYCRR 65—3.5 [a], [d]; 11 NYCRR 65—3.6[b].”]). Accordingly, the timeliness of the requests for and the denial of an IME are governed by the foregoing sections of the no-fault law (Celtic Med. P.C. at 14; A.B. Med. Services PLLC at 54).

Significantly, and again, an insurer meets the foregoing burden only if it tenders proof in admissible form from a person with personal knowledge of the mailings scheduling the IME, that the claimant failed to appear at the IME (LDE Med. Services, P.C. v Interboro Ins. Co., 31 Misc 3d 146[A]. *1 [App Term 2011]; Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]), and that a denial based on the non-appearance was timely mailed to the claimant (Longevity Med. Supply, Inc. v Praetorian Ins. Co., 47 Misc 3d 128[A], *1 [App Term 2015] [“In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim form, which denied this claim based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed.”]; Atl. Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 154[A], *1 [App Term 2012]). As to the latter, the evidence that claimant failed to appear [*6]must be from someone with personal knowledge (Fogel at *1). Thus, affirmations or affidavits from the medical providers who were to perform the IMEs, are sufficient, when they attest that claimant never appeared for the IME, to meet an insurer’s burden (Longevity Med. Supply, Inc. at *1; Atl. Radiology Imaging, P.C. at *1). Indeed, in Am. Tr. Ins. Co. v Lucas (111 AD3d 423 [1st Dept 2013]), the Appellate Division, in an action for declaratory judgment, reversed the trial court’s denial of the plaintiff/insurer’s motion for summary judgment, holding that the failure by the assignor to appear for an IME precluded entitlement to no-fault benefits under the relevant policy (id. at 423-424). Specifically, on the issue of the proof required to establish the failure to attend an IME, the court stated that

[p]laintiff submitted competent evidence that the notices scheduling the claimant’s medical examinations were mailed, as well as the failure to appear, based on the sworn affidavits of the scheduled examining physician and his employee. Contrary to defendants’ contention, the affidavits were not conclusory, as they established personal knowledge, the employee’s role in the physician’s no-fault department, and the physician’s personal knowledge of the office procedures when a claimant failed to appear for a medical exam

(id. at 423-424 [internal citations omitted and emphasis added]).

Defendant’s Motion

Defendant’s motion seeking summary judgment and dismissal of this action is granted, in part. Significantly, defendant establishes, beyond any factual dispute, that it properly and timely requested that Peguero appear for two IMEs, that Peguero failed to appear for the foregoing IMEs and that subsequently, defendant timely and properly denied payment of all no-fault claims related to medical treatment provided to Peguero because he failed to appear for two IMEs.

In support of its motion, and to the extent relevant to the Court’s decision, defendant submits:

An affidavit by Regina Abbatiello (Abbatiello), a No-fault Claims Adjuster employed by defendant who states, in relevant part, as follows: Abbatiello’s duties include the handling and management of no-fault claim files, the processing of all no-fault claims for defendant, and the payment and denial of such claims. Abbatiello states that she reviewed defendant’s records related to plaintiff’s claim and that her affidavit is based, in part on that review. Pursuant to defendant’s standard procedure, upon plaintiff’s claim for no-fault benefits arising from a motor vehicle accident occurring on August 5, 2013, and for which no-fault medical benefits were assigned by Pegeuero to plaintiff, claim no. NF13408803 was assigned to said claim. All documents generated and mailed by defendant in reference to plaintiff’s claim bore the foregoing claim number. On September 12, 2013, Omnimed Evaluation Services (Omnimed), on behalf of defendant, sent Peguero and his attorney a letter dated the previous day requesting that Peguero attend an IME on September 23, 2013. Peguero failed to attend the IME. Thereafter, on September 25, 2013, Omnimed sent Peguero and his attorney another letter dated the previous day requesting that Peguero attend an IME on October 2, 2013. Plaintiff failed to appear. As a result of Peguero’s failure to appear at the last scheduled IME, within 30 days thereof, all claims for no-fault medical benefits were denied. With regard to claim related correspondence received by defendant, when received via mail, it is stamped with the date when it is received, checked against a computerized system to identify with which claim number the correspondence is associated as well which adjuster is handling the respective claim. Thereafter, the correspondence is delivered to the appropriate adjuster’s incoming mail bin in that adjuster’s work area. With regard to forms denying claims or requesting additional verification, the date on the foregoing documents is the date the same are generated and placed in envelopes for mailing. The address on the envelopes in which those documents are placed and to which they are mailed is the address in defendant’s records as noted in claim documents received by defendant. When the foregoing documents are ready for mailing they are placed in an envelope by the adjuster assigned to the respective claim and then placed in a bin. Mail personnel then pick-up mail from the bins daily at 3:45PM. Claims personnel then affix appropriate postage to the envelopes and hand-deliver all outgoing mail to the United States Post Office in Melville, NY. The foregoing procedure is one to which defendant strictly adheres and it is Abbatiello’s responsibility to ensure compliance with the foregoing procedure. All documents annexed to Abbatiello’s affidavit, [*7]which relate to plaintiff’s no-fault claim were generated ^[FN3] in the regular course of defendant’s business and mailed on the date indicated on the document.

An affidavit by Karin Bruford (Bruford), Supervisor of the No-Fault Department at Omnimed, who states in relevant part, as follows: Bruford is respnsible for oversight and scheduling of IMEs by Omnimed on behalf of defendant. Upon receipt of a referral from defendant indicating that an assignor has to submit to an IME, Onmimed assigns a Claimant ID Number to the referral, which here was 21892-XB60 and all information forwarded to Omnimed regarding the claim is stored electronically in Omnimed’s computer program. Omnimed then determines the appropriate specialty and location of the doctor who will perform the IME. That doctor is then contacted via telephone to schedule the IME. Thereafter, Omnimed drafts a letter requesting that the assignor attend the IME. The letter bears all the relevant information, including the date, time, location and examining doctor’s information. The letter is then mailed to the assignor and his attorney at the address indicated in the no-fault claim records submitted to defendant by a provider and sent to Omnimed by defendant. Should an assignor fail to attend the IME, Omnimed is apprised by the physician and Omnimed then automatically reschedules the IME. If the physician apprises Omnimed that an assignor failed to attend a second IME, Omnimed generates a notice that is then mailed to defendant. Omnimed schedules an IME shortly after defendant sends it a referral. The letter scheduling the IME is placed in an envelope, addressed to an assignor and his attorney, appropriate postage is procured and Omnimed then places the envelope in the exclusive custody of the United States Postal Service. The foregoing is true for any letters rescheduling an IME. With relation to Peguero, defendant requested that Omnimed schedule an IME. On September 12, 2013, Omnimed sent Peguero and his attorney a letter dated the previous day requesting that Peguero attend an IME on September 23, 2013. Peguero failed to attend the IME. Thereafter, on September 25, 2013, Omnimed sent Peguero and his attorney another letter dated the previous day requesting that Peguero attend an IME on October 2, 2013. Plaintiff failed to appear. Bruford states that all the documents appended to her affidavit, including the letters requesting that Peguero attend an IME were created [*8]and maintained in the ordinary course of Omnimed’s business.

An affirmation by Ajendra Sohal (Sohal), a medical doctor, who states the following: Sohal’s office is located at 92-29 Queens Boulevard, No.CJ-17, Rego Park, NY 11374. Sohal was asked to perform an IME on Peguero on September 23, 2013. On the foregoing date, Sohal was at her office but Pegeuero never appeared for the IME. Sohal was again asked to perform an IME on Peguero on October 2, 2013. On the foregoing date, Sohal was again at her office but Peguero failed to appear. It was the practice of Sohal’s office to inform the IME vendor when a claimant fails to appear for an IME. Because Sohal, based on her personal knowledge was certain that Peguero never appeared for the IME, she informed Omnimed that Peguero failed to appear.

An application for no fault benefits dated October 7, 2013, wherein Peguero seeks no-fault benefits arising from a motor vehicle accident occurring on August 5, 2013. Peguero listed his address as 1233 Boston Road, Apt 4A, Bronx, NY 10456.

A legion of Verification of Treatment forms, the first of which is dated September 11, 2013 and within which plaintiff seeks payment from defendant for medical treatment provided to Peguero on August 15 and 16, 2013. A legion of Denial of Claim forms, wherein defendant denies payment on plaintiff’s claims within 30 days of the date on each of the Verification of Treatment forms. For example, with regard to the Verification of Treatment form just discussed, defendant’s Denial of Claim form, dated September 24, 2013, and the Explanation of Review form appended thereto, indicates that of the $267.50 billed, $51.44 would not be paid insofar as that portion exceeds the allowance in the fee schedule. Notably, defendant tenders a Denial of Claim form dated October 11, 2013, which indicates that plaintiff’s entire claim is denied because Peguero failed “to appear for two pain management independent medical examinations that were scheduled for 9-23-2013 and 10-02-2013.”

A Notice of Physical Examination form dated September 11, 2013. The form is from Omnimed and is addressed to Peguero at his address. The form apprises Peguero that Omnimed represents defendant and that he is scheduled to attend a medical examination as prescribed by the no-fault law. The form indicates that the examination is on September 23, 2013 at 5PM with Sohal. Peguero is provided with Sohal’s address and telephone number, told to confirm his appearance with Sohal, told to contact Omnimed if the date and time is not acceptable and apprised that he would be “reimbursed for any proven loss of earnings and reasonable transportation expenses incurred in complying with this request.”

A Re-scheduled No-fault Examination form dated September 24, 2013. The form contains substantially all of the information contained in the Notice of Physical Examination form dated September 11, 2013, except that Peguero is apprised that he did not appear for the first medical examination and is told to appear to be examined by Sohal at the same place and location but on October 2, 2013 at 6:15PM.

Based on the foregoing, defendant establishes prima facie entitlement to summary judgment on its defense predicated on Peguero’s failure to appear for and submit to an IME. As noted above, when requested by the insurer, submission by the claimant to an IME is a condition precedent to the receipt of no-fault benefits (11 NYCRR 65-1.1). Accordingly, an insurer establishes prima facie entitlement to summary judgment on its defense that denial of benefits is warranted because the claimant failed to appear at an IME when it demonstrates that an IME was timely requested via properly mailed notices to the claimant and that the claimant failed to appear (Unitrin Advantage Ins. Co. at 560; Coast Med. Diagnostic, PC at *1; City Care Acupuncture, PC at *1; Shore Med. Diagnostic, P.C. at *1). In addition, an insurer meets the foregoing burden if it tenders proof in admissible form from a person with personal knowledge of the mailings used to schedule the IME, claimant’s failure to appear at the IME (LDE Med. Services, P.C. at *1; Fogel Psychological, P.C. at 722), and that a denial based on claimant’s failure to appear was timely mailed to the claimant (Longevity Med. Supply, Inc. at *1; Atl. Radiology Imaging, P.C. at *1). Significantly, the evidence that claimant failed to appear must be from someone with personal knowledge (Fogel at *1), such as affirmations or affidavits from the medical providers who were to perform the IMEs (Am. Tr. Ins. Co. at 423-24; Longevity Med. Supply, Inc. at *1; Atl. Radiology Imaging, P.C. at *1).

Here, plaintiff, as per its first Verification of Treatment form, requested payment for medical services on September 11, 2013 and defendant then requested that Peguero appear for an IME that very day. Thus, the IME – which is a request for further verification – was timely requested.

To be sure, once an insurer receives a claim from a medical provider, it must pay or deny the same within 30 days thereof (11 NYCRR 65-3.8[c]; Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Westchester County Med. Ctr. at 554) or be precluded from interposing a statutory exclusion defense (Presbyt. Hosp. in the City of New York at 282; New York Hosp. Med. Ctr. of Queens at 584; Mount Sinai Hosp. at 16; Presbyt. Hosp. in City of New York at 211). However, the foregoing period – within which to deny or pay a claim – can be extended by a proper request for verification (11 NYCRR 65-3.5[b], and when such a request is made, “an insurer is not obligated to pay or deny a claim until all demanded verification is provided” (New York and Presbyt. Hosp. at 513; Hosp. for Joint Diseases at 434; Nyack Hosp. at 101; New York Hosp. Med. Ctr. of Queens at 584; New York & Presbyt. Hosp. at 700). A claim for verification tolls the time within which to deny a claim until 30 days after requested information is received if verification is requested within 15 days of receipt of claim or by the number of days beyond the 15 days that it took the insurer to request verification (11 NYCRR 65-3.8[j]; Nyack Hosp. at 100-101). Stated differently, generally, a request for verification tolls the time within which to pay or deny a claim and such time does not begin to run until the documents are provided (New York & Presbyt. Hosp. at 700; Westchester County Med. Ctr. at 555).

Notably, a request that a claimant submit to an IME is a request for additional verification pursuant to 11 NYCRR 65-3.5(b) and upon failure of the claimant to appear, a further request for an IME is a follow-up verification request governed by 11 NYCRR 65-3.6(b) (Celtic Med. P.C. at 14; A.B. Med. Services PLLC at 54).

Accordingly, because here, plaintiff submitted the foregoing claim on September 11, 2013, defendant had until October 11, 2013 to pay, deny it, or seek further verification. As indicated by the Notice of Physical Examination form sent to Peguero by Omnimed on defendant’s behalf, defendant timely requested (within 30 days) that Peguero attend an IME on the same day plaintiff’s claim form was dated. The IME was first scheduled for September 23, 2013, but as per Sohal’s affirmation, Peguero failed to appear for the IME and Omnimed was apprised. As a result, per Omnimed’s Re-scheduled No-fault Examination form dated September 24, 2013 (one day after Peguero’s failure to comply with the demand for verification – the IME request), Omnimed rescheduled the IME for October 2, 2013. Upon learning from Sohal that Peguero failed to appear for the second IME, Omnimed notified defendant, who then sent plaintiff a Denial of Claim form dated October 11, 2013 (nine days after Peguero failed to appear for the second IME), indicating that plaintiff’s entire claim would be denied because Peguero failed “to appear for two pain management independent medical examinations that were scheduled for 9-23-2013 and 10-02-2013.” Because defendant timely requested the initial IME within 15 days of receiving plaintiff’s claim form (11 NYCRR 65-3.5[b]), timely re-requested the IME within 10 days of Peguero’s failure to appear (11 NYCRR 65-3.6[b]), and timely denied the claim within nine of the 30 days it had to deny plaintiff’s claim for Peguero’s failure to appear at the IME, defendant establishes prima facie entitlement to summary judgment.

It bears noting, that while generally, pursuant to 11 NYCRR 65-3.5(o), denial of a claim for a plaintiff’s failure to tender information responsive to an insurer’s request for verification must occur no earlier 120 days after the failure by a provider to provide the information requested (Hosp. for Joint Diseases at 434; Hempstead Gen. Hosp. at 454; TAM Med. Supply Corp. at *1), no such requirement is imposed when a denial is one for an assignor’s failure to attend an IME. Specifically, 11 NYCRR 65-3.5(o) states that “[t]his subdivision shall not apply to a . . . medical examination request, or examination under oath request.”

It is well settled that proof of timely mailing of forms requesting verification (here, an IME), and forms denying claims are part of defendant’s burden for purposes of establishing prima facie entitlement to summary judgment (Unitrin Advantage Ins. Co. at 560; Coast Med. Diagnostic, PC at *1; City Care Acupuncture, PC at *1; Shore Med. Diagnostic, P.C. at *1). On this record, [*9]defendant meets the requisite burden. Indeed, a party’s burden to establish that forms were mailed and therefore, presumed to have been received by another is established upon the tender of proof in admissible form “of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (New York and Presbyt. Hosp. at 547; Residential Holding Corp. at 680; Delta Diagnostic Radiology, P.C. at 18).

On this record, defendant establishes timely mailing of the forms requesting that Peguero submit to an IME, which were mailed to Peguero by Omnimed on behalf of defendant with Bruford’s affidavit. With respect to the notices sent to Peguero scheduling his IMEs – here, the Notice of Physical Examination form and the Re-scheduled No-fault Examination form – Bruford states that they were mailed on the date indicated on the letters as per Omnimed’s mailing procedure, which was to place such letters in an envelope, addressed to an assignor and his attorney, to affix appropriate postage thereto and to place the envelope in the exclusive custody of the United States Postal Service.

Similarly, timely mailing of the Denial of Claim form dated October 11, 2013, denying plaintiff’s claims for Peguero’s failure to attend two IMEs is established by Abbatiello, who describes defendant’s mailing procedure with respect to such forms. Specifically, Abbatiello states that with regard to forms denying claims or requesting additional verification, the date on said forms is the date the same are generated and placed in envelopes for mailing, that the address on the envelopes in which those documents are placed and to which they are mailed is the same address in defendant’s records and derived from the claim documents sent to defendant by an assignor and/or insured. Abbatiello further states that when the foregoing documents are ready for mailing they are placed in an envelope by the adjuster assigned to the respective claim and then placed in a bin, where after proper postage is procured and affixed, the forms, in envelopes, are then hand-delivered to the United States Post Office in Melville, NY.

Nothing submitted by plaintiff in opposition to defendant’s motion raises an issue of fact sufficient to preclude summary judgment on the foregoing issue. Indeed, on this issue, plaintiff submits no evidence whatsoever and instead contends that defendant’s evidence is insufficient to establish defendant’s burden on summary judgment. Upon a review of all arguments asserted by plaintiff, the Court finds them to be bereft of merit.

Plaintiff’s salient argument is that Sohal’s affirmation, wherein he states that Peguero failed to attend the IMEs scheduled by Omnimed on behalf of defendant is insufficient to establish that Peguero failed to appear. Essentially, despite Sohal’s contention that the contents of her affirmation are based on her personal knowledge, plaintiff contends that Sohal’s affirmation lacks the personal knowledge Sohal contends she had. To that end, paradoxically, rather than support the foregoing contention with case law relevant to that issue, plaintiff goes off on an inapplicable tangent. Again, prevailing law indicates that all that is required to establish a claimant’s failure to appear at an IME is that such assertion be from someone with personal knowledge (Fogel at *1), such as the medical provider who would have performed the IME (Am. Tr. Ins. Co. at 423-24; Longevity Med. Supply, Inc. at *1; Atl. Radiology Imaging, P.C. at *1).

Despite the foregoing body of law, plaintiff seeks to limit the definition of personal knowledge, carving from it those instances, where as here, someone’s basis for an assertion is essentially an eyewitness account, by citing cases prescribing the elements required to establish the presumption that mail was received after it was mailed. To be sure, plaintiff, relying on, inter alia, Viktor Gribenko, M.D., P.C. v Allstate Ins. Co. (10 Misc 3d 139[A] [App Term 2005]), a case regarding the burden of proof to establish presumption of receipt upon mailing, contends that Sohal’s assertion, that she knew that Peguero never appeared for his IMEs because she was at her office and therefore in a position to know, is insufficient because she fails to describe the entirety of the practices at her office with respect to conducting IMEs.

This Court is not persuaded by plaintiff’s assertion and finds Sohal’s affirmation far from conclusory. This is especially true here since the appellate case law on this issue does not avail plaintiff. In Am. Tr. Ins. Co. v Lucas, the court, on the issue of whether the claimant appeared for an IME found that “affidavits [submitted] were not conclusory, as they established personal [*10]knowledge, the employee’s role in the physician’s no-fault department, and the physician’s personal knowledge of the office procedures when a claimant failed to appear for a medical exam” (id. at 423-424). Here, Sohal, in addition to describing her office’s procedures when a claimant fails to appear for an IME , unequivocally states that she “was personally at [her] office on the above date[s] and [] Peguero never appeared for the IME[s.]” She then goes on to state that she “could state with certainty that Robert Peguero never appeared for the above IME(s).” Accordingly, Sohal’s affirmation is far from conclusory, states the basis for her assertion, and unequivocally establishes that Peguero never appeared for either of his two IMEs.

Plaintiff’s remaining arguments are similarly bereft of merit. For example, plaintiff’s contention that the amount of time given to Peguero to appear for IMEs is unreasonable and violative of 11 NYCRR 65-3.5(e)(“All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant and medical examinations shall be conducted in a facility properly equipped for the performance of the medical examination.”), as a matter of law, is unpersuasive. Here, the first notice was mailed on September 11 or 12, 2013 for an IME to be held on September 23, 2013. Thus Peguero was given 10-11 days’ notice. With regard to the second IME, Peguero was notified on September 24 or 25, 2013 that he was to appear for an IME on October 2, 2013. Thus, he was given seven-eight days’ notice. Nevertheless, whether the length of time provided is unreasonable is an issue the Court need not reach since that element is not part of defendant’s prima facie burden.

Indeed, the relevant case law states that prima facie entitlement to summary judgment on the issue of a claimant’s failure to attend an IME is established upon evidence that an IME was, inter alia, timely requested pursuant to 11 NYCRR 65-3.5(b) (Unitrin Advantage Ins. Co. at 560; Coast Med. Diagnostic, PC at *1; City Care Acupuncture, PC at *1; Shore Med. Diagnostic, P.C. at *1). There is no basis then, as urged by plaintiff, to conclude, that an insurer must also establish that the time period between notice of an IME and the IME is reasonable and convenient. Quite frankly, in the absence of admissible evidence decrying, as relevant here, the time period, the time period must be presumed reasonable. Here, then evidence from Peguero would be required, from whom no affidavit is submitted.

Because the failure to appear for an IME warrants denial of all claims made by the claimant, not just those arising after the date that claimant fails to appear for the IME, and regardless of whether prior denials were timely (Unitrin Advantage Ins. Co. at 560), the remainder of defendant’s motion – seeking, inter alia, summary judgment on other defenses – is denied as moot.

Plaintiff’s Cross-Motion

For the reasons stated above – that on this record, it is clear that Peguero failed to appear for timely and properly requested IMEs which resulted in a timely and proper denial of all no-fault medical claims, plaintiff’s cross-motion for summary judgment must be denied. It is hereby

ORDERED that the complaint be dismissed, with prejudice. It is further

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

This constitutes this Court’s decision and Order.

Dated:
__________________
Hon.___________________________
FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1: The payment of no-fault benefits and claims made pursuant thereto are governed by, inter alia, 11 NYCRR 65-3.1 which states that “[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law.”

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

Footnote 3: Notably, Abbatiello’s foundation for the records appended to her affidavit would ordinarily only be sufficient to admit in evidence only those records generated by defendant. To be sure, records can generally be admitted for consideration at trial or on a motion upon a proper foundation that the same are business records – namely, that (1) the record be made in the regular course of business; (2) it is the regular course of business to make said record; and (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 NY2d 569, 579 [1986]). Here, the foregoing foundation was laid but there are a legion of records attached to the instant motion, namely the claim documents which defendant received from plaintiff which clearly were not generated by defendant and thus not their business records. Such records, therefore, are not generally admissible (Carothers v GEICO Indem. Co., 79 AD3d 864, 864-865 [2d Dept 2010], overruled on other grounds Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2d Dept 2013], affd, 25 NY3d 498 [2015]. To be sure, “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” (Std. Textile Co., Inc. v Natl. Equip. Rental, Ltd., 80 AD2d 911, 911 [2d Dept 1981]). Accordingly, the records of a third-party are not the admissible business records of another party unless such third-party’s records were used in the preparation of the proponent’s business records such that they are fully incorporated into the proponent’s business records (Andrew Carothers, M.D., P.C. at 864—65; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727, 728 [2d Dept 1986]; see also People v DiSalvo, 284 AD2d 547, 548 [2d Dept 2001]). Here, however, all records appended to Abbatiello’s affidavit are clearly admissible because as detailed by Abbatiello, none of defendant’s records, specifically the forms denying claims and those forms where further verification is requested would be generated but for the records received by defendant and which are appended to Abbatiello’s affidavit.

[*1]

Civil Court of the City of New York, New York County, April 9, 2019

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for plaintiff.

Law Offices of Rubin & Nazarian, Long Island City (Tasnim Hassanali of counsel), for defendant.

Background

Plaintiff commenced this action to recover assigned first-party no-fault benefits on behalf of Eric Daniel (assignor) in 2013. In 2018, plaintiff was awarded a judgment for the amount sued for. The action was then assigned to this court for a determination of plaintiff’s claim for attorneys’ fees.

The summons and complaint were filed on February 6, 2013.

On May 6, 2013, defendant appeared, by counsel, and filed an answer asserting 11 affirmative defenses, including that plaintiff’s assignor failed to appear for an independent medical exam (IME) and thus breached a condition precedent for coverage.

On June 25, 2013, defendant moved for summary judgment based on its defense that the assignor failed to appear for an IME. The motion was adjourned to October 4, 2013, April 1, 2014, July 25, 2014, and January 6, 2015. On February 5, 2015, defendant withdrew the motion.

There was a preliminary conference scheduled for October 4, 2013, and further conference dates on April 30, 2014, November 12, 2014, and April 22, 2015.

Plaintiff filed a notice of trial on May 14, 2015.

The action appeared on the trial calendar on May 25, 2016, June 8, 2017, July 5, 2018, September 24, 2018, November 5, 2018, and December 18, 2018. On December 18, 2018, the court (Ramirez, J.) issued a decision which stated in pertinent part:

“Plaintiff has made out a prima facie case. Defendant has failed to establish its defense of IME no show. Thus, judgment for Plaintiff for $944.12, plus statutory interest and filing fees.

“The issue of attorney fees will be severed and heard in Part MP2 on 2/20/19 at 9:30 am (Room 353).”

On February 20, 2019, the action was adjourned to April 1, 2019.

On April 1, 2019, the action was assigned to this court for a hearing to determine plaintiff’s claim for attorneys’ fees. The{**63 Misc 3d at 877} hearing commenced and concluded on that date. The matter was adjourned to April 8, 2019, for the submission of legal memoranda. On April 8, 2019, after the submission of memos by each party via email, the court reserved decision.

The Hearing

Plaintiff presented one witness at the hearing, Jennifer Raheb (JR), an attorney with the law firm representing plaintiff. Plaintiff also submitted a copy of the pleadings, the summary judgment motion papers, a printout from eCourts and the decision entering judgment.

JR testified that she has been admitted to practice law for 15 years, and has worked for Gary Tsirelman, P.C. for approximately five years. JR is familiar with this action and made all the court appearances on the case from at least May 2016 forward. JR testified credibly that each time the action appeared on the trial calendar, she spent approximately one hour preparing the file the night before. For this case, JR testified that the preparation included review of documents related to defendant’s IME no-show defense, including letters requesting an appearance for an IME and proof of mailing. JR testified that she also prepared cross-examination for the two witnesses she expected defendant to produce to establish proof of the assignor’s failure to appear and the scheduling letters.

JR did not do the opposition to the summary judgment motion, nor is there a record of opposition papers having been filed with the court. However, plaintiff did submit a copy of the opposition papers prepared by another attorney at the firm, Douglas Mace, Esq. (exhibit 7).

JR testified that in her experience motions on policy issues are much more complex than motions on medical necessity.

JR is assigned to handle the New York County no-fault cases for her firm and makes daily appearances in New York County Civil Court. JR typically arrives in court at around 9:30 a.m.

JR remembers first appearing on this case in 2015.

While JR had some independent recollection of specific appearances, much of her testimony was based on her general practice and procedures. JR testified that there were six appearances required for defendant’s summary judgment motion and eight appearances required for trial dates.

JR testified that no adjournments were granted without an application before the court on the trial dates, because of the age of the action. JR testified that she called defendant prior to{**63 Misc 3d at 878} each date and on each occasion, defendant stated they were ready to proceed.

JR appeared on May 25, 2016, before Judge Samuels and recalled that the trial was adjourned on defendant’s application.

JR appeared on June 8, 2017, and defendant made an application for an adjournment.

JR appeared on July 5, 2018, before Judge Nock, and defendant made an application to adjourn to secure a witness for the IME no-show defense. Defendant had only one witness available on that date.

JR testified that both parties knew early on that plaintiff would be seeking attorneys’ fees in this litigation, and that the case stood out in her mind for that reason.

On September 24, 2018, both parties appeared in court and conferenced the case with Judge Ramseur and her court attorney. Defendant decided at that time that it was not going to pursue the IME no-show defense and the action was adjourned to discuss a possible resolution including the issue of attorneys’ fees.

On November 5, 2018, defendant made an application for an adjournment and stated it did intend to proceed on the IME no-show defense at trial.

On December 18, 2018, the order entering judgment against defendant was issued. JR testified that plaintiff relied upon a notice to admit to establish its prima facie case. JR estimated that the trial could not have commenced before 11:00 or 11:30 a.m., because the court first went through the calendar calls.

The parties appeared on February 20, 2019, for the attorneys’ fees hearing, but the court had mis-calendered the matter and the hearing was adjourned to April 1, 2019.

On cross-examination, JR acknowledged that she maintained no contemporaneous records of the time she spent working on this case. For example, she did not record on any of the appearance dates the time she left the courthouse.

JR testified that she typically has more than one case on the morning calendar but less than 10 cases. While her office does maintain records of the specific number of cases she was handling on each of the dates in question, JR did not bring those records with her for the purpose of the hearing.{**63 Misc 3d at 879}

Discussion

It is undisputed that in this case defendant designated its IME no-show defense as a policy issue by checking off box 5 on the NF-10 denial of claim form.

11 NYCRR 65-4.6 (c) governs payment by insurers of applicants’ attorneys’ fees for services necessarily performed in the resolution of no-fault disputes and provides in pertinent [*4]part:

“For disputes subject to . . . court proceedings, where one of the issues involves a policy issue as enumerated on the prescribed denial of claim form (NYS form NF-10), subject to this section, the attorney’s fee for the arbitration or litigation of all issues shall be limited to a fee of up to $70 per hour, subject to a maximum fee of $1,400. In addition, an attorney shall be entitled to receive a fee of up to $80 per hour for each personal appearance before the arbitration forum or court.”

While defendant argues that there was no policy issue in this action, the court disagrees. “The failure to appear for IMEs requested by the insurer ‘when, and as often as, [it] may reasonably require’ (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the no-fault policy” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]).

Plaintiff has the burden in establishing the amount of hours reasonably spent on legal work in this action. Plaintiff admitted it was aware that it would be seeking attorneys’ fees in this action, and the best evidence of time spent would have been time records contemporaneously maintained by the attorney doing the work.

JR’s testimony on the hours she spent was essentially an educated guess based on her routine and custom. For example, in confirming that she appeared on the dates in question, JR testified that she relied in part on her records of days absent from work, and when she saw she was not absent she determined she would have been the attorney in court on a particular date.

Less guesswork would have been involved had plaintiff provided evidence of the number of other matters she handled on each date she appeared. This evidence was readily available to plaintiff, as acknowledged by JR in her testimony, but not provided to the court, nor subpoenaed by defendant.{**63 Misc 3d at 880}

The court finds that plaintiff’s attorneys spent at least one-half hour in court on each of the trial dates on May 25, 2016, June 8, 2017, July 5, 2018, September 24, 2018, November 5, 2018, and December 18, 2018. This is reduced from the one hour per appearance requested by plaintiff, based on the failure of counsel to maintain contemporaneous time records for the appearances, and the failure of plaintiff to provide the court with evidence on the number of cases the attorney was handling in court on each of the dates in question.

As JR did not testify with certainty that she appeared on the earlier dates, and no other attorney for plaintiff offered evidence of same, no time is awarded for court appearances prior to the initial trial date.

No award is made for appearances after the trial date, as these appearances were solely on the issue of attorneys’ fees and time spent substantiating counsel fees, also known as fees on fees, and are not permitted by the statute (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2017]; Insurance Law § 5106 [a]).

The court further finds that JR spent one hour each night prior to scheduled trial dates in preparation.

Plaintiff is additionally awarded one-half hour for the preparation of opposition papers to defendant’s summary judgment motion. Again since there was no evidence on the amount of time the attorney who prepared the papers spent on the task, and the papers were never filed with the court, the time is more limited than requested by plaintiff.

Based on the foregoing, the court finds plaintiff is entitled to three hours for court appearances totaling $240 and 6.5 hours for trial preparation and the affirmation in opposition totaling $455. Plaintiff is entitled to a total of $695 for attorneys’ fees in this action.

Footnotes

Footnote *:The file was not available to the court at the time of the hearing. The procedural history is based on the case summary maintained by Civil Court as well as the documents and testimony presented at the attorneys’ fees hearing.

CV-130940-03/QU

LAW OFFICES OF DAVID B. O’CONNOR P.C.

Counsel for Plaintiff PDG Psychological P.C. As Assignee of Glendon Steve Antoine

2606 East 15th Street

Brooklyn, New York 11235

By: David Bryon O’Connor, Esq.

MCDONNELL ADELS & KLESTZICK, PLLC

Counsel for Defendant State Farm Mutual Insurance Co.

401 Franklin Avenue

Garden City, New York 11530

By: Julie Andrea Linwood, Esq. and Alisa Ann Burns, Esq.

I. Background

In this action, PDG Psychological P.C. (the “Plaintiff”) seeks to recover no-fault insurance benefits for alleged services rendered to Plaintiff’s assignor, Glendon Steve Antoine, based on an alleged automobile accident that occurred on or about May 5, 2003. Plaintiff served a summons and complaint on defendant State Farm Mutual Insurance Co. (the “Defendant”) on or about November 6, 2003. In turn, Defendant allegedly served its verified answer and discovery demands to Plaintiff on or about December 22, 2003.

Plaintiff moved for summary judgment and Defendant made a cross-motion to dismiss for failure to provide discovery or, in the alternative, to compel discovery. There is no indication that Plaintiff provided any responses to Defendant’s discovery demands prior to Defendant’s cross-motion. On July 8, 2005, the Court issued an order (the “July 8, 2005 Order”) denying Plaintiff’s motion for summary judgment for failure to establish a prima facie case and granting [*2]Defendant’s cross-motion, holding that “the action is dismissed unless with[in] thirty days after service of a copy of this order, with notice of entry, [P]laintiff provides a response to all previously served discovery demands and appears for an examination under oath.” On or about October 24, 2005, Plaintiff provided responses to Defendant’s discovery demands.

A prolonged period of inactivity appears to have followed and, on June 6, 2007, this case was converted to inactive, and the record indicates that both parties subsequently continued to remain inactive. Defendant alleges that in March 2011 it served notice of entry of the July 8, 2005 Order, with an attached copy of the July 8, 2005 Order, to Plaintiff. Plaintiff asserts that it did not receive a copy of the July 8, 2005 Order until March 11, 2011.

Nevertheless, this matter largely remained dormant until, on or about August 10, 2017, Plaintiff served a notice of trial and certificate of readiness, without having appeared for an examination under oath (“EUO”) as required by the July 8, 2005 Order. On August 17, 2017, Defendant moved: (1) to dismiss the complaint for failure to provide complete and meaningful discovery; or, in the alternative, (2) to strike Plaintiff’s notice of trial; (3) to compel Plaintiff to provide responses to Defendant’s discovery demands and appear for an examination before trial (“EBT”); and (4) to stay the accrual of no-fault interest. On April 18, 2018, this Court issued a decision and order (the “April 18, 2018 Decision”) denying Defendant’s motion to dismiss and granting Defendant’s motions to strike the notice of trial and to compel Plaintiff to appear for an EUO within 30 days of service of the order with notice of entry or the case would be dismissed. Defendant now moves to reargue the April 18, 2018 Decision and requests: (1) an order compelling Plaintiff to provide complete and meaningful discovery responses before appearing for an EUO; and (2) staying accrual of no-fault interest.

In accordance with Rule 2219 [a] of the Civil Practice Law and Rules (“CPLR”), the Court considered: (1) Defendant’s motion to reargue, Defendant’s counsel’s affirmation and attached exhibits; (2) Plaintiff’s counsel’s affirmation in opposition to said motion and attached exhibits; and (3) Defendant’s counsel’s affirmation in reply to Plaintiff’s affirmation in opposition and attached exhibits.

II. Discussion

As an initial matter, Defendant argues that Plaintiff could not transfer this action to the Law Offices of David B. O’Connor P.C., which is the third counsel for Plaintiff, because there is no record of Defendant being served with a consent to change attorney form, pursuant to CPLR 321 [b], evidencing the change from original counsel to the second counsel. However, this argument was made for the first time in Defendant’s reply papers, which function to address arguments made in opposition to the position taken by the movant—not to permit the movant to introduce new arguments or new grounds for the requested relief (see Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 827 [2d Dept 2008]). Thus, this Court declines to issue a decision on this argument, but notes that a consent to change attorney form for the transition of this action from second counsel to the Law Offices of David B. O’Connor P.C. was submitted and Defendant has not claimed that Plaintiff’s technical failure in complying with CPLR 321 [b] for the transition from the original counsel to second counsel caused Defendant any prejudice (see Sperry Assocs. Fed. Credit Union v. John, 160 AD3d 1007, 1009 [2d Dept 2018]).

CPLR 2221 (d) states, in pertinent part, that “a motion for leave to reargue . . . shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.” Defendant asserts that the April 18, 2018 Decision overlooked the deficiencies in [*3]Plaintiff’s October 24, 2005 discovery responses and the portion of Defendant’s motion seeking a stay of the accrued interest. Given that the April 18, 2018 Decision did not specifically address these issues, the Defendant’s motion is granted and the Court amends its April 18, 2019 Decision as explained below.

A. Discovery Responses

Defendant identified only three of the discovery responses provided by Plaintiff, on or about October 24, 2005, as insufficient. Specifically, Defendant asserts that Plaintiff’s responses to Question 5 and Question 7, of Defendant’s Demand for Verified Interrogatories, are insufficient because they indicate that proof of mailing for the bills at issue had been attached to Plaintiff’s responses, but no proof of mailing was attached. Defendant further asserts that Plaintiff’s response to Question 18 is insufficient because Question 18 requests “the name and address of the office manager and/or individual who assisted in preparing and sending the bills and/or verification of treatment forms attached to the Plaintiffs complaint” and, Plaintiff simply responded “not applicable.”

i. Motion to Dismiss

The Court reaffirms the denial of Defendant’s motion to dismiss based on Plaintiff’s alleged failure to comply with the July 8, 2005 Order. The July 8, 2005 Order provides that the 30-day deadline for Plaintiff to respond to Defendant’s discovery demands, and avoid dismissal, could only be initiated by “service of a copy of the order, with notice of entry,” and Plaintiff has not provided proof that the July 8, 2005 Order was ever served with notice of entry beyond Plaintiff’s submission of an unexecuted copy of a notice of entry dated May 1, 2011. Accordingly, Plaintiff’s October 24, 2005 responses were timely.

Furthermore, to the extent that any of Plaintiff’s responses are substantively insufficient, dismissal is not appropriate “where there is no clear showing that the failure to comply with discovery demands was willful or contumacious” (see Walter B. Melvin, Architects, LLC v. 24 Aqueduct Lane Condominium, 51 AD3d 784, 785 [2d Dept 2008] (noting that striking a pleading is a “drastic remedy” and further finding that “while the plaintiff was clearly dissatisfied with the responses to its demands, there was no showing of a pattern of willful failure to respond to discovery demands or comply with disclosure orders, so as to justify striking the defendant’s answer”); Conway v. Brooklyn Gas Union Co., 212 AD2d 498, 498 [2d Dept 1995]). The portion of Plaintiff’s response to Questions 5 and 7 that states “[s]ee attached proof of mailing,” suggests an intent to comply and Plaintiff’s failure to attach proof of mailing could simply be a misunderstanding or oversight. With respect to Plaintiff’s response to Question 18, “not applicable” may simply be an indication that such information is not available, and Plaintiff intends to satisfy its burden by providing evidence of Plaintiff’s “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 [2d Dept 2001]). Accordingly, dismissal is not proper, and Plaintiff should be given a chance to clarify its responses (see Spiegel v. Goodman, 98 AD2d 815, 815 [2d Dept 1983]; Escobar v. St. Vincent’s Med. Ctr. Of Richmond, 2003 NY Slip Op 51674[U], *1 [App Term, 2nd & 11th Jud Dists 2011]).

ii. Motion to Strike Notice of Trial

The Court reaffirms its grant of Defendant’s motion to strike Plaintiff’s notice of trial. A notice of trial is properly vacated when the certificate of readiness incorrectly states a material fact regarding the completion of discovery (see Amoroso v. City of New York, 66 AD3d 618, 618 [2d Dept 2009]; Garofalo v. Mercy Hosp., 271 AD2d 642, 642 [2d Dept 2000]; Citywide Social [*4]Work & Psychological Servs., PLLC v. Autoone Ins. Co., 2011 NY Slip Op 51308[U], *1 [App Term, 2d Dept, 11th & 13th Jud Dists 2011] (finding that the court properly vacated a notice of trial due to outstanding discovery mandated in a prior order that directed plaintiff to provide discovery responses and appear for an examination before trial). It is undisputed that the EUO compelled in the July 8, 2005 Order has not yet occurred. Accordingly, Plaintiff’s statement that discovery has been completed in the certificate of readiness filed with the notice of trial in the current matter is erroneous and the notice of trial is properly stricken (see Amoroso, 66 AD3d at 618).

iii. Motion to Compel

This Court grants Defendant’s motion to compel sufficient responses to Questions 5, 7 and 18 of Defendant’s Demand for Verified Interrogatories. CPLR 3101 [a] provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The phrase “material and necessary” is “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” Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968]. The test in determining whether discovery is material and necessary “is one of usefulness and reason” (Id.).

The information sought by Questions 5, 7 and 18 is material and necessary and Plaintiff’s responses require clarity in light of their aforementioned issues. Thus, Plaintiff must provide sufficient responses to Questions 5, 7 and 18, and Plaintiff must produce any proof of mailing in its possession for the bills at issue. Plaintiff must provide said responses and documents to Defendant by no later than May 16, 2019 or this matter will be dismissed. Plaintiff may only extend this deadline with leave of the Court.

Additionally, although the Court reaffirms its grant of Defendant’s motion to compel Plaintiff to appear for an EUO, this Court finds that Plaintiff’s EUO is not preconditioned on Plaintiff’s discovery responses. The July 8, 2005 Order simply states that the Plaintiff must “respon[d] to all previously served discovery demands and appear[ ] for an examination under oath” to avoid dismissal (emphasis added). Contrary to Defendant’s suggestion otherwise, the July 8, 2005 Order does not address whether Plaintiff is required to respond to the discovery demands prior to being afforded the opportunity to appear for an EUO. Moreover, Defendant has not referred to any law that justifies its inactivity, with respect to both Defendant’s belated objections to Plaintiff’s discovery responses and apparent failure to even attempt to schedule an EUO.

In the over 12 years since the July 8, 2005 Order was issued, there is no evidence that the Defendant has served a notice of taking oral deposition pursuant to CPLR 3107 or even contacted Plaintiff about scheduling an EUO. Defendant seemingly blames its 12 years of inactivity on Plaintiff’s deficient discovery responses. However, the “ultimate determination of compliance [with respect to discovery] is the province of the court” (see Jones v. White Metal Rolling & Stamping Corp., 86 AD2d 687, 687-688 [3d Dept 1982]). Upon receiving responses from Plaintiff that Defendant deemed insufficient on or about October 24, 2005, Defendant could have immediately moved to compel satisfactory answers, but failed to do so (see J.R. Stevenson Corp. v. Dormitory Authority of State of NY, 112 AD2d 113, 117 [1st Dept 1985]). Considering that the July 8, 2005 Order provides that this matter “is” dismissed “unless“ Plaintiff responds to discovery requests and appears for an EUO, Defendant’s dilatory conduct played a significant role in this matter being brought to a standstill because Defendant waited [*5]almost 12 years to object to Plaintiff’s discovery responses and never afforded Plaintiff with an opportunity to appear for an EUO.

In light of Defendant’s delay in conducting an EUO of the Plaintiff and in order to expedite the completion of pretrial preparation, this Court further finds that if the Defendant fails to conduct an EUO of the Plaintiff by July 1, 2019, Defendant will be deemed to have waived it’s right to depose the Plaintiff, Plaintiff will no longer be obligated to appear for an EUO pursuant to the July 8, 2005 Order and Plaintiff will be permitted to file a notice of trial. If Plaintiff fails to appear for an EUO, at a time and place to be specified in written notice from Defendant of not less than 20 days beforehand or at such time and place as the parties may agree, this matter will be dismissed. This deadline may only be extended with leave of the Court.

B. Statutory Interest

The determination as to staying the accrual of no-fault interest cannot be made at this point. Prejudgment interest that accrues on overdue no-fault benefits at a rate of two percent per month “is a statutory penalty designed to encourage prompt adjustments of claims and inflict a punitive economic sanction on those insurers who do not comply” (East Acupuncture P.C. v. Allstate Ins. Co., 61 AD3d 202, 211 [2d Dept 2009]; see Aminov v. Country Wide Ins. Co., 986 NYS2d 909, 910 [App Term, 2d Dept, 11th & 13th Jud Dists 2014] (referring to interest accumulated pursuant to Insurance Department Regulations as prejudgment interest)). The Insurance Department Regulations provide that statutory prejudgment interest shall accumulate “unless the applicant unreasonable delays the . . . court proceeding” (11 NYCRR 65-3.9 [d]; see Aminov, 986 NYS2d at 910; Devonshire Surgical Facility v. Am. Tr. Ins. Co., 2011 NY Slip Op 50793[U], *5 [Civ Ct NY County 2011] (further noting that a “court proceeding ends with entry of judgment”)).

An award of this interest is only available to a prevailing claimant who has proven that that first party benefits are overdue (see Insurance Law § 5106 [a] (“benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained [and] [a]ll overdue payments shall bear interest at the rate of two percent per month”); Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498, 502 [2015] (noting plaintiff’s “prima facie burden of showing the fact and amount of loss sustained”). Further proceedings in this matter must be conducted to determine whether the benefits at issue are overdue (see Viviane, 25 NY3d at 502; see also Solow v. Wellner, 205 AD2d 339, 341[2nd Dept 1994], affd 86 NY2d 528 [1995] (“[A] determination as to the landlord’s entitlement to prejudgment interest on back rent recovered is premature at this point [because] [a]lthough CPLR 5001 (a) provides that interest shall be recovered on monetary damages awarded for breach of contract . . . such award, like that of attorney’s fees, is generally only available to the prevailing party [and] [f]urther proceedings must be conducted to determine whether any of the parties will attain that status.”).

In fact, the July 8, 2005 Order found that Plaintiff failed to meet its prima facie burden in moving for summary judgment (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] (noting that “failure to make such a prima facie showing requires denial of the [summary judgment] motion,” as opposed to the dismissal of a complaint). A determination by this Court on whether interest is tolled would be purely academic when there has not been an initial determination that interest is actually owed and accumulating, and this Court is prohibited from issuing such an advisory opinion (see Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 810 [2003]).

Furthermore, this Court also lacks evidence that is critical in determining the parameters of any tolling period in this matter. For example, Defendant has not submitted affidavits of service to prove service of its discovery demands or service of the July 8, 2005 Order with notice of entry. Additional evidence is also needed to determine whether Plaintiff is the cause of any unreasonable delay in this court proceeding, which must be established before interest can be tolled (see 11 NYCRR 65-3.9 [d]). Indeed, the extent to which Plaintiff caused any delay in this matter is questionable because Plaintiff’s ability to move forward in prosecuting this matter after the issuance of the July 8, 2005 Order was arguably limited by Defendant’s failure to provide Plaintiff with an opportunity to appear for an EUO. Notably, Defendant does not deny that it ignored Plaintiff’s alleged attempt to schedule an EUO even 12 years after the issuance of the July 8, 2005 Order.

Therefore, the Court denies Defendant’s motion to stay the accrual of no-fault interest, but Defendant may resubmit its motion on a later date.

III. Conclusion

Accordingly, the Court denies Defendant’s motion to dismiss, grant’s Defendant’s motion to strike, grants Defendant’s motion to compel, and denies Defendant’s motion to stay interest.

This constitutes the decision and order of the Court.

Dated: April 3, 2019

Jamaica, New York

Hon. John C.V. Katsanos

Judge, Civil Court

007745/11

Attorney for the Plaintiff: Gary Tsirelman P.C., 129 Livingston Street Brooklyn, Brooklyn, New York 11201

Attorney for the Defendant: Law Offices of Aloy O. Ibuzor, 485 Lexington Avenue, 7th Floor, New York, New York 10017

This is an action seeking reimbursement for medical services provided by Plaintiff under the No-Fault system. By Notice of Motion dated February 15, 2018, Plaintiff moves to vacate an order of administrative dismissal pursuant to CPLR 3215(c) dated March 30, 2017 and for leave to enter a default judgment against Defendant. Defendant opposes the motion.

The history of this case which culminated in the CPLR 3215(c) dismissal commenced with the timely purchase of an index number on January 26, 2011. Plaintiff, however, did not serve the summons and complaint on Defendant until June 5, 2013, over two years after the statutory 120-day service period had expired. Plaintiff attributes the delay to law office failure explaining that the office was unaware that it had failed to serve the summons and complaint due to an error caused by transferring files from an old management system to a new system between 2011 and 2012. In 2013, Plaintiff discovered that it did not possess an affidavit of service relative to this case and a process server was sent to serve Defendant in June of that year. Defendant, to date, has not answered. There is no indication in either the record or the parties’ moving papers that Plaintiff ever moved pursuant to CPLR 306(b) for an extension of time to effectuate service.

Plaintiff claims that the office filed a motion for a default judgment in July of 2014. Plaintiff states that because Defendant was personally served with process on June 5, 2013 and [*2]the affidavit of service was filed on June 6, 2013, it had until July 11, 2014 to move for a default. However, according to Civil Court records maintained for this index number, the motion for a default judgment was filed on August 6, 2014. On that same day, the court issued a “Judgment Rejection Notification.” The reason stated on the notice was “late service.” Plaintiff acknowledges timely receipt of this notice but did not move to cure the defect, claiming that an upgrade in its computer system resulted in the failure to alert a paralegal to draft a motion.

Plaintiff took no further action in this case and, in May of 2017, Plaintiff’s office learned that the action was administratively dismissed by an order of Judge Richard Montelione dated March 30, 2017. The order states:

“[p]laintiff(s) commenced this action to recover assigned first party no-fault benefits. Defendant failed to answer and more than one year had passed. There being no sufficient cause being shown why the complaint should not be dismissed, pursuant to CPLR 3215(c) it is therefore ordered, that the complaint is dismissed.”

Plaintiff now moves to vacate the administrative dismissal arguing that its motion should be granted because the court did not give it prior notice of the impending administrative dismissal. Plaintiff asserts that the court’s failure to give notice deprived the attorneys of an opportunity to be heard. Plaintiff further claims that this lack of notice constitutes its reasonable excuse for the failure to appear on March 30, 2017. Plaintiff also seeks to revive the August 6, 2014 application for a default judgment which it insists the court improperly rejected.

It is noted that the administrative dismissal order of March 30, 2017 was issued pursuant to CPLR 3215(c). The Second Department holds that “CPLR 3215(c) provides that ‘[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned … unless sufficient cause is shown why the complaint should not be dismissed’ ” (Myoung Ja Kim v. Wilson, 150 AD3d 1019, 1020 [2d Dept. 2017] quoting CPLR 3215[c]). This statute is strictly construed, as “[t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one year period, as those claims are then deemed abandoned” (Giglio v. NTIMP, Inc., 86 AD3d 301, 307—308 [2d Dept. 2011]; see HSBC Bank USA, N.A. v. Grella, 145 AD3d 669, 671 [2d Dept. 2016]).

Moreover, CPLR 3215(c) expressly provides that a court may dismiss a complaint as abandoned “upon its own initiative or on motion.” The statute further provides, however, that the failure to timely seek a default may be excused if “‘sufficient cause is shown why the complaint should not be dismissed'” (HSBC Bank USA, N.A. v. Grella, 145 AD3d at 671, quoting CPLR 3215[c]). To establish the sufficient cause required by CPLR 3215(c), “the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action” (Aurora Loan Servs., LLC v. Hiyo, 130 AD3d 763, 764 [2d Dept. 2015]; see Wells Fargo Bank, N.A. v. Bonanno, 146 AD3d 844, 845—846 [2d Dept. 2017]). “‘The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion [*3]court'” (Pipinias v. J. Sackaris & Sons, Inc., 116 AD3d 749, 752 [2d Dept. 2014] quoting Giglio v. NTIMP, Inc., 86 AD3d at 308; see U.S. Bank, N.A. v. Dorvelus, 140 AD3d 850, 852 [2d Dept. 2016]). While a court has the discretion to accept law office failure as a reasonable excuse, such excuse must be supported by detailed allegations of fact explaining the law office failure (see CPLR 2005; CEO Bus. Brokers, Inc. v. Alqabili, 105 AD3d 989, 990 [2d Dept. 2013]; HSBC Bank USA, N.A. v. Wider, 101 AD3d 683 [2d Dept. 2012]; Ibrahim v. Nablus Sweets Corp., 161 AD3d 961, 963 [2d Dept. 2018]).

Plaintiff’s claim that the court was required to give notice prior to the CPLR 3215(c) dismissal based on Rhodehouse v. CVS Pharmacy, Inc., 151 AD3d 771 (2d Dept. 2017), is erroneous. The dismissal in that case was made pursuant to CPLR 3216, not CPLR 3215(c), which expressly provides that a court may dismiss an action as abandoned “upon its own initiative or on motion” (Ibrahim v Nablus Sweets Corp., 161 AD3d at 961).

This case was properly dismissed, sua sponte, pursuant to CPLR 3215(c) as the case lay dormant in the court system without joinder of issue and without a default judgment against Defendant for over three years. Furthermore, this application must be denied as Plaintiff does not submit an affidavit of merit and the excuse of law office failure is vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v. Dorvelus, 140 AD3d at 852; Baruch v. Nassau County, 134 AD3d 658, 659 [2d Dept. 2015]; Mattera v. Capric, 54 AD3d 827, 828 [2d Dept. 2008]; Ibrahim v. Nablus Sweets Corp., 161 AD3d at 963; Private Capital Group, LLC, v. Hosseinipour, 2019 WL 1141605 [2d Dept. 2019]).

This case has been riddled with procedural defects since inception. Although Plaintiff purchased the index number within the statute of limitations on January 26, 2011, the summons and complaint were not served on Defendant until June 5, 2013, over two years later. At no time did Plaintiff move for an extension of time to serve Defendant pursuant to CPLR 306(b) and this defect continues to plague this case. Plaintiff offers no reasonable excuse as to why it filed the motion for a default judgement over one year after Defendant defaulted in answering. It is not clear whether the court rejected the default papers because Plaintiff served Defendant beyond the statutory 120-days of filing without leave of court or because Plaintiff filed the motion late. In either case, it is clear that the court rejected Plaintiff’s default judgment as untimely and no motion was made at that time to cure the rejected papers.

All of the above demonstrates a general pattern of neglect for which Plaintiff has consistently failed to provide a reasonable excuse or otherwise remedy. Considering the history of procedural defects, this court cannot accept Plaintiff’s vague excuse that the implementation of a new case management and computer system were valid reasons for the office failures over the years and, specifically for the failure to timely file for default judgment which led to the administrative dismissal of March 30, 2017

Accordingly, Plaintiff’s motion to vacate the March 30, 2017 order of administrative dismissal pursuant to CPLR 3215(c) is denied and the complaint is dismissed with prejudice.

This constitutes the decision and order of this court.

April 1, 2019
Brooklyn, NY
ENTER
__________________________________
CONSUELO MALLAFRE-MELENDEZ
Judge, Civil Court

723761/17

Attorney for Plaintiff:

David Landfair, Esq.

Kopelevich and Feldsherova

882 Third Avenue, 3rd Fl., Ste Ne1

Brooklyn, New York 11232

Attorney for Defendant:

Jeffrey S. Siegal

Bruno, Gerbino & Soriano, LLP

445 Broad Hollow Road

Melville, New York 11747

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1, 2

Notice of Cross-Motion

Affirmation in Opposition 3

In an action to recover assigned first-party no-fault insurance benefits, defendant moves for summary judgment pursuant to CPLR 3212, based on plaintiff’s alleged failure to appear for an Examination Under Oath “EUO.”

Defendant received plaintiff’s bills on March 24, 2017; and on March 27, 2017, sent plaintiff a letter scheduling an EUO for April 10, 2017. Defense counsel claims plaintiff failed to appear for the EUO, and that he memorialized the non-appearance by placing a statement on the record.

Defendant states that on April 12, 2017, it sent a follow up letter rescheduling the EUO to April 26, 2017. Plaintiff again failed to appear for the EUO, and defense counsel memorialized the nonappearance on the record.

On May 4, 2017, defendant denied the bills at issue based on plaintiff’s failure to attend an EUO, which it contends, absolves defendant of the responsibility to provide coverage.

The appearance of plaintiff at an EUO is a condition precedent to the insurer’s liability on the policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 827 N.Y.S.2d 217, 2006 NY Slip Op 09604 [2nd Dept 2006]); thus, defendant is correct that plaintiff’s failure to appear vitiates insurer’s obligations under the policy (see Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 584 N.Y.S.3d 607 [2nd Dept 1992]).

However, to demonstrate entitlement to summary judgement based on a provider’s failure to appear for an EUO, defendant must prove through admissible evidence, it had twice duly demanded an EUO from the provider, that the provider failed to appear, and defendant issued a timely denial. (See Island Life Chiropractic P.C. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 136(A), 2018 NY Slip Op 51552[U] [App. Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2018], citing Interboro Ins. Co. v Clennon, 113 AD3d 596, 979 N.Y.S.2d 83, 2014 NY Slip Op 00092 [2nd Dept 2014]).

In the instant matter, defendant argues plaintiff did not attend any of the two EUOs scheduled. However, defendant has the burden to establish, through admissible evidence, that that the EUO scheduling letters, and defendant’s denials, were properly mailed to the plaintiff. (See Parisien v Maya Assur. Co., 59 Misc 3d 146(A), 2018 NY Slip Op 50766(U) [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2018]; L.Z.R. Raphaely Galleries, Inc. v Lumbermens Mut. Cas. Co., 191 AD2d 680, 595 N.Y.S.2d 802 [2nd Dept 1993]).

To establish the admissibility of the two scheduling letters, serving as the basis of defendant’s motion, defendant the must prove that the documents were (1) “made in the regular course of defendant’s business” and (2) that “it was the regular course of business of the defendant to make” the documents at the time or within reasonable time after the event reflected in the documents. (See CPLR 4518(a)).

To fulfill the requirements of CPLR 4518 (a), defense counsel states that the EUO scheduling letters were created in the regular course of business of his law firm, which however, satisfies only the first prong of CPLR 4518(a). The second prong of the statute is not satisfied, as counsel does not state or establish that “it was the regular course of his law firm to make” the documents. Further, counsel represents that the letters were created by “an individual with knowledge” without, however, providing any information about the person, the basis of the person’s knowledge, whether the individual was an employee of defense counsel, or created the letters, in the regular course of business of defendant’s law firm. Defendant’s failure to satisfy the requirements of CPLR 4518(a), renders the EUO scheduling letters, inadmissible, and warrants denial of the motion, as defendant fails to establish as a matter of law that it timely requested the EUOs.

Had defendant established the evidentiary foundation of the EUO letters, it’s motion would still be denied, as it further fails to establish that the EUO scheduling letters were properly addressed and mailed to the plaintiff.

To establish entitlement to summary judgment, defendant must prove that it had a procedure designed to ensure that the EUO letters and denials were addressed to the correct recipient and properly mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 [*2]AD3d 1050, 7 N.Y.S.3d 429, 2015 NY Slip Op 03340 [2d Dept 2015]).

In the case at bar, defense counsel states that an individual affixes “the proper postage to the envelope containing the EUO request letter.” However, the statement is conclusory, as counsel provides no information as to whether the envelopes are addressed by a computer, machine, and/or by an employee; how the envelopes are addressed to ensure the accuracy of the recipient’s address, and the method by the envelopes are weighed and affixed with proper postage. Accordingly, defendant fails to establish its proper mailing of the EUO scheduling letters.

With respect to the mailing of the denials, defendant’s claims adjuster states they were properly mailed to the plaintiff, as the “recipient’s address” is printed on the denial, and on the envelope containing the denial.

However, the claims adjuster fails to provide any information as to how and by whom the names and the proper addresses of the recipient, are obtained and printed on the denial, and on the envelope containing the denial. Nor does defendant’s adjuster establish that defendant’s mailing practices are designed to ensure that the envelopes are correctly addressed. Thus, defendant’s motion is further denied as defendant failed to show that it correctly addressed the denials to the plaintiff.

In addition, there is no evidence establishing that defendant affixed proper postage on the envelopes bearing the denials. Defendant’s claims adjuster concludes that proper postage is “applied” to the envelopes containing the denials, but fails to provide any information regarding the individual, if any, who applies the postage, whether the postage is applied by a computer, a machine, or the method by which proper postage is determined.

Based on the foregoing, defendant failed to eliminate all triable issues of fact in connection with establishing defendant’s proper mailing of the EUO scheduling letters and denials. As defendant did not establish its entitlement to summary judgment, irrespective of the sufficiency of plaintiff’s opposition (see Alverez v Prospect Hosp., 68 NY2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]), its motion is denied.

Dated: March 28, 2019

_________________________________

HON. ODESSA KENNEDY

Judge of the Civil Court

CV-735802/17

Attorney for plaintiff
Damin J. Toell, Esq,.
Law Offices of Damin J. Toell P.C.
P.O BOX 245112
Brooklyn, New York 11224

Attorney for defendant
Desiree Ortiz Esq.,
Robyn M. Brilliant P.C.
333 West 39th Street, Suite 400
New York, New York 10018

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

In an action by a provider to recover assigned first-party no-fault benefits for breach of contract, defendant moves for an order dismissing the action pursuant to CPLR 3211(10) for failure to join a necessary party, or in the alternative, an order extending defendant’s time to interpose an answer pursuant to CPLR 2004.

Defendant claims that the assignor, Mikhail Soldatov, while operating his own vehicle, was involved in a motor vehicle incident with another vehicle, resulting in injuries which were treated by the plaintiff.

Defendant moves to dismiss the complaint based on plaintiff’s failure to join a necessary party, which defendant argues is the insurance carrier for Soldatov’s vehicle. Defendant contends that it never issued a liability insurance policy to Mr. Soldatov, but that it was the insurer of the [*2]other vehicle involved in the accident. Defendant argues that since Mr. Soldatov was not an occupant of the vehicle insured by defendant, defendant has no duty to provide Mr. Soldatov no fault coverage.

In opposition, plaintiff contends that the Court lacks subject matter jurisdiction to hear the defense that an insurance carrier other than the defendant is responsible for plaintiff’s claims. The defense, as per plaintiff, involves the priority of payment of insurance carriers, which must be resolved by arbitration, pursuant to 11 NYCRR 65-4.11(a)(6), which states “Any controversy between insurers involving the responsibility or obligation to pay first part benefits is not a coverage questions and must be submitted to mandatory arbitration.”

Plaintiff’s claim that the court lacks jurisdiction is unavailing. The priority of payment among insurance carries, applies to an applicant who is an “eligible injured person” under applicable insurance policies including defendant’s policy.

In the case at bar, plaintiff’s counsel submits no evidence that Mr. Soldatov’s vehicle was insured by defendant, or that Mr. Soldatov is otherwise entitled to receive no fault coverage from the defendant. Absent evidence that Soldatov is an “eligible injured person” under defendant’s policy, the priority of payment analysis under 11 NYCRR 65-4.11(a)(6) is not triggered or applicable herein.

In contrast, defendant provides an affidavit which unequivocally states it never insured the vehicle owned and operated by Mr. Soldatov. Defendant contends that the insurer of the Soldatov vehicle at the time of the incident, not the defendant, is the carrier responsible for providing Soldatov no-fault benefit. (See 11 NYCRR 65.1(d)(c), a person not an occupant of the vehicle defendant insured at the time of the incident, is not an “eligible injured person” under defendant’s policy).

A party may move for a judgment dismissing the action on the ground that the court should not proceed in the absence of a person who should be a party. (see CPLR 3211). In the instant action, defendant has submitted evidence that it did not insure the Soldatov vehicle.

However, plaintiff argues that defendant’s claim that another carrier insured the vehicle occupied by Soldatov at the time of the incident must be rejected, as the claim is based on the an uncertified, police report, which is an inadmissible hearsay. Absent the police report, plaintiff argues, defendant would have no basis to conclude that Soldatov occupied his own vehicle at the time of the incident.

While a police report is inadmissible unless the report constitutes a hearsay exception. (see Memenza v Cole, 131 AD3d 1020), a report based on the officer’s personal observations in carrying out her duties, is admissible as a business record (CPLR 4518 (a); Wynn v Motor Veh Acc Indem Corp 137 AD3d 779 [2d Dept 2016]).

In the case at bar, the police officer was under a business duty to obtain the names of the owners and occupants of the vehicles involved in the incident, which we can infer were based on the police officer’s observation. However, as the police report annexed to defendant’s motion is not uncertified, it is inadmissible. (See CPLR 4518 (c) a police report may be admitted as proof of the facts recorded therein only if it is certified).

Although the police report may not be admitted into evidence (CPLR 4518 (c)), the Court notes that plaintiff has not presented any evidence to dispute the truthfulness of the officer’s presumed observation that Soldatov was the operator of his own vehicle at the time of the incident. (See Wynn v Motor Veh Acc Indem Corp 137 AD3d 779; Clear Water Psychological Servs. PC v American Tr. Ins. 54 Misc 3d 915). Accordingly, defendant’s motion to interpose an [*3]answer is granted.

In its reply, defendant further argues that plaintiff did not provide it with written notification of the incident. Under 11 NYCRR 65-1.1(d), coverage is precluded absent written notification of the accident by the assignor or her representative within 30 days after the incident.

However, defendant’s motion is based on plaintiff’s failure to sue the proper party and failure to join a necessary party, and not on violation of the requisite 30-day rule. Accordingly, the court will not consider the above argument, as same is raised in defendant’s reply (Matter of Forest Riv., Inc. v Stewart, 34 AD3d 474 [2006]) and is further, not enumerated as a basis of defendant’s instant motion to dismiss.

Based on the foregoing, defendant’s motion is granted to the extent that defendant may interpose an answer within 30 days, raising all applicable defenses.

Dated: March 22, 2019
Brooklyn, New York
_______________________
HON. ODESSA KENNEDY
Judge of the Civil Court

CV-707232-16/QU

LAW OFFICES OF GABRIEL & SHAPIRO, L.L.C.

Counsel for Plaintiff

Andrew J. Dowd, M.D.

As Assignee of Audra Fulton

3361 Park Avenue, Suite 1000

Wantagh, New York 11793

Joseph J. Padrucco, Esq.

LAW OFFICES OF KAREN L. LAWRENCE

Counsel for Defendant

Allstate Insurance Company

1225 Franklin Avenue, Suite 100

Garden City, New York 11530

Marie-Ann Inguanti, Esq.

I.Background

Andrew Dowd, M.D. (the “Plaintiff”), as assignee of Audra Fulton (the “Assignor”), commenced this action based on Assignor’s automobile accident that allegedly occurred on or about February 6, 2012. Plaintiff served a summons and complaint on defendant Allstate Insurance Company (the “Defendant”) on or about October 12, 2016. Defendant joined issue by service of its answer on or about October 28, 2016.

On or about April 18, 2012, a letter purportedly addressed to Assignor’s alleged attorney, Richard Gershman & Associates, was sent on behalf of Defendant by Defendant’s contractor to [*2]schedule an independent medical examination (“IME”). A copy of the letter was also allegedly mailed to Assignor. The April 18, 2012 IME letter stated that Assignor’s IME was scheduled for May 5, 2012 at 1:30 p.m. and notably indicated that the IME was prompted by an accident that took place on February 5, 2012—not February 6, 2012, which is the alleged date of the accident in the current matter’s complaint. Assignor failed to appear for the scheduled IME on May 5, 2012.

On or about May 9, 2012, a second letter was allegedly mailed to Richard Gershman & Associates and Assignor that rescheduled Assignor’s IME to May 19, 2012 at 2:00 p.m., and the May 9, 2012 letter also indicated that the IME was prompted by an accident that took place on February 5, 2012. Assignor failed to appear for the rescheduled IME on May 19, 2012.

On or about June 19, 2012, Defendant received a bill in the amount of $1,186.42 for medical services provided by Plaintiff to Assignor on May 18, 2012. On or about July 10, 2012, a denial of claim form and explanation of medical benefits for date of service May 18, 2012, was allegedly sent to Richard Gershman & Associates and Assignor. Defendant’s sole basis for denying Plaintiff’s claim was Assignor’s failure to appear at the above IME appointments.

Defendant now moves for summary judgment, dismissing Plaintiff’s complaint or, in the alternative, granting the instant motion to the extent of finding that Defendant has established a prima facie case as to the mailing of its denial forms, setting this matter down for a hearing on the issue of IME no show and tolling the interest together with such other and further relief as the Court deems proper.

In accordance with rule 2219 of New York’s Civil Practice Law and Rules (“CPLR”), the Court considered herein the following: (1) Defendant’s notice of motion for summary judgment and motion to dismiss, affirmation in support of said motions and corresponding exhibits; (2) Plaintiff’s affirmation in opposition and corresponding exhibits; and (3) Defendant’s reply affirmation. As explain below, Defendant’s motion for summary judgment and motion to dismiss are denied.

II.Discussion

Summary judgment pursuant to CPLR 3212 provides a mechanism for the prompt disposition, prior to trial, of civil actions which can be decided as a matter of law (see generally Brill v City of New York, 2 NY3d 648, 651 [2004]). Since summary judgment deprives the non-moving parties of their day in court and has res judicata effects, it is therefore only appropriate “if no genuine, triable issue of fact is presented” (see Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]). On a motion for summary judgment, the moving party must make out its prima facie case by submitting evidence in admissible form which establishes its entitlement to judgment as a matter of law (see Marshall v Arias, 12 AD3d 423, 424 [2d Dept 2004]). Upon such a showing, the burden shifts to the non-moving party to present admissible evidence which demonstrates the necessity of a trial as to an issue of fact (see Zolin v Roslyn Synagogue, 154 AD2d 369, 370 [2d Dept 1989]). The non-moving party must be afforded every favorable inference that can be drawn from the evidentiary facts established (see McArdly v M & M Farms of New City, Inc., 90 AD2d 538, 538 [2d Dept 1982]). However, conclusory, unsupported allegations or general denials are insufficient to defeat a motion for summary judgment (see William Iselin & Co., Inc. v Landau, 71 NY2d 420, 427 [1988]; Stern v Stern, 87 AD2d 887, 887 [2d Dept 1982]).

In support of Defendant’s motion for summary judgment, Defendant was required to establish, prima facie, that the April 18, 2012 and May 9, 2012 IME letters were mailed to [*3]Assignor and that Assignor failed to appear for the IMEs (see generally Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2d Dept 2006]). Defendant has not met its burden because Defendant submits conclusory allegations that fail to establish that Defendant’s practices and procedures for mailing IME letters was designed to ensure that the IME letters were addressed to the proper party and properly mailed (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676-677 [2d Dept 2007]; Orthotech Express Corp. v. MVAIC, 2012 NY Slip Op 51913[U], *1 [App Term, 1st Dept 2012] (“The affiant, however, had no personal knowledge of the dates the IME notices were actually mailed, and described in only the most general terms her offices mailing practices and procedures. In the absence of any recitation of such matters as how the names and addresses on the IME notices were checked for accuracy and how the notices were picked up for mailing, we cannot say, on this record, that the office practice and procedure followed by Defendant’s contractor was designed to ensure that the [IME notices] were addressed to the proper parties and properly mailed.”) (internal quotation marks and citation omitted)).

Specifically, in discussing Defendant’s general practices and procedures associated with mailing IME letters, the affidavit of Defendant’s contractor merely states that “[t]he IME scheduling letter is generated with the name and address of the attorney representing the person to be examined, as provided by the insurance carrier, placed at the top of the scheduling letter” (aff of Jean Rony Pressoir at 2) (emphasis added). Defendant fails to provide any evidence detailing the practices and procedures implemented by Defendant, as the insurance carrier, or Defendant’s contractor to ensure that the correct address was used (see Westchester, 45 AD3d at 676-677).

Although Defendant’s contractor further states that “[i]t is [Defendant’s contractor’s] regular office business and policies and procedures that the letters are mailed to the claimants address on the bill” (aff of Jean Rony Pressoir at 3) (emphasis added), this practice and procedure is inapplicable to the current matter because the IME letters at issue were mailed before any claims were submitted by Plaintiff. Accordingly, Defendant has failed to make out a prima facie case establishing that it is entitled to summary judgment.

Moreover, the Court finds no basis to grant Defendant’s motion to dismiss Plaintiff’s complaint pursuant to CPLR 3211 [a] [1], CPLR 3211 [a] [7] and CPLR 3211 [a] [5]. Indeed, the documentary evidence submitted by Defendant fails to conclusively establish a defense as a matter of law (see Carlson v Am. Intern. Grp., Inc., 30 NY3d 288, 298 [2017] (“Under CPLR 3211 [a] [1], a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claim as a matter of law.”). Plaintiff has adequately pled causes of action pursuant to New York’s no-fault regulations (see Shebar v Metro. Life Ins. Co., 25 AD3d 858, 859 [3d Dept 2006] (“[O]n a motion to dismiss for failure to state a claim, the court must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable theory”) (internal quotation marks and citation omitted)).

Furthermore, although Defendant did not specifically state the grounds for its motion to dismiss pursuant to CPLR 3211 [a] [5], the Court presumes that Defendant’s motion is based on a prior arbitration award referred to by Defendant that was issued against a different Plaintiff in a separate matter. Plaintiff in the current matter has not agreed to be bound by an arbitration award, Plaintiff has not waived any remedies at law and this Court is not bound by an arbitration award against a different Plaintiff in a separate matter (see Zupan v. Firestone, 91 AD2d 561, 562 [1st Dept 1982] (dismissing plaintiff’s complaint pursuant to CPLR 3211 [a] [5] where an arbitration award was issued after plaintiff consented to arbitration and agreed to be bound by any determination and waived her rights to pursue any remedies at law against the defendant); Tenenbaum v Setton, 18 NYS3d 498, 500 [App Term, 2d Dept, 11th & 13th Jud Dists 2015]).

[*4]III.Conclusion

Accordingly, it is hereby ordered that Defendant’s motion for summary judgment and motion to dismiss are denied.

This constitutes the decision and order of the Court.

Dated:March 11, 2019

Jamaica, New York

Hon. John C.V. Katsanos

Judge, Civil Court

[*1]

Civil Court of the City of New York, New York County, March 8, 2019

APPEARANCES OF COUNSEL

Johnnie Gordon, plaintiff pro se.

After an inquest held on December 1, 2017, upon defendant Geico Insurance Company’s failure to appear for a conference,{**63 Misc 3d at 622} the court dismissed plaintiff Johnnie Gordon’s complaint for failure to meet the burden of proof (22 NYCRR 208.14 [b] [1] [“At any scheduled call of a calendar or at a pretrial conference . . . (i)f the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest”]; 22 NYCRR 208.32).^[FN*] Plaintiff then filed a notice of appeal and sought settlement of the transcript. Because the proposed changes did not accurately transcribe what occurred at the inquest, the court declined to sign the Clerk’s return on appeal (see CIV-GP-44 [2000]).

Plaintiff has now submitted a second errata sheet dated January 10, 2019, again proposing changes to the transcript which would not reflect statements made at inquest and, in some instances, alter the meaning of what was said on the record. For the reasons below, the court memorializes its first denial and denies the second set of proposed amendments.

CPLR 5525 (c) (1) provides that

“[w]ithin fifteen days after receiving the transcript from the court reporter . . . , the appellant shall make any proposed amendments and serve them and a copy of the transcript upon the respondent. Within fifteen days after such service the respondent shall make any proposed amendments or objections to the proposed amendments of the appellant and serve them upon the appellant. At any time thereafter and on at least four days’ notice to the adverse party, the transcript and the proposed amendments and objections thereto shall be submitted for settlement to the judge or referee before whom the proceedings were had if the parties cannot agree on the amendments to the transcript. The original of the transcript shall be corrected by the appellant in accordance with the agreement of the parties or the direction of the court and its correctness shall be certified to thereon by the parties or the judge or referee before whom the proceedings were had. When he [*2]serves his brief upon the respondent the appellant shall also serve a conformed copy of the transcript or deposit it in the office of the clerk of the court of original instance who shall make it available to respondent.”

CPLR 5525 (c) (3) provides that an appellant{**63 Misc 3d at 623}

“shall serve on respondent together with a copy of the transcript and the proposed amendments, a notice of settlement containing a specific reference to subdivision (c) of this rule, and stating that if respondent fails to propose amendments or objections within [15 days of service], the provisions of [CPLR 5525 (c) (2)] shall apply.”

CPLR 5525 (c) (2), in turn, provides that

“[i]f the appellant has timely proposed amendments and served them with a copy of the transcript on respondent, and no amendments or objections are proposed by the respondent within the time limited by paragraph 1, the transcript, certified as correct by the court reporter, together with appellant’s proposed amendments, shall be deemed correct without the necessity of a stipulation by the parties certifying to its correctness or the settlement of the transcript by the judge or referee. The appellant shall affix to such transcript an affirmation, certifying to his compliance with the time limitation, the service of the notice provided by paragraph 3 and the respondent’s failure to propose amendments or objections within the time prescribed.”

With respect to both the first and second errata sheets, the court is unable to discern the reason for defendant having failed to object. It may be because defendant did not receive a copy of the transcript; that is, plaintiff sent a copy of the transcript to defendant; that is, plaintiff’s affiant Robert Wilson, in affidavits dated December 14, 2018, and January 22, 2019, only testifies to actually serving the transcript on the earlier date. Moreover, both list defense counsel’s service address as 2 Huntington Quadrangle, Suite 2N01, Melville, New York 11747, not the address of record, 170 Froehlich Farm Boulevard, Woodbury, New York 11797. Finally, it is unclear what defendant would be able to object to—indeed, the very reason that the inquest went forward was defendant’s absence.

In any event, however, even if plaintiff complied with all of CPLR 5525 (c)’s technical requirements, the court would nevertheless be compelled to deny the proposed amendments. CPLR 5525 (c) invokes, at multiple junctures, the “correctness” of the record—in the context of a stenographic record, the accuracy for the purposes of appellate review (see e.g. Ayton v Bean, 92 AD2d 577, 578 [2d Dept 1983] [“by permitting the affidavit of service and the acknowledgement of service to be included in{**63 Misc 3d at 624} the record, Special Term was not correcting or reforming an old record in order to indicate the true facts appearing before it at the time of its original determination but it was, in fact, making an entirely new record. To allow this type of amendment at this stage of the proceeding ‘would be setting a precedent which would lead to great embarrassment in our practice and injustice to parties’ ”]; Yaretsky v Blum, 629 F2d 817, 822-823 [2d Cir 1980] [“The chief purpose of the state statutory requirement that a complete electronic or stenographic record of the hearing be kept appears to be to allow judicial review in a proceeding under (CPLR article 78)”], revd on other grounds 457 US 991 [1982]; cf. Van Valkenburgh v Bourne, 26 AD2d 727, 727 [3d Dept 1966] [permitting addition of statement made in unrecorded summation to the effect that plaintiff had “flunked his driver’s test” where defendant’s counsel conceded that the summation language was “similar in import to the quoted words”]). The very purpose of appellate review is the correction of any errors based on the record; to that end, CPLR 5525 must ensure that the appellate court is reviewing the record as it actually occurred, not as a party believes it should have.

When plaintiff first proposed amendments on or about December 17, 2018, plaintiff’s “Notice of Settlement of Transcript,” apparently sent to respondent/appellee Geico, was accompanied by a five-page errata sheet listing numerous proposed amendments. Numerous amendments materially changed not only plaintiff’s testimony, but the court’s statements and conclusions on the record. For example:

“Transcript (2:1): You have an order to show cause that was granted on default. You wanted to amend the complaint to include some medical service and alleged days out of work. So, this is an inquest.

“(Plaintiff) Okay.

“(Court) Apparently, this case was on for a conference and now I’m told it’s an inquest. During an inquest you can present your evidence as you would like the court to hear it.

“Proposed change: A Conference is on the calendar. The Defendant is a No show. The court will proceed instead on an Inquest. Later a default judgment is granted in favor of Plaintiff . . .

“Transcript (5:17-23): (Plaintiff) This is based on—initially, I was paid for during the time I was{**63 Misc 3d at 625} injured for medical treatment up until May 4th of 2013. This is being submitted because I continued treatment, it was necessary to have further treatment up until December 29th, I mean, December 29th of 2015.

“Proposed change: (Gordon) I was not paid for Medical Treatments during the time I was injured in an auto accident. My medical treatments were not paid for at all by my No-Fault auto insurer, Geico (not paid from date of accident to the date of last treatments which is 12/01/2012 through 12/29/2015).”

The second errata sheet proposed similar amendments (proposed change underlined):

“Transcript (6:24): (Plaintiff) This document [from the social security administration] shows that they’re demanding income to be reimbursed from Geico for the treatment periods that I was—it does establish the times that I was treated and had loss of income.

“Proposed change: (Plaintiff) This document [from the social security administration] shows that they’re demanding medical costs to be reimbursed from Geico for the treatment periods that I was—it does establish the times that I was treated and had loss of income . . .

“Transcript (6:24): (Court) You can appeal my decision once you get a decision from me based on this inquest.

“Proposed change: (Court) You can appeal my decision once you get a decision from me based on this conference.”

In the case of both the first and second errata sheets, the other proposed amendments are similar. Even if they do not, as in the examples above, profoundly alter the meaning of the statements made on the record, the proposed changes nevertheless fail to accurately reflect what was said. Accordingly it is hereby ordered that amendment of the transcript of the December 1, 2017 court proceedings (Vanessa M. Castillo, Court Reporter) pursuant to plaintiff’s November 24, 2018, and January 10, 2019, errata sheets is hereby denied; and it is further ordered that said transcript shall be settled as currently transcribed.

Footnotes

Footnote *:The court also denied several subsequent orders to show cause to reargue and/or renew.

714648/16

For Plaintiff: The Rybak Firm, PLLC, 1810 Voorhies Ave.-3rd Floor-Suite 7, Brooklyn, NY 11235 (718) 569-7040

For Defendant: Abrams, Cohen & Associates, 5 Hanover Square, Suite 1601, New York, NY 10004, (646) 449-7490

Plaintiff’s motion and defendant’s cross-motion for summary judgment pursuant to CPLR 3212 came before the court on October 18, 2018. In addition to the oral arguments of counsel, the court has considered the following listed submissions of the parties, pursuant to CPLR 2219(a):

Title Number

Plaintiff’s Notice of Motion undated; Attorney Affirmation of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on October 13, 2017 (Exhibit 2); and Exhibits 1-5 (inclusive of the foregoing affidavit) 1

Defendant’s Notice of Cross-Motion dated June 27, 2018; Attorney Affirmation of Jeff Winston, Esq., affirmed on June 28, 2018; Affidavit of Yamile Souffrant, sworn to on June 18, 2018 (Exhibit B); Affidavit of John Niles, sworn to on May 1, 2018 (Exhibit B); and Exhibits A-K (inclusive of the foregoing affidavits) 2

Plaintiff’s Attorney Affirmation in Opposition of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 2); Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 3); and Exhibits 1-3

In this action by a provider to recover assigned first party no-fault benefits, plaintiff moves for summary judgment arguing that it established its prima facie entitlement to recovery of its unpaid no-fault bills. Defendant cross-moves for summary judgment based upon plaintiff’s [*2]purported failure to appear for four Examinations Under Oath (“EUO”) or alternatively, based upon defendant’s founded belief that the alleged accident was an intentional loss and therefore, the alleged accident is not a covered event.

Plaintiff argues, inter alia, that the affidavits proffered by defendant are conclusory and insufficient to establish that the EUO letters and denials were timely and properly mailed. Specifically, plaintiff argues that the address on the EUO letters and denials are different and defendant failed to establish that the letters were sent to the correct address. Plaintiff further argues that the non-appearances at the scheduled EUOs were not established as the transcripts proffered did not sufficiently provide personal knowledge of plaintiff’s assignor’s purported non-appearances.

Where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [App. Div. 2nd Dept 2014]; see also 11 NYCRR § 65.15(d); Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 50928[U][App Term 2nd Dept 2016]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51653[U][App. Term 2nd Dept. 2015]; Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc 3d 134(A), 2011 NY Slip Op. 50622[U][App Term 9th & 10th Jud. Dists. 2011]; Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept. 2006]).

Moreover, it is well settled and established that an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [App. Div. 2nd Dept 2006]; Eagle Ins. Co. v. Davis, 22 AD3d 846 [App. Div. 2nd Dept. 2005]). An insurer asserting a lack of coverage defense must set forth admissible evidence of “the fact or [a] founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195 [1997]; St. Luke’s Roosevelt Hosp. v. Allstate Ins. Co., 303 AD2d 743 [App. Div. 2nd Dept. 2003]; Ocean Diagnostic Imaging P.C. v. Allstate Ins. Co., 6 Misc 3d 134[A], 134A [App. Term 2nd Dept. 2005]; Amaze Med. Supply, Inc. v. Utica Mut. Ins. Co., 26 Misc 3d 129(A), 129A [App. Term 2nd Dept. 2009]). “[A]n insurer’s evidence of a purposeful collision will often be circumstantial. This is to be expected; in the absence of a mea culpa from one of the participants, the insurer—and ultimately the court—must examine the facts and circumstances of the incident to determine whether they give rise to an inference of lack of coverage. Circumstantial evidence is sufficient if a party’s conduct ‘may be reasonably inferred based upon logical inferences to be drawn from the evidence. (internal citation omitted)'” (V.S. Medical Services, P.C. v Allstate Ins. Co., 11 Misc 3d 334 [Civ. Ct. Kings Cty. 2006], aff’d, 25 Misc 3d 39 [App. Term 2nd Dept. 2009]).

Upon review of defendant’s EUO no-show defense, the court finds that the denials issued in this matter were untimely as they were issued on February 2, 2016 and the last EUO was scheduled on December 7, 2015. Defendant had 30 days from the last EUO in which defendant was required to pay or deny the claims (see 11 NYCRR § 65—3.8[a][1]) and as defendant did not do so in this case, the defense is precluded.

Defendant proffers the EUO transcripts of the passengers and assignor, Bernetta Green, [*3]Craig Alexander and Tara Thomas, and as to the date of loss of August 14, 2015 ^[FN1] , to demonstrate that the incident was a caused loss and defendant contends that the same established its founded belief that there was a material misrepresentation of the claims; namely, that the accident was in fact, not an accident, but a purposeful collision. Specifically, defendant’s founded belief is based upon the inconsistent testimonies between the parties.

Upon a review of the EUO transcript, the court notes that while their testimonies were vague and at times, inconsistent, their recollections are not sufficient to demonstrate that a purposeful collision occurred. Even in considering whether circumstantial evidence exists to demonstrate that there may have been a purposeful collision, the vague testimonies of the parties are not sufficient. Moreover, defendant did not proffer any affidavit from an investigator who can elaborate on why the inconsistencies demonstrate intentional losses. Without a cogent and detailed investigative summary of this type of alleged intentional loss and solely relying on the transcripts alone in this matter, the testimonies given do not rise to the level of a founded belief that the accident was staged. As such, defendant’s proofs are insufficient to raise a triable issue of fact.

Plaintiff established its prima facie case through the affidavit of Ciffy Chelle, plaintiff’s employee and the bills annexed to the motion (see Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787 [2015]).

Therefore, based upon the foregoing, defendant’s motion for summary judgment is denied. Plaintiff’s cross-motion for summary judgment is granted and plaintiff may enter judgment in the amount of $534.32, together with applicable statutory interest, attorneys’ fees and costs.

This constitutes the Decision and Order of the court.

Dated: January 2, 2019
Richard J. Montelione, J.C.C./A.J.S.C.

Footnotes

Footnote 1:Defendant demonstrated its compliance with CPLR 3116 through the affidavits of service of Darryl Pierre, an employee of Abrams, Cohen & Associates, who was retained by defendant to schedule and conduct Examinations Under Oath.

718659/17

For plaintiff:
David Landfair Esq.
Kopelevich & Feldsherova PC
241 37th Street, Suite B439
Brooklyn, NY 11232

For defendant:
Allan Hollander, Esq.
Bruno, Gerbino & Soriano, LLP
445 Broad Hollow Road, Suite 220
Melville, NY 11747

RECITATION, AS REQUIRED BY CPLR2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion

Answering Affidavit 2

Reply Affidavit

In this action to recover first party no fault benefits, defendant moves for an order granting summary judgment and dismissing the complaint based on plaintiff’s failure to respond within 120 days to defendant’s initial request for verification.

In support of the motion, defendant submits the affidavits of its claim examiner in New York, Ms. McAndrews, and an employee of Auto Injury Solutions “AIS,” in Alabama, Ms. Ulmer. AIS is retained by defendant to receive and disseminate incoming mail related to no fault claims made against defendant, and, to mail medical providers or their assignees, verification requests which claims adjusters in New York electronically transmit to AIS. Ms. Ulmer submits two different affidavits, both dated August 4, 2017, which set forth AIS’s procedure for mailing verification requests, and procedure for documenting its receipt of incoming mail. Ms. McAndrews’ affidavit describes defendant’s procedures for electronically preparing and transmitting to AIS, defendant’s requests for verifications and denials.

Summary judgment is a drastic remedy (See Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [957]), which should not be granted if there is any doubt as to the existence of a triable issue of fact. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 [1978]). Hence, the court’s function in determining such a motion, is issue finding, not issue determination. (Id. Sillman at 395).

To prevail, the movant must establish entitlement to judgment as a matter of law, by submitting admissible evidentiary proof. (See Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 [1979]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (See Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]).

“A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570, 774 NYS2d 72 [2d Dept 2004]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) If plaintiff fails to provide the requested verification within 120 calendar days from the date of the initial request, the insurer may deny the claim. (11 NYCRR 65-3.5 [o]).

In the instant action, the basis of defendant’s motion, to wit, plaintiff’s failure to provide requested verifications, requires defendant to unequivocally prove by admissible evidence that it did not receive the requested verification. Defendant’s conclusory denial of receipt, is insufficient to make out prima facie showing of defendant’s entitlement to summary judgment. (See Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 36 N.Y.S.3d 46 [App Term, 2nd Dept 2016]).

While any mail containing plaintiff’s response to verification request would have been received by AIS in Alabama, Ms. McAndrews, defendant’s adjuster in New York, is the only affiant who states that AIS did not receive response to the verification requests, absent any evidence of her personal knowledge of AIS’s incoming mail procedures. Without demonstrating her personal knowledge of AIS’s internal mailing practices, Ms. McAndrew’s assertion that AIS did not receive verification responses lacks probative value. (see J.O.V. Acupuncture, P.C. v Amex Assur. Co., 55 Misc 3d 127[A], 55 N.Y.S.3d 692 [App Term, 1st Dept 2017]).

Ms. Ulmer, the affiant purportedly knowledgeable of AIS’s mailing procedures, states that she conducted a diligent search of the records in possession of AIS regarding the instant matter. She then lists the records, which she states are “annexed hereto,” but does not identify any exhibit, to which the described records are attached. Rather, there are some exhibits to the motion that contain records, which only defense counsel references in his affirmation. Defense counsel does not submit proof however, that the records annexed to those exhibits, are the records referenced in Ms. Ulmer’s affidavit, and that those records are all the documents Ms. Ulmer’s search had yielded.

Absent admissible evidence that the documents contained in the exhibits represent the totality of all documents obtained by Ms. Ulmer, defendant fails to establish, through any exhibit, the nature and the extend of the records that are in AIS’s possession.

Furthermore, Ms. Ulmer’s affidavit, describing the records she had obtained through her search, is ambiguous and insufficient to establish defendant’s burden that AIS has not received response to the verification requests.

Ms. Ulmer’s states that her “investigation revealed the following:” which she then attempts to numerically describe. Yet, Ms. Ulmer’s numeric description refers only to events, not the essence of the document necessary for its identification. Immediately appearing after the number one, the affidavit states: “document was received by AIS on 1/18/2017,” after number two, that “the document was indexed,” following numbers four and the five that “copies of EOR and NF10 were sent to the provider” and “to the assignor.”

As to item number three, Ms. Ulmer states that “the charges listed on the bill totaled $1039.69″ without providing any further details.

The inherent vagueness of Ms. Ulmer’s affidavit in her description of the records she had obtained, undermines defendants’ attempt to prove that AIS has not received response to the verification requests.

Moreover, while Ms. Ulmer could have avoided the ambiguity by unequivocally stating that her search did not reveal any response to verification requests, Ms. Ulmer, in contrast to Ms. McAndrews, does not make any such statement. Nor does she state that the records she attempted to describe, are the only records in AIS’s possession.

Furthermore, the ambiguous affidavit becomes evidently inaccurate, when Ms. Ulmer incorrectly states “all the documents” (including the bill prepared by plaintiff in the sum of $1039.69) were “prepared” in the regular course of” business of AIS, underscoring the unreliability the affidavit.

The Court further notes that Ms. Ulmer submits two distinct affidavits that are both executed in Alabama on August 4, 2017. CPLR 2309(c) states that an oath taken outside of New York State must be accompanied by a certificate, commonly referred to as “certificate of conformity” attesting that the oath that was taken in the foreign state was done so in accordance with the laws of that jurisdiction or of New York.

Defendant fails to produce an original “certificate of conformity” for either affidavit. Instead, defendant annexes to both affidavits identical copies a single certificate of conformity. Even, should the court decide to accept copies of the certificate of conformity in lieu of the original, defendant’s failure to provide copies of two separate certificates of conformity for each affidavit, renders the affidavits inadmissible as a matter of law.

Based on the foregoing, defendant failed to establish its entitlement to summary judgement by admissible evidence. Defendant’s motion for summary judgement is therefore denied.

Dated: November 21, 2018
ODESSA KENNEDY
JUDGE OF THE CIVIL COURT