Defendant appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered March 29, 2021, which denied his motions (1) to strike the complaint or conditionally preclude plaintiff from offering evidence at trial for failure to comply with discovery orders, and (2) for leave to amend his answer to include a counterclaim in the sum of $24,938.59 plus interest and statutory attorneys’ fees.

Per Curiam.

Order (Jose A. Padilla, Jr., J.), entered March 29, 2021, affirmed, with $10 costs.

In this action seeking a de novo adjudication of a no-fault insurance claim following a master arbitrator’s award in excess of $5,000 (see Insurance Law § 5106[c]), Civil Court providently exercised its discretion in denying defendant’s motion to strike the complaint or to conditionally preclude plaintiff from offering evidence for failure to comply with discovery orders. A motion court “is afforded broad discretion in supervising disclosure and its determinations will not be disturbed unless that discretion has been clearly abused” (Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845 [2008] [internal quotation marks omitted]). Here, the motion court’s finding that plaintiff’s responses were sufficient is supported by the record and was a proper exercise of discretion (see Youwanes v Steinbrech, 193 AD3d 492 [2021]; Lyoussi v Etufugh, 188 AD3d 604, 605 [2020]). Nor was the court constrained by the doctrine of law of the case, which is inapplicable to prior discretionary conditional discovery orders (see Allstate Ins. Co. v Buziashvili, 71 AD3d 571, 572 [2010]; Brothers v Bunkoff Gen. Contrs., 296 AD2d 764, 765 [2002]).

Civil Court also providently exercised its discretion in denying defendant’s eve of trial motion to amend his answer to assert a counterclaim for $24,938.59 in no-fault benefits, where he failed to establish a reasonable excuse for his years-long delay in moving for leave to amend (see Barry v Clermont York Assoc., LLC, 144 AD3d 607, 608 [2016]). Moreover, the proposed amendment would prejudice plaintiff at this stage of the proceedings, where discovery had been [*2]completed, a notice of trial had been filed and defendant previously limited his recovery to $15,251.76 based upon the fee schedule.

We have reviewed defendant’s remaining contentions and find them to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1] (October 26, 2021)

Scahill Law Group P.C., Bethpage (Albert J. Galatan of counsel), for appellants.

The Stuttman Law Group, P.C., Purchase (Dennis D. Murphy of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about May 21, 2020, which, to the extent appealed from as limited by the briefs, denied defendants’ motion to dismiss this action, based on the execution of a release by the nonparty injured person covered by plaintiff’s no-fault additional personal injury protection (PIP) benefits, unanimously affirmed, with costs.

The notice dated September 7, 2017, advising defendants’ insurer of the payment of PIP benefits covering the medical bills of nonparty Damaris Ortiz and demanding reimbursement, establishes that plaintiff insurer’s “right to subrogation ‘accrue[d] upon payment of the loss’ ” on September 5, 2017 (Fasso v Doerr, 12 NY3d 80, 88 [2009], quoting Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366, 372 [1990]). Plaintiff’s subrogation examiner, who averred having personal knowledge of the facts, including the date of mailing of the PIP notices identifying her as plaintiff’s contact person, properly authenticated this and other notices as business records (see CPLR 4518 [a]). Before Supreme Court, defendants did not contest the affiant’s assertion that the September 7, 2017 notice was mailed the same day, three days before Ortiz signed the general release in question (see CPLR 2103 [b] [2] [service completed when mailed]). We disregard defendants’ references to purported evidence to the contrary, which was not submitted to Supreme Court on this motion and is not included in the record on appeal (see Bregman v 111 Tenants Corp., 97 AD3d 75, 85 [1st Dept 2012]).

Contrary to defendants’ contention, the notices were not required to be sent directly to them, instead of their insurer, which was their “agent acting within the scope of [its] agency” (Center v Hampton Affiliates, 66 NY2d 782, 784 [1985]), and from which plaintiff had already recovered payments it made for another injured individual’s medical bills due to defendants’ liability arising from the same automobile accident (see Insurance Law § 5105 [a]). The insurer’s “knowledge” of plaintiff’s subrogation right “is imputed to [its] principal[s],” who are “bound by such knowledge although the information is never actually communicated to [them]” (Center, 66 NY2d at 784 [citations omitted]). Notably, prior to plaintiff’s first payment of benefits covering Ortiz, the bill of particulars served by Ortiz upon defendants in her personal injury action advised of the expected PIP coverage by plaintiff. As such, defendants “kn[e]w[ ] or should have known that a right to subrogation exist[ed]” at the time Ortiz signed the general release (Fasso, 12 NY3d at 88; see Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37, 46 [1925] [tortfeasor “knew or possessed information which reasonably pursued would have given it knowledge of (the) plaintiff’s status as an insurer of (the injured party) against claims springing from (the) defendant’s fault and that it had become subrogated to various claims of such a character against [*2]the (defendant)]”).

We reject defendants’ contention that five days must be added to the date of service, since, here, there is no “period of time prescribed by law [that] is measured from the service of a paper” (CPLR 2103 [b] [2]; see also Allied Wholesale v Asia N. Am. Eastbound Rate Agreement, 212 AD2d 472, 473 [1st Dept 1995], citing Matter of Knickerbocker Ins. Co. [Gilbert], 28 NY2d 57, 65-66 [1971] [service of demand for arbitration is complete upon mailing and timeliness is measured by date of mailing]). Defendants’ reliance on similar provisions measuring periods of time to request hearings after receiving mailed unemployment decisions, under the Labor Law, and to cure lease violations after receiving a landlord’s mailed notice to cure, under the Loft Law, is likewise unavailing (see 12 NYCRR 461.2; Matter of Tartaglia [Aegis Capital Corp.—Commissioner of Labor], 128 AD3d 1304, 1305 [3d Dept 2015], citing Labor Law § 620 [2]; see also D&R Realty Corp. v Blakely, 9 Misc 3d 203, 205-209 [Civil Ct, NY County 2005]). Concur—Gische, J.P., Webber, Mazzarelli, Shulman, Pitt, JJ.

[*1]

Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.

Orders, Supreme Court, New York County (Barbara Jaffe, J.), entered December 18, 2019 and May 12, 2020, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for a default judgment on its claims seeking a declaration of noncoverage against all defaulting defendants other than Keith Dumont and Steven Rob, unanimously reversed, on the law, with costs, the motion granted in its entirety and it is so declared.

In support of its motion for entry of a default judgment plaintiff submitted evidence of defendants’ defaults after proper service, as well as an affidavit of its no-faults claims representative sufficiently setting forth the basis for plaintiff’s claims seeking a declaration of noncoverage (see CPLR 3215 [f]; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71 [2003]). The claim representative’s affidavit set forth the factual basis for plaintiff’s belief that the accident was not a covered event because the loss was intentionally caused and the injuries purportedly sustained by the claimants in connection with the June 1, 2018 accident therefore did not arise from an insured event. By failing to answer, the defaulting defendants are “deemed to have admitted” the allegations in the complaint, including that the accident was intentional and staged (Al Fayed v Barak, 39 AD3d 371, 372 [1st Dept 2007] [internal quotation marks and brackets omitted]). The claims representative’s affidavit, as well as red flags raised by defendant Walton’s testimony at her EUO, support plaintiff’s belief. In addition, on reargument, plaintiff submitted an arbitration award in which the Arbitrator found that plaintiff had demonstrated by a preponderance of the evidence that it had a founded belief that the subject accident was not a covered event, because it was a deliberate event in furtherance of an insurance fraud scheme. As a result, plaintiff is entitled to a declaration that it is not obligated to defend or indemnify Jhoie Bradford, the owner of the insured vehicle, or Walton, the driver, or to provide no-fault coverage to any of the claimants in connection with the June 1, 2018 accident.

As to claimant Ronald Marcellus, plaintiff additionally provided sufficient proof that he failed to appear for an examination under oath (EUO) despite receiving proper notice, which vitiates the policy (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]). Generally, an insurer must provide proof that the EUO requests were timely mailed, within 15 business days of receipt of the prescribed verification forms, in compliance with 11 NYCRR 65-3.5 in order to obtain a default declaratory judgment (see e.g. Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 617-618 [1st Dept 2018]). However, that requirement does not apply where, as here, the EUOs are scheduled prior to the insurance company’s receipt of a claim form (see Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 469 [1st Dept 2016]; see also [*2]Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]). Since Marcellus failed to appear on two or more occasions and the EUO requests were sent prior to plaintiff’s receipt of a claim form, plaintiff did not need to demonstrate compliance for the verification requests under 11 NYCRR 65-3.5. Concur—Manzanet-Daniels, J.P., Kapnick, Mazzarelli, Oing, JJ.

[*1]

The Tadchiev Law Firm, P.C., Fresh Meadows (Simon B. Landsberg of counsel), for appellant.

Law Office of Daniel J. Tucker, Brooklyn (Ethan A. Rothschild of counsel), for respondent.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about August 14, 2020, which, insofar as appealed from as limited by the briefs, granted plaintiff’s motion for summary judgment against defendant Samuel O. Espinal and declared that plaintiff was not obligated to pay no-fault benefits to Espinal, unanimously reversed, on the law, without costs, the order vacated, and the matter remanded for further proceedings.

Espinal’s opposition to the summary judgment motion was timely filed in accordance with CPLR 2214 (b). Since the motion court granted plaintiff’s motion on the ground that Espinal failed to submit opposition papers, and therefore did not reach the merits of the motion, the matter is remanded for the motion court to consider the merits of the summary judgment motion in the first instance (see Fomina v DUB Realty, LLC, 156 AD3d 539, 540 [1st Dept 2017]; Commissioner of the State Ins. Fund v Weissman, 90 AD3d 417, 418 [1st Dept 2011]). Concur—Gische, J.P., Webber, Singh, Kennedy, JJ. [Prior Case History: 2020 NY Slip Op 31721(U).]

[*1]

Goldberg, Miller & Rubin P.C., New York (Harlan R. Schreiber of counsel), for appellant.

Economou & Economou, P.C., Syosset (Ralph C. Caio of counsel), for respondent.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about May 21, 2020, which, to the extent appealed from as limited by the briefs, granted defendant’s motion for summary judgment on his claim for no-fault insurance benefits in the amount of $6,106.56, plus interest and attorneys’ fees, and denied plaintiff’s cross motion for summary judgment on the same claim, unanimously reversed, on the law, without costs, defendant’s motion denied and plaintiff’s cross motion granted.

Plaintiff sent defendant a timely request for an examination under oath (EUO) with respect to a claim for benefits in the amount of $6,106.56, for shoulder surgery performed by defendant on an individual that was a passenger in a vehicle involved in an accident, covered by a no-fault insurance policy issued by plaintiff. Defendant failed to appear and plaintiff denied all claims for benefits made by defendant.

The failure to appear for an EUO that was requested in a timely fashion by the insurer is a breach of a condition precedent to coverage and voids the policy ab initio (see Hertz Vehicles, LLC v Alluri, 171 AD3d 432 [1st Dept 2019]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011] [“when defendants’ assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued”]). The coverage defense applies to any claim and is not determined on a bill by bill basis (see PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645, 646 [1st Dept 2020]). The EUO was timely requested as to the second claim for benefits for the shoulder surgery, accordingly, defendant’s failure to appear at that EUO voided the policy ab initio as to all claims, and plaintiff’s cross motion for summary judgment should have been granted in its entirety. Concur—Kern, J.P., González, Scarpulla, Mendez, JJ. [Prior Case History: 67 Misc 3d 1219(A), 2020 NY Slip Op 50594(U).]

[*1]

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

Law Office of Goldstein, Flecker & Hopkins, Melville (Lauren Hirschfeld of counsel), for respondent.

Order, Appellate Term, First Department, entered on or about April 13, 2020, which affirmed an order of the Civil Court, New York County (Judy H. Kim, J.), entered April 18, 2019, granting defendant’s motion to vacate, in effect, so much of a judgment, same court (Carol R. Sharpe, J.), entered May 25, 2018, as awarded plaintiff attorneys’ fees pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.6 (c) (former 11 NYCRR 65-4.6 [d]), unanimously reversed, on the law, with costs, and the matter remanded for further proceedings and an amended judgment in accordance herewith.

The issue before us in this action to recover first-party No-Fault insurance benefits is whether the failure of an eligible injured person (EIP) to attend an independent medical examination (IME) is a “policy issue” for the purpose of the no-fault insurance law denial of claim (NYS NF-10) form, as prescribed by 11 NYCRR Appendix 13, and an award of hourly attorneys’ fees, as provided by 11 NYCRR 65-4.6 (c). We conclude that an EIP’s failure to attend an IME is a “policy issue” and therefore that plaintiff may be awarded attorneys’ fees pursuant to 11 NYCRR 65-4.6 (c). However, we remand the matter to Civil Court for further proceedings, as explained below.

“Eligible Injured Person” is defined in the Mandatory Personal Injury Protection Endorsement (MPIPE) that must be contained in every motor vehicle owner’s policy of liability insurance (11 NYCRR 65-1.1 [d]). The MPIPE also sets forth certain conditions of and exclusions from coverage. For example, under the subheading “Proof of Claim. Medical, Work Loss, and Other Necessary Expenses” (subpara d), the MPIPE says, “The [EIP] shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require.”

The NYS NF-10 form lists eight “policy issue” reasons for denial of claim: “Policy not in force on date of accident” (box 3); “Injured person excluded under policy conditions or exclusion” (box 4); “Policy conditions violated” (box 5 [a] and [b]), referring to late notices of claim; “Injured person not an ‘Eligible Injured Person’ ” (box 6); “Injuries did not arise out of use or operation of a motor vehicle” (box 7); and “Claim not within the scope of your election under Optional Basic Economic Loss coverage” (box 8).

We find that “policy conditions or exclusion” under which the injured person is excluded from coverage in the “policy issue” reason in box 4 of the NYS NF-10 form refers to the conditions and exclusions of the MPIPE (11 NYCRR 65-1.1 [d]), which include, as noted above, that an EIP must submit to IMEs as required by the insurer. We therefore conclude that an IME no-show defense is a box 4 reason for denial. An EIP who does not attend an IME fails to satisfy a condition precedent to coverage under the policy, voiding the policy ab initio (PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). Thus, an insurer who denies a claim [*2]for first-party No-Fault benefits on the basis of the injured person’s failure to attend an IME properly does so by checking box 4 on the denial of claim form, and therefore an injured person’s failure to attend an IME is a “policy issue” both according to the denial of claim form and for purposes of awarding attorneys’ fees under 11 NYCRR 65-4.6 (c). We are unpersuaded by the reasoning of other courts that have reached the contrary conclusion. We also note that it is unclear to what the terms “policy conditions or exclusion” as used in box 4 of the denial of claim form refer, if not to the policy conditions and exclusions listed in the MPIPE.

Moreover, statutes and regulations must be interpreted in a manner that does not render them meaningless, unreasonable, or absurd (see McKinney’s Cons Laws of NY, Book 1, Statutes § 145; Long v State of New York, 7 NY3d 269, 273 [2006]). For this reason, we also reject the overly restrictive reading of 11 NYCRR 65-4.6 (c) urged by defendant, which would interpret “a policy issue as enumerated on the prescribed denial of claim form” (id.) as referring only to those specific justifications delineated on the form, and only as they are delineated on the form. That interpretation would both render some of the reasons on the denial of claim form meaningless and require the Department of Financial Services effectively to reproduce the MPIPE on the form to capture all the possible reasons for which a No-Fault benefits claim may be denied.

Although we conclude, for the foregoing reasons, that plaintiff may be awarded attorneys’ fees in this case under 11 NYCRR 65-4.6 (c), it is entirely unclear from the record whether the amount that was awarded was calculated correctly. There is no documentation supporting plaintiff’s claim for attorneys’ fees, the parties’ calculations as to the amount of attorneys’ fees owed and due differ irreconcilably, and it is uncertain whether the unpaid amount of the judgment was, in fact, unpaid attorneys’ fees in the first place. Accordingly, upon remittal, Civil Court should ascertain the amount of attorneys’ fees owed to plaintiff under 11 NYCRR 65-4.6 (c) and whether any amount either thereof or of the judgment as a whole remains outstanding, crediting defendant for the payments that it has already made. Concur—Renwick, J.P., Mazzarelli, Singh, González, JJ. [Prior Case History: 67 Misc 3d 129(A), 2020 NY Slip Op 50414(U).]

[*1]

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for appellant.

Jaffe & Velazquez LLP, New York (Thomas Torto of counsel), for respondent.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered June 8, 2018, which, in effect, granted reargument and adhered to the original determination, which granted the petition to vacate a master arbitrator’s award in favor of respondent, unanimously reversed, on the law, without costs, the petition denied, the master arbitrator’s award confirmed, and the matter remanded for a determination of respondent’s attorneys’ fees.

Although the motion court purported to deny respondent’s motion for reargument, it effectively granted the motion by addressing the merits. Accordingly, the order is appealable (CPLR 5701 [a] [2] [viii]; Castillo v Mount Sinai Hosp., 140 AD3d 619, 620 [1st Dept 2016], lv denied 28 NY3d 913 [2017]).

As respondent argued, the court overlooked existing authority confirming that CPLR 7511 (b) limits courts’ vacatur of arbitration awards to circumstances not present in this case (see Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999] [“(E)ven in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice”]).

The order that vacated the arbitration award cited no basis for vacatur under CPLR 7511 (b), finding only that the arbitrator and master arbitrator applied the wrong burden of proof to plaintiff’s fraudulent incorporation defense. Although on reargument the motion court determined that this Court’s decision in Country-Wide Ins. Co. v TC Acupuncture, P.C. (140 AD3d 643 [1st Dept 2016]), decided June 28, 2016, could not apply to the petition decided on June 9, 2016, Country-Wide did not state a new proposition of law, but merely cited existing authority (id. at 643-644 [“Even assuming, without deciding, that the master arbitrator applied the wrong burden of proof, the award is not subject to vacatur on that ground”], citing New York State Correctional Officers, 94 NY2d at 326).

Respondent is entitled to its reasonable attorneys’ fees on appeal (11 NYCRR 65-4.10 [j] [4]; Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 415 [1st Dept 2020]). We therefore remand the matter to Supreme Court for the calculation of those fees. Concur—Renwick, J.P., Kern, Singh, Shulman, JJ.