CV-56687-15/KI

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

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

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

NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2

AFFIRMATION IN SUPPORT & EXH. ANNEXED 3-4

AFFIRMATION IN OPPOSITION & EXH. ANNEXED 5-6

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

PROCEDURAL AND FACTUAL HISTORY

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

Underlying Oral Argument Held September 10, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(affirmation in opposition, paragraph 17).

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

Post-Underlying Oral Argument

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

DISCUSSION

LEAVE TO REARGUE: CPLR 2221(d)

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

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

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

LEAVE TO RENEW: CPLR 2221(e)

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

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

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

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

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

[*1]

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

APPEARANCES OF COUNSEL

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

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

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

Background

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

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

IME on August 28, 2017

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

Follow-Up IME on September 11, 2017

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

Denial of Claim Forms

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

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

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

The Instant Action

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

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

Discussion

“On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the [*4]required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action” (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [citations and internal quotation marks omitted]).

Defendant’s Motion for Summary Judgment

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

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

IME on August 28, 2017

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

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

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

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

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

Here, Handelsman did not submit any business records.

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

The affidavit does not state that no one appeared at all before Handelsman from 7:35 p.m. until 8:10 p.m. Because Handelsman swore that he was present in the office at the time the IME was to be conducted, he would have known, by the use of his own senses, whether a person appeared in front of him at the time IME was scheduled. However, the affidavit is conclusory as to the basis for Handelsman’s knowledge of the identity of Saddiq Waiters (see Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [“While defendant submitted properly sworn statements by the chiropractor and doctor who had been scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations”]). There is nothing in the record to indicate that Handelsman had an existing relationship with Waiters or had previously met Waiters so as to be able to recognize that person. If Handelsman had not previously met Saddiq Waiters, then his knowledge of Waiters’s identity would not be based on personal knowledge.

Follow-up IME on September 11, 2017

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

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

Timeliness of the Denial of Claim Forms

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim” (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009] [citations omitted]).

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

To establish proper mailing, defendant submits the affidavit of Lori Curtin, a litigation representative (see defendant’s exhibit B, aff of Lori Curtin) and business records of mailing reports of the denial of claim forms (see defendant’s exhibit C). According to Curtin, the denial of claim forms were printed and mailed from facilities in either Colorado Springs, Colorado or Highland Heights, Ohio (see Curtin aff ¶ 3). Curtin’s {**68 Misc 3d at 756}affidavit and the mailing reports established proof of mailing of the denial of claim forms on September 20 and September 28, 2017, in accordance with a standard office procedure (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

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

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

As plaintiff’s counsel points out, “the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]). Prior cases have ruled that the office procedure was inadequate where, for example, an employee has not checked that the names and addresses on envelopes matched the names and addresses of the intended recipients (see Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656 [2d Dept 1994] [“when reliance is placed on a mailing sheet, testimony that an employee normally checks the names and addresses on the envelopes with those on the mailing sheet is sufficient to constitute proof of mailing”]).

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

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

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

Plaintiff’s Cross Motion for Summary Judgment

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law” (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud [*8]Dists 2011]).

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

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

Assuming, for the sake of argument, that plaintiff’s submissions did not establish proof of mailing, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s motion papers, which admitted receipt of plaintiff’s bills (Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

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

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

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

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

Shara Acupuncture, P.C. controls here (id.). As discussed above, the plaintiff’s prima facie burden can be established in two ways: (1) proof that the defendant had failed to pay or deny the claim within the requisite 30-day period, or (2) proof that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (Ave T MPC Corp., 2011 NY Slip Op 51292[U]). If plaintiff cannot meet its prima facie burden under the first method because defendant submitted evidence of a timely denial (see e.g. Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2d Dept 2010] [defendant made a partial payment and partial denial within 30 days after receipt of the bill]), then the court should consider whether plaintiff met the prima facie burden under the second method (see Longevity Med. Supply, Inc. v Global Liberty Ins. Co., 67 Misc 3d 135[A], 2020 NY Slip Op 50527[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

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

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

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

Conclusion

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

Footnotes

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

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

Footnote 3:Id., denial of claim forms.

Footnote 4:Defendant’s exhibit D.

Footnote 5:Id.

Footnote 6:Id.

Footnote 7:Defendant’s exhibit C.

Footnote 8:Id., denial of claim forms.

Footnote 9:Id., mailing reports.

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

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

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

CV-746259-17/KI

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

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

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

Papers/Numbered

Notice of Motion and Affidavits Annexed 1-4

Notice of Cross Motion and Affidavits Annexed 5-26

Answering Affidavits 27-28

Replying Affidavits 29-30

Exhibits

Other

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

BACKGROUND

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

Services provided to assignor Sandra Figueora

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

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

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

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

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

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

Services provided to assignor Jason Dorvllier

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

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

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

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

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

IME of Jason Dorvllier on September 13, 2017

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

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

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

I swear that the above information is correct”

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

IME of Jason Dorvllier on September 27, 2017

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

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

I swear that the above information is correct”

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

EUO of plaintiff on October 30, 2017

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

Follow-up EUO of plaintiff on December 8, 2017

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

Follow-up EUO of plaintiff on February 14, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Follow-up EUO of plaintiff on March 15, 2018

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

Denial of Claim Forms

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

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

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

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

The Instant Action

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

DISCUSSION

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

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

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

A. EUO no-show defense

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

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

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

1. EUO on October 30, 2017

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

2. EUO on December 8, 2017

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

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

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

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

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

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

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

3. Follow-up EUO on February 14, 2018

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

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

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

4. Follow-up EUO on March 15, 2018

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

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

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

5. Timeliness of the Denial of Claim Forms

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim”

(Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009] [internal citations omitted]).

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

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

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

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

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013], affd 25 NY3d 498 [2015] [internal quotation marks and citations omitted]). “‘The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]). “Actual mailing may be established by a proper ‘certificate [of mailing] or by [an] affidavit of one with personal knowledge'” (J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [citation omitted]). “However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]).

a. Bill # 7

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

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

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

b. Bills # 1-6

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

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

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

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

c. Bills #8 and #10-11

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

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

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

6. Whether the denial of claim forms are defective

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

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

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

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

B. IME no-show defense

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

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

1. Proof of Mailing of IME scheduling letters

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

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

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

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

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

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

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

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

3. Timeliness of the Denial of Claim Form

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

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

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

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

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

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

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

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

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

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

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

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

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

II. Plaintiff’s Motion for Summary Judgment

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

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

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

Nevertheless, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s cross motion papers, which admitted receipt of plaintiff’s bills (Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, DC, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

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

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

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

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

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

CONCLUSION

Upon the foregoing cited papers, it is hereby

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

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

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

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

ORDERED that the Clerk is directed to enter judgment accordingly

This constitutes the decision and order of the court.

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

Footnotes

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

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

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

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

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

732680/17

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

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

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

CPLR 2219(a) Recitation

ORDER TO SHOW CAUSE & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION

EXHIBITS

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

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

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

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

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

This constitutes the decision and order of this court.

December 2, 2019

Brooklyn, NY

ENTER.

CONSUELO MALLAFRE MELENDEZ

Judge, Civil Court

Footnotes

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

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

741615/17

Pryanka Arora, Esq.

Law Office of Natalia Vassilieva, P.C.

3042 Ocean Avenue, 1st Floor

Brooklyn, NY 11235

Lawrence N Rogak, Esq.

Lawrence N Rogak LLC

3355 Lawson Boulevard

Oceanside, NY 11572

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

Notice of Motion and Affirmation in Support 1,2

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

Affirmation in Opposition 5

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dated: October 22, 2019

________________________

HON. ODESSA KENNEDY

Judge of the Civil Court

744329/16

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

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

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

NOTICE OF MOTION & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION 3

SUR REPLY

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

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

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

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

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

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

This constitutes the decision and order of this court.

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

732771/17

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

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

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

Notice of Motion and Affirmation in Support 1,2

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

Affirmation in Opposition to the Cross-Motion 5

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

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

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

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

EUO NON

APPEARANCE DEFENSE

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

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

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

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

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

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

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

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

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

POLICY EXHAUSTION DEFENSE

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

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

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

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

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

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

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

PLAINTIFF’S CROSS-MOTION

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

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

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

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

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