652007/17

Attorney for Plaintiff

GOTTLIEB OSTRAGER, LLP

300 Wheeler Road, Suite 204

Hauppauge, New York 11788

By: AARON EITAN MEYER, Esq.

Attorney for Defendants Hattie M. Washington and Alexander Anglada

Brian J. Levy & Associates PLLC

303 Jackson Ave

Syosset, NY 11791

By: BRIAN J. LEVY, Esq.

Attorney for Defendants DHD MEDICAL SUNSET PARK and D.H.D. MEDICAL, P.C.

LAW OFFICES OF GEWURZ & ZACCARIA

50 Charles Lindbergh Blvd, Ste 204 Uniondale, NY 11553-3600

By: DAYVA ZACCARIA, Esq.

Attorney for Defendant NEW YORK COMMUNITY HOSPITAL

BREA YANKOWITZ PC

15 Verbena AvenueFloral Park, NY 11001

By: PATRICK JOHN BREA, Esq.

Attorney for Defendant AARON ROVNER MD, PLLC

Russell Friedman & Associates, LLP

3000 Marcus Avenue, Suite 2E03

New Hyde Park, NY 11042

By: CHARLES H. HORN, Esq.

No appearance for all other defendants

In this action for a declaratory judgment, defendants Hattie M. Washington (Washington) and Alexander Anglada (Anglada) claim to have been involved in an accident involving a vehicle insured by plaintiff American Alternative Insurance Corporation. Washington and Anglada both contend that they were pedestrians who were struck by that vehicle, and then fell to the ground, sustaining injuries caused by that fall.

Plaintiff now moves, pursuant to CPLR 3215, for an order granting it a default judgment against non-answering defendants DHD Medical Sunset Park, D.H.D. Medical, P.C., Englington Medical P.C., Greater Health Through Chiropractic PC, East Midwood Volunteer Ambulance, Lomis Acupuncture P.C., Lenox Hill Radiology & Medical Imaging Associates, Integral Assist Medical PC, NYEEQASC, LLC (North Queens Surgical Center), Rockville Anesthesia Group, LLP, Aaron Rovner MD, PLLC, County Line Pharmacy and ISurply LLC (collectively, the provider defendants or the defaulting defendants), and directing the Clerk to enter judgment that plaintiff, and any and all of its subsidiaries and affiliates, are not obligated to provide any coverage, reimbursements or pay any invoices, sums or funds to the provider defendants on behalf of individual defendants Washington or Anglada, for any and all no-fault related services for which claims/bills have been or may in the future be submitted by said defendants to plaintiff relating to these claims, for a permanent stay of any and all No-Fault lawsuits and arbitrations that have been or may be brought by defaulting medical providers relating to these claims, and for costs and disbursements of this action.

For the reasons set forth below, plaintiff’s motion is granted.

BACKGROUND

On May 24, 2017, the defaulting defendants, with the exception of County Line Pharmacy, were served with the Notice of Commencement of Action Subject to Mandatory Filing, and the summons and complaint (see affirmation of Aaron E. Meyer, Esq., exhibit A [*2][proofs of service]). Pursuant to CPLR 3215 (g) (4) (i), on August 1, 2017, plaintiff mailed additional notices of the summons and complaint to the defaulting defendants, with the exception of County Line Pharmacy (see id., exhibit B). Plaintiff asserts that, as of the date of the affirmation, the additional notices have not been returned as undeliverable by the U.S. Postal Service.

On June 6, 2017, defaulting defendant County Line Pharmacy was personally served with the Notice of Commencement of Action Subject to Mandatory Filing, and the summons and complaint (see id., exhibit C [proof of service]).

Accordingly, County Line Pharmacy’s response was due on June 26, 2017, and the responses of the remaining of the defaulting defendants were due on September 5, 2017.

Plaintiff contends that, as of the date of the motion, the defaulting defendants have not responded to the complaint.

Subsequent to the filing of the motion, the action was discontinued against defendant DHD Medical, P.C. by stipulation. In addition, plaintiff asserts that it no longer seeks a default judgment against defendant Aaron Rovner MD LLP.

The core claim of both Washington and Anglada was that each was caused to fall to the ground as the result of the operation of the vehicle at issue. Plaintiff contends that, however, the insured vehicle was equipped with four video cameras, which do not show that either Washington or Anglada was knocked down or fell during the alleged incident.

Plaintiff denied benefits to both Washington and Anglada, the defaulting defendants’ assignors, based on the video evidence, subsequent investigation, witness testimony and sworn testimony by claimants, on the ground that their purported injuries neither arose out of a covered incident nor occurred as alleged. Specifically, plaintiff denied the claims on the ground that Washington and Anglada intentionally made fraudulent statements calculated to result in the provision of first party benefits to which neither was entitled.

Pursuant to CPLR 3215 (f), “‘[a]n applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to answer or appear'” (HSBC Bank USA, N.A. v Clayton, 146 AD3d 942, 944 [2d Dept 2017] [citation omitted]; accord 154 E. 62 LLC v 156 E. 62nd St. LLC, 159 AD3d 498, 498 [1st Dept 2018]; Bank of Am. N.A. v Agarwal, 150 AD3d 651, 652 [2d Dept 2017]). The plaintiff can satisfy this requirement through an affidavit of a party with personal knowledge of the facts (Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]; Goodman v New York City Health & Hosps. Corp., 2 AD3d 581, 581 [2d Dept 2003]).

Plaintiff has satisfied the first and third of these requirements by submitting the affidavits of service, and the affirmation of Aaron E. Meyer, its attorney, in which Meyer asserts that the defaulting defendants have not answered or appeared. Plaintiff has also submitted proof of the facts constituting its claims.

An insurer may disclaim all insurance coverage based upon “the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Grp. of Ins. Co., 90 NY2d 195, 199 [1997]). In meeting this burden, a No-Fault insurer is “not required to establish that the subject collision was the product of fraud, which would require proof of all elements of fraud, including scienter, by clear and convincing evidence” (V.S. Med. Servs., P.C. v [*3]Allstate Ins. Co., 25 Misc 3d 39, 41 [App Term, 2d Dept 2009] [internal citation omitted]). Rather, the No-Fault insurer must demonstrate the facts elicited during an investigation that make up the founded belief. Circumstantial evidence is sufficient to prove such facts if a party’s conduct “may be ‘reasonably inferred’ based upon ‘logical inferences to be drawn from the evidence'” (Benzaken v Verizon Communications, Inc., 21 AD3d 864, 865 [2d Dept 2005] [citation omitted]).

An assignee, such as the provider defendants, may only obtain the rights of its assignors. The general rule of assignment provides that the assignee stands in the shoes of the assignor upon assignment of the interest, and takes the assignment subject to the defenses assertable against the assignor (Kolbeck v LIT America Inc., 923 F Supp 557, 567 [SD NY 1996]; see also Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2d Dept 2007])

Plaintiff submits the affidavit of Ellen C. Henry, liability representative for Glatfelter Claims Management, Inc, which provides claims management services to plaintiff, in which Henry sets forth the proof of the facts constituting plaintiff’s claim (the denial of coverage and the basis therefor). Henry avers that she personally obtained the recorded statements of both Washington and Anglada, in which they stated that the collision with the insured vehicle caused them to fall to the ground (Henry aff, ¶¶ 7-10). Washington and Anglada repeated these statements to defendant medical providers (id., ¶¶ 11-13). Henry also avers that she “can personally attest to the fact that the video evidence directly and materially conflicted with both Defendants’ statements made to their treating medical providers and to myself” (id., ¶ 16). Specifically, Henry avers that the video evidence revealed that “while it is at best debatable as to whether the vehicle ever came into actual contact with either Defendant, it is indisputable that neither Defendant was knocked down or otherwise fell during the course of the incident” (id., ¶ 22). Accordingly, Henry determined that the claims were fraudulent and denied them (id., ¶ 23).

The facts set forth in the Henry affidavit are sufficient to create a founded belief that the claims were fraudulent, and that, as such, Washington and Anglada are not entitled to no-fault benefits. As assignees of the allegedly fraudulent claims, the defaulting defendants would likewise not be entitled to receive any payments for services allegedly provided as the result of the accident. Accordingly, plaintiff is entitled to a default judgment as against the defaulting defendants.

The defaulting defendants do not oppose the motion. The only opposition was submitted by Washington and Anglada. However, their response is completely irrelevant, as the motion was not brought against them. Moreover, their response does not speak to plaintiff’s prima facie entitlement to judgment against the defaulting providers, or excuse the non-answering defendants for their failure to take any action.

The court has considered the remaining arguments, and finds them to be without merit.

Accordingly, it is

ORDERED that plaintiff’s motion for a default judgment is granted, and plaintiff is directed to serve a copy of this Decision and Order with Notice of Entry upon defendants within 20 days.

Dated: August 14, 2018

ENTER:

_______________________

J.S.C.

152076/2017

Attorney for Plaintiffs
BRUNO, GERBINO & SORIANO, LLP
45 Broad Hollow Road, Suite 220
Melville, New York 1174
By: VANESSA HELEN HLINKA, Esq.

Attorney for Defendants: B.S.A. Chiropractic, P.C.; East Coast Metropolitan Medical, P.C.; Laurus Acupuncture, P.C.; One to One Rehab, PT, P.C., and Psychological Adaptation Services, P.C.
KOPELEVICH & FELDSHEROVA PC 241 37th St, Ste 615
Brooklyn, NY 11232
By: DAVID MICHAEL LANDFAIR, Esq.

Attorney for remaining Defendants
No appearance

Motion sequences 001, 002, and 003 are consolidated for disposition. In this declaratory judgment action, plaintiff Ameriprise Insurance Company moves for an order for a preliminary injunction, pursuant to CPLR 6301, and / or a stay, pursuant to CPLR 2201, of all pending and future lawsuits for uninsured / underinsured no-fault insurance benefits to defendants (motion sequence 001); an order of default judgment declaring that defendants Latanya (Dawn) Hampton (Hampton), John T. Bunn (Bunn), Cheryl Armour (Armour) , Safiyah Souza (Souza), Shakeya Witherpsoon (Witherpsoon), Nakia McCrae (McCrae), Audrey Johnson (Johnson), Avalon Radiology, P.C., Avanguard Medical Group, PLLC, East Coast Medical Diagnostic, P.C., Harden Street Medical, P.C., Metropolitan Medical & Surgical, P.C., Selena Apelis, D.C. and Vivid Acupuncture, P.C. are in default (motion sequence (002); and, pursuant to CPLR 3211 (a) (6), to dismiss the counterclaim because it was improperly interposed and /or pursuant to CPLR 3211 (a) (7), because the counterclaim fails to state a cause of action as against defendants BSA Chiropractic, Eastcoast Metropolitan Medical, P.C., Laurus Acupuncture, P.C., One to One Rehab PT, P.C., and Psychological Adaptation Services P.C. (motion sequence 003).

BACKGROUND

This litigation arises from an alleged motor vehicle accident (the incident) on July 22, 2013 involving a vehicle insured by John T. Bunn and another vehicle owned by Lillian Spooner and operated by Safiyah Souza in Brooklyn, New York. At the time of the incident, Bunn’s vehicle allegedly contained passengers Hampton, Armour, Witherspoon, McCrae and Johnson. Upon receipt of notification of the incident, plaintiff assigned the incident claim number 1673052. Then, plaintiff began receiving bills for medical treatment from several of the defendants, including Hampton, Armour, Witherspoon, McCrae, and Johnson.

Examination Under Oath (EUO) of Defendant John T. Bunn

Bunn testified that he lives at 1060 Hendricks Street, Brooklyn, New York (Bunn tr at 9). On the date of the incident, he was leasing a 2012 Honda Accord (id. at 19). He testified that he purchased the vehicle one year ago, but that he does not remember what address he gave plaintiff when he purchased the insurance policy (id. at 21-22). He lived at 99 Metropolitan in the Bronx when he first purchased the vehicle, and was paying $250 per month (id.).

He testified that, before the incident, he had driven from around the corner, at his mother’s house, to the location of the incident (id. at 26). After leaving his mother’s house, he saw Armour, who got into his vehicle at Bergen Street, where the incident occurred (id. at 18-22, 31). He testified that he and Armour did not go anywhere prior to the incident, and that he could not remember going out to eat prior to the incident (id. at 29). After Armour got into his vehicle, he told her to sit in the vehicle while he ran upstairs, because he had parked the vehicle in front of a fire hydrant (id. at 28, 32). Armour was the only person in his vehicle when he left the vehicle, and he left the key in the ignition (id. at 28, 32). He was going to 654 Kingsborough 6th Walk, to an apartment on the sixth floor, to visit the son of his [*2]childhood friend, Hampton (id. at 30-31).

He testified that he received a phone call from Armour when the incident occurred, and that when he came back down Armour’s friends were in his vehicle (id. at 34). He was unsure as to whether all of Armour’s friends were in the vehicle (id. at 35). He testified that Hampton was also in the vehicle, and he has known Hampton all his life (id. at 34, 36). He was told that Armour’s scratch under her eye was caused by a female driver in the other vehicle involved in the incident who tried to attack her (id. at 49).

EUO of Defendant Cheryl Armour

Armour testified that, at the time of the alleged incident, she was seated in the driver’s seat of Bunn’s vehicle (Armour tr at 21). Prior to the incident, Bunn had taken her and several other people, except for Johnson, to Dunkin Donuts (id. at 16). After they went to Dunkin Donuts, Bunn parked his vehicle in front of a fire hydrant so that he could go inside to drop something off for a friend’s mother named Lorraine (id. at 20, 97). Bunn told her to sit in the driver’s seat in case she had to move the car to avoid getting a ticket (id. at 21). She testified that the other vehicle reversed into Bunn’s parked vehicle twice, with the second hit pushing Bunn’s vehicle up onto a curb and into the fire hydrant (id. at 21-22, 92). As a result of the incident, she was bleeding underneath her left eye (id. at 22). She testified that she, McCrae, Witherspoon, and Johnson all went to the same medical facility that she found out about through Hampton’s sister, Robin (id. at 38). She further testified that people approached her at the scene of the incident to offer her legal services, but she did not take any of their business cards (id. at 32-33).

EUO of Defendant Shakeya Witherspoon

Witherspoon testified that at the time of the incident, she was a passenger in Bunn’s vehicle sitting in the middle of the backseat (Witherspoon tr at 19, 27). Armour was in the driver’s seat, Johnson was in the front passenger seat, Hampton was in the backseat on the right side, and McCrae was seated with her child in the backseat on the left side (id. at 21-25). At the time of the incident the vehicle was not moving (id. at 20, 27). She first got into the vehicle when she, Armour, Bunn, McCrae, McCrae’s child and Johnson went to the Dunkin Donuts, 20 to 30 minutes prior to the incident (id. at 29). Prior to going to Dunkin Donuts, she Armour, McCrae and Johnson were on Bergen Street when Bunn pulled up to them to take them to Dunkin Donuts (id. at 29, 31). She later testified that Johnson was not in the vehicle when they went to Dunkin Donuts (id. at 34). When they returned to Bergen Street, they parked in front of a fire hydrant and Bunn got out of the car because he had to take something to his godmother (id. at 39). Everyone else stayed in the car because they were discussing what they planned to do next (id. at 41). Bunn’s vehicle hit the fire hydrant after the other vehicle backed into Bunn’s vehicle twice (id. at 45). After the incident, strangers attempted to give them business cards for legal services but they did not take them (id. at 59).

She testified that she received medical treatment at a facility on Flatlands Avenue from a referral from Armour, and that someone from the facility transported her to and from the facility (id. at 59-60). She found out about her attorney through Armour and Armour’s friend dealt with the attorney (id. at 87).

EUO of Defendant Nakia McCrae

McCrae testified that at the time of the incident Armour was in the driver’s seat of Bunn’s vehicle, she was sitting behind the driver’s seat, Johnson was in the front passenger’s seat, Witherspoon was in the middle seat next to her, and Hampton was seated next to Witherspoon (McCrae tr at 18-19). It was drizzling on the day of the incident and she went outside to Bergen Street and met up with Witherspoon, Armour, Johnson and Hampton to watch their kids play and talk with each other while they had coffee (id. at 20-21). Bunn arrived by himself and at that point everyone decided to go to [*3]Dunkin Donuts because she had a Dunkin Donuts gift card (id. at 22). Bunn drove them to Dunkin Donuts (id. at 23). After Dunkin Donuts, they returned to Bergen Street and Bunn parked the vehicle, took the keys with him, and left everyone else in the car while he went to visit his godmother (id. at 28-29). The other vehicle backed into Bunn’s vehicle twice pushing Bunn’s vehicle onto the sidewalk, but she did not believe Bunn’s vehicle hit the fire hydrant (id. at 32, 34). Armour’s face was bleeding but she was not sure if Armour and the driver of the other vehicle got into a physical altercation (id. at 36-37).

She testified that people came to the hospital to give them business cards for attorneys and medical facilities but they did not take any of the cards (id. at 46). The next day she went to Harden Street Medical PC, a facility on Flatbush Avenue, for medical treatment (id. at 47-48). She found out about the facility through Armour and Witherspoon, and was transported there by drivers hired by the facility (id. at 49, 84). She found her attorney though friends, and Witherspoon told her they were going to do everything with Armour (id. at 84-85).

EUO of Defendant Audrey Johnson

Johnson testified that at the time of the incident Armour was in the driver’s seat, she was in the front passenger seat, Hampton was behind her and McCrae was next to Witherspoon behind Armour (Johnson tr at 18-20). It was drizzling on the day of the incident and she was coming out of a building when she saw Armour, Witherspoon, and McCrae parked so she went over to talk to Armour and got in Bunn’s vehicle (id. at 21-22). As she was talking, the other vehicle backed into Bunn’s vehicle, and Bunn’s vehicle hit the fire hydrant (id. at 24). Bunn’s vehicle was parked when it was hit (id. at 18-19). At the scene of the incident, people came up to them to give them business cards for medical and legal services but no one took the cards (id. at 35).

She testified that the next day she began receiving medical treatment at a facility on Flatlands and Avenue D in Brooklyn (id. at 30). Armour learned about the facility through friends, and referred her to the facility (id.). Armour’s friend drove she and Armour to the facility (id. at 35). She presently goes to the facility three times a week and the facility provides a car service (id. at 63). Armour also referred her to her attorney, but she does not know how Armour learned of the attorney (id. at 62).

EUO of Defendant Latonya Hampton

Hampton testified that, at the time of the incident, she was a passenger in Bunn’s vehicle (Hampton tr at 11). She was in the back rear right-side seat, Johnson was in the passenger front seat, and Armour was in the driver’s seat (id. at 16-17, 19). Witherspoon was sitting in the middle seat and McCrae was in the left seat behind the driver’s seat with her son (id. at 19, 23). She testified that there was Dunkin Donuts in the vehicle (id. at 25). Before the incident, her youngest child came over and asked them to move Bunn’s vehicle in order to get water from the fire hydrant (id. at 17). They moved Bunn’s vehicle about five feet, so the vehicle was then about five feet away from the fire hydrant (id.). The first impact occurred when they moved Bunn’s vehicle up, which then moved Bunn’s vehicle into the fire hydrant (id. at 41). She testified that she did not see anyone bleeding after the incident (id. at 26). She also did not know of anyone giving business cards for medical or legal services (id. at 29, 34). Her current attorney referred her to the facility where she is receiving medical treatment (id.).

After notification of the incident, plaintiff investigated the legitimacy of the incident. Plaintiff found the following during the investigation:

(1) When procuring the insurance policy, Bunn utilized a residential address of 118 Thielman Road, Hudson, NY 12534, but Bunn actually resided at 1060 Hendrix Street, Brooklyn, NY 11207 (plaintiff order to show cause, Hlinka affirmation [Hlinka Affirm.], exhibit E);

(2) The driver of Bunn’s vehicle at the time of the incident was not a listed driver on the insurance policy, and Bunn was not in the vehicle at the time of the incident;

(3) The police report stated that the vehicle was moving before the incident occurred, but Bunn contacted plaintiff several times to ensure that plaintiff’s notes stated that he was not at fault, because his vehicle was parked (Hlinka Affirm., exhibit G);

(4) There was a discrepancy between Bunn’s EUO and Armour’s EUO in terms of who was in the vehicle at the time of the incident;

(5) Except for Hampton, all of the alleged passengers in Bunn’s vehicle started receiving nearly identical treatment at the same multi-disciplinary medical facility, which included acupuncture, chiropractic treatment, and physical therapy;

(6) Plaintiff received billing for Armour, McCrae, Johnson, and Witherspoon from defendant Harden Street Medical PC as well as various sub-providers affiliated with the facility the day after the incident.

On March 3, 2017, plaintiff commenced the action by filing a summons and complaint. Plaintiff seeks a declaratory judgment that the vehicle in the incident was not a product of a covered event as it was the result of an intentional and / or staged occurrence. Defendants BSA Chiropractic, Eastcoast Metropolitan Medical, P.C., Laurus Acupuncture, P.C., One to One Rehab PT, P.C., and Psychological Adaptation Services P.C. (Answering defendants) oppose the motion.

DISCUSSION

Plaintiff seeks, by order to show cause, an order for a preliminary injunction, pursuant to CPLR 6301, and/or a stay, pursuant to CPLR 2201, of all pending and future lawsuits for uninsured/underinsured no-fault insurance benefits to the defendants pending determination of this declaratory judgment action.

CPLR 2201 states “[e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” This court may issue a stay of an action pending before it, but “it lacks statutory authority to stay actions pending in the Civil Court or District Court. [Therefore], plaintiff’s motion for a ‘stay’ of the pending lower court actions is in fact one for a preliminary injunction” (St. Paul Travelers Ins. Co. v. Nandi, 15 Misc 3d 1145 [A], 2007 NY Slip Op 51154 [U] *7 [Sup Ct, Queens County 2007] [internal citations omitted]).

CPLR 6301 provides the following:

“A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had.”

“Preliminary injunctive relief is a drastic remedy that will not be granted unless a clear right to it is established under the law and upon undisputed facts found in the moving papers, and the burden of showing an undisputed right rests upon the movant” (Zanghi v State, 204 AD2d 313, 314 [2d Dept 1994] [internal quotation marks and citations omitted]). The moving party has the burden of demonstrating “(1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party’s favor” (Doe v Axelrod, 73 NY2d 748, 750 [1988]). “The decision to grant or deny provisional relief, which requires the court to weigh a variety of factors, is a matter ordinarily committed to the sound discretion of the [] court[]” (id.).

Plaintiff contends that it is entitled to a preliminary injunction because it has demonstrated a [*4]likelihood of success on the merits. Plaintiff argues that it is not obligated to indemnify, defend against, or pay benefits for the incident because the incident was a result of intentional actions by the individual defendants. “An accident has been defined as an event which . . . is unusual and unexpected by the person to whom it happens. Thus, the rule in [New York] and in other jurisdictions is that [w]hether or not a certain result is accidental is usually determined by looking at the casualty from the point of view of the insured to see whether or not from his point of view the event was unexpected, unusual and unforeseen” (Nallan v Union Labor Life Ins. Co., 42 NY2d 884, 885 [1977] [internal quotation marks and citations omitted]).

A motor vehicle collision that is the result of intentional actions is not an accident (see Matter of Eagle Ins. Co. v Gueye, 26 AD3d 192, 193 [1st Dept 2006]; Matter of Travelers Indem. Co. v Morales, 188 AD2d 350, 351 [1st Dept 1992]; see also Matter of Fuscaldo v Motor Vehicle Acc. Indemnification Corp., 24 AD2d 744, [1st Dept 1965]).

Here, plaintiff has presented sufficient evidence to support its determination that the incident was not an accident. The verified complaint, affidavit of plaintiff’s Special Investigative Unit Senior Special Investigator James Glampe, and the EOUs of the individual defendants contain sufficient non-conclusory factual allegations for plaintiff to conclude that the incident was intentional and not eligible for no-fault coverage. Furthermore, the Answering defendants have not presented any factual evidence to contradict such a finding. Contrary to Answering defendants’ argument, the unsigned EUO transcripts of the individual defendants are admissible. “In order to use a transcript that is not signed by the witness, if the witness is a nonparty, or, if a party and the transcript is not signed by the witness or certified, it is the burden of the party wanting to use the deposition transcript to show that the transcript was sent to the witness to be reviewed for any corrections, and that sufficient time to do so has passed” (Palumbo v Innovative Communications Concepts, Inc., 175 Misc 2d 156, 157-158 [Sup Ct, NY County 1997], affd, 251 AD2d 246 [1st Dept 1998]). Plaintiff has provided copies of correspondence with its moving papers demonstrating that it requested individual defendants to review and execute the EOU, and gave each of them a proper amount of time to comply (see Hlinka Affirm., exhibits F,H, L, M, N, O). Likewise, contrary to Answering defendants’ contention, Glampe’s affidavit is also admissible given his personal knowledge and expertise in accident investigation (see Matter of Travelers Indem. Co. v Morales, 188 AD2d 350, 351 [1st Dept 1992] [ finding that “the officers'[] statements concerning the intentional nature of the incident were correctly considered by the court since the officers were trained experts in accident investigation”]).

Moreover, to the extent that Answering defendants’ argue that prior summary judgment motions in related cases determined that there are questions of fact, that is of no moment as questions of fact do not defeat a motion for preliminary injunction. (see CPLR 6312 [c]). “Provided that the elements required for the issuance of a preliminary injunction are demonstrated in the plaintiff’s papers, the presentation by the defendant of evidence sufficient to raise an issue of fact as to any of such elements shall not in itself be grounds for denial of the motion” (id.).

Answering defendants’ contention that plaintiff’s allegations of fraud are inapplicable to Answering defendants because they are innocent third-parties is unavailing. Answering defendants are not innocent third-parties as they all obtained assignments of individual defendants’ no-fault benefits, thus they are subject to the same defenses as their assignors (A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8, 11 [App Term, 2d Dept 2006] [“hold[ing] that only innocent third parties who are injured are protected, and not a health care provider who deals with the assignor-insured at its peril in accepting an assignment of the insured’s no-fault benefits”] [internal citation omitted]).

Plaintiff argues that it is entitled to a preliminary injunction because it will suffer irreparable harm if it must defend against several pending actions, as well as any actions that may be initiated in the [*5]future. Plaintiff further argues that it should not have to bear the unreasonable costs of defending against multiple actions when there is a declaratory judgment action that would resolve the issue of coverage and liability for all pending actions. In addition, plaintiff argues that the possibility of inconsistent decisions in the pending actions could cause an undue burden on plaintiff. “Irreparable injury, for purposes of equity, has been held to mean any injury for which money damages are insufficient” (McLaughlin, Piven, Vogel v W.J. Nolan & Co., 114 AD2d 165, 174, [2d Dept 1986] [internal citation omitted]). “Where . . . a litigant can fully be recompensed by a monetary award, a preliminary injunction will not issue” (Price Paper & Twine Co. v Miller, 182 AD2d 748, 750 [2d Dept 1992]). “[T]he ‘balancing of the equities’ usually simply requires the court to look to the relative prejudice to each party accruing from a grant or a denial of the requested relief'” (Ma v Xuan T. Lien, 198 AD2d 186, 186-187 [1st Dept 1993]). A plaintiff demonstrates irreparable harm and a balancing of the equities in its favor when injunctive relief would minimize repetitive litigation with the same claims, defense, and inconsistent judicial or arbitral decisions (St. Paul Travelers Ins. Co. v. Nandi, 15 Misc 3d 1145 [A], 2007 NY Slip Op 51154 [U] at *7 [Sup Ct, Queens County 2007]). “Rather than require insurers to wait to be sued so as to assert the affirmative defense of fraud, New York courts routinely permit insurers to proactively seek injunctive relief against any current and future actions and arbitration proceedings brought by, or on behalf of, the insured while the Court considers the merits of the alleged fraud.” (Liberty Mut. Ins. Co. v. Colot, 2012 NY Slip Op 33500[U], *1 [Sup Ct, NY County 2012]).

In the instant matter, plaintiff has demonstrated irreparable harm and a balancing of the equities in its favor. Preliminary injunction would not only be beneficial to plaintiff but also to Answering defendants in reducing legal costs and attorneys’ fees, and none of the parties would be subject to varying inconsistent court orders or arbitration awards.

Answering defendants argue that if plaintiff is granted a preliminary injunction, plaintiff must post a bond or undertaking pursuant to CPLR 6312(b) and CPLR 6315. Plaintiff does not oppose this, stating in its affirmation in reply that “[p]laintiff has no issue in posting of a bond in the event that the [c]ourt grants the injunction” (plaintiff’s order to show cause, reply affirmation at 8). The court has considered the remaining arguments and finds them unavailing. Therefore, plaintiff’s order to show cause is granted.

Plaintiff moves, pursuant to CPLR 3215, declaring that defendants Latanya Hampton, John T. Bunn, Cheryl Armour, Safiyah Souza, Shakeya Witherpsoon, Nakia McCrae, Audrey Johnson, Avalon Radiology, P.C., Avanguard Medical Group, PLLC, East Coast Medical Diagnostic, P.C., Harden Street Medical, P.C., Metropolitan Medical & Surgical, P.C., Selena Apelis, D.C. and Vivid Acupuncture, P.C. are in default in appearing or answering the summons and complaint. The aforementioned defendants have not opposed the motion; therefore, it is granted.

Plaintiff moves, pursuant to CPLR 3211 (a) (6), to dismiss Answering defendants’ counterclaim, because it was improperly interposed, and/or pursuant to CPRL 3211 (a) (7), because the counterclaim fails to state a cause of action.

Pursuant to CPLR 3211(a) (6), dismissal is permitted where, “with respect to a counterclaim, it may not properly be interposed in the action.” “This ground for dismissal applies where a counterclaim may not be interposed in a particular action such as when a fiduciary brings an action and a counterclaim has been improperly interposed against him or her in his or her personal capacity and not in the capacity in which he or she has sued” (MCC Funding LLC v Diamond Point Enterprises, LLC, 36 Misc 3d 1206[A], 2012 NY Slip Op 51212 [U] *5 [Sup Ct, Kings County 2012]). Although plaintiff cites to CPLR 3211 (a) (6) as a grounds for dismissal of Answering defendants’ counterclaims, plaintiff has not offered any grounds which would support dismissal on this basis.

Under CPLR 3211 (a) (7), a pleading may be dismissed for failing to state a cause of action. [*6]Under this section, “a motion to dismiss a pleading will fail, if, from its four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law” (Tenzer, Greenblatt, Fallon & Kaplan v Ellenberg, 199 AD2d 45, 45 [1st Dept 1993] (upholding denial of plaintiff’s motion to dismiss defendant’s counterclaim for failure to state a cause of action pursuant to CPLR 3211 [a] [7]). Answering defendants have failed to state a cause of action in their counterclaim. Answering defendants’ counterclaim seeks a payment of attorneys’ fees if they should succeed in alleging entitlement under assignments of no-fault benefits executed by plaintiff’s insured. However, plaintiff does not owe Answering defendants a duty to defend, as there is no recovery for attorneys’ fees in declaratory judgment actions to facilities that submit claims to the insurer on behalf of a non-insured parties (see Hertz Vehs., LLC v Cepeda, 156 AD3d 440, 441[1st Dept 2017] [holding no duty to defend where defendant is not an insured to which plaintiff owes a duty to defend because “[a]lthough [defendant] was assigned the claimants’ rights for reimbursement of no-fault benefits, the claimants were only passengers in the insured vehicle at the time of the accident, and were not parties to whom [plaintiff] owed a duty to defend”]; see also Fiduciary Ins. Co. of Am. v Med. Diagnostic Serv., P.C., 150 AD3d 498 [1st Dept 2017]).

Answering defendants’ reliance on Insurance law § 5106 entitled “Fair claims settlement” is unavailing, as there is nothing in the statute indicating that it applies to declaratory judgment actions. Section 5106 (a) states in part, “Payments of first party benefits and additional first party benefits shall be made as the loss is incurred . . . . If a valid claim or portion was overdue, the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations” (Insurance Law § 5106 [a]). Section 5102 (b) defines first party benefits as “payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle . . .” (Insurance Law § 5102 [b]). There is nothing in section 5106 (a) or the definition of first party benefits in section 5102 (b) that supports application to declaratory judgment actions. Moreover, although section 5106 permits a claimant “to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claims, subject to limitations promulgated by the superintendent in regulations,” there is nothing in the referenced regulations to support application to declaratory judgment actions (Insurance Law § 5106 [a]); see 11 NYCRR 65-4.6).

Answering defendants’ reliance on Mighty Midgets v Centennial Ins. Co. (47 NY2d 12 [1979]), and U.S. Underwriters Ins. Co. v City Club Hotel, LLC (3 NY3d 592 [2004]) is misplaced because those cases specifically dealt with indemnification of an insured. Here, the Answering defendants are not the insured parties but rather “assignee[s] of the rights of the no-fault claimants in the underlying automobile accident to whom [they] provided medical treatment” (Hertz Vehs, 156 AD3d at 441). The insured parties in Mighty Midgets and U.S. Underwriters Ins. were able to recover attorneys’ fees because “an insurer’s duty to defend an insured extends to the defense of any action arising out of the occurrence, including a defense against an insurer’s declaratory judgment action” (U.S. Underwriters, 3 NY3d at 597-598). However, an insurer’s duty to defend does not extend to assignees of the rights of no-fault claimants, here the answering defendants (Hertz Vehs., 156 AD3d at 441). The court need not address plaintiff’s and Answering defendants’ remaining contentions.

CONCLUSION

Accordingly, it is hereby

ORDERED that plaintiff’s order to show cause for a preliminary injunction is granted (motion sequence 001); and it is further

ORDERED that plaintiff and BSA Chiropractic, Eastcoast Metropolitan Medical, P.C., Laurus [*7]Acupuncture, P.C., One to One Rehab PT, P.C., and Psychological Adaptation Services P.C. submit affidavits on the proper amount of plaintiff’s undertaking within 14 days of entry of this order; and it is further

ORDERED that plaintiff’s motion for default judgment against defendants Latanya Hampton, John T. Bunn, Cheryl Armour, Safiyah Souza, Shakeya Witherpsoon, Nakia McCrae, Audrey Johnson, Avalon Radiology, P.C., Avanguard Medical Group, PLLC, East Coast Medical Diagnostic, P.C., Harden Street Medical, P.C., Metropolitan Medical & Surgical, P.C., Selena Apelis, D.C. and Vivid Acupuncture, P.C. is granted (motion sequence 002); and it is further

ORDERED that plaintiff’s motion to dismiss the counterclaim of BSA Chiropractic, Eastcoast Metropolitan Medical, P.C., Laurus Acupuncture, P.C., One to One Rehab PT, P.C., and Psychological Adaptation Services P.C. is granted (motion sequence 003).

Dated: August 14, 2018
ENTER:
J.S.C.

152175/2015

Plaintiffs: Nicole R. McErlean, Freiberg, Peck & Kang, LLP, 200 Business Park Drive, Suite 202, Armonk, NY 10504

Defendant: David Karp, Fuld & Karp, P.C., 1963 Coney Island Avenue, Brooklyn, NY 11223

In this declaratory judgment action, the plaintiff insurer moves for summary judgment pursuant to CPLR § 3212 against the defendant Sweetwater Chiropractic, P.C., a medical provider, which, as assignee of the thirteen individuals who were allegedly injured in various motor vehicle accidents, sought payment for no-fault benefits under polices issued by the plaintiff. The basis for plaintiffs’ motion is that defendant failed to appear for scheduled examinations under oath (“EUOs”) which was a breach of a condition precedent to coverage under the No-Fault regulations. Defendant cross-moves for an order, pursuant to CPLR § 3126(3), for a default judgment against the plaintiffs on the defendant’s counter-claims and dismissing the plaintiffs’ complaint, or for an order pursuant to CPLR § 3126(1). Alternatively, defendants seek an order compelling the plaintiffs to provide outstanding discovery and submit to an examination before trial by a date certain pursuant to CPLR § 3124. Defendant further moves for an order pursuant to CPLR § 603 severing this action into thirteen separate and individual actions relating to the claims submitted by defendant for each individual eligible injured person. For the reasons stated below, plaintiffs’ motion for summary judgment and defendant’s cross-motion to dismiss are denied. Defendant’s cross-motion to sever the action is [*2]also denied. Defendant’s cross-motion seeking an order compelling discovery is granted.

Thirteen individuals were allegedly injured in various motor vehicle accidents and made claims as eligible injured persons (“EIPs”) for no-fault insurance coverage under plaintiffs’ automobile insurance policies. On the date of each motor vehicle accident, the respective insurance policy was in effect for each claimant. Furthermore, each policy contained a no-fault endorsement which provided that State Farm would reimburse an EIP for the treatment of injuries occurring out of the use or operation of the insured vehicle. The defendant is a health service provider that allegedly treated the EIPs and was assigned the right to collect no-fault reimbursement on behalf of the EIPs. As an assignee, the defendant submitted no-fault billings to State Farm for reimbursement. The policies under which defendant has sought or will seek reimbursement for no-fault benefits from State Farm contain a condition precedent that EIPs or their assignees seeking reimbursement may be required to submit to EUOs.

Plaintiffs assert that defendant breached a condition precedent to No-Fault recovery by failing to appear for duly scheduled EUOs. Plaintiffs allege they duly and timely requested defendant to appear for EUOs in connection with claim reimbursements under New York Administrative Code Sections 65-3.5(b) (“11 NYCRR”) and 65-3.8(a)(1), but defendant failed to appear for every scheduled EUO. In support of this contention, plaintiff submits affidavits from Keith Bertrand (“Bertrand Affidavit”), Brian Rafalski (“Rafalski Affidavit”), and Christopher Howard (“Howard Affidavit”).^[FN1] Accordingly, plaintiffs ask this court to issue a declaration that 1) defendant failed to appear for EUOs, thereby breaching a condition precedent to no-fault coverage and violating the No-Fault regulations; 2) all automobile insurance policies named within the complaint are void back to the inception of each respective policy; and 3) plaintiffs owe no coverage for any and all, past or future, no-fault claims made by the defendant.

In opposition, defendant argues, inter alia: (1) the Howard Affidavit does not establish why the EUOs were requested by the plaintiffs on any of the claims that are the subject of this action; (2) the affidavits of Bertrand and Rafalski do not establish the admissibility of the EUO request letters; and (3) necessary discovery remains outstanding, precluding summary judgment at this stage. With respect to the remaining discovery, defendant argues that it is entitled to discover what correspondence, if any, the plaintiffs or their counsel received in objection to the alleged EUO requests. Defendant submits three letters sent by defendant’s counsel, in response to the EUO requests, seeking to ascertain the basis for the plaintiffs’ requests for the EUOs. Defendant further asserts that plaintiffs are the only ones who know what responsive communications were received. Additionally, defendant points out that plaintiffs have not responded to defendant’s discovery demands dated March 30, 2015.

With regard to defendant’s request to sever the action, it contends that severance is proper because the facts and circumstances for each individual claimant is different. Defendant further points out that a trial of this matter would necessitate testimony regarding the generation and mailing of multiple EUO scheduling letters for each of the thirteen separate and distinct claims.

On a motion for summary judgment, the moving party has the initial burden of establishing its entitlement to judgment as a matter of law with evidence sufficient to eliminate any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1985]). The facts must be viewed “in the light most favorable to the non-moving party” (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposition papers (Voss v Netherlands Ins. Co., 22 NY3d 728, 734 [2014]). Once the moving party “produces the requisite evidence, the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action” (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft, LLP, 26 NY3d 40, 49 [2015]). The court’s task in deciding a summary judgment motion is to determine whether there is bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v Restani Constr. Corp, 18 NY3d 499, 505 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied (Tronlone v Lac d’Amiante Due Quebec, Ltee, 297 AD2d 528, 528-529 [1st Dept 2002], aff’d 99 NY2d 647 [2003]).

A No-Fault insurer may request that an eligible injured person or that person’s assignee submit to an EUO as may reasonably be required (see 11 NYCRR 65-1.1).^[FN2] A request for an EUO

“must be based upon the application of objective standards so that there is a specific objective justification supporting the use of such examination” (see 11 NYCRR 65-3.5[e])

Appearance at a properly demanded EUO is a condition precedent to an insurer’s liability to pay no-fault benefits (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]). No liability exists on the part of the no-fault insurer unless there has been full compliance with the conditions’ precedent to coverage (see Hertz Vehicles, LLC v Delta Diagnostic Radiology, P.C., 2015 WL 708610, 2015 NY Slip Op 302429 [U], *3 [Sup Ct, NY County, Feb 18, 2015]; 11 NYCRR 65-1.1). The denial of coverage premised on a breach of a condition precedent to coverage voids the no-fault policy ab initio (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, supra; Mapre Ins. Co. of New York v Manoo, 140 AD3d 468, 469 [1st Dept 2016][“The failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage”]).

State Farm, as the proponent of the summary judgment motion, had the initial burden of showing its prima facie entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form from someone with personal knowledge that valid notices of the EUOs [*3]were mailed to the defendant, and that the defendant failed to appear for the EUOs (Bath Ortho Supply Inc. v New York Central Mut. Fire Ins. Co., 2012 NY Slip Op 50271[U], *1 [App Term 1st Dept 2002], citing Unitrin, 82 AD3d at 560; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721-722 [2d Dept 2006]).

This Court rejects defendant’s argument regarding the admissibility of the EUO request letters. While the Bertrand and Rafalski Affidavits when viewed together, explain State Farm’s standard mailing procedure, they do not state whether the EUO request letters at issue here were mailed out in accordance with that procedure. Notwithstanding this, this Court finds the affidavits to be sufficient as the Bertrand Affidavit states that all EUO letters are mailed in the way attested to in his affidavit. As such, the Court considers the EUO request letters not for truth of their contents, but only to show that they were mailed.

At the very least, however, triable issues of fact exist as to whether the EUO requests were reasonably or properly made. In support of its motion, State Farm submits an affidavit from Christopher Howard, an investigator in the plaintiffs’ special investigative unit, attesting to the basis for the EUOs that defendant failed to attend. Plaintiffs allege that the EUOs were properly requested in order to obtain additional verification of no-fault claims submitted for payment by the defendant, on behalf of thirteen eligible persons, whom defendant treated for injuries sustained in different motor vehicle accidents. The Howard Affidavit states in relevant part “State Farm commenced an investigation into Sweetwater for the following reasons: (i) to verify that ownership, control and operation of the professional practice complied with New York State Licensing requirements; and (ii) to verify that the services were medically necessary” (Howard Aff at 1-2). Mr. Howard further attests that he “reviewed a sampling of medical records from Sweetwater, which revealed that chiropractic treatment was being rendered at a high frequency concurrently with acupuncture and physical therapy There also appears to be a pattern of high frequency diagnostic testing which has no effect on the course of treatment” (Howard Aff at 2). The key issue for this Court is the lack of specificity in the affidavit. While Mr. Howard identified indicators for requesting an EUO, he did not set forth any of the facts that State Farm considered in making its determination to request an EUO for the specific claims at issue here. Nor did he provide the timeframe for which State Farm seeks to verify that defendant’s ownership, control, and operation of the professional practice complies with New York licensing requirements. Likewise, the affidavit is equally ambiguous with regard to which services were being questioned as medically necessary. In particular, the affidavit fails to identify which services arising out of which specific injury and which motor vehicle accident. Insofar as Mr. Howard states that he “reviewed a sampling of medical records,” the Court is left to speculate if those medical records were related to the claims at issue in the instant matter.

Contrary to plaintiffs’ contention, defendant’s reliance on American Transit Insurance Co. v Jaga Medical Service, P.C., 128 AD3d 441 (1st Dept 2015), is not misplaced. The Appellate Division, First Department held that that an insurer’s motion for summary judgment should be denied as premature if defendant seeks discovery as to the reason for the EUO request or the “handling of the claim so as to determine whether, inter alia, the EUO’s were timely and properly requested” (Am. Tr. Ins. Co. v Jaga Med. Svcs., P.C., 128 AD3d 441 [1st Dept 2015]). Given the lack of specificity set forth in Howard Affidavit, the Court finds that discovery as to plaintiffs’ reasoning for requesting the EUOs is warranted. Additionally, the Court notes that the EUO objection letters submitted by defendant raises a question of fact with respect to whether the EUO requests were justified or not (see defendant’s exhibit B).

On this record, therefore, State Farm does not make a prima facia showing that an EUO was reasonably required for the verification of the thirteen claims at issue, and thus fails to show that defendant breached the policy.

The Court next turns to defendant’s request to sever this action into thirteen separate and distinct individual actions. CPLR § 603 reads as follows, “[i]n furtherance of convenience or avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or on any separate issues.” A court has discretion under CPLR § 603 to order a severance or a separate trial when doing so will avoid confusion, delay or prejudice (McKinney’s Consolidated Annotated, Book 7; CPLR § 603; Utica Mut. Ins. Co. v American Re-Insurance Co., 132 AD3d 1405 [4th Dept 2015]). The granting of a motion to sever generally depends on the absence of common uses of law or fact. “[S]everance may be inappropriate where there are common factual and legal issues involved in two causes of action, and the interests of judicial economy and consistency of verdicts will be served by having a single trial” (Herskovitz v Klein, 91 AD3d 598, 599 [2d Dept 2012]). Least important to the court’s determination is the actual number of assignors involved in the lawsuit. Courts have severed combined no-fault claims with as few as two separate assignors, asserting that, even though there were only two distinct accidents involved, “[t]he facts relating to each claim are [u]nlikely to raise few, if any, common issues of fact” (Georgetown Mind-Body Med., P.C. v State Farm Mutual Automobile Insurance Co., 25 Misc 3d 142 [A], 2009 NY Slip Op 52464[U], * 1 [App Term, 2d, 11th & 13th Jud Dists 2009]; High Definition MRI, P.C. v Mapre Ins. Co. of NY, 148 AD3d 470 [1st Dept 2017] [severance appropriate where the 198 no-fault claims that there the subject of the action were unrelated]; Radiology Res. Network, P.C. v Fireman’s Fund Ins., Co., 12 AD3d 185 [1st Dept 2004] [severance is appropriate where the 68 accidents that were the subject of the action were unrelated]).

Severance of the action is not warranted here as defendant has failed to show how severing this action would further convenience the parties or would prevent prejudice. As the plaintiffs point out, there appears to be only one issue to be determined, namely the validity of denying the claims submitted by the defendant as the assignee of the named claimants for the defendant’s failure to appear for the duly scheduled EUOs. Moreover, beyond pointing out the number of claims, defendant fails to fully articulate the uncommon issues of law and fact that require separate actions. Based on the papers, the Court denies the motion to sever as defendant has not set forth adequate support for why it would be more efficient to adjudicate these claims separately.

Based on the foregoing, it is hereby

ORDERED that the plaintiffs’ motion for summary judgment is denied; and it is further

ORDERED that defendant’s cross-motion pursuant to CPLR §§3126 (3) and 3126(1) is denied; and it is further

ORDERED that defendant’s cross-motion is granted to the extent that plaintiffs shall respond to defendant’s discovery demands dated March 30, 2015 within thirty (30) days of the date of this decision and order is electronically filed; and it is further

ORDERED that defendant’s motion to sever the action into thirteen separate and distinct individual actions is denied; and it is

ORDERED that the parties shall appear in Part 34 of this Court on Thursday, October 4, 2018 at 2:15 p.m. for a preliminary conference.

This constitutes the decision and order of this Court.

Dated: August 6, 2018

ENTER:

_______________________________________

CARMEN VICTORIA ST. GEORGE, J.S.C.

Footnotes

Footnote 1: Plaintiffs also submit affirmations of Edward M. Ryan, Esq., Elizabeth Adels, Esq., Stuart Flamen, Esq., and Patrick J. McDonnell, Esq., attorneys employed by a law firm that represents the plaintiffs. These affirmations are purportedly offered to establish defendant’s non-appearance at the scheduled EUOs.

Footnote 2:Pursuant to 11 NYCRR 65-1.1(d), all minimum benefit insurance polies for motor vehicle personal injuries shall include a Mandatory Personal Injury Protection Endorsement, the form of which is specified in the regulation. The subsection of the Endorsement entitled “Proof of Claim; Medical, Work Loss, and Other Necessary Expenses,” found within the “Conditions” section, states that any “eligible injured person or that person’s assignee or representative shall (b) as may reasonably be required submit to examinations under oath by any person named by the [insurance] Company and subscribe the same” (emphasis added).

652106/2016

For Plaintiff:
Josh Youngman of Peter C. Merani, P.C.

This matter, brought pursuant to NY Insurance Law 5106(c), seeks de novo adjudication of the dispute between the parties concerning no-fault benefits. Although the parties submitted to mandatory arbitration, since to arbitrator awarded defendant a sum greater than $5,000, plaintiff is permitted to bring this action. Both plaintiff and defendant have moved for summary judgment.

On January 31, 2014, Bujar Kaziu the assignor, was in an automobile accident and began to receive no-fault benefits. On June 6, 2014, plaintiff’s claim representative determined that additional verification in the form of an independent medical examination (“IME”) was required and properly noticed an IME for June 26, 2014. The assignor failed to appear for the IME on June 26, 2014 and verification was again sought on July 1, 2014 by scheduling an IME on July 17, 2014. On July 1, 2014, the assignor had a surgery on his right shoulder. Defendant provider Health East Ambulatory Surgical Center timely submitted a claim on July 3, 2014 seeking $30,365.16 in reimbursement.

On July 10, 2014, plaintiff rescheduled the July 17, 2014 IME to August 21, 2014. Plaintiff did not provide this Court with any reason why the IME was scheduled, nor did plaintiff [*2]state that the rescheduling was done at the request or with the consent of the assignor. The July 10, 2014 letter states that the reason for the rescheduling was due to the July 1, 2014 surgery. Plaintiff alleges that it received the bill for the surgery on July 11, 2014. On August 21, 2014, Dr. Dorothy Scarpinato performed the IME and issued her report. Dr. Scarpinato found that right shoulder surgery was not medically necessary or causally related. On September 18, 2014, plaintiff denied the July 1, 2014 claim based on a lack of medical necessity and because the amount sought was in excess of the appropriate fee schedule.

As the parties disputed the validity of the denied claims, they went to arbitration. Arbitrator Paul Israelson found that the September 18, 2014 denial was not timely and accordingly found in favor of defendant on liability. However, the arbitrator also found that defendant did not submit the claim pursuant to the proper New Jersey fee schedule and reduced the amount to $18,154.85. Plaintiff commenced this action seeking de novo adjudication of the dispute. At present, defendant acknowledges that the fee calculation was not correct and seeks an amended amount of $21,903.93 for the surgery performed on July 1, 2014.

It is well established that an insurer must pay or deny a claim within 30 days (11 NYCRR 65-3.8(1), “No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart.”). A defense predicated on a lack of medical necessity must be asserted within that time period (Careplus Med. Supply, Inc. v Selective Ins. Co. of Am., 25 Misc 3d 48 [App Term 2d Dept 2009] citing Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274 [1997]; and Melbourne Med. P.C. v. Utica Mut. Ins. Co., 4 Misc 3d 92 [App. Term, 2d & 11th Jud. Dists. 2004]). Here, plaintiff alleges that it received the claim on July 11, 2014. Thus, plaintiff must have paid or denied the claim by August 11, 2014, unless plaintiff properly sought verifications.

Plaintiff alleges that it received the claim for the July 1, 2014 bill on July 11, 2014. Thus, any requests for an IME, including the request on June 6, 2014, the follow-up on July 1, and the rescheduling on July 10, 2014, are pre-claim requests. Following the July 11, 2014 receipt of the bill, the first communication by plaintiff was the July 31, 2014 delay letter. The insurance regulations permit pre-claim IMEs, but without consequence for the running of the 30—day claim determination period (Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud. Dists 2004]). Any post-claim IME verification requests must be made within required time constraints set forth in 11 NYCRR 65—3.5 [a], [d]; 11 NYCRR 65—3.6[b], including the initial request within 10 days of the claim’s filing (to be scheduled within 30 days of the claim’s receipt) and a “follow-up” request within 10 days of a subject’s non-appearance at the initially-scheduled IME (A.B. Med. Services PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [2d Dept App Term 2005]).

Here, even assuming that plaintiff’s July 31 delay letter meets the criteria for an initial verification request ^[FN1] , plaintiff’s delay letter sent on July 31, 2014 was later than the period [*3]allowed to seek verification under the statute. However, said tardiness is not fatal. “An insurer that requests additional verification after the 10— or 15—business—day periods but before the 30—day claim denial window has expired is entitled to verification. In these instances, the 30—day time frame to pay or deny the claim is correspondingly reduced” (Hosp. for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]). 10 Business days from July 11, 2014 was July 25, 2014. As the delay letter was sent out on July 31, 2014, the 30-day time frame must be reduced by 5 days, leaving plaintiff with 25 days.

In the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day the examination was performed (11 NYCRR 65-3.8(1)). The IME was performed on August 21, 2014 and the denial was sent on September 18, 2014, 28 days later. As the time frame to pay or deny was reduced from 30 to 25 days and the denial was sent 28 days later, the denial was untimely.

Further, on July 10, 2014 plaintiff rescheduled the IME from July 17, 2014 to August 21, 2014. Even assuming that this IME scheduling was for the purposes of verifying the July 11, 2014 claim (despite the assertion that the receipt of the claim was July 11, 2014, the reschedule letter states that it was done because the assignor had surgery) plaintiff does not provide any affidavit explaining the basis of scheduling the IME so far in the future. Generally speaking, the insurance regulations require that an IME be scheduled within a 30—calendar—day time frame from receipt of the claim (Am. Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841 [1st Dept 2015] citing W.H.O. Acupuncture, P.C. v. Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A] [App Term 2d Dept 2012]; American Tr. Ins. Co. v. Jorge, 2014 NY Slip Op. 30720[U], 2014 WL 1262582 [Sup Ct NY County 2014]; (11 NYCRR § 65—3.5(d)). Although, by consent, the parties can agree to a later time frame, here the record is completely devoid of any communication, let alone consent, or any other reason why the IME was scheduled past the 30-day frame permitted by statute. As the IME was re-scheduled past the 30-day time frame, the IME was not properly scheduled or sought and the denial was late and invalid.

However, even though the denial based upon on causal connection and medical necessity was not timely, services here were rendered after April 1, 2013, and the defense of excessive fees is not subject to preclusion (see 11 NYCRR 65—3.8 [g]; Surgicare Surgical Assoc. v Natl. Interstate Ins. Co., 50 Misc 3d 85 [App Term 1st Dept 2015]). Although defendant initially sought $30,365.16, defendant acknowledges that appropriate amount per the New Jersey Fee Schedule is really $21,903.93. Plaintiff disagrees and states that appropriate amount would be $18,413.80, slightly more than the amount found by the arbitrator. Thus, because the denial with respect to non-fee schedule defenses was not timely and plaintiff has made no payments, defendant is entitled to at least the portion of the claim that is undisputedly pursuant to the fee schedule $18,413.80.

The difference between the two amounts is whether the portion of the claim pursuant to CPT Code 29826 and 64415 are reimbursed at 100% or 50%. Specifically, the provider billed $6,462.39 under CPT 29826. Plaintiff reduced the amount by 50% to $3,231.20 pursuant to NJ 11:3-29.5(d). Similarly, the provider billed $517.89 under CPT 64415 and plaintiff reduced the amount by 50% to $258.95 pursuant to NJ 11:3-29.5(d). Both sides have submitted the affidavits [*4]of their fee schedule/coding experts. The Court finds that pursuant to NJ Admin Code 11:3-29.4(f)(2)^[FN2] , add-on codes are exempt from the multiple procedure reduction. Therefore, CPT 29286 should be reimbursed at 100%, or $6,462.39. Similarly, the claim included a modifier for CPT 64415 and defendant should be reimbursed at 100% or $517.89. Accordingly, defendant is entitled to a total amount of $21.903.93.

It is therefore

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

ORDERED, that defendant’s cross-motion for summary judgment is granted.

Date: March 20, 2017

David B. Cohen, JSC

Footnotes

Footnote 1: The Court makes no ruling that the delay later was a valid initial verification request (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2d Dept 2005][holding that a delay later which did not seek verification in it did not toll the 30-day period to pay or deny]).

Footnote 2:NJ Admin Code 11:3-29.4(f)(2) states “There are two types of procedures that are exempt from the multiple procedure reduction In addition, some related procedures are commonly carried out in addition to the primary procedure. These procedure codes contain a specific descriptor that includes the words, “each additional” or “list separately in addition to the primary procedure.” These add-on codes cannot be reported as stand-alone codes but when reported with the primary procedure are not subject to the 50 percent multiple procedure reduction.” CPT 29826 is listed as an “add-on” code.

[*1]

Supreme Court, New York County, November 20, 2015

APPEARANCES OF COUNSEL

Thomas Torto, New York City, for plaintiffs.

Russell Friedman & Associates, LLP, Lake Success (Dara C. Goodman of counsel), for defendant.

This is a declaratory judgment action regarding no-fault insurance coverage. Defendant counterclaims for attorney’s fees and compensation for bills for the medical services that defendant allegedly provided to occupants of insured automobiles.

Defendant had previously moved for an order dismissing plaintiffs’ complaint for failure to state a cause of action, pursuant to CPLR 3211 (a) (7); or alternatively for an order dismissing plaintiffs’ complaint on the ground that plaintiffs lacked the capacity to file this action, pursuant to CPLR 3211 (a) (3). Defendant’s motion was denied, by this court’s October 17, 2012 decision and order, and separate opinion. Plaintiffs now move for summary judgment, pursuant to CPLR 3212, declaring that defendant is not entitled to no-fault benefits from plaintiffs with respect to the no-fault claims at issue in this action, and to dismiss defendant’s counterclaims; or alternatively, pursuant to CPLR 2201, to stay all American Arbitration Association (AAA) no-fault arbitration proceedings filed by defendant against plaintiffs to recover no-fault benefits for the no-fault claims at issue in the action, including a stay of enforcement and payment of previously issued AAA arbitration awards, pending determination of this declaratory judgment action.{**50 Misc 3d at 714}

Plaintiffs allege that defendant, as an assignee of first-party no-fault benefits, submitted to plaintiffs claims for defendant’s supposed treatment of “approximately” 31 people who sought medical treatment following motor vehicle accidents. Plaintiffs point out that in support of defendant’s claims it submitted medical reports with identical findings in relation to eight of the 31 patients, who were injured in different motor vehicle accidents. Plaintiffs also contend that defendant was engaging in a systematic upcoding of claims by using the same CPT codes, which are for the highest level of care on an initial examination, in relation to the treatment of minor soft tissue injuries.

Due to the suspicious nature of defendant’s claims, plaintiffs conducted an investigation, which revealed that Alexandre Scheer, M.D., defendant’s owner, was the subject of professional discipline by the New York State Office of Professional Medical Conduct (OPMC) for allegedly engaging in the fraudulent practice of medicine. Dr. Scheer had agreed to a consent order that he did not contest the charge and consented to a 60-month probation period during which he was allowed to practice medicine only with supervision. The consent order stated as a term of Dr. Scheer’s probation: “Respondent shall practice medicine only when monitored by a licensed physician, board certified in an appropriate specialty, (‘practice monitor’) proposed by Respondent and subject to the written approval of the Director of OPMC. Any medical practice in violation of this term shall constitute the unauthorized practice of medicine.”

With this information, plaintiffs requested that defendant submit to an examination under oath (EUO) to verify defendant’s claims. Dr. Scheer appeared at the EUO on behalf of defendant. Defendant’s counsel directed him at the EUO not to answer questions as to OPMC’s investigation of him and as to whether he complied with the probation condition of being supervised by an appropriate doctor while treating the no-fault claimants whose claims are at issue in this action. Defendant’s attorney asserted that issues relating to OPMC’s investigation, documents, proceedings, and the consent order were not proper subjects of the EUO because the investigation was about prior unrelated conduct by Dr. Scheer and was confidential. Furthermore, Dr. Scheer did not answer questions concerning the medical treatment rendered to a particular patient due to the claim having been denied by plaintiffs based on negative physical examinations.{**50 Misc 3d at 715}

Following the EUO, defendant’s claims were denied for the 31 patients on the grounds that defendant systematically upcoded its claims and that Dr. Scheer refused to answer pertinent questions at the EUO. Plaintiffs commenced this declaratory judgment action on August 26, 2011 for a declaration that defendant is not entitled to no-fault benefits for the approximately 31 claims.

On September 8, 2011, the National Insurance Crime Bureau (NICB) issued an alert advising that a priority one investigation was being conducted in relation to claims made by defendant. An indictment was filed on November 27, 2012 against Dr. Scheer and others for conspiracy to commit no-fault insurance fraud and mail fraud in a scheme to defraud insurers. Dr. Scheer entered into a deferred prosecution agreement with the United States Attorney for the Southern District of New York. Subsequently, a nolle prosequi was entered into by the U.S. Attorney and so ordered by the District Judge.

Commencing in 2012, defendant pursued some of its claims through arbitration before the AAA. Plaintiffs participated in the arbitrations before the AAA. In the arbitrations, the indictment was excluded or given no weight, as the indictment contained only allegations, and Dr. Scheer had not been convicted. Arbitration awards were issued in defendant’s favor. Plaintiffs brought “several” CPLR article 75 proceedings challenging the awards in the Civil Court of the City of New York, but the petitions were denied.^[FN*]

A party moving for summary judgment must demonstrate that there are no disputed issues of fact and that he, she, or it is entitled to judgment as a matter of law, pursuant to CPLR 3212 (b) (Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Pokoik v Pokoik, 115 AD3d 428 [1st Dept 2014]; see Gammons v City of New York, 24 NY3d 562, 569 [2014]). To defeat summary judgment, the party opposing the motion has to show{**50 Misc 3d at 716} that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CitiFinancial Co. [DE] v McKinney, 27 AD3d 224, 226 [1st Dept 2006]; see Hoover v New Holland N. Am., Inc., 23 NY3d 41, 56 [2014]).

Plaintiffs contend that they are entitled to summary judgment on the grounds that defendant engaged in systemic upcoding and billed for unnecessary or nonexistent treatments, and that defendant refused to answer material questions at his EUO. Plaintiffs assert that the latter was a breach of the condition precedent in the insurance policies requiring cooperation at the EUO.

[1] Dr. Scheer’s failure to answer all relevant questions at the EUO, as required by the provisions of the applicable insurance policies, constitutes a material breach of contract, and precludes recovery by defendant. A condition precedent to coverage is cooperation in submitting to an EUO (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]; Levy v Chubb Ins., 240 AD2d 336, 337 [1st Dept 1997]). The insurance policies and 11 NYCRR 65-3.5 (c) provide that plaintiffs, as insurers, may request that defendant, as a claimant, submit to an EUO, as a condition precedent to disbursement of benefits. Dr. Scheer stepped into the shoes of the insureds (cf. New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592 [2011] [“as an assignee of all the rights, privileges and remedies to which (the patient) was entitled under the No-Fault Law, (the plaintiff) stood in the shoes of (the patient) and acquired no greater rights than he had”]). Dr. Scheer’s refusal to answer relevant questions in relation to the claims was not proper and led to an appropriate disclaimer of coverage by plaintiffs (see Latha Rest. Corp. v Tower Ins. Co., 38 AD3d 321, 322 [1st Dept 2007]).

[2] Plaintiffs’ inquiry at the EUO regarding Dr. Scheer’s medical license was permissible. As a professional service corporation, defendant was required to be owned and controlled by a licensed professional, who rendered the services provided by defendant (see One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). Although Dr. Scheer was entitled to confidentiality regarding the OPMC administrative proceeding itself (Public Health Law § 230; Anonymous v Bureau of Professional Med. Conduct/State Bd. for Professional Med. Conduct, 2 NY3d 663, 669-670 [2004]; Doe v Office of Professional Med. Conduct of N.Y. State Dept. of {**50 Misc 3d at 717} Health, 81 NY2d 1050, 1052 [1993]), the effect of the consent order on the manner in which Dr. Scheer was entitled to practice medicine was not confidential. With respect to questions about treatment, Dr. Scheer’s refusal to answer them resulted in obstructing plaintiffs from obtaining relevant information to evaluate the treatments rendered and the sums claimed.

In its first counterclaim, defendant seeks attorney’s fees. However, under the American rule as to attorney’s fees in litigation, even a prevailing party in an action generally may not recover his, her, or its attorney’s fees (see Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21-22 [1979]). Although attorney’s fees can be recovered by an insured who defends against an insurer’s declaratory judgment action and prevails on the merits, defendant is not such a party here (see U.S. Underwriters Ins. Co. v City Club Hotel, LLC, 3 NY3d 592, 597-598 [2004]). With respect to defendant’s second counterclaim for recovery of bills, as defendant has not shown that it fully complied with plaintiffs’ material EUO inquiries, defendant is not entitled to payment of the claims.

Therefore, by separate decision and order, plaintiffs’ motion was granted to the extent of awarding plaintiffs summary judgment declaring that defendant is not entitled to no-fault benefits from plaintiffs with respect to the no-fault claims at issue in this action and dismissing defendant’s counterclaims. Thus, given that plaintiffs’ main request for relief has been granted, the request for alternative relief need not be decided.

Footnotes

Footnote *:The arbitration awards and court decisions may give res judicata and collateral estoppel effect (see Rembrandt Indus. v Hodges Intl., 38 NY2d 502, 504 [1976]; Feinberg v Boros, 99 AD3d 219, 226 [1st Dept 2012]; Kern v Excelsior 57th Corp., LLC, 77 AD3d 500, 501 [1st Dept 2010]; Acevedo v Holton, 239 AD2d 194, 195 [1st Dept 1997]). However, such defenses must be raised as affirmative defenses or by a motion under CPLR 3211 (a) (5), or the defenses are waived (see CPLR 3211 [e]; Mayers v D’Agostino, 58 NY2d 696, 698 [1982]). Defendant failed to do so (or even articulate “res judicata” or “collateral estoppel” in the papers in opposition to the motion). Furthermore, there are no arbitration awards or civil court decisions submitted as to the eight specifically named of the 31 patients. Thus, those affirmative defenses were waived.

029970/14

Jaffe & Koumourdas appeared for Country-Wide Insurance Company

Law Offices of Gary Tsirelman appeared for New Century Acupuncture P.C. A/A/O William Dew

This proceeding arises out of an arbitration in which respondent New Century Acupuncture P.C. (“New Century”) sought reimbursement from petitioner Country-Wide Insurance Company (“Country-Wide”) for healthcare services which New Century allegedly provided to its assignor, William Dew, following a motor vehicle accident which occurred on May 23, 2011.

A hearing on this claim, together with seven similar claims, was held on May 20, 2014 before Michael Rosenberger, an arbitrator designated by the American Arbitration Association (“AAA”).^[FN1] Country-Wide argued that New Century’s claim for no-fault benefits should be dismissed on the grounds, inter alia, that New Century was fraudulently incorporated. Specifically, it claimed that New Century falsely represented in its certificate of incorporation that it was owned or controlled solely by licensed professionals. See, generally, State Farm Mut. Auto Insurance Co. v Mallela, 4 NY3d 313 (2005).

Country-Wide contends that New Century was actually owned or co-owned and controlled by an individual named Andrey Anikeyev, who pleaded guilty on February 15, 2013 to conspiracy to commit mail fraud and health care fraud, in violation of Title 18, United States Code, Section 371.^[FN2] As part of his plea, Mr. Anikeyev was required to forfeit his right to a number of bank accounts, including a bank account under New Century’s name.

In the Arbitration Award, issued on May 28, 2014 in favor of New Century, the arbitrator noted that Dr. Kondranina, the disclosed owner of New Century, had not been charged by any governmental agency with any crimes. He further found that there was no evidence showing Dr. Kondranina knew Mr. Anikeyev was in possession of the bank account or that Dr. Kondranina gave a substantial portion of his profits to Mr. Anikeyev.^[FN3]

The arbitrator thus concluded that Country-Wide failed to meet its burden of showing by clear and convincing evidence that New Century is actually owned by Mr. Anikeyev.

Country-Wide then pursued an appeal through AAA’s Master Arbitration process in which it argued, inter alia, that Arbitrator Rosenberger failed “to disclose a relationship, direct or indirect, with New Century Acupuncture PC and its attorneys [which] mandates vacatur.” Specifically, Country-Wide alleged that the arbitrator “is or was” a named partner of Rapuzzi Palumbo & Rosenberger, P.C., a law firm which “is closely related to” the firm of Gabriel & Shapiro, P.C., which has represented and continues to represent [*2]New Century in other no-fault proceedings.^[FN4]

The master arbitrator, Victor D’Ammora, issued a Master Arbitration Award dated August 26, 2014, upholding the Arbitration Award, finding that “[t]here is nothing in the record before me to indicate that Arbitrator Rosenberger’s decision was arbitrary, capricious, or incorrect as a matter of law.” He further determined that “[t]he issue of any possible bias or fraud by Arbitrator Rosenberger cannot be raised for the first time in this Master Arbitration and will not be considered.”

Country-Wide then filed the instant petition in which it seeks an order pursuant to CPLR §§ 7511(b)(1)(i) and 7511(b)(1)(iii) vacating the Master Arbitration Award and permanently staying the arbitration of New Century’s claim against Country-Wide for no-fault benefits on the ground that the Master Arbitrator exceeded his authority by confirming the Arbitration Award.

Country-Wide argues, inter alia, that the Award must be vacated based on Arbitrator Rosenberger’s failure to disclose his past and/or present relationship with New Century and its attorneys.

It is well settled that

[t]he judiciary should minimize its role in arbitration as judge of the arbitrator’s impartiality. That role is best consigned to the parties, who are the architects of their own arbitration process, and are better informed of the prevailing ethical standards and reputations within their business.

Matter of J.P. Stevens & Co., Inc. V Rytex Co., 34 NY2d 123, 128 (1984), quoting Commonwealth Coatings Corp. v Continental Cas. Co., 393 US 145 (1968) (White, J., concurring).

However, the parties’ role in this process “can only be achieved if, prior to the commencement of the arbitration, the arbitrator discloses to the parties all facts which might reasonably cause one of them to ask for disqualification of the arbitrator.” Matter of J.P. Stevens & Co., Inc. v Rytex Co., supra at 128.

Therefore, ” it is incumbent upon an arbitrator to disclose any relationship which raises even a suggestion of possible bias’ (citation omitted).” Matter of Kern v 303 East 57th Street Corp. 204 AD2d 152, 153 (1st Dep’t 1994), lv to app denied, 84 NY2d 210 (1994). See also, Matter of Soma Partners, LLC v Northwest Biotherapeutics Inc., 41 AD3d 257 (1st Dep’t 2007), app. dism’d, 9 NY3d 942 (2007); Matter of Catalyst Waste-to-Energy Corp. of Long Island v City of Long Beach, 164 AD2d 817, 820 (1st Dep’t 1990), app. dism’d, 76 NY2d 1017 (1990).

The failure of an arbitrator to disclose facts that might give rise to an inference of bias mandates vacatur of the arbitrator’s award. See, Matter of Soma Partners, LLC v Northwest Biotherapeutics Inc., supra; Matter of Morgan Guaranty Trust Company of New York v Solow Building Co., LLC, 279 AD2d 431 (1st Dep’t 2001).

New Century argues that this Court, like the master arbitrator, should decline to review the allegation that the arbitrator failed to disclose a potential bias because Country-Wide failed to raise any objection at the initial arbitration. See, Matter of J.P. Stevens & Co., Inc. v Rytex Co., supra at 129, which held that “a party to an arbitration may [not] sit idly back and rely exclusively upon the arbitrator’s disclosure” where that party has “actual knowledge of the arbitrator’s bias, or of facts that reasonably should have prompted further, limited inquiry.”

However,

[w]hile such responsibility to ascertain potentially disqualifying facts does rest upon the parties, the major burden of disclosure properly falls upon the arbitrator. After all, the arbitrator is in a far better position than the parties to determine and reveal those facts that might give rise to an inference of bias. Further, the very nature of the arbitrator’s quasi-judicial function, particularly since it is subject to only limited judicial review, demands no less a duty to disclose than would be expected of a Judge (citations omitted).”

Matter of J.P. Stevens & Co., Inc. v Rytex Co., supra at 129. See also, Matter of Milliken Woolens, Inc. v Weber Knit Sportswear, 11 AD2d 166 (1st Dep’t 1960), aff’d, 9 NY2d 878 (1961).

There is no evidence that Country-Wide was aware of a potential conflicting relationship before or at the time of the [*3]hearing, nor is there any indication that Country-Wide possessed sufficient facts that reasonably should have prompted it to conduct a further inquiry.^[FN5] Therefore, the issue of the arbitrator’s potential bias is properly before this Court.^[FN6]

New Century alternatively argues that there is no basis to vacate the Arbitration Award absent any evidence that Mr. Rosenberger ever directly represented New Century in any matter. It contends that Country-Wide has, at most, established a remote or mere occasional association between the arbitrator and the law firm of Gabriel & Shapiro. See, Tricots Liesse (1983), Inc. v Intrex Industries, Inc., 284 AD2d 226, 227 (1st Dep’t 2001), lv to app. denied, 97 MY2d 606 (2001); Matter of Chernuchin v Liberty Mutual Insurance Company, 268 AD2d 521, 522 (2nd Dep’t 2000).

Here, however, there is considerable evidence that the arbitrator had more than a remote or occasional association with Gabriel & Shapiro, which has and continues to represent New Century in various no-fault proceedings.

There is no dispute that Mr. Rosenberger co-published an article in the New York Law Journal in 2013 with Jason A. Moroff, a partner at Gabriel & Shapiro, who apparently represented New Century at a AAA hearing as recently as May 28, 2014, the same day Mr. Rosenberger issued the Arbitration Award at issue in this proceeding.

There is also no dispute that the arbitrator’s law firm, Rapuzzi Palumbo & Rosenberger, shared space with Gabriel & Shapiro at 3361 Park Avenue in Wantagh, New York. Moreover, New Century does not refute Country-Wide’s representation that Rapuzzi Palumbo & Rosenberger is listed on the New York Division of Corporations Database under the “current entity name” of Gabriel [*4]& Shapiro, P.C.

Finally, there is no dispute that Gabriel & Shapiro’s current website is located at www.rprlawfirm.com, an address which appears to strongly suggest an affiliation or continuing connection with the law firm of Rapuzzi Palumbo & Rosenberger.

New Century contends that these factors merely show that Rapuzzi Palumbo & Rosenberger was “taken over” by Gabriel & Shapiro. However, New Century has failed to submit any documents clarifying the nature and circumstances of the alleged takeover or merger of the firms at issue. Moreover, New Century has failed to submit an affidavit from any attorney at Gabriel & Shapiro (which would presumably be amenable to assisting its client in this matter) attesting that Mr. Rosenberger has severed all financial and professional ties with that firm.

Therefore, based on the papers submitted and after hearing oral argument, this Court finds that the failure of the arbitrator to disclose his connection to Gabriel & Shapiro and to provide Country-Wide with a timely opportunity to reasonably ask for his disqualification based on a potential bias, mandates vacatur of the Arbitration Award.

Accordingly, it is

ORDERED and ADJUDGED that the Petition is granted, and the Arbitration Award is vacated.

This constitutes the decision and order of this Court.

Dated: April 1, 2015____________________________

Hon. Michael L. Katz

J.C.C.

Footnotes

Footnote 1:Five of the parallel claims are the subject of nearly identical motions filed under Index Numbers 029968/14, 029971/14, 029972/14, 029973/14, and 029974/14.

Footnote 2:Mr. Anikeyev acknowledged on the record before the Hon. J. Paul Oetken, a Judge of the United States District Court, Southern District of New York, that he had “submitted bills through mail to various insurance companies for acupuncture services which [he] knew were false. Some of these mailings were to insurance companies located in Manhattan, New York. These bills requested payments for health care services for time periods in excess of the actual time period the patient spent with acupuncturist.” He further admitted that he committed these actions “with intent to obtain money from various insurance companies which was not rightfully [his].”

Footnote 3:The arbitrator considered factors discussed in Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 42 Misc 3d 30 (App. Term, 2nd Dep’t 2013) in determining whether or not Mr. Anikeyev, who is not a licensed acupuncturist, had exercised substantial control over the professional corporation.

Footnote 4:There is no dispute that New Century was represented by the Tsirelman Law Firm (and not by Gabriel & Shapiro) in the arbitration at issue in this proceeding.

Footnote 5:Country-Wide does not dispute that it was aware that Gabriel & Shapiro represented New Century in various matters, including several cases involving Country-Wide’s current counsel. However, there is no evidence that either Country-Wide or its counsel was aware of any connection between the arbitrator and Gabriel & Shapiro.

Footnote 6:This Court rejects New Century’s argument that this Court must assume that it is a proven fact that Mr. Rosenberger had no conflict simply because AAA (which requires arbitrators to disclose their affiliations) scheduled the hearing.

CV- 703200/13

For plaintiff, Avanguard Medical Group, PLLC(b)

Law Offices of Leon Kucherovsky, Esq.

Rachita Sharma Pate, Esq.

115 S. Corona Ave.

Valley Stream, NY 11580

(516) 881-7755

For defendant, State Farm Mutual Automobile Ins. Co.

Nicolini, Paradise, Ferretti & Sabella, PLLC

Francis J. Ammendolea, Esq.

114 Old Country Road

Mineola, New York 11501

(516) 741-6355

Defendant State Farm Mutual Automobile Insurance Company (“State Farm”), a No-Fault insurance provider, moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint. Plaintiff Avanguard Medical Group, PLLC(b) (“Avanguard”) is the assignee of Patria Martell, an individual covered under a policy of insurance issued by State Farm. The complaint seeks to recover payment of an assigned No-Fault insurance claim that was denied by State Farm on the basis of improper fee schedule billing. For the reasons stated herein, State Farm’s motion for summary judgment is granted.

Facts

Avanguard is a duly accredited office-based surgical facility (“OBS facility”) operated pursuant to New York State’s Public Health Law Section 230-d, entitled “Office-based surgery.” Avanguard alleges that it provided health services to Patria Martell for injuries she sustained during a September 16, 2012 automobile accident. Martell was covered under a policy with State Farm, which included payment of No-Fault benefits for her accident related healthcare. On [*2]January 16, 2013, Avanguard billed State Farm $2,550.00 for services it provided to Martell. The bill was based on a fee schedule that incorporated a “facility fee” in accordance with “The Products of Ambulatory Surgery” (“PAS”) classification. State Farm received the bill on January 29, 2013. On February 15, 2013, State Farm responded with an NF-10 “Denial of Claim” form, refusing to pay Avanguard’s bill in its entirety.

State Farm argues, inter alia, that it properly denied the claim because Avanguard, as an OBS facility, improperly billed pursuant to a PAS facility-fee-inclusive fee schedule authorized exclusively for use by facilities licensed under Article 28 of the New York State Public Health Law (“Art. 28”).^[FN1] Avanguard acknowledges that it is not licensed under Art. 28, but contends that: (1) its bill was permissible because an OBS facility should be entitled under Insurance Law Section 5108(a) to recover its facility fee and (2) the PAS fee schedule, which authorizes facility fee reimbursement for Art. 28 facilities, does not expressly exclude an OBS facility from billing on the PAS fee schedule. On April 1, 2013, Avanguard commenced this action, alleging State Farm wrongfully denied its insurance claim and demands judgment for $2,550.00 plus interest and attorneys’ fees.

Discussion

The issue to be resolved in this motion for summary judgment is whether an OBS facility may properly bill for reimbursement pursuant to the PAS facility-fee-inclusive fee schedule. This issue is addressed by way of statutory interpretation, pending legislation, persuasive case law, and statements published regarding this subject by the New York State Department of Health (“DOH”). For the reasons discussed below, this Court finds that Avanguard, as an OBS facility, is not authorized to bill pursuant to the PAS facility-fee-inclusive fee schedule and, therefore, State Farm properly denied Avanguard’s insurance claim on the basis of improper fee schedule billing.

A. Statutory Consideration

State Farm alleges that Avanguard’s insurance claim was properly denied because it was billed on a PAS fee schedule reserved by its terms exclusively for Art. 28 licensed facilities. See Ammendolea Aff. ¶ 18. New York State Insurance Law Section 5102(a)(1) provides for the reimbursement for “economic loss” relating to “all necessary expenditures incurred for medical and surgical services.” Upper East Side Surgical, PLLC v. State Farm Ins. Co., 34 Misc 3d 1219(A), at *4 (Dist. Ct., Nassau County 2012). Compensation, pursuant to Insurance Law Section 5108(a), is, however, “limited to the amount permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents.” Id.

Among the established fee schedules are billing codes for reimbursement in accordance with the PAS classification system, which includes facility fee reimbursements expressly authorized for facilities licensed under Art. 28. Avanguard, however, is not a “Hospital” or “Ambulatory Surgery Facility” licensed under Art. 28, but rather an OBS facility under Public Health Law Section 230-d, which offers no provision for an OBS facility to recover a facility fee. Further, there is no prepared or established fee schedule pursuant to Insurance Law Section 5108(a) upon which an OBS facility may claim reimbursement for its facility fees. Thus, Avanguard fails to demonstrate how State Farm was obligated to reimburse its OBS facility fees pursuant to the PAS fee schedule.

Both parties reference the same pending legislation introduced in the New York State Senate aimed at amending Public Health Law Section 230-d to include, inter alia, authorization for OBS facilities to “seek payment from a health plan for the use of such facility.” 2011 New York State Senate Bill S4597-B, ¶ 6. It is evident from the fact that the proposed legislation was never adopted into law that there is a necessity for a legislative enactment to require No-Fault insurers to reimburse OBS facility fees along the PAS fee schedule and that such reimbursement is not currently permitted. This conclusion can be based upon principles governing the construction and interpretation of statutes in New York: The maxim expressio unius est exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.

McKinney’s Cons. Laws of NY, Book 1, Statutes, § 240; see also UMG Recordings, Inc. v. Escape Media Grp., Inc., 107 AD3d 51 (1st Dep’t 2013). The maxim is particularly appropriate here where the legislature recently, in 2007, addressed authorization and accreditation requirements for OBS facilities by enacting Public Health Law Section 230-d, which has been amended in part as recently as 2012. The right to seek reimbursement for OBS facility fees could have been included in that legislation but it was omitted. Accordingly, the current regulations requiring No-Fault insurers to reimburse Art. 28 facilities along the PAS fee schedule that includes facility fees should not be extended to OBS facilities by way of judicial fiat, but rather by legislation.

B. Case Law Considerations

Despite the unresolved controversy over what rights and billing processes, if any, might apply to an OBS facility seeking to recover its facility fees, the rule emerging from judicial decisions cited by both parties in this case is that an OBS facility is “not authorized to be reimbursed for the medical/surgical services it provided to its assignor under the facility fee’ schedule in accordance with [the PAS] system because it is not an Art. 28 facility.” Upper East Side, 34 Misc 3d 1219(A), at *4; see also Gov’t Emps. Ins. Co. v. Avanguard Med. Grp. PLLC. (GEICO), 2012 NY Misc. LEXIS 2687, at *8 (Sup. Ct., Nassau County May 31, 2012).

In Upper East Side, supra, the court found that the plaintiff, an OBS facility, was “entitled to reimbursement under Insurance Law § 5102(a)(1) for the medical/surgical services it provided to its assignor,” but that it was not authorized to bill the insurer for its facility fees pursuant to the PAS classification system “because it is not an Art. 28 facility.” 34 Misc 3d 1219(A), at *4. In doing so, the Upper East Side Court speculated that other billing alternatives might be available for an OBS facility to claim its facility fees. For example, in the absence of a [*3]prescribed OBS facility fee schedule, Avanguard could have billed the “prevailing fee in the geographic location of the provider.” Id. at *4, citing 11 N.Y.C.R.R. 68.5(1)(b). Yet, despite this ruling, Avanguard submitted its insurance claims to State Farm based upon the PAS Art. 28 facility fee schedule.

Nor does the GEICO decision provide authority for an OBS facility to predicate its facility fee claim on the PAS fee schedule established for Art. 28 facilities. The court in GEICO denied the insurer’s request for an order to stay all proceedings and preliminarily enjoin the OBS facility “from commencing any new actions, arbitrations, or proceedings against [the insurer]” wherein the OBS facility seeks to recover No-Fault benefits for facility fees. GEICO, supra, at *12. GEICO relates to any facility fee reimbursement sought by an OBS facility and was not limited, as in this case, to the insurer’s denial of the OBS facility fee claim predicated on the PAS fee schedule. Given the broad injuctive relief sought by GEICO, the court found that a triable issue existed as to whether an OBS facility may ever seek a facility fee from an insurer—pursuant to any billing method.

C. Statements Published on the DOH’s Website

Finally, the parties both cite to statements published on the DOH’s website reflecting its position concerning facility fee reimbursements to OBS facilities:

Reimbursement

35. Does OBS accreditation qualify a private OBS practice to receive a “facility fee”? PHL § 230-d does not address or require reimbursement of an OBS facility fee. Accreditation status does not require a third party insurer to pay a facility fee. An OBS practice is not a health care facility under PHL Article 28 or as defined by PHL § 18. Neither Medicaid nor Medicare pays a facility fee to private physicians’ offices for office-based surgery. DOH does not establish fee schedules or billing guidelines for OBS.

Office-Based Surgery (OBS) Frequently Asked Questions (FAQ’s) for Practitioners, NY State Dep’t of Health, https://www.health.ny.gov/professionals/office-based_surgery/obs_faq.htm (last updated Mar. 2014). These statements support the conclusion that State Farm was under no obligation to reimburse Avanguard’s facility fee. Accordingly, summary judgment should be entered in favor of State Farm and Avanguard’s complaint should be dismissed.

Conclusion

Accordingly, it is hereby ordered that State Farm’s motion for summary judgment is granted, the complaint is dismissed, and the Clerk is directed to enter judgment accordingly. This constitutes the decision and order of this Court.

Dated: December 12, 2014

___________________________

Hon. James E. d’Auguste, J.C.C.

Footnotes

Footnote 1:. In the “Explanation of Review” accompanying the NF-10 “Denial of Claim” form, State Farm explains, inter alia, that Avanguard is not eligible to bill pursuant to a PAS fee schedule which includes a “facility fee” because it is not a licensed Art. 28 facility. Code “X3796” on the final page of the “Explanation of Review” is explained in part as follows:

[*1]

Civil Court of the City of New York, New York County, September 30, 2014

APPEARANCES OF COUNSEL

Jones Jones LLC, New York City (Agnes Neiger of counsel), for petitioner.

Law Office of Ricky J. Lucyk, Woodbury (Evan Przebowski of counsel), for respondent.

The decision/order on this motion is as follows: Petitioner’s motion to vacate is granted and respondent’s cross motion to confirm is denied.

On December 23, 2013, petitioner filed its petition under article 75 of the CPLR to vacate an award made by arbitrator Mavis Thomas on September 24, 2013. In its papers, petitioner argued that the award made by the arbitrator to respondent was improper because the arbitrator exceeded its power in violation of CPLR 7511 (b). On March 3, 2014, respondent filed its cross motion pursuant to CPLR 7510 to confirm the arbitrator’s award and argued that the arbitrator’s determination was proper as it acted within its permitted discretion.

The facts before the court are not in dispute. Petitioner is a public benefit corporation under the laws of the State of New York and is self-insured. On October 1, 2010, a bus operated by petitioner was involved in a three-car motor vehicle accident with Christina McNamara (subrogor) and Michael Castelluccio. Nonparty Castelluccio was insured by respondent, which provided no-fault benefits to subrogor. In January 2011, subrogor commenced a personal injury action (action No. 1) naming petitioner, Eli Riviera (petitioner’s bus operator) and Michael Castelluccio as defendants. On September 22, 2011, respondent filed for arbitration seeking reimbursement from petitioner for the no-fault benefits paid on behalf of subrogor. While waiting for the resolution of action No. 1, the arbitration proceeding was adjourned on two different occasions. On January 9, 2013, after trial in action No. 1, a jury found, by unanimous verdict, that Eli Riviera was 0% responsible for the motor vehicle accident and that Michael Castelluccio was 100% responsible for the motor vehicle accident. Petitioner and Eli Riviera were found not liable for subrogor’s injuries and were dismissed from the action. An attorney for subrogor served the proposed judgment on petitioner.{**46 Misc 3d at 708}

On September 24, 2013, petitioner and respondent appeared for the arbitration proceeding. For reasons not explained to the court, neither side informed the arbitrator of the jury’s verdict, nor listed any documentation relating to the verdict as evidence in the arbitration. At the hearing, petitioner sought an adjournment to provide the arbitrator with the jury verdict, but its application was denied and the arbitrator refused to consider the jury verdict. The arbitrator’s rationale was that since petitioner had sufficient time to provide the jury verdict as evidence and only did so “at the table,” it would not consider the jury verdict.

Petitioner argues that the decision of the arbitrator should be vacated because it is irrational, arbitrary, and capricious and constitutes the wrong application of relevant law. Specifically, petitioner asserts that by refusing to accept the decision of the jury, the arbitrator exceeded its power pursuant to CPLR 7511 and that the decision by the jury had preclusive effect on the arbitration and is res judicata as to petitioner’s liability and the failure to give preclusive effect to the jury verdict is grounds for the vacatur. Petitioner further contends that the arbitrator’s failure to grant an adjournment for petitioner to formally submit the jury verdict into evidence and the arbitrator’s subsequent failure to even consider the jury verdict constituted an abuse of discretion. Respondent argues that pursuant to the rules of the arbitration, the arbitrator was within its discretion to refuse an adjournment and to refuse to consider the jury verdict first produced at the hearing despite being available for nine months, and that the jury verdict was not binding on the arbitration.

The arbitration in this matter was mandatory as required by statute (see Insurance Law § 5105 [requiring that the sole remedy of actions between insurers involving the recovery of personal injury benefits paid pursuant to the no-fault rules is mandatory arbitration]). In cases of compulsory arbitration, due process requires “closer judicial scrutiny of the arbitrator’s determination” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Under CPLR article 75 a review should include whether the award is supported by evidence or other basis in reason (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Awards after mandatory arbitration, upon judicial review, are to be measured according to whether they are rational or arbitrary and capricious (Caso v Coffey, 41 NY2d 153 [1976]). In a mandatory arbitration, the arbitrator’s power derives from the statute which mandates{**46 Misc 3d at 709} upon the parties the arbitration. Consequently, the arbitrator cannot make its decisions with less than substantial evidence, without reasonable basis or in disregard of applicable rules of law (Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493 [1970]).

“Res judicata serves to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same ‘factual grouping’ or ‘transaction’, and which should have or could have been resolved in the prior proceeding” (Braunstein v Braunstein, 114 AD2d 46, 53 [2d Dept 1985]; see also Breslin Realty Dev. Corp. v Shaw, 72 AD3d 258 [2d Dept 2010]; Mew Equity LLC v Sutton Land Servs., L.L.C., 37 Misc 3d 1225[A], 2012 NY Slip Op 52161[U] [Sup Ct, Kings County 2012]). Conversely,

“[t]he doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in the prior action or proceeding, and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Breslin Realty Dev. Corp., 72 AD3d at 263).

Here, respondent’s subrogor and petitioner litigated, in an earlier court proceeding, the very same claim heard by the arbitrator. Specifically, a court heard the very same facts relating to subrogor’s claim that petitioner was liable for her injuries. A jury evaluated these facts and made the determination that someone other than petitioner was 100% liable for subrogor’s injuries. Hence, the claim brought by respondent in the arbitration, standing in the shoes of subrogor, arose out of the same factual transaction and had been fully litigated and determined by a court prior to the arbitration hearing. The arbitrator’s decision to not give preclusive effect to a final determination made by a court was irrational (Matter of Social Servs. Empls. Union, Local 371 v City of N.Y., Dept. of Juvenile Justice, 82 AD3d 644 [1st Dept 2011]; Motor Veh. Acc. Indem. Corp. v Travelers Ins. Co., 246 AD2d 420 [1st Dept 1998] [based on the principle of res judicata, an arbitrator exceeds his power by conducting a hearing and making an award premised on the same claim as a prior award]; see also Matter of Pinnacle Envt. Sys. [Cannon Bldg. of Troy Assoc.], 305 AD2d 897 [3d Dept 2003] [second arbitration was barred by the doctrine of res judicata as it involved the same parties and precisely the same issues]; Matter of State of{**46 Misc 3d at 710} N.Y. Off. of Mental Health [New York State Correctional Officers & Police Benevolent Assn., Inc.], 46 AD3d 1269 [3d Dept 2007]; Matter of New York Tel. Co. v State Farm Ins. Co., 137 Misc 2d 376 [Sup Ct, NY County 1987]). At bar, since the claim against petitioner had been litigated and a court had rendered a final judgment after jury verdict, by not giving this final judgment and verdict res judicata effect, the arbitrator disregarded applicable rules of law.

This case is distinguished from Matter of Falzone (New York Cent. Mut. Fire Ins. Co.) (15 NY3d 530 [2010]) in several respects. In Falzone, the Court of Appeals held that an arbitrator’s failure to apply collateral estoppel to preclude a determination of an issue resolved in a prior arbitration proceeding was not subject to review by the Court (id. at 535). This case involves the application of res judicata while Falzone involved the application of collateral estoppel. In Falzone, the Court specifically distinguished between the two doctrines and wrote “[s]ince the instant claim involves the doctrine of collateral estoppel, not res judicata, petitioner’s reliance on Appellate Division decisions barring subsequent arbitrations on res judicata grounds is misplaced” (id.). To allow an entire claim involving the same facts and arguments to be re-litigated for a second time is inequitable, a waste of resources and contrary to well-established principles of law. Second, in Falzone the arbitration between the parties was voluntary and not subject to the heightened standard and “more-exacting” review that the Court must undertake following mandatory arbitration. Using the lesser review standard, the Falzone court was only “applying this State’s well-established rule that an arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” (id. at 534). Third, in Falzone the arbitrator declined to give preclusive effect to another arbitrator’s decision. In the instant case, the arbitrator declined to give preclusive effect, or even consider, a final judgment reached by a jury, after trial.

Although neither party provided any satisfactory reason as to why the arbitrator was not informed of the trial court verdict until the day of the arbitration, considering that the arbitration was stayed, specifically because of the ongoing court action, the arbitrator’s decision to refuse to consider the verdict was simply irrational. It is therefore ordered that the petition to vacate arbitrator Mavis Thomas’ determination of September 24, 2013 is granted; and it is also ordered that the matter is remanded back to arbitration in accordance with CPLR 7511 (d) to be{**46 Misc 3d at 711} heard by the same arbitrator; and it is also ordered that respondent’s cross motion is denied.

[*1]

Civil Court of the City of New York, New York County, August 14, 2014

APPEARANCES OF COUNSEL

Rivkin Radler LLP, Uniondale (Shana Slawitsky of counsel), for defendant.

Gary Tsirelman P.C., Brooklyn (Irena Golodkeyer of counsel), for plaintiff.

Plaintiff brought this no-fault benefits action seeking {**45 Misc 3d at 759}reimbursement for $844.13 for medical services rendered to assignor, Jacques Gladys. Plaintiff submitted to defendant one bill for date of service May 31, 2011. Defendant denied the claim on the basis that the medical provider failed to appear for two scheduled examinations under oath (EUOs).

Defendant moves for summary judgment under CPLR 3212 on the ground that the medical provider failed to appear for two scheduled EUOs and, thus, that plaintiff breached a condition precedent to coverage. Plaintiff’s most persuasive argument in opposition is that defendant failed to prove the provider’s nonappearance for the EUOs. Plaintiff argues that Michael Sirignano’s affirmation is insufficient because, plaintiff argues, he has no personal knowledge of the provider’s nonappearance for the EUOs. (Golodkeyer affirmation, Sept. 12, 2013, ¶ 24.) Without moving for disclosure, plaintiff seeks disclosure about defendant’s special investigation unit (SIU) file and its SIU investigation and claims practices before, it urges, it can properly oppose defendant’s summary judgment motion. (Golodkeyer affirmation, Sept. 12, 2013, ¶ 16.)

After oral argument, the court asked the parties to submit memorandums of law about whether Sirignano’s affirmation comports with an Appellate Term, Second Department decision: Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130[A], 2013 NY Slip Op 50458[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, Mar. 21, 2013]). Since oral argument, only defendant submitted a memorandum of law on this issue.

In Alrof, the court determined that the “affidavit of defendant’s attorney was of no probative value as it lacked personal knowledge of the nonappearance of plaintiff.” (Alrof, 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U], *1.) The court held that “[i]t is well settled that a motion for summary judgment must be supported by an affidavit from a person having knowledge of the facts (CPLR 3212 [b]). A conclusory statement from an attorney which fails to demonstrate his or her personal knowledge is insufficient to support summary judgment.” (Id. at *1-2.)

The proof the Alrof court considered was an affidavit from Vincent F. Gerbino, a partner at Bruno, Gerbino & Soriano, LLP. In his affidavit, Gerbino states that he has “personal knowledge of the facts at issue . . . based on [his] review of the file and [his] knowledge of office practices and procedures.” (Exhibit 2, Gerbino aff, Mar. 23, 2009, ¶ 3.) Gerbino states that {**45 Misc 3d at 760}the “office mailed correspondence to Jonathan Rosario [the assignor] notifying that he was scheduled for an EUO on July 18, 2008, at 10:00 AM. He did not appear on this date. Therefore, . . . this office . . . re-scheduled . . . [the] EUO on July 30, 2008, at 1:00PM.” (Exhibit 2, Gerbino aff, Mar. 23, 2009, ¶ 3.) Gerbino thus states that “Jonathan Rosario failed to appear at both . . . EUO’s.” (Exhibit 2, Gerbino aff, Mar. 23, 2009, ¶ 3.)

Since Alrof, the court revisited the issue of the sufficiency of an attorney’s affirmation to prove nonappearance at EUOs in Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (40 Misc 3d 130[A], 2013 NY Slip Op 51123[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, July 5, 2013]). In Bright Med., the court held the court below properly denied defendant’s summary judgment motion because “defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question.” (Id., citing Alrof, 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U], *1.)

The proof the Bright Med. court considered was the affirmation of Michael A. Callinan. (Defendant’s reply affirmation, exhibit 9.) Callinan states that the

“EUO for July 14, 2009, was scheduled at your affiant’s office, located at 445 Broad Hollow Road, Melville, New York 11747. I was present at your affiant’s office . . . on July 14, 2009, the date of the scheduled EUO. Further, had the EUO proceeded, I would likely have been the attorney assigned to conduct said EUO.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶¶ 15-16.)

Callinan states that “[b]ased on this personal knowledge, as well as a review of the file maintained by our office . . . I know that Plaintiff failed to appear for a scheduled EUO on July 14, 2009.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 16.) Callinan’s office scheduled the second EUO on August 10, 2009. (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 16.) Callinan states that he “was present at your affiant’s office, located at 445 Broad Hollow Road, Melville, New York 11747, the location of the scheduled EUO, on August 10, 2009, the date of the scheduled EUO. Further, had the EUO proceeded, I would likely have been the attorney assigned to conduct said [*3]EUO.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 17.) Callinan states that “[b]ased on this personal knowledge, as well as a review of the file maintained by our office . . . I know that Plaintiff, Bright Medical Supply Co., failed to appear for a scheduled EUO on August 10, 2009.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 17.)

{**45 Misc 3d at 761}Since Bright Med., the court determined that the affirmation of defendant’s attorney “who was present in his office to conduct plaintiff’s EUO on the scheduled dates . . . was sufficient to establish that plaintiff had failed to appear.” (Natural Therapy Accupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 42 Misc 3d 137[A], 2014 NY Slip Op 50134[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, Jan. 28, 2014].) In Natural Therapy, the court considered the affirmation of Elizabeth Adels, a partner at McDonnell & Adels, PLLC. (Defendant’s additional submission, Adels affirmation, Oct. 12, 2011, ¶ 1.) Adels states that on “April 29, 2010, Plaintiff was scheduled to submit to an EUO . . . . I was present in the office on this date in order to conduct the EUO of Plaintiff. No one affiliated with Plaintiff appeared for the EUO scheduled for April 29, 2010.” (Defendant’s additional submission, Adels affirmation, Oct. 12, 2011, ¶ 3.) Adels states that defendant rescheduled the EUO for May 25, 2010. (Defendant’s additional submission, Adels affirmation, Oct. 12, 2011, ¶ 3.) Adels states

“I was present in the office on this date in order to conduct the rescheduled EUO of plaintiff. Once again, no one affiliated with Plaintiff appeared for the EUO rescheduled for May 25, 2010. If Plaintiff had appeared for the scheduled EUOs, I would have conducted the EUO of Plaintiff or assigned one of the other attorneys responsible for conducting EUOs to conduct the EUO of Plaintiff.” (Defendant’s additional submission, Adels affirmation, Oct. 12, 2011, ¶ 3.)

This court must decide whether Michael Sirignano’s affirmation is sufficient, under Alrof and its progeny,^[FN*] to prove the provider’s nonappearance for the EUOs. Also, this court must also determine whether Sirignano has personal knowledge of the provider’s nonappearance at the EUOs.

Sirignano’s affirmation is sufficient to prove the provider’s nonappearance for the two EUOs. Sirignano has personal knowledge of the provider’s nonappearance at the EUOs. Sirignano states the following:{**45 Misc 3d at 762}

“3. On July 27, 2011, plaintiff was scheduled to submit to an EUO at the offices of Rivkin Radler located 926 RXR Plaza, Uniondale, New York 11556, at 10:00 o’clock in the forenoon of that day [sic]. I was present in the office on this date. No one affiliated with the Plaintiff appeared for the scheduled EUO. If Plaintiff had appeared for the scheduled EUO, I would have conducted the EUO [*4]of Plaintiff or assigned one of the other attorneys responsible for conducting EUOs to conduct the EUO of Plaintiff.

“4. Thereafter, State Farm rescheduled the EUO for August 30, 2011. I was present in the office on this date. Again, no one affiliated with the Plaintiff appeared for the scheduled EUO on August 30, 2011. If Plaintiff had appeared for the scheduled EUO, I would have conducted the EUO of Plaintiff or assigned one of the other attorneys responsible for conducting EUOs to conduct the EUO of Plaintiff.” (Notice of motion, exhibit 3, Sirignano affirmation, July 11, 2012, ¶¶ 3-4.)

Sirignano has personal knowledge: He was present on both dates, July 27, 2011 and August 30, 2011. Plaintiff did not appear on either date. Like the attorney in Natural Therapy, Sirignano was present on both dates that plaintiff was scheduled for the EUO. Had plaintiff appeared, Sirignano would have conducted plaintiff’s EUO. Or, he would have assigned one of the other attorneys responsible for conducting EUOs to conduct plaintiff’s EUO.

Unlike the attorney in Alrof who explained in conclusory language that plaintiff failed to appear for EUOs, Sirignano explains his basis for knowing that plaintiff failed to appear for two EUOs.

Sirignano does not equivocate like the attorney in Bright Med. did: “I would likely have been the attorney assigned to conduct said EUO.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 17.) Sirignano states that “[i]f Plaintiff had appeared for the scheduled EUO, I would have conducted the EUO of Plaintiff or assigned one of the other attorneys responsible for conducting EUOs.” (Notice of motion, exhibit 3, Sirignano affirmation, July 11, 2012, ¶ 4.)

Plaintiff argues that Sirignano’s “potential assignment [of plaintiff’s EUO] diminishes [his] credibility as to his personal knowledge that no one affiliated with Plaintiff appeared for the{**45 Misc 3d at 763} scheduled EUOs.” (Golodkeyer affirmation, Sept. 12, 2013, ¶ 24.) Sirignano’s statement does not diminish his credibility, in fact it highlights his credibility.

Plaintiff’s other arguments are also unpersuasive. That the EUO scheduling letters indicate that the EUOs were scheduled at Rivkin Radler LLP’s office in Uniondale, New York, “Attn. Barry Levy, Esq.” is of no consequence. (See notice of motion, exhibit 1.) Plaintiff’s argument—that based on the EUO letters Barry Levy, Esq. was the attorney who would conduct the EUO—is misplaced. (Golodkeyer affirmation, Sept. 12, 2013, ¶ 24.) Sirignano states that he was responsible for plaintiff’s EUO.

That the EUO scheduling letters indicate that the plaintiff call “JUDY AUBIN . . . no later than seven days prior to this examination to confirm your attendance” is also of no consequence. Sirignano states that he was responsible for plaintiff’s EUO. In any event, plaintiff does not allege that it attempted to confirm the EUO appointments with Ms. Aubin or anyone else at Rivkin Radler LLP.

Nor is it significant that Sirignano does not describe the “check-in procedure that is followed by the law firm regarding EUO attendance.” (Golodkeyer affirmation, Sept. 12, [*5]2013, ¶ 25.) Sirignano need not describe the firm’s check-in procedure for EUOs. Sirignano need only demonstrate, through his personal knowledge, that the plaintiff failed to appear for two scheduled EUOs.

Plaintiff did not respond to defendant’s request for EUOs. (See Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 42 Misc 3d 131[A], 2013 NY Slip Op 52225[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists, Dec. 20, 2013] [“(P)laintiff did not respond in any way to the EUO scheduling letters sent by defendant. Since the opposing affirmation submitted by plaintiff’s counsel was insufficient to raise a triable issue of fact with respect to the claims denied on the ground that plaintiff had failed to appear at the EUOs . . . defendant is entitled to summary judgment”], citing Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2011].)

Plaintiff’s request for defendant’s special investigation unit file, the SIU investigation, and its claims practices is not necessary to oppose defendant’s summary judgment motion: “Since plaintiff does not claim to have responded in any way to the EUO request, its objections regarding the EUO requests will not now be heard . . . and therefore discovery relevant to the {**45 Misc 3d at 764}reasonableness of the EUO requests was not necessary to oppose the motion.” (Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co., 39 Misc 3d 142[A], 2013 NY Slip Op 50763[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, May 6, 2013], citing CPLR 3212 [f] and Crescent Radiology, 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U], *1; Natural Therapy, 42 Misc 3d 137[A], 2014 NY Slip Op 50134[U], *1.) Plaintiff did not respond to defendant’s EUO requests; therefore, plaintiff cannot now object to defendant’s EUO requests. Also, plaintiff did not move to compel disclosure. Plaintiff’s request, raised only in its opposition papers, is denied.

Defendant proved that it timely and properly mailed the EUO letters to plaintiff. Defendant proved that plaintiff failed to appear for the EUOs on July 27, 2011, and August 30, 2011. Defendant also proved that it timely and properly mailed the denial, NF-10, to plaintiff.

Plaintiff’s counsel’s affirmation, coming from an individual without personal knowledge, has no probative value. Plaintiff’s counsel’s affirmation creates no material issue of fact for trial.

Defendant’s motion is granted.

Footnotes

Footnote *:One of the cases defendant attaches to its memorandum of law pre-dates Alrof. (Exhibit 1, Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 130[A], 2012 NY Slip Op 51276[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012].) Also, in the cases defendant attaches on the Alrof issue—the sufficiency of an affirmation or affidavit to demonstrate personal knowledge of the assignor’s or the provider’s nonappearance at an EUO—the parties never raised the Alrof issue on appeal. (Exhibit 4.)

Supreme Court, New York County

101549/12

Plaintiff:

Bryan Cave, LLP

1290 Avenue of the Americas

New York, NY 10104

Defendants:

Leon Kucherovsky, Esq. (for Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc.)

115 South Corona Avenue

Valley Stream, NY 11580

Doris Ling-Cohan, J.

This is an action for declaratory judgment arising out of an alleged motor vehicle collision on July 21, 2011. Defendants Akil Aime (Akil), Jeffrey J. Aime (Jeffrey), and Lynval Howell (Lynval) (collectively “Defendant Claimants”) were allegedly injured in such motor vehicle accident involving a U-Haul truck, in which Defendant Claimants were passengers. The U-Haul truck is insured by plaintiff Repwest Insurance Company (Repwest Ins.). No physical injuries were reported on the date of the accident, Defendant Claimants refused medical attention at the scene, and the U-Haul sustained no damage. Thereafter, Defendant Claimants began seeking treatment, for injuries alleged sustained in the July 21, 2011 collision, from defendants Advantage Radiology, P.C., A & F Medical, P.C., Comprehensive Psychological Evaluation, P.C. (Comprehensive Psychological), Living Well Chiropractic, P.C., Metropolitan Medical & Surgical, P.C., New Age Acupuncture, P.C., O & M Medical, P.C., NY Universal Medical, P.C., Orthoplus Products, Inc. (Orthoplus), Psychological Evaluation & Testing Services, LLC, Rehabxpress PT, P.C., and RM Physical Therapy, P.C. (collectively “Medical Provider Defendants”). Such Medical Provider Defendants submitted claims to plaintiff Repwest Ins. as alleged assignees of Defendant Claimants.

On November 8, 2011, plaintiff Repwest Ins., through its attorney, sent a letter to each Defendant Claimant, as well as to defendant Akil’s attorney and defendant Jeffrey’s attorney, requesting that each Defendant Claimant attend an examination under oath (EUO) on November 22, 2011. As each Defendant Claimant failed to appear at such EUO, plaintiff Repwest Ins.’s attorney sent another letter, dated December 1, 2011, to each Defendant Claimant, as well as to defendant Akil’s attorney and defendant Jeffrey’s attorney, requesting that each Defendant Claimant appear for an EUO on December 15, 2011. While defendant Akil and defendant Lynval both failed to appear at such EUO, defendant Jeffrey contacted plaintiff Repwest Ins.’s attorney’s office by telephone to reschedule his EUO. As defendant Jeffrey was represented by an attorney, he was informed that his counsel needed to call to reschedule. Thereafter, defendant Jeffrey failed to appear at the EUO scheduled for December 15, 2011, and no call was received by his attorney to reschedule. By letter dated January 3, 2011, sent to defendant Jeffrey and his attorney, plaintiff Repwest Ins.’s attorney requested that defendant Jeffrey appear for an EUO on January 18, 2012. Defendant Jeffrey failed to appear at such EUO. Subsequently, plaintiff Repwest Ins. denied all no-fault coverage for this claim based upon Defendant Claimant’s failure to attend the scheduled EUOs.

In this action, plaintiff Repwest Ins. seeks a declaration that it owes no duty to pay No-Fault benefits to any of the named defendants on the ground that the Defendant Claimants failed to appear for duly scheduled EUOs, in violation of the No-Fault regulations and in violation of a condition precedent to coverage for all No-Fault claims submitted by the Medical Provider Defendants.

By Decision/Order dated September 19, 2013, a default judgment was granted against all defendants except for defendants Comprehensive Psychological and Orthoplus (collectively [*2]“Answering Defendants”), the only remaining defendants ^[FN1].

Plaintiff Repwest Ins. now moves for summary judgment against the Answering Defendants, declaring that such defendants are not entitled to no-fault coverage, as Defendant Claimants failed to attend the EUOs. The Answering Defendants jointly oppose plaintiff Repwest Ins.’s motion.

DISCUSSION

The standards of summary judgment are well settled. Summary judgment should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case”. Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure…to do [so]”. Zuckerman v City of New York, 49 NY2d 557, 560 (1980). However, the Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat such a motion. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).

Here, plaintiff Repwest Ins.’s motion for summary judgment against the Answering Defendants is granted. In support of its motion, plaintiff Repwest Ins. proffers, inter alia, the two letters sent to defendant Akil and her attorney requesting her appearance at two EUOs, the two letters sent to defendant Lynval requesting his appearance at two EUOs, and the three letters sent to defendant Jeffrey and his attorney requesting his appearance at three EUOs, the affidavits of service for all such letters, and an affidavit from Joseph R. Federici, Esq. stating that on each scheduled EUO date, he waited for the Defendant Claimants and each Defendant Claimant failed to attend the scheduled EUOs. As such, plaintiff Repwest Ins. has shown that it arranged two EUOs for defendant Akil and Lynval, and three EUOs for defendant Jeffrey, that Defendant Claimants were all notified of such EUOs by mail, and that all Defendant Claimants failed to attend the EUOs.

The Appellate Division, First Department, has found that “failure to appear for IMEs requested by the insurer when . . . [it] may reasonably require . . . is a breach of a condition precedent to coverage under the No-Fault policy.” Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 (1st Dep’t 2011)(internal quotations and citations [*3]omitted); see also 11 NYCRR 65-1.1. As such, “when defendants’ assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued.” Id. Thus, plaintiff Repwest Ins. has established entitlement to summary judgment as a matter of law declaring that the Answering Defendants are not entitled to no-fault coverage for the motor vehicle accident that occurred on July 21, 2011.

In opposition, the Answering Defendants proffer only an attorney’s affirmation, which is not based upon the requisite personal knowledge and is insufficient to raise any factual issues to warrant a denial of the within motion. See GTF Marketing Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 (1985); Wehringer v Helmsley Spear, Inc., 91 AD2d 585, 585 (1st Dep’t 1982). New York courts have consistently held that “a bare affirmation of . . . [an] attorney who demonstrated no personal knowledge . . . is without evidentiary value and thus unavailing.” Zuckerman v City of New York, 49 NY2d 557, 563 (1980). Furthermore, an affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 (1 Dept 1981), aff’d 54 NY2d 715 (1981). Thus, the Answering Defendants’ attorney’s conclusory and speculative affirmation, is insufficient to raise any factual issues to warrant a denial of the within motion. See GTF Marketing Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 (1985).

Even if this court were to consider such attorney affirmation, the Answering Defendants have failed to raise an issue of fact sufficient to preclude summary judgment. Specifically, the Answering Defendants argue that the EUO requests were defective in that they made improper demands for the production of documents, that Defendant Claimants failed to appear at the EUOs due to the defective requests, and that plaintiff Repwest Ins. has failed to demonstrate that Defendant Claimants failed to appear at the EUOs. In support of its argument, the Answering Defendants cite Dynamic Medical Imaging, P.C. v State Farm Mutual Automobile Ins. Co., 29 Misc 3d 278 (Dist. Ct, 1st Dist., Nassau Cty. 2010). The District Court in Dynamic held that EUO requests requiring claimants to provide documentation pertaining to the validity of the professional corporation prior to the EUOs were improper, as a Mallela defense is not precludable. The Dynamic Court went on to hold that “[i]f a carrier believes the provider/assignee is subject to a Mallela defense, the proper way to assert it is as an affirmative defense in its answer.” Id. at 284. In holding that the EUO requests were improper, and, thus, could not be the basis for obtaining summary judgment, the Dynamic Court stated that “[i]n addition to appearing for an [EUO], the assignee can be compelled to execute a written proof of claim under oath and provide other pertinent information as may assist the insurer in determining the amount due and payable. … The [no-fault] regulations only permit the insurer to obtain written information to verify the claim. Nothing in the no-fault regulations permits an insurer to request an assignee to produce corporate organizational and financial douments”. Id. at 283 (internal citations omitted).

Here, the documents requested in the EUO requests consist of, inter alia, insurance policies, documents related to bodily injuries from 2009 to date, identification, and photographs relating to the July 21, 2011 collision. Such documents, indisputably, are not related to a Mallela defense, and, thus, Dynamic is not applicable herein. Moreoever, plaintiff Repwest Ins. has proffered the affirmation of Joseph R. Federici, Esq., in which he clearly states that on each [*4]scheduled EUO date and time, he personally waited for each Defendant Claimant, and that each Defendant Claimant failed to appear. Thus, plaintiff Repwest Ins.’s motion for summary judgment is granted.

Accordingly, it is

ORDERED that plaintiff Repwest Insurance Company’s motion for summary judgment against defendants Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc. is granted; and it is further

ORDERED, ADJUDGED and DECLARED that the defendants Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc. are not entitled to no-fault coverage, from plaintiff Repwest Insurance Company, for the motor vehicle accident that occurred on July 21, 2011; and it is further

ORDERED that the Clerk is directed to enter judgment in favor of plaintiff; and it is further

ORDERED that, within 30 days of entry, plaintiff shall serve upon defendants Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc. a copy of this decision and order, together with notice of entry.

This constitutes the Decision and Order of the Court.

Dated: January 13, 2014

DORIS LING-COHAN, J.S.C.

Footnotes

Footnote 1: The Court notes that the Answering Defendants’ amended affirmation in opposition to plaintiff Repwest Ins.’s motion for summary judgment states that it is a joint opposition by defendants Comprehensive Psychological, Orthoplus, and NY Universal Medical, P.C. However, by Decision/Order dated September 19, 2013, a default judgment was entered against NY Universal Medical, P.C. Defendant NY Universal Medical, P.C. has not filed an answer in this action and has failed to move to vacate its default. As such, the affirmation in opposition will only be considered as to defendants Comprehensive Psychological and Orthoplus.