Index No. CV-703234-20/QU

Plaintiff’s counsel:

Mandell and Santora, PC

29 Broadway

Lynbrook, NY 11563

Defendant’s counsel:

Moira A. Doherty

999 Stewart Avenue, Suite 200

Bethpage, NY 11714

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint:

Papers/Numbered

Defendant’s Notice of Motion and Affirmation in Support dated January 5, 2021 (“Motion“) and electronically filed with the court on January 21, 2021. 1

Plaintiff’s Affirmation in Opposition dated May 27, 2021 (“Opposition“) and electronically filed with the court on the same date. 2

Defendant’s Affirmation in Reply dated June 4, 2021 (“Reply“) and electronically filed with the court on the same date. 3

II. Background

In a summons and complaint filed on February 21, 2020, Plaintiff sued Defendant insurance company to recover $1,310.94 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Desocorro, plus attorneys’ fees and statutory interest (see Motion, Aff. of Slack-Dery, Ex. A). A notice of trial was filed on August 5, 2020. On January 21, 2021, Defendant moved for an extension of time to move for summary judgment, and for summary judgment dismissing Plaintiff’s complaint on the ground that the medical services provided to Desocorro were not medically necessary and alternatively, that the amount billed by Plaintiff had exceeded the applicable Workers Compensation fee schedules. Plaintiff opposed Defendant’s motion for summary judgment. An oral argument by both parties was conducted by this Court on November 8, 2021.

III. Decision

CPLR 3212[a] provides:

Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

Since the notice of trial was filed on August 5, 2020, December 3, 2020 was the deadline for moving for summary judgment (see id.). Because Defendant served its instant motion for summary judgment on January 21, 2021, it is untimely. Defendant candidly admitted to the lateness of its motion, but sought an extension of time (CPLR 2004; 2005). The Court of Appeals has held that good cause under CPLR 3212[a] “requires a showing of good cause for the delay in making the motion — a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial filings, however tardy” (Brill v City of New York, 2 NY3d 648, 652 [2004]). Absent a showing of good cause for the delayed filing, this Court lacks discretion to consider a late motion even if it is meritorious and does not prejudice any party (Bargil Assoc., LLC v Crites, 173 AD3d 958, 958 [2d Dept 2019]; Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d 796, 796 [2d Dept 2011]).

In our instant matter, the only explanation Defendant offered was that “Defendant’s counsel was prevented from serving the subject motion as [its] offices were closed due to the Coronavirus/Covid 19 pursuant to state requirements/regulations pertaining to professional services and non-essential businesses” (Motion, Slack-Dery Aff. ¶107). Executive Order 202.6, which went into effect on March 20, 2020, provided:

All businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize. Each employer shall reduce the in-person workforce at any work locations by 50% no later than March 20 at 8 p.m. Any essential business or entity providing essential [*2]services or functions shall not be subject to the in-person restrictions”

(9 NYCRR 8.202.6). Executive Order 202.8 (collectively with Executive Order 202.6, the “Executive Orders“) increased the in-person workforce reduction to 100% by March 22, 2020 (see 9 NYCRR 8.202.8). Thus, rather than closing non-essential businesses as Defendant contended, the Executive Orders prohibited in-person working but allowed businesses to operate remotely. In addition, by Administrative Order of the Chief Administrative Judge, on March 22, 2020, New York State Court prohibited paper and electronic filings for non-essential matters (see AO/78/20). However, effective May 4, 2020, New York State Court permitted electronic filing of, among other things, motions in pending matters (see AO/87/20). It is noted that Defendant did not claim its counsel’s offices could not work remotely or was unable to file its motion electronically.

Since Defendant failed to establish good cause for untimely filing its summary judgment motion, it must be denied (Bargil Assoc., LLC v Crites, 173 AD3d at 959; Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d at 796), without consideration of its merits (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 727 [2004]; Giambona v Hines, 104 AD3d 811, 812 [2d Dept 2013]; Czernicki v Lawniczak, 25 AD3d 581, 581 [2d Dept 2006]; Long v Children’s Vil., Inc., 24 AD3d 518, 519 [2d Dept 2005]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for an extension of time to file a motion for summary judgment is denied; and it is further

ORDERED that Defendant’s motion for summary judgment is denied as untimely.

This constitutes the DECISION and ORDER of the Court.

Dated: December 6, 2021

Queens County Civil Court

_________________________________

Honorable Wendy Changyong Li, J.C.C.

Index No. CV-711542-20/QU

Plaintiff’s counsel:

Lewin & Baglio, LLP

1100 Shames Drive, Suite 100

Westbury, NY 11590

Defendant’s counsel:

Law Offices of Goldstein, Flecker & Hopkins

2 Huntington Quadrangle, Suite 2N01

Melville, NY 11747

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment in its claims:

Papers/Numbered

Defendant’s Notice of Motion as well as Certification and Verification dated November 20, 2020 (“Motion“) and electronically filed with the court on the same date. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated March 31, 2021 (“Cross-Motion“) and electronically filed with the court on the same date. 2

Defendant’s Affirmation in Opposition to Cross-Motion dated April 26, 2021 (“Opposition to [*2]Cross-Motion“) and electronically filed with the court on the same date. 3

II. Background

In a summons and complaint filed July 17, 2020, Plaintiff sued Defendant insurance company to recover $2,141.70 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Browne, plus attorneys’ fees and statutory interest (see Motion, Aff. of Tapada, Ex. A). Defendant moved to dismiss the complaint on the grounds that Plaintiff submitted some claims untimely and other claims exceeded the fee amount prescribed by applicable fee schedules. Plaintiff cross-moved for summary judgment on its claims. An oral argument by both parties was conducted by this Court on November 15, 2021.

III. Discussion

The injured party or assignee of No Fault benefits must submit proof of the claim to the insurer within 45 days of the date health services were rendered (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 AD3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; 11 NYCRR § 65-1.1[d]). Compliance with the 45-day proof of claim requirement is a condition precedent to a No Fault insurer’s liability (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 590 [2011]; 11 NYCRR § 65-1.1[d]). In addition, automobile insurers must provide $50,000.00 coverage for “basic economic loss” (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016]). Basic economic loss expenses are limited by Insurance Law § 5108 (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). Charges for basic economic loss “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). No payment is due for services in excess of charges permitted by Insurance Law § 5108 (11 NYCRR 65-3.8[g][1][ii]; Excel Surgery Ctr., LLC v Metropolitan Prop. & Cas. Ins. Co., 65 Misc 3d 149[A], 2019 NY Slip Op 51843[U] * 1 [App Term 2d Dept 2019]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] *1 [App Term 2d Dept 2018]).

Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-82).

To support its motion, Defendant presented an affidavit sworn November 19, 2020, in which Victor (see Motion, Aff. of Tapada, Ex. C, Defendant’s Claims Associate, attested in detail to Defendant’s standard office practices and procedures for processing claims it received. Victor attested that Defendant submitted six (6) bills forming the claim for $2,141.70 in this case, which Defendant received respectively on September 16, 2019. A bill for $206.69 for services provided [*3]on July 10, 2019, a bill for $154.38 for services provided from July 9 to 13, 2019, a bill for $800.00 for services provided on July 9, 2019, a bill for $49.82 for services provided on July 11, 2019, and a bill for $235.31 for services provided on July 10, 2019 (“Early July 2019 Bills“) were denied on September 24, 2019 on the grounds that Plaintiff failed to timely submit proof of claim and that the bills exceeded the applicable fee schedule. Given the range of dates of service from July 9 to July 13, 2019, the deadline for filing proof of claim ranged from August 23 to 27, 2019. Regarding a bill for $898.94 for services provided July 30, 2019 (“Late July 2019 Bill“), Defendant paid $203.44 and denied the remainder of the claim on the ground that it exceeded the applicable fee schedule. The deadline for filing proof of claim for this bill was September 13, 2019. Copies of Plaintiff’s claim forms, Defendant’s denials of claim and explanations of review for each claim were attached to Victor’s affidavit. Defendant’s evidence demonstrated that Plaintiff untimely submitted all the claims for the Early July 2019 Bills. Thus, Defendant established that the Early July 2019 Bills were timely denied on the ground that proof of claim was untimely submitted (Lenox Hill Radiology & Mia, P.C. v American Mfrs. Mut. Ins. Co., 41 Misc 3d 131[A], 2013 NY Slip Op 51750[U] *1 [App Term 2d Dept 2013]; Lecia Supply, Inc. v American Tr. Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50711[U] *1 [App Term 2d Dept 2013]; Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51351[U] *1-2 [App Term 2d Dept 2012]; Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 26 Misc 3d 145[A], 2010 NY Slip Op 50449[U] *1 [App Term 2d Dept 2010]).

In opposition, Plaintiff argued that Defendant’s evidence was inadmissible, so that it was insufficient to establish timely denial of Plaintiff’s claim. While Plaintiff argued that Victor’s statements that Plaintiff untimely submitted its claims were hearsay because Defendant failed to present the forms upon which he based his statements (see Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1021 [2d Dept 2020]), as noted above, the denial of claim forms and explanations of review which Victor addressed in his affidavit were attached to his affidavit. Contrary to Plaintiff’s contention, Defendant’s denial of claim forms expressly advised that the untimely submission of claim would be excused if Plaintiff provided reasonable justification for the claim’s late submission, so complied with applicable regulations (11 NYCRR §§ 65-1.1[d]; 65-3.3[e]; Lenox Hill Radiology & Mia, P.C. v American Mfrs. Mut. Ins. Co., 2013 NY Slip Op 51750[U] *1; Lecia Supply, Inc. v American Tr. Ins. Co., 2013 NY Slip Op 50711[U] *1; Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51351[U] *2; Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 2010 NY Slip Op 50449[U] *1).

Plaintiff also presented an affidavit dated March 29, 2021, in which Higgins, Plaintiff’s office manager, attested that the claims were mailed to Defendant on September 10, 2019. Higgins acknowledged that the bills were not sent “within 45 days as the result of an internal office error” and explained that assignor’s “insurance information was misplaced and the office had difficulty getting in touch with [assignor] to verify the insurance information” (Cross-Motion, Aff. of Enright, Ex. 2 at 2). The court rejects this conclusory explanation as it did not detail Plaintiff’s attempts to contact assignor to justify the delay of at least 14 days between the deadline to submit the claims and the date Plaintiff sent them (see Synergy First Med., PLLC v MVAIC, 44 Misc 3d 127[A], 2014 NY Slip Op 50964[U] *1 [App Term 2d Dept 2014]). In any event, Plaintiff was required to provide “written proof providing clear and reasonable justification for the failure to comply with such time limitation” (11 NYCRR 65-1.1[d]; Synergy First Med., PLLC v MVAIC, 2014 NY Slip Op 50964[U] *1; AAA Chiropractic, P.C. v MVAIC, 29 Misc 3d 131[A], 2010 NY Slip Op 51896[U] *1 [App Term 2d Dept 2010]).

Finally, Regarding the Late July 2019 Bill, for which Defendant paid a reduced amount and denied the remainder on the ground it exceeded the applicable fee schedule, Defendant raised no arguments how the Late July 2019 Bill exceeded the fee schedule in support of its motion. Defendant only identified in its Explanation of Review regarding this bill the fee code that should have been applied warranting reduction of the amount billed. Although the court may take judicial notice of the fee schedules, they do not independently establish whether Plaintiff properly applied them in billing for the services provided (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20-22 [2d Dept 2009]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 2017 NY Slip Op 50207 *1-2). Rather, interpretation of the applicable fee schedule must be supported by expert opinion evidence (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 55 Misc 3d147[A], 2017 NY Slip Op 50706[U] *1 [App Term 2d Dept 2017]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] *2 [App Term 2d Dept 2012]). Here, Victor did not purport to be an expert in fee schedules in his affidavit. Since Defendant did not otherwise support its motion with an expert affidavit to interpret the fee schedule, Defendant failed to meet its initial burden of demonstrating its entitlement to summary judgment reducing the amount of the Late July 2019 Bill (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706[U] *1; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 2012 NY Slip Op 51335[U] *2, see Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 2017 NY Slip Op 50954[U] *2 [App Term 2d Dept 2017]). Since Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, the Court denies Defendant’s Motion regarding the Late July 2019 Bill (see Pullman v Silverman, 28 NY3d 1060, 1062 [2016]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). As discussed above, Higgins admitted that the bills were not timely submitted and provided a conclusory explanation for the untimely submission of the bills, which the court rejected. Plaintiff also relied on Defendant’s denials of claim (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]), but they demonstrated that the bills were untimely submitted and denied on that basis. Plaintiff presented no arguments that the Late July 2019 Bill complied with the applicable fee schedule and presented no expert evidence to support such a contention. Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claim against Defendant, this Court denies Plaintiff’s Cross-Motion (U.S. Bank N.A. v Atia, 178 AD3d 747, 749 [2d Dept 2019]; Zalewski v MH Residential 1, LLC, 163 AD3d 900, 901 [2d Dept 2018]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for summary judgment dismissing Plaintiff’s complaint is granted as to the Early July 2019 Bills (i.e., the bill for $206.69 for services provided on July 10, 2019, the bill for $154.38 for services provided from July 9 to 13, 2019, the bill for $800.00 for services provided on July 9, 2019, the bill for $49.82 for services provided on July 11, 2019, and the bill for $235.31 for services provided on July 10, 2019), but otherwise denied; and it is further

ORDERED Plaintiff’s cross-motion for summary judgment in its claims is denied.

This constitutes the Decision and Order of the court.

Dated: December 2, 2021

Queens County Civil Court

Honorable Wendy Changyong Li, J.C.C.

Index No.: CV-031515-03/QU

Plaintiff’s counsel:

Law Offices of David O’Connor PC

807 Kings Highway

Brooklyn, NY 11223

Defendant’s counsel:

Bruno, Gerbino & Soriano, LLP

445 Broad Hollow Road, Suite 220

Melville, NY 11747

The following papers were read on Defendant’s motion to dismiss Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion and Affirmation dated November 9, 2017 (“Motion“) and file stamped by the court on November 14, 2017. 1

Plaintiff’s Affirmation in Opposition dated March 26, 2018 (“Opposition“). 2

Defendant’s Reply Affirmation dated April 6, 2018 (“Reply“). 3

Appellate Term for the 2nd, 11th and 13th Judicial Districts’ Decision and Order entered March 13, 2020. 4

Background

In a summons and complaint filed January 6, 2003, Plaintiff sued Defendant insurance company to recover $5,249.06 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Rodriquez on September 5, 2002, plus attorneys’ fees and statutory interest. Court’s case summary indicates that this action became “inactive” as of on [*2]June 1, 2007. However, in a notice of motion filed January 7, 2008 (“2008 Motion“), Defendant moved to dismiss Plaintiff’s complaint as a penalty for noncompliance with discovery (CPLR 3126). According to court’s case summary and court’s marking on the original 2008 Motion, the 2008 Motion was marked withdrawn on February 5, 2008.

Defendant further moved to dismiss Plaintiff’s complaint on November 14, 2017 through the Motion as abandoned (CPLR 3404) or as barred by laches, which Plaintiff opposed. In an order entered June 4, 2018 (“Prior Order“), the court (H., J.) granted Defendant’s Motion on the ground it was barred by laches and dismissed Plaintiff’s complaint with prejudice, but did not rule on the other branches of Defendant’s Motion. By notice of appeal dated July 13, 2018, Plaintiff appealed the Prior Order. In a decision and order dated March 13, 2020, the Appellate Term for the 2nd, 11th and 13th Judicial Districts reversed the Prior Order and remitted the matter to Civil Court to determine the remaining branches of Defendant’s Motion. Defendant’s Motion was assigned to this Court on May 20, 2021. Several attempts to schedule an oral argument by both parties before this Court were not successful.

Discussion and Decision

Defendant moved to dismiss Plaintiff’s complaint as abandoned (CPLR 3404) or as barred by laches, and alternatively sought to stay interest from the time the action was marked “disposed” on June 1, 2007. The Appellate Term reversed the Prior Order which dismissed the action as barred by laches. The remaining branches of Defendant’s Motion sought dismissal on the ground that the Plaintiff abandoned the action by failing to restore the action since it was marked disposed on June 1, 2007, and alternatively, sought to stay interest from June 1, 2007, the date the matter was marked off, until the date the matter was restored.

CPLR 3404 provides:

A case in the supreme court or a county court marked “off” or struck from the calendar or unanswered on a clerk’s calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.

CPLR 3404 does not apply to actions in New York City Civil Court (Chavez v 407 Seventh Ave. Corp., 39 AD3d 454, 456 [2d Dept 2007]; Gaetane Physical Therapy, P.C. v Kemper Auto & Home Ins. Co., 50 Misc 3d 144[A], 2016 NY Slip Op 50255[U] *1 [App Term 2d Dept 2016]; Halpern v Tunne, 38 Misc 3d 126[A], 2012 NY Slip Op 52321[U] * 2 [App Term 2d Dept 2012]; Small v Metropolitan Prop. & Cas. Ins. Co., 35 Misc 3d 134[A], 2012 NY Slip Op 50760[U] * 1 [App Term 2d Dept 2012]). Even if CPLR 3404 were to apply in New York City Civil Court, CPLR 3404 would not have applied to pre-note of issue actions (Guillebeaux v Parrott, 188 AD3d 1017, 1017 [2d Dept 2020; Onewest Bank, FSB v Kaur, 172 AD3d 1392, 1393 [2d Dept 2019]; Kapnisakis v Woo, 114 AD3d 729, 730 [2d Dept 2014]; Arroyo v Board of Educ. Of City of NY, 110 AD3d 17, 19 [2d Dept 2013]), because CPLR 3404 would not have furnished grounds for dismissal since no party filed a notice of trial, which is the Civil Court equivalent of the note of issue (Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75, 76 [App Term 2d Dept 2014]; Tong Li v Citiwide Auto Leasing, Inc., 43 Misc 3d 128[A], 2014 NY Slip Op 50481[U] *1 [App Term 2d Dept 2014]; Richman v Obiakor Obstetrics & Gynecology, P.C., 32 Misc 3d 135[A], 2011 NY Slip Op 51461[U] *1 [App Term 2d Dept 2011]). Therefore, this Court denies Defendant’s motion to dismiss pursuant to CPLR 3404.

In its Reply, Defendant also contended that Plaintiff’s complaint must be dismissed [*3]pursuant to 22 N.Y.C.R.R. § 208.14[c], which provides that “[a]ctions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken.” Defendant’s arguments regarding 22 N.Y.C.R.R. § 208.14[c] were improperly raised for the first time in its Reply (Grocery Leasing Corp. v P & C Merrick Realty Co., LLC, NY Slip Op 04701*2 [2d Dept Aug. 18, 2021]; Deutsche Bank Natl. Trust Co. v March, 191 AD3d 762, 763 [2d Dept 2021]). In any event, 22 N.Y.C.R.R.§ 208.14[c] “makes no provision for dismissing an action for neglect to prosecute” (Chavez v 407 Seventh Ave. Corp., 39 AD3d at 456; Hillside Place, LLC v Shahid, 55 Misc 3d 101, 103 [App Term 2d Dept 2017]; Marone v Bevelaqua, 36 Misc 3d 140[A], 2012 NY Slip Op 51484[U] *2 [App Term 2d Dept 2012]), which was what Defendant argued here. Despite the inapplicability of CPLR 3404 and 22 N.Y.C.R.R. § 201.14[c], Defendant is not without remedy (see Guillebeaux v Parrott, 188 AD3d at 1018; Onewest Bank, FSB v Kaur, 172 AD3d at 1393; General Assur. Co v Lachmenar, 45 Misc 3d 134[A], 2014 NY Slip Op 51722[U] *2 [App Term 2d Dept 2014].)

Defendant alternatively argued that interest accrual should be stayed from the time the case was marked off until the time it is restored. “If an applicant has submitted a dispute to arbitration or the courts, interest shall accumulate, unless the applicant unreasonably delays the arbitration or court proceeding” (11 NYCRR § 65-3.9[d]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 204 n. 2 [2d Dept 2009]; Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] *1 [App Term 2d Dept 2016]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term 2d Dept 2014]). Here, although Plaintiff commenced the action on January 6, 2003, court’s case summary reveals that the only activity occurred was Defendant’s motion to dismiss filed on January 7, 2008, which was withdrawn, Defendant’s instant Motion to dismiss, which was filed on November 14, 2017 and the subsequent appellate practice culminating in the order of the Appellate Term dated March 13, 2020.

As noted above, Plaintiff has not filed a notice of trial. Although the case was “inactive” as of June 1, 2007, a disposed marking of a pre-note of issue case is not permitted (Bilkho v Roosevelt Sq., LLC, 157 AD3d 849, 850 [2d Dept 2018]; Khaolaead v Leisure Video, 18 AD3d 820, 821 [2d Dept 2005], see Arroyo v Board of Educ. Of City of NY, 110 AD3d at 21). Here, the disposed marking does not prevent Plaintiff from prosecuting the case because undoing such marking does not require a motion to restore (Arroyo v Board of Educ. of City of NY, 110 AD3d at 20; General Assur. Co. v Lachmenar, 2014 NY Slip Op 51722[U] *2 [App Term 2d Dept 2014]). Plaintiff should not be rewarded for the years of inactivity in the court proceeding “by receiving a windfall of interest” (Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 2016 NY Slip Op 51240[U] *1; V.S. Medical Services, P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] *2 [App Term 2d Dept 2015]; Aminov v Country Wide Ins. Co., 43 Misc 3d at 89). Therefore, this Court grants this branch of Defendant’s motion and in the event Plaintiff prevails on its claims, fixes the date interest accrues to such date as a notice of trial is filed (see V.S. Medical Services, P.C. v Travelers Ins. Co., 2015 NY Slip Op 51760[U] * 2; Aminov v Country Wide Ins. Co., 43 Misc 3d at 89).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion to dismiss on the ground that Plaintiff abandoned the action is denied; and it is further

ORDERED that Defendant’s motion to fix accrual of interest is granted; and it is further

ORDERED that in the event Plaintiff prevails on its claims, interest shall accrue from the filing date of the notice of trial.

This constitutes the Decision and Order of this Court.

Dated: October 8, 2021

Queens County Civil Court

Hon Wendy Changyong Li, J.C.C.

Index No. CV-723275-19/QU

Plaintiff’s counsel:
Mandell & Santora PC
29 Broadway
Lynbrook, NY 11563

Defendant’s counsel:
Rosillo & Licata LLP 355 Post Avenue, Suite 204
Westbury, NY 11590

I. Papers

Papers/Numbered

Defendant’s Notice of Motion and Affirmation in Support for summary judgment dismissing Plaintiff’s complaint under index number CV-723275-19/QU dated February 10, 2020 (“Motion 1“) and file stamped by the court on February 13, 2020. 1

Plaintiff’s Affirmation in Opposition under index number CV-723275-19/QU dated May 19, 2020 (“Opposition 1“) and electronically filed with the court on May 20, 2020. 2

Defendant’s Reply Affirmation under index number CV-723275-19/QU dated April 27, 2021 (“Reply 1“) and electronically filed with the court on May 12, 2021. 3

Defendant’s Notice of Motion and Affirmation in Support for summary judgment dismissing Plaintiff’s complaint under index number CV-723253-19/QU dated February 10, 2020 (“Motion 2“, together with Motion 1, the “Motions“) and file stamped by the court on February 13, 2020. 4

Plaintiff’s Affirmation in Opposition under index number CV-723253-19/QU dated May 19, 2020 (“Opposition 2“) and electronically filed with the court on May 20, 2020. 5

Defendant’s Reply Affirmation under index number CV-723253-19/QU dated April 27, 2021 (“Reply 2“) and electronically filed with the court on May 12, 2021. 6

In a summons and complaint under index number CV-723275-19/QU filed on October 31, 2019, Plaintiff sued Defendant insurance company to recover $1,110.36 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Allen from June 29, 2019 to July 18, 2019, plus attorneys’ fees and statutory interest (see Motion 1, Aff. of Scozzari, Ex. A). In a summons and complaint under index number CV-723253-19/QU filed on October 31, 2019, Plaintiff sued Defendant to recover $970.96 in unpaid first party No-Fault benefits for medical services provided to Allen from August 14, 2019 to August 30, 2019 (see Motion 2, Aff. of Scozzari, Ex. A). In both actions, Defendant moved for summary judgment dismissing Plaintiff’s complaints on the ground that the services Plaintiff rendered to Allen were not medically necessary. Plaintiff opposed Defendant’s Motions. An oral argument by both parties was conducted before this Court on September 1, 2021. Both parties agreed that the arguments in both actions were identical except for the dates of service and the respective amounts claimed. For judicial efficiency, this Court decides both motions together because they raise identical issues of law within a virtually identical factual background.

III. Decision

Insurers must pay or deny No-Fault benefit claims within thirty (30) days of receipt of proof of the claim (Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). Here, the affidavits of Defendant’s No-Fault examiner Dougert sworn February 6, 2020, which were appended to the Motions, establishing Defendant’s regular office mailing procedures showed Defendant timely denied Plaintiff’s claim (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2d Dept 2020]; see Progressive Cas. Ins. Co. v Infinite Ortho Prods, Inc., 127 AD3d 1050, 1051 [2d Dept 2015]).

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

In our instant matters, Defendant based its denials of Plaintiff’s claims on lack of medical necessity. Defendant presented the sworn peer review report of Dr. T. McLaughlin, an acupuncturist and chiropractor, who reviewed Allen’s chiropractic examination report, pain fiber nerve conduction study, initial physical examination report, physical therapy progress notes, and physical therapy prescription from March 2019 (see Motions, Scozzari Aff., Ex. B). Dr. McLaughlin also performed a physical examination of Allen on April 30, 2019, in which he specified the tests he performed. Dr. McLaughlin tested Allen’s range of motion in the cervical, thoracic, and lumbar spine and the upper and lower extremities which revealed normal ranges of motion as compared to the maximum range and no other abnormalities. Dr. McLaughlin’s evaluation of Allen under traditional Chinese medicine also revealed normal findings. Here, Dr. McLaughlin’s report established lack of medical necessity for the services Plaintiff provided (Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 134[A], 2017 NY Slip Op 50954[U] *1 [App Term 2d Dept 2017]; Westcan Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066 * 1 [App Term 2d Dept 2015]; Lenox Hill Radiology & MIA, [*2]P.C. v Great N. Ins. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50680 *1 [App Term 2d Dept 2015]; Ayoob Khodadadi, M.D., MRI, P.C. v Clarendon Natl. Ins. Co., 37 Misc 3d 130[A], 2012 NY Slip Op 51968 * 1 [App Term 2d Dept 2012]).

In opposition, Plaintiff presented an affidavit dated May 4, 2020, in which Winslow, LA, who treated Allen, attested that she “reviewed the IME Report of Dorothy McLaughlin, DC, dated April 30, 2019.” (Opposition 1 and Opposition 2, Aff. of Nof, Ex. A at 1). Initially, this Court assumes that the reference to “Dorothy McLaughlin” in Winslow’s report was a typographical error. Based on review of medical records and treatment notes, Winslow attested that Allen had “reduced range of motion, continued complaints of pain and weakness, and reduced muscle strength, and continued complaints of tenderness and spasm,” (Id.) which indicated that Allen required further treatment. Winslow also attested that her treatment notes contradicted Dr. McLaughlin’s opinion, and concluded that additional physical therapy after the IME was medically necessary. Winslow’s affidavit “did not meaningly refer to, or discuss” Dr. McLaughlin’s report, so is insufficient to raise factual issues regarding medical necessity of the services Plaintiff provided (Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50884[U] *2 [App Term 2d Dept 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] *2 [App Term 2d Dept 2009]). Similarly, Winslow’s statement that her treatment notes contradicted Dr. McLaughlin’s opinion was conclusory (Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50884 *2; Pan Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 51495[U] *2), particularly since Plaintiff did not present the notes to which she referred.

It is well established that “expert’s affidavit must contain four elements: (1) the expert’s qualification; (2) the facts underlying the expert’s opinion; (3) the technical, scientific or other authoritative basis supporting the opinion; and (4) the opinion itself” (Avoiding the Conclusory When Preparing Experts’ Affidavits, Feb. 27, 2015 N.Y.L.J.) and that conclusory opinions in expert affidavits lack probative value (Sparks v Detterline, 86 AD3d 601, 602 [2d Dept 2011]; Borras v Lewis, 79 AD3d 1084, 1085 [2d Dept 2010]). Once a moving party establishes its prima facie case in a motion for summary judgment, the burden then shifts to the non-moving party to defeat moving party’s showing (De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 79 [2015]). Here, in our instant matters, Defendant’s expert applied various facts, i.e., Allen’s medical history and current complaint, experts’ physical examination on Allen, Allen’s range of motion and Allen’s medical condition at cervical spine, upper extremities, thoracic, lower extremities and lumbar, to western modern medical science, technology and cited authorities, as well as to traditional Chinese medicine, and had come to a conclusion that Allen’s treatment was not medically necessary. On the contrary, Plaintiff’s expert omitted the requirements of an expert’s affidavit, i.e., the underlying facts and the scientific basis upon which her opinion relied, but simply stated a conclusion/an opinion that Allen’s treatment by her was medically necessary. Here, Plaintiff’s expert affidavit failed to sufficiently rebut Defendant’s expert affidavit, and thus failed to defeat Defendant’s prima facie showing.

This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact, that the controversy regarding Plaintiff’s claims in both actions can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]), that Plaintiff has failed to raise factual issues requiring a trial (Innovative Chiropractic, P.C. v New York Cent. [*3]Mut. Fire Ins. Co., 2010 NY Slip Op 50884 *2; Pan Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 51495[U] *2), and that Defendant is entitled to dismissal of Plaintiff’s complaints in both actions.

IV. Order

Accordingly, it is

ORDERED that Defendant’s motions for summary judgment are granted and that Plaintiff’s complaints are dismissed in both actions, and it is further

ORDERED that the part clerk is directed to mark the index numbers in both actions disposed for all purposes.

This constitutes the Decision and Order of the court.

Dated: September 17, 2021
Queens County Civil Court
____________________________________
Honorable Wendy Changyong Li, J.C.C.

CV-714768-19/QU

Plaintiff’s counsel:

Lewin & Baglio, LLP

1100 Shames Drive, Suite 100

Westbury, NY 11590

Defendant’s counsel:

Jaffe & Velasquez LLP

40 Wall Street, 12th Floor

New York, NY 10005

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment on its claim:

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated January 24, 2020 (“Motion”) and file stamped by the court on February 7, 2020. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated August 19, 2020 (“Cross-Motion”) and electronically filed with the court on August 24, 2020. 2

Defendant’s Affirmation in Opposition dated February 10, 2021 (“Opposition to Cross-Motion”) and electronically filed with the court on February 12, 2021. 3

II. Background

In a summons and complaint filed July 25, 2019, Plaintiff sued Defendant insurance company to recover $1,893.00 in unpaid first party No-Fault benefits for medical prescriptions provided to Plaintiff’s assignor Styles, plus attorneys’ fees and statutory interest (see Motion, Aff. of Kang, Ex. A). Defendant moved for summary judgment dismissing Plaintiff’s complaint (CPLR 3212[b]) on the ground that Plaintiff lacked standing (CPLR 3211[a][3]) and failed to state a cause of action (CPLR 3211[a][7]). Plaintiff cross-moved for summary judgment on its claim against Defendant.

III. Discussion

The Mandatory Personal Injury Protection Endorsement is required in all automobile insurance contracts (11 NYCRR § 65-1.1[a]) which provides that “[i]n the event of an accident, written notice setting forth details sufficient to identify the eligible injured person, along with reasonably obtainable information regarding the time, place and circumstances of the accident, shall be given by, or on behalf of, each eligible injured person, to the [insurance] Company, or any of the [insurance] Company’s authorized agents, as soon as reasonably practicable, but in no event more than 30 days after the date of the accident, unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation” (see 11 NYCRR § 65-1.1[d]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 589-90 [2011]). Thus, as here, Plaintiff assignor Styles was required to provide notice of the accident to Defendant within thirty (30) days of the accident (Hosp. for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317, 879 N.E.2d 1291, 1293 (2007), see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 562-63 [2008]). The notice of accident requirement is a condition precedent to a No-Fault insurer’s liability (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d at 590).

As to the matter before this Court, in an affidavit sworn January 28, 2020, Mena-Sibrian, Defendant’s No-Fault Litigation/Arbitration Supervisor, attested that Defendant first received notice of Styles’ accident in a correspondence from MVAIC dated January 17, 2019 and postmarked February 5, 2019, which was more than thirty (30) days after Styles’ accident on October 9, 2018 (see Motion, Kang Aff., Ex. C). Mena-Sibrian claimed to have personal knowledge of the file based on her responsibility for the claim and “review of the file which was kept in the ordinary course of business by [Defendant]” (Motion, Kang Aff., Ex. C at 1). Since review of records kept in the ordinary course of business does not confer upon the affiant personal knowledge, Mena-Sibrian’s statement that Defendant first received notice of Plaintiff’s accident in the January 17, 2019 correspondence postmarked February 5, 2019 (see Motion, Kang Aff., Ex. F) is hearsay (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934, [*2]935 [2d Dept 2021]). Because Mena-Sibrian did not identify the correspondence postmarked February 5, 2019 annexed as Exhibit F, she failed to authenticate it to render it admissible evidence (see Antoine v Kalandrishvili, 150 AD3d 941, 942 [2d Dept 2017]; Hefter v Elderserve Health, Inc., 134 AD3d 673, 675 [2d Dept 2015]). Likewise, Mena-Sibrian’s account that Defendant “contacted MCVIAC [sic] via the telephone, and a MVIA [sic] representative notified [Defendant] that MVIAC received the initial notification of the loss on November 20, 2018” (Motion, Kang Aff., Ex. C at 3) was vague and clearly not based on Mena-Sibrian’s personal knowledge, so also failed to demonstrate the untimeliness of Plaintiff’s notice of the accident to MVAIC (see Nuzzi v Gallagher, 60 AD3d 653, 654 [2d Dept 2009]).

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968). Here, Defendant failed to establish its prima facie case with admissible evidence. Since Defendant failed to meet its burden of demonstrating entitlement to summary judgment, this Court denies Defendant’s motion for summary judgment without consideration of Plaintiff’s opposition (Luigi v Avis Cab Co., Inc., 96 AD3d 809, 810 [2d Dept 2012]; Alexander v Gordon, 95 AD3d 1245, 1246 [2d Dept 2012]).

Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Plaintiff presented an affidavit dated March 27, 2020, in which Munson, Plaintiff’s biller, attested that, based on her review of Plaintiff’s records maintained in the ordinary course of business, Plaintiff submitted proof of claim to Defendant within 45 days of providing prescriptions to Styles (see Cross-Motion, Aff. of Jillian M. Enright, Ex. 2 at 1). Munson’s affidavit suffered from the same infirmity as the affidavit of Mena-Sibrian, in that the review of records did not imbue an affiant with personal knowledge, so Munson’s assertion regarding Plaintiff’s timely submission of claim was also hearsay (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d at 935). In addition, it is noted that the fact that Plaintiff submitted proof of claim to Defendant within 45 days of providing prescriptions to Styles (even if it was established by admissible evidence, while it did not here), does not provide that Styles had notified the insurance company within 30 days of the alleged car accident as required.

Although an insurer’s denial of claim form may establish the insurer’s receipt of a medical service provider’s claim and untimely denial of that claim, (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]), Defendant’s denial of claim form dated May 7, 2019, which acknowledged receipt of Plaintiff’s claim on April 25, 2019, demonstrated that Defendant denied Plaintiff’s claim twelve (12) days after receiving it (see Motion, Kang Aff. Ex. E). Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claim against Defendant, this Court denies Plaintiff’s Cross-Motion without consideration of Defendant’s opposition (U.S. Bank N.A. v Atia, 178 AD3d 747, 749 [2d Dept 2019]; Zalewski v MH Residential 1, LLC, 163 AD3d 900, 901 [2d Dept 2018]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint is denied, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant is denied.

This constitutes the Decision and Order of the court.

Dated: September 15, 2021

Queens County Civil Court

____________________________

Honorable Wendy Changyong Li, J.C.C.

CV-711495-18/QU

Plaintiff’s counsel:
Baker & Cantin P.C.
63-36 99th Street
Rego Park, NY 11374

Defendant’s counsel:
Jaffe & Koumourdas LLP
40 Wall Street, 12th Floor
New York, NY 10005
Wendy Changyong Li, J.

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion and Affirmation dated February 14, 2020 (“Motion”) and file stamped by the court on March 3, 2020 1

In a summons and complaint filed August 23, 2018, Plaintiff sued Defendant insurance company to recover $1,837.68 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Javier for injuries sustained in an automobile accident, plus attorneys’ fees and statutory interest (see Motion, Aff. of Kang, Ex. A). In a summons and [*2]complaint dated and filed on November 5, 2018, Defendant commenced an action in Supreme Court, New York County (“Supreme Court Action“) against Javier, Plaintiff, and other nonparty medical service providers, seeking a judgment declaring that Defendant owed no duty to pay No Fault claims arising from Javier’s automobile accident because Javier failed to appear for scheduled examinations under oath (“EUO“) (see Motion, Kang Aff., Ex. C). On September 16, 2019, Defendant moved in the Supreme Court Action for a default judgment against all defendants, including Javier and Plaintiff (see Motion, Kang Aff., Ex. F). In an order dated December 17, 2019 and entered December 19, 2019, Supreme Court granted Defendant’s motion for a default judgment and declared that Defendant was “not required to provide, pay or honor any current or future claim for no-fault benefits” under Defendant’s policy to Javier (Country-Wide Ins. Co. v Javier, Sup. Ct. NY County, December 17, 2019, K., J., Index No. 655488/18; Motion, Kang Aff., Ex. E). Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that the action is barred by res judicata. Plaintiff did not oppose Defendant’s motion.

III. Discussion

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, 111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Simmons v Trans Express Inc., 37 NY3d at 111; O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]).

The parties and subject matter in the instant matter and the Supreme Court Action are identical (Healthway Med. Care, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *1). Any judgment in Plaintiff’s favor in our instant action would adversely affect the rights and interests created by the judgment in the Supreme Court Action (Metro Health Prods., Inc. v Nationwide Ins., 55 Misc 3d 142[A], 2017 NY Slip Op 50607[U] *2 [App Term 2d Dept 2017]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *2). Thus res judicata bars Plaintiff’s action (Active Care Med. Supply Corp. v American Commerce Ins. Co., 54 Misc 3d 128[A], 2016 NY Slip Op 51813[U] *2 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1). Here, Judge K. rendered an order in the Supreme Court Action deciding Defendant in our instant case was “not required to provide, pay or honor any current or future claim for no-fault benefits” under Defendant’s policy to Plaintiff’s assignor, Javier (Motion, Kang Aff., Ex. E at 4). Therefore, Defendant is entitled to summary judgment dismissing Plaintiff’s complaint (Metro Health Prods., Inc. v Nationwide Ins., 2017 NY Slip Op 50607[U] *1; Active Care Med. Supply Corp. v American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Atlantic Chiropractic, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51072[u] *2 [App Term 2d Dept 2016]). Even though Supreme Court entered judgment on Plaintiff’s default in the Supreme Court Action, the judgment constitutes a conclusive final determination because Plaintiff’s [*3]default in the Supreme Court action has not been vacated (Active Care Med. Supply Corp. v American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion to dismiss Plaintiff’s complaint is granted and Plaintiff’s complaint is dismissed; and it is further

ORDERED that the part clerk is directed to dispose the index number for all purposes.

This constitutes the Decision and Order of the court.

Dated: September 8, 2021
Queens County Civil Court
Honorable Wendy Changyong Li, J.C.C.

CV-702880-19/QU

Plaintiff’s Counsel:
Gabriel Law Firm, P.C.
100 Merrick Road, 430W
Rockville Centre, NY 11570

Defendant’s Counsel:
Callinan & Smith, LLP
3361 Park Avenue, Suite 104
Wantagh, NY 11793

I. Papers

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated October 24, 2019 (“Motion”) [*2]and file stamped by the court on October 31, 2019. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated October 1, 2020 (“Cross-Motion”) and electronically filed with the court on the same date. 2

Defendant’s Affirmation in Opposition to Plaintiff’s Cross Motion and in Support of Defendant’s Motion dated October 9, 2020 (“Opposition to Cross-Motion”) and electronically filed with the court on October 12, 2020. 3

Plaintiff’s Reply Affirmation dated November 30, 2020 (“Reply”) and electronically filed with the court on the same date. 4

In a summons and complaint filed February 15, 2019, Plaintiff sued Defendant insurance company to recover a total of $2,330.56 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Pierre, plus attorneys’ fees and statutory interest (see Motion, Aff. of Levy, Ex. A).

Defendant moved for summary judgment dismissing Plaintiff’s complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO“). Plaintiff cross-moved for summary judgment on its claims against Defendant. Both parties orally argued the motions before this Court on April 30 and May 6, 2021 respectively.

III. Discussion and Decision

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

Insurers must pay or deny No-Fault benefit claims “within thirty (30) calendar days after receipt of the proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment (Viviane [*3]Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). Noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]).

Here, the undisputed facts as fully addressed hereinafter, are (i) that Plaintiff submitted its claim to Defendant, (ii) that Defendant received Plaintiff’s claims, (iii) that Defendant first requested EUO on the 17th business days after it received Plaintiff’s claims, (iv) that Plaintiff failed to attend any of the scheduled EUOs, and (v) that Defendant denied Plaintiff’s claims on the seventh (7th) day after Plaintiff’s failure to appear for the third scheduled EUO. The legal issues argued by the parties, however, before this Court, are:

First, whether an EUO scheduling letter is a request for additional verification, subject to the fifteen (15) business day requirement (11 NYCRR § 65-3.5[b]).

Second, whether an insurer’s transmission of an EUO request letter within thirty (30) calendar days of receiving a claim for No Fault benefits tolls an insurer’s time to pay or deny such claim.

Third, the effect of an insurer’s late transmission of request for an EUO, if such lateness defense is not precluded.

This Court will address the above issues in the context of Defendant’s Motion for summary judgment and Plaintiff’s opposition. Plaintiff’s Cross-Motion will be analyzed separately.

A. Defendant’s Motion

Legal Issue One: whether an EUO scheduling letter is a request for additional verification, subject to the fifteen (15) business day requirement (11 NYCRR § 65-3.5[b]).

Initially, parties disputed whether an EUO constitutes “additional verification.” Plaintiff contended that an EUO request was additional verification, which required Defendant to request an EUO within fifteen (15) business days of receipt of Plaintiff’s claims (11 NYCRR 65-3.5[b]). Defendant maintained that an EUO was not an additional verification.

Pursuant to Regulation 68-C of the Insurance Department of the State of New York, “(a) [w]ithin 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS form NF-2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim. (b) Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification [*4]forms (d) [i]f the additional verification required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms” (11 NYCRR 65-3.5).

Here, Regulation 68-C requires additional verification request to be sent within fifteen (15) business days of receipts of claims by insurer, except that medical examination shall be scheduled within thirty (30) calendar days of receipts of claims. However, statutes are silent as to whether an EUO constitutes “additional verification” subject to the fifteen (15) business day requirements. Although prior courts have not expressly found that EUO scheduling letters were requests for additional verification, pursuant to case law, EUO scheduling letters have been effectively treated as requests for additional verification (Urban Radiology, P.C. v Clarendon Natl. Ins. Co., 31 Misc 3d 132[A], 2011 NY Slip Op 50601[U] * 1 [App Term 2d Dept 2011]; Infinity Health Prods., Ltd. v Progressive Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51334[U] *1 [App Term 2d Dept 2010]; Advanced Med., P.C. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U] * 1-2 [App Term 2d Dept 2009]). Ultimately, determining whether an EUO request is or is not additional verification is irrelevant because courts have traditionally applied the fifteen (15) business day time requirement for additional verification to any request scheduling EUOs (see Great Health Care Chiropractic, P.C. v Travelers Ins. Co., 49 Misc 3d 145[A], 2015 NY Slip Op 51665[U] *1 [App Term 2d Dept 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] *1 [App Term 2d Dept 2015]; Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] *2 [App Term 2d Dept 2014]). Nevertheless, this Court adopts the tradition of viewing the EUO scheduling letter as an “additional verification” request, therefore subject to the fifteen (15) business day requirement.

Legal Issue Two, whether an insurer’s transmission of an EUO request letter within thirty (30) calendar days of receiving a claim for No Fault benefits tolls an insurer’s time to pay or deny such claim.

It is well established that in order to establish a defense that an insured failed to attend a duly scheduled EUO, an insurer must present evidence of the timely and proper mailing of the EUO scheduling letters (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016]). This may be established with evidence of the actual mailing or by an affidavit of a person “with personal knowledge of the standard office practice for ensuring that the letters are properly addressed and mailed” (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d at 694).

At oral argument on April 30, 2021, Plaintiff’s counsel contended that Defendant’s initial EUO scheduling letter was untimely. Defendant’s counsel countered that the untimeliness of the EUO scheduling letter was not fatal to Defendant’s defense of Plaintiff’s nonappearance at scheduled EUOs. This Court invited counsels to submit memoranda regarding their respective positions on the timeliness of the EUO scheduling and the calculation of the times pursuant to relevant statutes.

Here, Defendant’s Explanation of Benefits to Plaintiff dated September 5, 2018 indicated receipt of Plaintiff’s bill on July 24, 2018 (see Motion, Levy Aff. Ex. P). Defendant must request additional verification “within 15 business days of receipt of the prescribed verification forms” (11 NYCRR § 65-3.5[b]; A.C. Med., P.C. v Ameriprise Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51787[U] *1 [App Term 2d Dept 2016]; Great Health Care Chiropractic, P.C. v Travelers Ins. Co., 2015 NY Slip Op 51665[U] *1; Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] *1 [App Term 2d Dept 2015]; O & M Med., P.C. v Travelers Indem. Co., 2015 NY Slip Op 50476[U] *1. As Plaintiff correctly pointed out, Defendant’s first EUO scheduling letter dated August 16, 2018, which set September 18, 2018 as the date for the EUO, was two (2) business days late (see Motion, Levy Aff. Ex. E). It is noted, however, Defendant’s first EUO request was made within thirty (30) calendar days of Defendant’s receipt of Plaintiff’s claims.

Obviously, scheduling an initial EUO in excess of thirty (30) calendar days precludes Defendant from denying a claim for failure to attend an EUO (see A.C. Med., P.C. v Ameriprise Ins. Co., 2016 NY Slip Op 51787[U] *1 [more than 30 days]; Great Health Care Chiropractic, P.C. v Travelers Ins. Co., 2015 NY Slip Op 51665[U] *1 [about 50 days]; Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 2015 NY Sip Op 51220[U] *1 [more than 30 days]; O & M Med., P.C. v Travelers Indem. Co., 2015 NY Slip Op 50476[U] *1 [nearly 3 months]; Optimal Well-Being Chiropractic, P.C. v Ameriprise Auto & Home, 40 Misc 3d 129[A], 2013 NY Slip Op 51106[U] *2 [App Term 2d Dept 2013] [more than 70 days]). Here, although Defendant’s initial EUO scheduling letter was untimely for being two (2) business day late, its untimeliness did not exceed the thirty (30) days in which Defendant was required to pay or deny the claim, so was sufficient to toll Defendant’s time to pay or deny the claim (see A.C. Med., P.C. v Ameriprise Ins. Co., 2016 NY Slip Op 51787[U] *1; Optimal Well-Being Chiropractic, P.C. v Ameriprise Auto & Home, 2013 NY Slip Op 51106[U] *2; St. Vincent Med. Care, P.C. v Travelers Ins. Co., 26 Misc 3d 144[A], 2010 NY Slip Op 50446[U] *1 [App Term 2d Dept 2010]). Although letters that do not request verification from a plaintiff are insufficient to delay an insurer’s time to pay or deny such plaintiff’s claim (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [2d Dept 1999]; Parsons Med. Supply Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] *2 [App Term 2d Dept 2012]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *2 [App Term 2d Dept 2010]; Alur Med. Supply, Inc. v Progressive Ins. Co., 21 Misc 3d 134[A], 2008 NY Slip Op 52191[U] *1 [App Term 2d Dept 2008]), in our instant matter, Defendant’s initial EUO scheduling letter, which requested Plaintiff’s EUO, tolled Defendant’s time to pay or deny Plaintiff’s claim (J.C. Healing Touch Rehab, P.C. v Nationwide Ins., 41 Misc 3d 141[U], 2013 NY Slip Op 52011[U] *2 [App Term 2d Dept 2013]).

Legal Issue Three: the effect of an insurer’s late transmission of request for an EUO, if such lateness defense is not precluded.

As discussed above, Defendant sent out its initial EUO scheduling letter two (2) business days late, but within thirty (30) calendar days of its receipt of Plaintiff’s claim. Such delay is not fatal to Defendant’s defense that Plaintiff did not appear for the scheduled EUO, rather, such EUO request tolled Defendant’s time to pay or deny Plaintiff’s claims.

“For the purposes of counting the 30 calendar days after proof of claim, wherein the claim becomes overdue pursuant to section 5106 of the Insurance Law, with the exception of section 65-3.6 of this Subpart, any deviation from the rules set out in this section shall reduce the 30 calendar days allowed” (11 NYCRR § 65-3.8[l]). In the context scheduling an initial EUO, as Defendant’s counsel correctly maintained during the oral argument and in his email memorandum dated May 3, 2021, any lateness of scheduling the initial EUO merely reduces the thirty (30) calendar days within which an insurer must pay or deny a claim. In our instant case, since Defendant’s initial EUO scheduling letter was two (2) business days late, Defendant’s time to pay or deny Plaintiff’s claim was reduced to twenty-eight (28) days (see Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 2014 NY Slip Op 51244[U] *2; Eagle Surgical Supply, Inc. v Allstate Indem. Co., 41 Misc 3d 141[A], 2013 NY Slip Op 52012[U] *2 [App Term 2d Dept 2013]).

After Plaintiff failed to appear for the September 18, 2018 first EUO, Defendant timely mailed a second scheduling letter dated September 24, 2018, which scheduled the EUO for November 8, 2018 (see Motion, Levy Aff. Ex. F) (11 NYCRR § 65-3.6[b]; see Active Care Med. Supply Corp. v Ameriprise Auto & Home, 58 Misc 3d 138[A], 2017 NY Slip Op 51835[U] *2 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] *2 [App Term 2d Dept 2011]). By letter dated November 12, 2018, Defendant scheduled a third EUO for December 4, 2018 (see Motion, Levy Aff. Ex. G). The transcripts of the EUO proceedings (see Motion, Levy Aff. Ex. I, M and O) and affidavits of counsel assigned to conduct the EUOs appended to the motion established Plaintiff’s nonappearance at the scheduled EUOs (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] *1 [App Term 2d Dept 2017]; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1).

In an affidavit sworn June 11, 2019, which was appended to the Motion, Overly, Defendant’s litigation examiner, established Defendant’s claim processing and standard mailing procedures designed to ensure timely mailing of Defendant’s denial of Plaintiff’s claims after the last EUO at which Plaintiff failed to appear (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; TAM Med. Supply Corp. v 21st Century Ins. Co., 2017 NY Slip Op 51510[U] *1; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). Defendant denied Plaintiff’s claim on December 11, 2018, just seven (7) days after Plaintiff’s failure to appear for the third scheduled EUO on December 4, 2018 (see Motion, Levy Aff. Ex. Q).

As Defendant’s counsel correctly stated in its email memorandum dated May 3, 2021, even though Defendant had only twenty-eight (28) days to pay or deny Plaintiff’s claim because the initial EUO request was mailed two (2) days late, Defendant nevertheless timely denied Plaintiff’s claim, seven (7) days after Plaintiff’s non-appearance to the third scheduled EUO (Longevity Med. Supply, Inc. v IDS Prop & Cas. Ins. Co., 2014 NY Slip Op 51244[U] *2; Eagle Surgical Supply, Inc. v Allstate Indem. Co., 2013 NY Slip Op 52012[U] *2, see [*5]Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757).

Here, Defendant’s evidence that it requested Plaintiff’s appearance at EUOs three times, that Plaintiff failed to appear three times and that Defendant denied Plaintiff’s claim on that basis satisfied Defendant’s burden of establishing a material policy breach by Plaintiff (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d at 1007; Interboro Ins. Co. v Clennon, 113 AD3d at 597).

Plaintiff’s Opposition to Defendant’s Motion

In opposition, Plaintiff contended that factual issues existed precluding Defendant’s motion for summary judgment, that Defendant failed to establish an objective basis for requesting an EUO, and that Defendant did not respond to Plaintiff’s objections to the EUO.

It is well established that the No-Fault regulations do not require “an insurer’s notice of scheduling an EUO to specify the reason[s] why the insurer is requiring the EUOs” (City Chiropractic, P.C. v State Farm Ins., 64 Misc 3d 134[A], 2019 NY Slip Op 51102[U] *1 [App Term 2d Dept 2019]; Bronx Chiropractic Care, P.C. v State Farm Ins., 63 Misc 3d 132[A], 2019 NY Slip Op 50423[U] *1 [App Term 2d Dept 2019]; Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] *1 [App Term 2d Dept 2014], see Longevity Med. Supply, Inc. v Praetorian Ins. Co., 47 Misc 3d 144[A], 2015 NY Slip Op 50685[U] *1 [App Term 2d Dept 2015]). Contrary to Plaintiff’s position, Defendant responded to Plaintiff’s letters objecting to the EUOs (see Motion, Levy Aff. Ex. K and L) even though no such response is required to establish noncompliance with a scheduled EUO (see Interboro v Clennon, 113 AD3d at 597; 21st Century Pharm., Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] *1 [App Term 2d Dept 2020]; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U] *1 [App Term 2d Dept 2019]). Also, contrary to Plaintiff’s argument, Defendant was not required to provide “objective reasons for requesting [an] EUO” (21st Century Pharm., Inc. v Integon Natl. Ins. Co., 2020 NY Slip Op 51364[U] *1; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U] *1 [App Term 2d Dept 2017], see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 136[A], 2019 NY Slip Op 51158[U]*2 [App Term 2d Dept 2019]; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 2019 NY Slip Op 50171[U] *2).

Here, Plaintiff failed to raise factual issues regarding Defendant’s defense of Plaintiff’s failure to attend an EUO. This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact, that the controversy regarding Plaintiff’s claims can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]), that Plaintiff has failed to raise factual issues requiring a trial (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Nova Chiropractic Servs., P.C. v Ameriprise Auto & Home, 58 Misc 3d 142[A], 2017 NY Slip Op 51882[U] *1 [App Term 2d Dept 2017]; K.O. Med., P.C. v IDS Prop. Cas. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51454[U] *1 [App Term 2d Dept 2017]), and that Defendant is entitled to a dismissal of Plaintiff’s claims.

B. Plaintiff’s Cross-Motion

Regarding the Cross-Motion, Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits was overdue” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 501; New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 648 [2d Dept 2014]; NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Here, Defendant’s denial of claim forms dated December 11, 2018, acknowledging receipt of Plaintiff’s claims on July 24, 2018 (see Motion, Levy Aff. Ex. Q) constituted prima facie evidence that Defendant received Plaintiff’s claims and that the denial was overdue (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). As discussed above, however, Defendant demonstrated that Plaintiff failed to appear for scheduled EUOs which mandates a denial of Plaintiff’s Cross-Motion for summary judgment on its claims against Defendant (Actual Chiropractic, P.C. v Mercury Cas. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51435[U] *1 [App Term 2d Dept 2016]; Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 134[A], 2016 NY Slip Op 51026[U] *1 [App Term 2d Dept 2016]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90, 93 [App Term 2d Dept 2012]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment is granted and Plaintiff’s complaint is dismissed, and it is further

ORDERED that the part clerk is directed to update the court system to reflect Plaintiff’s Cross-Motion as motion seq. No.2, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgement is denied.

This constitutes the DECISION and ORDER of the Court.

Dated: June 24, 2021
Queens County Civil Court
_____________________________________
Honorable WENDY CHANGYONG LI, J.C.C.

[*1]

Civil Court of the City of New York, Queens County, May 27, 2021

APPEARANCES OF COUNSEL

Law Offices of Karen L. Lawrence, Garden City, for defendant.

Law Offices of Jonathan B. Seplowe, PC, Malverne, for plaintiff.

I. Background

In a summons and complaint filed on August 29, 2019, plaintiff commenced an action against defendant insurance company to recover a total of $5,119.50 in unpaid first-party no-fault benefits for medical services provided to plaintiff’s assignor Loduca from November to December 2016, plus attorneys’ fees and statutory interest (see mot, aff of Inguanti, exhibit A). Defendant moved for summary judgment dismissing the complaint (CPLR 3212 [b]) on the ground that defendant timely denied plaintiff’s claims based on Loduca’s failure to appear for two independent medical examinations (IME).

II. Discussion and Decision

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212 [b]). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021]; see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing{**72 Misc 3d at 673} judgment in favor of any party” (CPLR 3212 [b]; Zuckerman v City of New York at 562; see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

Insurers must pay or deny no-fault benefit claims “within 30 calendar days after receipt of the proof of claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 [*2]NY3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to nonpayment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 281-286). An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]; Greenway Med. Supply Corp. v Hartford Ins. Co., 56 Misc 3d 135[A], 2017 NY Slip Op 50960[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Parisien v Citiwide Auto Leasing, 55 Misc 3d 146[A], 2017 NY Slip Op 50684[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Longevity Med. Supply, Inc. v Praetorian Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50393[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

To sustain its burden, defendant must present evidence that it mailed the IME notices to Loduca and that Loduca failed to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d at 721). Defendant presented an affidavit sworn December 31, 2019 (see mot, Inguanti aff, exhibit F), in which Donovan, an employee of MES Solutions, the company retained by defendant to schedule IMEs, attested to the ordinary business practices of MES Solutions in mailing IME scheduling letters and recording the status of the IMEs scheduled. Defendant also presented the scheduling letters to establish that defendant timely scheduled the IMEs (Bronx Acupuncture Therapy, P.C. v A. Cent. Ins. Co., 58 Misc 3d 141[A], 2017 NY Slip Op 51870[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Brand Med. Supply, Inc. v {**72 Misc 3d at 674}Praetorian Ins. Co., 56 Misc 3d 133[A], 2017 NY Slip Op 50947[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Broadway Massage Therapy, P.C. v Citiwide Auto Leasing, 55 Misc 3d 132[A], 2017 NY Slip Op 50426[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Longevity Med. Supply, Inc. v Praetorian Ins. Co., 2015 NY Slip Op 50393[U], *1). The affidavits of Perrie, D.C. sworn January 29, 2020, and Bogdan, D.C. sworn January 2, 2020, the two chiropractors who were to perform the IMEs, established that Loduca failed to appear for the IMEs (see mot, Inguanti aff, exhibit H; Brand Med. Supply, Inc. v Praetorian Ins. Co., 2017 NY Slip Op 50947[U], *1; Broadway Massage Therapy, P.C. v Citiwide Auto Leasing, 2017 NY Slip Op 50426[U], *2; Longevity Med. Supply, Inc. v Praetorian Ins. Co., 2015 NY Slip Op 50393[U], *1). The affidavits of defendant’s employees and an officer of the company defendant retained to provide mailing services establishing defendant’s regular mailing procedures adequately demonstrated defendant’s timely denial of plaintiff’s claims based on Loduca’s failure to attend the IMEs (see Bronx Acupuncture Therapy, P.C. v A. Cent. Ins. Co., 2017 NY Slip Op 51870[U], *1; Greenway Med. Supply Corp. v Hartford Ins. Co., 2017 NY Slip Op 50960[U], *1; Brand Med. Supply, Inc. v Praetorian Ins. Co., 2017 NY Slip Op 50947[U], *1; Broadway Massage Therapy, P.C. v Citiwide Auto Leasing, 2017 NY Slip Op 50426[U], *2).

In opposition, plaintiff argued that the affidavits of the examining chiropractors Perrie and Bogdan, which were sworn more than three years after Loduca’s purported nonappearances at the IMEs and failed to state the basis for their recollection, rendered their [*3]assertions as to Loduca’s nonappearances conclusory (Satya Drug Corp. v Global Liberty Ins. Co. of N.Y., 65 Misc 3d 127[A], 2019 NY Slip Op 51505[U], *1 [App Term, 1st Dept 2019]; Utica Acupuncture P.C. v Amica Mut. Ins. Co., 55 Misc 3d 126[A], 2017 NY Slip Op 50331[U], *1 [App Term, 1st Dept 2017]; Five Boro Med. Equip., Inc. v Praetorian Ins. Co., 53 Misc 3d 138[A], 2016 NY Slip Op 51481[U], *1 [App Term, 1st Dept 2016]; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U], *1 [App Term, 1st Dept 2016]). Conclusory affidavits and affirmations are insufficient to establish an assignor’s nonappearance at an IME (Compas Med., P.C. v Geico Ins. Co., 49 Misc 3d 140[A], 2015 NY Slip Op 51590[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). {**72 Misc 3d at 675}However, whether a failure to state a basis of recollection renders an affidavit regarding nonappearance at an IME conclusory has not been previously addressed by the Appellate Term, Second Department or any higher authority binding this court.^[FN*]

Here, this court finds that the affidavits of Perrie and Bogdan are not conclusory even though they did not specify a basis for their recollection of Loduca’s nonappearances as explained below.

Perrie and Bogdan both attested that they had personal knowledge of Loduca’s nonappearances because they were present in their offices on the dates of the scheduled IMEs and Loduca did not appear or contact them to cancel or reschedule the IMEs (see Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Plaintiff presented no evidence to support its assertions casting doubt on the personal knowledge of Perrie and Bogdan regarding Loduca’s nonappearances (Quality Health Prods. v Hertz Claim Mgt. Corp., 2012 NY Slip Op 51722[U], *2; see MB Advanced Equip., Inc. v New York Cent. Mut. Fire Ins. Co., 51 Misc 3d 151[A], 2016 NY Slip Op 50863[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). While a contemporaneously executed affidavit is more probative than an affidavit executed later (Williams v New York City Hous. Auth., 183 AD3d 523, 527 [1st Dept 2020]), plaintiff has not established that the Perrie and Bogdan affidavits were “inherently unworthy of belief” or otherwise “incredible as a matter of law” (Salako v Nassau Inter-County Express, 131 AD3d 687, 688 [2d Dept 2015]). Affidavits executed a significant time after the events to which the witness attested have only been rejected when other infirmities existed in them (see Cruz v Roman Catholic Church of St. Gerard Magella in Borough of Queens in the City of N.Y., 174 AD3d 782, 784 [2d Dept 2019] [conclusory]; Deutsche Bank Natl. Trust Co. v Cunningham, 142 AD3d 634, 635 [2d Dept 2016] [failed to attest plaintiff was note holder at time foreclosure action commenced]; Fredette v Town of Southampton, 95 AD3d 940, 943 [2d Dept 2012] [affidavit tailored to avoid consequences of earlier testimony]; Montanaro v Kandel, 288 AD2d {**72 Misc 3d at 676}275, 275 [2d Dept 2001] [examining physician failed to specify tests used to support conclusions]). In our instant matter, plaintiff has not shown that any of these infirmities existed. Further, Perrie and Bogdan generally confirmed that letters were sent to MES Solutions on the same date as Loduca’s nonappearances. Donovan attested that MES [*4]Solutions received letters from the examiners with whom IMEs were scheduled advising whether the claimant appeared. Defendant appended letters signed by Perrie and Bogdan to its motion (see mot, Inguanti aff, exhibit G). Considering that the Perrie and Bogdan affidavits sufficiently established Loduca’s nonappearance at the IMEs, plaintiff’s contentions that these witnesses’ letters did not indicate their presence in the office at the time of Loduca’s nonappearance were irrelevant and failed to raise factual issues regarding defendant’s defense of nonappearance at scheduled IMEs. As defendant noted in reply, plaintiff presented no evidence that Loduca attended or unsuccessfully attempted to attend the IMEs. This court finds that defendant has presented prima facie admissible evidence proving that there is no material issue of fact and that the controversy can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]), and that plaintiff has failed to raise factual issues requiring a trial (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2d Dept 2020]; Nova Chiropractic Servs., P.C. v Ameriprise Auto & Home, 58 Misc 3d 142[A], 2017 NY Slip Op 51882[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; K.O. Med., P.C. v IDS Prop. Cas. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51454[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

III. Order

Accordingly, it is ordered that defendant’s motion for summary judgment is granted and plaintiff’s complaint is dismissed.

Footnotes

Footnote *:This court recognizes that case law from the Appellate Term, First Department held that examining professionals’ affidavits regarding an assignor’s nonappearance were conclusory for failing to state a basis for their recollection in the affidavits.

CV-703358-19/QU

Plaintiff’s Counsel:

Law Offices of Gabriel & Shapiro, L.L.C.

3361 Park Avenue, Suite 1000

Wantagh, NY 11793

Defendant’s Counsel:

McDonnell Adels Klestzick, P.L.L.C.

401 Franklin Avenue

Garden City, NY 11530

I. Papers

The following papers were read on Defendant’s motion for summary judgment seeking dismissal of Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment seeking judgment on its claims against Defendant:

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated September 18, 2019 (“Motion“) and file stamped by the court on September 27, 2019. 1

Plaintiff’s Amended Notice of Cross-Motion seeking summary judgment and Amended Affirmation in Support and Opposition dated as of July 29, 2020 (“Cross-Motion”) and electronically filed with the court on November 18, 2020. 2

Defendant’s Affirmation in Opposition to Cross-Motion dated as of August 4, 2020 (“Opposition to Cross-Motion”) and electronically filed with the court on August 5, 2020. 3

II. Background

In a summons and complaint filed February 21, 2019, Plaintiff sued Defendant insurance company to recover a total of $5,477.97 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Cortes from July 2, 2018 to July 30, 2018 resulting from an automobile accident on May 23, 2018, plus attorneys’ fees and statutory interest (see Motion, Aff. of Schwarzenberg, Ex. F). The First cause of action was for recovery of a bill for services provided on July 30, 2018 (“First Bill“) in the amount of $10.00. The Third cause of action was for recovery of a $4,796.10 bill for services provided on July 13, 2018 (“Second Bill“). The Fifth cause of action was for recovery of a $513.18 bill for services provided on July 13, 2018 (“Third Bill“). The Seventh cause of action was for recovery of a $148.69 bill for services provided on July 2, 2018 (“Fourth Bill“). The Ninth cause of action was for recovery of a $10.00 bill for services provided on July 16, 2018 (“Fifth Bill“). The Second, Fourth, Sixth, Eighth, and Tenth causes of action sought recovery of attorneys’ fees for each of the separate bills.

Defendant moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to provide additional documentary verification within one-hundred twenty (120) days (11 NYCRR § 65-3.8[b][3]). Plaintiff cross-moved for summary judgment on its claims against Defendant. Both parties orally argued the motions before this Court on April 19, 2021.

III. Discussion and Decision

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

Insurers must pay or deny No-Fault benefit claims “within thirty (30) calendar days after [*2]receipt of the proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). “New York Law prohibits unlicensed individuals from organizing a professional service corporation for profit or exercising control over such entities” (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 404 [2019], see Business Corporation Law §§ 1507; 1508; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886 [2d Dept 2017]; Liberty Mut. Ins. Co. v Raia Med. Health, P.C., 140 AD3d 1029, 1031 [2d Dept 2016]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). “A provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York . . .” (11 NYCRR § 65-3.16[a][12]; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d at 886; Liberty Mut. Ins. Co. v Raia Med. Health, P.C., 140 AD3d at 1031; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d at 740). In the No Fault context, corporate practices evincing a willful, material noncompliance with licensing and incorporation statutes may establish a medical provider’s ineligibility to receive reimbursement (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405, see State Farm v Mallela, 4 NY3d 313, 321 [2005]; Radiology Today, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d 4, 7 [App Term 2d Dept 2011]). The elements of common law fraud need not be shown (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405) if noncompliance with the above described licensing requirement is established through admissible evidence.

Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). However, the defense that a health care provider is ineligible to receive No Fault insurance benefit payments is not subject to preclusion (All Boro Psychological Servs., P.C. v Auto One Ins. Co., 35 Misc 3d 136[A], 2012 NY Slip Op 50777[U] *2 [App Term 2d Dept 2012]; Radiology Today, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d at 6; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58, 59 [App Term 2d Dept 2006]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term 2006]).

In the instant matter, Defendant received Plaintiff’s Second Bill, Third Bill, and Fourth Bill on August 20, 2018, and the Fifth Bill on August 27, 2018, and denied the claims based on these bills on January 16, 2019. (see Motion, Schwarzenberg Aff. Ex. E). Defendant received the First Bill on September 11, 2018 and denied the claim based on this bill on January 28, 2019 (Id.). Defendant denied the claims for Plaintiff’s failure to provide requested verification. While Defendant denied Plaintiff’s claims well after the thirty (30) days required for timely payment or denial, Defendant may delay payment pending an investigation of Plaintiff’s alleged noncompliance with licensing and incorporation statutes, but only upon showing good cause to [*3]pursue the investigation (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405; State Farm v Mallela, 4 NY3d at 322).

A. Defendant’s Requests for Verification

“An applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply” (11 NYCRR § 65-3.5[o]).

In the instant matter and in a letter dated September 6, 2018, Defendant acknowledged receiving the Second Bill, Third Bill, Fourth Bill, and Fifth Bill and mailed to Plaintiff a request (“August Verification Request“) for additional verification (see Motion, Schwarzenberg Aff. Ex. A). Here, Plaintiff had one-hundred twenty (120) days to provide Defendant with requested verification under Plaintiff’s control or possession or a written explanation supporting Plaintiff’s failure to comply. In the August Verification Request, Defendant requested leases for twenty-four (24) different “office and practice locations,” an employment contract between Plaintiff and Shamalov PA, contracts for billing agreements covering the dates of service in the claims, account records for Chase Bank checking, savings, debit card, and Visa card from January 1, 2017 to date, Dr. Apazidis’ and Mr. Shamalov’s intake sheets and patient notes for each claim, W-2 forms issued by Plaintiff to Dr. Apazidis and Mr. Shamalov, and Plaintiff’s 2017 corporate tax return (see id.). In a letter dated September 26, 2018, Defendant acknowledged receiving the First Bill and mailed to Plaintiff a request (“September Verification Request“) (collectively with the August Verification Request, the “Verification Request“) for additional verification requesting the same documents as in the August Verification Request (see Motion Schwarzenberg Aff. Ex. C). Plaintiff was required to provide the verification requested in the August Verification Request by January 4, 2019, and the verification requested in the September Verification Request by January 24, 2019. In two (2) letters dated October 11 and November 2, 2018, Defendant made follow up requests for the documents (see Motion, Schwarzenberg Aff. Ex. B and D). The parties did not dispute that Plaintiff subsequently provided all the documents Defendant requested except for Plaintiff’s corporate tax returns for 2017, and account records for Chase Bank checking, savings, debit card, and Visa card.

B. Good Cause for Requested Verification

Defendant argued that Plaintiff’s 2017 corporate tax returns and account records for Chase Bank checking, savings, debit card, and Visa card were necessary to verify the medical necessity of the billed services, and whether the ownership, control, and operation of Plaintiff complied with New York State licensing requirements. Plaintiff countered that Defendant failed to respond to Plaintiff’s objections to the Verification Request, show good cause for the remaining documents requested, or substantiate the necessity of the request. The Court notes that both Plaintiff’s and Defendant’s supporting documents indicate that Plaintiff in the instant matter had various claims resulting from different assignors, including Plaintiff assignor in the matter before this Court, pending with the Defendant.

Contrary to Plaintiff’s contention, tax returns and bank statements were probative on whether a medical service provider complied with licensing laws (see All Boro Psychological Servs., P.C. v Auto One Ins. Co., 2012 NY Slip Op 50777[U] *1-2; Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 33 Misc 3d 64, 66 [App Term 2d Dept 2011], see Dore v Allstate Indem. Co., 264 AD2d 804, 804-05 [2d Dept 1999]). While mere allegations of fraud would be sufficient to sustain a motion to compel discovery of evidence of noncompliance with licensing laws (see Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 43 [App Term 2d Dept 2012]; Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d 153[A], 2012 NY Slip Op 50342[U] *2 [App Term 2d Dept 2012]), here, Defendant sought summary judgment, which requires admissible evidence (see Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3ed at 886; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d at 740; Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50493[U] *2 [App Term 2d Dept 2009]; Oleg Barshay, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 78 [App Term 2d Dept 2006]). In our instant matter, Defendant failed to support its good cause with admissible evidence for investigating Plaintiff’s alleged noncompliance with the licensing statutes as explained below.

Defendant presented an affidavit sworn July 24, 2019, in which Huddle, an investigator in Defendant’s Special Investigative Unit, detailed Defendant’s investigation of Plaintiff, as part of an alleged broader scheme of non-compliance with licensing laws, leading to the Verification Request at issue. In her affidavit, Huddle quoted Dr. Apazidis’ testimony at an examination under oath (“EUO“) to demonstrate Dr. Apazidis’ lack of knowledge of Plaintiff’s business operations, non-physician Shamalov’s unusually greater role in those operations, and inconsistencies with the documents Plaintiff provided in response to Defendant’s Verification Request regarding Shamalov’s bonus, the principal location of Plaintiff’s business, and the existence of a written contract between Plaintiff and the company retained to handle medical billing. Since Defendant failed to present the transcript of Dr. Apazidis’ EUO to support its motion, Huddle’s account of Dr. Apazidis’ EUO testimony is hearsay (see Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934, 935 [2d Dept 2021]; Wells Fargo Bank, N.A. v Sesey, 183 AD3d 780, 783 [2d Dept 2020]; Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc 3d 147[A], 2015 NY Slip Op 50756[U] *1 [App Term 2d Dept 2015]). Huddle also quoted an affirmation of Dr. Apazidis dated April 2, 2019, to illustrate an inconsistency between Dr. Apazidis’ claim that the business of Plaintiff was still growing so he could not pay himself his full salary and his testimony that Shamalov was paid $300,000.00 per year. Again, Defendant did not present Dr. Apazidis’ affirmation, which rendered Huddle’s assertion hearsay (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d at 935, see United Specialty Ins. v Columbia Cas. Co., 186 AD3d 650, 651 [2d Dept 2020]; Wells Fargo Bank, N.A. v Sesey, 183 AD3d at 783).

In Defendant’s Opposition to Cross-Motion, Defendant noted that the EUO transcripts were “unimportant, since the claim which is the subject of the motion for summary judgment was not the subject of the EUO, and plaintiff [did] not dispute any of the statements made in the Huddle affidavit” (Opposition to Cross-Motion, Schwarzenberg Aff. at 12). Here, the fact remains, however, that Defendant relied on the truth of Dr. Apazidis’ EUO testimony and his affirmation to establish good cause for requesting verification from Plaintiff which in the context [*4]of a summary judgment motion requires admissible evidence. Since Defendant failed to demonstrate its prima facie entitlement to a judgment as a matter of law, the court must deny Defendant’s motion for summary judgment (Pullman v Silverman, 28 NY3d 1060, 1063 [2016]; United Specialty Ins. v Columbia Cas. Co., 186 AD3d at 651-52; Matter of Long Is. Power Auth. Hurricane Sandy Litig., 165 AD3d 1138, 1140 [2d Dept 2018]; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d at 887). That Plaintiff did not dispute any of Huddle’s statements is irrelevant given that it is Defendant’s burden in the first instance to demonstrate its entitlement to a summary judgment.

C. Requirement that Insurer Advise Before Denial

“[A]n insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5(o) of this Subpart” (11 NYCRR §65-3.8[b][3]) (emphasis added). In pertinent part, 11 NYCRR §65-3.5[o] provides that the “insurer shall advise the applicant in the verification request that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.” Thus Defendant’s denial of Plaintiff’s claims for failing to provide requested verification was contingent upon Defendant advising Plaintiff of the consequences for noncompliance.

Here, Defendant’s Verification Request and Defendant’s follow up request letters dated October 11 and November 2, 2018 all advised that:

pursuant to 11 NYCRR 65-3.5(o), State Farm may deny the claim if NY Chiro and Rehab, P.C. does not provide within 120 calendar days from the date of this initial verification request all of the documents identified above under NY Chiro and Rehab, P.C.’s control or possession or written proof providing reasonable justification for the failure to comply…

(Motion, Schwarzenberg Aff. Ex. A, B, C and D). The Court notes that Plaintiff in the instant matter is Apazidis, M.D., P.C., not NY Chiro and Rehab, P.C.. Since Defendant’s letters advised that Defendant would deny Plaintiff’s claims if “NY Chiro and Rehab, P.C.” failed to comply with the verification request for documents under the control or in possession of “NY Chiro and Rehab, P.C.,” Defendant failed to comply with the requirement in 11 NYCRR § 65-3.5[o] that notices requesting verification advise Plaintiff that failure to provide the requested verification under its control within 120 days would allow Defendant to deny the claims. Given that “NY Chiro and Rehab P.C.” appears in the advisory of all four (4) separate letters, reference to that entity is less likely to be a typographical error (see Galetta v Galetta, 21 NY3d 186, 196 [2013]). Alleged typographical errors in correspondence have been given legal effect (see Iannucci v 70 Washington Partners, LLC, 51 AD3d 869, 870-71 [2d Dept 2008]). It is noted that Plaintiff presented a letter dated October 31, 2018, in which Plaintiff’s counsel advised Defendant that it did not represent NY Chiro and Rehab, to which Defendant referred in its letters (see Cross-Motion, Aff. of Justin Rosenbaum Ex. A). Plaintiff’s counsel, however, did not suggest any [*5]confusion by Plaintiff from Defendant’s reference to NY Chiro and Rehab in Defendant’s verification request letters addressed to Plaintiff. Here, even if Defendant’s letters furnished Plaintiff with constructive notice that Plaintiff’s claims would be denied if Plaintiff failed to provide requested verification within 120 days, which Defendant did not argue, that would have not satisfied the requirement pursuant to 11 NYCRR ｧ65 that Defendant must advise Plaintiff of the consequences.

Defendant’s motion for summary judgment dismissing Plaintiff’s complaint is denied.

D. Plaintiff’s Cross-Motion

Regarding the Cross-Motion, Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits was overdue” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 501; New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 648 [2d Dept 2014]; NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Here, Defendant’s denial of claim forms dated January 16 and 28, 2019, acknowledging receipt of Plaintiff’s claims in August 2018 constituted prima facie evidence that Defendant received Plaintiff’s claims and that the denial was overdue (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). However, an ineligibility of receiving No Fault insurance benefit due to non-compliance with licensing statutes defeats such prima facie showing.

Based on foregoing discussion, Defendant had identified the existence of evidence in Plaintiff’s exclusive control which raised the issue of Plaintiff’ ineligibility to receive No Fault benefit payments. Because the remaining requested verification, i.e., Plaintiff’s 2017 corporate tax return and various financial statements, are still outstanding, factual issues exist as to Plaintiff’ eligibility to receive No Fault benefit payments. Since Defendant’s defense of Plaintiff’s ineligibility to receive No Fault benefit payments is not precluded by Defendant’s untimely denial of Plaintiff’s claims and Plaintiff still has not provided the requested verification, this Court also must deny Plaintiff’s Cross-Motion (CPLR 3212[f]; RLC Med., P.C. v Allstate Ins. Co., 29 Misc 3d 134[A], 2010 NY Slip Op 51962[U] *1 [App Term 2d Dept 2010]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *3 [App Term 2d Dept 2010]; Five Boro Psychological Servs., P.C. v AutoOne Ins. Co., 27 Misc 3d 89, 90 [App Term 2d Dept 2010]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment is denied, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgement is denied.

This constitutes the DECISION and ORDER of the Court.

Dated: May 26, 2021

Queens County Civil Court

_____________________________________

Honorable Wendy Changyong Li, J.C.C.

CV-704628-19/QU

Plaintiff’s Counsel:

Law Offices of Gabriel & Shapiro LLC

3361 Park Avenue, Suite 1000

Wantagh, NY 11793

Defendant’s Counsel:

Michael Seth Nightingale

100 Garden City Plaza, Suite 414

Garden City, NY 11530

I. Papers

The following papers were read on Defendant’s motion for summary judgment seeking dismissal of Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated August 21, 2019 (“Motion“) and file stamped by the court on August 26, 2019. 1

Plaintiff’s Affirmation in Opposition dated and electronically filed with the court on November 23, 2020 (“Opposition“). 2

Defendant’s Reply Affirmation dated and electronically filed with the court on December 4, [*2]2020 (“Reply“). 3

II. Discussion and Decision

Defendant moved for summary judgment dismissing Plaintiff’s complaint on the ground that Workers Compensation insurance was primary and thus barred Plaintiff’s claim for No-Fault benefits. Plaintiff opposed Defendant’s motion for summary judgment.

“[P]rimary jurisdiction with respect to the determination as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board” (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; Dunn v American Tr. Ins. Co., 71 AD3d 629, 629-30 [2d Dept 2010], see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752, 754 [2d Dept 2009]). By moving for summary judgment dismissing Plaintiff’s complaint, Defendant asked this Court to determine the applicability of the Workers’ Compensation Law. In our instant matter, Defendant failed to support its contention regarding the applicability of the Workers’ Compensation Law with admissible evidence. Here, Defendant laid no foundation for the transcript of a recording of assignor’s unsworn statement, in which he admitted he was operating his employer’s vehicle for business purposes prior to the accident (see Motion, Aff. of Michael S. Nightingale, Ex. 2). The police accident report was also inadmissible because it was neither certified (Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691, 692 [2d Dept 2016]; Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795, 796 [2d Dept 2015]), nor sworn or supported with the affidavit of a witness with personal knowledge of the facts (LMS Med. Care v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] *1 [App Term 2d Dept 2011]).

Even had Defendant presented admissible evidence, the applicability of the Workers’ Compensation Law to this case must be resolved by the Workers’ Compensation Board (Compas Med., P.C. v American Tr. Ins. Co., 49 Misc 3d 146[A], 2015 NY Slip Op 51675[U] *1 [App Term 2d Dept 2015]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 523761[U] *2 [App Term 2d Dept 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] *2 [App Term 2d Dept 2010]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] *2 [App Term 2d Dept 2010]). While Defendant cited Great Health Care Chiropractic, P.C. v Lancer Ins. Co. (42 Misc 3d 145[A], 2014 NY Slip Op 50340[U] *1 [App Term 2d Dept 2014]) to support its motion, that case further supports the Court’s conclusion. Accordingly, this Court must hold Defendant’s motion in abeyance pending an application to the Workers’ Compensation Board for determination of the parties’ rights under the Workers’ Compensation Law (Compas Med., P.C. v American Tr. Ins. Co., 2015 NY Slip Op 51675[U] *1; Great Health Care Chiropractic, P.C. v Lancer Ins. Co., 2014 NY Slip Op 50340[U] *1; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 2011 NY Slip Op 52371[U] *2; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 2010 NY Slip Op 51738[U] *2).

III. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment is held in abeyance pending determination of the Workers’ Compensation Board of the applicability of the Workers’ Compensation Law to this case, and it is further

ORDERED that the parties shall advise the Court of the status of any determination of [*3]the Workers’ Compensation Board by June 1, 2021.

This constitutes the DECISION and ORDER of the Court.

Dated: April 30, 2021

Queens County Civil Court

_____________________________

Honorable Wendy Changyong Li, J.C.C.