CV-702516-19/QU

Plaintiff’s Counsel:

Law Offices of Gabriel & Shapiro

3361 Park Avenue, Suite 1000

Wantagh, NY 11793

Defendant’s Counsel:

Callinan & Smith, LLP

3361 Park Avenue, Suite 104

Wantagh, NY 11793

Wendy Changyong Li, J.

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 October 1, 2019 (“Motion”) and file stamped by the court on November 7, 2019.1

Plaintiff’s Affirmation in Opposition (“Opposition”) dated and electronically filed with the court on October 5, 2020. 2

Defendant’s Affirmation in Reply (“Reply”) dated and electronically filed with the court on November 16, 2020. 3

II. Background

In a summons and complaint filed on February 7, 2019, Plaintiff sued Defendant [*2]insurance company to recover a total of $5,739.44 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Shantay J.R. from October 2017 to April 2018, plus attorneys’ fees and statutory interest. The First cause of action was for recovery of a bill for services provided October 18 to November 2, 2017 (“First Bill“) in the amount of $405.60. The Third cause of action was for recovery of a $333.12 bill for services provided November 3 to 15, 2017 (“Second Bill“). The Fifth cause of action was for recovery of a $130.32 bill for services provided November 17 to 30, 2017 (“Third Bill“). The Seventh cause of action was for recovery of a $80.02 bill for services provided on October 13, 2017 (“Fourth Bill“). The Ninth cause of action was for recovery of a $148.69 bill for services provided on October 11, 2017 (“Fifth Bill“). The Eleventh cause of action was for recovery of a $92.97 bill for services provided on November 15, 2017 (“Sixth Bill“). The Thirteenth cause of action was for recovery of a bill in an unspecified amount for services provided at an unspecified time (“Seventh Bill“). The Fifteenth cause of action was for recovery of a $204.41 bill for services provided on October 11, 2017 (“Eighth Bill“). The Seventeenth cause of action was for recovery of a $204.41 bill for services provided on November 15, 2017 (“Ninth Bill“). The Nineteenth cause of action was for recovery of a $2,597.08 bill for services provided from December 26, 2017 to April 12, 2018 (“Tenth Bill“). The Twenty-First cause of action was for recovery of a $1,542.82 bill for services provided from October 13 to December 28, 2017. In a stipulation dated May 15, 2019, the parties amended such Twenty-First cause of action to recover a $593.76 bill for services provided December 1 to 28, 2017 (“Eleventh Bill“) (see Motion, Soriano Aff., Ex. C). This stipulation effectively reduced the amount Plaintiff sought to recover to $4,790.38. The Second, Fourth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, Sixteenth, Eighteenth, Twentieth, and Twenty-Second causes of action sought recovery of attorneys’ fees for each of the separate bills. Unlike the First Bill, Second Bill, Third Bill, Fourth Bill, Fifth Bill, Sixth Bill, Eighth Bill, and Ninth Bill, the Tenth Bill and Eleventh Bill are composed of several smaller bills for dates of service within the range of service dates alleged in the complaint.

Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO“), or alternatively for judgment that Defendant established its prima facie case. Plaintiff opposed Defendant’s motion for summary judgment. No cross-motion was filed by Plaintiff. An oral argument by both parties was conducted by this Court on April 8, 2021.

III. Discussion

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 [*3]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 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]).

Plaintiff’s Thirteenth Cause of Action

As noted above, Plaintiff’s Thirteenth cause of action did not specify the amount of the bill or the dates of service for which the bill was issued. In its answer, Defendant denied knowledge or information sufficient to form a belief as to all the allegations in Plaintiff’s complaint, but asserted as the Third Affirmative Defense that the “complaint fail[ed] to state a proper cause of action as against [the] answering defendant” (Motion, Soriano Aff. Ex. B). Moreover, Plaintiff addressed only ten (10) bills in its Opposition, even though eleven (11) bills were alleged in Plaintiff’s complaint. Here, this Court grants Defendant’s motion for summary judgment dismissing Plaintiff’s Thirteenth cause of action for failure to state a cause of action (CPLR 3211[a][7]; 3212).

Plaintiff’s First, Seventh and Fifteenth Causes of Action

Plaintiff’s First, Seventh and Fifteenth causes of action concerned the First Bill for $405.60, Fourth Bill for $80.02, and Eighth Bill for $204.41. At the outset, the Court notes that Plaintiff alleged in its First cause of action that the amount of its First Bill was $405.60 and that no payment was made by Defendant. Defendant’s supporting evidence, however, indicated that the original First Bill was indeed in the amount of $456.36 and that Defendant’s adjuster, Kurz, allowed $405.60 as of March 1, 2018, leaving a balance of $50.76 (see Aff. Of Soriano, Ex. X and Y). Because Plaintiff only prayed for $405.60 regarding its First Bill in its compliant, this Court will only address Plaintiff’s First Bill in the amount of $405.60, not $456.36. Defendant argued that the foregoing described causes of action should be dismissed because the above three (3) bills were paid.

To support its motion, Defendant presented explanations of benefits dated November 22 and December 28, 2017, in which Defendant acknowledged receiving the three (3) bills on November 13, 2017 (see Motion, Soriano Aff. Ex. T, V, and X). The explanations of benefits dated November 22 and December 28, 2017 (“November and December EOB“), advised Plaintiff that Defendant received the bills but was delaying payment “pending the Examination Under Oath of the above-mentioned claimant” (id.). The explanations of benefits included in the [*4]November and December EOB identified the claimant as J.R. (see id.). Here, the November and December EOB indicated that Defendant sought verification from J.R. who is Plaintiff’s assignor, but not Plaintiff. This Court notes that Defendant allegedly delayed its payment to the above three (3) bills pending EUO on Plaintiff’s assignor, not on Plaintiff itself, based on Defendant’s supporting documents presented in the Motion. Since letters that do not request verification to a plaintiff are insufficient to delay an insurer’s time to pay or deny a claim by such plaintiff (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]), Defendant’s November and December EOB failed to toll Defendant’s time to pay the claims submitted by Plaintiff.

On another note, this Court does not have a reason to believe, based on the evidence presented by Defendant, that the language in Defendant’s November and December EOB, indicating that the delay of payment pending only Plaintiff’s assignor’s EUO, were typographical errors. Here, Defendant did not address this issue in the Motion or in the Reply. Furthermore, Defendant’s explanations of benefits regarding the Second Bill, Third Bill, Sixth Bill, Ninth Bill, and Eleventh Bill noted that payment was being delayed pending an EUO of both claimant (i.e., Plaintiff’s assignor) and provider (i.e., Plaintiff) (see Motion, Soriano Aff. Ex. Z, BB, DD, FF, HH, and JJ).

While Defendant presented evidence that it paid the First Bill, Fourth Bill, and Eighth Bill on March 1, 2018 (see Motion, Soriano Aff. Ex. ZZ and AAA), Defendant’s failure to toll the time to pay the bills received November 13, 2017, rendered the payments untimely. As such, Defendant failed to meet its initial burden of demonstrating entitlement to dismissal of Plaintiff’s First, Seventh, and Fifteenth causes of action, and Defendant’s motion for summary judgment dismissing these causes of action must be denied (Neptune Med. Care, P.C. v Dairyland Ins. Co., 53 Misc 3d 152[A], 2016 NY Slip Op 51705[U] *1 [App Term 2d Dept 2016]); Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 42 Misc 3d 131[A], 2013 NY Slip Op 52225[U] *2 [App Term 2d Dept 2013], see Natural Therapy Acupuncture, P.C. v American Tr. Ins. Co., 51 Misc 3d 129[A], 2016 NY Slip Op 50389[U] * 1 [App Term 2d Dept 2016]).).

The failure to timely pay these claims precludes Defendant from raising defenses to non-payment of the claims (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; New York & Presbyt. Hosp. v Eagle Ins. Co., 17 AD3d 646, 647 [2d Dept 2005]). In addition, “[b]y statute, overdue payments earn monthly interest at a rate of two percent and entitle [Plaintiff] to reasonable attorneys’ fees incurred in securing payment of a valid claim” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318, see Ins. Law § 5106[a]; 11 NYCRR §§ 65-3.9[a], 3.10[a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 278). In the instant matter, although Defendant paid Plaintiff for the First Bill, Fourth Bill and Eighth Bill as alleged in Plaintiff’s First, Seventh and Fifteenth causes of action, such payments were untimely. As a result, Plaintiff is entitled to a statutory interest (11 NYCRR 65-3.9[c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 207-08 [2d Dept 2009]). The amount of Plaintiff’s attorneys’ fees for the First, Seventh and [*5]Fifteenth causes of action is governed by statute and regulation (Insurance Law § 5106[a]; 11 NYCRR §§ 65-3.10[a]; 65-4.6[c] and [d]). Although Plaintiff would have been entitled to summary judgment on statutory interest and attorneys’ fees based on those causes of action (Nyack Hosp. v. Encompass Ins. Co., 23 AD3d 535, 536 [2d Dept 2005]; Optimal Well-Being Chiropractic, P.C. v MVAIC, 46 Misc 3d 134[A], 2014 NY Slip Op 51861[U] * 2 [App Term 2d Dept 2014]) if they were prayed for, here, Plaintiff did not cross move for summary judgment. Consequently, this Court will not award Plaintiff with statutory interest or attorney’s fee based on the motion papers currently before this Court.

Plaintiff’s Third, Fifth, Ninth, Eleventh, Seventeenth, Nineteenth, and Twenty-First Causes of Action

Defendant argued that the Third, Fifth, Ninth, Eleventh, Seventeenth, Nineteenth, and Twenty-First causes of action based respectively on the Second Bill, Third Bill, Fifth Bill, Sixth Bill, Ninth Bill, Tenth Bill, and Eleventh Bill were properly denied because Defendant timely denied the claims based on Plaintiff’s failure to attend duly scheduled EUOs.

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).

To support its motion, Defendant presented the first request letter dated December 11, 2017, scheduling the EUO for January 9, 2018 (see Motion, Soriano Aff., Ex. G). Defendant also presented a letter from Plaintiff’s counsel dated January 3, 2018, which acknowledged receipt of the December 11, 2017 scheduling letter, but objected to the EUO (see Motion, Soriano Aff. Ex. K) on grounds addressed more fully below. Here, such evidence established timely submission of the EUO request by Defendant (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2 [App Term 2d Dept 2017]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1. In addition, after Plaintiff failed to appear for the January 9, 2018 EUO, Defendant timely sent a second scheduling letter dated January 10, 2018, which scheduled the EUO for January 25, 2018 (see Motion, Soriano Aff. Ex. H) (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]). The transcripts of the EUO proceedings (see Motion, Soriano Aff. Ex. J and M) constituted adequate proof of Plaintiff’s nonappearance at the 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., 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 appended to the Motion sworn October 31, 2019, Mueller, Defendant’s litigation examiner, established Defendant’s claim processing and standard mailing procedures designed to ensure timely mailing and the timely denial of Plaintiff’s claims within thirty (30) [*6]days after the last scheduled 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). Regarding the Second Bill, Third Bill, Sixth Bill, Ninth Bill, and two of the bills included within the Eleventh Bill, for which Plaintiff submitted claims to Defendant before Plaintiff’s second non-appearance at an EUO, Defendant presented explanations of benefits, which delayed payment pending EUOs of both claimant (i.e., assignor) and provider (i.e., Plaintiff) (see Motion, Soriano Aff. Ex. Z, BB, DD, FF, HH, and JJ). Since Defendant timely mailed the EUO request letters to Plaintiff, these explanations of benefits, which requested verification from Plaintiff, tolled Defendant’s time to pay or deny the claims submitted by Plaintiff (Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] *1 [App Term 2d Dept 2017]). Finally, with respect to the Tenth Bill and a bill included within the Eleventh Bill, which were submitted after Plaintiff’s second non-appearance at an EUO, Defendant presented the explanations of benefits and denial of claim forms which denied the claims based on these bills for Plaintiff’s failure to attend the EUOs (see Motion, Soriano Aff. Ex. LL, MM, NN, OO, PP, QQ, RR, SS, TT, UU,VV, WW, XX, and YY). Therefore, Defendant’s denials of the Third, Fifth, Ninth, Eleventh, Seventeenth, Nineteenth, and Twenty-First causes of action based on the Second Bill, Third Bill, Fifth Bill, Sixth Bill, Ninth Bill, Tenth Bill, and Eleventh Bill on February 5, 2018 and subsequent to that date were timely (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757, see 11 NYCRR §§ 65-3.5[a]; 65-3.5[a]). Defendant’s evidence that it requested Plaintiff’s appearance at EUOs twice, that Plaintiff failed to appear both 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).

IV. Plaintiff’s Opposition to Defendant’s Motion

In opposition, Plaintiff contended that factual issues existed precluding Defendant’s motion for summary judgment.

Plaintiff contended that Defendant failed to respond to Plaintiff’s objections to the EUOs. In the January 3, 2018 letter, Plaintiff’s counsel objected to Plaintiff’s EUO request based on the ground that the December 11, 2017 request letter from Defendant’s counsel did not identify the dates of service or state objective reasons for requesting an EUO and argued that invoking State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]) did “not allow a carrier to obtain any and all information it request[ed]” (Motion, Soriano Aff. Ex. K). Plaintiff’s counsel also notified Defendant’s counsel that Plaintiff required $1,000.00 as reimbursement for loss of wages for attending an EUO.

Here, this Court’s research revealed no case law or statutory or regulatory authority that a letter objecting to an EUO tolls or delays the time for a No-Fault benefit applicant to appear for an EUO. The “insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested” (11 NYCRR § 65-3.5[c]). A letter objecting to an EUO does, however, preserve the No Fault benefit applicant’s objections to the reasonableness of a requested EUO for litigation (see 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]; Starcar Med. Servs. v State Farm Mut. Auto. Ins. Co., 53 Misc 3d 133[A], 2016 NY Slip Op [*7]51415[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]). In our instant case, regarding the objections Plaintiff’s counsel raised in its January 3, 2018 objection letter and in opposition to the Motion, the Court notes that Defendant’s counsel’s December 11, 2017 EUO request letter indeed indicated the claim number and date of loss which Plaintiff indicated on each claim Plaintiff submitted to Defendant. Moreover, “[a]ny requests by an insurer for additional verification need not be made on any prescribed or particular form” (11 NYCRR § 65-3.5[b]). 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]). Based on the evidence presented before this Court, it appears that Plaintiff’s EUO request letter dated December 11, 2017 did not cite State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), as Plaintiff’s counsel alleged, and has complied with the requirement that it advise that Plaintiff “will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request” (11 NYCRR § 65-3.5[e]). Further, a request for a flat fee for attending an EUO is improper (Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] *1 [App Term 2d Dept 2016]).

Contrary to Plaintiff’s position, Defendant in fact responded to Plaintiff’s letters objecting to the EUOs (see Motion, Soriano Aff. Ex. L, O and Q) 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). Finally, Plaintiff cited Matter of Progressive Cas. Ins. Co. [Elite Med. Supply of NY, LLC] (162 AD3d 1471 [4th Dept 2018]), which held that claimants objecting to verification requests were entitled to have an arbitrator to decide controversy, but which had no bearing on the instant matter.

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 third, fifth, ninth, eleventh, seventeenth, nineteenth, and twenty-first causes of action 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 [*8]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 dismissal of Plaintiff’s third, fifth, ninth, eleventh, seventeenth, nineteenth, and twenty-first causes of action.

Plaintiff’s Second, Fourth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, Sixteenth, Eighteenth, Twentieth, and Twenty-Second Causes of Action

This Court notes that in Plaintiff’s second, fourth, sixth, eighth, tenth, twelfth, fourteenth, sixteenth, eighteenth, twentieth, and twenty-second causes of action, Plaintiff improperly pleaded claims for attorneys’ fees based on each individual bill. It is well established by case law that in No-Fault actions, attorneys’ fees are calculated based on a single insured, not on each bill submitted by a provider (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 26 Misc 3d 140[A], 2010 NY Slip Op 50264[U] *2 [App Term 2d Dept 2010]). As discussed above, this Court finds that Defendant failed to timely pay the claims under the first, seventh and fifteenth causes of action, which entitles Plaintiff to recover attorneys’ fees (Insurance Law § 5106[a]; 11 NYCRR 65-3.9[a]; 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 278). Given that Plaintiff’s first, seventh and fifteenth causes of action survive summary judgment dismissal, the Court dismisses the improperly pleaded second, fourth, sixth, eighth, tenth, twelfth, fourteenth, eighteenth, twentieth, and twenty-second causes of action, but preserves the sixteenth cause of action for attorneys’ fees regarding the first, seventh, and fifteenth causes of action.

V. Decision

As discussed above, although Defendant paid the bills pleaded in Plaintiff’s first, seventh and fifteenth causes of action, Defendant paid those bills untimely and Plaintiff is entitled to recovery attorney’s fees and statutory interest. As a result, Plaintiff’s first, seventh and fifteenth causes of action survive Defendant’s motion for summary judgement to dismiss. Although Plaintiff improperly pleaded claims for attorneys’ fees based on each individual bill in its respective eleven (11) causes of action, this Court preserves Plaintiff’s sixteenth cause of action but otherwise dismisses other causes of action regarding attorneys’ fees in order to address the attorney’s fee for the first, seventh, and fifteenth causes of action. Because Plaintiff did not cross-move for summary judgement, here, this Court will not grant Plaintiff with attorney’s fee or statutory interest sua sponte. The rest of Plaintiff’s causes of action are dismissed due to Plaintiff’s failure to attend scheduled EUO.

VI. Order

Accordingly, it is ORDERED that Defendant’s Motion is granted to the extent of dismissing Plaintiff’s second, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, and twenty-second causes of action based on Plaintiff’s Second Bill, Third Bill, Fifth Bill, Sixth Bill, Seventh Bill, Ninth Bill, Tenth Bill and Eleventh Bill and the separately pleaded claims for attorneys’ fees, but is otherwise denied, and it is further

ORDERED that Plaintiff’s first, seventh, and fifteenth causes of action to recover the First, Bill, Fourth Bill and Eighth Bill, respectively in the amounts of $405.60, $80.02 and [*9]$204.41, for services provided respectively, from October 18 through November 2, 2017, on October 13, 2017, and on October 11, 2017, shall proceed to trial only on the issue of the amount of statutory interest, and it is further

ORDERED that Plaintiff’s sixteenth cause of action to recover attorneys’ fees shall proceed to trial.

This constitutes the DECISION and ORDER of the Court.

Dated: April 29, 2021
Queens County Civil Court
_____________________________________

Honorable Wendy Changyong Li, J.C.C.

CV-704182-19/QU

Plaintiff’s Counsel:

Gitelis Law Firm, P.C.

2004 Coney Island Avenue, 2d Floor

Brooklyn, NY 11223

Defendant’s Counsel:

Hollander Legal Group, P.C.

105 Maxess Road, Suite S128

Melville, NY 11747

 Papers

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

Papers Numbered

Defendant’s Notice of Motion seeking summary judgment and Affirmation 1In Support dated July 29, 2019 (“Motion“) and file stamped by the court on August 7, 2019.

Plaintiff’s Affirmation in Opposition dated September 25, 2019 (“Opposition“). 2

Defendant’s Affirmation in Reply dated February 4, 2020 (“Reply“) 3and electronically filed with the court June 8, 2020.

Background

In a summons and complaint filed on March 1, 2019, Plaintiff sued Defendant insurance company to recover $9,609.62 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Seleznyov from February to July 2018, plus attorneys’ fees and statutory interest. Defendant moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO”), or alternatively for judgment that Defendant established its prima facie case. Plaintiff opposed the motion.

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 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). 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 [*2]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]).

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). To support its motion, Defendant presented the first demand letter dated April 5, 2018, scheduling the EUO for May 1, 2018, (see Motion, Aff. of Drapan, Ex. X). Further, in an affidavit sworn July 29, 2019, Hollander, president of Defendant’s law firm, attested to the standard office mailing procedures for sending EUO request letters (see Motion, Drapan Aff. Ex. GG), which established timely submission of the EUO request (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2 [App Term 2d Dept 2017]; 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]). Although Seleznyov failed to appear for the EUO on May 1, 2018 with advanced notice, he appeared with counsel for the EUO rescheduled for May 30, 2018. Seleznyov’s counsel had a conflicting appointment, however, which did not allow the EUO to be completed (see Motion, Drapan Aff. Ex. AA). While a mutually agreed rescheduling prior to an EUO does not constitute a failure to appear (Apple Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] *1 [App Term 2d Dept 2015]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 2013 NY Slip Op 52005[U] *1; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] * 2 [App Term 2d Dept 2012]), there is no evidence of such agreement despite Defendant’s acknowledgement that the law firm representing Seleznyov contacted Defendant’s counsel the day before the EUO scheduled on May 1, 2018, to advise that Seleznyov would not appear. Defendant also presented a letter dated June 5, 2018, which scheduled the continued EUO for June 26, 2018 (see Motion, Drapan Aff. Ex. BB), and, a letter dated June 28, 2018, which scheduled the continued EUO for July 25, 2018 (see Motion, Drapan Aff. Ex. DD), as well as a follow up letter dated June 29, 2018 (see Motion, Drapan Aff. Ex EE). These subsequent EUO scheduling letters timely scheduled the continued EUOs after each time Seleznyov failed to appear for the respective scheduled EUO (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]). The transcripts of the EUO proceedings (see Motion, Drapan Aff. Ex. Y, CC, FF) constituted adequate proof of Seleznyov’s nonappearance at the 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., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). Although Seleznyov appeared for one EUO, Defendant’s evidence still established Seleznyov’s failure to appear for an initial EUO on May 1, 2018, and a [*3]follow-up EUOs on June 26 and July 25, 2018, to prove Plaintiff’s failure of a condition precedent to Defendant’s duty to pay the claims (see Apple Massage Therapy, P.C. v Adirondack Ins. Exch., 56 Misc 3d 132[A], 2017 NY Slip Op 50935[U] *2 [App Term 2d Dept 2017]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] *2 [App Term 2d Dept 2013]).

The affidavits of Mclendon, Operations Manager of Defendant’s agent for processing incoming and outgoing mail, established Defendant’s standard mailing procedures designed to ensure timely mailing and the timely denial of Plaintiff’s claims within 30 days after the last scheduled EUO at which Seleznyov 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). Therefore, Defendant’s denial of these claims on August 3, 2018 was timely (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757, see 11 NYCRR §§ 65-3.5[a]; 65-3.5[a]). Defendant’s evidence that it requested Seleznyov’s appearance at the continued EUOs twice after the EUO for which he did appear and testify, that he failed to appear both times for the scheduled continued EUOs and that Defendant denied Plaintiff’s claim on such 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). Finally, Defendant’s evidence demonstrated that it paid a bill from Plaintiff that Defendant received on March 30, 2018 (see Motion, Drapan Aff. Ex K).

In opposition, Plaintiff presented no contrary evidence, but merely argued generally that Defendant’s evidence was inadmissible. In the instant matter, Defendant denied Plaintiff’s claims on the ground that Plaintiff assignor failed to attend scheduled EUO. In its Motion, Defendant presented various affidavits documenting Plaintiff assignor’s failure to attend the scheduled respective continued EUOs. This Court finds such affidavits admissible. Defendant also presented affidavits establishing its timely denial of Plaintiff’s claims, and this Court finds such affidavits also admissible. If Plaintiff were to present affidavit indicating that Plaintiff assignor indeed had attended such scheduled respective continued EUOs or that Plaintiff did not timely receive Defendant’s denial of claims, a factual issue would have been raised warranting a trial. Here, Plaintiff did not. 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 and 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 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]). Although Plaintiff also argued without presenting any evidence, that Defendant failed to establish that its denials of claim were issued in duplicate, Mclerndon’s affidavits were sufficient to establish that Defendant’s explanations of review and denial of claim forms were submitted in duplicate (Lenox Hill Radiology, P.C. v Redland Ins. Co., 37 Misc 3d 140[A], 2012 NY Slip Op 52263[U] [*4]*1 [App Term 2d Dept 2012]). In any event, the failure to present a denial of claim in duplicate, standing alone, is not fatal to Defendant’s defense (Mollo Chiropractic, PLLC v American Commerce Ins. Co., 42 Misc 3d 66, 69 [App Term 2d Dept 2013]). Finally, in light of the Court’s dismissal of Plaintiff’s complaint, consideration of Defendant’s evidence that Plaintiff’s claims exceeded the applicable fee schedules is academic.

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 clerk is directed to dispose of this index number for all purposes.

This constitutes the DECISION and ORDER of the Court.

Dated: April 16, 2021

Queens County Civil Court

Honorable Li, J.C.C.

CV-724222-19/QU

Plaintiff’s Counsel:
Gabriel & Shapiro, L.L.C.
2 Lincoln Avenue, Suite 302
Rockville Centre, NY 11570

Defendant’s Former Counsel:
Bruno, Gerbino & Soriano, LLP
445 Broad Hollow Road, Suite 420
Melville, New York, 11747

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

Papers

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

PapersNumbered

Defendant’s Notice of Motion seeking summary judgment and Supporting1

Affirmation dated as of January 10, 2020 (“Motion”) and entered by the court on

February 3, 2020.

Plaintiff’s Notice of Cross-Motion seeking summary judgment and Affirmation2

in Support dated as of October 16, 2020 (“Cross-Motion”) and electronically filed

with the court on October 19, 2020.

Defendant’s Affirmation to Cross-Motion dated as of October 20, 2020 (“Reply”) and

electronically filed with the court on October 20, 2020.3

Background

In a summons and complaint filed on October 24, 2019, Plaintiff sued Defendant insurance company to recover a total of $2,034.58 in unpaid first party No-Fault benefits for chiropractic services provided to Plaintiff’s assignor Martinez throughout 2018, plus attorneys’ fees and statutory interest. The First cause of action was for recovery of a $92.48 bill for services provided May 8 to 9, 2018 (“First Bill“). The Third cause of action was for recovery of a $458.16 bill for services provided June 18 to July 11, 2018 (“Second Bill“). The Fifth cause of action was for recovery of a $285.94 bill for services provided April 2 to 13, 2018 (“Third Bill“). The Seventh cause of action was for recovery of a $226.96 bill for services provided July 17 to 27, 2018 (“Fourth Bill“). The Ninth cause of action was for recovery of a $138.72 bill for services provided September 6 to 14, 2018 (“Fifth Bill“). The Eleventh cause of action was for recovery of a $231.20 bill for services provided August 10 to 27, 2018 (“Sixth Bill“). The Thirteenth cause of action was for recovery of a $92.48 bill for services provided August 2 to 3, 2018 (“Seventh Bill“). The Fifteenth cause of action was for recovery of a $369.92 bill for services provided April 17 to May 2, 2018 (“Eighth Bill“). The Seventeenth cause of action was for recovery of a $138.72 bill for services provided June 11 to 15, 2018 (“Ninth Bill“). The Second, Fourth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, Sixteenth, and Eighteenth causes of action sought recovery of attorneys’ fees for each of the separate bills.

Defendant now moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO“) and failed to timely submit a claim to Defendant, or alternatively for judgment that Defendant established its prima facie case. Plaintiff cross-moved for summary judgment on its claims against Defendant. After [*2]various adjournments, the motion papers were deemed to be fully submitted and subsequently assigned to this Court during the coronavirus pandemic. An oral argument by both parties was conducted by this Court on March 17, 2021.

Discussion and Decision

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). Noncompliance with an insurance policy provision requiring disclosure through an examination under oath 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]). Regarding notification of the EUO, the insurer must present proof of the actual mailing or its standard office practices that ensure notices “are properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016]; Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051 [2d Dept 2015]). An insurer must request verification within ten (10) days after receipt of claim (11 NYCRR § 65-3.5[a], see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604 [2d Dept 2011]).

In the instant matter, Plaintiff alleged that Defendant failed to timely pay or deny nine (9) separate bills for chiropractic services provided from April to September 2018. Defendant denied receiving Plaintiff’s Second Bill. With respect to the eight (8) remaining bills, Defendant maintained that it properly denied the claims based on those bills because Plaintiff failed to attend EUOs.

Plaintiff’s Second Bill/Plaintiff’s Third Cause of Action

Regarding Plaintiff’s Second Bill in the amount of $458.16 for chiropractic services rendered from June 18 to July 11, 2018 that Plaintiff prayed for in its third cause of action, Defendant denied receiving the bill. Defendant presented an affidavit sworn January 7, 2020, in which Overly, an employee of IDS Property Casualty Insurance Company, which works for Defendant, attested in detail to Defendant’s office practices and procedures for processing claims it received and that a records search revealed no bill for $458.16 for service performed from June [*3]18 to July 11, 2018. Here, such evidence sufficiently demonstrated that Defendant did not receive Plaintiff’s claim in the amount of $458.16 (Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] *1 [App Term 2d Dept 2013]; Vincent Med. Servs., P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 158[A], 2012 NY Slip Op 50431[U] *3 [App Term 2d Dept 2012]). In opposition, Plaintiff presented the affirmation of Moroff, a partner in Plaintiff’s law firm, who attested to the firm’s standard procedures for processing bills it received and submitting them to the insurer for payment (see Cross-Motion, Aff, of John E. Fagan Ex. B). An affidavit of mailing attached to Moroff’s affirmation indicated that the bill was mailed on July 24, 2018. Contrary to Defendant’s contention, Plaintiff properly used an affirmation from Moroff, instead of an affidavit because Moroff is not a party to this action (see Finger v Saal, 56 AD3d 606, 607 [2d Dept 2008]; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466, 466 [2d Dept 2004]; Radiology Today, P.C. v Mercury Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50148[U] *1 [App Term 2d Dept 2012]). Here, Plaintiff has raised factual issues regarding its timely submission of the Second Bill (BAB Nuclear Radiology, P.C. v Mercury Cas. Co., 50 Misc 3d 147[A]; 2016 NY Slip Op 50318[U] *1 [App Term 2d Dept 2016]; Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] *1 [App. Term 2d Dept 2016]), and such issue must be resolved at trial.

Plaintiff’s Third Bill and Eighth Bill/Plaintiff’s Fifth and Fifteenth Causes of Action

Defendant acknowledged receiving Plaintiff’s Third Bill in the amount of $285.94, on May 12, 2018, and Plaintiff’s Eighth Bill in the amount of $369.92, on June 4, 2018, which respectively constituted Plaintiff’s fifth and fifteenth causes of action. Although Defendant sent two separate explanations of benefits dated May 24, 2018 and June 6, 2018, which advised Plaintiff that payment was being delayed pending an EUO, this Court finds that these explanations of benefit are insufficient to delay payment or denial because they did not request verification (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]). Therefore, regarding the Third Bill and Eighth Bill respectively received on May 12 and June 4, 2018, Defendant’s denial of Plaintiff’s claims based on these bills on July 27, 2018 was untimely (Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90, 92 [App Term 2d Dept 2012]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-47 [2d Dept 2009]; Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 2012 NY Slip Op 51649 *2). As a result, Defendant is not entitled to a judgment dismissing Plaintiff’s fifth and fifteenth causes of action based on the Third Bill and Eighth Bill respectively.

Plaintiff’s First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill, and Ninth Bill/

Regarding the remaining six (6) bills, i.e., Plaintiff first, fourth, fifth, six, seventh and ninth bills, which constituted Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action, Defendant presented an affidavit sworn January 10, 2020, in which Callinan, a partner in Defendant’s counsel’s office, attested to the standard mailing procedures for requests for EUOs and that counsel’s office mailed a request to Sayyed and his attorney on June 5, 2018, scheduling an EUO for June 21, 2017 (see Motion, Aff. of Michael Soriano, Ex. E). Defendant also presented a letter from Plaintiff’s counsel dated June 18, 2018, which acknowledged receipt of the June 5, 2018 scheduling letter (see Motion, Soriano Aff. Ex. K). Here, such evidence established Defendant’s timely submission of the EUO request (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2 [App Term 2d Dept 2017]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1. The transcripts of the EUO proceedings (see Motion, Soriano Aff., Ex. I and J) further constituted adequate proof of Sayyed’s nonappearance (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., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). In addition, Defendant established the timeliness of the second EUO request letter dated June 26, 2018, which scheduled the EUO for July 13, 2018 (see Motion, Soriano Aff. Ex. F), after Sayyed failed to attend the first EUO (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]). Since Defendant received the remaining bills after the request for EUO was sent to Plaintiff, the EUO request letter dated June 5, 2018 tolled Defendant’s time to pay or deny the claims (Sharp View Diagnostic Imaging, P.C. v Esurance, 57 Misc 3d 146[A], 2017 NY Slip Op 51466[U] *1 [App Term 2d Dept 2017]; Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] *1 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 2011 NY Slip Op 52382[U] *2).

Overly’s affidavit established Defendant’s standard mailing procedures designed to ensure timely mailing and the timely denial of Plaintiff’s claim within thirty (30) days after the second scheduled EUO (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). Therefore, Defendant’s denial of these claims on July 27, 2018 was timely (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757, see 11 NYCRR §§ 65-3.5[a]; 65-3.5[a]). Here, Defendant’s evidence that it twice requested EUOs from Sayyed, that he failed to appear both 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). As a result, Defendant has met its initial burden of demonstrating that Sayyed failed to attend duly scheduled EUOs and that Defendant timely denied the claims [*4]based on the First Bill, the Fourth Bill, the Fifth Bill, the Six Bill, the Seventh Bill and the Ninth Bill, which were embodied in Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action.

In opposition, Plaintiff contended that factual issues existed precluding Defendant’s motion for summary judgment. While Plaintiff contended that Defendant failed to respond to Plaintiff’s objections to the EUOs, here, such a response is not 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).

Since Plaintiff failed to raise factual issues regarding Defendant’s defense, Defendant is entitled to dismissal of Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action.

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” (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]). Although Plaintiff presented no evidence supporting its Cross-Motion, Defendant’s denial of claim forms constituted prima facie evidence that Defendant received Plaintiff’s claims (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]).

With respect to Plaintiff’s fifth and fifteenth causes of action, as addressed above, Defendant failed to toll the time to pay or deny the claims based on Plaintiff’s Third Bill and Eighth Bill in the respective amount of $285.94 and $369.92. Therefore, Plaintiff is entitled to a summary judgment on its claims based on these bills in the total amount of $655.86, plus statutory interest (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d at 1046-47; Alur Med. Supply, Inc. v Progressive Ins. Co., 2008 NY Slip Op 52191[U] *1-2).

With respect to Plaintiff’s third cause of action, as noted above, factual issues remain regarding Defendant’s receipt of the Second Bill in the amount of $458.16. Such issue must be resolved at trial.

Finally, regarding the remaining six (6) bills alleged in Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action, given Defendant’s unrebutted evidence of its timely submission of EUO request letters, Sayyed’s failure to attend the two scheduled EUOs, and Defendant’s timely denial of Plaintiff’s claims on that basis, this Court dismisses these causes of action as set forth above. Plaintiff is not entitled to a payment for the First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill, and Ninth Bill.

It is noted that in its second, fourth, sixth, eighth, tenth, twelfth, fourteenth, sixteenth, and eighteenth causes of action, Plaintiff improperly pleaded claims for attorneys’ fees based on each individual bill. It is well established by case law that in No-Fault actions, attorneys’ fees are calculated based on a single insured, not on each bill submitted by a provider (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 26 Misc 3d 140[A], 2010 NY Slip Op 50264[U] *2 [App Term 2d Dept 2010]). Although the Court finds that Defendant failed to timely pay or deny the claims under the fifth and fifteenth causes of action, which entitles Plaintiff to recover attorneys’ fees (Insurance Law § 5106[a]; 11 NYCRR 65-3.9[a]; 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 278), given that Plaintiff’s third cause of action must proceed to trial, determination of attorneys’ fees is premature.

IV.Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment is granted to the extent of dismissing Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action based on Plaintiff’s First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill and Ninth Bill, but is otherwise denied, and it is further

ORDERED that Plaintiff’s Cross-Motion is granted to the extent of judgment in Plaintiff’s favor on Plaintiff’s fifth and fifteenth causes of action based on the Third Bill and Eighth Bill in the total amount of $655.86 plus statutory interest, but is otherwise denied, and it is further

ORDERED that Plaintiff’s third cause of action to recover the Second Bill in the amount of $458.16 for services provided June 18 through July 11, 2018, shall proceed to trial; and that Plaintiff’s attorneys’ fees shall be decided during or upon the conclusion of the trial.

This constitutes the DECISION and ORDER of the Court.

Dated: April 13, 2021
Queens County Civil Court
_____________________________________
Honorable Li, J.C.C.

[*1]

Civil Court of the City of New York, Queens County, October 8, 2020

APPEARANCES OF COUNSEL

Rubin, Fiorella, Friedman & Mercante LLP, New York City, for defendant.

Sanders Barshay Grossman, LLC, Garden City, for plaintiff.

I. Papers

Papers filed with the court on June 18, 2019, were read on this motion by defendant for a summary judgment seeking to dismiss plaintiff’s complaint pursuant to CPLR 3212. The motion was submitted on March 13, 2020, without opposition, after respective adjournments on July 18, 2019, October 2, 2019, and January 27, 2020, by various courts. This matter is now before this court during the coronavirus pandemic before its trial date of February 5, 2021.

II. Background

Assignor allegedly had a car accident on October 11, 2017. Assignor “was the driver in the insured vehicle . . . [which] was insured by . . . [defendant] in the name of [assignor]” (affirmation at 1-2). Two passengers, Akeil C. and Jayquone B., were in the insured vehicle when the alleged incident occurred. “Passenger in . . . [the insured vehicle] did RMA with complaint of leg pain” (police rep at 1, 3) while defendant stated that the police report “indicated no injuries at the scene” (affirmation {**69 Misc 3d at 941}at 2). Assignor underwent treatment at plaintiff’s facility between October 23, 2017, and December 6, 2017, incurring a medical bill in the total amount of $845.78 (see exhibit A, plaintiff’s summons and complaint). Plaintiff [*3]submitted its medical bill to defendant. Defendant denied such claim based on a “finding that the loss was not an accident and [assignor] made false statements with the intent to conceal or misrepresent material facts or circumstances related to [the] loss in furtherance of an insurance fraud scheme.” In addition, defendant denied all claims related to the alleged collision based on fraud. (See claim specialist aff.)

III. Discussion

In the motion, defendant prayed for a summary judgment seeking to dismiss plaintiff’s complaint on the following grounds: (1) defendant’s “founded belief that the alleged injury [did] not arise out of an insured incident” (affirmation at 3); and (2) assignor’s failure to subscribe the transcript.

CPLR 3212 states that “[a] motion [for summary judgment] shall be granted if . . . the cause of action . . . [is] established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” and that “there is no defense to the cause of action” (CPLR 3212 [b]; Rodriguez v City of New York, 31 NY3d 312 [2018]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

1. Defendant’s “founded belief that the alleged injury [did] not arise out of an insured incident”

In support of its “founded belief that the alleged injury [did] not arise out of an insured incident” (affirmation at 3), defendant argued that: (1) “the insured vehicle [drove] directly into [the adverse] vehicle” pursuant to the adverse driver; (2) “the insured vehicle was destroyed prior to the collision” pursuant to the adverse driver; (3) defendant “had difficulty obtaining statements from the insured or occupants of the insured vehicle after the collision”; (4) “[o]ne of the occupants was involved in a prior loss less than one month before the collision”; and (5) “[t]he EUO testimony of [assignor] consist[ed] of incomplete and inconsistent testimony” due to the fact that assignor’s “answer to questions were so vague or she would respond ‘I [didn’t] know’ or ‘I [didn’t] remember’ to essentially every question asked.” As a result, defendant suspected that the collision was “staged,” and, therefore, was not a true accident covered by the insurance, citing V.S. Med. Servs., P.C. v Allstate Ins. Co. (11 Misc 3d 334 [2006]) (affirmation at 2-5).{**69 Misc 3d at 942}

The court in V.S. Med. Servs., P.C. stated that

“[i]n the no-fault context, the plaintiff need not prove coverage as part of its prima facie case . . .

“[A] defendant asserting a lack of coverage defense must set forth admissible evidence of ‘the fact or [a] founded belief that the alleged injury [did] not arise out of an insured incident’ ” (V.S. Med. Servs., P.C. v Allstate Ins. Co. at 340).

After trial, the V.S. Med. Servs., P.C. court dismissed plaintiff’s complaint based on the following factors:

“profile and claim history of the car (older model, accident shortly after insurance taking effect and policy cancelled shortly thereafter for nonpayment on two separate occasions), several passengers in the car, no emergency room treatment for any passenger, several material discrepancies in the car’s occupants’ stories as to the number and gender of people in the car, where they were going, and the driver denying knowing the owner of the car[,] . . . [adverse vehicle] suffered only a ‘small scratch’ in the alleged accident . . . which allegedly resulted in over $15,000 in treatment for these assignors alone” (V.S. Med. Servs., P.C. v Allstate Ins. Co. at [*4]343, 344).

Such court reasoned that if an alleged collision was not a true accident, in another word, was an intentional act, “then it [was] outside the scope of the no-fault policy regardless of why or how it occurred or who was behind it” (V.S. Med. Servs., P.C. v Allstate Ins. Co. at 341).

In our instant case, plaintiff submitted its medical bills to defendant, therefore establishing its prima facie case of coverage. It is then defendant’s burden to “rebut the presumption of coverage” by establishing “that the alleged collision was intentionally caused” (V.S. Med. Servs., P.C. v Allstate Ins. Co. at 342-344). Here, defendant formed its belief that the alleged collision at issue was not a covered incident based on the grounds that assignor’s insured vehicle, which was previously damaged, intentionally hit the other vehicle, one of the passengers in the insured vehicle claimed another loss shortly before the alleged collision, assignor’s answers to the examination under oath (EUO) were vague, and it was difficult for defendant to obtain statements from the passengers.

As to the matter at hand, the passengers of the insured vehicle are not parties to the instant proceeding; this court{**69 Misc 3d at 943} therefore will not address issues related to the passengers and is left to weigh the evidence presented by defendant, based on the pretrial motion papers, to determine if assignor’s car intentionally hit the other car and if assignor’s EUO answers were so vague that a dismissal of plaintiff’s complaint is warranted.

[1] Unlike the claim history of the car in the V.S. Med. Servs., P.C. case, defendant here failed to put forward evidence to demonstrate that assignor took her insurance policy with defendant shortly before the alleged incident and cancelled such insurance policy shortly after. In addition, it appears that there is a factual issue to be resolved in terms of how the alleged incident happened. Pursuant to the adverse driver, his vehicle “stopped . . . [at a stop sign, but] had inched further W/B to get a [b]etter vantage point of traffic” when assignor’s vehicle allegedly intentionally hit his vehicle; while pursuant to assignor, adverse driver’s vehicle “suddenly collide[d] with . . . [her vehicle] while heading W/B” (see police rep). Furthermore, this court finds that assignor has answered most of the questions during the EUO as indicated by the transcript.

It is well established that a movant for a summary judgment must present 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]). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v City of New York at 561).

Here, this court is not persuaded, based on the evidence presented by defendant’s motion paper, that the alleged incident was staged and, therefore, not an insured incident. Although defendant argued that it did not believe that assignor’s alleged injury arose out of an insured incident, it failed to present evidence or argument that assignor had an existing condition prior to the alleged incident and that her treatment received at plaintiff’s facility did not arise out of the alleged incident at issue. In summary, defendant failed to rebut the presumption of no-fault medical coverage. Defendant’s motion seeking to dismiss plaintiff’s complaint based on its belief that the alleged injury did not arise out of an insured incident is denied without prejudice.{**69 Misc 3d at 944}

2. Assignor’s Failure to Subscribe the Transcript

Defendant also moved to dismiss plaintiff’s complaint because assignor failed to [*5]subscribe the transcript. Defendant argued that

“[p]ursuant to the No-Fault regulations, ‘[u]pon request by the [insurance company], the eligible injured person or that person’s assignee or representative [should]: (b) as may reasonably be required submit to examinations under oath by any person named by the [insurance company] and subscribe the same[;]’ [and that] [d]ue to the failure of . . . [assignor] to return a signed and executed copy of the [t]ranscript, the [assignor] [had] failed to comply with a condition precedent to coverage” (affirmation at 7, citing DTG Operations, Inc. v Park Radiology, P.C., 2011 NY Slip Op 32467[U] [2011], Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997], Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011], and Skeaney v Silver Beach Realty Corp., 10 AD2d 537 [1st Dept 1960]).

Defendant further argued that because assignor failed to return the signed transcript within 120 calendar days of request for subscription, defendant “reserve[d] the right to deny coverage for failure to provide an executed transcript within the allotted time period” (see demand for subscription).

In the instant case, assignor submitted herself to an EUO and, therefore, has satisfied one of the requirements of 11 NYCRR 65-1.1 which requires a no-fault insurance benefit claimant “submit to [an] examination[ ] under oath . . . and subscribe the same” (11 NYCRR 65-1.1). However, assignor failed to sign the transcript of the EUO. The issue before this court is how late is too late for assignor to sign the transcript, or alternatively until when can assignor sign the transcript in order to ensure that the complaint is not dismissed.

Regulation 68-C states that “an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply” (11 NYCRR 65-3.8 [b] [3]), and that “[i]n the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day the examination was performed” (11 NYCRR 65-3.8 [a] [1]). Here, {**69 Misc 3d at 945}Regulation 68-C provides a statutory ground for an insurer’s denial of a no-fault benefit due to an insured’s failure to submit to an EUO or provide the insurer with “verification under the [insured]’s control or possession” within 120 calendar days of first request (11 NYCRR 65-3.5 [o]; 65-3.8 [b] [3]); however, it is silent as to if an insurer can issue a denial if an insured fails to return a signed transcript of an examination under oath within 120 calendar days of initial demand. Although defendant reserved the right to deny plaintiff’s claim if a signed transcript was not received within 120 calendar days of demand for subscription, it failed to present this court with a copy of an insurance contract outlining such term.

[2] It is undoubted that subscribing the transcript is a condition precedent for assignor/plaintiff to receive no-fault benefits pursuant to 11 NYCRR 65-1.1; however, defendant failed to provide this court with evidence that the insurance contract between assignor and defendant had a provision mandating assignor to subscribe the transcript within 120 calendar days of first demand. In Skeaney v Silver Beach Realty Corp., cited by defendant, the insured did not return the executed transcript of examination under oath until the opposing party “obtained an order directing the [insured] to execute and return the transcript” (Skeaney v Silver Beach Realty Corp. at 537). Here, this court finds that there is no basis to dismiss plaintiff’s complaint, pretrial, because assignor failed to sign the transcript within 120 calendar days of demand. In another word, defendant’s motion seeking to dismiss plaintiff’s complaint, pretrial, due to assignor’s failure to subscribe the transcript, is premature when defendant has not exhausted remedies provided by law and absent evidence of insurance contract terms requiring [*6]the same. Defendant’s motion for summary judgment seeking to dismiss plaintiff’s complaint because assignor failed to sign the transcript is denied without prejudice.

IV. Order

Accordingly, it is ordered that defendant’s motion for summary judgment seeking to dismiss plaintiff’s complaint is denied in its entirety, without opposition and without prejudice.

CV-130940-03/QU

LAW OFFICES OF DAVID B. O’CONNOR P.C.

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

2606 East 15th Street

Brooklyn, New York 11235

By: David Bryon O’Connor, Esq.

MCDONNELL ADELS & KLESTZICK, PLLC

Counsel for Defendant State Farm Mutual Insurance Co.

401 Franklin Avenue

Garden City, New York 11530

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

I. Background

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

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

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

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

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

II. Discussion

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

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

A. Discovery Responses

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

i. Motion to Dismiss

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

Furthermore, to the extent that any of Plaintiff’s responses are substantively insufficient, dismissal is not appropriate “where there is no clear showing that the failure to comply with discovery demands was willful or contumacious” (see Walter B. Melvin, Architects, LLC v. 24 Aqueduct Lane Condominium, 51 AD3d 784, 785 [2d Dept 2008] (noting that striking a pleading is a “drastic remedy” and further finding that “while the plaintiff was clearly dissatisfied with the responses to its demands, there was no showing of a pattern of willful failure to respond to discovery demands or comply with disclosure orders, so as to justify striking the defendant’s answer”); Conway v. Brooklyn Gas Union Co., 212 AD2d 498, 498 [2d Dept 1995]). The portion of Plaintiff’s response to Questions 5 and 7 that states “[s]ee attached proof of mailing,” suggests an intent to comply and Plaintiff’s failure to attach proof of mailing could simply be a misunderstanding or oversight. With respect to Plaintiff’s response to Question 18, “not applicable” may simply be an indication that such information is not available, and Plaintiff intends to satisfy its burden by providing evidence of Plaintiff’s “standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]). Accordingly, dismissal is not proper, and Plaintiff should be given a chance to clarify its responses (see Spiegel v. Goodman, 98 AD2d 815, 815 [2d Dept 1983]; Escobar v. St. Vincent’s Med. Ctr. Of Richmond, 2003 NY Slip Op 51674[U], *1 [App Term, 2nd & 11th Jud Dists 2011]).

ii. Motion to Strike Notice of Trial

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

iii. Motion to Compel

This Court grants Defendant’s motion to compel sufficient responses to Questions 5, 7 and 18 of Defendant’s Demand for Verified Interrogatories. CPLR 3101 [a] provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The phrase “material and necessary” is “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968]. The test in determining whether discovery is material and necessary “is one of usefulness and reason” (Id.).

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

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

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

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

B. Statutory Interest

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

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

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

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

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

III. Conclusion

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

This constitutes the decision and order of the Court.

Dated: April 3, 2019

Jamaica, New York

Hon. John C.V. Katsanos

Judge, Civil Court

CV-707232-16/QU

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

Counsel for Plaintiff

Andrew J. Dowd, M.D.

As Assignee of Audra Fulton

3361 Park Avenue, Suite 1000

Wantagh, New York 11793

Joseph J. Padrucco, Esq.

LAW OFFICES OF KAREN L. LAWRENCE

Counsel for Defendant

Allstate Insurance Company

1225 Franklin Avenue, Suite 100

Garden City, New York 11530

Marie-Ann Inguanti, Esq.

I.Background

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

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

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

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

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

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

II.Discussion

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

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

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

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

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

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

[*4]III.Conclusion

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

This constitutes the decision and order of the Court.

Dated:March 11, 2019

Jamaica, New York

Hon. John C.V. Katsanos

Judge, Civil Court

719878/2018

Appearances of Counsel:
Attorney for Petitioner
Amos Weinberg, Esq.
Somerset Drive South
Great Neck NY 11020-1821
(516) 829-3900

Attorney for Respondent
Adam Waknine, Esq.
Peter c. Merani, PC.
1001 Avenue of the Americas, Suite 1800
New York, N.Y. 10018
(212) 629-9690

The following papers numbered EF 1-22 read on this petition by B.Z. Chiropractic, P.C., seeking a declaratory judgment to turn over monies from its bank account maintained outside of New York State with Bank of America, N.A. in such sum as is sufficient to satisfy the judgment, and determining that the judgment has and continues to accrue interest pursuant to the Insurance Department Regulations in effect at the time of the subject accident involving plaintiff’s assignor, in accordance with prior case law, at the rate of 2% per month compounded and Respondent’s Cross-Petition, seeking dismissal of this action based upon the doctrines of res judicata and collateral estoppel and sanctions for the filing of an allegedly frivolous action.

Notice of Petition, Petition, Exhibits EF 1-9

Notice of Cross-Petition, Petition, Exhibits EF 10-21

Affirmations in Opposition, Exhibits EF 22

Upon the foregoing papers, it is ordered that this petition and cross-petition are determined as follows:

The instant action arises out of an action filed in the Civil Court of the City of New York, Queens County, entitled B.Z. Chiropractic, P.C. a/a/o Tony Dance v. Allstate Insurance Company, Index No. 70935/00, which sought to recover first party No-Fault benefits for services rendered to defendant’s insured by plaintiff. Plaintiff was granted summary judgment in that action and on November 15, 2001, the Clerk of the Court entered judgment in favor of the plaintiff in the amount of $8,847.49. Plaintiff did not attempt to enforce said judgment until 2015, at which time defendant moved for a protective order and modification of the judgment pursuant to CPLR 5240. At that time, the amount of the judgment had grown to $227,060.57 ($8,847.49 plus 2% per month interest, compounded from November 15, 2001 through August 11, 2015). In an Order, dated November 16, 2015, the Civil Court found that plaintiff unreasonably allowed the compound interest to accrue and stayed said interest for the period of November 1, 2005 through June 19, 2015, the date that defendant received the plaintiff’s collections letter. Respondent issued checks in the amount of $22,999.70 in accordance with that decision and sought a satisfaction of judgment, moving by Order to Show Cause to compel same. Said motion was granted on July 7, 2016. Plaintiff appealed and on August 18, 2017, the Appellate Term, consolidated both appeals and reversed the lower court’s decision, finding that contrary to defendant’s assertions, plaintiff did not prevent defendant from timely paying the judgment. The Appellate Term added in an advisory capacity that the postjudgment rate of interest should be calculated pursuant to CPLR 5004 and not at the 2% per month rate provided for in 11 NYCRR 65-3.9(a). Thereafter, B.Z. Chiropractic moved before the Appellate Term seeking clarification of said decision or, in the alternative, for leave to appeal to the Appellate Division. The Appellate Term clarified that it was the Court’s intention to note that interest be awarded at the rate of 9% per year as in CPLR 5004, but that same is advisory and not appealable as of right or by permission.

The portion of Petitioner’s Petition seeking to turn over monies from its bank account maintained outside of New York State with Bank of America, N.A. in such sum as is sufficient to satisfy the judgment is denied in its entirety as Bank of America, N.A. is not a party to this action as required by CPLR §5225(b).

The portion of Petitioner’s Petition seeking a declaratory judgment on the proper interest rate which accrues on first party no-fault benefits after the entry of judgment is decided as follows: Pursuant to CPLR §5004, interest shall be at the rate of nine per centum per annum, except where otherwise provided by statute. Pursuant to 11 NYCRR 65-3.9(a), All overdue mandatory and additional personal injury protection benefits due an applicant or assignee shall bear interest at a rate of two percent per month, calculated on a pro-rata basis using a 30-day month. At the time that the underlying claims were filed, said interest accrued at a compound rate. It is well settled that “with respect to interest on first party benefits due under the no-fault statute,…the Insurance Law supersedes the provisions for interest contained in CPLR 5002, 5003 and 5004 (Gov’t Emp. Ins. Co. v. Lombino, 57 AD2d 957, 959, 394 N.Y.S.2d 898 [1977]) The policies of encouraging prompt payment of claims and reducing litigation outweigh limits on [*2]interest found elsewhere, See, Matter of McKenna v County of Nassau, Off. of County Attorney, 97 AD2d 440 (2d Dept 1983). The interest rate on No-Fault actions is intentionally punitive, with severe penalties in order to encourage prompt adjustment of claims. As such, the rate of interest is not reduced simply because the claim has been reduced to a judgment. While such claims remain overdue, they accrue interest at two percent per month. As such, plaintiff is entitled to a declaratory judgment recognizing same.

Respondent’s cross-petition seeking dismissal and sanctions for the filing of a frivolous action is denied in its entirety for the reasons above.

Dated: 2/25/2019
_________________________
Laurence L. Love, J.S.C.

[*1]

Civil Court of the City of New York, Queens County, October 17, 2016

APPEARANCES OF COUNSEL

Kim, Patterson & Sciarrino, P.C., Bayside, for defendants.

Serpe, Andree, & Kaufman, Huntington, for plaintiff.

Defendants’ motion pursuant to CPLR 3211 (a) (1) and (5){**54 Misc 3d at 346} dismissing plaintiff’s complaint and plaintiff’s cross motion for sanctions are decided as follows:

Plaintiff commences this subrogation action to recover $15,200 in additional personal injury protection benefits (APIP) paid to plaintiff’s subrogor. Prior to the commencement of this action a workers’ compensation hearing was held on November 24, 2008 determining that Kareem Atkins, the claimant, was in the course of employment with subrogor, Darci Plumbing Co., Inc., and was awarded basic economic loss as a result of an auto accident which occurred on March 17, 2008. Defendants now move to dismiss the complaint pursuant to CPLR 3211 (a) (1) on the ground that defendants’ defense is founded upon documentary evidence and CPLR 3211 (a) (5) on the ground that plaintiff’s cause of action cannot be maintained because of collateral estoppel and res judicata. Plaintiff also cross-moves for sanctions against the defendants pursuant to CPLR 8303-a for frivolous and unethical motion practice.

In support of the motion defendants submit the decision of the Workers’ Compensation Board awarding claimant, who is plaintiff’s subrogor’s employee, basic economic loss benefits as a result of the car accident of March 17, 2008. Defendants argue that the workers’ compensation benefits were the exclusive source of coverage for first-party benefits. Defendants also claim that the workers’ compensation decision was res judicata. Plaintiff subrogee claims in opposition that it paid APIP to the claimant, which was in addition to the statutory basic economic loss paid by the workers’ compensation award and therefore its right to subrogate these additional payments was reserved.

New York’s No-Fault Law requires that an owner of a vehicle has insurance coverage providing first-party benefits consisting of reimbursement for basic economic loss (health expenses, loss of earnings and other reasonable and necessary expenses) to the extent specified by statute. Where workers’ compensation insurance coverage exists for an injured motorist, the workers’ compensation insurer must pay the injured motorist’s basic economic loss up to $50,000 in lieu of statutory no-fault benefits. (Insurance Law §§ 5102 [a], [b]; 5103 [a].) There is no dispute in this matter that workers’ compensation was required to pay the basic economic loss for the accident. However, in this matter plaintiff subrogee paid APIP to claimant pursuant to its contract of insurance with subrogor, claimant’s employer. The issue at bar is whether APIP payments are synonymous{**54 Misc 3d at 347} with the statutory basic economic loss benefit or a contractual benefit in addition to the statutory basic economic loss benefit.

11 NYCRR 65-1.3 defines APIP benefits as:

“Additional first-party benefits are payments equal to extended economic loss reduced by: . . .

“(b) amounts recovered or recoverable on account of personal injury to an eligible injured person under State or Federal laws providing . . . workers’ compensation benefits . . . which amounts have not been applied to reduce first-party benefits recovered or recoverable under basic economic loss.”

Since an insured’s subrogation rights with regard to payment of APIP benefits are equitable rather than statutory in nature, they exist under common law. (Allstate Ins. Co. v Stein, 1 NY3d 416 [2004].) The workers’ compensation award in this matter may be distinguishable from the APIP benefits. Therefore the workers’ compensation award was not res judicata and plaintiff is not precluded from asserting its subrogation rights for any amounts paid in addition to the statutory basic economic loss benefits paid by workers’ compensation in lieu of first-party benefits. Accordingly, defendants’ motion to dismiss is denied in its entirety.

Plaintiff’s cross motion seeking sanctions against the defendants is further denied.

[*1]

Civil Court of the City of New York, Queens County, April 24, 2015

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Lienne Pisano of counsel), for defendant.

The Odierno Law Firm, P.C., Melville (Paul Bargellini of counsel), for plaintiff.

Defendant’s motion for summary [*2]judgment is decided as follows:

This is an action to recover assigned no-fault benefits for chiropractic services allegedly rendered to plaintiff’s assignor on February 20, 2013 in the billed amount of $1,365.68. Defendant seeks an order dismissing this action based upon plaintiff’s alleged violation of Insurance Department Regulations Implementing the Comprehensive Motor Vehicle Insurance Reparations Act (11 NYCRR) § 65-3.16 [a] [12]), which states as follows:

“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 or meet any applicable licensing requirement necessary to perform such service in any other state in which such service is performed.”

On July 8, 2013, as established by Lori Mann, a claims representative employed by defendant, a timely denial of plaintiff’s bill was issued, based, inter alia, upon plaintiff’s alleged illegal fee-splitting. On February 10, 2014, defendant served a notice to admit, pursuant to CPLR 3123, upon the plaintiff, seeking to admit a copy of a contract purportedly entered into between plaintiff and its billing company, Systems Management Group, Inc. (SMG). The purported contract states that “[t]he Practice will pay SMG 6% of all fees charged & ultimately collected by SMG.” The court notes that the purported contract is not in admissible form as defendant has failed to lay a sufficient foundation for its admission (see Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Defendant also submits the deposition transcript of Dr. Lucas Bottcher, DC, a member of the plaintiff’s practice. Therein, Dr. Bottcher admitted that plaintiff employs SMG and they are paid a fixed fee of five percent of collections. Defendant argues that since plaintiff allegedly pays six (or five) percent of its fees to its billing company, that its billing company owns six percent of plaintiff’s practice.

In opposition, plaintiff correctly argues that no court has found improper fee-splitting to be fraud nor a licensing requirement. Furthermore, defendant failed to present any case law{**47 Misc 3d at 1077} that improper fee-splitting is a defense in a no-fault action. Finally, plaintiff contends there is no support for the assertion that payment of six percent of receivables constitutes any form of ownership or control over the plaintiff. As such the parties have presented a case of first impression.

In State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), the Court of Appeals upheld the Insurance Department’s regulation and held that a medical corporation that was fraudulently incorporated under Business Corporation Law §§ 1507 and 1508, and Education Law § 6507 (4) (c) is not entitled to be reimbursed by insurers, under Insurance Law § 5101 et seq. Business Corporation Law §§ 1507 and 1508, as applied to this action, prohibit non-chiropractors from owning any shares of or serving on the board of a professional corporation authorized to provide chiropractic services. Mallela and its progeny (Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 42 Misc 3d 30 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) have consistently held that ownership of a professional corporation by non-professionals renders that corporation ineligible to [*3]recover no-fault benefits and that a carrier may conduct an investigation and look beyond the licensing documents in order to identify improper ownership and control of a professional corporation.

Defendant alleges that plaintiff has violated a licensing requirement by engaging in impermissible fee-splitting, in violation of the Rules of the Board of Regents (8 NYCRR) § 29.1 (b) (4) and Education Law §§ 6509-a and 6530 (19), with its billing company, Systems Management Group, Inc. Pursuant to 8 NYCRR 29.1 (b) (4) and Education Law § 6530 (19), unprofessional conduct shall include:

“permitting any person to share in the fees for professional services, other than: a partner, employee, associate in a professional firm or corporation, professional subcontractor or consultant authorized to practice [the same profession], or a legally authorized trainee practicing under the supervision of a licensed practitioner. This prohibition shall include any arrangement or agreement whereby the amount received in payment for furnishing space, facilities, equipment or personnel services used by a professional licensee constitutes{**47 Misc 3d at 1078} a percentage of, or is otherwise dependent upon, the income or receipts of the licensee from such practice.”

In Necula v Glass (231 AD2d 457 [1st Dept 1996]), the Appellate Division found that the Department of Social Services had properly found that petitioner had engaged in illegal fee-splitting pursuant to 8 NYCRR 29.1 (b) (4) where petitioner had entered into contracts with management companies under which the management companies were to provide facilities, supplies, equipment and staff necessary to operate his professional practice and petitioner was to pay the companies a percentage of his receipts. In Sachs v Saloshin (138 AD2d 586, 587 [2d Dept 1988]), the Appellate Division found that “by tendering a percentage of his patient fees to the plaintiffs, [defendant] violated the public policy of this State as reflected in Education Law § 6509-a [and] the rules for professional conduct established by the Board of Regents (8 NYCRR 29.1 [b] [4]).” A common thread throughout all of the cases cited by defendant is that while courts will refuse to enforce a contract which violates 8 NYCRR 29.1 (b) (4) and the Education Law, any punishment for unprofessional misconduct as defined by those sections is imposed by the State Board for Professional Medical Conduct. In cases where the State Board has imposed punishments, the role of the courts has been to review those punishments in the context of a CPLR article 78 proceeding.

In Mallela (4 NY3d at 322), the Court found that in the licensing context, carriers will be unable to show “good cause” unless they can demonstrate behavior tantamount to fraud and that technical violations will not do. In every case where 11 NYCRR 65-3.16 (a) (12) has been successfully used as a complete and non-precludible defense in a no-fault action, the provider has been found to have committed violations of Business Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c) and appears to have never been based upon impermissible fee-splitting alone. The issue in this case is the definition of the term “licensing requirement.” The Court in Mallela (at 321) highlighted that the medical service corporation in that case “exists to receive payment only because of its willfully and materially false filings with state regulators.” Furthermore, the Court noted in footnote 2 that the Superintendent of Insurance promulgated 11 NYCRR 65-3.16 (a) (12) “to combat rapidly growing incidences of fraud in the no-fault regime, fraud that he has identified as correlative with the corporate practice of medicine by nonphysicians” (Mallela at 320 n 2).

{**47 Misc 3d at 1079}In this case, plaintiff has not been shown to have filed any fraudulent documents with the State and has not allowed non-physicians to control any aspect of their practice. As such, it is the conclusion of this court that impermissible fee-splitting, standing alone, is not a violation of a licensing requirement, does not constitute an available defense to a no-fault action and, as such, any action is solely within the purview of the appropriate state licensing board.

For the foregoing reasons, defendant’s motion is hereby denied in its entirety.

[*1]

Civil Court of the City of New York, Queens County, March 28, 2013

APPEARANCES OF COUNSEL

McDonnell & Adels P.L.L.C., Garden City, for defendant. Tsirelman & Valerio, P.C., Long Island City (Max Valerio of counsel), for plaintiff.

{**39 Misc 3d at 829} OPINION OF THE COURT

James E. d’Auguste, J.

The motion by defendant State Farm Mutual Automobile Insurance Company to reargue is granted to the extent that the{**39 Misc 3d at 830} court reconsiders its earlier determination granting plaintiff Lotus Acupuncture P.C. summary judgment and upon reconsideration adheres to its original determination.

The facts of the case are not in dispute: State Farm sent an initial and follow-up request for an examination under oath (EUO) that were not complied with by Lotus. The sole legal issue is whether the insurer’s follow-up request was timely. The resolution of this issue rests on an analysis of two regulations, 11 NYCRR 65-3.6 and 65-3.8. The first regulation, 11 NYCRR 65-3.6, requires that the follow-up request be mailed within 10 calendar days. The regulation also references a 30-day outside deadline for the submission of verification material. The second regulation, 11 NYCRR 65-3.8, provides that an EUO verification request is completed on the day it is scheduled to occur. The court interpreted the regulations as measuring the accrual date for sending the follow-up request from the defaulted EUO appearance, also known as a “no show” in no-fault parlance. In so ruling, the court found that the 30-day deadline addresses the submission of documents as opposed to a verification request seeking a personal appearance on a specific date. State Farm requests that the court reconsider its determination and supports its application by submitting decisions by several judges of coordinate jurisdiction that decided the issue to the contrary, albeit without any explanation for their determination.

In the absence of appellate guidance, the court invited the Superintendent of the New York State Department of Financial Services’ amicus curiae opinion on the question of “whether [the above referenced regulations], when read together, require[ ] an insurer to send follow up verification [*2]requests within 10 calendar days of a defaulted examination under oath or from the expiration of 30 days from the original requests irrespective of the date the examination under oath appearance was scheduled.” (See order dated Aug. 13, 2012 [d’Auguste, J.].)

On December 3, 2012, the court received correspondence from Martha A. Lees, Esq., General Counsel for Insurance at the Department of Financial Services, attaching an earlier opinion letter setting forth the Superintendent’s continuing position for “when an insurer should send a follow-up verification request after a ‘no-show’ for an examination under oath.” The Superintendent’s position, as originally set forth in a December 22,{**39 Misc 3d at 831} 2006 opinion of the New York State Insurance Department,^[FN*] is that

“[w]hen an EUO is required and the party required to appear fails to attend a scheduled EUO, the insurer must meet [its] obligations under N.Y. Comp Codes R. & Regs. tit 11, § 65-3.6(b) and within 10 calendar days, contact the party from whom verification (the EUO) has been requested and not been provided, i.e. non-attendance at the scheduled EUO, in order to afford the party a second opportunity to attend an EUO.” (Ops Gen Counsel NY Ins Dept No. 06-12-16 [Dec. 2006].)

The Superintendent’s opinion, which is entitled to great deference, firmly supports the court’s original conclusion that a follow-up EUO notice must be sent within 10 calendar days of the missed EUO. Moreover, legal commentary on the subject agrees with the reasonableness of the Superintendent’s regulatory interpretation. (See Larry Rogak, Judge Asks State for No-Fault Clarification, The Rogak Report: Insurance Law Digest [Aug. 23, 2012] [“logic and reason would seem to dictate that the measuring point is the date of the no-show”].)

The court is granting reargument as it considered the additional input from the Department of Financial Services. Upon reargument, the court adheres to its original determination that the 10-calendar-day deadline for sending a follow-up verification request is measured from the date the initial EUO is missed. As State Farm’s follow-up request was untimely, Lotus was properly granted summary judgment.

Footnotes

Footnote *: In October 2011, the Insurance Department merged with the Banking Department to create a newly-formed Department of Financial Services.