Decided on December 9, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered August 3, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment. Plaintiff argues on appeal that defendant failed to establish that it timely denied the claim at issue.

After receipt of the claim, defendant scheduled EUOs to be held on January 8, 2018, March 20, 2018, May 23, 2018 and July 12, 2018; plaintiff did not appear on any of those dates. Shortly before each scheduled date, plaintiff sent defendant a letter, essentially stating that plaintiff would not be able to attend until an unspecified time months later and, among other [*2]things, improperly demanding $3,500 as up-front reimbursement for its travel expenses and time (see MSB Physical Therapy, P.C. v Nationwide Ins., 76 Misc 3d 131[A], 2022 NY Slip Op 50902[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Parisien v Travelers Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50622[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Defendant sent letters back to plaintiff stating, among other things, that defendant would or had placed a statement on the record documenting plaintiff’s “default” in appearing on each scheduled date.

In a letter to defendant’s attorney dated June 28, 2018, plaintiff’s attorney claimed that there were “no EUO ‘no-show’ dates” because it had “duly request[ed]” adjournments. On July 17, 2018, defendant’s attorney sent a letter in response that stated that plaintiff had “failed to appear for EUOs on January 8, 2018, March 20, 2018, May 23, 2018 and July 12, 2018.” On July 19, 2018, defendant denied the claim on the ground, among others, that plaintiff had failed “to submit to the [EUO] scheduled for 01/08/2018, 03/20/2018, 05/23/2018 and 07/12/2018.”

Although defendant’s July 19, 2018 denial was issued well after 30 days had passed from plaintiff’s second nonappearance on March 20, 2018 (see Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), defendant’s position is that its denial was nonetheless timely. Defendant notes in its brief that, under the no-fault regulations, insurers are not to treat their insureds in an adversarial fashion (see 11 NYCRR 65-3.2 [b]), and argues that it was abiding by that principle in accommodating plaintiff by offering “additional opportunities to appear in accordance with plaintiff’s own requests” (emphasis in original). Thus, defendant contends, the facts herein are distinguishable from Quality Health Supply Corp. (2020 NY Slip Op 51226[U]) and defendant should not be “penalized” for attempting to work with plaintiff. Moreover, defendant argues, the regulations do not restrict the number of EUOs an insurer may seek.

While we agree that there is nothing in the no-fault regulations preventing an insurer from offering a claimant more than two opportunities to appear for an EUO, that issue is distinct from whether an insurer has properly continued a toll of its time to pay or deny a particular claim (see 11 NYCRR 65-3.6 [b]). Although plaintiff had informed defendant before each scheduled EUO date that it would not appear, defendant does not claim that it had agreed to reschedule any of the EUOs, which rescheduling would not constitute a failure to appear (see Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Instead, defendant placed a statement on the record for each date documenting the nonappearance, told plaintiff by letter that it had “failed to appear for EUOs on January 8, 2018, March 20, 2018, May 23, 2018 and July 12, 2018,” and based its denial on plaintiff’s failure “to submit to the [EUO] scheduled for 01/08/2018, 03/20/2018, 05/23/2018 and 07/12/2018.” Indeed, in its brief, defendant states that it is not arguing “that one or more of the EUO no-shows should ‘not count.’ ” While defendant characterizes this as seeking to accommodate plaintiff, an insurer cannot indefinitely extend its toll of the time to pay or deny a claim after a second nonappearance at a scheduled EUO by scheduling successive additional EUOs until the insurer unilaterally decides that it has offered enough opportunities to appear and [*3]end its toll.

Thus, plaintiff correctly argues that defendant’s motion should have been denied, as defendant failed to establish that it timely denied the claim at issue (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp., 2020 NY Slip Op 51226[U]) and, therefore, defendant has not established that it is not precluded from raising plaintiff’s nonappearance at duly scheduled EUOs as a defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

Contrary to plaintiff’s further contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its cross motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 9, 2022

Law Office of Marina Josovich, P.C. (Marina Josovich of counsel), for appellant. Law Office of Tina Newsome-Lee (Janice A. Robinson and Albert Galatan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), dated August 25, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification, and plaintiff cross-moved for summary judgment. By order dated August 25, 2020, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

Plaintiff correctly argues that defendant’s motion for summary judgment should have been denied, as defendant failed to establish, prima facie, that it properly requested any additional verification from plaintiff. The only request in the purported verification request letters, which defendant sent to plaintiff, is for an explanation as to how the medical supplies furnished by plaintiff affected the treatment plan. That information was specifically being sought from the [*2]prescribing doctor, not from plaintiff, as follows:

“By copy of this letter, we request the following information from the prescribing doctor, Albert Cianmino MD of AC Medical PC:

– Please advise as to how the use of the medical supplies prescribed for the patient above effected [sic] their treatment plan.”

Therefore, as plaintiff argues, these were delay letters, not verification requests (see 11 NYCRR 65-3.6 [b]; see JOA Chiropractic, P.C. v Hereford Ins. Co., 75 Misc 3d 140[A], 2022 NY Slip Op 50598[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Clear Water Psychological Servs., P.C. v Hereford Ins. Co., 68 Misc 3d 127[A], 2020 NY Slip Op 50847[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). While defendant correctly argues in its brief that it was entitled to seek verification directly from the prescribing doctor (see Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]), defendant’s claim that it actually “sought information from Dr. Albert Cianmino” is not supported by the record. Indeed, despite the statement in the first letter that defendant was, by copy of the letter, requesting information directly from the prescribing doctor, the doctor was not carbon copied on the letter and defendant did not allege, much less prove, that the letter was, in fact, mailed to the prescribing doctor.^[FN1] This is not a situation where plaintiff was even obligated to respond to the letter, if only to state that it does not possess the requested information or documents or to seek clarification (cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). On its face, the letter does not require a response from plaintiff.

Consequently, defendant did not demonstrate that this action is premature based on outstanding verification requests, and so its motion for summary judgment dismissing the complaint on that ground should have been denied.

Plaintiff’s cross motion for summary judgment was properly denied as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [*3][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: December 9, 2022

Footnotes

Footnote 1: Defendant relies on a “cover letter to the verification request” which defendant claims in its brief “lists the address of Dr. Cianmino as the primary recipient of the letter.” While such a letter would not constitute proof that the letter was mailed to Dr. Cianmino, it is noted, in any event, that there is no such cover letter in the record on appeal.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 9, 2022

APPEARANCES OF COUNSEL

Hollander Legal Group, P.C. (Allan S. Hollander and Jennifer B. Ettenger of counsel) for appellant.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel) for respondent.

Ordered that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to defendant’s contention on appeal, defendant’s motion failed to establish that defendant had timely denied plaintiff’s claims after plaintiff’s assignor failed to appear at both an initial and a follow-up EUO (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Upon receipt of the claim forms at issue on March 18, [*2]2018, the first EUO was scheduled, by letter sent to assignor’s counsel on March 26, 2018, for April 9, 2018. Neither the assignor nor her counsel appeared on April 9, 2018. On April 12, 2018, defendant sent a letter scheduling the “final date” for the EUO for May 8, 2018. Neither the assignor nor her counsel appeared on May 8, 2018. On May 10, 2018, defendant sent a letter scheduling an EUO for June 6, 2018. The assignor did not appear, but apparently on that day, defendant received a call from the assignor’s counsel, asking for the EUO to be scheduled for June 13, 2018. On June 7, 2018, defendant sent a letter scheduling an EUO for June 13, 2018. On June{**77 Misc 3d at 17} 13, 2018, the assignor again did not appear. For each of these four scheduled dates, defendant’s counsel put a statement on the record documenting the nonappearance. On June 23, 2018, defendant issued a denial of the relevant claims, which denial states, “The claimant failed to attend an [EUO] scheduled on 4/9/18, 5/8/18, 6/6/18 and 6/13/18, which is a breach of the above policy condition . . . .” Defendant argues on appeal that this denial was timely because it was issued within 30 days of the June 13, 2018 failure to appear.

A no-fault claim must be paid or denied “within 30 calendar days after the insurer receives proof of claim” (11 NYCRR 65-3.8 [a] [1]; see e.g. New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]), which period may be tolled by timely and proper requests for verification, including an EUO request. Here, defendant properly commenced a toll of its time to pay or deny these claims by sending an EUO scheduling letter within 15 business days of its receipt of the claim forms (see 11 NYCRR 65-3.5 [b]).^[FN*] Defendant also properly continued the toll by sending a follow-up letter within 10 days of the April 9, 2018 failure to appear, giving the assignor a second opportunity to provide the requested EUO on May 8, 2018 (see 11 NYCRR 65-3.6 [b]). The assignor did not appear on May 8, 2018. As we have held before,

“[w]here, as here, no other verification request is outstanding, the 30-day period for an insurer to pay or deny a claim (see 11 NYCRR 65-3.8 [a] [1]) based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance, when an insurer is permitted to conclude that there was a failure to comply with a condition precedent to coverage” (Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020] [citation omitted][*3][Quality]).

In view of the foregoing, once the assignor failed to appear on{**77 Misc 3d at 18} May 8, 2018, defendant’s 30-day time period to pay or deny the claims at issue began to run, making defendant’s deadline to pay or deny those claims June 7, 2018.

In spite of the rule set forth in Quality, defendant argues that its June 23, 2018 denial was timely. Defendant notes that, under the no-fault regulations, insurers are not to treat their insureds in an adversarial fashion (see 11 NYCRR 65-3.2 [b]). Defendant asserts that it was acting in good faith in scheduling a third EUO due to confusion as to the date of the first EUO and that the fourth EUO was scheduled at the request of the assignor’s counsel. Thus, defendant contends, the facts herein are distinguishable from Quality. In any event, defendant argues, it should not be limited to offering a claimant only two opportunities to appear for an EUO.

While we agree that there is nothing in the no-fault regulations preventing an insurer from offering a claimant more than two opportunities to appear for an EUO, that issue is distinct from whether an insurer has properly continued a toll of its time to pay or deny a particular claim (see 11 NYCRR 65-3.6 [b]). For example, had the assignor appeared on June 6, 2018, the third scheduled date, or June 13, 2018, the fourth scheduled date, defendant could have properly conducted the EUO. However, the toll of defendant’s time to pay or deny the claims at issue ended on May 8, 2018, when the assignor failed to appear for the second scheduled EUO, and any denial based upon a precludable defense—like the defense that the assignor failed to appear for duly scheduled EUOs—would have had to have been issued by June 7, 2018, in order to be timely.

Neither the May 10, 2018 letter scheduling the EUO for June 6, 2018, nor the June 7, 2018 letter scheduling the EUO for June 13, 2018, continued the toll because the no-fault regulations only contemplate one follow-up request for verification (see 11 NYCRR 65-3.6 [b]) and that follow-up request was made on April 12, 2018, in a letter that scheduled a “final date” for the EUO for May 8, 2018. Once the assignor’s second and “final” opportunity to appear for an EUO was scheduled for May 8, 2018, to further toll defendant’s time to pay or deny the claims past June 7, 2018, the parties could have rescheduled that examination for a later date (see Progressive Health Chiropractic, P.C. v American Tr. Ins. Co., 55 Misc 3d 142[A], 2017 NY Slip Op 50603[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] [App{**77 Misc 3d at 19} Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see also Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 [2020]). However, rather than claiming that there was a rescheduling of a scheduled EUO that would have continued the toll past June 7, 2018, defendant clearly treated each of the four scheduled EUOs as a nonappearance, choosing to deny the claim after the fourth one. The no-fault regulations do not permit an insurer to indefinitely extend the toll to pay or deny a claim beyond a second nonappearance by scheduling successive additional EUOs and then arbitrarily choosing when to end its toll.

As defendant has not demonstrated that its June 23, 2018 denial was timely, it has not established that it is not precluded from raising the assignor’s nonappearance at duly scheduled EUOs as a defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). [*4]Thus, its motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order, insofar as appealed from, is affirmed.

Aliotta, P.J., Weston and Buggs, JJ., concur.

Footnotes

Footnote *:Indeed, here defendant had initially sent a letter on March 12, 2018, prior to receiving the claims at issue, which letter scheduled an EUO for April 8, 2018. Upon realizing that April 8, 2018, was a Sunday, defendant sent the March 26, 2018 letter changing the date of the EUO to April 9, 2018. It is noted that the March 12, 2018 pre-claim EUO scheduling letter was also sufficient to commence a toll for the bills subsequently received on March 18, 2018 (see ARCO Med. N.Y., P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

[*1]

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for appellant.

Harriette G. Zelman (Scahill Law Group, P.C., Bethpage, NY [David J. Tetlak], of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated May 23, 2019, the petitioner appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered May 7, 2020. The order denied the petition and, in effect, dismissed the proceeding.

Ordered that the order is affirmed, with costs.

In May 2017, nonparty Eric Rhodes was injured when he was involved in a motor vehicle collision while operating a loaner vehicle owned by nonparty Staluppi Group of Dealerships and insured by Wesco Insurance Company (hereinafter Wesco). Government Employees Insurance Company (hereinafter GEICO) paid no-fault benefits to Rhodes for his injuries pursuant to an automobile liability policy issued to him. GEICO thereafter sought to recover the benefits paid to Rhodes from Wesco in a compulsory arbitration proceeding. In an arbitration award dated May 23, 2019, the arbitrator determined that Wesco, as insurer of the loaner vehicle operated by Rhodes, was liable for the benefits paid to Rhodes.

In August 2019, Wesco commenced this proceeding to vacate the arbitration award. The Supreme Court denied the petition and, in effect, dismissed the proceeding. Wesco appeals.

For the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 731 [2022] [decided herewith]), the Supreme Court properly denied the petition to vacate the arbitration award and, in effect, dismissed the proceeding. Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for appellant.

Scahill Law Group, P.C., Bethpage, NY (David J. Tetlak of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated September 26, 2019, the petitioner appeals from an order of the Supreme Court, Suffolk County (Andrew A. Crecca, J.), dated May 26, 2021. The order denied the petition to vacate the arbitration award and confirmed the arbitration award.

Ordered that the order is affirmed, with costs.

In August 2017, nonparty Dacora Motley was injured when she was involved in a motor vehicle collision while operating a loaner vehicle owned by nonparty Nissan of Huntington and insured by Wesco Insurance Company (hereinafter Wesco). GEICO Indemnity Company (hereinafter GEICO) paid basic no-fault benefits to Motley for her injuries pursuant to an automobile liability policy issued to her. GEICO thereafter sought to recover the benefits paid to Motley from Wesco in a compulsory arbitration proceeding. In an arbitration award dated September 26, 2019, the arbitrators determined that Wesco, as insurer of the loaner vehicle operated by Motley, was liable for the benefits paid to Motley.

In December 2019, Wesco commenced this proceeding seeking to vacate the arbitration award. The Supreme Court denied the petition and confirmed the award. Wesco appeals.

For the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 738 [2022] [decided herewith]), the Supreme Court properly denied the petition and confirmed the arbitration award.

Further, contrary to the petitioner’s contention, it failed to present evidence of actual bias or the appearance of bias on the part of one of the arbitrators (see Kotlyar v Khlebopros, 176 AD3d 793, 795 [2019]; Matter of Heller v Bedford Cent. Sch. Dist., 154 AD3d 754, 755 [2017]). Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

Harriette G. Zelman (Scahill Law Group, P.C., Bethpage, NY [David J. Tetlak], of counsel), for appellant.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated July 11, 2019, GEICO Indemnity Company appeals from an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered December 16, 2019. The order granted the petition to vacate the arbitration award, vacated the arbitration award, and remitted the matter to the arbitrator for a rehearing and new determination.

Ordered that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

In August 2017, nonparty Sarah Pierre was injured when she was involved in a motor vehicle collision while operating a loaner vehicle owned by nonparty Bay Ridge Volvo and insured by Wesco Insurance Company (hereinafter Wesco). GEICO Indemnity Company (hereinafter GEICO) paid basic no-fault benefits to Pierre for her injuries pursuant to an automobile liability policy issued to her (hereinafter the GEICO policy). GEICO thereafter sought to recover from Wesco the benefits paid to Pierre in a compulsory arbitration proceeding. In an arbitration award dated July 11, 2019, the arbitrator determined that Wesco, as insurer of the loaner vehicle operated by Pierre, was liable for the benefits paid to Pierre.

In October 2019, Wesco commenced this proceeding to vacate the arbitration award, and, in an order entered December 18, 2019, the Supreme Court granted the petition, vacated the arbitration award, and remitted the matter to the arbitrator for a rehearing and new determination. GEICO appeals.

Where, as here, the obligation to arbitrate arises through a statutory mandate, the arbitrator’s determination is subject to “closer judicial scrutiny” under CPLR 7511 (b) than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008]). To be upheld, an [*2]award in a compulsory arbitration proceeding “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223; see Matter of Allstate Ins. Co. v Travelers Cos., Inc., 159 AD3d 982, 983 [2018]; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]; Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d 980, 981 [2015]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]).

Here, the arbitrator’s determination that Wesco was liable for the benefits paid to Pierre was not arbitrary and capricious and was supported by the evidence. The mandatory personal injury protection (hereinafter PIP) endorsement in the GEICO policy excluded coverage for injuries sustained by the insured while occupying a vehicle other than the “Insured motor vehicle, with respect to which the coverage required by the New York Comprehensive Motor Vehicle Insurance Reparations Act is in effect.” The PIP endorsement defined “Insured motor vehicle” as a motor vehicle owned by the “insured and to which the bodily injury liability insurance of [the GEICO] policy applies and for which a specific premium is charged.” Since, among other things, the loaner vehicle was not owned by Pierre, the insured, it was not an “Insured motor vehicle” within the meaning of the PIP endorsement. Accordingly, the PIP endorsement in the GEICO policy did not provide coverage for the injuries Pierre sustained while operating the loaner vehicle.

Contrary to Wesco’s contention, the fact that the loaner vehicle constituted a “temporary substitute auto” pursuant to the separate “Bodily Injury Liability” section of the GEICO policy did not result in coverage pursuant to the mandatory PIP endorsement, as the definition of “Insured motor vehicle” in the PIP endorsement did not include a “temporary substitute auto.” Contrary to Wesco’s further contention, Pierre’s agreement with Bay Ridge Volvo, which authorized her to operate the loaner vehicle, did not relieve Wesco of its obligation to provide mandatory PIP coverage for Pierre (see 11 NYCRR 65-1.1, 65-1.7).

Accordingly, the Supreme Court should have denied Wesco’s petition and dismissed the proceeding.

Wesco’s remaining contention is without merit. Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for appellant.

Scahill Law Group, P.C., Bethpage, NY (David J. Tetlak of counsel), for respondent in proceeding No. 2.

In related proceedings pursuant to CPLR article 75, Wesco Insurance Company appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered May 7, 2020. The order, insofar as appealed from, denied the petition of Wesco Insurance Company to vacate an arbitration award dated May 23, 2019, and confirmed the arbitration award.

Ordered that the order is affirmed insofar as appealed from, with costs.

In March 2017, nonparty Linotte Dhaiti was injured when she was involved in a motor vehicle collision while operating a loaner vehicle owned by nonparty New Rochelle Hyundai, LLC, and insured by Wesco Insurance Company (hereinafter Wesco). GEICO Indemnity Company (hereinafter GEICO) paid no-fault benefits to Dhaiti for her injuries pursuant to an automobile liability policy issued to her. GEICO thereafter sought to recover the benefits paid to Dhaiti from Wesco in a compulsory arbitration proceeding. In an arbitration award dated May 23, 2019, the arbitrator determined that Wesco, as insurer of the loaner vehicle operated by Dhaiti, was liable for the benefits paid to Dhaiti.

In August 2019, Wesco commenced a proceeding to vacate the arbitration award. In an order entered May 7, 2020, the Supreme Court, inter alia, denied the petition and confirmed the arbitration award. Wesco appeals.

For the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 738 [2022] [decided herewith]), the Supreme Court properly denied Wesco’s petition to vacate the arbitration award, and confirmed the arbitration [*2]award. Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

Harriette G. Zelman (Scahill Law Group, P.C., Bethpage, NY [David J. Tetlak], of counsel), for appellant.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated May 30, 2019, the petitioner appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered May 13, 2020. The order denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, with costs, the petition is granted, the arbitration award dated May 30, 2019, is vacated, and the matter is remitted to the Supreme Court, Queens County, to remit the matter to the arbitrator for further proceedings consistent herewith.

In April 2018, nonparty Biru Saha entered into a rental agreement with nonparty New Country Motor Car Group, Inc. (hereinafter New Country), which authorized Saha to operate a loaner vehicle owned by New Country and insured by Wesco Insurance Company (hereinafter Wesco). Thereafter, Saha was injured when he was involved in a motor vehicle collision while operating the loaner vehicle. GEICO General Insurance Company (hereinafter GEICO) paid basic no-fault benefits to Saha for his injuries pursuant to an automobile liability policy issued to him. GEICO thereafter sought to recover the benefits paid to Saha from Wesco in a compulsory arbitration proceeding. In an arbitration award dated May 30, 2019, the arbitrator determined that GEICO was liable for the benefits paid to Saha.

In August 2019, GEICO commenced this proceeding to vacate the arbitration award. The Supreme Court denied the petition and dismissed the proceeding. GEICO appeals.

Where, as here, the obligation to arbitrate arises through a statutory mandate, the arbitrator’s determination is subject to “closer judicial scrutiny” under CPLR 7511 (b) than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008]). To be upheld, an award in a compulsory arbitration proceeding “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223; [*2]see Matter of Allstate Ins. Co. v Travelers Cos., Inc., 159 AD3d 982, 983 [2018]; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]; Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d 980, 981 [2015]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]).

Here, the arbitrator’s determination that GEICO was liable for the benefits paid to Saha was arbitrary and capricious and not supported by the evidence. The arbitrator’s interpretation of the rental agreement between Saha and New Country as relieving Wesco of its obligation to provide mandatory personal injury protection (hereinafter PIP) coverage was contrary to 11 NYCRR part 65, which provides, in effect, that all motor vehicle insurance policies must contain a mandatory PIP endorsement; expressly sets forth the language of the PIP endorsement; permits deviations from the prescribed language only upon prior approval; and prohibits any release, express or implied, from mandatory or optional PIP benefits (see 11 NYCRR 65-1.1, 65-1.7, 65-3.18). Moreover, for the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 738 [2022] [decided herewith]), the arbitrator’s determination that GEICO’s policy provided coverage to Saha under the circumstances of this case was not supported by any evidence in the record. Accordingly, the Supreme Court should have vacated the arbitration award (see Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d at 981; Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d at 634; Matter of Allstate Ins. Co. v American Arbitration Assn., 26 AD3d 374 [2006]). Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

Hollander Legal Group, P.C., Melville, NY (Allan S. Hollander and Brian Kaufman of counsel), for appellant-respondent.

The Wright Firm, LLC, Rochester, NY (Ronald F. Wright of counsel), for respondent-appellant.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, the plaintiff appeals, and the defendant cross-appeals, from an order of the Supreme Court, Nassau County (Steven M. Jaeger, J.), dated October 8, 2020. The order, insofar as appealed from, denied the plaintiff’s motion for leave to enter a default judgment against the defendant. The order, insofar as cross-appealed from, denied the defendant’s motion to change venue of the action to Monroe County based upon the convenience of material witnesses.

Ordered that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, and the plaintiff’s motion for leave to enter a default judgment against the defendant is granted; and it is further,

Ordered that the cross appeal is dismissed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The plaintiff, a no-fault insurance carrier, denied claims for reimbursement for medical treatment submitted by the defendant, a medical provider. Subsequently, the defendant commenced arbitration and was awarded the sum of $10,029.73. The plaintiff sought review of the award and the award was confirmed by a master arbitrator. The plaintiff thereafter commenced this action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, in Nassau County, premised on the location of its headquarters and principal place of business. In the complaint, the plaintiff asserted that the defendant was not entitled to reimbursement as the services provided by the defendant were not medically necessary and were not related to the subject motor vehicle accident.

The plaintiff moved for leave to enter a default judgment against the defendant based upon the defendant’s failure to timely answer the complaint or appear in this action. The defendant failed to oppose the motion. Almost two months later, the defendant moved to change venue of the action to Monroe County pursuant to CPLR 510 (3), based upon the convenience of material witnesses. The plaintiff opposed the motion, contending that it was untimely and unsupported on [*2]the merits. In an order dated October 8, 2020, the Supreme Court denied both motions. As to the plaintiff’s motion, the court, in its discretion, found that the issuance of an award in the defendant’s favor, in light of the overall policy in favor of the resolution of litigation on the merits, warranted denial of the plaintiff’s motion. As to the defendant’s motion, the court determined that the defendant failed to satisfy any of the criteria set forth in CPLR 510 (3). The plaintiff appeals and the defendant cross-appeals.

Pursuant to CPLR 3215 (f), “[a]n applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to answer or appear” (Countrywide Home Loans Servicing, L.P. v Vorobyov, 188 AD3d 803, 806 [2020]; see Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C., 170 AD3d 1125, 1126 [2019]; Fried v Jacob Holding, Inc., 110 AD3d 56, 59 [2013]). To demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine if the claim is viable (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Fried v Jacob Holding, Inc., 110 AD3d at 60; Neuman v Zurich N. Am., 36 AD3d 601, 602 [2007]).

“In order to successfully oppose a motion for leave to enter a default judgment, a defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action” (Maldonado v Mosquera, 186 AD3d 1352, 1353 [2020]). Where the defendant fails to demonstrate a reasonable excuse for its default, the court need not consider whether the defendant possesses a potentially meritorious defense to the action (see OneWest Bank v Schiffman, 175 AD3d 1543, 1545 [2019]). “[D]efaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” (Rosenzweig v Gubner, 194 AD3d 1086, 1088 [2021] [internal quotation marks omitted]).

In support of its motion, the plaintiff submitted proof of service of the summons and complaint via delivery to an employee at the defendant’s actual place of business (see CPLR 308 [2]). In further support, the plaintiff submitted its attorney’s affirmation, inter alia, attesting to the defendant’s failure to answer or appear in this action, thereby admitting all traversable allegations (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]; see also Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C., 170 AD3d at 1126). The plaintiff also submitted, inter alia, a copy of the complaint verified by its counsel, its expert’s affirmed peer review, and the arbitration award and the master arbitration award affirming the original arbitration award, which were sufficient to establish that the plaintiff had a viable cause of action against the defendant (see Woodson v Mendon Leasing Corp., 100 NY2d at 71; Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C., 170 AD3d at 1126).

Because the defendant failed to oppose the plaintiff’s motion, he failed to meet his burden of establishing a reasonable excuse. Accordingly, the Supreme Court’s denial of the plaintiff’s motion for leave to enter a default judgment against the defendant was an improvident exercise of discretion, and the plaintiff’s motion should have been granted.

In light of our determination, the cross appeal has been rendered academic. Rivera, J.P., Maltese, Ford and Taylor, JJ., concur.