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

Jessica Barros, plaintiff-assignor, was involved in a motor vehicle accident on July 2, 2020, and sought medical treatment from Pedro Torres-Jimenez, MD PC (plaintiff). Plaintiff commenced this action against Nationwide Affinity Insurance Company of America seeking to [*2]recover $3,228.78 representing the balance of alleged first-party no-fault benefits for medical services provided to plaintiff-assignor.

Upon the foregoing papers, plaintiff moves pursuant to CPLR 3211 (b) to dismiss defendant’s 36 affirmative defenses (motion sequence no. 001). Defendant opposes plaintiff’s motion and cross-moves for summary judgment (motion sequence no. 002).

Defendant’s Cross-Motion for Summary Judgment

Defendant seeks summary judgment on the grounds that plaintiff failed to provide verification of the claim within 120 days of the initial request pursuant to the no fault regulations.^[FN1] . In support of the cross-motion, defendant submits an attorney affirmation, the pleadings, affidavit of Claims Manager Lynn Ellis, EUO letter dated 10/9/2020, response dated 10/15/2020, amended EUO letter dated 10/16/2020, response dated 11/4/2020, EUO transcript dated 11/16/2020, post-EUO request for verification dated 11/23/2020, follow up request post-EUO for verification dated 12/29/2020, second follow up request post-EUO for verification dated 3/11/2021, attorney affidavit of merit, no-fault affidavit of merit, affidavit of merit by Linda Arnold, Claims Specialist III.

The movant on a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). CPLR 3212 provides that a summary judgment motion must be supported by an affidavit of a person with knowledge of the facts, as well as other admissible evidence (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-386 [2005]).

Once such a showing is made, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986], citing Zuckerman, 49 NY2d at 562).

The no fault insurance scheme is designed to provide a quick resolution of the reimbursement of claims, avoid litigation, and incentivize an insurer to seek verification of a claim, deny it, or pay it in short order (see Viviane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498, 506-07 [2015]; Matter of Med. Socy. of State v Serio, 100 NY2d 854, 860 [2003]). The procedure to verify, deny, or pay claims is codified and governed by Insurance Law 5106 (a).

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received” (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009]). If the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of receipt of the proof of claim (11 NYCRR 65—3.5[b]; see New York Univ. Hosp. Tisch Inst. v Govt. Employees Ins. Co., 117 AD3d 1012, 1014 [2d Dept 2014]).

“Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the [*3]expiration of that 30—day period, must follow up with a second request for verification (see 11 NYCRR 65—3.6 [b])” (Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 120 AD3d 561, 563 [2d Dept 2014]). The insurer may deny the claim if the applicant fails to provide the verification within 120 calendar days from the date of the initial request, unless the applicant provides written proof providing reasonable justification for the failure to comply (11 NYCRR 65-3.5 [o]).

To meet its prima facie burden, defendant must establish that “it had timely mailed initial and follow-up verification requests; that it had not received the requested verification; and that it had timely denied the claim on that ground” (Psychology YME, P.C. v Travelers Ins., 65 Misc 3d 146[A], 2019 NY Slip Op 51798[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Solution Bridge, Inc. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 152[A], 2018 NY Slip Op 51784[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Mailing and Follow Up for Verification Requests

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

Here, the Court finds that defendant established its timely mailing of the initial and follow up verification requests for a provider EUO through the affidavit of Claims Manager Lynn Ellis, addressing defendant’s practices and procedures for processing no-fault claims, including verifications requests, letters and denials as well as her personal knowledge regarding this claim (NYSCEF Doc No. 15, Ellis aff). With respect to this particular claim, Ellis confirmed that the bill was received on September 21, 2020, defendant sent the initial verification within 15 business days on October 8, 2020, and a follow up was sent on November 10, 2020 — within 10 days from the 30th day after the initial verification request was mailed (id. at ¶ 31-33; NYSCEF Doc No 16).

The Ellis affidavit accordingly sufficiently establishes that the verification requests were mailed in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Blackman v Nationwide Ins., 66 Misc 3d 128[A], 2019 NY Slip Op 52038[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]) and in a timely manner as required by 11 NYCRR 65—3.6 (b).

Outstanding Verifications

Plaintiff-provider submitted to an examination under oath (EUO) on November 16, 2020.

Defendant claims that plaintiff’s testimony raised questions that could be relevant to a possible defense. Attorney Kaufman described that plaintiff’s principal could not answer or had [*4]difficulty answering questions regarding the formation of the professional corporation entity, its locations, whether it pays rent, where patients are seen, and the identity of medical providers and employees, affiliation with other entities and individuals and payment of taxes (NYSCEF Doc No. 12, Kaufman aff at ¶ 28). The affidavit of Linda Arnold, Claims Specialist III, who is responsible for investigating medical providers by verifying that they are licensed or ineligible to receive no-fault reimbursement, itemizes the specific additional verification sought from plaintiff post-EUO (NYSCEF Doc No. 28, Arnold aff at ¶ 7).

The post-EUO verification request was sent on November 23, 2020 and a follow up was sent on December 29, 2020 (NYSCEF Doc No. 12, Kaufman aff at ¶ 29-30). Plaintiff responded in part on March 3, 2021 and asserting its objection to the request for additional verification and scope of the discovery sought (NYSCEF Doc No. 12, Kaufman aff at ¶ 31 and NYSCEF Doc No. 24, exhibit L). Defendant followed up again noting deficiencies on March 11, 2021 (id. at ¶ 32 and NYSCEF Doc No. 25, exhibit M). Arnold specifies several items that remain outstanding to date in the verification request and references the corresponding portions of the EUO transcript (see NYSCEF Doc No. 28, Arnold aff, p. 4-10).

In opposition, plaintiff points to 11 NYCRR 65-3.8(a)(1), which states:

No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart. In the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day of the examination was performed.

Plaintiff argues that the verification was deemed “received” on the date of the EUO on November 16, 2020 and that the additional verification request sent post-EUO was untimely, as “11 NYCRR 65-3.5 (b) provides that “any additional verification . . . shall be requested within 15 business days of receipt of the prescribed verification forms” (Burke Physical Therapy, P.C. aao Rush v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024] [emphasis in original]; see also Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]; A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53 [2d Dept 2012]; Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

This Court agrees. Even when the time to pay or deny a claim has been tolled by a timely verification request, “the Regulations do not provide that such a toll grants an insurer additional opportunities to make requests for verification that would otherwise be untimely” (Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Defendant relies on Nationwide Affinity Ins. Co. v Gepp, 234 AD3d 1320 (4th Dept 2025), which permitted post-EUO verification requests that were otherwise untimely. In Gepp, the Fourth Department held that “[u]nder the specific facts of this case . . . post-EUO requests were proper” because the parties had “charted their own litigation course” — the court held the provider to the agreements they made at the EUO. Specifically, “[r]ather than continuing to request EUOs in the hope that defendants produced a knowledgeable representative,” counsel for the parties agreed that those issues would be best resolved by written demands and answers” (id. at 1323 [internal citation omitted]). Accordingly, Gepp was a very specific set of circumstances where the parties had agreed to conduct additional verification in writing rather than conduct an EUO of a different witness and the Gepp Court made clear that the post-EUO requests were [*5]proper “[u]nder the specific facts of this case” — it was not intending to expand the timeliness or scope of verifications otherwise mandated in the clearly written regulations.

Accordingly, based on these undisputed facts, the Court finds defendant failed to meet its prima facie burden on this defense and the “[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad, 64 NY2d at 853).

Plaintiff’s Motion to Dismiss Affirmative Defenses

In support, plaintiff submits an attorney affirmation, the pleadings, assignment of benefits, verification of treatment (NF-3), opinion of the NYS Department of Financial Services regarding billing codes and ICD diagnosis codes.

Upon a motion pursuant to CPLR 3211 (b), “the plaintiff bears the burden of demonstrating that the affirmative defense is ‘without merit as a matter of law'” (Greco v Christoffersen, 70 AD3d 769, 771 [2d Dept 2010], quoting Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]). “In reviewing a motion to dismiss an affirmative defense, this Court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference” (Greco, 70 AD3d at 771).

Defendant’s answer asserts 36 affirmative defenses that are pled in boilerplate fashion, which the Appellate Term has previously held is “not acceptable practice” (see Island Life Chiropractic Pain Care, PLLC v Zipcar, 72 Misc 3d 141[A], 2021 NY Slip Op 50844[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

At the same time, however, plaintiff’s motion, supported by a 53-page attorney affirmation “contained numerous misleading or erroneous statements of law,” which also should not be countenanced (see id.). For example, in seeking to dismiss the third affirmative defense, “[p]laintiff also ignored that ‘no motion by the plaintiff lies under CPLR 3211 (b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim'” (id., quoting Butler v Catinella, 58 AD3d 145 [2d Dept 2008]).

“This Court will not prune plaintiff’s motion and separate the potentially valid arguments from plaintiff’s numerous invalid or questionable arguments” (Island Life Chiropractic Pain Care, PLLC, 2021 NY Slip Op 50844[U], *2).

Finally, there is no basis to award attorneys’ fees as sanction under Rule 130-1.1. Therefore, plaintiff’s motion is denied in its entirety.

Accordingly, it is hereby ORDERED that plaintiff’s motion to dismiss defendant’s affirmative defenses and for sanctions (motion sequence no 001) is denied; and it is further

ORDERED that defendant’s cross-motion for summary judgment on its outstanding verification request (motion sequence no 002) is denied.

This constitutes the decision and order of the Court.

“NOTICE OF MOTION BY DEFENDANT TO DISMISS THE COMPLAINT” (NYSCEF Doc 4), dated and filed May 7, 2024, respectively, by Michael J. Rossignol, Esq. (Riker Danzig LLP), counsel for defendant, Everest Denali Insurance Company (“Everest”), seeking an Order “pursuant to CPLR § 3211 dismissing all claims in the Complaint as against Everest [;]” and “NOTICE OF CROSS-MOTION” (NYSCEF Doc 22), dated and filed May 30, 2024, by Jason S. Firestein (Zlotolow & Associates, P.C.), seeking an Order “pursuant to CPLR §3212 granting the plaintiff summary judgment on her Third Cause of Action which seeks a declaration that the claims submitted by the Plaintiff and/or her assignors did in fact arise out of use and operation of a vehicle and in particular, the vehicle insured by the Defendant herein [;]” are consolidated for the purpose of disposition and decided as set forth below.

On December 13, 2023, plaintiff commenced the instant action with the filing of her complaint seeking monetary damages for economic injuries allegedly sustained when defendant disclaimed coverage of No-Fault insurance benefits related to medical bills amounting to $25,000.00 plus interest, resulting from a vehicular accident on September 22, 2021, wherein plaintiff was the passenger of the insured’s vehicle. Plaintiff asserts that defendant has paid no portion of the due payments, having disclaimed coverage on the basis that plaintiff’s injuries did [*2]not arise out of use and occupation of a motor vehicle. Plaintiff’s complaint asserts three causes of action, namely, for monetary damages (First Cause of Action), attorney’s fees (Second Cause of Action), and for a declaratory judgment that Everest’s disclaimer was improper, and that plaintiff’s injuries did arise out of the use and operation of the insured’s vehicle (Third Cause of Action).

Everest now moves, pre-answer, to dismiss plaintiff’s complaint, pursuant to CPLR 3211. In support, movant submits its Memorandum of Law (NYSCEF Doc 5) and Affirmation in Support (NYSCEF Doc 6); and Arbitration Award (NYSCEF Doc 7); Everest’s arbitration papers (NYSCEF Docs 8 — 11); plaintiff’s arbitration papers (NYSCEF Doc 12); and an Affirmation in Opposition to plaintiff’s cross-motion (NYSCEF Doc 31).

Plaintiff cross-moves for a summary judgment granting a declaration that plaintiff’s injuries arose out of the operation and use of the insured’s motor vehicle. In opposition to the motion-in-chief, and in support of her cross motion, plaintiff submits her Affirmation in Opposition (NYSCEF Doc 15); complaint commencing lawsuit by EAN Holdings, LLC. (NYSCEF Doc 16); rental vehicle photographs (NYSCEF Docs 17 and 19); Affidavit of Jason Firestein (NYSCEF Doc 18); Affirmation of Mercedes Espinal (NYSCEF Doc 20); plaintiff’s deposition transcript from 2nd action (NYSCEF Doc 21); Affirmation in Support of Cross-Motion (NYSCEF Doc 23); the Affidavit of the defendant driver (NYSCEF Doc 24); plaintiff’s Examination Under Oath (“EUO”) transcript (NYSCEF Doc 25); Everest’s disclaimer of benefits (NYSCEF Doc 26); EUO transcript letter (NYSCEF Doc 28); and disclaimers to medical providers (NYSCEF Doc 29).

Movant contends, briefly, that the binding decision and award of the American Arbitration Association tribunal (NYSCEF Doc 7) ruled that defendant had sufficiently demonstrated that the accident did not transpire as alleged by plaintiff, and that plaintiff’s action should therefore be dismissed. Movant further asserts that, although plaintiff was not a litigant in the arbitration, plaintiff is nonetheless bound by collateral estoppel because she shares privity with the petitioner in that proceeding.

In opposition, plaintiff argues that she was not a participant in the arbitration proceedings, which were commenced in the absence of critical supporting evidence by then-petitioner Comprehensive MRI. Although plaintiff concedes that she assigned her claim to Comprehensive MRI, she insists that she lacked a full and fair opportunity to litigate that matter; ergo, neither claim preclusion nor collateral estoppel are properly applicable here. Additionally, plaintiff highlights that the defendant in the prior arbitration is listed as Rental Claims Services – ELRAC LLC, which is a different insurer from the defendant in the instant matter; and further, attests that ELRAC denied the claim on the grounds that it was the incorrect insurer for the accident. Plaintiff asserts that defendant’s disclaimer of coverage indicates, vaguely, that coverage was denied based on an EUO, without specifying to which examination it referred. Plaintiff’s own March 15, 2022, EUO testimony (NYSCEF Doc 25) deposed that the offending driver was operating a van when he backed out of the intersection at Trinity Avenue and Westchester Avenue, striking the elderly plaintiff and her companion as they traversed a crosswalk, before leaving the scene of the accident. The police report also provides a similar narrative of events. Although defendant’s Affidavit (NYSCEF Doc 24) states that his vehicle never struck any pedestrians at the time of the accident, plaintiff’s EUO testimony averred that the vehicle lacked a rear-view mirror or rear windows, by which plaintiff’s counsel infers that it is likely that the driver never became aware of his collision with plaintiff.

In support of her cross-motion plaintiff contends, inter alia, that defendant’s disclaimer was untimely, in that it was issued on November 2, 2022, almost eight months subsequent to plaintiff’s March 15, 2022, EUO, and in contravention of (i) Insurance Law §3420(d), which requires that insurers give the claimant written notice of a coverage disclaimer as soon as is reasonably possible; (ii) 11 NYCRR §65-3.8(a)(1), which deems No-Fault benefits to be overdue if not paid within 30 calendar days after receipt of proof of claim, which is deemed received on the date an EUO is conducted; and (iii) 11 NYCRR §65-3.8(c)(1), which requires either payment or the submission of a denial of claim form to the claimant within 30 days, where such claim involves elements of basic or extended economic loss. Plaintiff also posits that the decisional rule that arbitration rulings are binding upon parties in direct privity with the litigants is superseded in this instance by Insurance Law §5106(e), which prevents arbitration decisions from imparting any collateral estoppel effect in an action arising from the same underlying claim seeking damages for bodily injury, pain and suffering, medical care and loss of wages.

In reply, movant argues that plaintiff was not entitled to a detailed disclaimer of coverage because her claim does not fall within the terms of the policy. Everest also asserts that Insurance Law §5106(e) is inapplicable here, since the instant action does not seek damages for bodily injuries caused by one covered person against another covered person, pursuant to Insurance Law §5104, but instead seeks recovery of No-Fault medical benefits payments. Movant states that plaintiff has filed another matter under Bronx County Supreme Court index number 808777/2022E, wherein plaintiff seeks damages for personal injuries caused by the driver’s negligence during the alleged underlying accident. Finally, movant argues that the motion in chief should not be converted into a summary judgment motion without notice to the parties, and further, that outstanding issues of fact, including discrepancies between the driver’s and the plaintiff’s testimonies preclude summary judgment in this instance.

A. Everest’s Motion to Dismiss

This Court turns firstly to movant Everest’s motion to dismiss on the grounds that plaintiff’s cause of action may not be maintained because of collateral estoppel, pursuant to CPLR 3211(a)(5).

The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same. Ryan v. New York Tel. Co., 62 NY2d 494, 500 (1984). Privity is an amorphous concept that includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and those who are co-parties to a prior action. See Buechel v. Bain, 97 NY2d 295, 304 (2001). “In addressing privity, courts must carefully analyze whether the party sought to be bound and the party against whom the litigated issue was decided have a relationship that would justify preclusion, and whether preclusion, with its severe consequences, would be fair under the particular circumstances. Doubts should be resolved against imposing preclusion to ensure that the party to be bound can be considered to have had a full and fair opportunity to litigate.” Id. Moreover, collateral estoppel principles apply as well to awards in arbitration as they do to adjudications in judicial proceedings. See Feinberg v. Boros, 99 AD3d 219, 226 (1st Dept. 2012); Am. Ins. Co. v. Messinger, 43 NY2d 184, 189 (1977).

The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate. In re Dunn, 24 NY3d 699, 704 (2015). Once the issue of identity between the prior and pending actions is established, certain factors should be considered to determine whether a full and fair opportunity to litigate the issue at bar existed, including: “the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel, the availability of new evidence, the differences in the applicable law and the foreseeability of future litigation. Clemens v. Apple, 65 NY2d 746, 748 (1985); also see Ryan v. New York Tel. Co., 62 NY2d 494, 501 (1984). For instance, in Dunn, supra, the New York Court of Appeals held that a disciplinary proceeding commenced against an attorney respondent lacked collateral estoppel effect where that proceeding provided no opportunity to call witnesses or conduct cross-examination. In re Dunn, supra at 704. On the other hand, where a litigant knowingly eschewed a fair opportunity to present evidence in a prior proceeding, it cannot later present that evidence as “new evidence” to avoid preclusion by collateral estoppel. See Ryan v. New York Tel. Co., supra at 503.

Upon analysis and review of statutory authority, relevant case law, the papers submitted, and the record, this Court determines that movant has not established that collateral estoppel should bar plaintiff from commencing the instant action. This Court is cognizant that movant has met its burden to show (i) that the issue litigated in the arbitration was identical to that which forms the gravamen of plaintiff’s present suit, namely, whether plaintiff’s medical claims resulted from impact by the vehicle covered under the defendant’s issued policy; and (ii) that by assigning the rights to her claim to medical provider Comprehensive MRI, plaintiff established privity of contract with that entity, who subsequently consented to resolve the claim in arbitration. Nonetheless, plaintiff has sufficiently demonstrated that she lacked a full and fair opportunity to litigate the issue at bar. The decision issued by the American Arbitration Association (NYSCEF Doc 7) following a single hearing held on June 13, 2023, held that the tribunal’s determination rested primarily on the assertion of Steve Turner, the vehicle’s driver, that the covered vehicle had not been involved in an accident (see NYSCEF Doc 24), as well as the inconsistencies in plaintiff’s EUO testimony (NYSCEF Doc 25) as to the identifying features of the driver. The arbitration decision further noted that petitioner Comprehensive MRI had been unable to provide any additional evidence to refute respondent Everest’s contentions. Pertinently, plaintiff’s opposition papers assert that Comprehensive MRI commenced its proceeding without providing notice or invitation to the plaintiff, and without obtaining any of the evidence within her possession that could have established the identity of the covered vehicle. Such evidence includes the testimony of Mercedes Espinal who could have attested to her own involvement in the vehicular accident, as well as the photographs taken by Espinal at the time of the accident, which depict the vehicle and license plate (NYSCEF Doc 19). Additionally, as in Dunn, supra, the plaintiff lacked an opportunity to call or cross-examine witnesses which, pertinently, included the plaintiff herself. In Clemens v. Apple, the Court of Appeals denominated the availability of new evidence as among the factors to be weighed in assessing a party’s opportunity to fully and fairly litigate an issue in a prior action (see Clemens, supra at 748). Of course, new evidence rarely pops spontaneously into existence — rather, previously undiscovered evidence is generally designated as “new” based on its previous non-availability to the litigants in a prior proceeding.

This Court also finds the procedural history of the instant matter to be patently distinguishable from the circumstances presented in the decisional authority, Ryan v. New York Tel. Co., supra. In Ryan, the Court of Appeals held that the plaintiff had been afforded a full and fair opportunity in a prior administrative hearing to litigate the underlying issue of his misconduct and termination, having directly initiated and participated in the proceeding, testifying, and by cross-examining defendant’s witnesses through his union representative; and further, that the evidence later proffered as “new” on appeal had been available to plaintiff during the prior hearing, but was inexplicably not submitted for review. Conversely, here the record indicates that plaintiff had no knowledge of the arbitration proceeding, had been afforded no opportunity to provide evidence to the litigant representing her interests, and did not testify; further the record also shows that no cross-examination of the alleged driver was conducted during the arbitration proceeding. Even were this Court to accept the likely counter-argument that such evidence should have been uncovered by the due diligence of Comprehensive MRI’s counsel, that assertion directly calls into question the competence and expertise of that counsel, as contended in the Affidavit of plaintiff’s own counsel, Jason Firestein (NYSCEF Doc 18), and which also weighs against the application of estoppel here (see Clemens, supra).

This Court is also mindful of the Beuchel Court’s implicit admonition against imposing preclusion where doubts persist as to whether the prior proceeding conferred a full and fair opportunity to the litigant to be precluded (see Buechel v. Bain, supra at 304). As a result, it is determined that sufficient doubts exist as to whether plaintiff was afforded a full and fair opportunity to litigate the central issue in this action to avert her preclusion here, in light of the assignee’s non-possession of probative evidence during the prior arbitration, particularly where the availability of that evidence could have established the identity of the offending vehicle in the absence of plaintiff’s accurate description of the driver, or might have otherwise have permitted a sound rebuttal to the countervailing arguments.

Separately, this Court agrees with movant’s position that Insurance Law §5106(e) does not apply here, where plaintiff is not seeking monetary damages for personal injuries as authorized under Insurance Law §5104. Similarly, Insurance Law §3420(d) does not apply where the claimant is not explicitly covered by the policy (see Zappone v. Home Ins. Co., 55 NY2d 131, 135 [1982]).

Therefore, movant’s motion to dismiss plaintiff’s action as barred by collateral estoppel is DENIED.

We now turn to plaintiff’s cross-motion seeking summary judgment declaring that the claims submitted by plaintiff and her assignees arose through the use and operation of a motor vehicle covered by defendant Everest.

The proponent of a summary judgment motion has the burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing entitlement to judgment as a matter of law. Giuffrida v Citibank Corp., 100 NY2d 72 (2003); Alvarez v Prospect Hosp., 68 NY2d 320 (1986); Winegrad v New York University Medical Center, 64 NY2d 851 (1985). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. Winegrad, supra at 853. “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are [*3]insufficient” to rebut the movant’s claims and establish that triable issues of fact exist. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the non-moving party and should not pass on issues of credibility. Dauman Displays, Inc. v. Masturzo, 168 AD2d 204, 205 (1990); also see Latif v. Eugene Smilovic Hous. Dev. Fund Co., 147 AD3d 507, 508 (1st Dept. 2017), holding that where a plaintiff’s testimony contains inconsistencies, they are not appropriately resolved on a summary judgment motion.

Here, it is clear that the contradictory testimonies of Steve Turner (NYSCEF Doc 24), plaintiff (NYSCEF Docs 21 and 25), and Mercedes Espinal (NYSCEF Doc 20), highlight the existence of unresolved issues of fact that preclude summary judgment, particularly where the resolution of those questions require comparative assessments of various witness’ credibility (see Dauman Displays, Inc. v. Masturzo, supra at 205). In light of the above, plaintiff’s cross-motion for summary judgment is DENIED.

The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the parties was not addressed by the Court, it is hereby denied.

Accordingly, movant’s motion to dismiss plaintiff’s complaint, and plaintiff’s cross-motion for summary judgment, are both DENIED, as stated herein.

Plaintiff is directed to serve a copy of this decision and order with notice of entry, upon all parties within thirty (30) days of entry, and to upload proof of service onto the NYSCEF system.

This constitutes the decision and order of this Court.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Marshall Dennehey Warner Coleman & Goggin (Aneshia Chintamani of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), dated June 6, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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 defendant had not issued an insurance policy covering plaintiff’s assignor and, thus, plaintiff’s assignor was not an eligible injured person entitled to receive no-fault benefits. By order dated June 6, 2024, the Civil Court (Mary A. Kavanagh, J.) granted defendant’s motion.

As plaintiff properly contends on appeal, defendant failed to establish its entitlement to summary judgment dismissing the complaint as the affidavit submitted by a claims adjuster from “USAA General Indemnity Company” was insufficient to establish, prima facie, defendant’s lack of coverage defense. Here, the claims adjuster did not establish that she was employed by defendant or how defendant and her employer were related to each other. Moreover, she failed to establish that she had personal knowledge of defendant’s standard practices and procedures for maintaining or searching for information related to policyholders and current or past policies. Indeed, the claims adjuster failed to set forth that a search of defendant’s records or databases was ever conducted for the instant case. Rather, she merely stated in her affidavit that “USAA General Indemnity Company” did not insure plaintiff’s assignor, his vehicle, nor anyone that resided with plaintiff’s assignor. This statement was insufficient, and, as a result, defendant failed to satisfy its prima facie burden entitling it to summary judgment dismissing the complaint (cf. Delta Diagnostic Radiology, P.C. v Am. Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op [*2]51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co., 31 Misc 3d 138[A], 2011 NY Slip Op 50743[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant’s motion should have been denied regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

BUGGS, J.P., OTTLEY and QUIÑONES, JJ., concur.

Alahverdian Van Leuvan, P.C. (Gerard R. Van Leuvan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lola Waterman, J.), entered May 21, 2024. The order denied the branch of defendant’s motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint. In support of its motion, defendant argued that the Civil Court did not obtain personal jurisdiction over it because it is an Ohio company which is not authorized to do business in New York, and that it has not filed a statement with the Superintendent of Insurance agreeing that its automobile insurance policies will be deemed to satisfy the requirements of the New York Vehicle and Traffic Law; that the $5,000 limit of the insurance policy had been exhausted prior to plaintiff’s claims; and that it was not properly served with the summons and complaint. By order entered May 21, 2024, the Civil Court (Lola Waterman, J.) solely addressed, and denied, the branch of defendant’s motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction (see CPLR 3211 [a] [8]). The court found that defendant “failed to produce evidentiary proof in admissible form.” Specifically, the affidavit by defendant’s director of claims, which was signed and notarized in Ohio, lacked a certificate of conformity, and the insurance policy’s declaration page was not certified and lacked any foundation. The order concluded by noting that “issues of material fact exist as to whether defendant does not do business in the State of New York,” and that “This case shall proceed on to trial on the issue of personal jurisdiction.” On appeal, defendant contends that the Civil Court should have granted the branch of its motion seeking to dismiss the complaint on the ground of lack of jurisdiction.

In addition to its determination that there were various deficiencies in defendant’s [*2]submissions which required its motion to be denied, the court found that sufficient issues of fact existed “as to whether defendant does not do business in the State of New York” and, therefore, held that the issue of personal jurisdiction would be determined at trial. We find that this determination by the Civil Court was proper under the circumstances of this case.

Defendant’s remaining contentions either lack merit or are unpreserved for appellate review.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

Upon a review of the record, we find that the papers defendant submitted in support of the branch of its motion seeking summary judgment dismissing the complaint failed to demonstrate by admissible proof, as a matter of law, that defendant provided the insured with proper notice of cancellation in accordance with Vehicle and Traffic Law § 313 (1) (a) (see Island Life Chiropractic Pain Care, PLLC v Allstate Ins. Co., 60 Misc 3d 132[A], 2018 NY Slip Op 51006[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). In addition, we note that defendant, in any event, has not demonstrated that the alleged cancellation of the policy was effective with respect to plaintiff’s assignor, who was not the named insured or a member of the insured’s household (see Vehicle and Traffic Law § 313 [2] [a]; [3]; Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]; Matter of Progressive Northeastern Ins. Co. v Barnes, 30 AD3d 523 [2006]; Pravel, Inc. v State Farm Mut. Auto. Ins. Co., 67 Misc 3d 132[A], [*2]2020 NY Slip Op 50457[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Art of Healing Medicine, P.C. v Allstate Ins. Co., 54 Misc 3d 46 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Advanced Med. Care, P.C. v Allstate Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50130[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; GL Acupuncture, P.C. v Geico Ins. Co., 48 Misc 3d 141[A], 2015 NY Slip Op 51239[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint should have been denied.

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

For the reasons stated in Prompt Med. Group, Inc., as Assignee of Philippe F. Polidor v Foremost Signature Ins. Co. (— Misc 3d —, 2025 NY Slip Op — [appeal No. 2024-1129 RI C], decided herewith), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

For the reasons stated in Prompt Med. Group, Inc., as Assignee of Philippe F. Polidor v Foremost Signature Ins. Co. (— Misc 3d —, 2025 NY Slip Op — [appeal No. 2024-1129 RI C], decided herewith), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Rothenberg & Romanek (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered October 22, 2024. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Mary A. Kavanagh, J.) entered October 22, 2024 as granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was no insurance coverage for the vehicle allegedly involved in a November 4, 2022 accident, as the insurance policy had been cancelled on October 24, 2022.

For the reasons stated in Prompt Med. Group, Inc., as Assignee of Philippe F. Polidor v Foremost Signature Ins. Co. (— Misc 3d —, 2025 NY Slip Op — [appeal No. 2024-1129 RI C], decided herewith), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is denied.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

Alahverdian Van Leuvan, P.C. (Gerard Van Leuvan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lola Waterman, J.), entered May 21, 2024. The order denied the branch of defendant’s motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint. In support of its motion, defendant argued that the Civil Court did not obtain personal jurisdiction over it because it is an Ohio company which is not authorized to do business in New York, and that it has not filed a statement with the Superintendent of Insurance agreeing that its automobile insurance policies will be deemed to satisfy the requirements of the New York Vehicle and Traffic Law; that the $5,000 limit of the insurance policy had been exhausted prior to plaintiff’s claims; and that it was not properly served with the summons and complaint. By order entered May 21, 2024, the Civil Court (Lola Waterman, J.) solely addressed, and denied, the branch of defendant’s motion seeking to dismiss the complaint on the ground of lack of personal jurisdiction (see CPLR 3211 [a] [8]). The court found that defendant “failed to produce evidentiary proof in admissible form.” Specifically, the affidavit by defendant’s director of claims, which was signed and notarized in Ohio, lacked a certificate of conformity, and the insurance policy’s declaration page was not certified and lacked any foundation. The order concluded by noting that “issues of material fact exist as to whether defendant does not do business in the State of New York,” and that “This case shall proceed on to trial on the issue of personal jurisdiction.” On appeal, defendant contends that the Civil Court should have granted the branch of its motion seeking to dismiss the complaint on the ground of lack of jurisdiction.

In addition to its determination that there were various deficiencies in defendant’s submissions which required its motion to be denied, the court found that sufficient issues of fact existed “as to whether defendant does not do business in the State of New York” and, therefore, held that the issue of personal jurisdiction would be determined at trial. We find that this determination by the Civil Court was proper under the circumstances of this case.

Defendant’s remaining contentions either lack merit or are unpreserved for appellate review.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.