This Honorable Court, upon due deliberation at Trial held on September 15, 2025, Decides and Orders as follows:

Defendant abandoned its medical necessity defense at the commencement of trial and opted to proceed on a fee schedule defense. Court order sending instant case to trial, did not address fee schedule as a defense for trial. Rather, court order addressed medical necessity and outstanding verifications as issues of fact for trial. Further, Defendant’s denied motion for summary judgment papers failed to make arguments as to a fee schedule defense. Nevertheless, at trial, Defendant argued that it is unnecessary since fee schedule is a non-precludable defense which can be brought up at anytime up to and including at trial, without issuing denial pursuant to the 30-Day Denial Rule (11 NYCRR § 65-3.8). Defendant relied on a specific case in the application of the effective April 1, 2013 11 NYCRR § 65-3.8 (g) (1) amendment (E. Coast Acupuncture, P.C. v Hereford Ins. Co., 51 Misc 3d 441, 442 [Civ Ct, Kings County 2016]). By a lower limited trial court of concurrent jurisdiction, East Coast held, in an unopposed motion for summary judgment, 11 NYCRR § 65-3.8 (g) (1) amendment rendered fee schedule as a non-precludable defense not required to comply with the 30-Day Denial Rule, citing several other cases likewise by courts of concurrent jurisdiction.

“Although the amendment does not change plaintiff’s prima facie burden, I find that the new language establishes that a fee schedule defense, for services after April 1, 2013, is not precluded if it is not asserted within 30 days of receipt of the claim. The regulation appears to be a carve-out from 11 NYCRR 65-3.8 (a) (1), which states that HN5 ‘[n]o-[*2]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.’ Conversely, 11 NYCRR 65-3.8 (g) (1) imposes no deadline on the insurance company’s determination. At least two courts in the First Department concur with this court’s interpretation of 11 NYCRR 65-3.8 (g) (1) (see Saddle Brook Surgicenter, LLC v All State Ins. Co., 48 Misc 3d 336, 344-345, 8 NYS3d 875 [Civ Ct, Bronx County 2015]; Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85, 87, 25 NYS3d 521, 2015 NY Misc. LEXIS 3636, 2015 WL 5894683, at *2 [App Term, 1st Dept 2015]).

“Based on this interpretation of HN6 11 NYCRR 65-3.8 (g) (1), defendant may assert in this action a defense that plaintiff’s claim exceeds the applicable fee schedule” (E. Coast Acupuncture, P.C. v Hereford Ins. Co., 51 Misc 3d 441, 443 [Civ Ct, Kings County 2016]).

This Court agrees in part with the holding that the amendment did not change plaintiff’s well established prima facie burden citing Viviane Etienne Med. Care v Country-Wide Ins. Co. (25 NY3d 498, 510 [2015]). This Court however holds contrary interpretation of 11 NYCRR 65-3.8 (g) (1), that it does not render fee schedule defense as a non-precludable defense not required to comply with the 30-Day Denial Rule.

“(1) Proof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances:

“(i) when the claimed medical services were not provided to an injured party; or

“(ii) for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated thereunder for services rendered by medical providers” (11 NYCRR § 65-3.8).

It is quite well established, the court as the third branch of government should not be engaged in judicial activism by legislating from the Bench in encroaching upon the first branch of government, the legislature. Rather, judicial restraint is to be applied in statutory interpretation. Particularly, where interpretation not previously ruled upon by appellate court, notwithstanding varying statutory interpretations by lower limited courts of concurrent of jurisdiction, which are not binding.^[FN1] The court is to interpret the natural plain language of the law, as well as legislative intent deduced from the legislative history and consider the comprehensive context of the totality [*3]of the entire text of the statute in tandem with the amendment at issue and if any related predated case law precedents (Am. Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1 [2d Dept 2025]). The legislative intent and history of the 2013 amendment codified as 11 NYCRR § 65-3.8 (g) (1) is quite very clear as to its cost management goal balancing the equities of both the medical providers as plaintiffs and the defendant insurers: “To combat no-fault fraud while also accelerating the resolution of no-fault claims.”^[FN2] .

This Court in interpreting the natural plain language of the law, which may be open to contrary interpretations, bolstered by its legislative history and comprehensive analysis of the entire statute in relation to the amendment does not hold that fee schedule is a non-precludable defense. Although the word “precluded” was used in the comments as a concern, it appears in context to the balancing of the equities of both the medical providers and insurers by mandating that only the disputed portion of the fee schedule is to be withheld by the insurer. ^[FN3] Moreover, if legislature intended with this amendment to render fee schedule defense as non-precludable, as had been done previously for the coverage defense, it would have in plain language stated so specifically. The legislature did not do so.

“(e) If an insurer has determined that benefits are not payable for any of the following reasons:

(1) no coverage on the date of accident;

(2) circumstances of the accident not covered by no-fault; or

(3) statutory exclusions pursuant to section 5103(b) of the Insurance Law; it shall notify the applicant within 10 business days after such determination on a prescribed denial of claim form, specifying the reasons for the denial. Failure by an insurer to notify the applicant of its denial of the claim within the 10-business-day period after its determination shall not preclude the insurer from asserting a defense to the claim which is based upon the reasons for such denial” (11 NYCRR § 65-3.8).

For the foregoing reasons, Defendant conceded no denial for fee schedule defense was provided pursuant to 11 NYCRR § 65-3.8 and therefore failed to put on any defense whatsoever, upon which, Plaintiff moved for Directed Verdict, which was Granted. Ordered, Judgment in favor of Plaintiff in the amount of $2,600.00 plus statutory interest, attorney’s fees costs and disbursements.

This constitutes the decision and order of This Honorable Court.

“Based on case law, two central issues have arisen in situations where an applicant for benefits bills for services in excess of the mandated fee schedule or for services that were never provided. In both instances, courts have ruled that an insurer that fails to timely deny a claim is precluded from asserting as a defense the fact that the provider overbilled or fraudulently billed for services never rendered. As a result, consumers have their benefits unjustly reduced.

“Insurers support the Superintendent’s attempt to remedy instances when services are overcharged or not provided, and several also believe such a remedy should extend to other reasons for denial of claim. Attorneys representing applicants for benefits do not object to the Superintendent’s attempt to remedy overcharges and phantom billing, but some are concerned that the draft amendment would result in the denial of a claim in its entirety when the applicant has billed in excess of the mandated fee schedule, not just to the extent of the excess.

“In order to protect consumers from unjust depletion of benefits, the proposed amendment provides that proof of the fact and amount of loss sustained shall not be deemed to be received by an insurer when the applicant for benefits has billed in excess of the mandated fee schedule and/or for services not rendered. This provision will protect consumers from these fraudulent or abusive practices. Additionally, to absolve the fears of plaintiff attorneys, only the excess portion of an excessive bill is not due, not the entire bill.”]

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

Upon review of the foregoing cited papers and after oral argument, Defendant’s Summary Judgment Motion (“motion sequence #3”) is DENIED.

In this action, Plaintiff 21st Century Pharmacy, Inc. (hereinafter “21st Century” or “Plaintiff”) seeks reimbursement of No-Fault benefits from Defendant State Farm Mutual Automobile Ins. Co. (hereinafter “State Farm” or “Defendant”) in the total amount of $1,529.00 for services rendered to its assignor, Aquiles Nunez. Defendant filed a timely answer to the complaint. Pursuant to CPLR § 3212, Defendant now moves for an order granting summary judgment. Defendant argues that Plaintiff’s complaint must be dismissed because Plaintiff’s [*2]assignor failed to appear for noticed Examinations Under Oath (“EUO’s”). Plaintiff opposes and argues that Defendant’s motion is untimely without “good cause” shown and must be denied regardless of the issues being raised.

Plaintiff states that they filed their Notice of Trial on August 4, 2020 and under CPLR § 3212(a), Defendant was required to move for summary judgment within 120-days. Defendant filed the motion on September 21, 2022, approximately 778-days later. Moreover, Plaintiff argues that Defendant has failed to make a showing of “good cause” for the delay that would allow the Court to consider an extension. In further opposition, Plaintiff proffers that the Court should not consider Defendant’s “good cause” rationale, as it was only raised for the first time in their reply papers.

Defendant, in their reply, claims that they were unaware that a Notice of Trial had been filed as there was no indication in the Court System ^[FN1] . Defendant argues that “good cause” is shown where there is a reasonable excuse for the delay, there is merit to the action and there is the absence of prejudice. Defendant maintains that they have satisfied all three elements and therefore, the Court should grant the extension, allow the summary judgment to be considered and ultimately granted.

The Court will address the merits of Plaintiff’s opposition and Defendant’s reply as it pertains to the timeliness of the instant motion. A determination on this issue must be resolved before addressing the merits of the summary judgment motion, as the Court will first need to grant an extension for the motion to be considered. Pursuant to CPLR § 3212:

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

(CPLR § 3212[a][emphasis added]). In Brill v City of New York, the Court of Appeals established that “good cause in CPLR 3212(a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy” (Brill v City of New York, 2 NY3d 648, 652, 814 NE2d 431, 781 NYS2d 261 [2004]).

Defendant filed the instant motion on or about September 21, 2022. Based on the court records, Plaintiff filed their Notice of Trial on or about August 4, 2020. Defendant argues that they have established good cause for the delay and relies on the ruling in Adika v Dramatinos, 74 AD3d 848, 904 NYS2d 461 (2d Dept 2010). However, there are significant distinguishing facts. In Adika, the summary judgment motion was filed five days after the 120-day deadline. Here, Defendant filed their motion for summary judgment motion more than two years after the Notice of Trial was filed. Additionally, in Adika, “the New York State Unified Court System’s public [*3]Web site ^[FN2] incorrectly stated that the note of issue was filed five days after it was in fact filed” (Adika, 74 AD3d at 849). In the instant case, Defendant relies on the Court system website and eLaw. It should be noted that the Defendant submitted a case summary from October 2, 2021 that allegedly did not reflect that Plaintiff filed a Notice of Trial. In any event, the instant motion was filed almost a year after this review of the Court System’s website. In Defendant’s more recent review of the case (March 22, 2022), Counsel only relied on eLaw ^[FN3] and failed to refer to the Court System website. The Court concludes that Defendant did not use due diligence in reviewing the status of the case prior to filing their summary judgment motion.

In addition, the substantive body of Defendant’s motion failed to include the request for an extension or explain their “good cause” arguments for their delay. Defendant’s summary judgment motion only addressed the merits of the Plaintiff’s failure to appear for EUO’s. The “good cause” arguments were raised for the first time in Defendant’s reply. As such, Plaintiff did not have an opportunity to adequately oppose the new arguments and relief requested in a sur-reply (see Matter of Harleysville Ins. v Rosario, 17 AD3d 677, 792 N.Y.S.2d 912 [2d Dept 2005]).

Defendant’s motion for summary judgment (motion sequence #3) is DENIED. This matter is set down for a bench trial on November 14, 2025, at 9:30AM in Part 15.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered May 31, 2024. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) entered May 31, 2024 as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). As relevant here, the Civil Court found, pursuant to CPLR 3212 (g), that defendant had timely and properly mailed the letters scheduling plaintiff’s EUOs and the denial of claim forms, and limited the issues for trial to whether plaintiff failed to appear for the EUOs. The Civil Court held that defendant had not made a prima facie showing of plaintiff’s failure to appear for the scheduled EUOs because defendant did not submit the EUO transcripts to corroborate the attorney’s affirmation that was proffered to demonstrate plaintiff’s failures to appear.

Defendant demonstrated, prima facie, that plaintiff failed to appear for duly scheduled EUOs by submitting the affirmation of an attorney averring that he was present in his firm’s office, where the EUOs were scheduled to take place, on the dates on which the EUOs were scheduled; that he would have either conducted the EUOs himself or assigned another attorney to [*2]do so had plaintiff appeared for either scheduled EUO; and that plaintiff did not appear on either date (see e.g. MAZ Chiropractic, P.C. v State Farm Ins. Co., 85 Misc 3d 135[A], 2025 NY Slip Op 50492[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025]; SVP Med Supply, Inc. v GEICO, 76 Misc 3d 134[A], 2022 NY Slip Op 50931[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; SVP Med Supply, Inc. v GEICO, 76 Misc 3d 127[A], 2022 NY Slip Op 50775[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Parisien v Ameriprise Auto & Home, 75 Misc 3d 138[A], 2022 NY Slip Op 50581[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). To the extent that plaintiff contends that an issue exists with respect to defendant’s counsel’s recollection of plaintiff’s failure to appear, such a contention lacks merit, as, on its face, counsel’s affirmation was not “unworthy of belief or incredible as a matter of law” (Joseph-Felix v Hersh, 208 AD3d 571, 573 [2022]; see e.g. MAZ Chiropractic, P.C. v State Farm Ins. Co., 2025 NY Slip Op 50492[U], *1-2; SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50931[U], *2). Consequently, this affirmation, standing alone, was sufficient proof of plaintiff’s failure to appear for the EUOs, and, contrary to the determination of the Civil Court, submission of the EUO transcripts was unnecessary (see e.g. Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2020]; SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50931[U]; SVP Med Supply, Inc. v GEICO, 2022 NY Slip Op 50775[U]; Parisien v Ameriprise Auto & Home, 2022 NY Slip Op 50581[U]).

As plaintiff failed to raise a triable issue of fact regarding its failure to appear for either scheduled EUO or challenge the CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 12, 2024. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking to open its default and to compel plaintiff to accept defendant’s amended answer.

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, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court (Sandra E. Roper, J.) as granted the branches of defendant’s motion seeking to open its default and to compel plaintiff to accept defendant’s amended answer.

Contrary to plaintiff’s contentions, we find that the Civil Court did not improvidently exercise its discretion in granting the branches of defendant’s motion seeking to open its default and to compel plaintiff to accept defendant’s amended answer (see Arroyo v Starrett City, Inc., 170 AD3d 929 [2019]; Lyubomirsky v Lubov Arulin, PLLC, 125 AD3d 614 [2015]).

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

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered June 4, 2024. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.

ORDERED that the appeal is dismissed.

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 (Edward H. King, J.) entered June 4, 2024 as granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.

No appeal lies as of right from an order setting a matter down for a traverse hearing (see CCA 1702 [a] [2]; State Farm Mut. Auto. Ins. Co. v Omezie, 54 Misc 3d 136[A], 2017 NY Slip Op 50110[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Wheeler v McCreight, 34 Misc 3d 144[A], 2012 NY Slip Op 50143[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Citibank, N.A. v S & J Inzlicht, Inc., 8 Misc 3d 134[A], 2005 NY Slip Op 51174[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005]; see also Frost v Halvorsen, 100 AD2d 608 [1984]), and we decline to grant leave to appeal therefrom.

Accordingly, the appeal is dismissed.

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered June 4, 2024. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.

ORDERED that the appeal is dismissed.

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 (Edward H. King, J.) entered June 4, 2024 as granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.

For the reasons stated in Shamrock Med., P.C., as Assignee of Rexford Bishop v Personal Serv. Ins. Co. (___ Misc 3d ___, 2025 NY Slip Op _____ [appeal No. 2024-858 K C], decided herewith), the appeal is dismissed.

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered June 4, 2024. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.

ORDERED that the appeal is dismissed.

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 (Edward H. King, J.) entered June 4, 2024 as granted the branch of defendant’s motion seeking to dismiss the complaint only to the extent of setting the matter down for a traverse hearing.

For the reasons stated in Shamrock Med., P.C., as Assignee of Rexford Bishop v Personal Serv. Ins. Co. (___ Misc 3d ___, 2025 NY Slip Op _____ [appeal No. 2024-858 K C], decided herewith), the appeal is dismissed.

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