Reported in New York Official Reports at Precision Acupuncture P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50021(U))
[*1]| Precision Acupuncture P.C. v State Farm Mut. Auto. Ins. Co. |
| 2025 NY Slip Op 50021(U) |
| Decided on January 14, 2025 |
| Civil Court Of The City Of New York, Kings County |
| Roper, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on January 14, 2025
Precision Acupuncture P.C. a/a/o BLANCO ESTEVEZ, Plaintiff(s),
against State Farm Mutual Automobile Ins. Co., Defendant(s). |
Index No. 738833-21/KI
Marina Josovich Esq., P.C., Brooklyn, for Plaintiff
Rivkin Radler LLP, Uniondale, for Defendant. Sandra Elena Roper, J.
Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:
PapersNotice of Motion and Affidavits Annexed 1-2
Cross-motion 3-4
Opposition 5
Reply 6
Upon the foregoing cited papers, pursuant to CPLR §3212(g), the Decision and Order on Defendant’s Motion for Summary Judgment is hereby Granted in its entirety.
Defendant’s burden has been met and not rebutted. Defendant has established: timely mailing of its EUO scheduling letters, timely issuance of the subject denials for each bill and Plaintiff’s failure to appear for the two scheduled EUOs. Plaintiff’s rebuttal argument that there is a triable issue of fact as to the timeliness of the denial for Bill 2 subsequently received by Defendant after the first EUO no-show but before the second EUO no-show and denied within 30 days of the second EUO no show is rejected. Although the No-Fault Regulations are silent as to the tolling effect of a pending EUO request upon a subsequent bill, it has been held that where an initial EUO scheduled before a defendant received a subsequent bill, a defendant’s time to pay or deny this subsequent bill remained tolled at the time that the subsequent bill was received by the defendant (NGM Acupuncture, P.C. v Nationwide Ins. Co., 77 Misc 3d 135[A], 2022 NY Slip Op 51271[U] [App Term 2022]), citing ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term 2011]). “We find that, once defendant served plaintiff with requests for EUOs, the resulting toll of defendant’s time to pay or deny plaintiff’s claims applied to each claim form which was submitted by the same plaintiff for the same [*2]assignor subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs” (ARCO Med v Lancer). In this instant matter, Plaintiff yet again failed to appear to the second timely scheduled follow-up EUO during the period of time that subsequent Bill 2 remained tolled. Thus, Defendant’s denial of this subsequent Bill 2 issued within 30 days of the second EUO no-show was timely.
Plaintiff’s motion for summary judgment is denied. Defendant’s cross-motion for summary judgment granted. This case is dismissed with prejudice.
This constitutes the Decision and Order of the Court.
Date: January 14, 2025Brooklyn, New York
Hon. Sandra Elena Roper, JCC
Reported in New York Official Reports at Hereford Ins. Co. v Interdependent Acupuncture PLLC (2025 NY Slip Op 00021)
| Hereford Ins. Co. v Interdependent Acupuncture PLLC |
| 2025 NY Slip Op 00021 |
| Decided on January 02, 2025 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Kern, J.P., Kennedy, Gesmer, Higgitt, Michael, JJ.
Index No. 152296/19 Appeal No. 3388 Case No. 2024-02707
v
Interdependent Acupuncture PLLC, et al., Defendants, Shelly Sarbensarpong, et al., Defendants-Appellants.
Law Office of Yuriy Prakhin, P.C., Brooklyn (Yuriy Prakhin of counsel), for appellants.
Goldberg, Miller & Rubin, P.C., New York (Victoria Tarasova of counsel), for respondent.
Order, Supreme Court, New York County (David B. Cohen, J.), entered April 11, 2024, which denied the motion of defendants-appellants Shelly Sarben-Sarpong and Corey Hargrove to vacate orders and judgments, entered August 14, 2019 and February 17, 2023, granting plaintiff’s motions for entry of default judgments against them and declaring that they were not entitled to no-fault coverage, unanimously affirmed, without costs.
The court providently exercised its discretion in denying appellants’ motion to vacate the default judgments pursuant to CPLR 5015(a)(1) because appellants failed to demonstrate a reasonable excuse for their defaults (CPLR 5015[a][1]; see Towncenter Partners LLC v A.A. Castro Complex Litig., 203 AD3d 528, 529 [1st Dept 2022]). Appellants offered no explanation as to why they failed to respond to the complaint despite conceding that they received service of process. Their counsel’s suggestion that they were confused by the pendency of their separate personal injury action, in which they were represented by counsel, does not constitute a reasonable excuse (see Buckley v Nicklous, 210 AD3d 575, 575 [1st Dept 2022]). Appellants provide no support for their argument that plaintiff should have notified their counsel, who represented them in a separate personal injury action against plaintiff’s insured, of the commencement of this declaratory judgment action. In any event, appellants did not provide any affidavits to explain why they did not provide the pleadings in this action to their counsel after they were served. Since appellants’ proffered excuse for their defaults was not reasonable, the court did not need to consider whether they showed a potentially meritorious defense to the declaratory judgment action (see Besler v Uzieri, 179 AD3d 628, 628-629 [1st Dept 2020]).
As for appellants’ argument that the default judgments are a nullity because plaintiff failed to make an evidentiary showing as required by CPLR 3215(f), the Court of Appeals has held that a failure to submit the proof required by CPLR 3215(f) is “not a jurisdictional defect” and therefore “does not justify treating the judgment as a nullity” (Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203-204 [1st Dept 2013]). Appellants’ remedy was to move pursuant to CPLR 5015(a)(1) to vacate the default judgments, which required them to show a reasonable excuse for their defaults (see id.; Frazier v 811 E. 178th St. Realty Corp., 183 AD3d 413, 414 [1st Dept 2020]). In any event, plaintiff did submit admissible evidence supporting its assertion that it properly disclaimed coverage based on a founded belief that the treatment appellants received was not medically necessary or causally related to the subject motor vehicle accident (see State Farm Fire & Cas. Co. v AA Acupuncture Serv., P.C., 217 AD3d 643 [1st Dept 2023]).
We have considered appellants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME [*2]COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: January 2, 2025
Reported in New York Official Reports at Quick v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 06268)
| Quick v State Farm Mut. Auto. Ins. Co. |
| 2024 NY Slip Op 06268 |
| Decided on December 12, 2024 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
CV-24-0456
v
State Farm Mutual Automobile Ins. Co., Respondent.
Before:Clark, J.P., Pritzker, Lynch, Fisher and Powers, JJ.
Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for appellant.
Abrams, Cohen & Associates, New York City (Frank Piccininni of counsel), for respondent.
Powers, J.
Appeal from an order of the Supreme Court (Sharon A. Graff, J.), entered February 16, 2024 in Ulster County, which, among other things, granted defendant’s motion for summary judgment dismissing the complaint.
In January 2021, plaintiff was operating a Peterbilt tractor trailer in the course of his employment with Casa Builders, Inc. when he was injured. The tractor trailer had been leased from FTC Leasing, LLC, who had insured the vehicle through defendant. In March 2021, plaintiff applied for no-fault benefits through defendant and specified on this application that, although he was eligible for workers’ compensation benefits, Casa Builders did not hold workers’ compensation insurance. After seeking wage verification, defendant sent plaintiff a letter indicating that there is a question as to whether he is eligible for workers’ compensation coverage for the injury and, subsequently, denied the application on the basis that plaintiff was injured while in the course of employment. Therefore, according to defendant, plaintiff’s primary source of recovery for basic economic loss was through workers’ compensation. Defendant further advised plaintiff to provide verification if plaintiff’s application for workers’ compensation benefits was denied so defendant may then consider recovery pursuant to the no-fault insurance policy. Plaintiff challenged this denial on the basis that his employer did not possess workers’ compensation coverage and, further, had found him to be an independent contractor. Defendant, in response, instructed plaintiff to submit a 1099 form if he was an independent contractor but, otherwise, “to file a claim with the New York State Insurance Fund.”
Based upon the foregoing, plaintiff commenced the instant action alleging that defendant had wrongfully denied his no-fault insurance claim which had sought recovery of lost wages, medical expenses and other economic losses sustained because of the accident. Following joinder of issue, defendant moved for summary judgment dismissing the complaint on the basis that plaintiff was required to seek workers’ compensation benefits either through the Workers’ Compensation Board or the Uninsured Employers’ Fund before seeking no-fault coverage. Plaintiff cross-moved claiming that he could not have applied for workers’ compensation benefits because, as indicated in his application for no-fault benefits, his employer did not carry workers’ compensation coverage. Supreme Court granted defendant’s motion for summary judgment finding that, because plaintiff had failed to seek benefits through the Uninsured Employers’ Fund prior to applying for no-fault benefits, the instant action was improper. Plaintiff appeals.
“As a general rule, when an employee is injured in the course of his or her employment, his or her sole remedy against the employer lies in his or her entitlement to a recovery under the Workers’ Compensation Law” (Pringle v AC Bodyworks & Sons, LLC, 145 AD3d 1410, 1411 [3d Dept 2016] [[*2]internal quotation marks, brackets and citations omitted; see Workers’ Compensation Law § 11). However, ” ‘[w]here an employer fails to secure workers’ compensation coverage, an injured employee can simultaneously pursue both workers’ compensation benefits and a personal injury action’ ” (Rueda v Elmhurst Woodside, LLC, 116 AD3d 1027, 1027-1028 [2d Dept 2014], quoting Matter of Ocasio v Sang Soo Kim, 307 AD2d 662, 663 [3d Dept 2003], lv denied 3 NY3d 612 [2004]). The parties do not contest that plaintiff’s employer did not have workers’ compensation coverage at the time plaintiff sustained his injuries, and, therefore, plaintiff was able to commence a plenary action against his employer (see Rosario v Montalvo & Son Auto Repair Ctr., Ltd., 149 AD3d 885, 886 [2d Dept 2017]).
As is relevant here, plaintiff commenced a separate personal injury action against the employer that has since settled (NY St Cts Elec Filing [NYSCEF] Doc No. 1, summons and complaint, Doc No. 36, stipulation of discontinuance, in Quick v Casa Builders, Inc., Sup Ct, Ulster County, index No. EF2021-1112). However, plaintiff’s recovery in that action was limited inasmuch as Insurance Law § 5104 precludes recovery for basic economic loss “in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state” (Insurance Law § 5104 [a]). As a result, plaintiff sought no-fault insurance benefits through defendant to recover his basic economic loss. The gravamen of plaintiff’s application for benefits was that because his employer did not possess workers’ compensation coverage at the time of his accident, he was free to pursue recovery of basic economic loss through no-fault insurance benefits. For these same reasons, plaintiff maintains that his application for benefits was improperly denied and, therefore, Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint and, similarly, in denying his own cross-motion.
“In accordance with the No-Fault Law, automobile insurers, like [defendant], must provide up to $50,000 of coverage for an insured’s ‘basic economic loss’ ” (Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016], quoting Insurance Law § 5102 [a]). However, because no-fault benefits and workers’ compensation benefits are meant to cover generally the same types of loss, “payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle” may be reduced by the “[a]mount[ ] recovered or recoverable on account of such injury under . . . workers’ compensation benefits” (Insurance Law § 5102 [b] [2]; see Dietrick v Kemper Ins. Co. [American Motorists Ins. Co.], 76 NY2d 248, 251 [1990]; Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co., 224 AD3d 428, 430 [1st Dept 2024]; see also 11 NYCRR 65-3.16[*3][a] [9]). Based upon this, “[a]s between no-fault and workers’ compensation, the latter is primary and an injured party may not elect between workers’ compensation benefits and no-fault benefits” (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 268 [1st Dept 1991] [internal quotation marks and citations omitted]). This is so even when the employer has failed to provide workers’ compensation coverage as the Uninsured Employers’ Fund steps into the shoes of the carrier by acting as a surety (see generally Workers’ Compensation Law § 26-a; Matter of Salvia v Nutritional Frontiers LLC, 221 AD3d 1376, 1377 [3d Dept 2023], lv denied 41 NY3d 910 [2024]; Matter of McCray v CTS Enters., Inc., 166 AD3d 1356, 1357 [3d Dept 2018]; Matter of Passero v Uninsured Employers’ Fund, 154 AD3d 1037, 1038 [3d Dept 2017]; Zeng Xi Chen v Spitz, 77 AD3d 529, 529 [1st Dept 2010]).
The fact that plaintiff’s employer did not possess workers’ compensation coverage at the time of the accident does not render him ineligible for Workers’ Compensation benefits; instead it changes the potential source of payment. As such, plaintiff was required to seek workers’ compensation benefits as the primary source of payment for his basic economic loss, and only thereafter could he seek payment of no-fault benefits with his recovery correspondingly reduced by what he received through workers’ compensation.[FN1]
“It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998] [internal quotation marks and citations omitted]). The determination plaintiff seeks would not only run contrary to the exclusivity provision contained within Workers’ Compensation Law § 11 but, also, to the very purpose for which the Uninsured Employers’ Fund was created. Accordingly, Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint, and consequently properly denied plaintiff’s cross-motion (cf. Matter of Global Liberty Ins. Co. of N.Y. v North Shore Family Chiropractic, PC, 178 AD3d 525, 526 [1st Dept 2019]; Alam v Taxi Wheels To Lease, Inc., 35 AD3d 771, 771 [2d Dept 2006]; see generally Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 455 [2d Dept 1980]).
Clark, J.P., Pritzker, Lynch and Fisher, JJ., concur.
ORDERED that the order is affirmed, with costs.
Footnote 1: Although plaintiff does not directly contest that he was injured in the course of his employment, the Court of Appeals has made clear that “[t]he Workers’ Compensation Board . . . has primary jurisdiction over the issue of the availability of coverage” and “the court should not express an opinion as to the availability of compensation” (Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]). Accordingly, any determination with respect to plaintiff’s eligibility for benefits must first be made by the Workers’ Compensation Board (see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752, 754 [2d Dept 2009]; O’Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d 633, 634 [2d Dept 2008]; Nunes v Window Network, LLC, 54 AD3d 834, 835 [2d Dept 2008]). By doing so, “the possibility of contrary decisions in different forums which may result in the denial of intended first party benefits to a claimant [is diminished] and successive legal challenges on the same issues [are eliminated,] resulting in a more timely resolution and more efficient use of both administrative and judicial resources while protecting the panoply of rights afforded [workers’ compensation] claimants” (Matter of Esposito v Petruzzi, 278 AD2d 698, 701 [3d Dept 2000]).
Reported in New York Official Reports at Atlantic Med. & Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 51785(U))
[*1]| Atlantic Med. & Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2024 NY Slip Op 51785(U) |
| Decided on December 12, 2024 |
| District Court Of Suffolk County, Third District |
| Black-Kelly, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through January 09, 2025; it will not be published in the printed Offical Reports. |
Decided on December 12, 2024
Atlantic Medical & Diagnostic, P.C.
AS ASSIGNEE OF CERINEA SHIRLEY, Plaintiff against State Farm Mutual Automobile Insurance Company, Defendant ATLANTIC MEDICAL & DIAGNOSTIC, P.C. AS ASSIGNEE OF LENORE PARLEE-BOYD, Plaintiff against STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant |
Index No. CV-1912-23/HU
Bronwyn Black-Kelly, J.
The above captioned actions having come on for trial before this Court and the parties having stipulated to the consolidation of these matters for joint trial, the Court conducted a trial on September 16, 2024 and reserved decision.
The Plaintiffs in these actions seek to recover first party no-fault benefits pursuant to NY [*2]Insurance Law §§ 5102 & 5108 and the regulations promulgated thereunder. The subject of each suit is for the interventional pain management services that were performed on patient/assignors, specifically trigger point injections in which radiologic assistance was used to locate the site where ultimately an injection was made. Each unit of ultrasound guidance was billed individually. In each case the Defendant/carrier paid for the ultrasound guidance for one unit and denied the remaining units.
As stipulated by the parties, Plaintiffs timely submitted bills for multiple units of radiology in support of trigger point injections to multiple muscle groups (CPT 20553) and all of the submitted bills were timely denied by Defendant. It was further stipulated that the ad damnum clauses in both actions were amended to $5,205.60 (Re: Index CV-1912-23/HU ) and $2,776.32 (Re: Index CV-6944-23/HU).
The sole defense presented by the Defendant and the sole issue before this Court is whether Plaintiffs are entitled to reimbursement of multiple units of radiology (CPT 76942) in support of the aforesaid trigger point injections.
The Defendant argues only one unit is reimbursable and presented evidence in support of its defense via expert witness testimony, Jeffrey Futoran, CPC. Defendant’s expert witness testified that based upon coding opinions published by the American Medical Association (hereinafter referred to as AMA) including the AMA CPT Assistant and the AMA Knowledge Base it was his opinion that only one unit of CPT Code 76942 may be reported in conjunction with trigger point injections under CPT Code 20553.
The Plaintiff argues multiple units are reimbursable and presented an expert witness Jacqueline Thelian, CPC, CPCT, who testified that the New York State Workers’ Compensation Medical Fee Schedule provides specific allowances and guidance with respect to billing, coding and for reimbursement of multiple units of CPT Code 76942. As such, Plaintiff argues the New York State Workers’ Compensation Medical Fee Schedule is instructive and no further extrinsic material is necessary.
The official New York State Workers’ Compensation Medical Fee Schedule, (hereinafter referred to as the “Fee Schedule”) prepared and established by the Workers’ Compensation Board “is designed to be an accurate and authoritative source of information about medical coding and reimbursement” (see Fee Schedule Optum 360 Notice). The instructions and guidelines explains that ” a primary purpose of the schedule is to provide a precise description and coding of the services provided by New York State Physicians in the care of Workers’ Compensation covered patients and to ensure the proper payment for such services by assuring that they are specifically identifiable” (see Fee Schedule Introduction and General Guidelines). Thus based on the plain language set forth, the Fee Schedule is the primary source for the applicability and interpretation of fee codes.
The Fee Schedule consists of (8) eight sections enumerating specific instructions. In the case at bar, the relevant sections are Surgery (Section 4) and Radiology (Section 5).The section pertaining to Surgery refers to the Medical Fee Schedule Code 20553 described as “injection(s); single or multiple trigger point(s), 3 or more muscles” and provides the relative value (see p 81). The Radiology section refers to Code 76942 described as “ultrasonic guidance for needle placement (eg. biopsy, aspiration, injection, localization device) imaging suspension and interpretation.” The Radiology Schedule also provides instructions for determining the fee for a [*3]procedure that is, “multiplying the relative value by the radiology conversion factor subject to ground rules, instructions and definitions”.
Additionally, multiple procedures are addressed under the General Ground rules wherein multiple procedures rendered on the same day are to be separate entries. The procedure and rate of reimbursement for multiple diagnostic procedures are set forth under Radiology Ground Rule Three which reads “For three or more parts, whether contiguous or remote, the charge shall be the greater fee, plus 75% of the total of the lesser fees”. Thus specifically allowing for multiple reimbursements of Code 76942.
The Defendant argues that the inquiry should go beyond the Fee Schedule to other sources and relies upon the Court’s finding in Global Liberty v. McMahon, 172 AD3d 500. The Appellate Division in Global Liberty found it was “reversible error to preclude extrinsic evidence such as CPT Manuel, CPT Assist and Knowledge Base Inquiry ” and such authorities must be considered by the Court.
However, based upon the purpose and language specifically expressed in the Fee Schedule itself, that being the primary source, the extrinsic authority does not supercedes the rules and regulations in the Fee Schedule.
In further support of this view, the introduction and guidelines specifically instruct one to “refer to the CPT book for an explanation of coding rules and regulations not billed in the schedule.” Such is not the case herein.
It is this Court’s opinion that one does not need to look beyond the Fee Schedule itself which presents guidelines allowing for multiple billing and Radiology Ground Rule Three which allows for multiple reimbursement.
Based upon the testimony and evidence presented the Court finds that multiple units of CPT Code 76942 on same day and same place were properly billed and can be reimbursed pursuant to the New York State Workers’ Compensation Fee Schedule when in conjunction with pain management trigger shots (20553). Accordingly, the Court finds for the Plaintiffs and awards judgment in the amounts as stipulated by the parties.
Hon Bronwyn Black-Kelly, J.D.C., #128Dated: December 12, 2024
Reported in New York Official Reports at AVK RX Inc v Progressive Advanced Ins. Co. (2024 NY Slip Op 51521(U))
AVK RX Inc As Assignee of Hassan Shuaib, Plaintiff,
against Progressive Advanced Insurance Co., Defendant. |
Index No. CV-750150-23/RI
Robert J. Helbock, Jr., J.
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:
Papers Numbered
Notice of Motion and Affirmation/Affidavit NYSCEF Doc#: 4-12
Affirmation in Opposition NYSCEF Doc#: 14
Affirmation in Reply NYSCEF Doc#: 15-16
Upon the foregoing cited papers, the decision on Defendant’s Motion for Summary Judgment is as follows:
Plaintiff, AVK RX Inc. (hereinafter “Plaintiff”) as assignee of Hassan Shauib (hereinafter “Assignor”) commenced this action against the defendant, Progressive Advanced Insurance Co. (hereinafter “Defendant”), to recover assigned first-party No-Fault insurance benefits for medical treatment provided to the Assignor pursuant to an automobile insurance policy issued by the Defendant.
Currently before the Court is Defendant’s motion seeking an order pursuant to CPLR §3212 granting summary judgment on the grounds that the Assignor violated a condition precedent to coverage upon the failure to attend scheduled medical examinations. The Plaintiff filed timely opposition to the motion and the matter was argued before the Court.
In this instance, the summons and complaint allege the Defendant breached the automobile insurance contract by failing to pay for medical treatment rendered to the Assignor arising from injuries that occurred due to a motor vehicle accident. The defense to the claim is the Assignor allegedly did not attend two duly scheduled independent medical exams (hereafter referred to as IME), which is a condition precedent to paying the claims. For the Defendant to [*2]prevail with the defense, it must demonstrate the policyholder/assignor was properly notified of the examinations and failed to attend.
The Plaintiff opposes the Defendant’s summary judgment motion alleging, inter alia, the Defendant has failed to meet its burden of proof to receive summary judgment by failing to demonstrate the IME notices were properly and timely mailed. In particular, the Plaintiff contends the affidavit of Ms. Tracy Simpson is not sufficient to meet the Defendant’s burden of proof of mailing.
The issue of what constitutes a party’s burden of proof of mailing for a summary judgment motion has been addressed by the Court in numerous cases. The Supreme Court, Appellate Division ruled in the matter of Progressive Cas. Ins. Co. v. Metro Psychological Services, P.C.:
“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, at P. 46, 977 N.Y.S.2d 292, affd. 25 NY3d 498). ‘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.’ (Citing New York & Presbyt. Hosp. v. Allstate Inc. Co., 29 AD3d 547, quoting Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680.) ‘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. See Nassau Ins. Co. v. Murray, 46 N.Y.S.2d 828 (Court of Appeals, 1978).’ Progressive Cas. Ins. Co. v. Metro Psychological Services, P.C., 139 AD3d 693 (Sup. Ct, App. Div., 2nd Dept., May 4, 2016).
In this matter, the Defendant offers the affidavit of Ms. Tracy Simpson, a Manager at ExamWorks, Inc., as evidence that the notice of the IME was properly addressed and mailed to the assignor/examinee. ExamWorks Inc. is a third-party vendor that schedules the IME’s, notifies the examinee, and provides the resulting doctor’s report on behalf of the Defendant. In her affidavit, Ms. Simpson does describe actual knowledge of the mailing of the notices for the IME to the Assignor. The Defendant offers Ms. Simpson’s affidavit to show the standard office practice or procedure to address and mail the vendor’s notices. The affidavit states that in the vendor’s regular course of business the Defendant requests a medical examination (although she does not state who receives the request), the vendor’s set up department enters the information provided by the Defendant, the scheduling department schedules the IME appointment, the data entry department enters the assignor/examinee’s address and prints the letter notifying the examinee of the appointment information, then transmits the document to the mailing department, which puts postage on the envelope and delivers the envelope to the U.S. Postal Service daily. Ms. Simpson also acknowledges it is her duty to ensure compliance with that process.
The Defendant alleges that this affidavit sufficiently proves the process or procedure used to properly address and mail the notice of the IME.
However, Ms. Simpson’s affidavit does not make any statement that she satisfied her duty to ensure compliance with the process, nor does she describe any steps taken to ensure the notice was addressed and mailed properly. For example, Ms. Simpson does not describe any audit, inventory, supervision, or investigation of the mail for that day to determine the process and [*3]procedures were compliant. Without any actual notice of the addressing and mailing of the notice of IME, this affidavit falls short of the “ensuring the likelihood that the item is always properly addressed and mailed.” (Nassau Ins. Co. v. Murray, 46 N.Y.S.2d 828 [Court of Appeals, 1978]).
If the affidavit of Ms. Simpson does not prove the procedure or process is designed to ensure the items are properly addressed or mailed, then the Defendant can still prove the mailing of the IME notice by providing a business record to meet its burden of proof.
Attached to Ms. Simpson’s affidavit as exhibits, the Defendant offers the copies of the letters addressed to the Assignor evidencing the notice of the IME. Since the Plaintiff did not raise any issue of admissibility of the records in their opposition to the motion, the Court will not examine their admissibility. (Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 AD3d 45 [2d Dept 2014]).
However, the Defendant did not offer any business record evidencing the mailing of the documents, such as a U.S. Postal Service receipt or an inventory of the outgoing mail. Therefore, Ms. Simpson’s affidavit is unsatisfactory for that purpose. “It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.” (Bank of NY Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019]).
Without proving a standard office practice or procedure designed to ensure that items are properly addressed and mailed or providing a business record evidencing the mailing of the document, the Defendant has failed to meet its burden of proof for summary judgment. Therefore, the Court finds there is an issue of fact for trial regarding whether the notices for the IME were properly addressed and mailed by the Defendant.
The Plaintiff also opposed the Defendant’s motion on the grounds that the affidavit of the Defendant’s claims examiner, Cynthia Morges, failed to prove the denial of the claim (NF-10) was timely issued, that the Defendant failed to act diligently, the Defendant failed to attach a copy of the policy at issue, and failed to demonstrate the IME was necessary. Given the Defendant’s failure to meet its first burden of proof, the Court does not address the Plaintiff’s other opposing arguments and leaves them to the Plaintiff to raise at trial if it shall so choose.
Accordingly, the Defendant’s summary judgment motion is DENIED.
Furthermore, the Plaintiff did not oppose the Defendant’s summary judgment motion on the grounds there was any outstanding discovery. Therefore, the Plaintiff is ordered to file the Notice of Trial within sixty (60) days of the date of this decision.
This is the decision and order of the Court.
Date: November 8, 2024Staten Island, New York
Hon. Robert J. Helbock, Jr.
Judge, NYC Civil Court
Reported in New York Official Reports at Central Pharm., Inc. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 51557(U))
| Central Pharm., Inc. v Nationwide Mut. Ins. Co. |
| 2024 NY Slip Op 51557(U) |
| Decided on November 8, 2024 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on November 8, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-273 Q C
against
Nationwide Mutual Insurance Company, Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander and Brian Kaufman of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Koenig Pierre of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Andrea S. Ogle, J.), dated January 5, 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 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 failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found, in effect, pursuant to CPLR 3212 (g), that the only issue for trial was “the scheduling of EUO[s] based upon the objection letters of the [p]laintiff and the [d]efendant’s responses.”
To the extent that the Civil Court found an issue of fact as to the reasonableness of the location of the EUO, each of the EUO scheduling letters offered plaintiff the option to appear virtually. As plaintiff does not challenge the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is granted (see GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co., 82 Misc 3d 128[A], 2024 NY Slip Op 50395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: November 8, 2024
Reported in New York Official Reports at Central Pharm., Inc. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 51557(U))
[*1]| Central Pharm., Inc. v Nationwide Mut. Ins. Co. |
| 2024 NY Slip Op 51557(U) [84 Misc 3d 131(A)] |
| Decided on November 8, 2024 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on November 8, 2024
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-273 Q C
against
Nationwide Mutual Insurance Company, Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander and Brian Kaufman of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Koenig Pierre of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Andrea S. Ogle, J.), dated January 5, 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 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 failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found, in effect, pursuant to CPLR 3212 (g), that the only issue for trial was “the scheduling of EUO[s] based upon the objection letters of the [p]laintiff and the [d]efendant’s responses.”
To the extent that the Civil Court found an issue of fact as to the reasonableness of the location of the EUO, each of the EUO scheduling letters offered plaintiff the option to appear virtually. As plaintiff does not challenge the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is granted (see GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co., 82 Misc 3d 128[A], 2024 NY Slip Op 50395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: November 8, 2024
Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. (2024 NY Slip Op 05193)
| State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. |
| 2024 NY Slip Op 05193 |
| Decided on October 22, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Before: Webber, J.P., Friedman, Mendez, Shulman, O’Neill Levy, JJ.
Index No. 160355/20 Appeal No. 2863 Case No. 2023-03172
v
Equinox Physical Therapy, P.C., et al., Defendants, Grand Medical Supply Corp. et al., Defendants-Appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for respondent.
Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about April 14, 2023, which granted plaintiff insurer’s motion for summary judgment on its causes of action for declaratory judgment, unanimously affirmed, with costs.
Plaintiff established its prima facie entitlement to summary judgment on its first cause of action for declaratory relief by submitting evidence that claimants failed to appear at properly scheduled examinations under oath (EUOs), thus vitiating the insurance policy (see PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). A claim specialist submitted an affidavit of merit and affidavits of service for the EUO notices sent to the claimants’ residences directing them to appear for two separate EUOs. In addition, plaintiff submitted an attorney’s affirmation, based on the attorney’s personal knowledge, averring that the claimants failed to appear for their scheduled EUOs and attaching deposition transcripts memorializing the claimants’ nonappearance at the EUOs. Because the record demonstrates that plaintiff mailed its notices to take the claimants’ EUOs before it received defendants’ no-fault verification forms, plaintiff did not have to comply with the 15-day time frame for sending EUO notices set forth in 11 NYCRR 65-3.5 (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City LLC, 195 AD3d 454, 455 [1st Dept 2021]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 469 [1st Dept 2016]).
In opposition, defendants failed to raise a triable issue of fact. Defendants offer nothing more than speculation to support their argument that they need further discovery, nor does the record support the argument. Defendants have also not submitted an affidavit to establish that essential facts may exist but cannot yet be stated (CPLR 3212[f]; 354 Chauncey Realty, LLC v Brownstone Agency, Inc., 213 AD3d 544, 545 [1st Dept 2023]).
Because the policy is vitiated, State Farm did not have to establish that it timely denied defendants’ claims (see PV Holding Corp., 188 AD3d at 430).
We have considered defendants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 22, 2024
Reported in New York Official Reports at Sakandar v American Tr. Ins. Co. (2024 NY Slip Op 04792)
| Sakandar v American Tr. Ins. Co. |
| 2024 NY Slip Op 04792 |
| Decided on October 2, 2024 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
COLLEEN D. DUFFY, J.P.
LINDA CHRISTOPHER
WILLIAM G. FORD
LAURENCE L. LOVE, JJ.
2022-03323
(Index No. 707562/19)
v
American Transit Insurance Company, appellant.
Short & Billy, P.C. (Greenberg Traurig, LLP, New York, NY [James W. Perkins, John C. Molluzzo, Jr., and Katherine M. Clemente], of counsel), for appellant.
Fass & D’Agostino, P.C., Melville, NY (Joseph D’Agostino of counsel), for respondent).
DECISION & ORDER
In an action, inter alia, to recover no-fault benefits for medical expenses and lost wages, the defendant appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered April 13, 2022. The order denied the defendant’s motion pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action in the third amended complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action in the third amended complaint is granted.
The plaintiff commenced this action against the defendant, American Transit Insurance Company, inter alia, to recover no-fault benefits for medical expenses and lost wages relating to a motor vehicle accident. The third amended complaint alleged that in August 2016, the plaintiff was involved in a motor vehicle accident, that his vehicle was insured by the defendant, and that the defendant refused to pay to the plaintiff his lost wages and certain medical expenses.
The third cause of action alleged bad faith, the fourth cause of action alleged a violation of General Business Law § 349, and the fifth cause of action alleged breach of contract pertaining to no-fault benefits. The defendant moved pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action. In an order entered April 13, 2022, the Supreme Court denied the motion. The defendant appeals. We reverse.
Contrary to the determination of the Supreme Court, the third cause of action, alleging bad faith in the insurance context, was subject to dismissal. In reading the third cause of action, alleging bad faith, liberally and giving the plaintiff the benefit of every reasonable inference that may be drawn therefrom (see Leon v Martinez, 84 NY2d 83, 87-88), the plaintiff failed to state a cause of action alleging bad faith, as “there is no separate cause of action in tort for an insurer’s bad faith failure to perform its obligations” under an insurance contract (Zawahir v Berkshire Life Ins. Co., 22 AD3d 841, 842 [internal quotation marks omitted]; Continental Cas. Co. v Nationwide Indem. Co., 16 AD3d 353, 355).
The plaintiff also failed to state a cause of action alleging a violation of General Business Law § 349. This action involves a private contract dispute regarding insurance coverage under the policy at issue, in contrast to the consumer-oriented, deceptive conduct aimed at the public at large that General Business Law § 349 is designed to address (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 320-321; Abraham v Torati, 219 AD3d 1275, 1281).
The Supreme Court also should have granted dismissal of the fifth cause of action, alleging breach of contract related to payment of no-fault benefits, since the plaintiff assigned his right to no-fault benefits to the medical provider (see Noel v Nationwide Ins. Co. of Am., 170 AD3d 1186, 1187).
In light of our determination, we need not reach the defendant’s remaining contention.
DUFFY, J.P., CHRISTOPHER, FORD and LOVE, JJ., concur.
Darrell M. Joseph
Clerk of the Court
Reported in New York Official Reports at Health E. Ambulatory Surgical Ctr. v Country-Wide Ins. Co. (2024 NY Slip Op 51346(U))
[*1]| Health E. Ambulatory Surgical Ctr. v Country-Wide Ins. Co. |
| 2024 NY Slip Op 51346(U) |
| Decided on September 30, 2024 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 30, 2024
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hagler, P.J., Brigantti, Tisch, JJ.
570101/24
against
Country-Wide Insurance Company, Defendant-Appellant.
Defendant appeals from a “decision and order” of the Civil Court of the City of New York, Bronx County (Myrna Socorro, J.), entered on or about May 15, 2020, and a judgment (same court and Judge), entered March 18, 2022, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $19,646.13.
Per Curiam.
Judgment (Myrna Socorro, J.), entered March 18, 2022, reversed, with $30 costs, and complaint dismissed. Appeal from “decision and order” (Myrna Socorro, J.), entered on or about May 15, 2020, dismissed, without costs, as subsumed in the appeal from the judgment.
In this first-party no-fault action, which came on for trial after having been marked “final,” the trial transcript consists of barely nine pages of colloquy between the court and respective counsel. No witnesses were sworn or evidence received. Instead, plaintiff-provider referenced admissions made by defendant-insurer in defendant’s prior motion for summary judgment, regarding, inter alia, its receipt of plaintiff’s claim. Following these abbreviated proceedings, a judgment was entered in plaintiff’s favor in the principal sum of $19,646.13.
We reverse. The sole evidence relied upon by plaintiff, while sufficient to establish defendant’s receipt of the claim (see generally Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 2007 NY Slip Op 27173 [App Term, 1st Dept 2007]), also established that defendant timely sought verification, which was not provided. As a result, plaintiff failed to establish, prima facie, that the claim was overdue i.e., was not “denied or paid” within the prescribed 30—day period (see 11 NYCRR 65-3.8[c]; Insurance Law § 5106[a]; Viviane Etienne Med. Care, P.C. v. Country—Wide Ins. Co., 25 NY3d 498, 507 [2015]). Therefore, the complaint should have been dismissed.
All concur.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Clerk of the CourtDecision Date: September 30, 2024