Decided on November 2, 2018

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

Decided on November 2, 2018

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

[*1]

Civil Court of the City of New York, Bronx County, October 31, 2018

APPEARANCES OF COUNSEL

Gullo & Associates, LLC. for defendant.

Gary Tsirelman, PC for plaintiff.

Upon the testimony and evidence proffered at trial, the court hereby finds in favor of defendant and dismisses the complaint.

The instant action is for the payment of no-fault insurance benefits for medical treatment. The complaint alleges, in relevant part, the following: On May 16, 2008, assignor Sharise Davis (Davis) was involved in an automobile accident. At the time of the instant accident, Davis was covered under an automobile insurance policy issued by defendant, which provided benefits under the New York State No-Fault Law.^[FN*] Davis sought treatment from plaintiff Sunrise Acupuncture, P.C., the assignee of Davis’ no-fault benefits under defendant’s policy. Plaintiff submitted claims for medical treatment provided to Davis and defendant denied them. Based on the foregoing, pursuant to the New York State No-Fault Law and the policy, plaintiff seeks judgment in the amount of $425 plus interest.

On July 28, 2013, this court (Taylor, J.) denied defendant’s motion for summary judgment and dismissal of the complaint. The court held that defendant failed to submit admissible evidence in support of its claim that Davis was not an insured under the policy issued to the Albanos. Defendant appealed and the Appellate Term affirmed (Sunrise Acupuncture P.C. v Kemper Independence Ins. Co., 50 Misc 3d 133[A], 2016 NY Slip Op 50025[U], *1 [App Term, 1st Dept 2016] [“We sustain the denial of defendant-insurer’s motion for summary judgment. Although defendant asserted that the underlying no-fault claim is precluded by a provision of the subject insurance policy limiting coverage, upon the death of the insured, to the ‘legal representative of the deceased,’ defendant failed to tender evidentiary proof in admissible form establishing that the policy contained such a provision”]).

At trial, the parties stipulated to the admission of several documents in evidence, some of which will be discussed hereinafter. More importantly, the parties limited the court’s inquiry to one issue, namely, whether under the instant facts defendant’s insurance policy afforded coverage to Davis.

The parties submitted the insurance policy at issue (exhibit B). Said policy was issued to Ronald and America Albano. According{**62 Misc 3d at 309} to the policy, the term began on July 24, [*2]2007, and ended a year later. Per the declarations, the policy covered a 1998 Mercury and a 1980 Plymouth automobile. Section III of the policy governed coverage with respect to the foregoing vehicles. Specifically, the policy defined a “your covered auto” as “[a]ny vehicle shown in the Declaration,” and “[a]ny of the following types of vehicles on the date you become the owner . . . [including] [a] private passenger auto.” The policy further defined a “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household.” Per the policy, “ '[b]odily injury,’ means bodily harm, sickness or disease, including death that result.” “ ’Occupying’ means in, upon, getting in, on out or off.” Part B or the Medical Payments Coverage portion of the policy defined “insured” as “[y]ou or any ‘family member’ . . . [w]hile ‘occupying’ . . . a motor vehicle designed for use mainly on public roads.” Part B of the policy further stated that defendant “will pay reasonable expenses incurred for necessary medical . . . services because of ‘bodily injury’ . . . [c]aused by accident and . . . [s]ustained by an ‘insured.’ ” Section IV of the policy, titled General Policy Conditions, stated that

“[y]our rights and duties under this policy may not be assigned without our written consent. However, if a named insured shown in the Declarations dies, coverage will be provided for . . . [t]he surviving spouse if a resident in the same household at the time of death . . . [and] [t]he legal representative of the deceased person as if a named insured shown in the Declarations . . . only with respect to . . . [t]he representative’s responsibility to maintain or use ‘your covered auto.’ ”

The parties submitted two death certificates (exhibit D), which indicate that the Albanos died in June 2007, and letters testamentary (exhibit C), which establish that on January 7, 2008, Raquel Davis (Raquel) was appointed as the executor of Ronald Albano’s will. The parties submitted a notice of intention to make claim (exhibit F), which indicates that Davis made a claim to defendant for no-fault benefits arising from an accident on May 16, 2008, in which she was involved while operating the 1998 Mercury. Lastly, the parties submitted a letter dated July 14, 2008 (exhibit E) sent by defendant to Davis, wherein defendant denies coverage to Davis under the policy because the accident occurred after the Albanos died and the policy “issued to the Albanos contains a provision that {**62 Misc 3d at 310}limits coverage upon the death of the named insured to the surviving spouse or legal representative of the deceased person, but only with respect to the representative’s legal responsibility to maintain or use the vehicle scheduled on the policy.” The letter further stated that “[s]ince you are neither the legal representative nor surviving spouse of Ronald Albano, the policy will not provide you with coverage as an insured.”

Principles of contract interpretation apply equally to insurance policies (Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 143 AD3d 146, 151 [1st Dept 2016], affd 31 NY3d 131 [2018]; State of New York v American Mfrs. Mut. Ins. Co., 188 AD2d 152, 154 [3d Dept 1993]). Thus, in interpreting an insurance policy, the court must determine the rights and obligations of the parties, using the specific language of the policy itself (Gilbane Bldg. Co./TDX Constr. Corp. at 150-151 [“In this action for a judgment declaring the parties’ rights under an insurance policy, this Court must be guided by the rules of contract interpretation because (a)n insurance policy is a contract between the insurer and the insured. As a result, the extent of coverage is controlled by the relevant policy terms, not by the terms of the underlying trade contract that required the named insured to purchase coverage” (internal quotation marks and citation omitted)]; Sanabria v American Home Assur. Co., 68 NY2d 866, 868 [1986]; State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Stasack v Capital Dist. Physicians’ Health Plan, 290 AD2d 866, 866 [3d Dept 2002]; Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 32-33 [1st Dept 1979]).

When the language in an insurance policy is clear and unambiguous, the interpretation of said document and the determination of the rights and obligations of the parties is a question of law to be adjudicated by the court (Kenyon v Knights Templar & Masonic Mut. Aid Assn., 122 NY 247, 254 [1890]; Stainless, Inc. v Employers Fire Ins. Co., 69 [*3]AD2d 27, 32 [1st Dept 1979], affd 49 NY2d 924 [1980]; Stasack v Capital Dist. Physicians’ Health Plan, 290 AD2d 866, 866 [3d Dept 2002]). However, if the language in the policy is ambiguous, the court can use extrinsic evidence to determine the intent of the parties to the policy and resolution of the rights and obligations of the parties is a question of fact, to be determined by the trier of fact (State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 173 [1973]; Stainless, Inc. at 32). If the extrinsic evidence{**62 Misc 3d at 311} is conclusory, failing to equivocally resolve the ambiguity in a policy, interpretation of the policy remains a question of law for the court to decide, deciding any ambiguities against the insurer (State of New York at 669; Stainless, Inc. at 32).

In interpreting an insurance policy, the language of the policy, when clear and unambiguous, must be given its plain and ordinary meaning (United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986]; Sanabria at 868). In such a case, the policy should be construed in a way “that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 5 NY3d 157, 162 [2005]; American Express Bank v Uniroyal, Inc., 164 AD2d 275, 277 [1st Dept 1990]; Fifth Ave. Exec. Staffing v Virtual Communities, Inc., 2002 NY Slip Op 50082[U], *1 [App Term, 1st Dept 2002]).

Based on the foregoing, the court finds that at the time of the accident, Davis was not an insured as defined by the policy issued by defendant to the Albanos. As such, Davis was never entitled to no-fault benefits under the instant policy.

As noted above, when interpreting coverage pursuant to an insurance policy, we do so using contract law (Gilbane Bldg. Co./TDX Constr. Corp. at 151; State at 154). Thus, when the language in an insurance policy is clear and unambiguous, the interpretation of said document and the determination of the rights and obligations of the parties thereunder is a question of law for the court (Kenyon at 254; Stainless, Inc. at 32; Stasack at 866). In interpreting an insurance policy, the language of the policy, when clear and unambiguous, must be given its plain and ordinary meaning (United States Fid. & Guar. Co. at 232; Sanabria at 868), and the policy must be construed in a way “that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Raymond Corp. at 162; American Express Bank at 277; Fifth Ave. Exec. Staffing, 2002 NY Slip Op 50082[U], *1).

Here, because it is undisputed that Davis’ accident occurred nine months after the death of the Albanos, it is clear that the demise of the Albanos triggered section IV of the policy, rendering section III of the policy inapplicable and limiting coverage to those persons listed under section IV of the policy. Specifically, upon the Albanos’ death, per the policy the only insureds were a surviving spouse and generally, the Albanos’ legal representative.{**62 Misc 3d at 312} Given that Raquel was appointed as executor of Ronald Albano’s will, Raquel was the only insured under the instant policy and the only person entitled to coverage. Thus, Davis, which as per Kemper’s letter was Raquel’s daughter, was neither a surviving spouse as defined by the policy or a legal representative of the Albanos. Thus, Davis was not an insured under the instant policy. Accordingly, defendant had no obligation to provide no-fault benefits to Davis and properly denied those claims.

Plaintiff’s reliance on section III of the instant policy to extend coverage to Davis is unavailing. While it is true that section III of the policy defines “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household,” and part B of the policy states that defendant “will pay reasonable expenses incurred for necessary medical . . . services because of ‘bodily injury’ . . . [c]aused by accident and . . . [s]ustained by an ‘insured,’ ” section III is simply inapplicable here since it clearly only applies while the Albanos were alive. Any other interpretation would render the limiting language in section IV of the policy meaningless, which would violate a central tenet of contract law—that a policy must be construed in a way “that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Raymond Corp. at 162; American Express Bank [*4]at 277; Fifth Ave. Exec. Staffing, 2002 NY Slip Op 50082[U], *1).

Moreover, even if section III were dispositive, here, the record is bereft of any evidence that Davis was an insured thereunder. To be sure, part B of the policy provided coverage for “ ’bodily injury’ . . . [c]aused by accident and . . . [s]ustained by an ‘insured.’ ” However, as noted above, an insured is, inter alia, a “family member,” meaning “a person related to you by blood, marriage or adoption who is a resident of your household.” Here, the record is bereft of any evidence establishing that Davis was related to the Albanos and that if so, she resided in their household. It is hereby ordered that the complaint be dismissed, with prejudice.

Footnotes

Footnote *:Comprehensive Motor Vehicle Insurance Reparations Act (Insurance Law § 5101 et seq.) and its implementing regulations (11 NYCRR 65-3.1 et seq.).

Gary Tsirelman, P.C. (Joseph Padrucco and Devon Christian of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Marisa Villafana-Jones of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered March 10, 2017. 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.

After plaintiff filed a notice of trial in this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion arguing, among other things, that the motion was untimely. In reply papers, defendant conceded that its motion was untimely and, for the first time, sought to provide good cause for its untimely filing of the motion. By order entered March 10, 2017, the Civil Court found “defendant’s motion to be timely,” and granted the motion.

CPLR 3212 (a) provides that a motion for summary judgment “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” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). On appeal, as in the court below, defendant concedes that it moved for summary judgment more than 120 days after the notice of trial had been filed. Defendant argues that it had been unaware that the motion was late until it read plaintiff’s opposition papers, after which it submitted reply papers in which it sought to provide good cause for the late motion. Since defendant failed to demonstrate, in its moving papers, good cause for not filing its motion within the time frame of CPLR 3212 (a), the Civil Court improvidently exercised its discretion in entertaining defendant’s motion after considering the good cause arguments defendant raised for the first time in its reply papers (see [*2]Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 869 [2016]; Goldin v New York & Presbyt. Hosp., 112 AD3d 578, 579 [2013]). We note that “[a]rguments raised for the first time in reply may be considered if the original movant is given the opportunity to respond and submits papers in surreply” (Gluck v New York City Tr. Auth., 118 AD3d 667, 668 [2014]). In the case at bar, however, “there is no indication that plaintiff was afforded an opportunity to submit a surreply” (Gottlieb v Wynne, 159 AD3d 799, 801 [2018]).

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

ELLIOT, J.P., WESTON and SIEGAL, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, October 18, 2018

APPEARANCES OF COUNSEL

Law Offices of Daniel J. Tucker, Brooklyn (John Reinus of counsel), for defendant.

Zara Javakov PC, Brooklyn (Adam Waknine of counsel), for plaintiff.

Defendant moves to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that the action is barred by the doctrine of res judicata, or in the alternative, for an order granting defendant summary judgment pursuant to CPLR 3212.

Plaintiff Kerisli Chiropractic, P.C. commenced the instant action to recover assigned first-party no-fault benefits for medical services provided to its assignor as a result of injuries sustained in an August 23, 2010 automobile incident.

Defendant insurer commenced a declaratory judgment action in Supreme Court against Kerisli Chiropractic, P.C. and moved for summary judgment for an order “adjudging and [*2]decreeing that” Kerisli Chiropractic, P.C. “is not entitled to no fault benefits” for the August 23, 2010 collision.

Kerisli Chiropractic, P.C. did not answer or oppose the motion. The Supreme Court issued an order, reciting the specific declaratory relief requested by the insurer and granting the motion on default.

In the instant no-fault action, defendant insurer moves to dismiss the complaint claiming that the Supreme Court’s order in the declaratory judgment action is a conclusive final determination, which pursuant to res judicata, bars the instant action.

In opposition, plaintiff contends defendant insurer failed to establish its entitlement to res judicata or collateral estoppel, arguing that orders granted on default are not preclusive, and that res judicata only applies to those issues that have been litigated and determined in a prior action, not to actions where an issue due to a party’s default is not litigated. Citing federal cases, plaintiff asserts that Supreme Court’s order granted on default has thus no preclusive effect. (See In re Adler, Coleman Clearing Corp., 205 Fed Appx 856, 857 [2d Cir 2006], citing Abrams v Interco Inc., 719 F2d 23, 34 n 9 [2d Cir 1983].){**61 Misc 3d at 1006}

Pursuant to res judicata, a disposition on the merits bars litigation between the same parties of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior action (see Abraham v Hermitage Ins. Co., 47 AD3d 855 [2d Dept 2008], affg 2005 WL 6205455 [Sup Ct, Queens County 2005]).

This court notes plaintiff relies on federal cases in its assertion that default judgments lack preclusive effect. However, under New York state law, default judgments which have not been vacated are final orders, thus preclusive. (See Lazides v P & G Enters., 58 AD3d 607 [2d Dept 2009], revg 2007 WL 6861118 [Sup Ct, Kings County 2007].) The courts have reasoned that to hold otherwise would destroy or impair the rights or interests established by default judgment. (See Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Great Health Care Chiropractic, P.C. v Progressive Ins. Co., 48 Misc 3d 134[A], 2015 NY Slip Op 51077[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

As the Supreme Court’s declaratory default judgment order against Kerisli Chiropractic, P.C. has not been vacated, the order hence constitutes a final determination, which precludes the instant no-fault action.

Plaintiff also cites cases holding that a mere entry of default judgment in a declaratory judgment action “cannot be considered a conclusive final determination and, thus, can have no preclusive effect in the action at bar.” (See Active Chiropractic, P.C. v 21st Century Ins. Co., 58 Misc 3d 156[A], 2018 NY Slip Op 50200[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co., 50 Misc 3d 128[A], 2015 NY Slip Op 51886[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

The above cases are distinguished from the case at bar, as there is no declaration made by the default judgment orders in the declaratory judgment action at issue in each case. This court takes judicial notice respectively of the default judgment orders in the declaratory judgment actions in Active Chiropractic, P.C., from Supreme Court, New York County dated December 8, 2014, and in Promed Orthocare Supply, Inc., from Supreme Court, Nassau County dated March 15, 2010. (See Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 [*3]AD3d 121 [2d Dept 2018].){**61 Misc 3d at 1007}

In Active Chiropractic, P.C. (2018 NY Slip Op 50200[U], *1), the Supreme Court’s order in the declaratory judgment action merely states that an unrelated relief requested by insurer is granted, and that “the remainder of the motion [is] granted without opposition.” The order does not indicate that a judicial declaration was made by the court, or that a declaration was a relief sought by movant. As the Supreme Court’s order merely grants the entry of default judgment, and is devoid of a judicial declaration, the Appellate Term, Second Department found that the order could not be considered a final order. Absent a judicial declaration, in a declaratory judgment action, it would be impossible to deem or enforce the order as preclusive.

Similarly, in Promed Orthocare Supply, Inc., the Supreme Court’s order in the declaratory judgment action merely states that “plaintiff’s unopposed motion for a judgment on default as against” various defendants “is granted.” The order makes no reference to a judicial declaration or indicates that a declaration was sought in the motion. As with the Supreme Court order at Active Chiropractic, P.C., the Appellate Term, Second Department in Promed Orthocare Supply, Inc. held that the order could not be considered a conclusive final determination, absent declaration of the issues litigated on default. (See Promed Orthocare Supply, Inc., 2015 NY Slip Op 51886[U], *1; Active Chiropractic, P.C., 2018 NY Slip Op 50200[U]; see also Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].) To have res judicata effect in a declaratory judgment action, the order must specify the issues that were determined so that those issues could be identified as barred in future litigations.

In the instant no-fault action, contrary to Active Chiropractic, P.C. and Promed Orthocare Supply, Inc., the Supreme Court’s declaratory judgment order determines the rights of the parties and is thus preclusive as a final order. The Supreme Court’s order recites the specific declaratory relief requested by the insurer, and grants the motion on default, leaving no ambiguity as to the substance of the court’s declaration.

An order specifying the court’s declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default. (See Lazides v P & G Enters. at 607; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

As the Supreme Court order pertaining to the instant no-fault action is a conclusive final determination of the rights of{**61 Misc 3d at 1008} the parties herein, plaintiff is barred from relitigating the claim pursuant to the doctrine of res judicata.

Lastly, plaintiff cites Metro Health Prods., Inc., which is distinguished from the facts of the instant action. Contrary to the case at bar, the order in the declaratory judgment action at issue in Metro Health Prods., Inc. directed the insurer to settle judgment on notice. The insurer failed to settle judgment on notice, and the Appellate Term, Second Department held that an order to settle judgment on notice is not a conclusive final determination and is thus not preclusive. (See Metro Health Prods., Inc., 48 Misc 3d 85.)

As the Supreme Court’s declaratory judgment pertaining to the instant action is a final conclusive determination, hence with preclusive effect, defendant’s motion is granted. It is hereby ordered that the action is dismissed.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered September 28, 2017, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered September 28, 2017, insofar as appealed from, reversed, with $10 costs, motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on a sworn independent examination report [IME] of its examining acupuncturist/chiropractor, which set forth a factual basis and medical rationale for her stated conclusion that the assignor’s injuries were resolved and that there was no need for further acupuncture treatment (see Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A], 2015 NY Slip Op 50900[U][App Term, 1st Dept 2015]); Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50643[U] [App Term, 1st Dept 2013]).

In opposition, the affidavit of plaintiff’s principal failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining acupuncturist/chiropractor, including the normal results of the range of motion testing (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A]). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421; TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on September 17, 2018

652007/17

Attorney for Plaintiff

GOTTLIEB OSTRAGER, LLP

300 Wheeler Road, Suite 204

Hauppauge, New York 11788

By: AARON EITAN MEYER, Esq.

Attorney for Defendants Hattie M. Washington and Alexander Anglada

Brian J. Levy & Associates PLLC

303 Jackson Ave

Syosset, NY 11791

By: BRIAN J. LEVY, Esq.

Attorney for Defendants DHD MEDICAL SUNSET PARK and D.H.D. MEDICAL, P.C.

LAW OFFICES OF GEWURZ & ZACCARIA

50 Charles Lindbergh Blvd, Ste 204 Uniondale, NY 11553-3600

By: DAYVA ZACCARIA, Esq.

Attorney for Defendant NEW YORK COMMUNITY HOSPITAL

BREA YANKOWITZ PC

15 Verbena AvenueFloral Park, NY 11001

By: PATRICK JOHN BREA, Esq.

Attorney for Defendant AARON ROVNER MD, PLLC

Russell Friedman & Associates, LLP

3000 Marcus Avenue, Suite 2E03

New Hyde Park, NY 11042

By: CHARLES H. HORN, Esq.

No appearance for all other defendants

In this action for a declaratory judgment, defendants Hattie M. Washington (Washington) and Alexander Anglada (Anglada) claim to have been involved in an accident involving a vehicle insured by plaintiff American Alternative Insurance Corporation. Washington and Anglada both contend that they were pedestrians who were struck by that vehicle, and then fell to the ground, sustaining injuries caused by that fall.

Plaintiff now moves, pursuant to CPLR 3215, for an order granting it a default judgment against non-answering defendants DHD Medical Sunset Park, D.H.D. Medical, P.C., Englington Medical P.C., Greater Health Through Chiropractic PC, East Midwood Volunteer Ambulance, Lomis Acupuncture P.C., Lenox Hill Radiology & Medical Imaging Associates, Integral Assist Medical PC, NYEEQASC, LLC (North Queens Surgical Center), Rockville Anesthesia Group, LLP, Aaron Rovner MD, PLLC, County Line Pharmacy and ISurply LLC (collectively, the provider defendants or the defaulting defendants), and directing the Clerk to enter judgment that plaintiff, and any and all of its subsidiaries and affiliates, are not obligated to provide any coverage, reimbursements or pay any invoices, sums or funds to the provider defendants on behalf of individual defendants Washington or Anglada, for any and all no-fault related services for which claims/bills have been or may in the future be submitted by said defendants to plaintiff relating to these claims, for a permanent stay of any and all No-Fault lawsuits and arbitrations that have been or may be brought by defaulting medical providers relating to these claims, and for costs and disbursements of this action.

For the reasons set forth below, plaintiff’s motion is granted.

BACKGROUND

On May 24, 2017, the defaulting defendants, with the exception of County Line Pharmacy, were served with the Notice of Commencement of Action Subject to Mandatory Filing, and the summons and complaint (see affirmation of Aaron E. Meyer, Esq., exhibit A [*2][proofs of service]). Pursuant to CPLR 3215 (g) (4) (i), on August 1, 2017, plaintiff mailed additional notices of the summons and complaint to the defaulting defendants, with the exception of County Line Pharmacy (see id., exhibit B). Plaintiff asserts that, as of the date of the affirmation, the additional notices have not been returned as undeliverable by the U.S. Postal Service.

On June 6, 2017, defaulting defendant County Line Pharmacy was personally served with the Notice of Commencement of Action Subject to Mandatory Filing, and the summons and complaint (see id., exhibit C [proof of service]).

Accordingly, County Line Pharmacy’s response was due on June 26, 2017, and the responses of the remaining of the defaulting defendants were due on September 5, 2017.

Plaintiff contends that, as of the date of the motion, the defaulting defendants have not responded to the complaint.

Subsequent to the filing of the motion, the action was discontinued against defendant DHD Medical, P.C. by stipulation. In addition, plaintiff asserts that it no longer seeks a default judgment against defendant Aaron Rovner MD LLP.

The core claim of both Washington and Anglada was that each was caused to fall to the ground as the result of the operation of the vehicle at issue. Plaintiff contends that, however, the insured vehicle was equipped with four video cameras, which do not show that either Washington or Anglada was knocked down or fell during the alleged incident.

Plaintiff denied benefits to both Washington and Anglada, the defaulting defendants’ assignors, based on the video evidence, subsequent investigation, witness testimony and sworn testimony by claimants, on the ground that their purported injuries neither arose out of a covered incident nor occurred as alleged. Specifically, plaintiff denied the claims on the ground that Washington and Anglada intentionally made fraudulent statements calculated to result in the provision of first party benefits to which neither was entitled.

Pursuant to CPLR 3215 (f), “‘[a]n applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to answer or appear'” (HSBC Bank USA, N.A. v Clayton, 146 AD3d 942, 944 [2d Dept 2017] [citation omitted]; accord 154 E. 62 LLC v 156 E. 62nd St. LLC, 159 AD3d 498, 498 [1st Dept 2018]; Bank of Am. N.A. v Agarwal, 150 AD3d 651, 652 [2d Dept 2017]). The plaintiff can satisfy this requirement through an affidavit of a party with personal knowledge of the facts (Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]; Goodman v New York City Health & Hosps. Corp., 2 AD3d 581, 581 [2d Dept 2003]).

Plaintiff has satisfied the first and third of these requirements by submitting the affidavits of service, and the affirmation of Aaron E. Meyer, its attorney, in which Meyer asserts that the defaulting defendants have not answered or appeared. Plaintiff has also submitted proof of the facts constituting its claims.

An insurer may disclaim all insurance coverage based upon “the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Grp. of Ins. Co., 90 NY2d 195, 199 [1997]). In meeting this burden, a No-Fault insurer is “not required to establish that the subject collision was the product of fraud, which would require proof of all elements of fraud, including scienter, by clear and convincing evidence” (V.S. Med. Servs., P.C. v [*3]Allstate Ins. Co., 25 Misc 3d 39, 41 [App Term, 2d Dept 2009] [internal citation omitted]). Rather, the No-Fault insurer must demonstrate the facts elicited during an investigation that make up the founded belief. Circumstantial evidence is sufficient to prove such facts if a party’s conduct “may be ‘reasonably inferred’ based upon ‘logical inferences to be drawn from the evidence'” (Benzaken v Verizon Communications, Inc., 21 AD3d 864, 865 [2d Dept 2005] [citation omitted]).

An assignee, such as the provider defendants, may only obtain the rights of its assignors. The general rule of assignment provides that the assignee stands in the shoes of the assignor upon assignment of the interest, and takes the assignment subject to the defenses assertable against the assignor (Kolbeck v LIT America Inc., 923 F Supp 557, 567 [SD NY 1996]; see also Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2d Dept 2007])

Plaintiff submits the affidavit of Ellen C. Henry, liability representative for Glatfelter Claims Management, Inc, which provides claims management services to plaintiff, in which Henry sets forth the proof of the facts constituting plaintiff’s claim (the denial of coverage and the basis therefor). Henry avers that she personally obtained the recorded statements of both Washington and Anglada, in which they stated that the collision with the insured vehicle caused them to fall to the ground (Henry aff, ¶¶ 7-10). Washington and Anglada repeated these statements to defendant medical providers (id., ¶¶ 11-13). Henry also avers that she “can personally attest to the fact that the video evidence directly and materially conflicted with both Defendants’ statements made to their treating medical providers and to myself” (id., ¶ 16). Specifically, Henry avers that the video evidence revealed that “while it is at best debatable as to whether the vehicle ever came into actual contact with either Defendant, it is indisputable that neither Defendant was knocked down or otherwise fell during the course of the incident” (id., ¶ 22). Accordingly, Henry determined that the claims were fraudulent and denied them (id., ¶ 23).

The facts set forth in the Henry affidavit are sufficient to create a founded belief that the claims were fraudulent, and that, as such, Washington and Anglada are not entitled to no-fault benefits. As assignees of the allegedly fraudulent claims, the defaulting defendants would likewise not be entitled to receive any payments for services allegedly provided as the result of the accident. Accordingly, plaintiff is entitled to a default judgment as against the defaulting defendants.

The defaulting defendants do not oppose the motion. The only opposition was submitted by Washington and Anglada. However, their response is completely irrelevant, as the motion was not brought against them. Moreover, their response does not speak to plaintiff’s prima facie entitlement to judgment against the defaulting providers, or excuse the non-answering defendants for their failure to take any action.

The court has considered the remaining arguments, and finds them to be without merit.

Accordingly, it is

ORDERED that plaintiff’s motion for a default judgment is granted, and plaintiff is directed to serve a copy of this Decision and Order with Notice of Entry upon defendants within 20 days.

Dated: August 14, 2018

ENTER:

_______________________

J.S.C.

152076/2017

Attorney for Plaintiffs
BRUNO, GERBINO & SORIANO, LLP
45 Broad Hollow Road, Suite 220
Melville, New York 1174
By: VANESSA HELEN HLINKA, Esq.

Attorney for Defendants: B.S.A. Chiropractic, P.C.; East Coast Metropolitan Medical, P.C.; Laurus Acupuncture, P.C.; One to One Rehab, PT, P.C., and Psychological Adaptation Services, P.C.
KOPELEVICH & FELDSHEROVA PC 241 37th St, Ste 615
Brooklyn, NY 11232
By: DAVID MICHAEL LANDFAIR, Esq.

Attorney for remaining Defendants
No appearance

Motion sequences 001, 002, and 003 are consolidated for disposition. In this declaratory judgment action, plaintiff Ameriprise Insurance Company moves for an order for a preliminary injunction, pursuant to CPLR 6301, and / or a stay, pursuant to CPLR 2201, of all pending and future lawsuits for uninsured / underinsured no-fault insurance benefits to defendants (motion sequence 001); an order of default judgment declaring that defendants Latanya (Dawn) Hampton (Hampton), John T. Bunn (Bunn), Cheryl Armour (Armour) , Safiyah Souza (Souza), Shakeya Witherpsoon (Witherpsoon), Nakia McCrae (McCrae), Audrey Johnson (Johnson), Avalon Radiology, P.C., Avanguard Medical Group, PLLC, East Coast Medical Diagnostic, P.C., Harden Street Medical, P.C., Metropolitan Medical & Surgical, P.C., Selena Apelis, D.C. and Vivid Acupuncture, P.C. are in default (motion sequence (002); and, pursuant to CPLR 3211 (a) (6), to dismiss the counterclaim because it was improperly interposed and /or pursuant to CPLR 3211 (a) (7), because the counterclaim fails to state a cause of action as against defendants BSA Chiropractic, Eastcoast Metropolitan Medical, P.C., Laurus Acupuncture, P.C., One to One Rehab PT, P.C., and Psychological Adaptation Services P.C. (motion sequence 003).

BACKGROUND

This litigation arises from an alleged motor vehicle accident (the incident) on July 22, 2013 involving a vehicle insured by John T. Bunn and another vehicle owned by Lillian Spooner and operated by Safiyah Souza in Brooklyn, New York. At the time of the incident, Bunn’s vehicle allegedly contained passengers Hampton, Armour, Witherspoon, McCrae and Johnson. Upon receipt of notification of the incident, plaintiff assigned the incident claim number 1673052. Then, plaintiff began receiving bills for medical treatment from several of the defendants, including Hampton, Armour, Witherspoon, McCrae, and Johnson.

Examination Under Oath (EUO) of Defendant John T. Bunn

Bunn testified that he lives at 1060 Hendricks Street, Brooklyn, New York (Bunn tr at 9). On the date of the incident, he was leasing a 2012 Honda Accord (id. at 19). He testified that he purchased the vehicle one year ago, but that he does not remember what address he gave plaintiff when he purchased the insurance policy (id. at 21-22). He lived at 99 Metropolitan in the Bronx when he first purchased the vehicle, and was paying $250 per month (id.).

He testified that, before the incident, he had driven from around the corner, at his mother’s house, to the location of the incident (id. at 26). After leaving his mother’s house, he saw Armour, who got into his vehicle at Bergen Street, where the incident occurred (id. at 18-22, 31). He testified that he and Armour did not go anywhere prior to the incident, and that he could not remember going out to eat prior to the incident (id. at 29). After Armour got into his vehicle, he told her to sit in the vehicle while he ran upstairs, because he had parked the vehicle in front of a fire hydrant (id. at 28, 32). Armour was the only person in his vehicle when he left the vehicle, and he left the key in the ignition (id. at 28, 32). He was going to 654 Kingsborough 6th Walk, to an apartment on the sixth floor, to visit the son of his [*2]childhood friend, Hampton (id. at 30-31).

He testified that he received a phone call from Armour when the incident occurred, and that when he came back down Armour’s friends were in his vehicle (id. at 34). He was unsure as to whether all of Armour’s friends were in the vehicle (id. at 35). He testified that Hampton was also in the vehicle, and he has known Hampton all his life (id. at 34, 36). He was told that Armour’s scratch under her eye was caused by a female driver in the other vehicle involved in the incident who tried to attack her (id. at 49).

EUO of Defendant Cheryl Armour

Armour testified that, at the time of the alleged incident, she was seated in the driver’s seat of Bunn’s vehicle (Armour tr at 21). Prior to the incident, Bunn had taken her and several other people, except for Johnson, to Dunkin Donuts (id. at 16). After they went to Dunkin Donuts, Bunn parked his vehicle in front of a fire hydrant so that he could go inside to drop something off for a friend’s mother named Lorraine (id. at 20, 97). Bunn told her to sit in the driver’s seat in case she had to move the car to avoid getting a ticket (id. at 21). She testified that the other vehicle reversed into Bunn’s parked vehicle twice, with the second hit pushing Bunn’s vehicle up onto a curb and into the fire hydrant (id. at 21-22, 92). As a result of the incident, she was bleeding underneath her left eye (id. at 22). She testified that she, McCrae, Witherspoon, and Johnson all went to the same medical facility that she found out about through Hampton’s sister, Robin (id. at 38). She further testified that people approached her at the scene of the incident to offer her legal services, but she did not take any of their business cards (id. at 32-33).

EUO of Defendant Shakeya Witherspoon

Witherspoon testified that at the time of the incident, she was a passenger in Bunn’s vehicle sitting in the middle of the backseat (Witherspoon tr at 19, 27). Armour was in the driver’s seat, Johnson was in the front passenger seat, Hampton was in the backseat on the right side, and McCrae was seated with her child in the backseat on the left side (id. at 21-25). At the time of the incident the vehicle was not moving (id. at 20, 27). She first got into the vehicle when she, Armour, Bunn, McCrae, McCrae’s child and Johnson went to the Dunkin Donuts, 20 to 30 minutes prior to the incident (id. at 29). Prior to going to Dunkin Donuts, she Armour, McCrae and Johnson were on Bergen Street when Bunn pulled up to them to take them to Dunkin Donuts (id. at 29, 31). She later testified that Johnson was not in the vehicle when they went to Dunkin Donuts (id. at 34). When they returned to Bergen Street, they parked in front of a fire hydrant and Bunn got out of the car because he had to take something to his godmother (id. at 39). Everyone else stayed in the car because they were discussing what they planned to do next (id. at 41). Bunn’s vehicle hit the fire hydrant after the other vehicle backed into Bunn’s vehicle twice (id. at 45). After the incident, strangers attempted to give them business cards for legal services but they did not take them (id. at 59).

She testified that she received medical treatment at a facility on Flatlands Avenue from a referral from Armour, and that someone from the facility transported her to and from the facility (id. at 59-60). She found out about her attorney through Armour and Armour’s friend dealt with the attorney (id. at 87).

EUO of Defendant Nakia McCrae

McCrae testified that at the time of the incident Armour was in the driver’s seat of Bunn’s vehicle, she was sitting behind the driver’s seat, Johnson was in the front passenger’s seat, Witherspoon was in the middle seat next to her, and Hampton was seated next to Witherspoon (McCrae tr at 18-19). It was drizzling on the day of the incident and she went outside to Bergen Street and met up with Witherspoon, Armour, Johnson and Hampton to watch their kids play and talk with each other while they had coffee (id. at 20-21). Bunn arrived by himself and at that point everyone decided to go to [*3]Dunkin Donuts because she had a Dunkin Donuts gift card (id. at 22). Bunn drove them to Dunkin Donuts (id. at 23). After Dunkin Donuts, they returned to Bergen Street and Bunn parked the vehicle, took the keys with him, and left everyone else in the car while he went to visit his godmother (id. at 28-29). The other vehicle backed into Bunn’s vehicle twice pushing Bunn’s vehicle onto the sidewalk, but she did not believe Bunn’s vehicle hit the fire hydrant (id. at 32, 34). Armour’s face was bleeding but she was not sure if Armour and the driver of the other vehicle got into a physical altercation (id. at 36-37).

She testified that people came to the hospital to give them business cards for attorneys and medical facilities but they did not take any of the cards (id. at 46). The next day she went to Harden Street Medical PC, a facility on Flatbush Avenue, for medical treatment (id. at 47-48). She found out about the facility through Armour and Witherspoon, and was transported there by drivers hired by the facility (id. at 49, 84). She found her attorney though friends, and Witherspoon told her they were going to do everything with Armour (id. at 84-85).

EUO of Defendant Audrey Johnson

Johnson testified that at the time of the incident Armour was in the driver’s seat, she was in the front passenger seat, Hampton was behind her and McCrae was next to Witherspoon behind Armour (Johnson tr at 18-20). It was drizzling on the day of the incident and she was coming out of a building when she saw Armour, Witherspoon, and McCrae parked so she went over to talk to Armour and got in Bunn’s vehicle (id. at 21-22). As she was talking, the other vehicle backed into Bunn’s vehicle, and Bunn’s vehicle hit the fire hydrant (id. at 24). Bunn’s vehicle was parked when it was hit (id. at 18-19). At the scene of the incident, people came up to them to give them business cards for medical and legal services but no one took the cards (id. at 35).

She testified that the next day she began receiving medical treatment at a facility on Flatlands and Avenue D in Brooklyn (id. at 30). Armour learned about the facility through friends, and referred her to the facility (id.). Armour’s friend drove she and Armour to the facility (id. at 35). She presently goes to the facility three times a week and the facility provides a car service (id. at 63). Armour also referred her to her attorney, but she does not know how Armour learned of the attorney (id. at 62).

EUO of Defendant Latonya Hampton

Hampton testified that, at the time of the incident, she was a passenger in Bunn’s vehicle (Hampton tr at 11). She was in the back rear right-side seat, Johnson was in the passenger front seat, and Armour was in the driver’s seat (id. at 16-17, 19). Witherspoon was sitting in the middle seat and McCrae was in the left seat behind the driver’s seat with her son (id. at 19, 23). She testified that there was Dunkin Donuts in the vehicle (id. at 25). Before the incident, her youngest child came over and asked them to move Bunn’s vehicle in order to get water from the fire hydrant (id. at 17). They moved Bunn’s vehicle about five feet, so the vehicle was then about five feet away from the fire hydrant (id.). The first impact occurred when they moved Bunn’s vehicle up, which then moved Bunn’s vehicle into the fire hydrant (id. at 41). She testified that she did not see anyone bleeding after the incident (id. at 26). She also did not know of anyone giving business cards for medical or legal services (id. at 29, 34). Her current attorney referred her to the facility where she is receiving medical treatment (id.).

After notification of the incident, plaintiff investigated the legitimacy of the incident. Plaintiff found the following during the investigation:

(1) When procuring the insurance policy, Bunn utilized a residential address of 118 Thielman Road, Hudson, NY 12534, but Bunn actually resided at 1060 Hendrix Street, Brooklyn, NY 11207 (plaintiff order to show cause, Hlinka affirmation [Hlinka Affirm.], exhibit E);

(2) The driver of Bunn’s vehicle at the time of the incident was not a listed driver on the insurance policy, and Bunn was not in the vehicle at the time of the incident;

(3) The police report stated that the vehicle was moving before the incident occurred, but Bunn contacted plaintiff several times to ensure that plaintiff’s notes stated that he was not at fault, because his vehicle was parked (Hlinka Affirm., exhibit G);

(4) There was a discrepancy between Bunn’s EUO and Armour’s EUO in terms of who was in the vehicle at the time of the incident;

(5) Except for Hampton, all of the alleged passengers in Bunn’s vehicle started receiving nearly identical treatment at the same multi-disciplinary medical facility, which included acupuncture, chiropractic treatment, and physical therapy;

(6) Plaintiff received billing for Armour, McCrae, Johnson, and Witherspoon from defendant Harden Street Medical PC as well as various sub-providers affiliated with the facility the day after the incident.

On March 3, 2017, plaintiff commenced the action by filing a summons and complaint. Plaintiff seeks a declaratory judgment that the vehicle in the incident was not a product of a covered event as it was the result of an intentional and / or staged occurrence. Defendants BSA Chiropractic, Eastcoast Metropolitan Medical, P.C., Laurus Acupuncture, P.C., One to One Rehab PT, P.C., and Psychological Adaptation Services P.C. (Answering defendants) oppose the motion.

DISCUSSION

Plaintiff seeks, by order to show cause, an order for a preliminary injunction, pursuant to CPLR 6301, and/or a stay, pursuant to CPLR 2201, of all pending and future lawsuits for uninsured/underinsured no-fault insurance benefits to the defendants pending determination of this declaratory judgment action.

CPLR 2201 states “[e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” This court may issue a stay of an action pending before it, but “it lacks statutory authority to stay actions pending in the Civil Court or District Court. [Therefore], plaintiff’s motion for a ‘stay’ of the pending lower court actions is in fact one for a preliminary injunction” (St. Paul Travelers Ins. Co. v. Nandi, 15 Misc 3d 1145 [A], 2007 NY Slip Op 51154 [U] *7 [Sup Ct, Queens County 2007] [internal citations omitted]).

CPLR 6301 provides the following:

“A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had.”

“Preliminary injunctive relief is a drastic remedy that will not be granted unless a clear right to it is established under the law and upon undisputed facts found in the moving papers, and the burden of showing an undisputed right rests upon the movant” (Zanghi v State, 204 AD2d 313, 314 [2d Dept 1994] [internal quotation marks and citations omitted]). The moving party has the burden of demonstrating “(1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party’s favor” (Doe v Axelrod, 73 NY2d 748, 750 [1988]). “The decision to grant or deny provisional relief, which requires the court to weigh a variety of factors, is a matter ordinarily committed to the sound discretion of the [] court[]” (id.).

Plaintiff contends that it is entitled to a preliminary injunction because it has demonstrated a [*4]likelihood of success on the merits. Plaintiff argues that it is not obligated to indemnify, defend against, or pay benefits for the incident because the incident was a result of intentional actions by the individual defendants. “An accident has been defined as an event which . . . is unusual and unexpected by the person to whom it happens. Thus, the rule in [New York] and in other jurisdictions is that [w]hether or not a certain result is accidental is usually determined by looking at the casualty from the point of view of the insured to see whether or not from his point of view the event was unexpected, unusual and unforeseen” (Nallan v Union Labor Life Ins. Co., 42 NY2d 884, 885 [1977] [internal quotation marks and citations omitted]).

A motor vehicle collision that is the result of intentional actions is not an accident (see Matter of Eagle Ins. Co. v Gueye, 26 AD3d 192, 193 [1st Dept 2006]; Matter of Travelers Indem. Co. v Morales, 188 AD2d 350, 351 [1st Dept 1992]; see also Matter of Fuscaldo v Motor Vehicle Acc. Indemnification Corp., 24 AD2d 744, [1st Dept 1965]).

Here, plaintiff has presented sufficient evidence to support its determination that the incident was not an accident. The verified complaint, affidavit of plaintiff’s Special Investigative Unit Senior Special Investigator James Glampe, and the EOUs of the individual defendants contain sufficient non-conclusory factual allegations for plaintiff to conclude that the incident was intentional and not eligible for no-fault coverage. Furthermore, the Answering defendants have not presented any factual evidence to contradict such a finding. Contrary to Answering defendants’ argument, the unsigned EUO transcripts of the individual defendants are admissible. “In order to use a transcript that is not signed by the witness, if the witness is a nonparty, or, if a party and the transcript is not signed by the witness or certified, it is the burden of the party wanting to use the deposition transcript to show that the transcript was sent to the witness to be reviewed for any corrections, and that sufficient time to do so has passed” (Palumbo v Innovative Communications Concepts, Inc., 175 Misc 2d 156, 157-158 [Sup Ct, NY County 1997], affd, 251 AD2d 246 [1st Dept 1998]). Plaintiff has provided copies of correspondence with its moving papers demonstrating that it requested individual defendants to review and execute the EOU, and gave each of them a proper amount of time to comply (see Hlinka Affirm., exhibits F,H, L, M, N, O). Likewise, contrary to Answering defendants’ contention, Glampe’s affidavit is also admissible given his personal knowledge and expertise in accident investigation (see Matter of Travelers Indem. Co. v Morales, 188 AD2d 350, 351 [1st Dept 1992] [ finding that “the officers'[] statements concerning the intentional nature of the incident were correctly considered by the court since the officers were trained experts in accident investigation”]).

Moreover, to the extent that Answering defendants’ argue that prior summary judgment motions in related cases determined that there are questions of fact, that is of no moment as questions of fact do not defeat a motion for preliminary injunction. (see CPLR 6312 [c]). “Provided that the elements required for the issuance of a preliminary injunction are demonstrated in the plaintiff’s papers, the presentation by the defendant of evidence sufficient to raise an issue of fact as to any of such elements shall not in itself be grounds for denial of the motion” (id.).

Answering defendants’ contention that plaintiff’s allegations of fraud are inapplicable to Answering defendants because they are innocent third-parties is unavailing. Answering defendants are not innocent third-parties as they all obtained assignments of individual defendants’ no-fault benefits, thus they are subject to the same defenses as their assignors (A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8, 11 [App Term, 2d Dept 2006] [“hold[ing] that only innocent third parties who are injured are protected, and not a health care provider who deals with the assignor-insured at its peril in accepting an assignment of the insured’s no-fault benefits”] [internal citation omitted]).

Plaintiff argues that it is entitled to a preliminary injunction because it will suffer irreparable harm if it must defend against several pending actions, as well as any actions that may be initiated in the [*5]future. Plaintiff further argues that it should not have to bear the unreasonable costs of defending against multiple actions when there is a declaratory judgment action that would resolve the issue of coverage and liability for all pending actions. In addition, plaintiff argues that the possibility of inconsistent decisions in the pending actions could cause an undue burden on plaintiff. “Irreparable injury, for purposes of equity, has been held to mean any injury for which money damages are insufficient” (McLaughlin, Piven, Vogel v W.J. Nolan & Co., 114 AD2d 165, 174, [2d Dept 1986] [internal citation omitted]). “Where . . . a litigant can fully be recompensed by a monetary award, a preliminary injunction will not issue” (Price Paper & Twine Co. v Miller, 182 AD2d 748, 750 [2d Dept 1992]). “[T]he ‘balancing of the equities’ usually simply requires the court to look to the relative prejudice to each party accruing from a grant or a denial of the requested relief'” (Ma v Xuan T. Lien, 198 AD2d 186, 186-187 [1st Dept 1993]). A plaintiff demonstrates irreparable harm and a balancing of the equities in its favor when injunctive relief would minimize repetitive litigation with the same claims, defense, and inconsistent judicial or arbitral decisions (St. Paul Travelers Ins. Co. v. Nandi, 15 Misc 3d 1145 [A], 2007 NY Slip Op 51154 [U] at *7 [Sup Ct, Queens County 2007]). “Rather than require insurers to wait to be sued so as to assert the affirmative defense of fraud, New York courts routinely permit insurers to proactively seek injunctive relief against any current and future actions and arbitration proceedings brought by, or on behalf of, the insured while the Court considers the merits of the alleged fraud.” (Liberty Mut. Ins. Co. v. Colot, 2012 NY Slip Op 33500[U], *1 [Sup Ct, NY County 2012]).

In the instant matter, plaintiff has demonstrated irreparable harm and a balancing of the equities in its favor. Preliminary injunction would not only be beneficial to plaintiff but also to Answering defendants in reducing legal costs and attorneys’ fees, and none of the parties would be subject to varying inconsistent court orders or arbitration awards.

Answering defendants argue that if plaintiff is granted a preliminary injunction, plaintiff must post a bond or undertaking pursuant to CPLR 6312(b) and CPLR 6315. Plaintiff does not oppose this, stating in its affirmation in reply that “[p]laintiff has no issue in posting of a bond in the event that the [c]ourt grants the injunction” (plaintiff’s order to show cause, reply affirmation at 8). The court has considered the remaining arguments and finds them unavailing. Therefore, plaintiff’s order to show cause is granted.

Plaintiff moves, pursuant to CPLR 3215, declaring that defendants Latanya Hampton, John T. Bunn, Cheryl Armour, Safiyah Souza, Shakeya Witherpsoon, Nakia McCrae, Audrey Johnson, Avalon Radiology, P.C., Avanguard Medical Group, PLLC, East Coast Medical Diagnostic, P.C., Harden Street Medical, P.C., Metropolitan Medical & Surgical, P.C., Selena Apelis, D.C. and Vivid Acupuncture, P.C. are in default in appearing or answering the summons and complaint. The aforementioned defendants have not opposed the motion; therefore, it is granted.

Plaintiff moves, pursuant to CPLR 3211 (a) (6), to dismiss Answering defendants’ counterclaim, because it was improperly interposed, and/or pursuant to CPRL 3211 (a) (7), because the counterclaim fails to state a cause of action.

Pursuant to CPLR 3211(a) (6), dismissal is permitted where, “with respect to a counterclaim, it may not properly be interposed in the action.” “This ground for dismissal applies where a counterclaim may not be interposed in a particular action such as when a fiduciary brings an action and a counterclaim has been improperly interposed against him or her in his or her personal capacity and not in the capacity in which he or she has sued” (MCC Funding LLC v Diamond Point Enterprises, LLC, 36 Misc 3d 1206[A], 2012 NY Slip Op 51212 [U] *5 [Sup Ct, Kings County 2012]). Although plaintiff cites to CPLR 3211 (a) (6) as a grounds for dismissal of Answering defendants’ counterclaims, plaintiff has not offered any grounds which would support dismissal on this basis.

Under CPLR 3211 (a) (7), a pleading may be dismissed for failing to state a cause of action. [*6]Under this section, “a motion to dismiss a pleading will fail, if, from its four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law” (Tenzer, Greenblatt, Fallon & Kaplan v Ellenberg, 199 AD2d 45, 45 [1st Dept 1993] (upholding denial of plaintiff’s motion to dismiss defendant’s counterclaim for failure to state a cause of action pursuant to CPLR 3211 [a] [7]). Answering defendants have failed to state a cause of action in their counterclaim. Answering defendants’ counterclaim seeks a payment of attorneys’ fees if they should succeed in alleging entitlement under assignments of no-fault benefits executed by plaintiff’s insured. However, plaintiff does not owe Answering defendants a duty to defend, as there is no recovery for attorneys’ fees in declaratory judgment actions to facilities that submit claims to the insurer on behalf of a non-insured parties (see Hertz Vehs., LLC v Cepeda, 156 AD3d 440, 441[1st Dept 2017] [holding no duty to defend where defendant is not an insured to which plaintiff owes a duty to defend because “[a]lthough [defendant] was assigned the claimants’ rights for reimbursement of no-fault benefits, the claimants were only passengers in the insured vehicle at the time of the accident, and were not parties to whom [plaintiff] owed a duty to defend”]; see also Fiduciary Ins. Co. of Am. v Med. Diagnostic Serv., P.C., 150 AD3d 498 [1st Dept 2017]).

Answering defendants’ reliance on Insurance law § 5106 entitled “Fair claims settlement” is unavailing, as there is nothing in the statute indicating that it applies to declaratory judgment actions. Section 5106 (a) states in part, “Payments of first party benefits and additional first party benefits shall be made as the loss is incurred . . . . If a valid claim or portion was overdue, the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations” (Insurance Law § 5106 [a]). Section 5102 (b) defines first party benefits as “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 . . .” (Insurance Law § 5102 [b]). There is nothing in section 5106 (a) or the definition of first party benefits in section 5102 (b) that supports application to declaratory judgment actions. Moreover, although section 5106 permits a claimant “to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claims, subject to limitations promulgated by the superintendent in regulations,” there is nothing in the referenced regulations to support application to declaratory judgment actions (Insurance Law § 5106 [a]); see 11 NYCRR 65-4.6).

Answering defendants’ reliance on Mighty Midgets v Centennial Ins. Co. (47 NY2d 12 [1979]), and U.S. Underwriters Ins. Co. v City Club Hotel, LLC (3 NY3d 592 [2004]) is misplaced because those cases specifically dealt with indemnification of an insured. Here, the Answering defendants are not the insured parties but rather “assignee[s] of the rights of the no-fault claimants in the underlying automobile accident to whom [they] provided medical treatment” (Hertz Vehs, 156 AD3d at 441). The insured parties in Mighty Midgets and U.S. Underwriters Ins. were able to recover attorneys’ fees because “an insurer’s duty to defend an insured extends to the defense of any action arising out of the occurrence, including a defense against an insurer’s declaratory judgment action” (U.S. Underwriters, 3 NY3d at 597-598). However, an insurer’s duty to defend does not extend to assignees of the rights of no-fault claimants, here the answering defendants (Hertz Vehs., 156 AD3d at 441). The court need not address plaintiff’s and Answering defendants’ remaining contentions.

CONCLUSION

Accordingly, it is hereby

ORDERED that plaintiff’s order to show cause for a preliminary injunction is granted (motion sequence 001); and it is further

ORDERED that plaintiff and BSA Chiropractic, Eastcoast Metropolitan Medical, P.C., Laurus [*7]Acupuncture, P.C., One to One Rehab PT, P.C., and Psychological Adaptation Services P.C. submit affidavits on the proper amount of plaintiff’s undertaking within 14 days of entry of this order; and it is further

ORDERED that plaintiff’s motion for default judgment against defendants Latanya Hampton, John T. Bunn, Cheryl Armour, Safiyah Souza, Shakeya Witherpsoon, Nakia McCrae, Audrey Johnson, Avalon Radiology, P.C., Avanguard Medical Group, PLLC, East Coast Medical Diagnostic, P.C., Harden Street Medical, P.C., Metropolitan Medical & Surgical, P.C., Selena Apelis, D.C. and Vivid Acupuncture, P.C. is granted (motion sequence 002); and it is further

ORDERED that plaintiff’s motion to dismiss the counterclaim of BSA Chiropractic, Eastcoast Metropolitan Medical, P.C., Laurus Acupuncture, P.C., One to One Rehab PT, P.C., and Psychological Adaptation Services P.C. is granted (motion sequence 003).

Dated: August 14, 2018
ENTER:
J.S.C.

152175/2015

Plaintiffs: Nicole R. McErlean, Freiberg, Peck & Kang, LLP, 200 Business Park Drive, Suite 202, Armonk, NY 10504

Defendant: David Karp, Fuld & Karp, P.C., 1963 Coney Island Avenue, Brooklyn, NY 11223

In this declaratory judgment action, the plaintiff insurer moves for summary judgment pursuant to CPLR § 3212 against the defendant Sweetwater Chiropractic, P.C., a medical provider, which, as assignee of the thirteen individuals who were allegedly injured in various motor vehicle accidents, sought payment for no-fault benefits under polices issued by the plaintiff. The basis for plaintiffs’ motion is that defendant failed to appear for scheduled examinations under oath (“EUOs”) which was a breach of a condition precedent to coverage under the No-Fault regulations. Defendant cross-moves for an order, pursuant to CPLR § 3126(3), for a default judgment against the plaintiffs on the defendant’s counter-claims and dismissing the plaintiffs’ complaint, or for an order pursuant to CPLR § 3126(1). Alternatively, defendants seek an order compelling the plaintiffs to provide outstanding discovery and submit to an examination before trial by a date certain pursuant to CPLR § 3124. Defendant further moves for an order pursuant to CPLR § 603 severing this action into thirteen separate and individual actions relating to the claims submitted by defendant for each individual eligible injured person. For the reasons stated below, plaintiffs’ motion for summary judgment and defendant’s cross-motion to dismiss are denied. Defendant’s cross-motion to sever the action is [*2]also denied. Defendant’s cross-motion seeking an order compelling discovery is granted.

Thirteen individuals were allegedly injured in various motor vehicle accidents and made claims as eligible injured persons (“EIPs”) for no-fault insurance coverage under plaintiffs’ automobile insurance policies. On the date of each motor vehicle accident, the respective insurance policy was in effect for each claimant. Furthermore, each policy contained a no-fault endorsement which provided that State Farm would reimburse an EIP for the treatment of injuries occurring out of the use or operation of the insured vehicle. The defendant is a health service provider that allegedly treated the EIPs and was assigned the right to collect no-fault reimbursement on behalf of the EIPs. As an assignee, the defendant submitted no-fault billings to State Farm for reimbursement. The policies under which defendant has sought or will seek reimbursement for no-fault benefits from State Farm contain a condition precedent that EIPs or their assignees seeking reimbursement may be required to submit to EUOs.

Plaintiffs assert that defendant breached a condition precedent to No-Fault recovery by failing to appear for duly scheduled EUOs. Plaintiffs allege they duly and timely requested defendant to appear for EUOs in connection with claim reimbursements under New York Administrative Code Sections 65-3.5(b) (“11 NYCRR”) and 65-3.8(a)(1), but defendant failed to appear for every scheduled EUO. In support of this contention, plaintiff submits affidavits from Keith Bertrand (“Bertrand Affidavit”), Brian Rafalski (“Rafalski Affidavit”), and Christopher Howard (“Howard Affidavit”).^[FN1] Accordingly, plaintiffs ask this court to issue a declaration that 1) defendant failed to appear for EUOs, thereby breaching a condition precedent to no-fault coverage and violating the No-Fault regulations; 2) all automobile insurance policies named within the complaint are void back to the inception of each respective policy; and 3) plaintiffs owe no coverage for any and all, past or future, no-fault claims made by the defendant.

In opposition, defendant argues, inter alia: (1) the Howard Affidavit does not establish why the EUOs were requested by the plaintiffs on any of the claims that are the subject of this action; (2) the affidavits of Bertrand and Rafalski do not establish the admissibility of the EUO request letters; and (3) necessary discovery remains outstanding, precluding summary judgment at this stage. With respect to the remaining discovery, defendant argues that it is entitled to discover what correspondence, if any, the plaintiffs or their counsel received in objection to the alleged EUO requests. Defendant submits three letters sent by defendant’s counsel, in response to the EUO requests, seeking to ascertain the basis for the plaintiffs’ requests for the EUOs. Defendant further asserts that plaintiffs are the only ones who know what responsive communications were received. Additionally, defendant points out that plaintiffs have not responded to defendant’s discovery demands dated March 30, 2015.

With regard to defendant’s request to sever the action, it contends that severance is proper because the facts and circumstances for each individual claimant is different. Defendant further points out that a trial of this matter would necessitate testimony regarding the generation and mailing of multiple EUO scheduling letters for each of the thirteen separate and distinct claims.

On a motion for summary judgment, the moving party has the initial burden of establishing its entitlement to judgment as a matter of law with evidence sufficient to eliminate any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1985]). The facts must be viewed “in the light most favorable to the non-moving party” (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposition papers (Voss v Netherlands Ins. Co., 22 NY3d 728, 734 [2014]). Once the moving party “produces the requisite evidence, the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action” (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft, LLP, 26 NY3d 40, 49 [2015]). The court’s task in deciding a summary judgment motion is to determine whether there is bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v Restani Constr. Corp, 18 NY3d 499, 505 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied (Tronlone v Lac d’Amiante Due Quebec, Ltee, 297 AD2d 528, 528-529 [1st Dept 2002], aff’d 99 NY2d 647 [2003]).

A No-Fault insurer may request that an eligible injured person or that person’s assignee submit to an EUO as may reasonably be required (see 11 NYCRR 65-1.1).^[FN2] A request for an EUO

“must be based upon the application of objective standards so that there is a specific objective justification supporting the use of such examination” (see 11 NYCRR 65-3.5[e])

Appearance at a properly demanded EUO is a condition precedent to an insurer’s liability to pay no-fault benefits (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]). No liability exists on the part of the no-fault insurer unless there has been full compliance with the conditions’ precedent to coverage (see Hertz Vehicles, LLC v Delta Diagnostic Radiology, P.C., 2015 WL 708610, 2015 NY Slip Op 302429 [U], *3 [Sup Ct, NY County, Feb 18, 2015]; 11 NYCRR 65-1.1). The denial of coverage premised on a breach of a condition precedent to coverage voids the no-fault policy ab initio (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, supra; Mapre Ins. Co. of New York v Manoo, 140 AD3d 468, 469 [1st Dept 2016][“The failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage”]).

State Farm, as the proponent of the summary judgment motion, had the initial burden of showing its prima facie entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form from someone with personal knowledge that valid notices of the EUOs [*3]were mailed to the defendant, and that the defendant failed to appear for the EUOs (Bath Ortho Supply Inc. v New York Central Mut. Fire Ins. Co., 2012 NY Slip Op 50271[U], *1 [App Term 1st Dept 2002], citing Unitrin, 82 AD3d at 560; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721-722 [2d Dept 2006]).

This Court rejects defendant’s argument regarding the admissibility of the EUO request letters. While the Bertrand and Rafalski Affidavits when viewed together, explain State Farm’s standard mailing procedure, they do not state whether the EUO request letters at issue here were mailed out in accordance with that procedure. Notwithstanding this, this Court finds the affidavits to be sufficient as the Bertrand Affidavit states that all EUO letters are mailed in the way attested to in his affidavit. As such, the Court considers the EUO request letters not for truth of their contents, but only to show that they were mailed.

At the very least, however, triable issues of fact exist as to whether the EUO requests were reasonably or properly made. In support of its motion, State Farm submits an affidavit from Christopher Howard, an investigator in the plaintiffs’ special investigative unit, attesting to the basis for the EUOs that defendant failed to attend. Plaintiffs allege that the EUOs were properly requested in order to obtain additional verification of no-fault claims submitted for payment by the defendant, on behalf of thirteen eligible persons, whom defendant treated for injuries sustained in different motor vehicle accidents. The Howard Affidavit states in relevant part “State Farm commenced an investigation into Sweetwater for the following reasons: (i) to verify that ownership, control and operation of the professional practice complied with New York State Licensing requirements; and (ii) to verify that the services were medically necessary” (Howard Aff at 1-2). Mr. Howard further attests that he “reviewed a sampling of medical records from Sweetwater, which revealed that chiropractic treatment was being rendered at a high frequency concurrently with acupuncture and physical therapy There also appears to be a pattern of high frequency diagnostic testing which has no effect on the course of treatment” (Howard Aff at 2). The key issue for this Court is the lack of specificity in the affidavit. While Mr. Howard identified indicators for requesting an EUO, he did not set forth any of the facts that State Farm considered in making its determination to request an EUO for the specific claims at issue here. Nor did he provide the timeframe for which State Farm seeks to verify that defendant’s ownership, control, and operation of the professional practice complies with New York licensing requirements. Likewise, the affidavit is equally ambiguous with regard to which services were being questioned as medically necessary. In particular, the affidavit fails to identify which services arising out of which specific injury and which motor vehicle accident. Insofar as Mr. Howard states that he “reviewed a sampling of medical records,” the Court is left to speculate if those medical records were related to the claims at issue in the instant matter.

Contrary to plaintiffs’ contention, defendant’s reliance on American Transit Insurance Co. v Jaga Medical Service, P.C., 128 AD3d 441 (1st Dept 2015), is not misplaced. The Appellate Division, First Department held that that an insurer’s motion for summary judgment should be denied as premature if defendant seeks discovery as to the reason for the EUO request or the “handling of the claim so as to determine whether, inter alia, the EUO’s were timely and properly requested” (Am. Tr. Ins. Co. v Jaga Med. Svcs., P.C., 128 AD3d 441 [1st Dept 2015]). Given the lack of specificity set forth in Howard Affidavit, the Court finds that discovery as to plaintiffs’ reasoning for requesting the EUOs is warranted. Additionally, the Court notes that the EUO objection letters submitted by defendant raises a question of fact with respect to whether the EUO requests were justified or not (see defendant’s exhibit B).

On this record, therefore, State Farm does not make a prima facia showing that an EUO was reasonably required for the verification of the thirteen claims at issue, and thus fails to show that defendant breached the policy.

The Court next turns to defendant’s request to sever this action into thirteen separate and distinct individual actions. CPLR § 603 reads as follows, “[i]n furtherance of convenience or avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or on any separate issues.” A court has discretion under CPLR § 603 to order a severance or a separate trial when doing so will avoid confusion, delay or prejudice (McKinney’s Consolidated Annotated, Book 7; CPLR § 603; Utica Mut. Ins. Co. v American Re-Insurance Co., 132 AD3d 1405 [4th Dept 2015]). The granting of a motion to sever generally depends on the absence of common uses of law or fact. “[S]everance may be inappropriate where there are common factual and legal issues involved in two causes of action, and the interests of judicial economy and consistency of verdicts will be served by having a single trial” (Herskovitz v Klein, 91 AD3d 598, 599 [2d Dept 2012]). Least important to the court’s determination is the actual number of assignors involved in the lawsuit. Courts have severed combined no-fault claims with as few as two separate assignors, asserting that, even though there were only two distinct accidents involved, “[t]he facts relating to each claim are [u]nlikely to raise few, if any, common issues of fact” (Georgetown Mind-Body Med., P.C. v State Farm Mutual Automobile Insurance Co., 25 Misc 3d 142 [A], 2009 NY Slip Op 52464[U], * 1 [App Term, 2d, 11th & 13th Jud Dists 2009]; High Definition MRI, P.C. v Mapre Ins. Co. of NY, 148 AD3d 470 [1st Dept 2017] [severance appropriate where the 198 no-fault claims that there the subject of the action were unrelated]; Radiology Res. Network, P.C. v Fireman’s Fund Ins., Co., 12 AD3d 185 [1st Dept 2004] [severance is appropriate where the 68 accidents that were the subject of the action were unrelated]).

Severance of the action is not warranted here as defendant has failed to show how severing this action would further convenience the parties or would prevent prejudice. As the plaintiffs point out, there appears to be only one issue to be determined, namely the validity of denying the claims submitted by the defendant as the assignee of the named claimants for the defendant’s failure to appear for the duly scheduled EUOs. Moreover, beyond pointing out the number of claims, defendant fails to fully articulate the uncommon issues of law and fact that require separate actions. Based on the papers, the Court denies the motion to sever as defendant has not set forth adequate support for why it would be more efficient to adjudicate these claims separately.

Based on the foregoing, it is hereby

ORDERED that the plaintiffs’ motion for summary judgment is denied; and it is further

ORDERED that defendant’s cross-motion pursuant to CPLR §§3126 (3) and 3126(1) is denied; and it is further

ORDERED that defendant’s cross-motion is granted to the extent that plaintiffs shall respond to defendant’s discovery demands dated March 30, 2015 within thirty (30) days of the date of this decision and order is electronically filed; and it is further

ORDERED that defendant’s motion to sever the action into thirteen separate and distinct individual actions is denied; and it is

ORDERED that the parties shall appear in Part 34 of this Court on Thursday, October 4, 2018 at 2:15 p.m. for a preliminary conference.

This constitutes the decision and order of this Court.

Dated: August 6, 2018

ENTER:

_______________________________________

CARMEN VICTORIA ST. GEORGE, J.S.C.

Footnotes

Footnote 1: Plaintiffs also submit affirmations of Edward M. Ryan, Esq., Elizabeth Adels, Esq., Stuart Flamen, Esq., and Patrick J. McDonnell, Esq., attorneys employed by a law firm that represents the plaintiffs. These affirmations are purportedly offered to establish defendant’s non-appearance at the scheduled EUOs.

Footnote 2:Pursuant to 11 NYCRR 65-1.1(d), all minimum benefit insurance polies for motor vehicle personal injuries shall include a Mandatory Personal Injury Protection Endorsement, the form of which is specified in the regulation. The subsection of the Endorsement entitled “Proof of Claim; Medical, Work Loss, and Other Necessary Expenses,” found within the “Conditions” section, states that any “eligible injured person or that person’s assignee or representative shall (b) as may reasonably be required submit to examinations under oath by any person named by the [insurance] Company and subscribe the same” (emphasis added).