Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered May 26, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $6,940.

ORDERED that the judgment is modified by reducing the award to the principal sum of $5,695; as so modified, the judgment is affirmed, without costs, and the matter is remitted to the Civil Court for a recalculation of statutory interest and the entry of an appropriate amended judgment thereafter.

This action by a provider to recover assigned first-party no-fault benefits as to seven claims was consolidated for a nonjury trial with five other actions. After the trial, the Civil Court found that plaintiff had established its prima facie case in this action and that defendant had failed to establish its defenses, and awarded judgment to plaintiff on all seven claims.

Contrary to defendant’s argument, plaintiff established its prima facie case as to the seven claims at issue in this action, totaling $6,940, as plaintiff demonstrated that the bills had been received by defendant and had not been paid (see Brand Med. Supply, Inc. v Infinity Ins. Co., 51 Misc 3d 145[A], 2016 NY Slip Op 50738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

However, defendant correctly argues that it established that it had properly and timely [*2]denied three of the claims, for $605, $285 and $355, respectively, on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). Defendant’s proof at trial was sufficient to demonstrate that defendant had timely mailed the IME scheduling letters and denials at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear at those IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As defendant proved that the assignor had violated a condition precedent to coverage (see id.), plaintiff was not entitled to recover on those bills.

Defendant’s remaining arguments lack merit.

Accordingly, the judgment is modified by reducing the award to the principal sum of $5,695; as so modified, the judgment is affirmed, and the matter is remitted to the Civil Court for a recalculation of statutory interest and the entry of an appropriate amended judgment thereafter.

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

Decision Date: January 18, 2019

Decided on January 17, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

The Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. Russell Friedman & Associates, LLP (Dara C. Goodman of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated April 25, 2017. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

In March 2011, plaintiff commenced this action, by an attorney-verified complaint, to recover assigned first-party no-fault benefits. Defendant interposed an answer in May 2011. Over five years later, in November 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received by plaintiff on November 22, 2016. On March 22, 2017, defendant moved to dismiss the complaint, pursuant to CPLR 3216, as defendant had not been served with a notice of trial. On March 29, 2017, plaintiff served defendant with a notice of trial. Plaintiff’s counsel’s affirmation in opposition to defendant’s motion stated that plaintiff’s “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action.” By order dated April 25, 2017, the District Court denied the motion.

For the reasons stated in Schottenstein Pain & Neuro, PLLC, as Assignee of Bamidele Adebisi v GEICO Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-1131 N C], decided herewith), the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

RUDERMAN, J.P., TOLBERT and GARGUILO, JJ., concur.

Decided on January 17, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

The Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. Russell Friedman & Associates, LLP (Dara C. Goodman of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated April 25, 2017. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

In March 2011, plaintiff commenced this action to recover assigned first-party no-fault benefits. Defendant interposed an answer in April 2011. Over five years later, in November 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received by plaintiff on November 21, 2016. On March 22, 2017, defendant moved to dismiss the complaint, pursuant to CPLR 3216, as defendant had not been served with a notice of trial. On March 29, 2017, plaintiff served defendant with a notice of trial. Plaintiff’s counsel’s affirmation in opposition to defendant’s motion stated that plaintiff’s “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action.” By order dated April 25, 2017, the District Court denied the motion.

For the reasons stated in Schottenstein Pain & Neuro, PLLC, as Assignee of Bamidele Adebisi v GEICO Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-1131 N C], decided herewith), the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

RUDERMAN, J.P., TOLBERT and GARGUILO, JJ., concur.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Russell Friedman & Associates, LLP (Dara C. Goodman of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated April 25, 2017. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

In April 2011, plaintiff commenced this action, by an attorney-verified complaint, to recover assigned first-party no-fault benefits. Defendant interposed an answer in May 2011. Over five years later, in November 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received by plaintiff on November 22, 2016. On March 22, 2017, defendant moved to dismiss the complaint, pursuant to CPLR 3216, as defendant had not been served with a notice of trial. On March 29, 2017, plaintiff served defendant with a notice of trial. Plaintiff’s counsel’s affirmation in opposition to defendant’s motion stated that plaintiff’s “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action.” By order dated April 25, 2017, the District Court denied the motion.

Once a 90-day demand is served upon a plaintiff, the plaintiff must either comply with the demand by filing a notice of trial within 90 days (see CPLR 3216 [c]), or move, before the default date, either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Since plaintiff failed to do any of these, it was required, in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay in properly responding to the 90-day demand and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43). Here, “plaintiff’s bare statement in its attorney’s affirmation, after a [37-day] delay in responding to defendant’s 90-day notice, that its ‘delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action,’ failed to establish a justifiable excuse for its delay” (Midwood Total Rehab, P.C. v GEICO Ins. Co., 59 Misc 3d 146[A], 2018 NY Slip Op 50763[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

RUDERMAN, J.P., TOLBERT and GARGUILO, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, January 11, 2019

APPEARANCES OF COUNSEL

Marshall & Marshall, PLLC (Naim M. Peress and Jeffrey Kadushin of counsel) for appellant.

Zara Javakov, P.C. (Zara Javakov of counsel) for respondent.

Ordered that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits from Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC Ins. Co.), the parties stipulated that since the sole issue was whether plaintiff had exhausted its remedies, “if [MVAIC] can prove . . . that there was potential coverage through the assignor’s son who . . . lived with him on the date of the loss, then MVAIC has no burden to pay . . . these claims.” The only witness at trial was an employee of the New York Liquidation Bureau (NYLB), who testified pursuant to a subpoena served by MVAIC. He stated that, after the Supreme Court had entered an order placing Long Island Insurance Company (LIIC) into liquidation, NYLB had seized all of LIIC’s books and records, and administered LIIC’s claims, and that LIIC was closed. In response to the subpoena, he reviewed documents in a file seized from LIIC regarding a particular date of loss, a named person and a claim number. Among the documents he reviewed was an insurance policy from LIIC which was apparently issued to a [*2]person living at the same address as plaintiff’s assignor and whose name was the same as the assignor’s son with the exception of one letter. The Civil{**62 Misc 3d at 74} Court held that the documents were not admissible because the NYLB witness was unable to establish that the documents were admissible as business records pursuant to CPLR 4518. Although the court stated that the witness was credible, the court held that the issue to be resolved “was whether or not there was an insurance policy or coverage at the time of the accident” and that MVAIC had failed to sustain its burden.

[1, 2] The record establishes that NYLB seized records of LIIC after an order of liquidation of LIIC had been entered by the Supreme Court. Moreover, claims examiners employed by NYLB utilize the records to administer outstanding no-fault claims which have been submitted to LIIC. As NYLB incorporates and relies upon the records of LIIC, the records are admissible (see People v DiSalvo, 284 AD2d 547 [2001]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727 [1986]; cf. West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949 [2002]). Since the pretrial stipulation simply required MVAIC to prove “that there was potential coverage,” MVAIC was not required to prove that “there was an insurance policy or coverage at the time of the accident.” In light of the foregoing, MVAIC sustained its burden of proving “that there was potential coverage.” Plaintiff, as assignee, was required to exhaust its remedies against all potential insurance carriers before seeking relief from defendant (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Orlin & Cohen Orthopedic Assoc. v Motor Veh. Acc. Indem. Corp., 58 Misc 3d 132[A], 2017 NY Slip Op 51778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Here, plaintiff did not demonstrate that it had exhausted its remedies.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg and Smauel Kamara of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 9, 2016. The order granted the branches of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (1) and (4), to vacate a judgment of that court entered October 31, 2014 upon defendant’s failure to appear or answer the complaint, and to compel plaintiff to accept defendant’s answer.

ORDERED that the order is reversed, with $30 costs, the branches of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (1) and (4), to vacate the judgment entered October 31, 2014, and to compel plaintiff to accept defendant’s answer are denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service indicates that defendant was served on September 16, 2014 by delivery of the summons and complaint to Grace Annunziata at defendant’s Brooklyn office. The affidavit described Annunziata and stated that she was known to the process server to be defendant’s employee, who was authorized to accept delivery at that Brooklyn address. Defendant failed to appear or answer, and, upon plaintiff’s motion, a default judgment in the amount of $4,057.51 was entered against defendant on October 31, 2014. In October 2015, defendant moved, in effect pursuant to CPLR 5015 (a) (1) and (4), to, among other things, vacate the default judgment and [*2]compel plaintiff to accept defendant’s answer, which was annexed to the motion papers. Defendant’s claim representative asserted in an affidavit in support of the motion that the summons had not been “served on Allstate as alleged.” Defendant’s motion also sought the alternative relief of modification of the judgment on the ground that the interest was not correctly calculated. Plaintiff opposed the motion. By order entered August 9, 2016, the Civil Court granted the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept defendant’s answer, finding that defendant had established a reasonable excuse for the default and a potentially meritorious defense to the action.

A defendant seeking to vacate a default in appearing or answering based on an excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Here, the summons and complaint were served by a process server, who provided a description of Grace Annunziata, the recipient of service, and attested that Annunziata was known to him to be defendant’s employee who was authorized to accept service at defendant’s address. “A process server’s affidavit of service constitutes prima facie evidence of proper service on a corporation pursuant to CPLR 311 (a) (1)” (Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673, 673 [2015] [internal citations omitted]).

Although a defendant’s sworn denial of receipt of service may rebut the presumption of proper service established by the process server’s affidavit, defendant did not submit an affidavit from Annunziata denying either that she had been authorized to accept service or that she had accepted service of the summons and complaint (see Pain Mgt. Ctr. of N.J., P.C. v All Car Rent-A-Car, 57 Misc 3d 138[A], 2017 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Rather, defendant proffered an affidavit by its claim representative, who admitted that defendant maintained a claims office at the same Brooklyn address which is listed in the affidavit of service. Defendant’s claim representative’s assertion that the summons was not “served on Allstate as alleged” lacked sufficient detail to rebut the prima facie proof of proper service set forth in the affidavit of service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2014]) and did not demonstrate a reasonable excuse for defendant’s default (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]). We note that defendant also failed to adequately explain its 11-month delay in seeking to vacate its default (see Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825 [2013]).

As the Civil Court did not determine the remaining branches of defendant’s motion seeking, in the alternative, to, among other things, modify the judgment, the matter is remitted to the Civil Court for a determination of the remaining branches of defendant’s motion.

Accordingly, the order is reversed, the branches of defendant’s motion seeking, in effect pursuant to CPLR 5015 (a) (1) and (4), to vacate the judgment entered October 31, 2014, and to compel plaintiff to accept defendant’s answer are denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant’s motion.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

714648/16

For Plaintiff: The Rybak Firm, PLLC, 1810 Voorhies Ave.-3rd Floor-Suite 7, Brooklyn, NY 11235 (718) 569-7040

For Defendant: Abrams, Cohen & Associates, 5 Hanover Square, Suite 1601, New York, NY 10004, (646) 449-7490

Plaintiff’s motion and defendant’s cross-motion for summary judgment pursuant to CPLR 3212 came before the court on October 18, 2018. In addition to the oral arguments of counsel, the court has considered the following listed submissions of the parties, pursuant to CPLR 2219(a):

Title Number

Plaintiff’s Notice of Motion undated; Attorney Affirmation of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on October 13, 2017 (Exhibit 2); and Exhibits 1-5 (inclusive of the foregoing affidavit) 1

Defendant’s Notice of Cross-Motion dated June 27, 2018; Attorney Affirmation of Jeff Winston, Esq., affirmed on June 28, 2018; Affidavit of Yamile Souffrant, sworn to on June 18, 2018 (Exhibit B); Affidavit of John Niles, sworn to on May 1, 2018 (Exhibit B); and Exhibits A-K (inclusive of the foregoing affidavits) 2

Plaintiff’s Attorney Affirmation in Opposition of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 2); Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 3); and Exhibits 1-3

In this action by a provider to recover assigned first party no-fault benefits, plaintiff moves for summary judgment arguing that it established its prima facie entitlement to recovery of its unpaid no-fault bills. Defendant cross-moves for summary judgment based upon plaintiff’s [*2]purported failure to appear for four Examinations Under Oath (“EUO”) or alternatively, based upon defendant’s founded belief that the alleged accident was an intentional loss and therefore, the alleged accident is not a covered event.

Plaintiff argues, inter alia, that the affidavits proffered by defendant are conclusory and insufficient to establish that the EUO letters and denials were timely and properly mailed. Specifically, plaintiff argues that the address on the EUO letters and denials are different and defendant failed to establish that the letters were sent to the correct address. Plaintiff further argues that the non-appearances at the scheduled EUOs were not established as the transcripts proffered did not sufficiently provide personal knowledge of plaintiff’s assignor’s purported non-appearances.

Where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [App. Div. 2nd Dept 2014]; see also 11 NYCRR § 65.15(d); Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 50928[U][App Term 2nd Dept 2016]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51653[U][App. Term 2nd Dept. 2015]; Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc 3d 134(A), 2011 NY Slip Op. 50622[U][App Term 9th & 10th Jud. Dists. 2011]; Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept. 2006]).

Moreover, it is well settled and established that an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [App. Div. 2nd Dept 2006]; Eagle Ins. Co. v. Davis, 22 AD3d 846 [App. Div. 2nd Dept. 2005]). An insurer asserting a lack of coverage defense must set forth admissible evidence of “the fact or [a] founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195 [1997]; St. Luke’s Roosevelt Hosp. v. Allstate Ins. Co., 303 AD2d 743 [App. Div. 2nd Dept. 2003]; Ocean Diagnostic Imaging P.C. v. Allstate Ins. Co., 6 Misc 3d 134[A], 134A [App. Term 2nd Dept. 2005]; Amaze Med. Supply, Inc. v. Utica Mut. Ins. Co., 26 Misc 3d 129(A), 129A [App. Term 2nd Dept. 2009]). “[A]n insurer’s evidence of a purposeful collision will often be circumstantial. This is to be expected; in the absence of a mea culpa from one of the participants, the insurer—and ultimately the court—must examine the facts and circumstances of the incident to determine whether they give rise to an inference of lack of coverage. Circumstantial evidence is sufficient if a party’s conduct ‘may be reasonably inferred based upon logical inferences to be drawn from the evidence. (internal citation omitted)'” (V.S. Medical Services, P.C. v Allstate Ins. Co., 11 Misc 3d 334 [Civ. Ct. Kings Cty. 2006], aff’d, 25 Misc 3d 39 [App. Term 2nd Dept. 2009]).

Upon review of defendant’s EUO no-show defense, the court finds that the denials issued in this matter were untimely as they were issued on February 2, 2016 and the last EUO was scheduled on December 7, 2015. Defendant had 30 days from the last EUO in which defendant was required to pay or deny the claims (see 11 NYCRR § 65—3.8[a][1]) and as defendant did not do so in this case, the defense is precluded.

Defendant proffers the EUO transcripts of the passengers and assignor, Bernetta Green, [*3]Craig Alexander and Tara Thomas, and as to the date of loss of August 14, 2015 ^[FN1] , to demonstrate that the incident was a caused loss and defendant contends that the same established its founded belief that there was a material misrepresentation of the claims; namely, that the accident was in fact, not an accident, but a purposeful collision. Specifically, defendant’s founded belief is based upon the inconsistent testimonies between the parties.

Upon a review of the EUO transcript, the court notes that while their testimonies were vague and at times, inconsistent, their recollections are not sufficient to demonstrate that a purposeful collision occurred. Even in considering whether circumstantial evidence exists to demonstrate that there may have been a purposeful collision, the vague testimonies of the parties are not sufficient. Moreover, defendant did not proffer any affidavit from an investigator who can elaborate on why the inconsistencies demonstrate intentional losses. Without a cogent and detailed investigative summary of this type of alleged intentional loss and solely relying on the transcripts alone in this matter, the testimonies given do not rise to the level of a founded belief that the accident was staged. As such, defendant’s proofs are insufficient to raise a triable issue of fact.

Plaintiff established its prima facie case through the affidavit of Ciffy Chelle, plaintiff’s employee and the bills annexed to the motion (see Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787 [2015]).

Therefore, based upon the foregoing, defendant’s motion for summary judgment is denied. Plaintiff’s cross-motion for summary judgment is granted and plaintiff may enter judgment in the amount of $534.32, together with applicable statutory interest, attorneys’ fees and costs.

This constitutes the Decision and Order of the court.

Dated: January 2, 2019
Richard J. Montelione, J.C.C./A.J.S.C.

Footnotes

Footnote 1:Defendant demonstrated its compliance with CPLR 3116 through the affidavits of service of Darryl Pierre, an employee of Abrams, Cohen & Associates, who was retained by defendant to schedule and conduct Examinations Under Oath.