The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rothenberg & Romanek (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), entered December 7, 2022. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint and implicitly denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to its assignor as a result of a motor vehicle accident that occurred on April 23, 2014, plaintiff appeals from so much of an order of the Civil Court (Rupert V. Barry, J.) as granted the branch of defendant’s motion seeking to dismiss the complaint and implicitly denied plaintiff’s cross-motion for summary judgment.

It is undisputed that the vehicle in question was insured by defendant under a Florida automobile insurance policy. According to an affidavit submitted by an employee of defendant, the policy had been cancelled, prior to the accident at issue, by letter sent to the insured on February 24, 2014, effective March 8, 2014, for nonpayment of the premium.

On appeal, neither party disputes that Florida law applies, which law requires that a notice of cancellation of a policy for nonpayment of an insurance premium be “mailed or delivered” to the insured 10 days prior to the effective cancellation date (see Fla Stat Ann § 627.728 [3] [a]). In 2014, Florida Statutes § 627.728 (5) provided as follows:

“United States postal proof of mailing or certified or registered mailing of notice of cancellation, of intention not to renew, or of reasons for cancellation, or of the intention of the insurer to issue a policy by an insurer under the same ownership or management, to the first-named insured at the address shown in the policy shall be sufficient proof of notice.”

For purposes of this statute, “United States postal proof of mailing . . . means a United States postal proof of mailing which conforms to the requirements of United States postal regulations” (Aries Ins. Co. v Cayre, 785 So 2d 656, 658 [Fla Dist Ct App, 3d Dist 2001]).

In support of its motion, defendant submitted a “Certificate of Mail List” which lists various mailings, including one to the insured; however, that list is not date-stamped or signed or otherwise marked in any way by the USPS. The only proof of mailing submitted by defendant that was certified by the USPS is a Certificate of Bulk Mailing, which shows that over 2,000 pieces of mail were sent on the day in question. Defendant failed to show that this form constituted “proof of mailing which conforms to the requirements of United States postal regulations” (Aries Ins. Co., 785 So 2d at 658). Indeed, according to the USPS website, a Certificate of Bulk Mailing “is used to specify only the number of identical-weight pieces mailed; it does not provide evidence that a piece was mailed to a particular address” (see Munger v Infinity Ins. Co., 2015 WL 5922185, *6, 2015 US Dist LEXIS 138294, *14-15 [MD Fla, Oct. 9, 2015, No. 8:14—cv—914—T—36JSS] [“a Certificate of Bulk Mailing for the Nonpay Notice . . . does not qualify as a United States postal proof of mailing, since it only acknowledges that a certain number of pieces of mail were included in a particular bulk mailing”]). Similarly, the affidavit submitted by defendant in support of its claim of having provided notice to its insured failed to demonstrate actual mailing or that defendant had mailed the cancellation notice in accordance with its standard office practices and procedures (see Aries Ins. Co., 785 So 2d at 660; see also St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, the Civil Court should have denied the branch of defendant’s motion which sought to dismiss the complaint on the ground that defendant had properly cancelled the policy and that there was, therefore, no coverage at the time of the accident at issue.

Plaintiff’s cross-motion for summary judgment was properly denied, as the affidavit plaintiff submitted in support of its cross-motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued denials that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint is denied.

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

The following numbered papers were used on this petition:

Should a No-Fault insurance arbitration determination be vacated where the hearing arbitrator found that the respective bill was mailed past the 45-day deadline for submitting proof of claim based on the lack of an affidavit describing mailing procedures or confirming the actual mailing of the bill, and Petitioner’s sole evidence on the issue was a USPS certificate of mailing found to contain an illegible postmark?

Petitioner Community Medical Imaging P.C. (“Petitioner”) commenced this CPLR Article 75 proceeding by notice of petition, seeking an order and judgment vacating a No-Fault insurance master arbitration award of Alana Barran, Esq. (dated October 24, 2023), which affirmed the arbitration award of Stacey Charkey, Esq. (dated July 25, 2023) denying Petitioner’s claim against Respondent American Transit Insurance Company (“Respondent”) for No-Fault insurance compensation in the amount of $1,728.98 for performing cervical and lumbar MRIs.^[FN1] The services at issue were provided to Derick Mantuano, who claimed to have been injured in a motor vehicle accident on September 29, 2021. He assigned his No-Fault insurance benefits to [*2]Petitioner.^[FN2] (See generally NYSCEF Doc No. 1, Petition.)

Respondent did not submit any papers in opposition. This special proceeding was scheduled on the Court’s March 21, 2024 calendar. On March 19, 2024, the Court issued an interim declaring that the special proceeding would be determined on the submissions pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), Section 6 (Personal Appearances) (“All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.).”

This Court has considered the petition on the papers submitted (see Buckley v Zoning Bd. of Appeals of City of Geneva, 189 AD3d 2080, 2081 [4th Dept 2020]; Matter of Dandomar Co., LLC v Town of Pleasant Val. Town Bd., 86 AD3d 83 [2d Dept 2011]; Matter of Javarone, 76 Misc 2d 20, 21 [County Ct, Fulton County 1973] [special proceeding may be summarily determined by the court solely on the pleadings and other papers submitted], affd 49 AD2d 788 [3d Dept 1975]). A court should review an Article 75 petition to vacate an arbitration award even in the absence of opposing papers (see American Tr. Ins. Co. v NextStep Healing, Inc., 79 Misc 3d 1203[A], 2023 NY Slip Op 50521[U] [Sup Ct, Kings County 2023]).

The underlying arbitration which is the subject of this proceeding was organized by the American Arbitration Association (“AAA”), which assigned Case No. 17-22-1246-9231 to it. When master arbitration was commenced, Case No. 99-22-1246-9231 was then assigned. The AAA has been designated by the New York State Department of Financial Services to coordinate the mandatory arbitration provisions of Insurance Law § 5106 (b):

Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party [“No-Fault insurance”] benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent.

Insurance Law Article 51 provides for the payment of basic economic loss incurred by persons injured in motor vehicle accidents. Included within basic economic loss are first-party benefits for medical and other professional health services.^[FN3] First-party benefits are more [*3]commonly known as “No-Fault benefits”^[FN4] or “personal injury protection (PIP) benefits”^[FN5] .

In furtherance of the statutory scheme, a comprehensive set of No-Fault Regulations was promulgated by the Superintendent of Insurance (presently Superintendent of Financial Services). They are contained at 11 NYCRR Part 65. Said part is subdivided into five subparts which encompass the following topics: prescribed policy endorsements (11 NYCRR Subpart 65-1), rights and liabilities of self-insurers (11 NYCRR Subpart 65-2), claims for personal injury protection benefits (11 NYCRR Subpart 65-3), arbitration (11 NYCRR Subpart 65-4), and unauthorized providers of health services (11 NYCRR Subpart 65-5). Part 65 is also known as Insurance Regulation 68.

Generally, the claims process for health service bills ^[FN6] for No-Fault insurance compensation begins with the submission by a health service provider of a claim form (usually, but not always, a Form NF-3 verification of treatment by attending physician or other provider of health service).^[FN7] Besides providing information regarding the injured person, the accident, the subject insurance policy, the billing health service provider, diagnoses, and projected treatment, the claim form includes a bill for services performed. The claim form can be submitted directly by the injured person to the No-Fault insurer but over many decades a practice developed whereby the health service providers submit the claim forms. As noted in footnote 1, supra at 2, they possess standing to do so by virtue of having received signed assignments of benefits from [*4]the injured persons.^[FN8] ,^[FN9] The insurer must then either pay or deny the bill within 30 days, or seek additional verification within 15 business days. If it denies payment, it must issue a Form NF-10 denial of claim ^[FN10] explaining why the bill was not paid. (See Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505 [2015].)

The record evidence submitted in this Article 75 proceeding revealed that the underlying arbitration involved one claim form covering services on December 13, 2021, as per the Form AR1 Arbitration Request Form (see NYSCEF Doc No. 3, Petitioner’s Arbitration Submission at 6 ^[FN11] ). The following chart provides pertinent information concerning the bill and how Respondent dealt with it:

The record evidence reveals further that on June 28, 2023, Arbitrator Stacey Charkey, Esq. (“hearing arbitrator”), conducted a hearing at which Nadezhda Ursulova., Esq., from Ursulova Law Offices P.C., appeared for Petitioner, and Jeffrey Siegel, Esq. appeared for Respondent (see NYSCEF Doc No. 5, Arbitration Award at numbered p 1).

The American Arbitration Association maintains an online platform for documents filed by parties to No-Fault insurance arbitrations. It is called Modria ^[FN12] . The submissions for the [*5]arbitration at issue are contained in NYSCEF Doc Nos. 3 and 4 submitted by Petitioner.

With respect to the defense of fees not being in accordance with fee schedule, apparently the defense was not pursued by Respondent during arbitration and the only issue was Respondent’s invocation of the 45-day rule. Addressing that issue, the hearing arbitrator wrote in her award that 11 NYCRR 65-1.1 (d) (Conditions) requires proof of claim of health service expenses shall be submitted to the insurer as soon as reasonably practicable but no later than 45 days after the date that services are rendered. She continued:

Based upon my review of the submitted documentation, I find that the applicant has failed to show actual mailing of a properly addressed bill sufficient to create a presumption of receipt of the bills by the respondent. No proof of mailing has been supplied.

There is no question but that where a claimant has failed to submit its claim within 45 days after the rendition of medical services, the claim must be denied. St. Vincent’s Hosp. & Medical Center v. County Wide Insurance Co., 24 AD3d 748, 809 N.Y.S.2d 88 (2d Dept. 2005). An insurer does not even have to show that it was prejudiced by the submission of an untimely claim. Bronx Expert Radiology, P.C. v. Great Northern Ins. Co., 24 Misc 3d 134(A), 2009 NY Slip Op. 51474(U), 2009 WL (App. Term 1st Dept. July 13, 2009).

The services were provided on 12/13/2021. The submitted bill is dated 1/13/2022. The bill was acknowledged to have been received by respondent on 2/22/2022. It is Applicant’s burden to demonstrate timely submission of its bills. Applicant submits a USPS Certificate to demonstrate mailing of the bill. Applicant does not submit an affidavit with respect to mailing procedures generally or the actual mailing of this bill from someone with personal knowledge. Inasmuch as the postage cancellation is illegible, (I can discern a “9” and year, “2022”, but no month or full day) it is impossible to determine when the bill was actual received by the Post Office. The postage meter only demonstrates when the postage was purchased (1/19/2022) -not when the item was received by the Post Office. Indeed, the item could have been mailed on 1/19/2022, 2/9/22, or even 2/19/2022.

Therefore, it is my finding of fact that the subject bills were mailed more than 45 days after the dates of service and Respondents denial of claim forms embodying the defense of the 45-day rule is sustained. Applicants claim for reimbursement is, therefore, denied in its entirety as being untimely submitted

Its claim having been denied by the hearing arbitrator, Petitioner filed for master [*6]arbitration to appeal. Master Arbitrator Alana Barran (“master arbitrator”) affirmed the hearing arbitrator’s award. After setting forth a summary of the law concerning master arbitration review, the master arbitrator addressed the points asserted on appeal:

Applicant/Appellant states in its brief that the Respondent/Appellee denied the claim based on the 45-day rule, that the bill was timely mailed on 1/19/2022 or less than 45 days after the date of service, that the NFA is factually and legally incorrect in finding that the proof of mailing was insufficient as “the postage meter stamp, dated 1/19/2022, shows the date this mail was received by the post office. This is not a Pitney Bowes postage stamp. It states on its face that it is a ‘United States Postal Service’ postage stamp. Therefore, January 19th the date that the envelop[e] was entered into the custody and control of the United States Postal Service. The lower arbitrator’s award is arbitrary, capricious, and incorrect as a matter of law. Accordingly, the decision of the lower arbitrator must be vacated…Community produced actual proof of mailing from the United States Postal Service. The carrier failed to submit a copy of the bill date-stamped when received…[The NFA] failed to review and weigh the evidence and failed to note that the postage stamp is marked United States Postal Service and reflects the date mailed.”

The Respondent/Appellee’s brief states that “In support of its contention that the claim was timely mailed, the plaintiff attached a bill and a self-generated facsimile of a USPS Form 3877 that lacks a legible USPS stamp…American Transit argued that it first received the claim on 02/22/22 and that the claim was properly denied on the grounds that the claim was submitted untimely…In her award dated 07/25/23, [the NFA] denied the claim finding the Applicant’s evidence to be insufficient…Here, the Applicant is either seeking a usurpation of [the NFA’s] conclusions regarding the credibility of the evidence or a de novo review of the evidence underlying this dispute…Accordingly, the award appealed from should be affirmed.”

Considering that her determination in this case implicated an issue of fact resolved by the hearing arbitrator, the master arbitrator then reasoned the following:

The arbitrator is free to choose between the experts’ testimony and evaluate the evidence. See Bilotta v. Chevrolet-Tonawanda Division GMC, 81 AD2nd 718 (3d Dept. 1981).

Additionally, the fact that a different conclusion could have been reasonably reached is not sufficient ground to set aside the determination. See Matter of Steinberg v DiNapoli, 93 AD3d 1068, 1069, 941 NYS2d 300 [2012]; Matter of Holmstrand v Board of Regents of Univ. of State of NY, 71 AD2d 725, 726, 419 NYS2d 223 [1979]); Matter of Cohn Chemung Props., Inc. v Town of Southport, 108 AD3d 928, 929 [3rd Dept. 2013]).

Again, 11 N.Y.C.R.R. § 65-4.5 (o) (1) provides, in part, as follows:

“(o) Evidence. (1) The arbitrator shall be the judge of the relevance and materiality of the evidence offered, and strict conformity to legal rules of evidence shall not be necessary. The arbitrator may question any witness or party and independently raise any issue that the arbitrator deems relevant to making an award that is consistent with the Insurance [*7]Law and department regulations”.

The master arbitrator held that the hearing arbitrator provided a rational basis for her factual finding that Petitioner’s evidence was insufficient to establish timely submission of the bill. She concluded:

The NFA’s factual finding here related to the Applicant/Appellant’s proof of mailing of the claim is not disturbed. Upon a reading of the record, I am satisfied that there was sufficient evidence relied upon by the NFA and based on which the NFA rationally found in favor of Respondent/Appellee.

I find that the NFA’s determination definite and final, and that the NFA’s decision was not irrational, arbitrary, capricious or incorrect as a matter of law.

Although brief, the petition to vacate filed by Petitioner disputes the arbitration determination that it failed to submit proof of claim within the 45-day deadline. The master arbitrator’s award was asserted to be “arbitrary, capricious, irrational, and in violation of No-Fault law” (NYSCEF Doc No. 1, Petition ¶ 16.)

In further explication of its petition to vacate the arbitration determination, Petitioner submitted an attorney affirmation of Naomi Cohn, Esq. She argued that the hearing arbitrator’s analysis of the proffered USPS certificate of mailing was irrational and wrong. In particular, counsel took issue with the hearing arbitrator’s finding that the postmark date was not completely legible. While the hearing arbitrator could make out a 9 and the year 2022, she could not discern a month or complete date. Counsel argued that “The proof of mailing is not illegible. It clearly shows [in the attached Exhibit E (NYSCEF Doc No. 8)] that the bill was timely mailed on January 19, 2022” (NYSCEF Doc No. 7, Cohn Aff ¶ 8). Instead of finding the hearing arbitrator’s determination irrational in accordance with Matter of Petrofsky (Allstate Ins. Co.) (54 NY2d 207 [1981]), the master arbitrator “rubber-stamped” it (id. ¶¶ 9-10). Counsel cited to case law regarding the presumption of receipt of mail and mere denials of receipt being insufficient (see id. ¶¶ 11-12), and maintained that Petitioner’s evidence (the legible USPS certificate of mailing) “shows clearly that the bill was timely mailed on January 19, 2022” (id. ¶ 13). There being insufficient evidence from Respondent to rebut that from Petitioner on the mailing of the bill, “the award [was] incorrect as a matter of law” (id. ¶ 14).

When the No-Fault Law was first enacted by the Legislature in Chapter 13 of the Laws of 1973 to take effect February 1, 1974, § 675 of the Insurance Law was added. In subdivision 2 thereof, insurers were required to provide claimants with an arbitration option for disputes involving liability for first-party benefits. This provision was amended in Chapter 892 of the [*8]Laws of 1977, when several changes were made to the 1973 version.^[FN13] The provision regarding arbitration in § 675 was amended to add the following language:

An award by an arbitrator may be vacated or modified by a master arbitrator in accordance with simplified procedures to be promulgated or approved by the superintendent [of insurance]. The grounds for vacating or modifying an arbitrator’s decision by a master arbitrator shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules. The decision of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator’s award is five thousand dollars or greater, exclusive of interest and attorney’s fees, the insurer or the claimant may institute an action in a court of competent jurisdiction to adjudicate the dispute de novo.^[FN14]

The provisions regarding No-Fault insurance arbitration remained in the recodification of the Insurance Law enacted in Chapters 367 and 805 of the Laws of 1984. The arbitration provisions were set forth in § 5106, and subdivisions (b) and (c) now read as follows:

(b) Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent. Such simplified procedures shall include an expedited eligibility hearing option, when required, to designate the insurer for first party benefits pursuant to subsection (d) of this section. The expedited eligibility hearing option shall be a forum for eligibility disputes only, and shall not include the submission of any particular bill, payment or claim for any specific benefit for adjudication, nor shall it consider any other defense to payment.

(c) An award by an arbitrator shall be binding except where vacated or modified by a [*9]master arbitrator in accordance with simplified procedures to be promulgated or approved by the superintendent. The grounds for vacating or modifying an arbitrator’s award by a master arbitrator shall not be limited to those grounds for review set forth in article seventy-five of the civil practice law and rules. The award of a master arbitrator shall be binding except for the grounds for review set forth in article seventy-five of the civil practice law and rules, and provided further that where the amount of such master arbitrator’s award is five thousand dollars or greater, exclusive of interest and attorney’s fees, the insurer or the claimant may institute a court action to adjudicate the dispute de novo.

Insofar as is here relevant, the No-Fault Insurance Regulations promulgated by the Superintendent of Insurance provided that a master arbitrator may vacate or modify a hearing arbitrator’s award where it “was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground)” (11 NYCRR 65.18 [a] [4]). This regulatory language was carried over into the revised Regulations promulgated in 2002, in 11 NYCRR 65-4.10 (a) (4).^[FN15] A master arbitrator may also vacate or modify a hearing arbitrator’s award under certain other grounds also (see 11 NYCRR 65-4.10 [a]).^[FN16]

The proper standard of review by a No-Fault insurance master arbitrator is whether the hearing arbitrator’s determination was arbitrary and capricious, irrational, or without a plausible basis, or incorrect as a matter of law; the master arbitrator may not engage in an extensive factual review, which includes weighing the evidence, assessing the credibility of various medical reports, or making independent findings of fact (Matter of Petrofsky [Allstate Ins. Co.]), 54 NY2d 207 [1981]).

The standard for Article 75 court scrutiny of a master arbitrator’s review of a hearing arbitrator’s award in terms of whether there was an error of law is whether it was so irrational as to require vacatur (see Matter of Smith (Firemen’s Ins. Co.), 55 NY2d 224, 232 [1982]; Matter of Acuhealth Acupuncture, PC v Country-Wide Ins. Co., 170 AD3d 1168 [2d Dept 2019]; Matter of Acuhealth Acupuncture, P.C. v New York City Transit Authority, 167 AD3d 869 [2d Dept 2018]; Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]). The master arbitrator’s determination of the law need not be correct, and mere errors of law are insufficient to set aside the master arbitrator’s award; on questions of substantive law, the master arbitrator’s determination must be upheld if there is a rational basis for his determination; if the master arbitrator’s errors on a matter of law are irrational, his award may be set aside (see Matter of Liberty Mut. Ins. Co. v Spine Americare Med., P.C., 294 AD2d 574 [2d Dept 2002]).

Judicial review of a master arbitrator’s factual determination in an arbitration appeal is limited to whether the master arbitrator exceeded his or her power, for instance by impermissibly weighing the credibility of a witness, by reviewing the hearing arbitrator’s factual determination, or by reviewing medical reports de novo (see Matter of Allstate Ins. Co. v Keegan (201 AD2d 724 [2d Dept 1994].

It is important to again state that arbitration of No-Fault compensation claims is compulsory against insurers (see n 14, supra at 8). A health service provider who possesses standing via an assignment of benefits makes the election of whether to litigate its claim in court or in arbitration, which is binding upon the insurer (see Insurance Law § 5106 [b]). Such compulsory arbitration awards are held to higher level of scrutiny (see Matter of Motor Veh. Acc. Indemn. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Smith, 55 NY2d 224; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493 [1970]; Matter of GEICO Gen. Ins. Co. v Wesco Ins. Co., 211 AD3d 729 [2d Dept 2022]).

As noted above, Petitioner’s petition to vacate the master arbitrations award is predicated on the assertion that in affirming the hearing arbitrator there was an irrational error in considering the evidence on the issue of mailing the bill. The Court finds that this implicated a credibility determination, i.e., the hearing arbitrator was called upon to make a factual finding as to whether Petitioner proved timely mailing of its bill to Respondent, the No-Fault insurer, and the master arbitrator had to review that credibility determination.

However, this was not an issue of law, despite counsel’s advocacy that the legal issue here is the alleged insufficient evidence from Respondent to rebut that from Petitioner on the mailing of the bill (see supra at 8). The case law cited by Petitioner concerns proving a mailing as an evidentiary matter in court. Among the cases that counsel cited for the proposition that Respondent’s mere denial of timely receipt was insufficient were Compas Med., P.C. v Farm Family Cas. Ins, Co. (38 Misc 3d 142[A], 2013 NY Slip Op 50254[U] [App Term, 2d, 11th & 13th Dists 2013]) and Top Choice Med., P.C. v GEICO Gen. Ins. Co. (33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d, 11th & 13th Dists 2011]). Counsel also cited to Appellate Division decisions regarding how a presumption of a proper mailing is created: New York & Presbyt. Hosp. v Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006]) and Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (25 NY3d 498 [2015]^[FN17] ). (See NYSCEF Doc No. 7, Cohn Aff ¶¶ 11-12.) None of these discussed evidence in arbitrations.

The rules of evidence do not apply in arbitration and especially in No-Fault insurance arbitration due to the regulation providing, “The arbitrator shall be the judge of the relevance and materiality of the evidence offered, and strict conformity to legal rules of evidence shall not be necessary” (11 NYCRR 65-4.5 [o] [1]), as cited to by the master arbitrator (see NYSCEF Doc No. 6, master arbitration award at numbered p 2).

This Court has previously discussed the issue of factual determinations in No-Fault arbitration. In the context of evidence submitted on an issue of medical necessity, this Court wrote:

In part, this Court’s present determination is based on the additional provision in 11 NYCRR 65-4.10 (a) (4) which provides that “procedural or factual errors committed in the arbitration below are not encompassed within this ground.” The reference to “factual errors” conveys impliedly that when it comes to assessing evidence for the purpose of fact-finding, an arbitrator has wider latitude and should not be required to comply with settled or established law concerning what specific evidence suffices to refute the opposing party’s evidence. This Court also takes into account the general proposition that the admissibility of evidence and the determination of issues of fact are left to the arbitrator’s discretion (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 483 [2006] [“Manifest disregard of the facts is not a permissible ground for vacatur of an award. . . .”]; Central Square Teachers Association v Board of Education of the Central Square Central School District, 52 NY2d 918, 919 [1981] [“The path of analysis, proof and persuasion by which the arbitrator reached this conclusion is beyond judicial scrutiny.”]; Matter of Lipson v Herman, 189 AD3d 440, 441 [1st Dept. 2020] [“error of [*10]fact . . . will not result in the vacatur of an arbitrator’s award”]; Matter of Bernstein v On-Line Software International, Inc., 232 AD2d 336, 338 [1st Dept. 1996] [“It is well established, however, that arbitrators are not bound by the rules of evidence and may admit or deny exhibits on an equitable basis.”]). In light of this case law with respect to the admissibility of evidence and the determination of issues of fact in arbitration, 11 NYCRR 65-4.10 (a) (4)’s “matter of law” should be limited in its breadth.

That “incorrect as a matter of law” (11 NYCRR 65-4.10 [a] [4]) refers to substantive issues — not evidentiary ones — is supported by case law. “If, however, the master arbitrator vacates the arbitrator’s award based upon an alleged error of a rule of substantive law, the determination of the master arbitrator must be upheld unless it is irrational [citations omitted]” (Golden Earth Chiropractic & Acupuncture, PLLC v. Global Liberty Ins. Co. of New York, 54 Misc 3d 31, 44 N.Y.S.3d 842 [App. Term, 2d Dept., 2d, 11th & 13th Dists. 2016] [emphasis added]).

The issue of whether Petitioner mailed the bill to Respondent and, if so, when was a factual one. The hearing arbitrator was not bound to follow the case law regarding proving a mailing took place. Her finding was subject to master arbitration review only for whether it was arbitrary and capricious, irrational or without a plausible basis (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207). In fact, among the cases cited for her standard of review, the master arbitrator cited to Matter of Petrofsky (see NYSCEF Doc No. 6, master arbitration Award at numbered pp 1-2). Not only that, the master arbitrator cited to the following cases for the standard of review:

A party seeking vacatur bears a “heavy burden” [Scollar v Cece, 28 AD3d 317 (1st Dept. 2006]), and generally, the award under review must be upheld where the arbitrator ” ‘offer[s] even a barely colorable justification for the outcome reached’ (Matter of Andros Cia Maritima, S.A. [Marc Rich & Co., A.G.], 579 F.2d 691, 704 [2d Cir 1978]).” See Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479 [2006], cert dsmd 548 US 940 [2006]).

It is within the province of the lower arbitrator to determine what evidence to accept or reject and what inferences should be drawn based on the evidence. See Mott v State Farm, 55 NY2d 224. In Petrofsky v Allstate, 54 NY2d 207, the Court of Appeals held that a master’s powers of review do not encompass a de novo review of the matter presented to the lower arbitrator not do they authorize the master arbitrator to determine the weight or credibility of the evidence.

(See NYSCEF Doc No. 6, master arbitration award at numbered p 2.) Therefore, in conducting her review, the master arbitrator applied settled case law governing the No-Fault arbitration appellate process as well as that applying to other types of arbitration.

As for accepting the hearing arbitrator’s factual finding that Petitioner did not prove a timely mailing of the bill, the master arbitrator was correct that the finding was neither arbitrary and capricious, irrational or without a plausible basis. It was within the discretion of the hearing arbitrator to reject the proffered USPS certificate of mailing and to require an affidavit of [*11]mailing with respect to mailing procedures generally or concerning the mailing of the particular bill. If the hearing arbitrator was not certain of the date printed on the USPS certificate of mailing postmark or was of the opinion that evidence beyond a USPS certificate of mailing needed to be presented to firmly establish when a claim form was mailed, it was within her discretion to rule as such. It was not within the master arbitrator’s province to perform an independent de novo review of the evidence or assess the credibility of documents (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207).

As an Article 75 court, this Court finds that the master arbitrator correctly affirmed the factual findings as to the bill’s mailing. Whether and when a bill was mailed entails a factual determination, the hearing arbitrator assessed the facts in a manner in which she applied her discretion, and the master arbitrator conducted a proper appellate review. The master arbitration review was not irrational in reviewing the hearing arbitrator’s factual determination. To the extent that the master arbitrator relied on case law governing a factual review, her analysis was not erroneous as a matter of law (see Matter of Smith, 55 NY2d 224, 232; Matter of Acuhealth Acupuncture, PC, 170 AD3d 1168; Matter of Acuhealth Acupuncture, P.C., 167 AD3d 869; Matter of Acuhealth Acupuncture, P.C., 149 AD3d 828).

CPLR 7511 (b) provides:

Grounds for vacating.

1. The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by:

(i) corruption, fraud or misconduct in procuring the award; or

(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

(iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

“[U]pon the denial of a motion to vacate or modify, [the Court] shall confirm the award” (CPLR 7511 [e]).

The question posed at the outset of this decision, “Should a No-Fault insurance arbitration determination be vacated where the hearing arbitrator found that the respective bill was mailed past the 45-day deadline for submitting proof of claim based on the lack of an affidavit describing mailing procedures or confirming the actual mailing of the bill, and Petitioner’s sole evidence on the issue was a USPS certificate of mailing found to contain an [*12]illegible postmark?” is answered by this Court in the negative. In assessing evidence for the purpose of making a finding regarding a mailing, a No-Fault insurance arbitrator may insist on an affidavit relating general mailing procedures or confirming the specific mailing at issue where the proffered documentary evidence is found inconclusive or unpersuasive or there is a functional equivalent of no documentary evidence.^[FN18]

Since none of CPLR 7511 (b)’s grounds for vacating an arbitration award were established, and the law governing the No-Fault insurance arbitration process was complied with, it is hereby ORDERED, ADJUDGED, and DECREED that (1) the within petition to vacate the master arbitration award of Alana Barran, Esq., dated October 24, 2023, in AAA Case No. 99-22-1246-9231, which affirmed the hearing arbitration award of Stacey Charkey, Esq., dated July 25, 2023, in AAA Case No. 17-22-1246-9231, is hereby DENIED, (2) this special proceeding is dismissed, and (3) said master arbitration award is CONFIRMED in its entirety.

NYSCEF doc nos. 58-67 were read on this motion for an order directing the entry of a default judgment.

Plaintiff commenced this action on April 29, 2021, by filing a summons and complaint (see NYSCEF doc no. 1). Plaintiff subsequently filed an amended summons and amended complaint on April 30, 2021 (see NYSCEF doc nos. 2-3). The amended complaint alleges, in sum and substance, that defendant was allegedly injured while a passenger in a vehicle insured by plaintiff (see id. ¶¶ 12-14). The complaint further alleges that the subject insurance policy covers any occupants of the insured vehicle for any medical necessity and causally related medical expenses arising out of the use or operation of the insured vehicle as a result of an accidental collision (see id. ¶ 16). The complaint further alleges that tens of thousands of dollars in no-fault claims for treatment allegedly provided to defendant have been submitted to plaintiff (see id. ¶ 17). The complaint further alleges that defendant’s testimony at an examination under oath raised issues about the legitimacy and necessity of such medical treatments (see id. ¶ 28). [*2]The complaint further alleges that defendant failed to subscribe and return her examination under oath transcript and appear for independent medical examinations, as duly requested by plaintiff (see id. ¶¶ 29-30). The complaint further alleges that, based on plaintiff’s investigation into the collision and defendant’s noncompliance with its requests, plaintiff believes defendant’s alleged injuries and no-fault treatment were not causally related to the subject collision and did not arise from an insured event (see id. ¶ 31). Plaintiff seeks relief in the form of a judgment declaring that it owes no duty to pay the claims regarding the subject collision (see id. ¶¶ 38, 41). The amended complaint is verified by plaintiff’s attorney, only (see id. at 12).

In the court’s September 22, 2023 decision and order on motion seq. no. 002, the court extended the time for plaintiff to serve the complaint on defendant to 60 days from the date of the order (see NYSCEF doc no. 54). On October 26, 2023, plaintiff filed an affidavit of service of process indicating that, on October 6, 2023, a process server delivered the amended summons and amended complaint to a person of suitable age and discretion at defendant’s residence and mailed a copy of process to the residence (see NYSCEF doc no. 56).

On February 5, 2024, plaintiff filed this motion for an order directing the entry of a default judgment in favor of plaintiff and against defendant (see NYSCEF doc no. 58). In support of the merits, plaintiff submits an unsworn statement, styled as an affidavit, allegedly of a senior no-fault adjuster assigned to defendant’s claim number and familiar with the facts of the case based on their personal handling and review of the file (see affirmation of Schreiber, exhibit A ¶¶ 1-2, 6). The statement asserts, in sum and substance, that plaintiff maintains a founded belief that defendant’s injuries and treatment did not arise from an insured event (id. ¶ 16).

CPLR 3215(a) provides, in pertinent part, that “[w]hen a defendant has failed to appear, plead or proceed to trial . . . the plaintiff may seek a default judgment against them.” On a motion pursuant to CPLR 3215, a plaintiff demonstrates entitlement to a default judgment by submitting proof of: (1) service of the summons and complaint; (2) the defendant’s default in answering, appearing, or otherwise responding to the complaint; (3) the facts constituting the claim; and (4) the amount due (see CPLR 3215[f]; Gordon Law Firm, P.C. v Premier DNA Corp., 205 AD3d 416, 417 [1st Dept 2022]; Gantt v N. Shore-LIJ Health Sys., 140 AD3d 418, 418 [1st Dept 2016]; Merchants Mut. Ins. Co. v Dunham Piping & Heating Corp., 203 AD3d 543, 544 [1st Dept 2022]).

The court finds based on the papers submitted that plaintiff has shown prima facie good service of process on defendant pursuant to CPLR 308(2) by means of the affidavit of service, that defendant has failed to answer, appear, or otherwise respond to the amended complaint, and that the time to do so has expired. The court further finds that plaintiff has submitted adequate proof of the facts constituting the claims by means of the unsworn statement submitted.

Effective January 1, 2024, the recently amended CPLR 2106 now provides:

“[t]he statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

“I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

“(Signature)”

CPLR 2106 concerns the affirmation of the truth of statements. Prior to the recent amendment, the permissible use of unsworn statements with the same force and effect as affidavits was much more limited than it is now. Section (a) concerned only New York attorneys and certain health care practitioners, while section (b) concerned persons “physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.” Both deprecated sections required the unsworn statement be subscribed and affirmed by the person making the statement “to be true under the penalties of perjury.” The current statute removes section (a) entirely along with the geographic restrictions in (b), permitting such statements “wherever made.”

Here, the unsworn submission states, “I affirm this 25th day of January, 2024, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law” and is signed with the same name as the person identified in the body as making the statement (affirmation of Schreiber, exhibit A, at 4). The court finds that the statement submitted satisfies the requirements of CPLR 2106 as amended and must be regarded as having the same force and effect as an affidavit. The court finds further that the statement submitted is adequate proof of the facts constituting the claims for the purpose of demonstrating entitlement to the entry of a default judgment. As such, plaintiff is entitled to a default judgment.

Accordingly, it is

ORDERED that the motion by plaintiff pursuant to CPLR 3215 for an order directing the entry of a default judgment on the complaint in favor of plaintiff and against defendant Shekima Roberts is granted, there being no opposition submitted; and it is further

ADJUDGED that plaintiff is not required to pay any sums, monies, damages, awards, or benefits to Shekima Roberts, including but not limited to Mandatory Personal Injury Protection (No-Fault), any uninsured, underinsured, supplementary uninsured, or supplementary underinsured motorist benefit claims, any medical payment claims, any property damage claims, and any bodily injury liability benefits, in connection with the alleged incident of July 28, 2020, claim number 91306; and it is further

ORDERED that, within five days of entry, plaintiff shall serve a copy of this order with notice of entry on Shekima Roberts and on the clerk, who shall enter judgment accordingly.

The foregoing constitutes the decision, order, and judgment of the court.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Heela D. Capell, J.), dated September 16, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint and denying, as moot, plaintiff’s cross-motion for summary judgment while declining to consider plaintiff’s additional papers submitted in support of its cross-motion for summary judgment.

Defendant moved for summary judgment on the ground that it had timely and properly denied plaintiff’s claims based upon plaintiff’s failure to timely provide requested written verification (see 11 NYCRR 65-3.5 [o]). According to defendant, after receipt of the subject NF-3 forms on July 23, 2018 and July 30, 2018, it mailed a letter to plaintiff on August 14, 2018 scheduling an examination under oath (EUO) to be held on September 14, 2018. Plaintiff appeared at the EUO on September 14, 2018. Defendant then requested written verification from plaintiff by letter dated September 18, 2018, with a follow up to that request dated October 19, 2018. On February 4, 2019, defendant denied the claims based upon plaintiff’s failure to provide [*2]the requested written verification within 120 days of the September 18, 2018 request. Contrary to the holding of the Civil Court, we find that defendant did not establish that it had timely denied the claims at issue.

Upon receipt of a “prescribed verification form” such as an NF-3 form (titled “verification of treatment by attending physician or other provider of health service”) or an NF-4 form (titled “verification of hospital treatment”), the no-fault regulations grant an insurer the opportunity to request “additional verification required by the insurer to establish proof of claim” (11 NYCRR 65-3.5 [b]). 11 NYCRR 65-3.5 (b) provides that “[a]ny [additional verification] shall be requested within 15 business days of receipt of the prescribed verification forms” (emphasis added). An insurer is required to pay or deny a claim within 30 calendar days of its receipt of proof of claim, which consists of a prescribed verification form and any properly requested additional verification (see 11 NYCRR 65-3.8 [a]). The only exception to the 15-business-day deadline to request additional verification can be found in 11 NYCRR 65-3.8 (l), which provides, insofar as is relevant here, that any deviation from the time frame set forth in 11 NYCRR 65-3.5 (b) reduces the 30 days to pay or deny a claim by the same number of days that the request for additional verification was made after the 15th business day. (Thus, while defendant’s EUO scheduling letter was one day “late” with respect to the NF-3 form, which, defendant asserts, it received on July 23, 2018, the only effect of that delay would be to reduce the time to pay or deny that claim from 30 days to 29 days. For purposes of this discussion, the scheduling letter will be referred to as “timely.”) Here, defendant’s September 18, 2018 request was made nearly 60 days after receipt of the first NF-3 form and more than 50 days after receipt of the second NF-3 form.

Defendant’s argument on appeal is that its August 14, 2018 EUO scheduling letter tolled “the time within which it had to pay or deny plaintiff’s claim until it received all additional verification,” including what was requested for the first time in the September 18, 2018 letter. We agree that defendant’s time to pay or deny the claims was tolled by the EUO scheduling letter, which letter was “timely” issued pursuant to 11 NYCRR 65-3.5 (b) and 65-3.8 (l), but, contrary to defendant’s apparent position, that toll expired on September 14, 2018 when the EUO was conducted and proof of claim became complete (see 11 NYCRR 65-3.8 [a] [1] [“No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart. In the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day the examination was performed” (emphasis added)]). In any event, defendant’s argument misconstrues both 11 NYCRR 65-3.8 (a), the regulatory basis for tolling, and 11 NYCRR 65-3.5 (b), which permits an insurer to request additional verification within 15 business days of receipt of a prescribed verification form. It was defendant’s time to pay or deny plaintiff’s claims that was tolled, pursuant to 11 NYCRR 65-3.8 (a), by the timely EUO scheduling letter—not defendant’s time to request additional verification under 11 NYCRR 65-3.5 (b). Any requests for additional verification must be made within 15 business days of receipt of the prescribed verification form, subject to the minor allowance set forth in 11 NYCRR 65-3.8 (l), and, as previously explained by this court, the regulations do not provide that a toll of the time to pay or deny a claim created by a timely additional verification request also “grants an insurer additional opportunities to make [*3]requests for verification that would otherwise be untimely” (Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Indeed, an original request for additional verification (see 11 NYCRR 65-3.5 [b]) made more than 30 calendar days after receipt of a prescribed verification form, i.e., an NF-3 form or NF-4 form, is a nullity as to that claim, regardless of any toll of the time to pay or deny the claim that might be in effect (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 2015 NY Slip Op 51220[U]; O & M Med., P.C. v Travelers Indem. Co., 2015 NY Slip Op 50476[U]).

We note that there is another provision in the regulations regarding additional verification, 11 NYCRR 65-3.6 (b), which states that, “[a]t a minimum, if any requested verifications [i.e., additional verification] has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested.” In Quality Health Supply Corp. v Nationwide Ins. (216 AD3d 1013, 1014 [2023]), the Appellate Division, Second Department, held that 11 NYCRR 65-3.6 (b) permitted a no-fault insurer, where there had been an “original” request for an EUO that was timely made pursuant to 11 NYCRR 65-3.5 (b), and for which there was no appearance, to follow up on that request as often as the insurer found necessary, while the initial toll of the insurer’s time to pay or deny the claim continued, as long as such follow-up requests were “timely and proper[ ].” Neither 11 NYCRR 65-3.6 (b) nor the holding in Quality Health Supply Corp. v Nationwide Ins. is applicable to the determination of this case for two reasons. First, plaintiff herein complied with defendant’s original request for additional verification by appearing for an EUO on September 14, 2018; in other words, here, the “timely” requested additional verification was “supplied,” whereas 11 NYCRR 65-3.6 (b) only applies where the additional verification “has not been supplied.” Second, the September 18, 2018 request at issue is an “original request” seeking new verification, not a “follow up” of an “original request” seeking verification that has already been requested and “has not been supplied” by “the party from whom the verification was requested,” as was the case in Quality Health Supply Corp. v Nationwide Ins.

In view of the foregoing, defendant failed to demonstrate that it timely denied the claims at issue and therefore that it was not precluded from raising the defense upon which its motion for summary judgment was based (see 11 NYCRR 65-3.8 [a] [1]; RA Med. Servs., P.C. v Lancer Ins. Co., 76 Misc 3d 129[A], 2022 NY Slip Op 50793[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Neptune Med. Care, P.C., 2015 NY Slip Op 51220[U], *1-2; O & M Med., P.C. v Travelers Indem. Co., 2015 NY Slip Op 50476[U]; cf. Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 79 Misc 3d 132[A], 2023 NY Slip Op 50794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). Consequently, plaintiff correctly argues that defendant’s motion for summary judgment should have been denied.

Plaintiff’s cross-motion for summary judgment, although no longer moot, was properly denied, as plaintiff failed to demonstrate the absence of any material issue of fact (see CPLR 3212 [b]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Finally, contrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no [*4]preclusive effect on this case as it was not a final determination on the merits (see Queensboro Farm Prods. v General Acc. Ins. Co., 254 AD2d 341, 342 [1998]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85, 86-87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the submission of that decision and order.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

Law Offices of Brian Rayhill (Lawrence Wolkow of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered February 8, 2023. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor was not an eligible injured person (EIP) for receipt of no-fault benefits as his injuries did not arise from the use or operation of an insured vehicle (see Insurance Law § 5103; 11 NYCRR 65-1.1 [d] [a]). Defendant contended that plaintiff’s assignor’s injuries were the result of an assault after the subject motor vehicle accident, relying on the truth of plaintiff’s assignor’s factual assertions contained within uncertified records of the Kings County Hospital Center, where plaintiff’s assignor was admitted one hour after the subject accident. Conceding that the statements were hearsay, defendant’s attorney argued that they were admissible as exceptions as party statements and/or statements relevant to diagnosis and treatment. By order entered February 8, 2023, insofar as appealed from, the Civil Court denied defendant’s motion.

A review of the records shows that, contrary to defendant’s contentions, defendant failed to establish, as a matter of law, that plaintiff’s assignor was not an EIP as defined by the [*2]Insurance Law and no-fault regulations. Hospital and medical records are admissible to support a summary judgment motion if the records are certified pursuant to CPLR 4518 (c) or the proponent of the records submits foundational testimony pursuant to CPLR 4518 (a) (see Berkovits v Chaaya, 138 AD3d 1050 [2016]; Matter of Kai B., 38 AD3d 882 [2007]). Here, as plaintiff correctly contends, the hospital records were not certified and defendant failed to otherwise establish a proper foundation for their admissibility. Therefore, the statements relied upon by defendant were not admissible (see Yassin v Blackman, 188 AD3d 62 [2020]; Berkovits, 138 AD3d 1050; Matter of Kai B., 38 AD3d 882). Consequently, defendant failed to proffer competent evidence to establish, as a matter of law, its defense that plaintiff’s assignor was not an EIP (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see e.g. Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), and defendant’s motion was properly denied.

It is noted that, even if the hospital records and the statements contained therein were admissible, defendant would still not be entitled to summary judgment dismissing the complaint, as defendant’s motion failed to eliminate all material questions of fact as to whether plaintiff’s assignor’s injuries were the result of an assault and not the result of the use or operation of a motor vehicle.

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

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

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Gabriel & Moroff, PC (Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (Garrett W. Swenson, Jr., J.), entered April 29, 2022. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied the branches of defendant’s motion which had sought summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

For each bill at issue, defendant established prima facie that it timely mailed initial and [*2]follow-up EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff failed to appear for the scheduled EUOs; and that defendant then issued “timely and proper denial[s] of the claims following [plaintiff’s] failure to appear at the last scheduled EUO” (Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023]). To the extent that the District Court stated that there was an issue of fact as to whether the EUOs were scheduled to be held in a location which was reasonably convenient for plaintiff, we note that the EUO scheduling letters offered to let plaintiff appear virtually. As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, defendant is entitled to summary judgment dismissing so much of the complaint as sought to recover upon those claims (see id.; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath is granted.

GARGUILO, P.J., McCORMACK and WALSH, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Gabriel & Moroff, PC (Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (Garrett W. Swenson, Jr., J.), entered June 21, 2022. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

The affidavit submitted by defendant established that the EUO scheduling letters and the denial of claim forms, which denied the claims on the ground that plaintiff failed to appear for the EUOs, had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 11 NYCRR 65-3.8 [l]). In addition, defendant submitted affidavits by its attorney who was scheduled to conduct the EUOs, as well as certified transcripts of the attorney’s statements of the nonappearances, which were sufficient to establish plaintiff’s failure to appear (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], [*2]2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Consequently, defendant established its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]). To the extent the court stated that there was an issue of fact as to whether the EUOs were scheduled to be held in a location which was reasonably convenient for plaintiff, the EUO scheduling letters offered to let plaintiff appear virtually. As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant’s motion for summary judgment dismissing the complaint should have been granted.

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

GARGUILO, P.J., McCORMACK and WALSH, JJ., concur.

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

Upon the foregoing cited papers after oral arguments made on the record, the Decision and Order for Plaintiff’s motion to compel discovery pursuant to CPLR 3124 is hereby deemed MOOT, and Defendant’s Cross-Motion to dismiss and for summary judgment pursuant to CPLR 3211(a)(5) and 3212 is hereby GRANTED as follows:

This Court dismisses Plaintiff’s complaint as the instant action is barred under the doctrines of res judicata and collateral estoppel by Declaratory Judgment granted on default in the Supreme Court, County of Nassau, by The Honorable R. Bruce Cozzens, Jr., State Farm Fire and Casualty Insurance Company v. Luis Alejandro, et. al., under Index No. 615595/18. This Court takes judicial notice of this Declaratory Judgment which declared, inter alia, Plaintiff/Provider has no right to payment for No-Fault claims for the underlying accident of September 5, 2017, as the underlying loss was an intentional act, staged accident, for which there is no coverage. There are identical parties and date of accident with this instant matter. It is of no moment that there is no specific claim number included in the DJ, as Plaintiff/Provider argues as a dispositive omission. Further, Plaintiff/Provider’s argument of prejudice by ambush of the untimeliness of the DJ as procedurally improper is not compelling and thereby rejected for the [*2]purposes of Plaintiff’s application for an adjournment. Plaintiff/Provider and individual EIP/assignor had full, ample, and unfettered opportunity to engage in the defense in the DJ action but chose not to so do and therefore may not do so in this forum, which is a court of limited jurisdiction that does not sit as a Court of Equity. This Court is mandated and shall take judicial notice Sua Sponte of any DJ actions duly entered in courts of superior jurisdiction, as is herein, that may be attendant or relevant to the instant action before it, from any source during its deliberation, whether neither party brings it to This Court’s attention. For the foregoing reasons, this case is dismissed pursuant to the Doctrines of Res Judicata and Collateral Estoppel.

This constitutes the Decision and Order of This Court.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Brian Rayhill (Ivy Cherian and Lawrence Wolkow of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated April 18, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denying plaintiff’s cross-motion for summary judgment.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JPC Med., P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 136[A], 2022 NY Slip Op 50562[U], *1 [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2022]; JPF Med. Servs., P.C. v Nationwide Ins., 69 Misc 3d 127[A], 2020 NY Slip Op 51122[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.

Plaintiff’s cross-motion for summary judgment was properly denied, as plaintiff failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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