Decided on June 23, 2017

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

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 10, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross 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 which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. The court found that defendant had demonstrated that the limits of the applicable insurance policy had been exhausted.

Since the insurance policy at issue contains a provision that “[t]he policy and any amendment(s) and endorsement(s) are to be interpreted pursuant to the laws of Georgia,” the substantive law of Georgia applies (see St. Chiropractic, P.C. v Geico Gen. Ins. Co., 53 Misc 3d 59, 61 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Natural Therapy Acupuncture, [*2]P.C. v . Geico Ins. Co., 50 Misc 3d 107 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Bay Med., P.C. v. GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). However, New York’s procedural laws control (see St. Chiropractic, P.C. v Geico Gen. Ins. Co., 53 Misc 3d at 61).

The affidavit of defendant’s underwriter which was submitted in support of defendant’s cross motion was sufficient to provide a foundation for the consideration of the annexed copies of the insurance policy and declaration page, which indicated that the policy had a $10,000 medical payment limit. However, that affidavit and an affidavit by defendant’s claims division employee failed to establish defendant’s prima facie entitlement to summary judgment dismissing the complaint, since the assertions contained therein failed to provide a foundation for the consideration of the annexed printouts—which purportedly show that the $10,000 policy limit had been exhausted—inasmuch as neither affidavit specifically addressed the printouts. Moreover, it is noted that Section 1 of the insurance policy, entitled “Out of State Insurance,” provides that when “the policy applies to the operation of a motor vehicle outside your state, we agree to increase your coverages to the extent required of out-of-state motorists by local law” (emphasis in the original). It is uncontroverted that the accident took place in South Carolina, and defendant provided no information regarding the minimum financial responsibility required by the State of South Carolina. Consequently, defendant’s cross motion for summary judgment dismissing the complaint should have been denied.

Although the affidavit plaintiff submitted in support of its motion was sufficient to establish that the claim had been timely and properly mailed to defendant, the conclusory statements contained in the affidavit failed to establish that the claim 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 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]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment.

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

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, June 23, 2017

APPEARANCES OF COUNSEL

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt of counsel) for appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel) for respondent.

Ordered that, on the court’s own motion, defendant’s notice of appeal is treated as an application for leave to appeal from so much of the Civil Court’s order as, in effect, sua sponte searched the record and granted defendant partial summary judgment dismissing so much of the complaint as was asserted by plaintiff Fresh Acupuncture, P.C., and leave to appeal from that portion of the order is granted (see CCA 1702 [c]); and it is further ordered that the order, insofar as appealed from, is reversed, with $30 costs, and so much of the order as, in effect, sua sponte searched the record and granted defendant partial summary judgment dismissing so much of the complaint as was asserted by plaintiff Fresh Acupuncture, P.C. is vacated.

In this action, commenced on April 12, 2013, by three providers to recover assigned first-party no-fault benefits, defendant interposed an answer, which asserted, among other things, that the action is barred by the doctrine of res judicata. Thereafter, defendant moved for partial summary judgment dismissing so much of the complaint as was asserted by plaintiffs Advanced Wellness Chiropractic, P.C. and Maximum Care Physical Therapy, P.C. upon grounds not at issue here. Plaintiffs opposed the motion and cross-moved for summary judgment in favor of all three plaintiffs. In opposition to plaintiffs’ cross motion and in further support of defendant’s motion, defendant’s attorney submitted an affirmation in which he argued that, on the basis of an order in a declaratory judgment action in the Civil Court, New York County, entered October 6, 2014, upon the default of plaintiff Fresh Acupuncture, P.C., Fresh Acupuncture is not entitled to receive no-fault benefits for the accident at issue on the ground of the failure{**56 Misc 3d at 100} by Fresh Acupuncture to appear for scheduled examinations under oath. Fresh Acupuncture appeals from so much of an order of the Civil Court as, upon plaintiffs’ cross motion for summary judgment, in effect, sua sponte searched the record and granted defendant partial summary judgment dismissing so much of the complaint as was asserted by Fresh Acupuncture.

Insofar as is relevant here, CCA 212-a provides:

“The [Civil Court] shall have the jurisdiction defined in section 3001 of the CPLR to make a declaratory judgment with respect to:

“(a) any controversy involving the obligation of an insurer to indemnify or defend a defendant in an action in which the amount sought to be recovered does not exceed $25,000.”

The Civil Court, New York County, declaratory judgment action was an action by an insurer against a provider and did not involve a “controversy involving the obligation of an insurer to indemnify or defend a defendant in an action in which the amount sought to be recovered does not exceed $25,000.” Thus, the Civil Court, New York County, lacked subject matter jurisdiction to entertain the declaratory judgment action (see CPLR 3001; see generally 133 Plus 24 Sanford Ave. Realty Corp. v Xiu Lan Ni, 47 Misc 3d 55, 58 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To the extent that this court’s decision in Five Boro Psychological Servs., P.C. v AutoOne Ins. Co. (27 Misc 3d 89 [2010]) may have held to the contrary, it should not be followed.

Accordingly, the order, insofar as appealed from, is reversed, and so much of the order as, in effect, sua sponte searched the record and granted defendant partial summary judgment dismissing so much of the complaint as was asserted by plaintiff Fresh Acupuncture, P.C., is vacated.

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

601499/2017

For Plaintiff: Jason Tenenbaum, Esq.
For Defendant: Rachel Drachman, Esq.

The following papers read on this motion:

Karen V. Murphy, J.

Defendant moves this Court for an Order dismissing the complaint on the ground that this matter has already been adjudicated in arbitration, and that the pleading fails to state a cause of action. Defendant also seeks to consolidate this matter with a Bronx County matter identified by Supreme Court Index No. 25976/2016E (Motion Sequence 001).

Plaintiff opposes Motion Sequence 001 and cross-moves for an Order granting plaintiff summary judgment adjudging and declaring that defendant is not entitled to no-fault coverage for the motor vehicle accident that occurred on December 17, 2014 (Motion Sequence 002). Motion Sequence 002 is unopposed.

With regard to Motion Sequence 001, that branch seeking to consolidate this action with a Bronx County action entitled Global Liberty Insurance Co. v. FJ Orthopedics and Pain Management, PLLC, a/a/o Mary King is denied. The Bronx County action was disposed on May 1, 2017 by judgment granting Global Liberty Insurance Company of New York a default judgment declaring that defendant FJ Orthopedics and Pain Management, PLLC is not entitled to reimbursement for services performed on defendant’s assignor (Mary King) for alleged injuries sustained in a motor vehicle accident that occurred on December 17, 2014.

The action pending before this Court involves the same assignor, Mary King, and results [*2]from the same motor vehicle accident.

That branch of defendant’s motion seeking dismissal of this action on the ground that arbitration has already been held is also denied. Defendant contends that “the matter was submitted for Arbitration. In light of the fact that the claims herein have already had an opportunity to be adjudicated, and both parties had a fair hearing, it would be a waste of the parties’ time and resources . . . and a waste of this Courts (sic) time and resources and against the interests of judicial economy, for the parties to reset litigation of the subject claims and begin the process anew in the supreme courts.”^[FN1]

Contrary to defendant’s contention, Insurance Law § 5106 (c) and 11 NYCRR 4.10 (h)(1) (ii) expressly provide that either party to a matter submitted to arbitration has the right to a de novo determination of the dispute in the event that the master arbitrator’s award equals or exceeds $5,000, exclusive of interest and attorneys’ fees (Matter of Greenberg, 70 NY2d 573 [1987]; AutoOne Insurance Company v. Eastern Island Medical Care, P.C., 141 AD3d 499 [2d Dept 2016]; Allstate Insurance Company v. Nalbandian, 89 AD3d 648 [2d Dept 2011]; Progressive Insurance Company v. Strough, 55 AD3d 1402 [4th Dept 2008]).

Moreover, there is no evidence presented that the policy in question contained a binding arbitration clause, nor has defendant ever moved for confirmation of the arbitration award, which, if confirmed, would be accorded res judicata effect (see Aetna Casualty & Surety Company v. Mantovani, 240 AD2d 566 [2d Dept 1997]).

That branch of defendant’s motion seeking dismissal of the complaint for failure to plead with particularity in accordance with CPLR § 3013 is also denied. This Court has reviewed the complaint filed in this action and finds that it sets forth the facts underlying the cause of action seeking declaratory judgment with sufficient particularity to give notice of plaintiff’s claim. The series of transactions and occurrences intended to be proved, including the billing and verification demands that were sent and not complied with, are adequately set forth (Di Mauro v. Metropolitan Suburban Bus Authority, 105 AD2d 236, 239 [2d Dept 1984]).

Although defendant does not specifically refer to CPLR §3211 (a)(7) in claiming that plaintiff fails to state a cause of action, the Court will address defendant’s claim as one made pursuant to the statute.Defendant has answered; however, this branch of its motion is not time-barred by CPLR § 3211 (e).

When deciding a motion to dismiss pursuant to CPLR § 3211(a)(7), the court must afford the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiffs the benefit of every favorable inference (see Marcantonio v Picozzi III, 70 AD3d 655 [2d Dept 2010]). The sole criterion on a motion to dismiss is “whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cognizable action at law a motion for dismissal will fail” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see also Miglino v. Bally Total Fitness of Greater New York, Inc., 20 NY3d, 342, 351 [2013]; Leon v Martinez, 84 NY2d 83, 87-88, [1994]; Sokol v Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]; Gershon v Goldberg, 30 AD3d 372, 373 [2d Dept 2006]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v Goldman, Sachs & [*3]Co., 5 NY3d 11, 19 [2005]).

“A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a)(7) [citation omitted]” (Sokol, supra at 1181). “When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it… dismissal should not eventuate” (Guggenheimer, supra at 275; see also Vertical Progression, Inc. v. Canyon Johnson Urban Funds, 126 AD3d 784 [2d Dept 2015]; YDRA, LLC v. Mitchell, 123 AD3d 1113 [2d Dept 2014]; Korsinsky v. Rose, 120 AD3d 1307 [2d Dept 2014]).

“Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR § 3211 [c]). Without proper notice, a “court’s sua sponte treatment of the motion as one for summary judgment [would] deprive[ ] plaintiff of the ‘opportunity to make an appropriate record’ and thus thwart[ ] the very purpose of CPLR 3211 (c)” (Mihlovan v. Grozavu, 72 NY2d 506, 508 [1988], quoting Rovello v. Orofino Realty Co., 40 NY2d 633, 635 [1976]).

“There are nevertheless three circumstances under which a court’s failure to provide CPLR 3211 (c) notice may be overlooked. One circumstance is when CPLR 3211 (c) treatment is specifically requested not by one party, but by all of the parties, or is at least requested by the same party that is aggrieved by the summary judgment determination. A second circumstance is when a dispute involves no questions of fact, but only issues of law argued by all parties, such as in the context of declaratory judgment actions involving an issue of statutory construction or the application of an unambiguous contractual provision. The third circumstance is when the respective submissions of both parties demonstrate that they are laying bare their proof and deliberately charting a summary judgment course [citations omitted]” (Hendrickson v. Philbor Motors, Inc., 102 AD3d 251, 258-259 [2d Dept 2012]).

In this case, defendant claims that it complied with plaintiff’s verification request, and submits an affidavit from an individual employed as a Billing Manager for MD Capital Advisors, the third-party billing company that handles all no-fault billing for FJ Orthopedics PLLC, purporting to establish that the surgery center that hosted the surgical procedure performed on Mary King responded to Global Liberty’s verification requests. Defendant also attaches a copy of three small photographs that are claimed to be the surgical photographs requested by plaintiff Global Liberty.

Accordingly, defendant lays bare its proof, arguing that this action should be dismissed because it complied with plaintiff’s verification requests; as established in arbitration, the surgical photos were provided to plaintiff by the surgery center where the procedure was performed; “[w]hether they received the photos from FJ Orthopedics, from Doshi Diagnostic or from Excel Surgery Center should be of no importance as long as they have the photos in their possession.”

In response to defendant’s motion, plaintiff cross-moves for summary judgment (Motion Sequence 002). Plaintiff’s motion was e-filed and served on April 6, 2017; defendant’s motion was e-filed on March 15, 2017. Both Motion Sequences 001 and 002 bore return dates of April 7, 2017. On April 7, 2017, both sequences were adjourned to April 17, 2017, on which date they were marked submitted for the Court’s consideration. Defendant does not oppose plaintiff’s summary judgment motion. Thus, it would not thwart the purpose of CPLR § 3211 (c) to [*4]convert defendant’s motion to one for summary judgment. Plaintiff, having responded to defendant’s motion with its own motion for summary judgment, has not been deprived of an opportunity to make an appropriate record (cf. Mihlovan, supra). Moreover, defendant has not been deprived of an opportunity to supplement its proof by responding to plaintiff’s summary judgment motion; plaintiff’s summary judgment motion was adjourned to April 17, 2017, but defendant apparently chose not to oppose it. Accordingly, the Court will now consider plaintiff’s summary judgment motion.

It is well recognized that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v. Pomeroy, 35 NY2d 361[l974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the defendant (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]).

A party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. (Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

“A no-fault claim is overdue if it is not paid or denied within thirty [30] days of receipt (see Insurance Law § 5106 [a]; 11 N.Y.C.R.R. 65-3.8 [a][1] & [c]) unless, within fifteen [15] business days of receipt of the claim, the insurer requests additional verification (see 11 N.Y.C.R.R. 65-3.8 [b][3])” (Westchester Medical Center a/a/o Salvatore Dipietro v GEICO, 2011 NY Slip Op 30862 [Sup Ct, Nassau County 2011]; A.B. Medical Services PLLC a/a/o David Ruiz v. GEICO General Insurance Company, 22 Misc 3d 1116A, 880 NYS2d 222 [Dist Ct, Nassau County 2008]).

Plaintiff contends that “[i]t is uncontroverted that the MRI films were never received” pursuant to plaintiff’s written verification requests; therefore, the no-fault billing is not overdue, and it should be declared that plaintiff does not owe defendant no-fault benefits.

In support of its motion, plaintiff submits, inter alia, the summons, complaint, and answer, the written verification requests made to defendant Lewin and to Doshi Diagnostic Imaging Services for the MRI films, and the affidavit of plaintiff’s no-fault claims adjuster.

Based upon the affidavit of Regina Abbatiello, plaintiff’s no-fault claims adjuster, plaintiff establishes that the surgery was performed on March 24, 2015, and the bill from defendant was received on April 9, 2015. The bill was delayed pending receipt of operative photographs and MRI films. By written request dated March 20, 2015, plaintiff requested, inter alia, “a copy of the R/Shoulder MRI films” from Doshi Diagnostic Imaging Services. Apparently, plaintiff did not receive the MRI films, and it sent a second written verification request to Doshi dated April 20, 2015.

Not having received the MRI films, plaintiff, by written requests dated April 28, 2015 and May 28, 2015, notified defendant and requested a copy of the right shoulder MRI films from defendant. The letters are addressed to Jonathan Lewin MD PC, and they state in relevant part, “[a]lso awaiting a copy of the R/Shoulder MRI films from Doshi Diagnostic MRI which were requested from the MRI facility and the doctor’s office. Once received the claim will be reviewed and processed.” Ms. Abbatiello’s affidavit avers that the MRI films were never received from either Doshi or from defendant Lewin.

Based upon the foregoing, plaintiff has established its prima facie entitlement to summary judgment as a matter of law that the claim is not overdue, since the additional verification remains outstanding, and that defendant is not entitled to reimbursement for no-fault benefits a/a/o Mary King related to the motor vehicle accident that occurred on December 17, 2014 (St. Vincent’s Hospital of Richmond v. American Transit Insurance Company, 299 AD2d 338 [2d Dept 2002]; 11 NYCRR 65.15 [g][1][i], [2][iii]).

Defendant does not oppose the instant cross-motion; therefore, defendant fails to raise a triable issue of fact as to the failure to respond to the request for the right shoulder MRI films.

Even considering defendant’s submissions upon Motion Sequence 001 as opposition to the instant summary judgment motion, defendant still fails to raise a triable issue of fact sufficient to defeat plaintiff’s motion.

The affidavit of Mike Manzo, billing manager for MD Capital Advisors, states that MD Capital Advisors is the third party billing company for FJ Orthopedics PLLC, which is not a party to this action. In fact, the affidavit appears to have been submitted in connection with the prior arbitration entitled FJ Orthopedics PLLC / Mary King, Applicant and Global Liberty Insurance Company of New York. Thus, it is unknown to the Court how Mr. Manzo’s affidavit is germane to defendant Lewin named in this action. Assuming, however, that his affidavit is relevant, because it relates to the assignor in this matter (Mary King), Mr. Manzo speaks to the issue of the surgical photographs, which is not the subject of the summary judgment motion. Moreover, his affidavit is vague as to “the verification response” and “requested documents” allegedly submitted to plaintiff on June 2, 2015; however, the response was likely the letter on FJ Orthopedics letter head, signed by Mike Manzo, dated May 21, 2015, which is annexed to Manzo’s affidavit. That letter states that, “your request for MRI films and color photos of surgey (sic) for the above mention (sic) claim is overly burdensome as neither our client FJ Orthopedics nor the patient Mary King does not (sic) have access to the actual films. . . The films are in Doshi Diagnostic’s possession . . . therefore, we enjoin you to obtain the actual films . . . with the attached medical authorizations signed by Mary King.”

Defendant’s submissions do nothing to raise a triable issue of fact as to the failure to provide the MRI films, nor do the submissions controvert the established fact that plaintiff attempted to get the films directly from Doshi first, by sending a first request and then a follow-up request, and when it received no films, plaintiff notified defendant of the request. Plaintiff sent the verification requests directly to Doshi, and plaintiff also timely informed the applicant, the defendant in this action, of the nature of the verification sought, and from whom it was sought, after the initial requests went unsatisfied (Doshi Diagnostic Imaging Servs. v. State Farm Insurance Co., 16 Misc 3d 42 [App Term 2d Dept 2007]; see also Advantage Radiology, P.C. v. Nationwide Mutual Insurance Company, 55 Misc 3d 91 [App Term 2d Dept 2017]).

The fact that FJ Orthopedics, albeit not a party to this action, may have provided plaintiff with a HIPPA authorization for the films does not constitute a response to the request for verification. Plaintiff did not need a HIPPA authorization to obtain the films (Eagle Surgical Supply, Inc. v. GEICO Insurance Co., 41 Misc 3d 134[A][App Term 1st Dept 2013]), and in any event, FJ Orthopedics’ statement made in its May 21, 2015 letter that the request “is overly burdensome” is evidence of its lack of motivation to satisfy plaintiff’s verification request.

Defendant has failed to raise a material, triable issue of fact; therefore, plaintiff’s summary judgment motion is granted.

Submit a judgment on notice.

The foregoing constitutes the Order of this Court.

Dated: June 22, 2017

Mineola, NY

Karen V. Murphy

Footnotes

Footnote 1:Defendant has submitted a master arbitration award in another matter, but plaintiff has submitted the correct master arbitration award pertaining to the parties in this action.

CV-011318-14

Law Offices of Joseph B. Strassman, attorneys for Plaintiff, 11 Clinton Avenue, Rockville Centre, New York 11570, (516) 766-7007; Richard T. Lau & Associates, attorneys for Defendant, P.O. Box 9040, 300 Jericho Quadrangle, Suite 260, Jericho, New York 11753-9040, (914) 229-6000.

The following named papers numbered 1 to 4

submitted on this Motion on April 24, 2017

papers numbered

No-Fault Notice of Motion for Summary Judgment1Attorney’s Affirmation2

Reply Affirmation3

Memorandum of Law4

The plaintiff commenced this action seeking reimbursement from the defendant for chiropractic treatment she received as a result of a motor vehicle accident which occurred on May 8, 2008. The defendant moves for summary judgment, pursuant to CPLR 3212, on the ground that the plaintiff executed an Assignment of Benefits to the treating doctor, and as such, lacks standing to maintain this action.

It is uncontroverted that the plaintiff was injured in an automobile accident and received chiropractic treatment from a Christopher Skurka, D.C. It is also uncontroverted that the plaintiff executed an Assignment of Benefits to Dr. Skurka, of her no-fault benefits. As such, the defendant moves for summary judgment.

Summary judgment is drastic relief – – it denies one party the opportunity to go to trial. Thus, summary judgment should only be granted where there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361 [1974]). The focus for the court is on issue finding, not issue determining (see Hantz v Fishman, 155 AD2d 415 [2d Dept 1989]).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence in admissible form to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v NY Univ. Med. Ctr., 64 NY2d 851 [1985]). Once the movant has demonstrated a prima facie showing, the burden shifts to the non-moving party, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, which require a trial of the action (see Zuckerman v New York, 49 NY2d 557 [1980]).

In support of the instant motion, the defendant submits, inter alia, the affirmation of Jeremey R. Maline, Esq., an attorney of the law office of Richard T. Lau & Associates; the affidavit of Beverly A. Croteau, a Claim Representative for State Farm Mutual Automobile Company; and a copy of an Assignment of Benefits signed by the plaintiff and Dr. Shurka D.C., dated May 29, 2008, establishing that the plaintiff assigned to Dr. Skurka D.C., all of her “rights privileges and remedies to payment for health care services” to which she would otherwise be entitled to (see Plaintiff’s Memorandum of Law, Exhibit A). The defendant contends that as a result of the Assignment to Dr. Shurka, D.C., the plaintiff’s action must be dismissed.

In reliance thereon, the defendant cites Lopes v Liberty Mutual Insurance Company, 24 Misc 3d 127(A) (App Term, 2nd, 11th, and 13th Jud Dists 2009). In Lopes, the plaintiff sought reimbursement from her insurance company after making payments directly to several medical providers. The court granted the defendant’s motion in part, finding that the executed assignment of benefits deprived the plaintiff of standing. In doing so, the court stated that for an assignment to be valid, it must assign “all rights, privileges and remedies to the assignee.” The court further held:

“The no-fault regulations contemplate payment directly to an EIP or her legal representative, unless said individual has executed an assignment, in which case payment shall be made directly to providers of health care services (Insurance Department Regulations [11 NYCRR]§65-3.11[a])… An insurer [*2]seeking dismissal pursuant to CPLR 3211(a)(7), on the ground that the claim has been assigned by the plaintiff EIP to a provider, bears the burden of demonstrating that the claim submitted by the health care provider was submitted on such provider’s own behalf by demonstrating that there was an assignment…. Defendant submitted documents that clearly assign plaintiff’s claims for services rendered… . As a result, plaintiff’s causes of action seeking reimbursement for said services were properly dismissed under CPLR 3211(a)(7), because defendant demonstrated that the providers submitted the claims on their own behalf and the causes of action are being asserted by an individual without standing.”

In the case at bar, the New York Motor Vehicle No-Fault Insurance Law Assignment of Benefits Form signed by the plaintiff on May 29, 2008, provides:

“I, Carla Santorello, (“Assignor”) assigns to Dr. Shurka (“Assignee”) all rights privileges and remedies to payment for health care services provided by assignee to which I am entitled under Article 51 (the No-Fault statute) of Insurance Law.

The assignee hereby certifies that they have not received any payment from or on behalf of the Assignor and shall not pursue payment directly from the Assignor for services provided by said Assignee for injuries sustained due to the motor vehicle accident which occurred on 5/8/08, notwithstanding any prior written agreement to the contrary.

This agreement may be revoked by the assignee when benefits are not payable based upon the assignor’s lack of coverage and/or violation of a policy condition due to the actions or conduct of the assignor.”

Here, the subject Assignment clearly and unambiguously transferred the plaintiff’s rights for the reimbursement of no-fault benefits to Dr. Skurka, D.C. As such, the plaintiff’s cause of action seeking reimbursement of those medical expenses cannot be sustained, given her lack of standing (see also Hernandez v Kalpakis, 2014 WL 12680588 [Supreme Ct, Nassau County]). The defendant having met its burden, the burden shifts to the plaintiff to establish a triable issue of fact.

However, in opposition, counsel for the plaintiff wholly fails to address the issue of the plaintiff’s lack of standing to sue based upon the assignment. Moreover, no affidavit is submitted from the plaintiff herself. The attorney’s affirmation alone is insufficient to raise an issue of fact warranting a trial (see Barbieri v D’Angelo, 128 AD2d 661[2d Dept 1987]). Accordingly, the defendant’s motion for summary judgment is granted, and the action is dismissed.

This constitutes the decision and order of the court.

Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:June 21, 2017

HUCV 1227-16
James F. Matthews, J.

Upon the following papers numbered 1 to 15 read on this motion by defendant for an order granting summary judgment of dismissal ; by Notice of Motion /Order to Show Cause and supporting papers 1,2,9 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 10,12 ; Replying Affidavits and supporting papers 13,15; Filed papers; Other exhibits: 3-8,11,14 ; (and after hearing counsel in support of and opposed to the motion), it is,

ORDERED that the motion by defendant for summary judgment dismissing plaintiff’s complaint pursuant to CPLR 3212, is denied.

Defendant moves by summary judgment for dismissal of plaintiff’s complaint which seeks to recover first-party no-fault benefits for medical services rendered to plaintiff’s assignor on 02/24/15 in the total amount of $878.67 as the result of an automobile accident of 12/05/14.

The grounds for dismissal are the failure of plaintiff to fully comply with defendant’s 3rd request for additional verification dated 05/07/15, by providing “a copy of the decision-making report from the referring doctor demonstrating the medical necessity and/or need for the MRI(s).” In addition, defendant asserts plaintiff failed to provide “documentation identifying the relationship between each individual involved in the rendering of services and the professional corporation, including the manner in which the person is compensated [ie: W-2, 1099).” Also, plaintiff failed to provide verification of documents “that establishes the licensure, certification or credentials for each individual involved in the rendering of the services for which payment is sought”; the name and model number of the MRI machine used on the above date[s] of service”; [*2]and “the completed NF-3 Form with original signature[non-stamped]”).^[FN1] Defendant contends that the above stated verification requests remain outstanding to date, though defendant acknowledges receipt on 04/20/15 of a “partial response” containing certain items previously requested.

In support of the motion, defendant asserts the first verification request was sent on 03/18/15 within 15 business days of receipt of plaintiff’s claim on 03/04/15. Upon non-compliance, a second verification request was sent on 04/20/15. After 120 days elapsed without receipt of the requested verification, defendant denied the claim by mailing a NF-10 Denial of Claim form dated 09/17/15 with an Explanation of Review (“EOR”) stating inter alia “that your claim has been denied as you have failed to submit the requested verification of additional relevant information under your control of possession, or written proof providing reasonable justification for the failure to comply, within 120 calendar days of the initial request.”

In opposition to the motion, plaintiff asserts defendant failed to demonstrate by admissible evidence, that the verification requests were timely and properly mailed to plaintiff. Plaintiff contends the affidavits submitted in support of defendant’s motion, have not provided a foundation for admission of its business records, a necessary part of demonstrating defendant’s office practice and procedures. Plaintiff further asserts defendant has not shown “good reasons” for demanding the verifications which would toll the time from which defendant had to pay or deny the claims.

No-fault regulations mandate that a written proof of claim for health service expenses are overdue if not paid or denied by the insurer within 30 calendar days (see Insurance Law §5106[a]; 11 NYCRR §65-3.8[a][1]). An insurer may toll the 30 day period by requesting additional verification of the claim within 15 business days from its receipt of the claim (see 11 NYCRR 65-3.5[b]). If the insurer has not received verification from the plaintiff within 30 days of the initial request, the insurer may send a follow-up verification request by phone or mail within 10 calendar days (see 11 NYCRR 65-3.6[b]). An insurer may not issue a denial of claim form (NF-10) prior to its receipt of verification of all relevant information requested by the insurer (see Insurance Law §5106[a]; 11 NYCRR §65-3.5[c]). However, an insurer may deny the claim after 120 calendar days if plaintiff does not provide all of the requested verification under its control or possession, or written proof providing reasonable justification for its failure to comply (see 11 NYCRR §65-3.5[o], for all claims submitted after 4/1/13). Also, an insurer’s “non-substantive, technical or immaterial defect or omission, as well as an insurer’s failure to comply with a prescribed time frame” shall not “negate an applicant’s obligation to comply with the request or notice” (see 11 NYCRR §65-3.5[p], for all claims submitted after 4/1/13).

Here, the Court determines that defendant has failed to make a prima facie showing of entitlement to judgment as a matter of law with proof in admissible form sufficient to establish the lack of any material issues of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]); see also Manhattan Medical v State Farm Mut. Ins. Co., 20 Misc 3d 1144[A][Civ. Ct. Richmond Cty. 2008]).

Defendant’s sole Affidavit of its No-Fault Litigation Supervisor, is insufficient to establish the timeliness and propriety of the mailing of its verification request, follow-up [*3]verification requests, and the NF-10 denial of claim. The affidavit’s statements are conclusory and based upon hearsay, and fail to sufficiently demonstrate defendant’s standard office practice and procedures used to ensure the proper mailing of its verification requests and denials (see St. Vincent’s Hosp. of Richmond v Government Employees Ins. Co., 50 AD3d 1123 [2nd Dept 2008]; Ortho-Med Surgical Supply, Inc. v MVAIC, 28 Misc 3d 139[A][App Term 2nd, 11th & 13th Jud Dists 2010]; Delta Diagnostic Radiology, P.C. v Chubb Group of Insurance, 17 Misc 3d 16, 18 [App Term 2nd & 11th Jud Dists 2007]). The Court notes the lack of an affidavit from a claims representative and/or a mailroom employee, who would be familiar with defendant’s office practice and procedures for mailing verification requests and denials, especially as it applied in the instant matter.

As a result, defendant has failed to create a presumption of timely and proper mailing (see S & M Supply Inc. v GEICO, 2003 NY Slip Op. 51192[U][App Term, 2nd & 11th Jud. Dists. 2003]; Harbor Medical & Diagnostics P.C. v Allstate Ins. Co., 11 Misc 3d 1063[A][Civ Ct, New York City 2006]).

Moreover, defendant claims “a copy of the decision-making report from the referring doctor demonstrating the medical necessity and/or need for the MRI(s)” has not been provided to date. However, defendant’s own evidence demonstrates that plaintiff provided a Physician’s Letter of Medical Necessity dated 02/16/15 to defendant with its letter dated 04/15/15 (see defendant’s Exhibit “C” and plaintiff’s Exhibit “1”). As a result, defendant has failed to demonstrate a prima facie case.

In addition, defendant has failed to demonstrate that it informed “the applicant AND its attorney of the reason why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” Defendant’s prima facie proof fails to show defendant informed the applicant and his attorney, in compliance with 11 NYCRR §65-3.6(b).

Accordingly, the motion by defendant for summary judgment dismissing plaintiff’s action against it pursuant to CPLR 3212, is denied.

It is not necessary for the Court to reach any remaining contentions.

The foregoing constitutes the decision and order of this Court.

Dated: June 14, 2017

Hon. James F. Matthews
J.D.C.

Footnotes

Footnote 1: The language for the additional verification requests is taken from defendant’s Explanation of Benefits, attached as exhibit B).

Law Office of Peter C. Merani, P.C. (Eric M. Wharburg, Esq.), for appellant. Israel, Israel & Purdy, LLP (Ryan B Berry, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 6, 2015. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking to modify, pursuant to CPLR 5019 (a) and 5240, a judgment of the same court (Lisa S. Ottley, J.) entered March 3, 2014, following a nonjury trial.

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

Following a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Lisa S. Ottley, J.) awarded plaintiff a judgment in the principal sum of $2,114.50. The court noted that the parties had stipulated that, among other things, defendant had timely denied the claims at issue. The judgment was entered on March 3, 2014. Eight months later, defendant moved, insofar as is relevant to this appeal, pursuant to CPLR 5019 (a) and 5240, to modify the judgment on the ground that the coverage limits of the insurance policy had been exhausted. Plaintiff opposed the motion. Defendant appeals from so much of an order of the Civil Court entered July 6, 2015 as denied defendant’s motion.

In support of its motion, defendant argued that there are no funds available to pay the judgment because the $50,000 policy limit in basic personal injury protection had been exhausted. Assuming, arguendo, that such contention, if established, would entitle defendant to some form of postjudgment relief (see e.g. CPLR 5015 [a]), we find that, in any event, defendant’s motion papers failed to establish an exhaustion of the coverage limits of the insurance policy at issue, as defendant failed to demonstrate that the policy had been exhausted at the time the claims at issue were deemed complete (see 11 NYCRR 65-3.15; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Furthermore, [*2]as defendant has not argued, let alone demonstrated, that there was a technical defect or ministerial mistake in the judgment “not affecting a substantial right of a party” (CPLR 5019 [a]; see Herpe v Herpe, 225 NY 323 [1919]; Chmelovsky v Country Club Homes, Inc., 111 AD3d 874 [2013]; Mount Sinai Hosp. v Country Wide Ins. Co., 81 AD3d 700 [2011]), defendant has established no basis to disturb the judgment.

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

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

[*1]

Civil Court of the City of New York, Kings County, May 25, 2017

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Mikhail Kopelevich of counsel), for plaintiff.

Richard T. Lau & Associates, Jericho (Jeremy Maline of counsel), for defendant.

In this action by a provider to recover assigned first-party no-fault benefits, a bench trial commenced and concluded on May 4, 2017. The parties made no pretrial stipulations. Pursuant to the order of the Honorable Steven Z. Mostofsky, dated February 3, 2016, plaintiff “establishe[d] [its] prima facie case” and the amount in dispute is $2,389.76. The order goes on to indicate, “[t]he sole issue for trial shall be whether the verification requests remain[ ] outstanding.” There were no witnesses appearing on behalf of either party.

The court left the record open solely to address the legal issue of which party bears the burden of establishing whether the verification requests remain outstanding. In support, defendant submitted a posttrial memorandum by Jeremy Maline, Esq., dated May 18, 2017, and in reply, plaintiff submitted a posttrial memorandum by Oleg Rybak, Esq., dated May 22, 2017. In brief, plaintiff’s counsel argued that as the issue of outstanding verification is an affirmative defense, it is the defendant’s burden to establish that verification remains outstanding. Defense counsel argued, inter alia, that the order dated February 3, 2016, should be read to indicate that defendant has met its burden of establishing its defense as defendant has proved “timely and proper mailing of the verification requests and mailing of the 120 day denial.”

It is well settled that an insurer may toll the 30-day period to pay or deny a claim by [*2]properly requesting verification within 15 business days from its receipt of the proof of claim form or bill. (11 NYCRR 65-3.5 [b]; Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723 [Civ Ct, Queens County 2004].) If the

“requested verifications 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, either by telephone call . . . or by mail. At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in{**56 Misc 3d at 683} writing the missing verification and the party from whom it was requested.” (11 NYCRR 65-3.6 [b].)

“A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; Prime Psychological Servs., P.C. v ELRAC, Inc., 25 Misc 3d 1244[A], 2009 NY Slip Op 52579[U] [Civ Ct, Richmond County 2009]; see also Insurance Law § 5106 [a]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) As for services rendered on or after April 1, 2013, if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply, the insurer may deny the claim. (11 NYCRR 65-3.5 [o].)

In the court’s view, defendant’s argument that defendant established mailing of the 120-day denial obviates defendant’s burden to demonstrate prima facie that it had not received the requested verification is unpersuasive as the sole issue for trial is whether the verification requests remain outstanding. Defendant generally bears the burden of proving its affirmative defense (Manion v Pan Am. World Airways, 55 NY2d 398 [1982]). Defendant failed to present any witnesses at trial to prove that it, in fact, did not receive any response to its verification requests.

Lastly, defense counsel has not cited any case law that would convince this court to find otherwise. To the extent that defense counsel discusses any outstanding discovery in its memorandum, such issue is not before the court and therefore was not considered.

Based on the foregoing, the court finds that the defendant has failed to meet its burden of establishing its affirmative defense of outstanding verification and as the order of the Honorable Steven Mostofsky found that plaintiff established its prima facie case, the Clerk is directed to enter judgment in favor of the plaintiff in the amount of $2,389.76 with applicable statutory attorney’s fees, interest, costs and disbursements.

[*1]

Civil Court of the City of New York, Kings County, May 26, 2017

APPEARANCES OF COUNSEL

Law Offices of Emilia Rutigliano, P.C., Brooklyn (Michael Tsugel of counsel), for plaintiff.

Rivkin Radler, LLP, Uniondale (John J. Vobis Jr. of counsel), for defendant.

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 and defendant cross-moves for summary judgment based upon plaintiff’s purported failure to appear for four examinations under oath (EUO).

Plaintiff argues, inter alia, the denials issued in this matter were untimely as defendant’s EUO scheduling letters were untimely. Specifically, defendant’s letter dated May 19, 2015 which rescheduled plaintiff’s missed EUO on May 8, 2015 is late as the regulations require that the follow-up requests be issued within 10 calendar days of the missed EUO date. Lastly, plaintiff contends that the affidavits proffered by defendant are conclusory and insufficient to establish that the EUO scheduling letters and subsequent denials were timely and properly mailed and that defendant’s affiant fails to demonstrate personal knowledge of plaintiff’s nonappearances.

In reply, defendant contends that the mailing of the EUO notice 11 days after the third missed EUO does not negate plaintiff’s obligation to appear based upon 11 NYCRR 65-3.5 (p). Further, defendant contends that its affiant sufficiently established its standard office procedures as to the issuance of the letters and denials at issue and that plaintiff’s nonappearances for the four EUOs were, likewise, adequately demonstrated.

An insurer may toll the 30-day period to pay or deny a claim by properly requesting verification within 15 business days from its receipt of the proof of claim form or bill. (11 NYCRR 65-3.5 [b]; Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723 [Civ Ct, Queens County 2004].) If the

“requested verification[ ] has not been supplied to the insurer 30 calendar days after the original [receipt], the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by [a] telephone call . . . or by mail. At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” (11 NYCRR 65-3.6 {**56 Misc 3d at 928}[b].)

“For the purposes of counting the 30 calendar days after proof of claim, wherein the claim becomes overdue pursuant to section 5106 of the Insurance Law, with the exception of section 65-3.6 of this Subpart, any deviation from the rules set out in this section shall reduce the 30 calendar days allowed.” (11 NYCRR 65-3.8 [l].)

Plaintiff also relies upon Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co. (233 AD2d 431 [2d Dept 1996]), where the Court found that the follow-up requirements for verification requests are to be “strictly construed.” In Presbyterian, the insurer, after not receiving a response to its initial request for additional verification, did not issue a follow-up request and after receiving the requested records three months later, issued a denial shortly thereafter. As such, the 30-day period within which the carrier should have either paid or denied the claim had run “ ’even before verification [was] obtained’, due to the carrier’s ‘lack of diligence in obtaining the verification’ ” (Presbyterian, 233 AD2d at 433, citing Keith v Liberty Mut. Fire Ins. Co., 118 AD2d 151, 154 [2d Dept 1986]). In Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am. (35 Misc 3d 146[A], 2012 NY Slip Op 51058[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), the court found that the insurer’s follow-up request was untimely when its follow-up request was issued more than a month after the nonappearance at the first scheduled EUO. However, the foregoing cases and their progeny were decided on a set of facts and circumstances prior to the promulgation and application of the fourth amendment of 11 NYCRR subpart 65-3. The fourth amendment of 11 NYCRR subpart 65-3, subdivision 65-3.5 (p) (fourth amendment), was enacted on January 30, 2013 and reads as follows:

“(p) With respect to a verification request and notice, an insurer’s nonsubstantive technical or immaterial defect or omission, as well as an insurer’s failure to comply with a prescribed time frame, shall not negate an applicant’s obligation to comply with the request or notice. This subdivision shall apply to medical services rendered, and to lost earnings and other reasonable and necessary expenses incurred, on or after April 1, 2013.”

There appears to be no higher court analysis of the phrase: “as well as an insurer’s failure to comply with a prescribed time frame, shall not negate an applicant’s obligation to comply{**56 Misc 3d at 929} with the request or notice.” Nonetheless, and comparably, in Pine Hollow Med., P.C. v Global Liberty Ins. Co. of N.Y. (25 Misc 3d 244 [Civ Ct, Kings County 2009]), the court reasoned that “defendant should not be deprived entirely of the opportunity to review and obtain the needed proof by dint of its one-day tardiness in submitting its follow-up request” and that “[i]t would be patently absurd and contravene the meaning of 11 NYCRR 65-3.8 (j) to impose a more draconian punishment on an insurer who is one day late in requesting follow-up verification than on an insurer who is one day late in requesting additional verification” (id. at 250). It would appear that the fourth amendment addresses such deficiency and is in accord with the foregoing opinion. Thus, it is within this framework upon which the court evaluates the matter at hand.

As an initial matter, upon a review of defendant’s proffered affidavit, the court notes that the affidavit of Cerean Edwards lacks the name of the person whom it was sworn printed beneath the signature as required by CPLR 2101 (a). However, CPLR 2101 (f) states:

“(f) Defects in form; waiver. A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given. The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections.”

To the extent that plaintiff’s counsel did not proffer any objection to the affidavit in its opposition papers and the same does not prejudice a substantial right of plaintiff, the court finds such defect to have been waived (see generally Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52351[U] [App Term, 1st Dept 2012]; Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 5 [App Term, 2d Dept, 2d & 11th Jud Dists 2009]).

As to the facts of this case, defendant contends that upon receipt of the bills at issue, defendant issued an initial demand for EUO scheduled for March 23, 2015.^[FN1] When plaintiff failed to appear, defendant issued a request dated March 26, 2015 for{**56 Misc 3d at 930} EUO on April 14, 2015. Defendant contends that plaintiff failed to appear and thus issued another request dated April 20, 2015 for EUO on May 8, 2015. When plaintiff failed to appear, defendant issued a request dated May 19, 2015 for EUO on June 16, 2015. As plaintiff failed to appear for the fourth time, defendant issued a denial dated June 24, 2015.^[FN2]

In the instant matter, the court finds that defendant submitted sufficient proof in admissible form to demonstrate that the EUO scheduling letters were properly and timely mailed. Upon review of the affidavit of Cerean Edwards, defendant’s claims associate, the court finds that defendant, through its standard office policies and procedures, has established the timely and proper mailing of its letters scheduling plaintiff’s EUO and the denials at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2d Dept 2008]; Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co., 36 Misc 3d 156[A], 2012 NY Slip Op 51767[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Hollis Med. Servs., P.C. v GEICO Ins. Co., 36 Misc 3d 156[A], 2012 NY Slip Op 51768[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Defendant also proffered the affirmation of Ryan Goldberg, Esq., who affirmed that he was present in the office to conduct the examination under oath of plaintiff on March 23, 2015, April 14, 2015, May 8, 2015 and June 16, 2015 and that plaintiff failed to appear for the same. The court finds that the affirmation sufficiently demonstrated plaintiff’s nonappearances (see Olmeur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Thus, in this instance, the court finds that the insurer’s one-day tardiness in issuing its follow-up request for the EUO scheduled for June 16, 2015 to be a technical defect excusable under 11 NYCRR 65-3.5 (p). Further, under 11 NYCRR 65-3.5 (p), plaintiff’s obligation to appear for an EUO was not negated{**56 Misc 3d at 931} based upon the one-day tardiness in light of the fact that there were three prior EUOs previously scheduled in a timely manner, where plaintiff failed to appear for all four scheduled EUOs and where plaintiff “failed to allege, much less prove, that it had responded in any way to the EUO requests at issue” (Professional Health Imaging, P.C. v. State Farm Mut. Auto. Ins. Co., 52 Misc 3d 134[A], 2016 NY Slip Op 51026[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Similarly, in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2d Dept 2009]), the Appellate Division, in reversing the Appellate Term’s determination in favor of plaintiff where defendant’s follow-up request for additional verification was sent three days prior to the expiration of a full 30 calendar days as dictated by 11 NYCRR former 65-15 (e) (2) (now 11 NYCRR 65-3.6 [b]), stated the following:

“Indeed, in light of the particular factual circumstances herein, it would be incongruous to conclude that the Insurance regulation regarding follow-up verification, or any other statute or rule, warrants a result which would, in effect, penalize an insurer who diligently attempts to obtain the information necessary to make a determination of a claim, and concomitantly, rewards a plaintiff who makes no attempt to even comply with the insurer’s requests.” (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 865 [2d Dept 2009]; see also Triangle R Inc. v Praetorian Ins. Co., 30 Misc 3d 129[A], 2010 NY Slip Op 52294[U] [App Term, 1st Dept 2010].)

To the extent that this court finds 11 NYCRR 65-3.5 (p) applicable to the unique set of facts and circumstances before it, the court notes that this provision may invariably create additional litigation rather than serving the purpose of the no-fault legislation, which is to encourage expeditious resolution of claims (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429, 430 [2004], quoting Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]). Thus, even in finding in favor of defendant in this matter, the court notes that such ruling is limited to the facts and circumstances of the instant case.

Therefore, based upon the foregoing, plaintiff’s motion for summary judgment is denied. Defendant’s cross motion for summary judgment is granted and plaintiff’s complaint is dismissed.

Footnotes

Footnote 1:The court notes that as to the two bills at issue, both demands were made one to two business days beyond the requisite 15 business days and as such, the number of days beyond 15 business days would only reduce the calendar days allowed for the issuance of a denial pursuant to 11 NYCRR 65-3.8 (l).

Footnote 2:The court notes that the affidavit of defendant’s affiant, Cerean Edwards, contained what appears to be a scrivener’s error in part II, paragraph 10, where Ms. Edwards states that plaintiff did not appear for the EUO on April 14, 2015. When read in whole, the date denoted by Ms. Edwards does not appear to be correct. However, the same is without any consequence as only an attorney affirmation adequately demonstrates plaintiff’s nonappearances for the scheduled EUOs.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Fazio, Rynsky & Associates, LLP (Svetlana Sobel, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated February 11, 2016. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

After defendant failed to answer or appear in this action to recover assigned first-party no-fault benefits, plaintiff moved for leave to enter a default judgment. By order dated March 13, 2015, the District Court (C. Stephen Hackeling, J.) granted plaintiff’s motion on default. On March 26, 2015, plaintiff served a judgment with notice of settlement on defendant, and a judgment in the principal sum of $2,898.20 was entered on May 22, 2015. On July 13, 2015, defendant moved to vacate the default judgment. Plaintiff opposed the motion. By order dated February 11, 2016, the District Court (C. Stephen Hackeling, J.) denied defendant’s motion.

A defendant seeking to vacate a default in appearing or answering based on 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, defendant proffered an affidavit by its [*2]claims examiner, who merely stated that he was supposed to forward the summons and complaint to defense counsel, but did not, and “it was a mistake.” The claims examiner explained defendant’s default in opposing plaintiff’s motion for leave to enter a default judgment by stating that plaintiff’s motion had not been scanned into defendant’s file system until the date the motion was returnable, and that it was forwarded to defense counsel the following day. Under the circumstances presented, we find that defendant failed to establish a reasonable excuse for its default (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]). Consequently, it is unnecessary to determine whether defendant demonstrated the existence of a potentially meritorious defense to the action (see Diederich v Wetzel, 112 AD3d 883 [2013]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).

Accordingly, the order is affirmed.

Marano, P.J., and Iannacci, J., concur.

Garguilo, J., taking no part.