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Civil Court of the City of New York, Kings County, December 8, 2016

APPEARANCES OF COUNSEL

Law Offices of Aloy O. Ibuzor, New York City, for defendant.

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

The novel issue presented is whether a no-fault insurer must request examinations under oath (EUOs) of all conceivable entities within 15 business days of receipt of a written notice of claim, as provided in 11 NYCRR 65-3.5 (b), or whether its 15 days in which to request an EUO starts anew after it completes one EUO and discovers the need for an additional EUO of another entity.

Plaintiff Sure Way NY, Inc. seeks to recover from defendant Travelers Insurance Co. no-fault benefits for services and medical equipment it provided to its assignor Rachel Constantino for alleged injuries she sustained in a motor vehicle accident which occurred on July 26, 2013.

Defendant received plaintiff’s two bills on September 16, 2013 (first bill), and October 2, 2013 (second bill), respectively, and made two successive verification requests for each bill seeking, inter alia, documentation describing the equipment provided, including wholesale invoices, information regarding the model number, manufacturer, and serial number, and cancelled checks used to pay the invoices. Defendant made verification requests on the two bills between September and November 2013. Petitioner does not challenge the timeliness of these requests.

On December 19, 2013, while the requested verification remained outstanding, defendant conducted an EUO of the assignor, which plaintiff also concedes was timely. The assignor’s testimony raised questions regarding the accuracy of the billing and coding associated with the claims submissions, and the legal relationship between the plaintiff’s corporation and the individuals who performed the services. As a result, on January 9, 2014, defendant sent a letter to plaintiff requesting that it appear for an EUO scheduled for January 29, 2014. After plaintiff failed to appear for the EUO, defendant sent a second{**56 Misc 3d at 291} scheduling letter to plaintiff dated January 31, 2014, requesting that plaintiff appear for an EUO on February 18, 2014. Plaintiff again failed to appear.

Based upon plaintiff’s failure to respond to the verification requests and failure to appear for the two scheduled EUOs, defendant issued a denial of plaintiff’s claims on February 20, 2014. Plaintiff does not dispute that it failed to respond to the verification requests or that it failed to appear for the EUOs. Defendant moves for summary judgment on the grounds that plaintiff breached a condition precedent to coverage by failing to attend the EUOs. Plaintiff cross-moves for summary judgment on the ground that defendant did not timely mail a request for an EUO within 15 days of its receipt of plaintiff’s claim.

In Prestige Med. P.C. v Travelers Home & Mar. Ins. Co. (56 Misc 3d 284 [Civ Ct, Kings County 2014]), this court held that before an insurance company can take advantage of denying a claim for failure to appear for an EUO beyond the 30-day period pursuant to Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011]), it must first comply with the notification time lines contained in the verification procedures. This court reached this result because an EUO, as cogently noted by the Honorable Fred J. Hirsh in Tarnoff Chiropractic, P.C. v GEICO Ins. Co. (35 Misc 3d 1213[A], 2012 NY Slip Op 50670[U], *5 [Nassau Dist Ct 2012]), “is a hybrid between a condition precedent to coverage and verification.” Thus, most of the procedural time lines governing EUOs are contained in the regulations relating to verification. (Prestige at 286; see also Country-Wide Ins. Co. v Castro, 2016 NY Slip Op 31505[U] [Sup Ct, NY County 2016].)

11 NYCRR 65-3.5 details the verification procedures to be followed after the insurer receives the completed application for no-fault benefits (NYS form N-F 2). The injured party or that party’s assignee (medical services provider) must then submit written proof of claim (claim form—usually verification of treatment by attending physician or other health care provider—NYS form N-F 3) to the insurer within 45 days after the date the medical services are rendered (Prime Psychological Servs., P.C. v Nationwide Prop. & Cas. Ins. Co., 24 Misc 3d 230, 233 [Civ Ct, Richmond County 2009]). 11 NYCRR 65-3.5 (b) authorizes an insurer, upon [*2]receiving the written proof of claim or its substantial equivalent written notice, to request{**56 Misc 3d at 292} “any additional verification required . . . to establish proof of claim . . . within 15 business days of receipt of the prescribed verification forms.” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]; see A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53 [2d Dept 2012]; Prestige at 286.) By properly requesting additional verification within 15 days from the receipt of the proof of claim form, an insurer may toll the 30-day period in which it must deny the claim. (Prestige at 286, citing Prime Psychological Servs., 24 Misc 3d at 233.) If the requested verification has not been supplied to the insurer within 30 days after the original request, the insurer shall, within 10 days, follow up upon its request for verification either by a telephone call or by mail (11 NYCRR 65-3.6 [b]).

EUOs and independent medical examinations (IMEs) are considered to be part of an insurer’s “entitlement to ‘additional verification’ ” following receipt of a provider’s statutory claim forms (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 19 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd in part 35 AD3d 720 [2d Dept 2006]; see 11 NYCRR 65-3.5 [d]; see also Prime Psychological, 24 Misc 3d at 233; All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 20 Misc 3d 554 [Civ Ct, Kings County 2008]). Therefore, the written request or demand letter for an EUO must be mailed by an insurer within 15 days of receipt of the proof of claim form (Allstate Ins. Co. v American Comprehensive Healthcare Med. Group, P.C., 2016 NY Slip Op 31175[U] [Sup Ct, NY County 2016]; see National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851, 851 [1st Dept 2015]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]; 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]; Prestige at 286; see also Unitrin Advantage Ins. Co. v Better Health Care Chiropractic, P.C., 2016 NY Slip Op 30837[U] [Sup Ct, NY County 2016] [an insurer must comply with the no-fault insurance regulations governing the claim procedure which prescribe specific time frames for requesting and scheduling EUOs and IMEs in order to satisfy its prima facie burden on a motion for summary judgment declaring that no coverage exists based on the failure of a claimant or medical provider to appear for an EUO or IME]).

In Prestige, this court ruled, in a case of first impression, that when an insurer obtains new information from an EUO of the assignor, which gives it reason to conduct an EUO of the{**56 Misc 3d at 293} assignee provider, the insurer must send the EUO request to the assignee within 15 business days of the date the EUO of the assignor was held. This court now provides the rationale for this ruling: that the decision to conduct the EUO of the assignee was based upon new information, causing this to be a new verification request, as opposed to a follow-up request upon a party who has not responded or did not respond in full to the initial request for information.

This court then addressed the ramifications that flow from a request for an additional EUO that was not made within the 15 days prescribed in the regulations. It applied precedent governing untimely requests for additional verification to untimely requests for EUOs. In Nyack Hosp. v General Motors Acceptance Corp. (27 AD3d 96 [2d Dept 2005]), the Second Department ruled that when an insurer is late in requesting additional verification beyond the 15-day time period, the insurer’s time to either pay or deny the claim is reduced. Therefore, inasmuch as the defendants mailed the request for additional verification two days beyond the 15-day period, the time within which the defendants had to either pay or deny the claim was reduced from 30 to 28 days. In so ruling, the Appellate Division relied on 11 NYCRR 65-3.8 (l), which states that “[f]or the purposes of counting the 30 calendar days . . . , with the exception of section 65-3.6 [follow-up requirements], any deviation from the rules set out in this section shall reduce the 30 calendar days allowed.” In Prestige, the insurer requested an EUO of the provider four days after the expiration of the 15-day time period from which the assignor’s EUO was conducted, resulting in the provider having to subtract those four days from the 30 days it had to pay or deny the claim after the provider failed to show up for the scheduled EUO follow-up on April 23, 2012.

Similarly here, defendant insurer sent a letter requesting an EUO of the provider on January 9, 2014, some 21 calendar days, or 15 business days, after the EUO was conducted of the assignor on December 19, 2013. It therefore did not have to subtract any days from the 30 days it had in which to issue a denial after the provider failed to appear for its EUO on February 18, 2014. Since defendant issued its denial on February 20, 2014, only two days after the EUO no-show, its denial was timely. Defendant also properly established that it properly generated and mailed the two EUO notification letters, and that the insurer failed to appear for the EUO. (IDS Prop. Cas.{**56 Misc 3d at 294} Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005 [2d Dept 2014]; Synergy First Med., P.L.L.C. v Allstate Ins. Co., 53 Misc 3d 130[A], 2016 NY Slip Op 51365[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 134[A], 2016 NY Slip Op 51026[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, the defendant’s motion for summary judgment is granted and the plaintiff’s cross motion for summary judgment is denied.

Appeal, on the ground of inadequacy, from a decision after inquest of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), dated January 13, 2015, and from a judgment of the same court entered April 21, 2015. The judgment, entered pursuant to the decision after inquest, upon awarding plaintiffs the principal sum of $4,491.47, together with interest, costs and disbursements, failed to award plaintiffs statutory attorney’s fees.

ORDERED that so much of the appeal as is from the decision is dismissed on the ground that no appeal lies from a decision (see UCCA 1702); and it is further,

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the City Court for the entry of a new judgment in favor of plaintiffs, and against defendant Allstate Property and Casualty Insurance Company only, in the principal sum of $4,491.47, following a calculation of statutory interest and an assessment of attorney’s fees in the amount of $850 due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Plaintiffs commenced this action in October 2014 to recover assigned first-party no-fault benefits for services that had been provided from February through July 2012, and statutory attorney’s fees thereon. Defendant Allstate Property and Casualty Insurance Company (Allstate) defaulted. Plaintiffs’ counsel subsequently admitted that defendant Edzer Louis-Jean had not been served with process. Plaintiffs, in effect, moved to enter a default judgment and submitted a proposed judgment to the City Court of Yonkers. Following an inquest, the City Court awarded a default judgment to plaintiffs in the principal sum of $4,491.47, together with interest and statutory costs and disbursements. In its decision, the court noted that plaintiffs had discontinued the action as against Edzer Louis-Jean individually. The court denied the branch of plaintiffs’ motion which sought statutory attorney’s fees, finding that plaintiffs had failed to [*2]demonstrate their “statutory entitlement to attorney’s fees . . . and failed to submit a detailed affidavit” of the services rendered by plaintiffs’ counsel. A judgment was entered against defendants Allstate and Edzer Louis-Jean, awarding plaintiffs the principal sum of $4,491.47 on their claims, plus statutory interest, costs, and disbursements. Plaintiffs appeal from the decision and judgment, arguing that the court erred in failing to award them statutory attorney’s fees.

So much of the appeal as is from the decision is dismissed, as no appeal lies from a decision (see UCCA 1702). The issues raised on the appeal from the decision are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

Contrary to the determination of the City Court, attorney’s fees, as sought here by plaintiffs, are not discretionary or dependent upon the actual value of the services rendered by plaintiffs’ counsel. Rather, the attorney’s fees to which plaintiffs are entitled are statutory (Insurance Law § 5106 [a]), and, pursuant to the no-fault regulations in effect at the relevant time, equaled “20 percent of the amount of first-party benefits, plus interest thereon, . . . subject to a maximum fee of $850” (11 NYCRR 65-4.6 [former (e)]; see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]).

In the present case, as the City Court awarded a default judgment in favor of plaintiffs for first-party no-fault benefits in the principal sum of $4,491.47, plaintiffs are entitled to the maximum statutory attorney’s fees of $850 (cf. 11 NYCRR 65-4.6 [d] [effective July 23, 2014, the maximum possible award of attorney’s fees in this type of action was increased to $1,360]). However, while the decision of the City Court recognized that plaintiffs had discontinued the action as against Edzer Louis-Jean, the judgment named both Allstate and Louis-Jean as debtors. “Where there is an inconsistency between a judgment and the decision upon which it is based, the decision controls” (Kim v Schiller, 112 AD3d 671, 674 [2013]; see Green v Morris, 156 AD2d 331 [1989]). Such an inconsistency may be corrected on appeal, pursuant to CPLR 5019 (a) (see Kim, 112 AD3d at 674; Green, 156 AD2d at 331; Clifford v Nationwide Custom Servs., Inc., 51 Misc 3d 132[A], 2016 NY Slip Op 50459[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

Accordingly, the judgment is reversed and the matter is remitted to the City Court for the entry of a new judgment in favor of plaintiffs, and against defendant Allstate only, in the principal sum of $4,491.47, following a calculation of statutory interest and an assessment of attorney’s fees in the amount of $850 due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Brands, J.P., Marano and Tolbert, JJ., concur.

Decided on December 7, 2016

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 7, 2014. The order denied defendant’s motion to vacate a prior order of the same court (Wavny Toussaint, J.) entered September 24, 2013 which, upon defendant’s default in appearing for oral argument, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint, and, upon vacatur of the September 24, 2013 order, for a finding that the complaint had been dismissed pursuant to a previously issued, self-executing conditional order or, in the alternative, for “permission to reargue” defendant’s cross motion and its opposition to plaintiff’s motion.

ORDERED that the order entered July 7, 2014 is modified by providing that the branch of defendant’s motion seeking to vacate the order entered September 24, 2013 is granted and the matter is remitted to the Civil Court for argument and determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint; as so modified, the order entered July 7, 2014 is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered July 7, 2014 which denied its motion to vacate a prior order, entered September 24, 2013, which had granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint upon defendant’s default in appearing for oral argument, and, upon vacatur, to find that the complaint had been dismissed pursuant to a previously issued, self-executing conditional order or, in the alternative, for “permission to reargue” its cross motion and its opposition to plaintiff’s motion.

In order to be entitled to vacatur of the entire order entered September 24, 2013, which was issued upon defendant’s failure to appear for oral argument, defendant was required to establish, pursuant to CPLR 5015 (a) (1), a reasonable excuse for its default, a potentially meritorious defense to plaintiff’s motion and the potential merits of the cross motion (see 1158 Props., LLC v 1158 McDonald, LLC, 104 AD3d 658 [2013]; A.B. Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc., 25 Misc 3d 137[A], 2009 NY Slip Op 52322[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Here, defendant’s attorney submitted an affirmation in which he explained that he had been late to the calendar call because there had been a major traffic jam due to a car accident, and that he had requested that plaintiff vacate the default upon [*2]his arrival. We find that defendant thereby established a reasonable excuse for its default (see Morales v Marma, 88 AD3d 722, 723 [2011]; Felsen v Stop & Shop Supermarket Co., LLC, 83 AD3d 656, 656-657 [2011]; Reices v Catholic Med. Ctr. of Brooklyn & Queens, 306 AD2d 394 [2003]). Furthermore, defendant demonstrated the existence of a potentially meritorious defense to plaintiff’s motion and the potential merits of the cross motion. Accordingly, the branch of defendant’s motion seeking to vacate the prior order should have been granted.

Defendant argues that the complaint had already been dismissed because plaintiff allegedly failed to comply with a conditional, self-executing order dated June 24, 2013. However, defendant has not given any indication that the June 24, 2013 order had been served on plaintiff. Therefore, defendant has not demonstrated that the order became binding (see CPLR 2220; All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co. of Am., 44 Misc 3d 48, 50 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Consequently, we cannot find, on this record, that the complaint had been dismissed.

In view of the foregoing, we remit the matter to the Civil Court for argument and determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the order entered July 7, 2014 is modified by providing that the branch of defendant’s motion seeking to vacate the order entered September 24, 2013 is granted, and the matter is remitted to the Civil Court for argument and determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint.

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

Decided on December 7, 2016

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered March 26, 2015. 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 affirmed, with $25 costs.

Plaintiff commenced this action on November 1, 2013 to recover assigned first-party no-fault benefits for medical services provided to its assignor for injuries she had allegedly sustained in a motor vehicle accident on June 12, 2011. Plaintiff moved for summary judgment, and defendant opposed the motion on the ground that plaintiff failed to establish its prima facie case. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is barred by the doctrine of res judicata. In support of its cross motion, defendant proffered an order, entered May 31, 2013, in a declaratory judgment action in the Supreme Court, New York County, that had been commenced against, among other parties, plaintiff herein and its assignor. The Supreme Court declared that the insurer is not required to pay any claims for no-fault benefits under the policy at issue with respect to an alleged accident on June 12, 2011. By order entered March 26, 2015, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion on the basis of the order in the declaratory judgment action. On appeal, plaintiff argues that it established its prima facie entitlement to summary judgment and that defendant failed to demonstrate that the causes of action in the present matter arose out of the same transaction as the causes of action in the Supreme Court action.

Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior action (see Abraham v Hermitage Ins. Co., 47 AD3d 855 [2008]).

“The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again” (Matter of Hunter, 4 NY3d 260, 269 [2005]). In the case at bar, the determination as to whether defendant was obligated to pay plaintiff’s claims “arises out of the same transaction, i.e., the subject accident” of June 12, 2011 (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), and involves the same insurer, medical [*2]provider and injured party as were involved in the Supreme Court declaratory judgment action. Thus, in light of the May 31, 2013 order of the Supreme Court, the instant action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). A different result in the instant action would destroy or impair rights or interests established by the Supreme Court order (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Consequently, the Civil Court properly granted defendant’s cross motion and denied plaintiff’s motion. In view of the foregoing, we do not reach plaintiff’s remaining contention.

Accordingly, the order is affirmed.

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

Decided on December 7, 2016

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

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Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 7, 2016

APPEARANCES OF COUNSEL

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

Bruno, Gerbino & Soriano, LLP, Melville (Mitchell L. Kaufman of counsel), for respondent.

Ordered that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

Plaintiff commenced this action on May 6, 2013 to recover assigned first-party no-fault benefits for medical services that it had provided as a result of a motor vehicle accident that had occurred on May 5, 2011. The injured party, Latoya Payne, signed an assignment of benefits to plaintiff on May 6, 2011. Defendant purported to schedule an examination under oath (EUO) of the assignor to be held on July 29, 2011, and, upon the assignor’s alleged nonappearance, a follow-up EUO on September 12, 2011. Subsequent to the assignment of benefits and the scheduling of the EUOs, defendant commenced a proceeding against Latoya Payne, Tevin Jackson and two other individuals in the Supreme Court, Kings County, to compel them to appear at EUOs, asserting in the petition that they had failed to appear for two scheduled examinations. Defendant’s petition also sought declaratory relief in the event of their nonappearances at a future EUO. Plaintiff was not named as a respondent in the proceeding. The Supreme Court granted defendant’s motion, and defendant then purported to schedule a third EUO to be held on April 27, 2012. Thereafter, defendant moved in the Supreme Court, pursuant to CPLR 3215 (a), for a default judgment against Latoya Payne, Tevin Jackson and the two other individuals, and argued that they had failed to appear for the third EUO. By order dated December 5, 2012, the Supreme Court granted defendant’s motion and declared that all first-party coverage for no-fault benefits was disclaimed as to Latoya Payne and the three other individuals, or any assignee under the subject policy with respect to the motor vehicle collision at issue.{**54 Misc 3d at 56}

On August 21, 2013, defendant moved in the Civil Court for summary judgment dismissing the complaint on the grounds that defendant is not obligated to pay assigned first-party no-fault benefits to plaintiff in light of the Supreme Court order and that the assignor had failed to appear for scheduled EUOs. Plaintiff opposed the motion, arguing, among other things, that it is not bound by the declaratory judgment rendered in the Supreme Court proceeding and that defendant failed to establish that it had timely and properly scheduled EUOs. By order entered May 1, 2014, the Civil Court granted defendant’s motion. We reverse.

Plaintiff herein was neither named nor served in the Supreme Court proceeding, nor, at the time, was plaintiff in privity with its assignor, who was a named party in that proceeding, as the assignment of benefits had been executed before defendant had commenced the Supreme Court proceeding to compel the assignor’s appearance at an EUO or for declaratory relief upon the assignor’s failure to appear. As plaintiff had no full and fair opportunity to appear and defend its interests in the Supreme Court proceeding, the present action in the Civil Court is not subject to summary judgment dismissing the complaint by virtue of the Supreme Court declaration (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co., 37 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Defendant argues that, even in the absence of a judicial declaration, the order granting defendant’s motion for summary judgment dismissing the complaint should be affirmed on the alternative ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs. However, contrary to defendant’s assertion, defendant failed to establish that it had timely and properly mailed its EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, plaintiff properly argues that the scheduling letters failed to advise the assignor, in accordance with 11 NYCRR 65-3.5 (e), that she would be reimbursed for any loss of earnings and reasonable transportation costs incurred in complying with the request for an EUO. Thus, defendant failed to demonstrate entitlement to summary judgment dismissing the complaint on either ground.{**54 Misc 3d at 57}

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

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

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Civil Court of the City of New York, Kings County, November 30, 2016

APPEARANCES OF COUNSEL

Law Offices of Emilia I. Rutigliano, P.C., Brooklyn, for plaintiff.

Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

Plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment are decided as follows:

Plaintiff brought this action against defendant to recover assigned first-party no-fault benefits. Plaintiff sufficiently established its prima facie entitlement to summary judgment through the affidavit of its owner, Irina Kazanskaya, who states that plaintiff mailed three claims for benefits to defendant’s Arizona location. The first claim is dated December 8, 2014, in{**55 Misc 3d at 189} the amount of $1,114.84 (claim 1); the second claim is dated January 6, 2015, in the amount of $1,087.39 (claim 2); and the third claim is dated February 5, 2015, in the amount of $384.23 (claim 3). Ms. Kazanskaya states that none of the claims were paid within 30 days of defendant’s receipt of the claim (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507 [2015]). Ms. Kazanskaya further established plaintiff’s procedures for generating and mailing the claims (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1123 [2d Dept 2008]).

Following submission of each of the claims, defendant had 30 days from receipt to pay or deny the claim for any defense, other than a non-precludable defense (Viviane Etienne Med. Care, 25 NY3d at 506). According to the affidavit of Travis Miller, a no-fault litigation supervisor with defendant, defendant received claim 1 on December 17, 2014, and generated a denial of that claim on June 3, 2015. Defendant received claim 3 on February 20, 2015, and generated a denial of that claim on June 8, 2015. As to claim 2, defendant never denied it, and defendant alleges that it did not receive this claim. As Mr. Miller explains, defendant mailed the denials within one day of generating them.

Mr. Miller further states in his affidavit that defendant denied plaintiff’s claims because of plaintiff’s purported failure to appear for an examination under oath (EUO). Failure to attend an EUO is a precludable defense that must be preserved through a timely denial (Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 145[A], 2015 NY Slip Op 51667[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Because defendant denied claim 1 and claim 3 more than 30 days after receipt, defendant’s EUO no-show defense is waived unless defendant’s time to pay or deny the claim was tolled such that its June 2015 denials were timely.

In this case, defendant contends that it timely requested recorded statements, verification requests, and EUOs from plaintiff and Venton Carmichael, the assignor, which effectively tolled the time by which defendant had to either pay or deny claims 1 and 3. First, Mr. Miller states in his affidavit that defendant sought to obtain a “recorded statement” from the assignor. To that end, Mr. Miller states that defendant sent letters to plaintiff and the assignor requesting the recorded statement. These letters are dated December 24, 2014, January 8, 2015, and February 4, 2015. Mr. Miller states that defendant{**55 Misc 3d at 190} obtained the recorded statement from the assignor on March 12, 2015.

[1] The question arises as to whether a request for a recorded statement effectively tolls the time by which an insurer must pay or deny a claim. First, we must be clear about what a “recorded statement” is. Defendant’s letters identified the event as a “statement” and, subsequently, as a “recorded statement,” but did not specify what a recorded statement entailed. It merely stated that defendant wanted a statement from the assignor discussing the accident and the injuries sustained. In addition, defendant did not treat the request for a recorded statement as an EUO. In fact, the defendant’s letters state that asking for a recorded statement does not preclude defendant from requiring EUOs or medical examinations. Thus, defendant implies, if not explicitly states, that a recorded statement is distinct from an EUO.

Furthermore, in an apparent matter of first impression, cases in this state have not yet specified what a “recorded statement” is or how it should be treated. Certain cases used the terms “recorded statement” and “EUO” interchangeably, but did not state whether the event in question was a formal examination in which testimony was given under oath (see Westchester Med. Ctr. v Government Empls. Ins. Co., 2009 NY Slip Op 30914[U] [Sup Ct, Nassau County 2009]; see also American Commerce Ins. Co. v Sanford, 2014 NY Slip Op 31108[U] [Sup Ct, NY County 2014]). The term “recorded statement” also has been used in the context of notice of a claim (see Matter of New York Cent. Mut. Fire Ins. Co. [Bett], 12 AD3d 1024, 1024 [4th Dept 2004] [holding that a recorded statement was not enough notice of claim to the insurance company]).

Additionally, the relevant regulation does not explicitly state that recorded statements, however they are defined, toll the time to pay or deny a claim (see 11 NYCRR 65-3.5 [b]). Cases construing 11 NYCRR 65-3.5 (b) do not suggest that the regulation should be read so broadly as to include recorded statements (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 280, 285 [1997] [suggesting in dicta that interrogatories, a “distinct request for information,” would not be a sufficient mode of verification]; but see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2d Dept 2002] [holding that the statutory period in which insurer was required to pay or deny the hospital’s claim was tolled by a request for patient records that was made by letter rather{**55 Misc 3d at 191} than by prescribed forms]). As a result, there appears to be no basis to hold that a request for a recorded statement should toll the time by which defendant must pay or deny a claim.

[2] Defendant also suggests that the “verification requests/delay letters” it mailed in response to claims 1 and 3 tolled the time to deny the claims. Mr. Miller states that the first verification requests were mailed on December 31, 2014 for claim 1 and on March 3, 2015 for claim 3. Although a verification request may be made in letter form,

“an insurer may not rely on a letter, even if denominated a verification request, that merely informs a claimant that a decision on the claim is delayed pending an investigation, and without specifying a particular form of verification and the person or entity from whom the verification is sought, to toll the 30-day claim determination period” (Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc., 8 Misc 3d 138[A], 2005 NY Slip Op 51314[U], *1 [App Term, 2d & 11th Jud Dists 2005], quoting Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th Jud Dists 2004]; New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 49 Misc 3d 148[A], 2015 NY Slip Op 51706[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Here, defendant’s request for “verification” generally seeks “the circumstances surrounding the accident; the causal relationship of the claimed injuries sustained in this accident; and whether there is coverage for this claim.” The defendant fails to state with specificity what part of the claim concerned it and the exact information it needs to conduct an investigation. Furthermore, the verification request itself is included at the end of certain explanations of benefits, which are congested with other information, in minuscule font. Defendant’s requests for additional information are mere delay letters, which did not effectively toll defendant’s time to pay or deny plaintiff’s claims.

Mr. Miller states that, following the request for the assignor’s recorded statement, defendant decided it needed an EUO of plaintiff, and retained the law firm of Bruno, Gerbino & Soriano, LLP to conduct that EUO. According to the affidavit of Shawn Kelleher, Esq., a partner with the Bruno firm, the firm sent a letter to plaintiff, dated March 24, 2015 (97 and 32 days after defendant received claims 1 and 3, respectively),{**55 Misc 3d at 192} asking plaintiff to appear for an EUO on April 17, 2015. When plaintiff did not appear for the EUO, the firm sent a letter to plaintiff, dated April 20, 2015, asking plaintiff to appear for an EUO on May 18, 2015. Mr. Kelleher states that plaintiff did not appear for that EUO, either.

Defendant was required to pay or deny claims 1 and 3 within 30 days of receipt (Compas Med., 2015 NY Slip Op 51667[U], *1). Defendant did not do so. Further, defendant did not toll its time to pay or deny claims 1 or 3, since it requested the EUO more than 30 days after receipt of those claims (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]). Therefore, defendant’s denials of claim 1 and claim 3 were untimely.

[3] As to claim 2, defendant alleges that the bill was never received. Furthermore, defendant purports that plaintiff’s mailing of the claims to defendant’s Arizona location was improper due to the parties’ past dealings. Proof of proper mailing gives rise to a rebuttable presumption that the item was received by the addressee (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]). The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (id.). In order to rebut the presumption of receipt, the defendant, in addition to denying receipt, must show that the plaintiff did not follow routine office practices or that plaintiff’s routine office practices are so careless that it would be “unreasonable to assume that the notice was mailed” (see Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]).

To begin, defendant’s contention that plaintiff should have known that its location was not in Arizona is without merit. Plaintiff claims that it sent the three claims to the same Arizona address, and defendant acknowledges that it received at least two of them. As to the mailing of claim 2, plaintiff submitted an official United States Postal Service (USPS) mailing form designed to provide a record for accountable mail. However, the document contains conflicting date stamps: one stamp for January 8, 2015, and the other for January 8, 2016. Thus, the date of actual mailing is unclear. Essentially, plaintiff did not establish that claim 2 was mailed pursuant to its own office procedures. Although Ms. Kazanskaya, who claims to have personal knowledge of company’s procedures, detailed the{**55 Misc 3d at 193} office procedures for mailing, the dueling date stamps on the USPS form conflict with the procedures described in her affidavit. Hence, office procedures do not establish proper mailing in this instance (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547-548 [2d Dept 2006]; see also Alur Med. Supply, Inc. v GEICO Ins. Co., 27 Misc 3d 142[A], 2010 NY Slip Op 51053[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Because questions of fact prevent this court from finding that plaintiff mailed claim 2, this court likewise does not presume that defendant received claim 2.

For the foregoing reasons, defendant’s cross motion for summary judgment is denied. Plaintiff’s motion for summary judgment is granted only as to claims 1 and 3. Plaintiff may enter judgment for $1,499.07 plus statutory costs, attorney’s fees, disbursements and interest. With regard to claim 2, plaintiff has not yet established that the claim was timely mailed. However, if claim 2 is shown to have been timely mailed, then it was not timely denied by defendant. Accordingly, this case shall proceed to trial to determine whether or not claim 2 was timely mailed.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for respondent.

In a proceeding pursuant to CPLR 7511 to vacate an arbitration award dated March 24, 2014, in which Global Liberty Insurance Co. of N.Y. cross-petitioned to confirm the award, Global Liberty Insurance Co. of N.Y. appeals from an order of the Supreme Court, Suffolk County (Asher, J.), dated March 25, 2015, which granted the petition and denied the cross petition.

Ordered that the order is affirmed, with costs.

The petitioner, Liberty Mutual Fire Insurance Company, as subrogee of Mohan Singh (hereinafter Liberty Mutual), paid no-fault benefits on behalf of its insured for the medical treatment of a third party who was injured in a motor vehicle collision with a livery vehicle insured by Global Liberty Insurance Co. of N.Y. (hereinafter Global). Liberty Mutual thereafter sought to recover payments of $11,398.38 from Global in compulsory arbitration pursuant to Insurance Law § 5105. Despite finding that the livery vehicle insured by Global was 100% at fault in the happening of the accident, and notwithstanding Liberty Mutual’s submission of a payment ledger detailing the payments it made for various medical services, the arbitrator determined that Liberty Mutual did not properly manage the medical claims and awarded it only $5,699.19, or 50% of the amount sought. Liberty Mutual thereafter commenced this proceeding pursuant to CPLR 7511 to vacate the arbitration award, contending that the arbitrator erred in awarding it damages of only $5,699.19, rather than the full amount of $11,398.38, and Global cross-petitioned to confirm the award. The Supreme Court granted Liberty Mutual’s petition and denied Global’s cross petition, determining that there was no evidence to support the arbitrator’s findings. We affirm.

While judicial review of arbitration awards is limited to the grounds set forth in CPLR 7511, an award that is the product of compulsory arbitration, such as the one at issue in this case, “must satisfy an additional layer of judicial scrutiny—it ‘must have evidentiary support and cannot be arbitrary and capricious’ ” (City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 919 [2011], quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 46 [2015]; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 70 AD3d 1043 [2010]; Matter of Mercury Cas. [*2]Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2009]).

Here, in response to Liberty Mutual’s submission of evidence establishing the medical payments for which it sought reimbursement, Global failed to produce any evidence that any of the medical claims were improperly paid (see generally State Farm Mut. Auto. Ins. Co. v Stack, 55 AD3d 594, 595 [2008]). Accordingly, the arbitrator’s determination that Liberty Mutual was not entitled to full reimbursement was not supported by evidence in the record and was arbitrary and capricious (see generally Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008]). Under these circumstances, the Supreme Court properly granted Liberty Mutual’s petition and denied Global’s cross petition. Chambers, J.P., Dickerson, Miller and Brathwaite Nelson, JJ., concur.