[*1]

Argued January 13, 2016; reargued May 4, 2016; decided June 14, 2016

Aetna Health Plans v Hanover Ins. Co., 116 AD3d 538, affirmed.

The issue presented in this appeal is whether a health insurer who pays for medical treatment that should have been covered by the insured’s no-fault automobile insurance carrier may maintain a reimbursement claim against the no-fault insurer within the framework of the Comprehensive Motor Vehicle Insurance Reparations Act (Insurance Law § 5101 et seq.) (the No-Fault Law). Because New York’s “no-fault” statutory law and regulatory scheme does not contemplate such reimbursement to a health insurer, as opposed to a health care provider, we hold that it may not.

I.

On April 25, 2008, Luz Herrera sustained personal injuries while operating a vehicle insured by defendant Hanover Insurance Company. At the time of the accident, Herrera also had private health insurance through plaintiff Aetna Health Plans.

Herrera received medical treatment for her injuries from various medical providers. Although Aetna alleges that the bills should have been paid by Hanover, the no-fault insurer,{**27 NY3d at 580} the medical providers submitted some of their bills for treatment directly to Aetna. Aetna paid the bills, initially totaling $19,649.10.

Aetna, through its representative, wrote to Hanover in March 2009 seeking reimbursement for the medical bills it had paid, but Hanover did not respond. At the same time, Aetna filed a lien for reimbursement should Herrera recover in a personal injury action that she had brought against the alleged tortfeasor who caused her injuries in the accident.

On January 6, 2010, Herrera, through her attorneys, submitted copies of the medical bills paid by Aetna to Hanover, demanding payment. Hanover did not respond to Herrera’s demands either.

Herrera then demanded arbitration pursuant to her policy with Hanover, claiming that she was entitled to the no-fault benefits because Aetna maintained a lien against her for reimbursement and Hanover, who was responsible for the bills, had neither paid nor denied coverage for the bills submitted. The arbitrator denied Herrera’s claim in its entirety, reasoning that the documents submitted by Herrera—copies of the medical bills paid by Aetna—were not “bills.”^[FN1] Further, the arbitrator asserted that even if they were considered “bills,” Herrera lacked standing to make the claim because Aetna had paid them. The arbitrator determined that, while Aetna had a lien against Herrera, until that lien was satisfied, Herrera lacked standing to pursue her claim. A Master Arbitrator affirmed that decision.

In addition to the payments that were the subject of the arbitration, Herrera’s medical providers continued to submit bills to Aetna for her ongoing treatment, and Aetna continued to pay an additional $23,525.73 in medical bills.

Thereafter, Herrera, through her attorneys, resubmitted all of the medical bills to Hanover and informed it that she had assigned her rights against Hanover to Aetna.

II.

Aetna commenced this action against Hanover, seeking reimbursement for the amounts paid on Herrera’s behalf, plus interest and attorneys’ fees. Hanover answered, generally denying Aetna’s allegations and asserting affirmative defenses.{**27 NY3d at 581}

Aetna moved for summary judgment, arguing that Hanover breached its contract of insurance with its assignor, Herrera. Aetna claimed that as the assignee of Herrera’s claim for no-fault benefits, it stood in the shoes of Herrera and was entitled to reimbursement for the monies it paid for the medical treatment Herrera received resulting from the motor vehicle accident.

Hanover opposed the motion and cross-moved to dismiss the complaint based upon lack of standing, arguing that Aetna was not entitled to direct reimbursement under 11 NYCRR 65-3.11 (a) because it was an insurance company and not a provider of health care services, the only type of assignee permitted by regulation, and Aetna was not in privity of contract with Hanover. Hanover cross-moved for summary judgment dismissing the complaint as neither Herrera nor Aetna timely submitted the medical bills to Hanover.

Aetna responded that Hanover was judicially estopped from arguing that Aetna lacked standing because in the prior arbitration Hanover asserted—and the arbitrators agreed—that Aetna was the proper party with standing, not Herrera.

Supreme Court granted Hanover’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), and denied Aetna’s motion for summary judgment on liability as moot (2013 NY Slip Op 33221[U] [Sup Ct, Bronx County 2013]). The court concluded that because Aetna was not a “health care provider” under the no-fault statute, it was not entitled to direct payment of no-fault benefits (id. at *5). It further held that Aetna was not in privity of contract with Hanover and had not shown that it was an intended third-party beneficiary of Hanover’s contract with Herrera. Finally, the court determined that Aetna could not sustain a cause of action under subrogation principles because “[t]here [was] . . . no authority permitting a health insurer to bring a subrogation action against a no-fault insurer for sums the health insurer was contractually obligated to pay to its insured” (id. at *6).

The Appellate Division unanimously affirmed (116 AD3d 538 [1st Dept 2014]). The Court determined that Aetna “is not a ‘health care provider’ under [11 NYCRR 65-3.11 (a)], but rather a heath care insurer” that Hanover had no legal obligation to directly reimburse (id. at 539). It concluded that the provisions of Insurance Law §§ 5105 and 5106 (d) provide for “a limited window of arbitration between no-fault insurers” that “does not {**27 NY3d at 582}pertain to a health insurer such as Aetna” and consequently Aetna could not maintain a subrogation claim against Hanover (id.). The Court stated that, because there was no “privity of contract” between Aetna and Hanover, nor was Aetna a “third-party beneficiary of the contract” between Hanover and Herrera, Aetna could not assert a breach of contract claim against Hanover (id.).

III.

Article 51 of the Insurance Law, enacted as the Comprehensive Motor Vehicle Insurance Reparations Act (see L 1973, ch 13), governs payments to reimburse a person for basic economic loss for personal injury arising out of the use or operation of a motor vehicle, irrespective of fault. Article 51 is commonly known as the No-Fault Law. The purpose of the No-Fault Law was to promote “prompt resolution of injury claims, limiting cost to consumers and alleviating unnecessary burdens on the courts” (Pommells v Perez, 4 NY3d 566, 570-571 [2005] [citation omitted]). Under no-fault, an insured who has been in a motor vehicle accident can claim first party benefits from her motor vehicle insurer of up to $50,000 to cover “basic economic loss” as defined in Insurance Law § 5102 (a). In the event of “serious injury” as defined in the statute, a person may initiate suit against the car owner or driver for damages caused by the accident (Insurance Law § 5104 [a]).

The applicable regulation, 11 NYCRR 65-3.11 (a), provides, in relevant part, that “[a]n insurer shall pay benefits for any . . . loss[,] other than death benefits, directly to the applicant or, . . . upon assignment by the applicant . . . , shall pay benefits directly to providers of health care services” (emphasis added). Aetna concedes that as a health insurer it is not a “provider of health care services” as contemplated by the language of this regulation (see Health Ins. Plan of Greater N.Y. v Allstate Ins. Co., 2007 NY Slip Op 33925[U] [Sup Ct, NY County 2007]; see also Ops Gen Counsel NY Ins Dept No. 08-01-08 [Jan. 2008]). Aetna argues, however, that it stands in Herrera’s shoes because Herrera assigned her no-fault rights to it.

This argument fails for two reasons. First, since Herrera’s health care providers were able to bill and recoup payment from Aetna, an assignment by Herrera of her no-fault rights had already been made, leaving her with no rights to assign to Aetna. Second, by its very language, the no-fault regulation{**27 NY3d at 583} permits only the insured—or providers of health care services by an assignment from the insured—to receive direct no-fault benefits. Because Aetna does not fall under the term “health care provider,” Herrera could not assign her rights to it.^[FN2]

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Stein, J. (concurring).

I am in complete agreement with the majority’s analysis regarding plaintiff Aetna Health Plans’ inability to recover under the No-Fault Law and related regulations. However, I write separately to address the dissent’s analysis of Aetna’s equitable subrogation claim. In my view, Supreme Court properly dismissed the complaint because Aetna’s claims are inconsistent with, and would improperly supplant, the tightly-regulated and comprehensive no-fault statutory scheme crafted by the legislature, and because the principles of equitable subrogation do not apply under the circumstances presented here. I, therefore, concur with the majority’s conclusion that the Appellate Division’s order should be affirmed.

As the majority aptly explains, the no-fault insurance statutes and regulations provide a comprehensive framework for the resolution and payment of no-fault benefits in connection with covered injuries. Those statutes and regulations provide no basis for a health maintenance organization (HMO) to recover from a no-fault insurer. Thus, under circumstances in which an HMO attempts to recover from a no-fault insurer for payments made on behalf of their mutual insured, the doctrine of equitable subrogation does not apply.

The State Insurance Department’s Office of General Counsel has issued an informal opinion on the topic of subrogation by an HMO (such as Aetna) (see Ops Gen Counsel NY Ins Dept No. 08-01-08 [Jan. 2008] [HMO as No-Fault Subrogee], available at http://www.dfs.ny.gov/insurance/ogco2008/rg080108.htm, cached at http://www.nycourts.gov/reporter/webdocs/HMOasNo-FaultSubrogee.pdf).^[FN1] In its opinion, the Insurance Department stated that an “HMO is not entitled to subrogate its recovery pursuant to New York Insurance Law{**27 NY3d at 584} § 5105(a) . . . , because it does not fit the definition of ‘insurer’ under the no-fault insurance law scheme.” The Insurance Department reasoned that an HMO is not required to pay for the insured’s treatment in the first place because it is permitted to exclude coverage for treatment that is recovered or recoverable under no-fault (see 11 NYCRR 52.16 [c] [8]). Further, the key no-fault regulation permits direct payment from no-fault insurers to medical providers (see 11 NYCRR 65-3.11) and, in most situations, the insured assigns the benefits to such providers, which then undertake the responsibility of seeking payment from the no-fault insurer.

Essentially, based on its interpretation of the no-fault statutes and regulations, the Insurance Department has advised insurers that an HMO should refuse to pay for any treatment covered under no-fault because, under the no-fault scheme, the HMO will not be able to subrogate its recovery if it makes such payments. While not binding on courts, such informal opinions and interpretations of insurance law are entitled to deference unless irrational or unreasonable, due to the Superintendent’s “ ’special competence and expertise with respect to the insurance industry’ ” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53, 64 [2d Dept 2012], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; see also Financial Services Law § 202 [a]).

As the dissent notes, the doctrine of equitable subrogation can be

“broad enough to include every instance in which one party pays a debt for which another is primarily answerable and which in equity and good conscience should have been discharged by the latter, so long as the payment was made either under compulsion or for the protection of some interest of the party making the payment, and in discharge of an existing liability” (Gerseta Corp. v Equitable Trust Co. of N.Y., 241 NY 418, 425-426 [1926]).

However, unlike the traditional equitable subrogation situation—involving an active wrongdoer (tortfeasor) and an innocent insurer—equity does not dictate the outcome of who should pay for medical treatment under the no-fault scheme when the dispute is between two types of insurers, neither of which caused the physical injuries. Moreover, Aetna’s payments{**27 NY3d at 585} were not made to discharge an existing liability because, according to the Insurance Department opinion and pursuant to 11 NYCRR 52.16 (c) (8), an HMO has no obligation to reimburse for no-fault recoverable treatment.

“Subrogation allocates responsibility for the loss to the person who in equity and good conscience ought to pay it, in the interest of avoiding absolution of a wrongdoer from liability simply because the insured had the foresight to procure insurance coverage” (North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294 [1993]; see Millennium Holdings LLC v Glidden Co., 27 NY3d 406, 414 [May 5, 2016]). Thus, in the typical example of subrogation, an insurer attempts to recoup covered medical expenses from the tortfeasor who caused the insured’s injuries and need for treatment in the first place (see e.g. ELRAC, Inc. v Ward, 96 NY2d 58, 75-76 [2001]; Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 521-522 [1996]).^[FN2] In such circumstances, as a matter of fairness, an insurer who was compelled by contract to pay for medical treatment required by its insured due to the negligent or intentional actions of another ought to be able to obtain reimbursement from the party who was at fault and caused those damages (see Allstate Ins. Co. v Stein, 1 NY3d 416, 422 [2004], citing Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37, 47 [1925]).

Here, however, defendant Hanover Insurance Company is Luz Herrera’s no-fault insurer, not the wrongdoer (i.e., the third-party tortfeasor who caused the underlying loss or injury to Herrera). It does not appear that either Aetna or the medical providers are completely without fault concerning the billing issue with which we are now confronted. The medical providers submitted their bills to the incorrect insurer, creating the false impression that Aetna’s policy covered Herrera’s treatment, when her injuries were actually related to her no-fault accident. For its part, Aetna continued to pay those bills, without notifying the providers of this mistake, even after Aetna learned that they should have been submitted to Hanover. On the other hand, no argument is made that Hanover is responsible for the incorrect billing. Aetna has apparently{**27 NY3d at 586} not sought to recoup directly from the tortfeasor Aetna’s payments on Herrera’s behalf, instead relying on a lien it placed against any recovery by Herrera in her action against that party.^[FN3] While purporting to sue as the subrogee of Herrera, as its insured, Aetna is actually suing to recover for its own losses due to incorrect billing, rather than Herrera’s losses (see Federal Ins. Co. v Spectrum Ins. Brokerage Servs., 304 AD2d 316, 317 [1st Dept 2003]). That is not true subrogation.

As the dissent suggests, it would certainly be easier for Aetna to proceed against Hanover for all of the bills paid on Herrera’s behalf, rather than pursuing multiple medical providers for repayment of each of their bills. However, we have long held that “equity will not entertain jurisdiction where there is an adequate remedy at law” (Boyle v Kelley, 42 NY2d 88, 91 [1977]; see Lichtyger v Franchard Corp., 18 NY2d 528, 537 [1966]; Lewis v City of Lockport, 276 NY 336, 342 [1938]). Thus, while equity is, indeed, a flexible concept, it may not be invoked when an adequate remedy exists at law, merely because a party would prefer an easier route to recovery.

In that regard, we emphasize that Aetna may seek recovery from the medical providers that improperly billed Aetna for treatment that should have been covered by Hanover. Contracts between Aetna and the treatment providers—which are not in the record before us—may even spell out the right to, and procedures for, such clawbacks. The medical providers could then submit their bills to Hanover for payment under Herrera’s no-fault policy.^[FN4] The availability to Aetna of this legal remedy renders inappropriate the expansion of equitable subrogation into the complex and comprehensive no-fault scheme. Finally, providing an equitable remedy could create additional burdens on the courts—which is contrary to one of the purposes of the No-Fault Law (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007])—and would complicate and add confusion to that statutory{**27 NY3d at 587} and regulatory scheme. Accordingly, the lower courts properly concluded that Aetna’s complaint should be dismissed.

Fahey, J. (dissenting).

I respectfully dissent because, in my view, Supreme Court erred in granting defendant’s cross motion to dismiss the complaint.

I generally agree with the majority’s recitation of the relevant facts. Both parties accepted premiums in exchange for the assumption of an obligation to insure Luz Herrera. Plaintiff covered Herrera pursuant to a policy of health insurance, while defendant provided coverage for her under a policy of automobile insurance, which included personal injury protection (PIP) (see 11 NYCRR 65-1.1 [d] [mandatory PIP endorsement]). In April 2008, Herrera was injured in an automobile accident; afterwards, defendant paid some, but not all, of the costs of medical treatment Herrera received as a result of the personal injuries she sustained in that incident. The balance of those costs was paid by plaintiff in its capacity as Herrera’s health insurer. Plaintiff subsequently asserted a lien against any recovery Herrera may have in the personal injury action she commenced in relation to the accident. At some point, Herrera assigned her rights against defendant to plaintiff.

According to plaintiff, its involvement in payment for Herrera’s medical care following the accident is attributable to the fact that Herrera’s medical providers mistakenly submitted bills for treatment of her accident-related injuries to plaintiff when, in fact, such bills should have been tendered to defendant. No matter, those facts speak to the core problem underlying this appeal, that is, that plaintiff, as Herrera’s health insurer, paid medical expenses arising from the accident that defendant, Herrera’s no-fault insurer, should have paid and has since refused to pay.

Based on those facts plaintiff commenced this action seeking damages in the amount of medical expenses that it had paid on Herrera’s behalf in defendant’s stead. In my view, the claims asserted in the complaint speak to what effectively is a single cause of action sounding in equitable subrogation. I also believe that, on this record, plaintiff should be permitted to pursue that subrogation cause of action.

Subrogation, of course, “is the principle by which an insurer, having paid losses of its insured, is placed in the position of its insured so that it may recover from the third party legally responsible for the loss” (Winkelmann v Excelsior Ins. Co., 85{**27 NY3d at 588} NY2d 577, 581 [1995]; see generally 16 Steven Plitt et al., Couch on Insurance 3d § 225:5).^[FN1] Said another way, “[s]ubrogation allocates responsibility for the loss to the person who in equity and good conscience ought to pay it, in the interest of avoiding absolution of a wrongdoer from liability simply because the insured had the foresight to procure insurance coverage” (North Star Reins. Corp., 82 NY2d at 294; see Millennium Holdings LLC v Glidden Co., 27 NY3d 406, 414 [May 5, 2016] [same]). “The right arises by operation of law when the insurer makes payment to the insured” (North Star Reins. Corp., 82 NY2d at 294), and the doctrine

“is broad enough to include every instance in which one party pays a debt for which another is primarily answerable and which in equity and good conscience should have been discharged by the latter, so long as the payment was made either under compulsion or for the protection of some interest of the party making the payment, and in discharge of an existing liability” (Gerseta Corp. v Equitable Trust Co. of N.Y., 241 NY 418, 425-426 [1926]).

In concluding that the Appellate Division order should be affirmed, the majority suggests that to permit plaintiff to proceed against defendant here would be inconsistent with the no-fault scheme (see majority op at 579, 582-583).^[FN2] As the theory goes, because plaintiff is not a “provider[ ] of health care services” within the meaning of 11 NYCRR 65-3.11 (a), it is ineligible to receive direct payment from defendant.

Nothing in the no-fault scheme precludes plaintiff from pursuing this action. Trouble with respect to a remedy does not{**27 NY3d at 589} equate to trouble with respect to the merits of a cause of action. Recovery with respect to plaintiff’s cause of action—which, as noted, in my view sounds in equitable subrogation—would be indirect. That is, plaintiff, likely barred from receiving direct payments from defendant by the no-fault regulations (see 11 NYCRR 65-3.11 [a]), theoretically would seek reimbursement through the medical providers to be reimbursed by defendant pursuant to the responsibilities defendant may have under the policy of automobile insurance through which it covers Herrera (see 11 NYCRR 65-1.1 [d] [including the requirement that the insurer “will pay first-party benefits to reimburse for basic economic loss sustained by an eligible injured person on account of (qualifying) personal injuries,” subject to the insured’s satisfaction of policy conditions]). Those providers, in turn, would reimburse plaintiff for double payments, that is, full payments made by both plaintiff and defendant for a single service rendered, either voluntarily or pursuant to contractual clawback efforts initiated by plaintiff. A meandering path to recovery does not mean that an equitable subrogation “road” to plaintiff is closed here.^[FN3]

Finally, in my view, permitting plaintiff to proceed with its equitable subrogation cause of action is consistent with the purpose of the no-fault scheme. Complex as the scheme may be (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997], rearg denied 90 NY2d 937 [1997]), its mission includes consumer protection through a structure designed to limit costs and promptly resolve injury claims (see Pommells v Perez, 4 NY3d 566, 570-571 [2005]). Here, although Herrera has been harmed twice—through both the accident and the lien placed by plaintiff on any recovery she may have with respect to that incident—defendant has not been required to answer for its claims handling and coverage determination.^[FN4] No-fault was designed to avoid such a result.{**27 NY3d at 590}

It is beyond dispute that the no-fault scheme was not intended to impose upon an injured person such as Herrera either the significant additional burden of the lien in question or the toll associated with discharging that claim and seeking to hold defendant to its coverage obligations. That the scheme is comprised of a thicket of rules and regulations does not mean that the inequitable result here should stand.

For the foregoing reasons I would hold that the lower courts erred in concluding that the complaint should be summarily dismissed, and I would modify the Appellate Division order by denying defendant’s cross motion.

Chief Judge DiFiore and Judges Abdus-Salaam, Stein and Garcia concur; Judge Stein in a concurring opinion; Judge Fahey dissents in an opinion in which Judge Rivera concurs.

Order affirmed, with costs.

Footnotes

Footnote 1:The documents stated, “This is not a bill.”

Footnote 2:Contrary to the view of the dissent, there is nothing inequitable in adhering to the “no-fault” statutory and regulatory law in resolving this claim for reimbursement.

Footnote 1:The former Insurance Department now falls within the Department of Financial Services (see Financial Services Law § 102), which has posted the former agency’s informal opinions on its website.

Footnote 2:Subrogation may also be available under a contract, which is distinguishable from equitable subrogation. In addition, there may be equitable subrogation situations outside the no-fault context in which an insurer seeks recovery from another party who is not a wrongdoer, but we have no occasion to address such situations here.

Footnote 3:The validity of that lien, which has been asserted in a separate action, is not before us.

Footnote 4:Under this scenario, while Hanover might deny payment due to untimely submission (see 11 NYCRR 65-1.1), the medical providers would be the ones suffering the loss of payment, which would not be inequitable because they submitted the bills to the incorrect insurer in the first instance. This only highlights how permitting Aetna to recover via equitable subrogation would be inconsistent with the no-fault scheme, especially the insistence on timely resolution of claims (see e.g. Insurance Law § 5106 [a]; 11 NYCRR 65-1.1, 65-2.4 [b], [c]; 65-3.8 [c]).

Footnote 1:Although subrogation has its roots in equity (see ELRAC, Inc. v Ward, 96 NY2d 58, 75 [2001]; North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294 [1993]), we have recognized a right of subrogation based on a contractual relationship, that is, “where the subrogee’s rights are defined in an express agreement between the insurer-subrogee and the insured-subrogor” (Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366, 372 [1990]). That doctrine of “contractual subrogation” is distinguishable from the principle of “equitable subrogation” at issue here.

Footnote 2:The majority also concludes that plaintiff cannot proceed against defendant here because Herrera assigned her rights against defendant to her medical providers and therefore no longer has “shoes” in which to permit plaintiff to “stand” on her behalf (see majority op at 582-583). Even assuming, arguendo, that Herrera had assigned the right to direct payment from defendant to her health care providers (see 11 NYCRR 65-3.11 [a]), she retained both her right to seek enforcement of defendant’s obligations under the mandatory PIP endorsement (11 NYCRR 65-1.1 [d]) and the ability to assign that right.

Footnote 3:The majority essentially concludes that the no-fault scheme preempts or forecloses a common-law remedy here because of the difficulty inherent in recovering with respect to that cause. However, there is always room for equity.

Footnote 4:It may be that defendant has a valid defense to coverage based on Herrera’s delay in notifying defendant of her claims (see 11 NYCRR 65-1.1 [d] [providing, in relevant part, that in the case of a claim for health services rendered, an eligible injured person shall submit written proof of a claim within 45 days after the date services were rendered unless there is a clear and reasonable justification for the failure to comply with that time limitation]). However, the questions whether Herrera gave timely notice of her claims and, if not, whether defendant is precluded from denying some or all of those claims (see Presbyterian Hosp. in City of N.Y., 90 NY2d at 278; see also Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 120 AD3d 561, 562 [2d Dept 2014]) are not now for this Court given the posture of this case.

[*1]

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

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for respondent.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about November 13, 2014, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Active Care Medical Supply Corporation (Active Care) to reargue and, upon reargument, denied plaintiff’s motion for summary judgment, reversed on the law, without costs, plaintiff’s motion granted, and it is declared that plaintiff is not obligated to pay Active Care for the claim at issue.

On November 14, 2011, plaintiff’s insured, defendant Balgobin Manoo, was involved in an automobile accident. On or about January 10, 2012, he received treatment from Active Care, at which time he executed an assignment of benefits. Prior thereto, plaintiff had referred Manoo’s claim for no-fault benefits for investigation due to inconsistencies in his statements as to treatment.

The policy’s New York State Mandatory Personal Injury Protection Endorsement required, as a condition precedent, full compliance with the conditions of coverage, which included the insured’s appearance at an examination under oath (EUO), “as may reasonably be required” (see 11 NYCRR 65-1.1). By letter dated February 3, 2012, plaintiff requested an EUO to confirm the facts and circumstances of Manoo’s loss and the treatment he received. The letter, which scheduled the EUO for February 16, was received by Manoo on February 9. Meanwhile, Active Care drafted an NF-3 claim form dated February 7, 2012.

Manoo did not appear on February 16, 2012 for his EUO. By letter dated February 23, 2012, the EUO was rescheduled for March 9, 2012. When Manoo again failed to appear, by letter dated March 16, 2012, the EUO was rescheduled for a third and final date of March 30, 2012. Manoo failed to appear, and plaintiff commenced this action seeking a declaratory judgment that defendants are ineligible to receive no-fault reimbursements due to Manoo’s failure to comply with a condition precedent to coverage under his insurance policy and the no-fault regulations by failing to appear for an EUO.

Supreme Court initially granted plaintiff summary judgment declaring that it was not obligated to provide no-fault coverage to Active Care. However, upon granting reargument, the court denied summary judgment and restored the action. In so ruling, the court held that plaintiff did not establish that its initial February 3, 2012 request for an EUO was made within the time frame set forth in the no-fault implementing regulations, because it submitted no proof as to when it received Active Care’s NF-3 form (see 11 NYCRR 65-3.5 [b] [“Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the [*2]prescribed verification forms”]). We now reverse.

Plaintiff made a prima facie showing of its entitlement to summary judgment dismissing Active Care’s claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for EUOs to Manoo and that Manoo failed to appear at his initial and follow-up EUOs. The record establishes that plaintiff requested Manoo’s initial EUO by letter dated February 3, 2012. Although Active Care’s NF-3 form is dated February 7, 2012, plaintiff was entitled to request the EUO prior to its receipt thereof (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 20-21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]; Life Tree Acupuncture P.C. v Republic W. Ins. Co., 50 Misc 3d 132[A], 2016 NY Slip Op 50023[U] [App Term, 1st Dept 2016]; Alfa Med. Supplies, Inc. v Praetorian Ins. Co., 50 Misc 3d 126[A], 2015 NY Slip Op 51847[U] [App Term, 1st Dept 2015]). The notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply to EUOs that are scheduled prior to the insurance company’s receipt of a claim form (see Fogel, 7 Misc 3d at 21; New York Cent. Mut. Fire Ins. Co. v Bronx Chiropractic Servs, P.C., 2014 NY Slip Op 33210[U] [Sup Ct, NY County 2014]).

Once Active Care presented its claim dated February 7, 2012, plaintiff was required to comply with the follow-up provisions of 11 NYCRR 65-3.6 (b) (see Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [App Term, 1st Dept 2005]). Plaintiff established that it fulfilled its obligation under section 65-3.6 (b) by rescheduling Manoo’s EUOs within 10 days of his failure to appear at each scheduled exam (see Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). The second EUO scheduling letter was sent on February 23, 2012, which was just seven days after the February 16, 2012 nonappearance. The third EUO scheduling letter was sent on March 16, 2012, which was just seven days after the March 9, 2012 nonappearance.

In opposition, Active Care did not raise a triable issue with respect to Manoo’s nonappearance or the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U] [App Term, 1st Dept 2015]).

The failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]). “There is no requirement to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424-425 [1st Dept 2013], citing New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 593 [2011]).

The dissent believes that Fogel should not be followed because it is inconsistent with settled principles in this Department. Yet the dissent cites no precedent holding that an insurer cannot request an EUO prior to its receipt of a claim form pursuant to 11 NYCRR 65-1.1 and the terms of the policy’s Mandatory Personal Injury Protection Endorsement. As the Second Department explained in Fogel (35 AD3d 720), “The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1). This conclusion accords with the language of the mandatory endorsement and the interpretation given it by the State Insurance Department, which promulgated the regulations (see 2005 Ops Ins Dept No. 05-02-21 [www.ins.state.ny.us/ogco2005/rg050221.htm; http://www.courts.state.ny.us/reporter/webdocs/no-fault_benefits_cutoff_ date.htm]; 2003 Ops Ins Dept No. 03-02-12 [www.ins.state.ny.us/ogco2003/rg030212.htm; http://www.courts.state.ny.us/reporter/webdocs/failure_to_attend_no_fault_ ime.htm]; 2002 Ops Ins Dept No. 02-04-19 [www.ins.state.ny.us/ogco2002/rg 204121.htm; http://www.courts.state.ny.us/reporter/webdocs/no_faultinsurer_ medicalexaminations.htm])” (id. at 722).

In sum, plaintiff established its prima facie entitlement to summary judgment through evidence that (i) it mailed Manoo the original EUO request in accordance with the policy’s New [*3]York State Mandatory Personal Injury Protection Endorsement, before Active Care prepared its verification; (ii) after Manoo failed to appear at that EUO, and Active Care submitted its verification, plaintiff twice rescheduled the EUO in conformity with the requirements of 11 NYCRR 65-3.6 (b); and (iii) Manoo never appeared for an EUO, a condition precedent to coverage. In opposition, Active Care did not disprove any of these facts. On this record, plaintiff’s failure to tender proof as to the exact date it received Active Care’s verification is immaterial, and the dissent’s position would unduly reward an insured who repeatedly failed to honor his obligation to appear for an EUO under the policy and the Insurance Department regulations. Concur—Tom, J.P., Friedman, Sweeny and Andrias, JJ.

Acosta, J., dissents in a memorandum as follows: I dissent because I believe that plaintiff failed to establish prima facie that it was entitled to a judgment declaring that it had no duty to cover defendant Active Care Medical Supply Corporation’s bills for no-fault medical services rendered to Active Care’s assignor, defendant Manoo, due to Manoo’s failure to appear at examinations under oath (EUOs) (see National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

Although Manoo’s failure to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), plaintiff failed to tender proof that it received Active Care’s verification. Thus, plaintiff did not demonstrate that it requested Manoo’s EUO subsequent to such receipt within the time prescribed in the Insurance Department Regulations (11 NYCRR 65-3.5 [b] [“(s)ubsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms” (emphasis added)]). Plaintiff’s argument that it submitted evidence showing that its request for Manoo’s EUO was made prior to the date of Active Care’s claim is unavailing in the absence of proof of when the claim was received (see id.). Indeed, plaintiff’s motion never disclosed when it received any claim forms whatsoever from either Manoo (Form NF-2) or any medical provider who rendered services to him (Form NF-3). Plaintiff would have this Court ignore 11 NYCRR 65-3.5 (b), notwithstanding the long-established rule that “[t]he No-Fault Law is in derogation of the common law and so must be strictly construed” (Presbyterian Hosp. in City of N.Y. v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]; see also Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408, 414 [1975]; Pekelnaya v Allyn, 25 AD3d 111, 118 [1st Dept 2005]). To the extent Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]) holds otherwise, I would not follow it, because it is inconsistent with settled principles in this Department. Plaintiff having failed to establish its prima facie entitlement to summary judgment, it is irrelevant that, as the majority notes, plaintiff rescheduled Manoo’s EUO within 10 days of Manoo’s failing to appear.

[*1]

District Court of Suffolk County, Third District, June 8, 2016

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Michael A. Callinan of counsel), for defendant.

Law Office of Gabriel & Shapiro, LLC, Wantagh (Steven Miranda of counsel), for plaintiff.

Ordered that this motion by defendant for an order pursuant to CPLR 3212 granting summary judgment in its favor against plaintiff dismissing the complaint in this action for assigned first-party no-fault benefits is denied, and plaintiff’s cross motion for summary judgment in its favor against defendant is granted.

Defendant denied the no-fault claims at issue based on the failure of plaintiff Avalon Radiology, P.C. to appear for two examinations under oath (EUOs) on April 10, 2014 and May 1, 2014. Defendant’s first EUO request, dated March 26, 2014, stated that the examination would consist of questions pertaining to Avalon’s corporate entity, the medical condition of the eligible injured party, and Avalon’s corporate relationship with any and all other professional and nonprofessional corporations (exhibit I to moving papers). Avalon responded to the first EUO request with a letter dated April 3, 2014, requesting the good faith, objective reason for defendant’s request for an EUO pertaining to Avalon’s incorporation and licensure, as well as the basis for suspecting it had engaged in fraudulent behavior (exhibit K). In response to Avalon’s letter of April 3, 2014, defendant sent a second letter dated April 14, 2014, stating that it was not required to provide the specific objective justification for its EUO request and rescheduling the EUO for May 1, 2014 (exhibit L), as well as a third letter dated April 18, 2014, also setting forth the May 1, 2014 EUO date (exhibit H). The claims were denied following Avalon’s failure to appear for the May 1, 2014 EUO (exhibits R, S, T).

Appearance at an EUO is required as a condition precedent to no-fault coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]). A duty of reasonableness and cooperation is, however, imposed on both parties in the verification process (see Diagnostic Radiographic Imaging, P.C. v GEICO, 42 Misc 3d 1205[A], 2013 NY Slip Op 52247[U] [Civ Ct, Kings County 2013]; 11 NYCRR 65-3.5 [e]).{**52 Misc 3d at 838}

In pertinent part, the applicable no-fault regulation, 11 NYCRR 65-3.5 (e), provides as follows:

“When an insurer requires an examination under oath of an applicant to establish proof of claim, such requirement must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination. Insurer standards shall be available for review by department examiners.”

An insurer is not required as a precondition to a demand for an EUO to provide the justification for the request. Where the recipient of a duly made demand for an EUO fails to request the justification for the demand, the right to receipt of such justification is waived as to that recipient. Thus, the failure to respond to a duly made demand for an EUO relieves the insurer of an obligation to demonstrate the reasonableness of the requests. (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Morris Med., P.C. v Amex Assur. Co., 37 Misc 3d 140[A], 2012 NY Slip Op 52260[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 2d Dept, 9th & 10th Jud Dists]; see also IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005 [2d Dept 2014]; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2d Dept 2014]; NY Rehab Pain Mgt. & Med. Servs., PC v State Farm Auto Ins. Co., 51 Misc 3d 1226[A], 2016 NY Slip Op 50821[U] [Sup Ct, Nassau County 2016] [provider did not timely (prior to date scheduled for EUO) request insurer to provide the reason for EUO demands].)

Thus, Avalon’s request for the objective reason in response to the first EUO request triggered an obligation on the part of the defendant insurer to respond by providing the specific objective justification for the EUO request. The insurer’s response in this case to the effect that it was not obligated to do so is plainly wrong. The insurer clearly had an obligation to comply with no-fault regulation section 65-3.5 (e) and supply the requesting party, in this case the provider, with the “specific objective justification supporting the use of such examination.” The regulations do not allow the insurer to use an EUO as a fishing expedition. There must be a specific objective reason for the request. (See American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept 2015]; American Tr. Ins. Co. v Curry, 45 Misc 3d 171 [Sup Ct, NY County 2013].) If the court were to conclude otherwise, the cited language of the applicable regulation would be rendered meaningless.{**52 Misc 3d at 839}

Because the defendant insurer failed to provide the requisite “specific objective justification supporting the use of such examination” in response to the plaintiff’s timely demand for same, the initial and subsequent EUO requests were noncompliant with the regulations. Clearly, the plaintiff’s response to the defendant’s initial request did not constitute an absolute refusal to appear for an EUO. Had a sufficient response been made by the defendant, plaintiff would have been obligated to appear at a subsequently scheduled EUO, the first request having [*3]been vitiated by plaintiff’s timely response in the form of a request for the justification for the EUO. (See Metro Psychological Servs., P.C. v Mercury Cas. Co., 49 Misc 3d 143[A], 2015 NY Slip Op 51644[U] [App Term, 1st Dept 2015]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].) Defendant therefore has not demonstrated that plaintiff twice failed to appear for properly scheduled EUOs (see Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co.).

In accordance with the foregoing, defendant’s motion for summary judgment is denied, and plaintiff’s cross motion for summary judgment in its favor against defendant is granted.

[*1]

Cannon & Acosta, LLP, Huntington Station, NY (June Redecker of counsel), for appellants.

Adams, Hanson, Rego & Kaplan, Yonkers, NY (Michael A. Zarkower of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Francisco Garcia and Jaime Torres appeal from an order of the Supreme Court, Suffolk County (Santorelli, J.), dated May 28, 2015, which, upon finding that the proceeding had been timely commenced, granted the petition to permanently stay arbitration.

Ordered that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed as time-barred.

“ ’CPLR 7503 (c) requires that an application to stay arbitration be made within 20 days after service of a notice of intention to arbitrate’ ” (Matter of State Farm Mut. Auto. Ins. Co. v Urban, 78 AD3d 1064, 1065 [2010], quoting Matter of Liberty Mut. Ins. Co. v Zacharoudis, 65 AD3d 1353, 1353-1354 [2009]; see Matter of Nationwide Ins. Co. v Singh, 6 AD3d 441, 443 [2004]). Unless a party makes an application for a stay of arbitration within the 20-day period, CPLR 7503 (c) precludes it from seeking a judicial determination on its objections to arbitration (see Matter of State Farm Ins. Co. v Williams, 50 AD3d 807, 808 [2008]; Matter of Standard Fire Ins. Co. v Mouchette, 47 AD3d 636 [2008]). “As an exception to this rule, however, a motion to stay arbitration may be entertained when its basis is that the parties never agreed to arbitrate” (Matter of CNA Ins. Co. v Carsley, 243 AD2d 474, 475 [1997] [internal quotation marks, brackets, ellipsis and citations omitted]; see Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264, 266 [1982]; Matter of Progressive Specialty Ins. Co. v Louis, 122 AD3d 637, 638 [2014]; Matter of AIU Ins. Co. v Orellana, 18 AD3d 652 [2005]). Here, Progressive Casualty Insurance Company (hereinafter Progressive) commenced this proceeding to permanently stay arbitration more than 20 days after service upon it by the appellants, Francisco Garcia and Jaime Torres, of their notices of intention to arbitrate.

Contrary to the determination of the Supreme Court, Progressive’s contention that arbitration should be stayed on the ground that the appellants’ accident did not involve an adverse “motor vehicle,” but rather an all-terrain vehicle (see Matter of Progressive Northeastern Ins. Co. v Scalamandre, 51 AD3d 932, 933 [2008]), does not relate to whether the parties had an agreement to arbitrate. Rather, that issue relates to whether certain conditions of the insurance contract were [*2]complied with so as to entitle the appellants to uninsured motorist benefits, and therefore, had to be asserted within the 20-day time limit set forth in CPLR 7503 (c) (see Matter of State Farm Mut. Auto. Ins. Co. v Urban, 78 AD3d at 1066; Matter of AIU Ins. Co. v Orellana, 18 AD3d 652 [2005]).

Moreover, Progressive failed to establish that the appellants’ notices of intention to arbitrate were deceptive and intended to prevent it from timely commencing the proceeding (see Matter of Standard Fire Ins. Co. v Mouchette, 47 AD3d 636 [2008]; Matter of Nationwide Ins. Co. v Singh, 6 AD3d at 444). The appellants’ notices of intention to arbitrate complied with the requirements of CPLR 7503 (c), and the petitioner failed to proffer an affidavit by someone with personal knowledge to support its contention that the appellants’ service of the notices of intention to arbitrate upon a certain post office box address used by Progressive to process no-fault claims prevented it from timely contesting the issue of arbitrability (see Matter of Standard Fire Ins. Co. v Mouchette, 47 AD3d at 636; Matter of Nationwide Ins. Co. v Singh, 6 AD3d at 444). Indeed, Progressive submitted a copy of a letter from its own claims representative to the appellants’ counsel acknowledging receipt of the appellants’ notices well within the 20-day period.

Accordingly, the Supreme Court should have denied the petition and dismissed the proceeding as time-barred.

In light of our determination, we need not reach the parties’ remaining contentions. Rivera, J.P., Dickerson, Maltese and Barros, JJ., concur.

Decided on June 6, 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 (Larry Love, J.), entered October 3, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 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 granted defendant’s motion for summary judgment dismissing the complaint. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage, in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, or that plaintiff had failed to appear for the EUOs; that defendant lacked justification for its EUO requests; that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests; and that defendant failed to prove that plaintiff had willfully obstructed defendant’s investigation.

Contrary to plaintiff’s arguments, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney, who was present in his office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.

With respect to plaintiff’s contention that defendant failed to demonstrate justification for its EUO requests, in a similar case involving the failure of a provider’s assignor to appear for EUOs, the Appellate Division, Second Department, has held that, to establish its prima facie entitlement to summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, an insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a [*2]timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). A review of the record in Interboro Ins. Co. v Clennon reveals that, in that case, the provider argued, as does plaintiff herein, that the insurer’s motion should have been denied pursuant to CPLR 3212 (f), as the provider had not received discovery regarding the reasonableness of defendant’s EUO requests, and that, even if there had been a failure to appear for two duly scheduled EUOs, the insurer had to show that the failure to appear constituted willful obstruction of the insurer’s investigation. In finding for the insurer, the Appellate Division, Second Department, stated the following:

“the [providers] failed to establish that summary judgment was premature in light of outstanding discovery. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or [that] the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant’ (Cajas-Romero v Ward, 106 AD3d 850, 852 [2013]; see CPLR 3212 [f]). Here, in support of their contention that the [insurer’s] motion was premature, the [providers] did not establish what information they hoped to discover that would demonstrate the existence of a triable issue of fact” (113 AD3d at 597).

Similarly, in the instant case, plaintiff “did not establish what information [it] hoped to discover that would demonstrate the existence of a triable issue of fact” (id.; cf. American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [2015]).

Accordingly, the order is affirmed.

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

Decided on June 6, 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 (Barry A. Schwartz, J.), entered August 14, 2013, deemed from a judgment of the same court entered September 4, 2013 (see CPLR 5512 [a]). The judgment, entered pursuant to the August 14, 2013 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,092.34.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered August 14, 2013 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath (EUOs). By order entered August 14, 2013, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. A judgment awarding plaintiff the principal sum of $3,092.34 was entered on September 4, 2013. Defendant’s subsequently filed notice of appeal from the August 14, 2013 order is deemed to be a notice of appeal from the judgment entered September 4, 2013 (see CPLR 5512 [a]).

Contrary to defendant’s contention, the affirmation submitted in support of defendant’s cross motion by a partner in the law firm retained by defendant to conduct EUOs of plaintiff was not made on personal knowledge and, therefore, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing the complaint (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

With respect to plaintiff’s motion, we find that plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as plaintiff did not establish that defendant’s defense lacked merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order entered August 14, 2013 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary [*2]judgment is denied.

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

Decided on June 6, 2016

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

Decided on June 6, 2016

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