Decided on September 16, 2015

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

Decided on September 16, 2015

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

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

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

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered October 20, 2014, which, to the extent appealed from, denied plaintiff’s motion for summary judgment against Tam Medical Supply Corp., Charles Deng Acupuncture, P.C., Action Potential Chiropractic, PLLC, Maiga Products Corporation, Pierre J. Renelique, MD, Maria Masiglia PT, and Gentlecare Ambulatory Anesthesia Services (the answering defendants), unanimously affirmed, with costs.

Plaintiff no-fault insurer moved for summary judgment declaring that its policy does not provide coverage to the individual defendant for the subject accident based on her failure to appear for scheduled examinations under oath (EUO). Although 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]), here defendants-respondents, assignees of the defaulting individual defendant, opposed plaintiff’s summary judgment motion on the ground that plaintiff had not established that it had requested the EUO within the time frame set by the no-fault regulations (see 11 NYCRR 65-3.5 [b]). In its reply, plaintiff failed to supply evidence bearing on whether the EUO had been requested within the appropriate time frame. Accordingly, plaintiff’s motion for summary judgment was properly denied. Concur—Tom, J.P., Friedman, Sweeny, Saxe and Clark, JJ.

[*1]

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

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

Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered January 2, 2014, which, to the extent appealed from, granted plaintiff’s motion for summary judgment on its complaint against defendant KHL Acupuncture, P.C. (KHL), and declared that KHL is not entitled to receive no-fault benefits from plaintiff, reversed, on the law, without costs, the motion denied, and the declaration vacated.

Plaintiff failed to establish prima facie that it was entitled to deny KHL’s claim because KHL’s assignor, defendant Shateahah Vance, did not appear for independent medical examinations (IMEs) (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No-Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Vance did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5 (d), which prescribes a 30-calendar-day time frame for the holding of IMEs (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; American Tr. Ins. Co. v Jorge, 2014 NY Slip Op 30720[U] [Sup Ct, NY County 2014]). For the reasons set forth in American Tr. Ins. Co. v Longevity Med. Supply, Inc. (131 AD3d 841 [1st Dept 2015] [decided simultaneously herewith]), we disagree with the dissent’s view that this issue should not be reviewed because it was raised for the first time on appeal. Concur—Acosta, Moskowitz, Richter and Kapnick, JJ.

Friedman, J.P., dissents in a memorandum as follows: I respectfully dissent from the reversal of the grant of summary judgment to plaintiff in this case for substantially the same reason I dissent from the affirmance of the denial of summary judgment to the same plaintiff in American Tr. Ins. Co. v Longevity Med. Supply, Inc. (131 AD3d 841 [1st Dept 2015] [decided simultaneously herewith]). Here, as in Longevity, defendant medical vendor raised the issue of whether the IMEs were scheduled to be held within the 30-day time frame prescribed by Insurance Department Regulations (11 NYCRR) § 65-3.5 (d) for the first time on appeal. Had the issue been raised before the motion court, plaintiff may well have been able to establish that the IMEs had been scheduled in compliance with the regulation. Moreover, in this case, it seems unfair to reverse the motion court’s granting of summary judgment to plaintiff based on an issue that was not raised in defendant’s opposition to the motion.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

The Law Office of Melissa Beatancourt, P.C., Brooklyn (Melissa Beatancourt of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered October 15, 2014, which, to the extent appealed from, denied plaintiff’s motion for summary judgment declaring that it is not obligated to provide no-fault coverage to defendant Longevity Medical Supply, Inc. in connection with the October 7, 2012 motor vehicle accident, affirmed, without costs.

Plaintiff failed to establish prima facie that it was entitled to deny defendant Longevity Medical Supply, Inc.’s claim because Longevity’s assignor, defendant Estrella, did not appear for independent medical examinations (IMEs) (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No-Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Estrella did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5 (d), which prescribes a 30-calendar-day time frame for the holding of IMEs (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; American Tr. Ins. Co. v Jorge, 2014 NY Slip Op 30720[U] [Sup Ct, NY County 2014]).

Contrary to the position taken by the dissent, the issue of whether plaintiff has failed to establish that the notices for the IMEs were timely, pursuant to 11 NYCRR 65-3.5 (d), presents a question of law which this Court can review. Unlike the dissent, we find that plaintiff was required to submit proof of the timely notice in order to make a prima facie showing of entitlement to judgment as a matter of law. Any belated attempt by plaintiff to cure this deficiency in its prima facie showing by submitting evidence for the first time in reply would have been improper (see DiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 900-901 [2d Dept 2014]; Hawthorne v City of New York, 44 AD3d 544 [2007]; Scansarole v Madison Sq. Garden, L.P., 33 AD3d 517 [1st Dept 2006]).

The dissent mistakenly posits that the majority failed to “cite a single authority for supporting [our] position” that plaintiff was required to submit proof of the timely notice for the IMEs in order to make a prima facie showing of entitlement to judgment as a matter of law. In Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, we explicitly held that “[p]laintiff satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations, and that defendants’ assignors did not appear” (82 AD3d at 560 [emphasis added]).

Likewise, the dissent points out that “the majority negates the precedential authority of Lucas.” Contrary to the dissent’s assertion, Lucas does not support its position since in Lucas, the defendant did not argue on appeal that the plaintiff failed to satisfy its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations. Here, in contrast, the issue of whether plaintiff met its burden of showing compliance with the applicable time frame was fully briefed on appeal.

Also, contrary to the dissent’s suggestion, defendant was not in the best position to determine whether plaintiff complied with the 30-day requirement. As the dissent acknowledges, the 30-day period with which the IME was supposed to be scheduled is measured from the date on which plaintiff received the prescribed verification form from defendant. Yet, no evidence in affidavit form or any other form has been submitted by plaintiff indicating the date upon which plaintiff received the verification from defendant. Thus, contrary to the dissent’s assertion, it does not “appear[ ] from the record that plaintiff in fact may well have complied with the requirement in question.”

Finally, the dissent argues that a plaintiff’s failure to comply with the 30-day time frame for the scheduling of the IME does not affect a plaintiff’s right to deny a claim for services rendered to the insured after the date of the IME for which the insured failed to appear. This contention, however, was never raised by plaintiff in its appellate brief and we therefore decline to consider it. Concur—Renwick, Moskowitz, Richter and Clark, JJ.

Friedman, J.P., dissents in a memorandum as follows: I respectfully dissent.

The point on which the majority affirms the denial of summary judgment to the plaintiff insurer—the absence of evidence as to whether the independent medical examinations (IMEs) for which the insured injured person failed to appear were scheduled within the 30-day time frame contemplated by Insurance Department Regulations (11 NYCRR) § 65-3.5 (d)—was not raised by the defendant medical vendor (Longevity) in its opposition to plaintiff’s motion for summary judgment. Rather, Longevity raised the point for the first time in its brief opposing plaintiff’s appeal. Had Longevity raised this issue in opposing the motion, plaintiff may well have been able to establish compliance with the regulation in question.

It is undisputed that plaintiff has established that it sent notices of two successive IMEs to the insured and that the insured failed to appear for either IME—a breach of a condition precedent under the policy (as set forth by the mandatory personal injury protection endorsement prescribed by 11 NYCRR 65-1.1 [d]) that ordinarily would vitiate coverage for the loss (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Notwithstanding the undisputed failure of the insured (Longevity’s assignor) to appear for the scheduled IMEs, Longevity argues—as previously noted, for the first time on appeal—that plaintiff is not entitled to summary judgment because the record does not affirmatively establish that it complied with a regulation addressing the timing of the first IME. The subject regulation, 11 NYCRR 65-3.5 (d), provides that an insurer wishing to require an IME as additional verification of a claim for motor vehicle no-fault benefits after receipt of the initial prescribed verification “shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms.”^[FN1]

In pertinent part, 11 NYCRR 65-3.5 (“Claim procedure”) provides:

“(a) Within 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS form NF-2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim.

“(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 prescribed verification forms . . .

“(c) The insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.

“(d) If the additional verification required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms.”

In this case, the accident occurred on October 7, 2012; the application for benefits was submitted on or about October 29, 2012; the first IME notice was sent out on November 21, 2012 for an IME to be held on December 12, 2012; and (after the insured failed to appear for the December 12 IME) the second IME notice was sent out on December 13, 2012 for an IME to be held on January 2, 2013 (for which the insured also failed to appear). The record does not reflect when plaintiff received the “prescribed verification forms,” but those forms must have been received some time after October 29, 2012, the date of the insured’s initial application for benefits. Thus, there is no reason to assume that the scheduling of the first IME on December 12, 2012, was not within 30 days of plaintiff’s receipt of the prescribed verification forms. On the contrary, from the aforementioned dates that do appear in the record, it seems highly likely that the first IME was scheduled to be conducted within the 30-day time frame set forth in the regulation.^[FN2] If Longevity wished to oppose the summary judgment on the ground that the IMEs were not scheduled to take place within 30 days from plaintiff’s receipt of the prescribed verification forms, it should have raised the issue before the motion court, as the provider did in National Liab. & Fire Ins. Co. v Tam Med. Supply Corp. (131 AD3d 851 [1st Dept 2015]), an appeal being decided simultaneously herewith in which the panel is unanimously affirming the denial of summary judgment to the insurer. In this case, however, instead of raising the issue in opposition to plaintiff’s summary judgment motion, Longevity raised the point for the first time in its respondent’s brief opposing plaintiff’s appeal. This is what the majority refers to when it asserts that the issue was “fully briefed on appeal.”

There is particularly no reason to excuse Longevity’s failure to raise this issue in its opposition to the motion when one considers that the 30-day period within which the IME was supposed to be scheduled is measured from the date on which plaintiff received the prescribed verification form from Longevity itself (see Ops Gen Counsel NY Ins Dept No. 03-02-12 [Feb. 2003], available at www.dfs.ny.gov/insurance/ogco2003/rg030212.htm [noting that the prescribed verification form to which section 65-3.5 (d) refers is, in the case of a non-hospital healthcare provider, “NYS Form N-F 3, Verification of Treatment by Attending Physician or Other Provider of Health Service”]). Thus, Longevity itself has information from which it can determine whether the first scheduled date of the IME (December 12, 2012) was within 30 days of the approximate date of plaintiff’s receipt of the verification form that Longevity sent to it. If Longevity had reason to believe that plaintiff failed to comply with the 30-day time frame for the scheduling of the IME, Longevity should have raised that point before the motion court and should have placed the relevant supporting evidence—namely, the verification form and the date Longevity sent that form to plaintiff—in the record.

The majority ascribes to me the position that Longevity was in “the best position” to determine whether plaintiff complied with the 30-day time frame. It is not my view that Longevity was in “the best position” to make this determination, but that it had information within its possession from which it could readily have determined whether it was likely that plaintiff had complied with the requirement. While it may be true, as the majority claims, that Longevity was not in the best position to make this determination, the majority cannot escape the fact that Longevity was well positioned to make this determination. After all, Longevity knows the date on which it sent the verification form to plaintiff.

The majority sidesteps the preservation issue by asserting that plaintiff was obligated to establish compliance with the section 65-3.5 (d) time frame as part of its prima facie burden in moving for summary judgment. However, no appellate court has ever so held. For example, in American Tr. Ins. Co. v Lucas (111 AD3d 423 [1st Dept 2013]), this Court reversed and granted the insurer’s motion for summary judgment declaring noncoverage based on the insured’s failure to appear for IMEs, even though the record of that appeal does not disclose whether the IMEs had been scheduled to be conducted within section 65-3.5 (d)’s 30-day time frame.^[FN3] While this Court, in affirming summary judgment for the insurer in Unitrin, stated that the insurer had “satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations” (82 AD3d at 560), the issue of the insurer’s compliance or noncompliance with section 65-3.5 (d) was not raised in that case. Thus, Unitrin‘s reference to the “time frames set forth in the no-fault implementing regulations” as part of an insurer’s prima facie burden on a motion for summary judgment is dictum, not (as mischaracterized by the majority) a holding. Contrary to the majority’s cavalier assertion that I “mistakenly” deny that it cites any authority for its position, Unitrin‘s statement about “time frames” does not constitute authority for the majority’s position because that statement is not a holding on any issue that was actually raised in that case.

It is curious that the majority negates the precedential authority of Lucas because the issue was not raised in the briefs, but inconsistently relies on Unitrin as establishing that the proof of compliance with the 30-day IME time frame is part of the prima facie case, even though there is no mention in the record or briefs for Unitrin of the issue of compliance with the 30-day time frame. Indeed, 11 NYCRR 65-3.5 (d), the source of the 30-day time frame, is not even cited in the Unitrin briefs, and whether the 30-day time frame was complied with cannot be determined from the Unitrin record. Thus, it is rather disheartening to see the majority cite Unitrin for the novel proposition they do. In fact, Unitrin holds that the assignor’s failure to appear for an IME absolves the insurer of the obligation to comply with the time requirement for denying a claim (see 82 AD3d at 560 [the assignor’s failure to appear for an IME gave the insurer “the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued”], citing 11 NYCRR 65-3.8 [c]). Nonetheless, the majority reads Unitrin as if [*2]it holds that the insurer’s noncompliance with a time requirement for scheduling an IME absolves the assignor of the obligation to appear for the IME. In other words, the majority reads Unitrin backwards.^[FN4]

The majority does not cite a single authority supporting its position and ignores Lucas, where we denied recovery even though the insurer did not submit proof of the matters that the majority now proclaims part of the prima facie case. In my view, the 30-day time frame for scheduling an IME is analogous to a statute of limitations and, like a statute of limitations, is a matter to be pleaded and proved by the opponent of the claim—here, the insured or the insured’s assignee. The requirement that the insured person appear for an IME as a condition precedent to coverage is a key tool for “preventing fraud” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]), fraud having long been recognized as an endemic problem in the field of no-fault insurance (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861-862 [2003]). In a case where there is no dispute either as to plaintiff’s sending the insured notice of the IMEs or as to the insured’s failure to appear for them, we should not allow this anti-fraud device to be defeated based on a timing provision that was not even raised in the motion court—especially given that it appears from the record that plaintiff in fact may well have complied with the requirement in question and, as previously discussed, Longevity itself has reason to know whether plaintiff did comply.^[FN5] As previously indicated, the pertinent information was, after all, particularly within Longevity’s possession.^[FN6]

The majority may be correct in taking the position that failure to schedule an IME within the time frame set by section 65-3.5 (d) bars an insurer from denying coverage based on the insured’s failure to appear for an IME.^[FN7] In this case, however, where the issue of the timing of the IME was not raised before the motion court and the record does not establish that IMEs were not timely scheduled, plaintiff should have been granted summary judgment declaring that the insured’s coverage for this loss was voided retroactive to the date of the accident by his failure to appear for the scheduled IMEs (see Unitrin, 82 AD3d at 560; Fogel, 35 AD3d at 721-722; Ops Gen Counsel NY Ins Dept No. 03-02-12 [Feb. 2003], available at www.dfs.ny.gov/insurance/ogco2003/rg030212.htm).

Finally, even if I were to accede to the majority’s view that plaintiff was required to demonstrate compliance with the 30-day time frame for the scheduling of the IME as part of its prima facie case, I would still hold that plaintiff is entitled to partial summary judgment barring Longevity from obtaining payments for services incurred after the dates of the scheduled IMEs for which the insured failed to appear. In the above-cited opinion issued by the Office of the General Counsel of the Insurance Department (now incorporated in the Department of Financial Services), the Department responded to the following question, among others: “What is the effect [of an insured’s failure to appear for a scheduled IME] on (a) pending claims for health services rendered submitted to the insurer, [and] (b) the submission of future claims . . . ?” The Department answered, with respect to (a), that the nonappearance allows the insurer to deny “any pending claim submitted for services rendered,” and, with respect to (b), “When an eligible injured person fails to meet the condition precedent for coverage due to that person’s failure to comply with a reasonable request for a medical examination, the breach of that policy condition obviates the obligation of the No-Fault insurer to provide coverage for any future claims for health services arising from the same accident provided to that person by any health provider.”

The Department’s bifurcation of the issue between benefits for past and future treatment suggests a way to harmonize the 30-day time frame of section 65-3.5 (d) with the previously noted provision of the mandatory personal injury endorsement requiring the insured person to “submit to medical examination . . . when, and as often as, the Company may reasonably require” (see 11 NYCRR 65-1.1 [d] [I] [Conditions]). If the insurer fails to comply with the 30-day time frame in scheduling the IME, it may lose the right to deny a claim for services rendered to the insured before the date of the IME for which the insured failed to appear.^[FN8] However, given that the insured’s failure to appear for an IME “when, and as often as, the [insurer] may reasonably require” is a breach of a condition precedent to coverage, whether or not the insurer has complied with the 30-day time frame, the breach of the condition should entitle the insurer to deny claims for treatment rendered to the insured after the date of the IME for which the insured failed to appear. Accordingly, even under the majority’s view of the law, we should modify to grant plaintiff partial summary judgment declaring it entitled to deny claims for any services rendered to the insured after the dates of the scheduled IMEs for which he failed to appear.^[FN9]

Footnotes

Footnote 1:The phrase “prescribed verification forms” apparently refers to certain of the forms enumerated in the preceding section, 11 NYCRR 65-3.4, and set forth in Appendix 13 to the Insurance Department regulations (specifically, forms NF-3, NF-4, NF-5, NF-6 and NF-7).

Footnote 2:Similarly, there is no reason to assume that the first IME notice, dated November 21, 2012 (23 days after October 29, 2012, the date of the initial application for benefits), was not sent out “within 15 business days of [plaintiff’s] receipt of the prescribed verification forms” (11 NYCRR 65-3.5 [b]).

Footnote 3:If the majority is correct that establishing compliance with the 30-day time frame for scheduling the initial IME is part of the insurer’s prima facie burden in moving for summary judgment, the motion court’s denial of summary judgment to the insurer in Lucas was correct and, contrary to the majority’s contention, should not have been reversed on appeal simply because the respondent assignee medical vendor failed to raise the point in its brief opposing the appeal.

Footnote 4:Also misplaced is the majority’s reliance on Interboro Ins. Co. v Perez (112 AD3d 483 [1st Dept 2013]), in which we affirmed an order denying the plaintiff insurer’s motion for a default judgment and compelling it to accept late answers. It appears from the briefs on which Interboro was decided that the parties disputed whether the insurer had established that it had sent notices for examinations under oath to the assignor, not whether such notices had been timely sent.

Footnote 5:The majority baselessly disputes my statement above that “plaintiff in fact may well have complied with the requirement in question.” As previously noted, from the dates that do appear in the record—the date of the initial application for benefits (October 29, 2012) and the date of the notice (November 21, 2012) that the first IME would be held on December 12, 2012—there is no reason to assume that the first IME on December 12 was not scheduled within 30 days of plaintiff’s receipt of the prescribed verification form from Longevity. In this regard, plaintiff’s receipt of the completed verification form must have occurred long enough after October 29 for Longevity to have received the form from plaintiff and then for the completed form to arrive from Longevity at plaintiff’s office.

Footnote 6:The majority’s assertion that it would have been “improper” for plaintiff to establish compliance with section 65-3.5 (d) in its reply papers in the motion court, had Longevity raised the issue in its opposition, assumes the matter in dispute, namely, whether the demonstration of such compliance was an element of the prima facie showing necessary for summary judgment. Again, the majority cites no authority supporting its position on this issue.

Footnote 7: I note that section 65-3.5 (d), ostensibly requiring that an IME be scheduled to be held within 30 days of the insurer’s receipt of the prescribed verification forms, is in tension with the mandatory personal injury protection endorsement prescribed by 11 NYCRR 65-1.1 (d) (I) (Conditions), which provides: “The eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require” (emphasis added).

Footnote 8:Again, in this case, there is no reason to believe that plaintiff failed to comply with the 30-day time frame in scheduling the IME, although plaintiff did not present evidence establishing that it did comply with the time frame.

Footnote 9:The effect of plaintiff’s establishing the insured’s failure to appear for the IME’s, but failing to establish its compliance with the 30-day time frame for scheduling the first IME, is a pure question of law arising from the record. Accordingly, we may consider it even though the parties have not addressed it in their briefs. The majority can hardly fault plaintiff for not making an alternative request for partial summary judgment in its brief, considering that the majority’s decision turns on an issue that was never even mentioned in Supreme Court.

[*1] (September 15, 2015)

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

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

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered April 7, 2014, to the extent appealed from as limited by the briefs, which granted plaintiff’s motion for summary judgment against defendant Sky Acupuncture, P.C., and declared that defendant Sky Acupuncture, P.C. is not entitled to no-fault insurance coverage for the subject motor vehicle accident, unanimously reversed, on the law, without costs, and the declaration vacated.

Plaintiff failed to establish prima facie that it was entitled to deny defendant Sky Acupuncture’s claim because Sky’s assignor, defendant Clark, did not appear for independent medical examinations (IMEs) (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No-Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Clark did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5 (d), which prescribes a 30-calendar-day time frame for the holding of IMEs (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; American Tr. Ins. Co. v Jorge, 2014 NY Slip Op 30720[U] [Sup Ct, NY County 2014]). Concur—Gonzalez, P.J., Acosta, Moskowitz, Richter and Feinman, JJ.

[*1]

Civil Court of the City of New York, Kings County, September 11, 2015

APPEARANCES OF COUNSEL

Law Office of Melissa Betancourt, P.C., Brooklyn, for plaintiffs.

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

Plaintiffs move, via order to show cause (OSC), for an order pursuant to CPLR 2304, 2303, and 311, quashing defendant’s judicial subpoena duces tecum and granting plaintiffs a protective order pursuant to CPLR 3103 (a). Defendant opposes.

After a review of the papers presented, all relevant statutes and case law, the court grants the OSC in part and denies it in part.

The instant action was commenced to recover first-party no-fault benefits in the amount of $3,674.68, for medical services rendered to plaintiffs’ assignor as a result of injuries he allegedly sustained in an automobile accident occurring on or about May 19, 2012. Plaintiffs commenced the action via service of a summons and complaint on or about May 17, 2013. Defendant interposed its answer on or about August 22, 2013.

On or about April 2, 2014, defendant served a subpoena duces tecum upon TD Bank, located at 1701 Route 70, East Cherry Hill, NJ 08034. The subject subpoena indicates that the information sought is related to the time period of “January 1, 2008 or the date of the account origination, whichever is earlier, to the present.” Additionally, the subpoena demands the production of all documentation related to specific account number (REDACTED). No names of any individuals appear therein.

The following documentation sought includes:

“a) monthly account transaction statements; b) copies of all checking statements, cancelled checks, including both the front of the check and the back; c) copies of all bank reconciliations; d) account formation and governance documents, including but not limited to signature cards, powers of attorney and corporate resolutions; e) all documents{**49 Misc 3d at 928} reflecting or relating to deposits and/or cash withdrawals, electronic fund transfers and/or wire transfers, including but not limited to all deposit and/or withdrawal slips; f) copies of all documentation relating to any and all loan accounts and/or investment accounts, including but not limited to mortgages and lines of credit, and any and all statements, payments and loan draws; and g) all correspondence between the bank and each of the account holders identified above.”

Plaintiffs argue that their OSC to quash the subject subpoena is an absolute necessity in view of said subpoena’s numerous fatal defects. First, they argue that the subpoena was not properly served in accordance with the methods promulgated by CPLR 311, and also that no proof of service has been submitted. Next, they argue that defendant’s subpoena fails to tender, in advance, traveling expenses to the witness(es) as required by CPLR 2303. Plaintiffs further argue that since the subpoena is overly broad, excessive, and fails to name the holder of the aforementioned account number, it is tantamount to the proverbial “fishing expedition,” where the sole intent is to “ascertain [*2]whether documents exist rather than to compel the production of specific documents” (OSC ¶ 8). Lastly, plaintiffs argue that this court should grant their request for a protective order, so as to shift the burden on defendant to prove that the information it seeks is “material and necessary” for its defense in this action (id. ¶ 17).

In opposition, defendant argues that it properly served the subpoena on the nonparty witness, TD Bank, pursuant to CPLR 2303. Defendant annexes a copy of the affidavit of service demonstrating that on April 18, 2014, personal service was effected upon Michael Esposito, “Store Manager,” of the TD Branch located at 2025 Broadhollow Road, Farmingdale, NY 11735 (aff in opp, exhibit A). Said affidavit also indicates that Ryan LeGrady, the individual who served same, requested Mr. Esposito to provide photo identification. In response, Mr. Esposito produced a New York State driver’s license. Defendant also argues that the absence of the witness fee requirement does not render the subpoena defective, in that the instant{**49 Misc 3d at 929} subpoena seeks documents, as opposed to the actual appearance of any individual(s). Defendant further argues that plaintiffs lack standing to challenge the basis of the subpoena because they simply “do not have a proprietary or possessory interest in the bank records sought” (id. ¶ 7).

Furthermore, defendant argues that it is entitled to the production of the demanded documents because they are material and necessary evidence related to defendant’s Mallela defense (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). In Mallela, the Court of Appeals held that a

“medical corporation that was fraudulently incorporated under N.Y. Business Corporation Law §§ 1507, 1508, and N.Y. Education Law § 6507 (4)(c) [is not] entitled to be reimbursed by insurers, under New York Insurance Law §§ 5101 et seq., and its implementing regulations, [even] for medical services rendered by licensed medical practitioners” (Mallela, 4 NY3d at 320).

In support of its Mallela argument, defendant annexes the examination under oath transcript of Dr. Brij Mittal, owner of plaintiff Jamaica Wellness Medical, P.C., as its exhibit E. Defendant argues that Dr. Mittal’s testimony raises increasing suspicion regarding the formation and ownership of Jamaica Wellness Medical, P.C. Specifically, Dr. Mittal testified that his license had previously been revoked for misuse and that he took over a “fully functional medical practice, with support staff, without any payment or agreement” (aff in opp ¶ 15). Furthermore, defendant asserts that this testimony unequivocally demonstrates that “Dr. Mittal is completely unfamiliar with the practice of retaining physical therapists from an ‘agency’ whose name he does not know and that Dr. Mittal admitted to practices that constitute improper billing for services rendered by non-employees in violation of the No-Fault Regulations” (id.).

Therefore, defendant argues that it has demonstrated that its Mallela-based defenses are meritorious and that the subpoena at issue seeks material related to said defenses. Furthermore, defendant argues that since its disclosure demands are made with good cause, plaintiffs are not entitled to the issuance of a protective order.

Conclusions of Law

The court first finds that service of the subject subpoena was proper, in that it was personally served “upon [a] domestic . . . {**49 Misc 3d at 930}corporation, to [a] . . . managing . . . agent,” in accordance with CPLR 311 (a) (1). The court rejects plaintiffs’ contention that defendant’s subpoena is defective in that defendant failed to tender traveling expenses in advance to the witness as required by CPLR 2303. The subject subpoena specifically pertains to the production of documents, not any individual, and clearly states that said documents may be mailed to defendant’s attorney.

The court now addresses what it perceives to be the more significant issue at hand, that is the substance and relevance of the subject subpoena. The court finds defendant’s argument that plaintiffs lack standing to contest the subpoena to be unavailing. A motion to quash may be made by the nonparty witness or “by one of the parties or a party’s lawyer” (McDaid v Semegran, 16 Misc 3d 1102[A], 2007 NY Slip Op 51227[U], *3 [Sup Ct, Nassau County 2007]; see also Snedeker v Schiff Hardin LLP, 2010 NY Slip Op 30151[U] [Sup Ct, Nassau County 2010]). “An application to quash a subpoena should be granted ‘[o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious’ . . . or where the information sought is ‘utterly irrelevant to any proper inquiry’ ” (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014]; see also Anheuser-Busch, Inc. v Abrams, 71 NY2d 327, 331-332 [1988], citing Matter of Edge Ho Holding Corp., 256 NY 374, 382 [1931]). The party moving to vacate the subpoena bears the burden of establishing that the subpoena should be vacated under such circumstances (see Matter of Dairymen’s League Coop. Assn., Inc. v Murtagh, 274 App Div 591 [1st Dept 1948]; Ledonne v Orsid Realty Corp., 83 AD3d 598, 599 [1st Dept 2011]).

In contemplating the relevance and extent of the disclosure/discovery demanded in a subpoena duces tecum, one must first look to CPLR 3101 for guidance and instruction. Pursuant to CPLR 3101 (a) (4), a party may obtain discovery from a nonparty in possession of material and necessary evidence, provided that the nonparty is informed of the circumstances or reasons disclosure is sought. CPLR 3101 provides in pertinent part: “(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: . . . (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.”

“The [phrase] ‘material and necessary’ [is] . . . to be interpreted liberally to require disclosure, upon request, of any{**49 Misc 3d at 931} facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see also Yoshida v Hsueh-Chih Chin, 111 AD3d 704, 705 [2d Dept 2013]; Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d 153[A], 2012 NY Slip Op 50342[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

CPLR 3101 (a) (4) also contains a notice requirement with regard to nonparties, wherein the subpoenaing party must first state either on the face of the subpoena, or in a notice accompanying it, “the circumstances or reasons such disclosure is sought or required” (Kapon v Koch, 23 NY3d at 34). It is evident that the CPLR imposes more rigid and stringent requirements for disclosure demands made on a nonparty as opposed to an actual party, “presumably to afford a nonparty who has no idea of the parties’ dispute or a party affected by such request an opportunity to decide how to respond” (Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 110 [1st Dept 2006]).

In Kapon, the Court of Appeals rejected the argument “that CPLR 3101 (a) [(4)] contains distinctions between disclosure required of parties and nonparties” (Kapon at 36), and has also instructed that CPLR “3101 (a) (4) imposes no requirement that the subpoenaing party demonstrate that it cannot obtain the requested disclosure from any other source” (id. at 38). Moreover, if the subpoenaing party complies with the notice requirement promulgated by CPLR [*4]3101 (a) (4), it merely needs to establish that the discovery it seeks is “material and necessary” to the prosecution or defense of the action (id.). However, with a motion to quash a subpoena, the party or nonparty still must establish that the discovery sought is “utterly irrelevant” to the action or that the “futility of the process to uncover anything legitimate is inevitable or obvious” (id., citing Matter of Edge Ho Holding Corp. at 382; see also Ferolito v Arizona Beverages USA, LLC, 119 AD3d 642, 643 [2d Dept 2014]).

This court has witnessed the meteoric rise of the Mallela defense in the past year. In some cases, the carrier denies a plaintiff no-fault benefits based solely on the mere suspicion of fraudulent activity. In other cases, the carrier establishes a well articulated and reliable basis for its denial. Consequently, with regard to the issue of whether a professional entity is{**49 Misc 3d at 932} fraudulently incorporated, the court has grappled with the two profound competing interests involved. These interests are a plaintiff’s right to privacy with regard to its financial records and business affairs, and defendant’s right to the disclosure of and access to “relevant” information in its legitimate quest to expose a fraudulently incorporated professional service corporation. Indeed, this appears to be the primary reason that “[t]he supervision of discovery, the setting of reasonable terms and conditions for disclosure, and the determination of whether a particular discovery demand is appropriate, are all matters within the sound discretion of the trial court, which must balance competing interests” (Kooper v Kooper, 74 AD3d 6, 17 [2d Dept 2010]).

In the case at bar, the court acknowledges defendant’s zealous attempt to illuminate what, quite frankly, does appear to be illegal conduct. However, the deficiency inherent in the subpoena it relies on to obtain proof of same, severely undermines its efforts. Simply put, defendant’s subpoena fails to state on its face, or via an accompanying notice, “the circumstances or reasons such disclosure is sought or required” (Kapon, 23 NY3d at 39). This is a procedural defect which this court cannot overlook.

“As to motions for a protective order, CPLR 3103(a) not only permits a non-party witness to seek such an order in his/her own right, but also permits any party opposing the disclosure to make the motion” (McDaid v Semegran, 2007 NY Slip Op 51227[U], *2, quoting Matter of MacLeman, 9 Misc 3d 1119[A], 2005 NY Slip Op 51675[U], *5 [Sur Ct, Westchester County 2005]; see also Snedeker v Schiff Hardin LLP; Nexray Med. Imaging PC v Allstate Ins. Co., 39 Misc 3d 1237[A], 2013 NY Slip Op 50910[U] [Nassau Dist Ct 2013]). The burden is on the moving party to establish the need for a protective order (see Koump v Smith, 25 NY2d 287, 294 [1969]; Vivitorian Corp. v First Cent. Ins. Co., 203 AD2d 452, 452-453 [2d Dept 1994]).

“A motion for a protective order . . . is addressed to the sound discretion of the trial court” (Boylin v Eagle Telephonics, 130 AD2d 538, 538 [2d Dept 1987]). CPLR 3103 (a) provides that

“[t]he court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such{**49 Misc 3d at 933} order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.”

Therefore, in accordance with the foregoing, it is hereby[*5] ordered that the portion of plaintiffs’ OSC wherein they seek to quash the subpoena is granted based on defendant’s failure to provide the nonparty witness with the notice required under CPLR 3101 (a) (4); and it is further ordered that the portion of plaintiffs’ OSC wherein they seek a protective order is denied; and it is further ordered that defendant may serve the subpoena again, accompanied by the required notice.

720728/12

Evan Polansky, Esq.
Counsel for plaintiffs
Gary Tsirelman, PC
129 Livingston Street
Brooklyn, NY 11201

Richard C. Aitken, Esq.
Bruno, Gerbino & Soriano, LLP
Counsel for defendant
445 Broad Hollow Road
Suite 220
Melville, NY 11747

Stephen Goldblatt, Esq.
Counsel for defendant
3315 Nostrand Avenue
Suite L1-A
Brooklyn, NY 11229

In this action to recover assigned first-party no-fault insurance benefits, three medical providers sought reimbursement for services rendered to the assignor as the result of an automobile accident that occurred on August 4, 2010, in Brooklyn, New York. Defendant [*2]insurance carrier averred that plaintiffs may not obtain payment of first-party insurance benefits as a result of the accident because the assignor’s policy was terminated ab initio due to material misrepresentations in securing the policy. In opposition, plaintiffs contended that Rhode Island law does not permit termination of an automobile insurance policy ab initio. The parties stipulated to the facts, leaving the court to determine only whether a Rhode Island automobile insurance policy issued by the Rhode Island Automobile Insurance Plan may be terminated ab initio.

Pursuant to a deposition of Felix Cordova, the assignor, recorded on November 22, 2010, the parties agreed that Mr. Cordova did not know his Rhode Island address by memory and had to read it from his driver’s license. Mr. Cordova resided at 703 Ditmas Avenue, Brooklyn, New York for thirteen to fourteen years with his wife, daughter and granddaughter, and resided in Rhode Island only on weekends for three years at a property that was owned by friends. Mr. Cordova purported to be the owner of the Brooklyn property, although his wife is listed as the owner. Mr. Cordova owns a car repair shop/dealership located in Bridgeton, New Jersey. The parties further stipulated that the assignor made a material misrepresentation in his application for the subject policy and defendant issued a reservation of rights letter on October 28, 2010, and a denial letter on March 14, 2011.

The parties agreed that if plaintiffs prevailed, 37th Avenue Medical, P.C. would be entitled to reimbursement in the amount of $1,903.68, Elective Acupuncture, P.C. would receive $2,472.53, and AKA Chiropractic, P.C. would receive $526.54, and that although Rhode Island does not provide no-fault medical reimbursement, as in New York, coverage would be provided under the “out of state accident” coverage clause of the policy, which requires the insurer to provide the minimum coverage required in the state where the accident occurred.

Rhode Island General Laws § 31-33-8 (a) governs certain specialty automobile insurance plans, and provides,

After consultation with the insurance companies authorized to issue automobile liability and/or physical damage policies in this state, the insurance commissioner shall approve a reasonable plan or plans fair to the insurers and equitable to their policy holders, for the apportionment among the companies of applicants for motor vehicle liability and/or physical damage insurance who are in good faith entitled to but are unable to procure insurance through ordinary methods.

The policy at issue is such a liability and property damages policy issued through the Rhode Island Automobile Insurance Plan (see also Rhode Island General Laws § 31-47-16). The only portion of the policy in dispute here is the liability section since no claim for property damages was asserted.

Regulation 16, section 10, which was promulgated by Rhode Island General Laws §§ 27-8-11, 27-9-1 et seq., 31-47-4 and 42-14-17, governs cancellation and renewal of all Rhode Island automobile insurance policies, unless specifically exempted. It states:

No insurer may rescind ab initio coverage required by the terms of R.I. Gen Laws § 31-47-1 et seq. [requiring mandatory automobile liability insurance]. Whether or not rescission ab initio is available for other coverages is not addressed by this Regulation and shall be governed by the applicable statutory and case law of this state. Nothing in [*3]this section shall vary the ability of the insurer to cancel automobile liability coverage on a prospective basis, as long as the requirement of all statutes and Regulations governing cancellation are met [emphasis added].

Thus, according to Regulation 16, rescission ab initio is generally not permitted for Rhode Island automobile liability insurance policies.

Moreover, Regulation 16, sections 4, 5 and 6, prescribe the grounds for cancellation and non-renewal of automobile policies and the required notices. Specifically excluded is liability insurance policies issued through the Rhode Island Insurance Plan. The court will not presume that this omission was inadvertent.

The Rhode Automobile Insurance Plan Handbook and Rhode Island Department of Business Regulation provide further guidance as to the rules of cancellation and rescission of the insurance policy here. Section 15 (B) (g) (2) of the Rhode Automobile Insurance Plan Handbook states that rescission is only allowed to the extent permitted by law. The Rhode Island Department of Business Regulation also addressed this issue in Insurance Bulletin 2003-3, dated January 31, 2003, and provided as follows:

It is the Department’s position that the common law right of rescission of contracts has been preempted by the enactment of the Motor Vehicle Reparations Act R.I. Gen. Laws § 31-47-1 et seq. with regard to automobile liability insurance. Therefore, an insurer may not rescind an automobile liability insurance policy on any ground which may have been available at common law. In cases where automobile liability is one of a number of coverages in the policy, the automobile liability portion is severed from the remainder of the policy for this purpose and the remainder of the policy is subject to rescission pursuant to the legal requirements for such action. This position does not affect an insurer’s ability to prospectively cancel an Automobile Liability policy in accordance with all statutes and Regulation governing cancellation (2003 WL 25270929 [RI INS BUL]).

Therefore, it is apparent that Rhode Island has elected not to terminate automobile liability insurance policies retroactively even when procured by material misrepresentations. As such, the automobile liability insurance policy here may not be rescinded ab initio.

Accordingly, plaintiffs are entitled to judgment. The Clerk of the Court shall enter judgment in favor of 37th Avenue Medical, P.C. in the amount of $1,903.68, Elective Acupuncture, P.C. in the amount of $2,472.53, and AKA Chiropractic, P.C. in the amount of $526.54. In addition, plaintiffs shall each be compensated for costs, statutory interest, and attorney’s fees.

This constitutes the decision and order of the court.

____________________

Hon. Reginald A. Boddie

Acting Supreme Court Justice

Decided on August 26, 2015

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

CV-003151-14

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, Attorneys for Plaintiff, 1111 Marcus Avenue, Suite LL26, Lake Success, New York 11042, 516-248-2929; Law Office of Printz & Goldstein, Attorneys for Defendants, 170 Froehlich Farm Blvd., Woodbury, New York 11042, 516-714-7274.

The following named papers numbered 1 to 2

submitted on this Motion on June 30, 2015

papers numbered

Notice of Motion and Supporting Documents1Notice of Cross Motion and Supporting Documents2

Opposition to Motion

Reply Papers to Motion

The petitioner moves for an order granting summary judgment in favor of the plaintiff, VILLAGE CHIROPRACTIC, for the recovery of No-Fault benefits for services rendered by the plaintiff to plaintiff’s assignor, IRIZARRY, KENNY, in the amount of $4,057.55, upon the grounds that there are no triable issues of fact and no merit to any of the defenses raised by GEICO. The defendant, GEICO, cross-moves for summary judgment.

On 10/1/10 the plaintiff’s assignor, IRIZARRY, KENNY, was involved in a motor vehicle accident and was entitled to No-Fault benefits under GEICO’s policy. On 10/5/10 the plaintiff’s assignor, IRIZARRY, KENNY, visited the medical offices of the [*2]plaintiff, VILLAGE CHIROPRACTIC, and began to receive treatment for injuries sustained in the motor vehicle accident on 10/1/10. The plaintiff’s assignor, IRIZARRY, KENNY, received medical treatments from the plaintiff, VILLAGE CHIROPRACTIC, from 10/5/10 to 6/7/11 about twice a week. With the exception of one claim for $202.20 received by the defendant, GEICO, on 1/24/11 that was denied because its submission was past the requisite 45-day period, the defendant, GEICO, paid either in full or a reduced amount, allegedly in accordance with fee schedules, for all claims submitted between 10/5/10 and 1/7/11. On 1/4/11 the plaintiffs assignor, IRIZARRY, KENNY, appeared for three independent medical examinations as requested by the defendant, GEICO. Each examination was conducted by separate doctors; Thomas P. Nipper, M.D., a board certified orthopedic, Robert Snitkoff, D.C., a N.Y.S. licensed chiropractor, and Irina Rimel, L.Ac, a N.Y.S. licensed acupuncturist. The affirmed reports of each doctor concluded that the plaintiff’s assignor, IRIZARRY, KENNY, no longer required any medical attention from injuries sustained in the motor vehicle accident on 10/1/10. The defendant, GEICO, notified all known providers and ceased all benefits on 1/7/11 due to lack of medical necessity. The plaintiffs assignor, IRIZARRY, KENNY, continued to receive treatment from the plaintiff, VILLAGE CHIROPRACTIC, until 6/7/11 and all claims submitted by the plaintiff, VILLAGE CHIROPRACTIC, to the defendant, GEICO, were denied due to lack of medical necessity and for not being in accordance with fee schedules.

Summary judgment should only be granted when there are no triable issues of fact (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. Failure to make such prima facie showing requires denial of motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce admissible evidentiary proof that establishes the existence of material issues of fact, which necessitates a trial (see Zuckerman v. New York, 49 NY2d 557 [1980]). The issues at hand in this case have been separated and ruled on separately.

On 1/24/11 the defendant, GEICO, received a claim in the amount of $202.20 from the plaintiff, VILLAGE CHIROPRACTIC, for services rendered to the plaintiff’s assignor, IRIZARRY, KENNY, on 10/26/10. NY Insurance law states that no claim should be submitted later than 45 days after the date services are rendered (see 11 NYCRR 65-1.1). Plaintiff, VILLAGE CHIROPRACTIC, failed to comply with the No-Fault regulations and summary judgment is denied with respect to the claim of $202.20. (see NY Arthroscopy & Sports Medicine PLLC v. Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89, 836 N.Y.S.2d 753 [App Term, 1st Dep’t 2007]).

On 1/4/11 plaintiff’s assignor, IRIZARRY, KENNY, appeared for three independent medical examinations as requested by the defendant, GEICO. Each doctor concluded and affirmed that the plaintiff’s assignor, IRIZARRY, KENNY, needed no further medical attention for the injuries sustained in the motor vehicle accident on [*3]10/1/10. On 1/7/11 the defendant, GEICO, ceased all No-Fault benefits and subsequent claims forms were denied. The defendant, GEICO, properly cut off all payments based on the I.M.E. reports establishing lack of medical necessity. It was then incumbent upon the plaintiff to refute the I.M.E. reports conclusion in his affidavit. The defendant is mistaken when they alleged, “an affidavit or affirmation of a party who is a principal of an action must be disregarded”. An affidavit would be sufficient if the owner Frederick Giovanelli, D.C., commented on the issue of medical necessity. However, a review of the affidavit of Frederick Giovanelli, D.C. does not refute the defendants, GEICO, medical examiners’ reports. Defendant, GEICO, established prima facie case of lack of medical necessity based on I.M.E. that remain unanswered by plaintiff, VILLAGE CHIROPACTIC. Partial summary judgment is, therefore, awarded to the defendant, GEICO (see MIA Acupuncture, P.C. V. PRAETORIAN Ins. Co., 35 Misc 3d 69, 946 N.Y.S.2d 395 [App. Term, 2nd, 11th and 13th Jud. Dists. 2011]).

From 10/29/10 to 1/7/11 the defendant, GEICO, received multiple claims forms from the plaintiff, VILLAGE CHIROPRACTIC, five of which were reduced and then paid based on applicable fee schedule’. An affidavit from defendants, GEICO, claims examiner, Greer Carty, demonstrates that these claims were reduced based on applicable fee schedule’, however, this alone is not sufficient to establish defendants claim that “The billed amount is over the allowable charge pursuant to the NY Fee Schedule and pursuant to article 51 section 5108,” as set forth in Geico’s denial (see MIA Acupuncture, P.C. v. PRAETORIAN Ins. Co., supra,). Plaintiff’s complaint states that the billed amounts were within applicable fee schedules under Workers’ Compensation Law and that the reason for denial is without merit. The court finds issues of fact requiring trial on the claim regarding fee schedules.

The plaintiff’s motion for summary judgment and the defendants cross motion for summary judgment are decided as follows; all claims set forth by the plaintiff are dismissed with prejudice except the five claims that were reduced by the defendant, GEICO, on the basis of applicable fee schedule because issues of fact exist requiring a trial.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:August 17, 2015

cc:Abram, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP

Law Office of Printz & Goldstein

SF/mp