Law Office of Aloy O. Ibuzor (Janice A. Robinson of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered September 6, 2019. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint on the ground that the action was premature as plaintiff had failed to respond to defendant’s timely requests for additional verification. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered September 6, 2019, insofar as appealed from as limited by the brief, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing the complaint and granted plaintiff’s cross motion.

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that it had not received the requested verification. However, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to raise an issue of fact as to whether the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). As a result, there is an issue of fact as to whether plaintiff’s action is premature.

Accordingly, the order, insofar as appealed from, is modified by providing that plaintiff’s cross motion for summary judgment is denied.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, September 30, 2022

APPEARANCES OF COUNSEL

Law Offices of Buratti, Rothenberg & Burns for defendant.

Law Offices of Zara Javakov Esq., P.C. for plaintiff.

Defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.

This action was brought for the recovery of no-fault benefits under New York State law. The underlying facts are not in dispute. Plaintiff is a provider of medical benefits and the assignee of Shaquasia Partlow, the passenger of a motor vehicle involved in an accident that occurred on May 6, 2019, in the State of Florida. On or about May 23, 2019, in response to a letter of representation from plaintiff’s attorney, nonparty Progressive Express Insurance Company sent a letter to plaintiff’s counsel which confirmed that Progressive had issued a policy for the vehicle and driver. The letter had a header which included a section entitled “Name of Insured,” and which listed Shaquasia Partlow. The letter stated, in bold type, “[T]here are no coverage issues at this time.” The letter also notified plaintiff’s counsel that the vehicle “may have additional insurance with Farmers” and provided a policy number.

Defendant Farmers Insurance also issued a policy covering the vehicle and was similarly informed of the accident. On June 21, 2019, Farmers sent Ms. Partlow a letter which informed her that she did not qualify for personal injury protection under Farmers’ policy for this accident.

Farmers’ letter noted that the vehicle was being used as an Uber ride sharing vehicle at [*2]the time of the accident.^[FN1] As the letter further explained, Farmers’ policy was for personal, noncommercial use only. Under the Farmers policy express terms, insured persons did not include any person in the vehicle while the vehicle was engaged in a commercial ride sharing{**77 Misc 3d at 222} activity. The letter further advised that any claims for service should be directed to Ms. Partlow’s Uber claim or her personal health insurance carrier. The June 21, 2019 letter did not claim that payment of no-fault claims was the responsibility of Progressive or any other insurer.

On July 24, 2019, assignor sought medical benefits from plaintiff. Despite both aforementioned letters, on July 30, 2019, plaintiff sought payment for the services from Farmers. Farmers denied those claims by letter dated August 8, 2019, stating that plaintiff’s assignor was “not eligible for benefits under this policy.” Farmers gave no additional reason or explanation for the denial and did not claim that no-fault benefits were the responsibility of Progressive or any other insurer.

This action was commenced on or about August 26, 2019. On July 22, 2020, defendant filed a motion for summary judgment to dismiss the complaint on the basis that plaintiff’s assignor was not covered by defendant’s policy. On December 30, 2020, plaintiff filed a cross motion for summary judgment for the amount stated in the complaint, $846.69, plus statutory interest and attorneys’ fees, pursuant to CPLR 3212.

Defendant, in support of its own motion and in opposition to the cross motion, submitted the affidavit of its claims supervisor, Vincent D’Ugo, a certified copy of defendant’s policy at issue, and the correspondence from Progressive of May 23, 2019. Also attached as exhibits were Farmers’ June 21, 2019 letter to the assignor and the August 8, 2019 letter to plaintiff in which it had stated that its claims were not covered by its policy.

Defendant argued that plaintiff, as assignee of Ms. Partlow, was not entitled to reimbursement under defendant’s policy because the vehicle in the accident was being used as an Uber ride sharing vehicle at that time. As defendant’s coverage was solely for personal use and not commercial use of the vehicle, any persons injured or any property damaged were not covered, as the accident was not an insured incident under the policy.

Plaintiff, in its cross motion, argued that it had established its prima facie case by proving the submission of its claim to Farmers and Farmers’ nonpayment of that claim. In support, plaintiff submitted the affirmation of an employee familiar with the billing procedures used for this claim. Plaintiff also argued that it should also prevail on its cross motion because defendant, in its opposition to the cross motion, failed to submit sufficient evidence showing that defendant had timely denied that claim. Plaintiff did acknowledge receipt of the denial.{**77 Misc 3d at 223}

In opposition to defendant’s motion and in further support of its own cross motion, plaintiff cited 11 NYCRR 65-4.11 (a) (6), and argued that as the first insurer billed, Farmers was responsible to pay the claim submitted to it, and then arbitrate with Progressive the issue of who was responsible for coverage of the claim.

Insurance Law § 5106 (d) (1), which creates the obligation for the first-billed insurer to pay and then arbitrate, provides:

“[W]here there is reasonable belief more than one insurer would be the source of first [*3]party benefits, the insurers may agree among themselves, if there is a valid basis therefor, that one of them will accept and pay the claim initially. If there is no such agreement, then the first insurer to whom notice of claim is given shall be responsible for payment. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section five thousand one hundred five of this article and regulations as promulgated by the superintendent, and any insurer paying first-party benefits shall be reimbursed by other insurers for their proportionate share of the costs of the claim and the allocated expenses of processing the claim, in accordance with the provisions entitled ‘other coverage’ contained in regulation and the provisions entitled ‘other sources of first-party benefits’ contained in regulation.”

Insurance Law § 5105 (b) further states that “all disputes arising between insurers concerning their responsibility for the payment of first party benefits” shall be submitted to mandatory arbitration.

11 NYCRR 65-4.11 (a) (6) regulates the mandatory arbitration called for by the Insurance Law. However, it specifically states that “this section shall not apply to any claim for recovery rights to which an insurer in good faith asserts a defense of lack of coverage of an alleged covered person on any grounds.”

Farmers has established its defense of lack of coverage in this case. Plaintiff does not dispute that the vehicle in question was being used for a ride sharing service at the time of the accident. It is also not disputed that only insured persons (as defined in the Farmers policy) were covered and that a person injured while using the vehicle as a part of a commercial ride sharing program was not covered as an insured person. Indeed,{**77 Misc 3d at 224} in its papers, plaintiff does not advance any reason as to why Farmers was incorrect in disclaiming coverage, nor explain why Ms. Partlow should have been covered as an insured person. As such, the provisions of 11 NYCRR 65-4.11 (a) (6) do not apply under the regulation’s own terms, and the issue is not subject to mandatory arbitration (see e.g. RX Warehouse Pharm. Inc. v Erie Ins. Exch., 63 Misc 3d 1236[A], 2019 NY Slip Op 50905[U] [Civ Ct, Kings County 2019]). As coverage was not included for this accident under the terms of the policy, the lack of coverage denial was proper.

Further, the relevant statutes and regulations consistently provide that if there is a “dispute” or “controversy” between the insurers, the claims between said disputing insurers are subject to mandatory arbitration.^[FN2] Similarly, Insurance Law § 5106 (d) (1) states that

“where there is reasonable belief more than one insurer would be the source of first party benefits, the insurers may agree among themselves, if there is a valid basis therefor, that one of them will accept and pay the claim initially. If there is no such agreement, then the first insurer to whom notice of claim is given shall be responsible for payment.”

In this case there were no disputes or controversies between insurance companies, nor was there any reasonable basis for submission to Farmers in July 2019. In May 2019, Progressive wrote that Ms. Partlow was an insured and there were no issues with coverage at this time. In June 2019, prior to plaintiff providing benefits, Farmers informed Ms. Partlow that they would not be providing coverage as the accident was not covered. Hence, the mandatory arbitration regulations for situations where there is a dispute and controversy are not applicable.

Plaintiff’s reliance on M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co. (81 AD3d 541 [1st Dept 2011]) is unavailing. In that case, the Appellate Division held that GEICO’s denial of coverage defense was invalid and the matter was subject to mandatory arbitration. However, in M.N. Dental Diagnostics the Court held that case involved an intercompany dispute, because the defendant had denied plaintiff’s claim on the stated ground that no-fault benefits were payable by another insurer (id.). By pointing to another insurer, the Court held that defendant had raised an issue as to which insurer{**77 Misc 3d at 225} was obligated to pay first-party benefits. Thus, M.N. Dental Diagnostics was a “controversy between insurers involving the responsibility or the obligation to pay first-party benefits,” which the regulation states is “not considered a coverage question.” (11 NYCRR 65-4.11 [a] [6].)

In contrast, here, defendant did not deny plaintiff’s claims on the grounds that another insurer, such as Progressive, was responsible. Rather, Farmers solely denied the claim on the basis that the accident was not covered under the terms of the Farmers policy, a claim supported by the evidence Farmers submitted in support of its motion. Under such circumstances, there is no “controversy between insurers” under 11 NYCRR 65-4.11 (a) (6) that would be subject to mandatory arbitration.

In fact, in the underlying Appellate Term’s decision in M.N. Dental Diagnostics, the court offers additional details:

“GEICO’s argument that its denial of benefits raised an issue of coverage because it was not ‘otherwise liable’ for the payment of first-party benefits (see 11 NYCRR 65-3.12 [b]) is unavailing, since it ignores the endorsements contained in its own insurance policy, which expressly provided Burgos with rental and substitute automobile coverage. Where, as here, more than one insurance policy provides coverage for a no-fault claim, the issue becomes one of priority of payment.” (M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co., 24 Misc 3d 43, 44-45 [App Term, 1st Dept 2009].)

Hence, in M.N. Dental Diagnostics, P.C., not only was there a dispute between insurers, there was also a valid basis for a reasonable belief that more than one insurer could be the source of first-party benefits, as GEICO had possibly provided the assignee with coverage. Thus, in that case there was a real question as to which insurance company was responsible, and as to the priority of payment. Here, in July 2019, by the time the services were provided, there was no question, nor a valid basis for a reasonable belief, that Farmers had coverage, nor was there a question of priority.

Finally, the Court of Appeals has discussed several factors when considering questions of whether a defense is in fact based on lack of coverage and related timeliness or notice issues. Guidance includes whether: (a) the claim would create coverage where none existed; (b) the asserted defense is more like a “normal” exception from coverage, or a lack of coverage{**77 Misc 3d at 226} in the first instance; and (c) the denial of liability based upon lack of coverage within the insurance agreement is distinguishable from disclaimer attempts based on a breach of a policy condition (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]).

Here, there has been no argument presented that this was either a covered accident under the Farmers policy, or that the assignor was in fact covered by Farmers. Hence, requiring Farmers to make a payment would be creating coverage. In addition, prior to the services being sought, assignor’s counsel had notice that Progressive would provide coverage, and assignor had [*5]knowledge that Farmers would not. Accordingly, this court cannot impose coverage where none existed. It is therefore ordered that defendant’s motion for summary judgment is granted, and it is further ordered that plaintiff’s cross motion for summary judgment is denied, and it is further ordered that this matter is dismissed.

Footnotes

Footnote 1:Plaintiff’s opposition to defendant’s motion fails to rebut or even deny this, and correspondence defendant received from Uber in February of 2020 and annexed to its motion papers further confirms that the vehicle was engaged in a ride sharing activity at the time of the accident.

Footnote 2:See Insurance Law § 5105; 11 NYCRR 65-4.11 (a).

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Correia, Conway & Stiefeld, White Plains (Nicole M. Bynum of counsel), for respondents.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about October 7, 2021, which granted plaintiff insurers’ motion for summary judgment to the extent of declaring that defendant medical providers are not entitled to any no-fault benefits under claimant-defendant Sandra Valera’s automobile insurance policy, unanimously reversed, on the law, without costs, the motion denied, the declaration vacated, and the matter remanded for further proceedings consistent with this decision.

In June 2019, the claimant was injured in a collision involving a vehicle that she insured under an automobile insurance policy issued by plaintiff insurers. The policy included an endorsement entitling the claimant to receive payment for accident-related medical expenses, and entitling her treating medical providers to collect her assigned no-fault benefits. In January 2020, the insurers filed this action for a declaration of no-coverage and an injunction barring defendant medical providers from seeking any no-fault reimbursement under the claimant’s automobile insurance policy. The insurers alleged that the claimant had intentionally and materially misrepresented her home address in procuring the policy, as the proper policy address was not the Wappingers Falls address she had stated, but rather, an address in the Bronx.

The insurers submitted undisputed evidence that the claimant misrepresented her address based on her testimony at the examination under oath (EUO). However, the insurers failed to establish, as a matter of law, that the alleged misrepresentation as to the correct address was a material misrepresentation. The affidavit of the insurers’ underwriter is conclusory and not supported by relevant documentary evidence such as underwriting manuals, rules, or bulletins (see 463 Saddle Up Tremont LLC v Union Mut. Fire Ins. Co., 205 AD3d 511, 511-512 [1st Dept 2022]; BX Third Ave. Partners, LLC v Fidelity Natl. Tit. Ins. Co., 112 AD3d 430, 430 [1st Dept 2013]; Feldman v Friedman, 241 AD2d 433, 434 [1st Dept 1997]). We therefore deny the insurers’ motion for summary judgment without prejudice and remand the matter for further discovery concerning the insurers’ claim and underwriting practices and guidelines. Concur—Webber, J.P., Kern, Singh, Moulton, Shulman, JJ.

Decided on September 23, 2022

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

Decided on September 23, 2022

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

Robyn M. Brilliant, P.C. (Tori Y. Buttrum of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered December 3, 2019. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff’s assignor failed to appear for scheduled independent medical examinations.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff’s assignor failed to appear for scheduled IMEs.

Contrary to the determination of the Civil Court, defendant demonstrated that, before it [*2]had received the claim at issue, it properly scheduled IMEs of plaintiff’s assignor, and that the assignor failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant also demonstrated that it timely denied the claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), based upon the assignor’s failure to appear for the IMEs. An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722).

Plaintiff’s remaining argument is not properly before this court as it is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 25, 2019. The order, insofar as appealed from, denied defendants’ motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendants appeal from so much of an order of the Civil Court as denied defendants’ motion which had sought summary judgment dismissing the complaint on the ground, among others, that the action was barred by the statute of limitations.

In support of a cross motion for summary judgment, plaintiff submitted an affidavit by plaintiff’s owner who asserted that the subject claim forms were submitted to defendants on or before October 20, 2007, that the claims had not been paid, and that statutory interest was to be computed as of 30 days after each claim’s submission. Consequently, the payment due date, as implicitly alleged by plaintiff in its complaint and in the affidavit by plaintiff’s owner, must be deemed to have been in November 2007, that is, 30 days after defendants’ receipt of the claims (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; Shtarkman v MVAIC, 20 Misc 3d 132[A], [*2]2008 NY Slip Op 51447[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Plaintiff did not commence this action until 2018, after the six-year statute of limitations for contract actions, which is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), had expired. As plaintiff raised no issue of fact as to the timeliness of the action, defendants’ motion to dismiss based on the statute of limitations should have been granted (see A.M. Med., P.C. v Continental Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50389[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 2, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through tenth causes of action are denied, and the branch of plaintiff’s motion seeking summary judgment on the first cause of action is granted; as so modified, the order is affirmed, without costs.

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

Defendant denied the claim underlying the first cause of action on the ground that written instructions for physical therapy should have been included in plaintiff’s assignor’s medical records for services billed under CPT code 97001 of the workers’ compensation fee schedule. However, as plaintiff argues, defendant did not request any additional verification from plaintiff seeking the information it felt it required in order to review this claim. Consequently, defendant was not entitled to summary judgment dismissing the first cause of action, and, under the circumstances presented, the branch of plaintiff’s motion seeking summary judgment on that [*2]cause of action should have been granted (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51452[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 175 AD3d 455 [2019]).

With respect to the second cause of action, contrary to plaintiff’s contention, plaintiff’s conclusory assertion that it never received the check defendant had mailed to pay this claim was insufficient to raise a triable issue of fact (see Matter of Rodriguez v Wing, 251 AD2d 335 [1998]).

With respect to the third through tenth causes of action, plaintiff correctly argues that defendant failed to show, as a matter of law, that the independent medical examination (IME) scheduling letters were properly addressed and generated pursuant to the standard practices and procedures of its IME scheduling vendor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Moreover, the affirmation from the doctor who was scheduled to perform the IMEs did not establish that he possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs. In addition, defendant failed to establish, as a matter of law, that the amounts charged in these claims were improperly billed or in excess of the amounts permitted by the workers’ compensation fee schedule. Therefore, defendant failed to establish its entitlement, as a matter of law, to summary judgment dismissing the third through tenth causes of action (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 128[A], 2016 NY Slip Op 50922[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

However, plaintiff failed to establish its prima facie entitlement to summary judgment upon the third through tenth causes of action, as plaintiff did not establish either that defendant failed to timely deny the claims (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Thus, the branches of plaintiff’s motion seeking summary judgment on these causes of action were properly denied.

Accordingly, the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through tenth causes of action are denied, and the branch of plaintiff’s motion seeking summary judgment on the first cause of action is granted.

ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.

Index No.: CV-700046-20/QU

Plaintiff’s counsel: Law Offices of Gabriel & Shapiro LLC, 3361 Park Avenue Suite 1000, Wantagh, NY 11793

Defendant’s counsel: Rivkin Radler LLP, 926 RexCorp Plaza, Uniondale, NY 11556

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint:

II. Background

In a summons and complaint filed July 12, 2018, Defendant commenced an action in Supreme Court, Nassau County (“Supreme Court Action“) against Plaintiff seeking a judgment declaring that Defendant owed no duty to pay Plaintiff’s No-Fault claims because Plaintiff failed to appear for scheduled examinations under oath (“EUO“) (see Motion, Aff. of Pontrello, Ex. 3). In a summons and complaint filed January 2, 2020, Plaintiff sued Defendant insurance company to recover $346.52 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Martinez from September 8 to 27, 2017, for injuries sustained in an automobile accident, plus attorneys’ fees and statutory interest (see Motion, Pontrello Aff., Ex. 1). Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that the action is barred by res judicata. Plaintiff did not oppose Defendant’s motion.

III. Discussion

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, [*2]111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Simmons v Trans Express Inc., 37 NY3d at 111; O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]). Here, Defendant relied on an order dated October 4, 2019 (“Supreme Court Order“) in the Supreme Court Action, in which Supreme Court denied Plaintiff’s motion to compel arbitration, finding that Plaintiff “failed to satisfy the requirement of insurance coverage by appearing for the examination under an oath as noticed by” Defendants (State Farm Mut. Auto. Ins. Co. v Fine Needle Acupuncture, PC, Sup. Ct. Nassau County, October 4, 2019, Brandveen, J., Index No. 609282/18; Motion, Pontrello Aff., Ex. 4). Since the Supreme Court Order was not an order granting Defendant a default judgment, as Defendant erroneously contended, here, Defendant failed to demonstrate that res judicata bars the present action.

Nevertheless, the related concept of collateral estoppel bars Plaintiff’s action. Collateral estoppel or issue preclusion prevents re-litigation of a factual or legal issue actually raised and resolved in a prior court determination (Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64, 72 [2018]; Buechel v Bain, 97 NY2d 295, 303 [2001]; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 152 [2d Dept 2021]; Coleman v J.P. Morgan Chase Bank N.A., 190 AD3d 931, 931-32 [2d Dept 2021]). In order to apply collateral estoppel, “there must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d at 303-04; Coleman v J.P. Morgan Chase Bank N.A., 190 AD3d at 932). In our instant case, both factors have been established. In the Supreme Court Action, Supreme Court found that Plaintiff failed to appear for the scheduled EUOs and did not challenge that Defendant requested the EUOs and had a valid reason for requesting them. It is well settled that noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Since Plaintiff is collaterally estopped from raising the issue of its non-attendance of the EUOs in the instant matter and Defendant presented evidence that it had timely denied Plaintiff’s claim based on Plaintiff’s failure to attend the EUOs (see Motion, Pontrello Aff., Ex. A), Defendant here is entitled to dismissal of Plaintiff’s complaint.

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for summary judgment is granted without opposition and Plaintiff’s complaint is dismissed; and it is further

ORDERED that the part clerk is directed to dispose the index number for all purposes.

This constitutes the Decision and Order of the court.

Index No. CV-725161-20/QU

Plaintiff’s counsel:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302
Rockville Center, NY 11570

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion in its claims:

Defendant’s Notice of Motion and Affirmation in Support dated April 4, 2021 (“Motion“) and filed with the court on April 26, 2021. 1
Plaintiff’s Cross-Motion and Affirmation in Support dated August 4, 2021 (“Cross-Motion“) and electronically filed with the court on the same date. 2
Defendant’s Affirmation in Opposition dated December 27, 2021 (“Opposition“) and electronically filed with the court on December 30, 2020. 3

In a summons and complaint filed on December 18, 2020, Plaintiff commenced action against Defendant insurance company to recover a total of $1,359.40 in unpaid first party No-Fault benefits for medicine prescribed to Plaintiff’s assignor Viera on September 24, 2020, plus attorneys’ fees and statutory interest (see Motion, Aff. of O’Shea, Ex. A). Defendant moved for summary judgment dismissing the complaint on the grounds that Plaintiff lacked standing, and alternatively that Defendant timely denied Plaintiff’s claim based on lack of medical necessity. Plaintiff cross-moved for summary judgment on its claim against Defendant. An oral argument by both parties was conducted by this Court.

III. Discussion and Decision

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

Defendant contended that Plaintiff lacked standing to bring action on its claim for No-Fault benefits provided to Viera and alternatively that the treatment Plaintiff provided to Viera was not medically necessary. Defendant argued Plaintiff lacked standing because the assignment of benefits was executed by Viera, who was a minor. Here, even assuming that it was improper for a minor to execute an assignment of benefits as Defendant contended (see 11 NYCRR 65-3.11[a]), Plaintiff presents prima facie entitlement to No Fault benefits by presenting an assignment of benefits form where Defendant fails to timely seek verification of the assignment’s validity (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007], see Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co., 46 Misc 3d 129[A], 2014 NY Slip Op 51810[U] *1 [App Term 2d Dept 2014]). Moreover, Defendant’s failure to timely object to the assignment waived any defenses based on any deficiencies in the assignment (Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348 [2d Dept 2005]; St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50488[U] *2 [App Term 2d Dept 2010], see Beal-Medea Prods., Inc. v Geico Gen. Ins. Co., 51 Misc 3d 138[A], 2016 NY Slip Op 50594[U] *1 [App Term 2d Dept 2016]).

Regarding medical necessity, Defendant’s denial on that ground must completely and clearly state the reason for denial of the claim and apprise Plaintiff of the grounds upon which [*2]disclaimer is based (Olympic Chiropractic, P.C. v American Tr. Ins. Co., 14 Misc 3d 129[A], 2007 NY Slip Op 50011[U] *1 [App Term 2d Dept 2007]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] *1 [App Term 2d Dept 2003], see Delta Diagnostic Radiology, P. C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 126[A], 2006 NY Slip Op 52370[U] *2 [App Term 2d Dept 2006], see e.g., Promed Durable Equip., Inc. v GEICO Ins., 41 Misc 3d 19, 21 [App Term 2d Dept 2013]). To support the contention that the prescribed medication was not medically necessary, Defendant presented the affirmation of Agrawal, M.D., dated November 3, 2020. Dr. Agrawal attested that Viera “was prescribed Lidocaine 5% ointment by Dr. Hausknecht, which was not medically necessary and not causally related as it is not supported by enough evidence. Lidocaine is questionable in a 15-year-old [sic] as efficacy, especially given the side effects of cardiac arrythmia and seizures. Her pain seems to be causally related, but I question this aggressive testing and treatment in a 15 year old child” (Motion, O’Shea Aff., Ex. C at 6). Dr. Agrawal’s opinion that the medication prescribed was not medically necessary was entirely conclusory (see Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1). In addition, while Dr. Agrawal addressed the advisability of the medication prescribed for Plaintiff, nowhere did Dr. Agrawal state that such treatment was unnecessary. Therefore, Defendant’s denial on the ground of medical necessity was factually insufficient and may not be raised as a defense to Plaintiff’s claim (see Olympic Chiropractic, P.C. v American Tr. Ins. Co., 2007 NY Slip Op 50011[U] *2; Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1-2).

Regarding Plaintiff’s Cross-Motion, Plaintiff’s sole contention was that Defendant’s payment or denial of Plaintiff’s claim was untimely. Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term 2d Dept 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Here, Plaintiff pointed to its bill and Defendant’s denial of claim form which indicated that Defendant received Plaintiff’s bill for $1,359.40 on October 28, 2020 (see Motion, O’Shea Aff., Ex. C). A denial of claim form, however, is insufficient to establish a medical provider’s prima facie case but suffices to establish Defendant’s receipt of Plaintiff’s claim and nonpayment of that claim (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). Although Defendant’s denial of claim form established Defendant’s timely denial of the claim, as discussed above, Defendant failed to establish the lack of medical necessity of prescribed medication upon which Plaintiff based its claim (Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1). Therefore, Plaintiff has demonstrated entitlement to summary judgment on its claim (see Olympic Chiropractic, P.C. v American Tr. Ins. Co., 2007 NY Slip Op 50011[U]*2; Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1).

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint (Motion Seq. #1) is denied; and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant (Motion Seq. #2) is granted; and it is further

ORDERED that the Clerk shall enter judgment in Plaintiff’s favor and against Defendant in the amount of $1,359.40 together with statutory interest from October 28, 2020 and statutory attorneys’ fees.

This constitutes the court’s Decision and Order