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

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered November 4, 2019. The order insofar as appealed from, denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.

ORDERED that so much of the appeal as is by Omni Indemnity Company is dismissed, as Omni Indemnity Company is not aggrieved by the order, insofar as appealed from (see CPLR 5511; Rinaldi v Evenflo Co., Inc., 62 AD3d 856 [2009]); and it is further,

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted; 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, defendants appeal from so much of an order as denied the branches of defendants’ joint motion seeking to dismiss so much of the complaint as was asserted against defendants American Independent Ins. [*2]Co., American Independent Insurance Companies, Inc., and Good2Go Auto Insurance, respectively.

Defendants based their motion on CPLR 3211 (a) (8). In multiple affidavits in support of the motion, defendant American Independent Ins. Co.’s employees asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no agents operating out of, or representatives soliciting business in, New York, and does not own, use or possess any real property in New York. Furthermore, defendant American Independent Ins. Co. argued that it had been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over it (see e.g. Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005]). Plaintiff cross-moved for summary judgment and opposed the motion with an “affirmation” by its counsel, who made unsupported assertions that, among other things, defendant American Independent Ins. Co. had transacted business in New York by knowingly issuing policies to New York drivers, and that American Independent Ins. Co. had established an ongoing relationship with defense counsel in New York, thereby subjecting American Independent Ins. Co. to jurisdiction in New York. For the reasons stated in Excel Prods., Inc. v American Ind. Ins. Co. (65 Misc 3d 157[A], 2019 NY Slip Op 51964[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), the branch of the motion by defendant American Independent Ins. Co. seeking to dismiss the complaint insofar as asserted against it should have been granted. In addition, because the “affirmation” submitted by plaintiff’s counsel is unsigned, the affirmation is of no probative value (see WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50146[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]) and plaintiff failed to satisfy its burden of making a prima facie showing that there was personal jurisdiction over American Independent Ins. Co. (see Hopstein v Cohen, 143 AD3d 859 [2016]).

Similarly, after defendant American Independent Insurance Companies, Inc. contested jurisdiction, “plaintiff need[ed] only make a prima facie showing that such jurisdiction exists” (Hopstein, 143 AD3d at 860 [internal quotation marks omitted]; see also Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008]). In the instant case, the only proof that service of process was made upon American Independent Insurance Companies, Inc. consisted of affidavits of service stating that service was made upon defendant Good2Go Auto Insurance. Consequently, the branch of the motion by defendant American Independent Insurance Companies, Inc. seeking to dismiss the complaint insofar as asserted against it should have been granted.

To the extent defendant Good2Go Auto Insurance moved to dismiss the complaint insofar as asserted against it, plaintiff’s opposition papers contained copies of affidavits of service reflecting that service was made upon Good2Go Auto Insurance. In its reply papers, Good2Go Auto Insurance made no attempt to demonstrate that the person served was not “an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service” (CPLR 311 [1]). As a result, Good2Go Auto Insurance failed to demonstrate a basis to disturb so much of the order as denied the branch of the motion by defendant Good2Go Auto Insurance seeking to dismiss the complaint insofar as asserted against it.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of the motion seeking to dismiss so much of the complaint as was asserted against [*3]American Independent Ins. Co. and American Independent Insurance Companies, Inc., respectively, are granted.

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

Index No. 654090/2020

Correia, Conway & Stiefeld, White Plains, NY (Richard Ahrens of counsel), for plaintiff.

Law Office of Gregory A. Goodman, P.C., Jericho, NY (Gregory Goodman of counsel), for defendant NYC Axis Chiropractic PC.

Gerald Lebovits, J.

In this no-fault insurance coverage action, plaintiffs Liberty Mutual Insurance Company and American States Insurance Company (together, Liberty Mutual) move for default judgment against the eligible injured person, defendant Edwine Brutus; and against non-appearing defendants I Am Supplies Inc., MZY Acupuncture PC, Nexray Medical Imaging PC, Sedation Vacation Perioperative Medicine PLLC and Way to Rehab PT PC, all medical-provider assignees of Brutus.

Appearing defendant NYC Axis Chiropractic PC cross-moves for summary judgment against Liberty Mutual. NYC Axis also cross-moves for sanctions, on the ground that Liberty Mutual erroneously named it in the initial default judgment motion and then failed to withdraw the motion quickly enough as against NYC Axis.

Liberty Mutual’s unopposed motion for default judgment is granted. The branch of NYC Axis’s cross-motion seeking sanctions is denied. The branch of NYC Axis’s cross-motion for summary judgment is granted in part and denied in part.

DISCUSSION

I. Liberty Mutual’s Default-Judgment Motion

To obtain default judgment under CPLR 3215, a movant must establish proper service on the subjects of the motion, defaults by those parties, and the facts constituting movant’s claim. Here, Liberty Mutual has established proper service and defaults. Additionally, Liberty Mutual has established, through affidavits and supporting documentation, the facts constituting its claim.

In particular, Liberty Mutual has shown that it timely asked Brutus to appear for an examination under oath (EUO) about whether he had been truthful and accurate on his application for insurance (see NYSCEF No. 24 [EUO scheduling letters]). Liberty Mutual has also demonstrated that Brutus appeared for his EUO but failed to respond fully to timely served post-EUO document requests. (See NYSCEF No. 27 [EUO transcript]; NYSCEF No. 28 [post-[*2]EUO document requests].) Liberty Mutual has provided an affidavit from one of its investigators representing that her investigation, coupled with Brutus’s EUO testimony, indicated he lived at a different address from the one he had used on his application. (NYSCEF No. 23.) And Liberty Mutual has provided an affidavit from one of its underwriters representing that had Brutus provided his true home address on the insurance application, the premium would have been almost double what he was charged. (NYSCEF No. 29.)

These facts, taken together, suffice to establish a prima facie case that Brutus committed a material misrepresentation in applying for insurance from Liberty Mutual. (See Starr Indem. & Liab. Co. v Monte Carlo, LLC, 190 AD3d 441, 441-442 [1st Dept 2021] [“A misrepresentation in an insurance application is material . . . if, had the true facts been known, either the insurer would not have issued the policy or would have charged a higher premium.”]; cf. Dyno v Rose, 260 AD2d 694, 698 [3d Dept 1999] [noting that the “affidavit of facts” supporting a default-judgment motion for default judgment must “establish a prima facie case” for relief].) This material misrepresentation, in turn, is a proper basis to deny claims for benefits brought by Brutus or his assignees. (See Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293, 298-299 [2d Dept 2000].)

Liberty Mutual’s motion for default judgment is granted.

II. NYC Axis’s Cross-Motion

A. The Branch of the Cross-Motion Seeking Sanctions

Liberty Mutual’s default-judgment motion initially sought judgment against NYC Axis, in addition to the other defendants named in the motion. (See NYSCEF No. 14 at 2 [notice of motion].) The attorney affirmation submitted in support of the motion stated that NYC Axis was in default because it did not timely answer. (See NYSCEF No. 15 at 4 ¶ 18.) But although NYC Axis’s answer was untimely, Liberty Mutual did not reject that answer when it was filed, thereby waiving Liberty Mutual’s right to act on the default. (See U.S. Bank N.A. v Lopez, 192 AD3d 849, 850 [2d Dept 2021].)

Liberty Mutual filed its motion on Friday, December 3, 2021. (NYSCEF No. 14.) The motion was returnable on January 4, 2022; it required under CPLR 2214 (b) that opposition papers be filed by December 28, 2021. (Id. at 1-2.) On Saturday, December 4, NYC Axis filed a letter to demand that Liberty Mutual withdraw its motion as against NYC Axis within five days or face a sanctions motion. (NYSCEF No. 37.) On Thursday, December 9, NYC Axis filed this cross-motion for summary judgment under CPLR 3212 and for sanctions under 22 NYCRR 130-1.1. (NYSCEF No. 39 [notice of cross-motion].) On December 16—less than two weeks after the motion was filed—Liberty Mutual withdrew the motion as against NYC Axis, conceding that seeking judgment against NYC Axis was an error. (NYSCEF No. 48.)

NYC Axis argues at length on reply that it should be awarded sanctions against Liberty [*3]Mutual anyway. (See NYSCEF No. 53 at 3-8.) This argument is groundless. Liberty Mutual did not, as NYC Axis asserts, act with “obstinacy” in “refus[ing] to withdraw its motion” (id. at ¶¶ 19, 25)—it merely did not withdraw the motion as rapidly as NYC Axis would have preferred. Additionally, given the timing, NYC Axis was not, as it suggests, “compelled . . . to seek judicial intervention to protect [its] client’s rights” against Liberty Mutual’s motion (id. at ¶ 14). Instead, NYC Axis chose to resort to motion practice only four business days after Liberty Mutual filed its default-judgment motion, and nearly three weeks before NYC Axis’s opposition papers would have been due. No basis for § 130-1.1 sanctions against Liberty Mutual exists on these facts.

NYC Axis also cross-moves for summary judgment on the merits, contending that it is entitled to payment on 10 bills for treatment (plus attorney fees) because Liberty Mutual did not timely deny them, and because the assertedly untimely denials were improper in any event.

The cross-motion is granted in part and denied in part. This court concludes that Liberty Mutual was required to pay or deny these 10 bills within 30 days of receiving the necessary verification. (See subsection II.B.1, infra.) Eight of the 10 bills were undisputedly denied. With respect to those eight bills, NYC Axis has not shown as a matter of law that the bills were untimely denied, or that the denials were substantively improper (See paragraph II.B.2.a, infra). With respect to the remaining two bills, NYC Axis has shown that Liberty Mutual failed to timely deny one of them, for $26.41. (See paragraph II.B.2.b, infra.) NYC Axis is thus entitled to summary judgment only on that one bill. It is not entitled to attorney fees as the prevailing party.

NYC Axis argues that it is entitled as a matter of law to payment on the treatment bills it submitted to Liberty Mutual because those bills were not denied (or paid) within 30 days after Liberty Mutual received proof of NYC Axis’s claim, as required by 11 NYCRR 65-3.8 (a) and (c). The first issue this court must address, therefore, is whether the timeliness requirements of § 65-3.8 governed Liberty Mutual’s denial of these bills to begin with.

A no-fault insurer “that fails to deny a claim within the 30—day period is generally precluded from asserting a defense against payment of the claim.” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008] [internal quotation marks omitted].) A narrow but important exception to this preclusion rule exists where the ground for denying the claim (or the defense to a later claim for payment) is a lack of coverage: If “the insurance policy does not contemplate coverage in the first instance . . . requiring payment of a claim upon failure [*4]to timely disclaim” would improperly “create coverage where it never existed.”^[FN1] (Id. [internal quotation marks omitted].)

The ground for Liberty Mutual’s denial of NYC Axis’s claims is that Brutus, NYC Axis’s assignor, made material misrepresentations in his application for no-fault insurance. Such material misrepresentations ordinarily will “void[] the policy ab initio,” thereby retroactively eliminating coverage altogether. (Starr Indem., 190 AD3d at 442.) A different rule applies, however, in the specific context of automotive insurance, including no-fault.

In that context, Vehicle and Traffic Law (VTL) § 313 is understood to “supplant an insurance carrier’s common-law right to cancel a contract of insurance retroactively on the grounds of fraud or misrepresentation,” mandating instead “that the cancellation of a contract pursuant to its provisions may only be effected prospectively.” (Liberty Mut. Ins. Co. v McClellan, 127 AD2d 767, 769 [2d Dept 1987].) This rule derives from the principle that “compulsory automobile liability insurance is not the concern solely of the insured and . . . insurer,” but “exists also for the protection of the public.” (Id. at 769-770.) Preventing an auto insurer from retroactively canceling a policy “protects innocent third parties who may be injured due to the insured’s negligence” and might otherwise struggle to obtain compensation for their injuries—contrary to the core purpose of compulsory auto insurance. (Kaplun, 274 AD2d at 298.)

Courts applying this rule against rescission have stressed that the rule does not leave an auto insurer “without means of redress” should it conclude that a policy was fraudulently obtained. (Id.) An insurer may argue that “the insured’s misrepresentations and/or fraud in obtaining the policy precludes any recovery by the insured.” (Id. at 298-299.) For that matter, the insurer may raise the same argument with respect to a claim under the policy by an insured’s medical provider assignees, which stand in the insured’s shoes and “deal[] with the assignor-insured at [their] peril in accepting an assignment of the insured’s no-fault benefits.” (AB Med. Servs. PLLC v. Commercial Mut. Ins. Co., 12 Misc 3d 8, 11 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists]; accord Central Radiology Services v. Commerce Ins Co., 2011 NY Slip Op 50948[U], at *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists May 23, 2011] [holding that when the insurer established that the insured-assignor was ineligible for coverage for having misrepresented his state of residence in obtaining insurance, the provider-assignee, standing in the insured’s shoes, could not recover from the insurer either].)

That an insurer may raise the insured’s material misrepresentations as a ground for denying claims by the insured or the insured’s assignees presents the question whether the insurer may do so outside 30-day regulatory window for paying or denying the claims set by 11 NYCRR 65-3.8. This is permissible only if denying a claim on material-misrepresentation grounds—but without rescinding the policy outright—is, in substance, raising a lack-of-coverage defense to the claim, rendering untimely-denial preclusion inapplicable.

There are strong arguments that a material-misrepresentations denial should be treated as being based on a lack-of-coverage defense. In raising the insured’s material misrepresentations as a ground for denial, the insurer is contending that the insured (or its assignee) is claiming the benefit of coverage that the insured should not have at the price it paid. This is the same basic contention that underlies an insurer’s argument that it should be permitted to vitiate coverage by rescinding a policy as fraudulently obtained. True, particular policy considerations in the automotive-insurance context foreclose outright rescission. Those considerations, though, are particular to the interests of third parties (and the public at large); they do not affect the relationship between insurer and insured, nor the arguments against denying the insured the benefit of a fraudulently obtained policy.

Put differently, a material-misrepresentation defense is not based on a breach of a policy condition, does not challenge the validity of the claimed charges, and does not call into doubt the right of an assignee to bring the claim. Thus, without speaking in coverage-related terms, it is difficult to explain why the material-misrepresentation defense should defeat a claim for a non-excluded loss within the scope of the policy. (See Fair Price Med. Supply, 10 NY3d at 565 [explaining that the preclusion analysis “entails a judgment” whether “the defense [is] more like a ‘normal’ exception from coverage (e.g., a policy exclusion), or a lack of coverage in the first instance (i.e., a defense ‘implicating a coverage matter'”] [alteration omitted].^[FN2] )

Nonetheless, the Appellate Division, Second Department, has held, without elaborating, that an insurer is precluded from denying a claim on the basis of a material misrepresentation if the denial does not comply with the time limits set by 11 NYCRR 65-3.8. (See Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604-605 [2d Dept 2011].) Liberty Mutual has provided no contrary precedents of the Appellate Division, First Department, and this court’s research has not uncovered any. This court is therefore bound by the Second Department’s decision in GMAC Insurance Company Online. (See D’Alessandro v Carro, 123 AD3d 1, 6 [1st Dept 2014].) The timeliness requirements of § 65-3.8 apply to Liberty Mutual’s denial here of [*5]NYC Axis’s bills.

Because the pay-or-deny deadlines of 11 NYCRR 65-3.8 apply here, this court must go on to determine whether Liberty Mutual met that deadline with respect to the 10 treatment bills at issue on NYC Axis’s cross-motion for summary judgment.

It is undisputed that eight of the 10 bills were denied by Liberty Mutual. NYC Axis argues that those eight denials were untimely. Liberty Mutual contends that the denials were timely, taking into account the tolling effect of Liberty Mutual’s verification requests to Brutus. This court agrees with Liberty Mutual about these bills. NYC Axis also argues that Liberty Mutual has not provided sufficient support for its proffered material-misrepresentation ground for denying the first eight bills. This court finds NYC Axis’s argument unpersuasive.

As for the two remaining bills, NYC Axis contends that those bills were never denied at all. Liberty Mutual argues both that they were denied, and that the denials were timely. This court agrees with Liberty Mutual about one of the bills, and with NYC Axis about the other.

Title 11 NYCRR 65-3.8 (a) (1) provides that “[n]o-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to [11 NYCRR] 65-3.5.” Section 65-3.8 (c) provides that “[w]ithin 30 calendar days after proof of claim is received, the insurer shall either pay or deny the claim in whole or in part.” Timely verification requests may therefore toll the insurer’s deadline to pay or deny a treatment bill submitted by a medical-provider-assignee. (See Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 903-904 [2d Dept 2007].) For purposes of that deadline, a denial is deemed to have been made when mailed by the insurer, not when received by the provider. (See Westchester Med. Ctr. v A Cent. Ins. Co., 114 AD3d 937, 937 [2d Dept 2014].)

Liberty Mutual first asked Brutus for garaging-related verification information in the beginning of August 2019, and its verification efforts continued through October 2019—thereby encompassing the period in which NYC Axis submitted the bills at issue. (See NYSCEF No. 24 at 1 [EUO scheduling letters]; NYSCEF No. 57 at 1 [verification correspondence from Brutus to Liberty Mutual]; NYSCEF No. 40 at 11 [NYC Axis affirmation in support of cross-motion, charting all the relevant dates for each bill at issue.)

As a result, the question is whether Liberty Mutual’s verification requests to Party A (injured-assignor Brutus) between August and October 2019 tolled the time for it to pay or deny the bills submitted by Party B (provider-assignee NYC Axis) during that period. NYC Axis [*6]argues that verification requests to A may not toll the time to pay or deny B’s claims (see NYSCEF No. 40 at ¶¶ 38, 47); Liberty Mutual argues that they may do so (see NYSCEF No. 49 at ¶¶ 35-37). This court has not been provided with, and has not itself found, Appellate Division precedent discussing this particular question. Considering the matter for itself, this court agrees with Liberty Mutual.

Liberty Mutual’s verification requests to Brutus were aimed at uncovering whether he had materially misrepresented facts in his insurance application—a ground for denying Brutus’s claims that would apply equally to claims submitted by NYC Axis as Brutus’s assignee.^[FN3] (See Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2d Dept 2007] [explaining that because an “assignee stands in the shoes of an assignor . . . and thus acquires no greater rights than its assignor,” a lack-of-medical-necessity defense to a claim that may be raised by the insurer against the assignor is also available against provider assignees] [internal quotation marks omitted]; accord American States Ins. Co. v Huff 119 AD3d 478, 479 [1st Dept 2014] [same, in context of EUO-nonappearance defense].) Because Liberty Mutual’s verification requests to Brutus also related to whether Liberty Mutual could (or could not) deny NYC Axis’s claims, the requests tolled Liberty Mutual’s deadline to respond to NYC Axis’s claims under § 65-3.8. The alternative rule, under which Liberty Mutual would have to pay NYC Axis’s claims even as Liberty Mutual was formally seeking information that might support denial of those claims, makes little sense.

NYC Axis also argues that Liberty Mutuals’ pay-or-deny deadline for NYC Axis’s bills was not tolled by letters Liberty Mutual sent to NYC Axis advising that its decisions on those bills would be delayed due to the need to verify the claims. (See NYSCEF No. 40 at ¶¶ 36-39.) True, but irrelevant. The letters advising of Liberty Mutual’s verification efforts may not have tolled the time to pay or deny—but the verification efforts themselves did under § 65-3.8.

Liberty Mutual sent four verification requests to Brutus. The initial EUO request, sent on August 2, 2019, was made before Liberty Mutual received any bills for treatment, making it proper under Mapfre Ins. Co. of NY v Manoo (140 AD3d 468, 469 [1st Dept 2016]). (See NYSCEF No. 24 [EUO requests]; NYSCEF Nos. 25-26 [provider bills].) The EUO was adjourned, and a later EUO scheduled, by letter sent on August 13. (NYSCEF No. 24 at 12.) The EUO was held on September 5 (see NYSCEF No. 27 at 4 [EUO transcript]); and Liberty Mutual sent Brutus a post-EUO document request four days later on September 9. (See NYSCEF No. 28 at 1.) After Brutus failed to respond, Liberty Mutual sent a follow-up request within 40 calendar days of the initial document request, as required by 11 NYCRR 65-3.6 (b).

Liberty Mutual’s counsel has represented, in correspondence with the court (copied to all [*7]parties), that Liberty Mutual received Brutus’s response to the follow-up document request (dated October 23, 2019) on November 1, 2019. (NYSCEF No. 57 [document response]; NYSCEF No. 58 [representation about timing of receipt].) Liberty Mutual’s motion papers indicate (albeit without saying expressly) that it did not then request further supplementation from Brutus of that document response. (See NYSCEF No. 15 at ¶ 29 [affirmation in support of default judgment].) As a result, under 11 NYCRR 65-3.8 (a) (1) and (c), Liberty Mutual had 30 calendar days from November 1 to pay or deny NYC Axis’s claims. The 30th day of that period fell on a Sunday, so Liberty Mutual’s deadline to mail the denials was December 2, 2019. (See General Construction Law § 25-a.)

Liberty Mutual has not provided denial-by-denial proof of when it mailed each denial to NYC Axis. But as NYC Axis itself acknowledges, the denial letters are dated either November 21, 2019, or November 22, 2019—at least 10 days prior to the denial deadline. (See NYSCEF No. 40 at 11.) Liberty Mutual has also submitted a detailed affidavit of one of its claims managers, representing that Liberty Mutual’s mailing procedures ensure that claim-denial letters are mailed out no later than the next business day after the date on the letter. (See NYSCEF No. 33 at ¶¶ 7, 11-13.) If the denial letters here were mailed consistent with this procedure—and NYC Axis has not provided reason to believe otherwise—the denials were timely. At a minimum, on this record NYC Axis has not shown as a matter of law that the denials were untimely.

In the alternative, NYC Axis asserts that Liberty Mutual has not adequately supported the material-misrepresentation justification on which these denials relied. (See NYSCEF No. 40 at 13-14.) This assertion misconstrues the governing legal standard. NYC Axis is correct that Liberty Mutual’s showing (affidavits from an underwriter and an investigator) would be insufficient to establish materiality as a matter of law on a motion by Liberty Mutual for summary judgment. But Liberty Mutual has not moved for summary judgment—NYC Axis has. Liberty Mutual’s evidence is sufficient at least to raise a dispute of fact about materiality. (See Carpinone v Mutual of Omaha Ins. Co., 265 AD2d 752, 754 [3d Dept 1999] [explaining that the “materiality of an applicant’s misrepresentation is ordinarily a factual question unless the insurer proffers clear and substantially uncontradicted evidence concerning materiality”].)

The remaining two bills pertain to treatment rendered on July 8, 2019, and August 13, 2019. (See id.) NYC Axis asserts that Liberty Mutual never denied two bills. (See id.) Liberty Mutual contends that it sent denials of the bills (see NYSCEF No. 49 at ¶ 31), providing a supplemental affidavit from its claims manager to that effect. (See NYSCEF No. 52 at ¶¶ 8-10.)

A denial of the bill for the July 8 treatment does appear in the record, explaining that the bill was denied because a peer review concluded that the services billed for were not medically necessary. (See NYSCEF No. 30 at 266-275.) But this court has not found a denial of the bill for treatment on August 13 (or, for that matter, a delay letter pertaining to that bill) in Liberty Mutual’s voluminous motion papers. Therefore, NYC Axis is entitled to summary judgment [*8]solely with respect to the August 13 bill—a $26.41 invoice for a follow-up outpatient visit (NYSCEF No. 26 at 15-17).

NYC Axis contends that it should also be entitled to attorney fees incurred in defending this action. This court disagrees. To be sure, an insured that prevails in a declaratory-judgment coverage action brought against it by the insurer may recover attorney fees. (See U.S. Underwriters Ins. co. v City Club Hotel, LLC, 3 NY3d 592, 597-598 [2004].) And it is immaterial that NYC Axis is an assignee of the insured: As assignee NYC Axis stands in the shoes of the assignor.^[FN4] The court is not persuaded, though, that NYC Axis is, in fact, the prevailing party.

To be a prevailing party for attorney-fee purposes, one must “prevail on the central claims advanced, and receive substantial relief in consequence thereof.” (Sykes v RFD Third Ave. I Assoc., LLC, 39 AD3d 279, 279 [1st Dept 2007].) The dispute between Liberty Mutual and NYC Axis on this motion involves 10 bills. This court has concluded that NYC Axis is entitled to payment on only one of those 10—and for an amount, $26.41, that is a miniscule fraction of the total sum sought by NYC Axis. That is not substantial relief.

Accordingly, for the foregoing reasons it is

ORDERED that Liberty Mutual’s motion for default judgment against the nonappearing defendants named in the motion is granted, and Liberty Mutual is directed to settle order with respect to judgment against those defendants; and it is further

ORDERED that the branch of NYC Axis’s cross-motion seeking sanctions against Liberty Mutual is denied; and it is further

ORDERED that the branch of NYC Axis’s cross-motion seeking summary judgment on the question whether NYC Axis is entitled to payment on ten bills for treatment rendered to the alleged injured person, defendant Brutus, is granted only to the extent that this court declares that NYC Axis is entitled to payment from Liberty Mutual in the amount of $26.41 for treatment rendered to Brutus on August 13, 2019, and otherwise denied; and it is further

ORDERED that the branch of NYC Axis’s cross-motion seeking summary judgment on its claim for attorney fees arising from its defense of this action is denied.

Footnotes

Footnote 1:In the Appellate Division, First Department, this exception is most frequently invoked with respect to claim-denials based on the alleged injured person’s having failed twice to appear for examinations under oath (EUOs) or independent medical examinations (IMEs). (See e.g. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011] [holding that an injured person’s “failure to appear for IMEs” properly requested “by the insurer . . . is a breach of a condition precedent to coverage under the no-fault policy, and therefore fits squarely within the [lack-of-coverage] exception to the preclusion doctrine”]; Allstate Ins. Co. v Pierre, 123 AD3d 618, 618 [1st Dept 2014] [same, with respect to EUOs].)

Footnote 2:Compare e.g. Bayshore Physical Therapy, 82 AD3d at 560 (holding that denial of a claim based on the injured person’s failure to appear for a properly requested IME is not subject to untimeliness preclusion because that failure breached a condition precedent to the injured person’s coverage under the policy), with Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192, 196-197 (4th Dept 2018) (holding instead that denial of a claim for failure to appear at an IME is subject to untimeliness preclusion because that failure breached only a condition precedent to payment under the policy for a covered loss, not a condition precedent to the existence of coverage itself).

Footnote 3:This scenario thus differs from one in which the verification sought by an insurer from Provider-Assignee C (information going, for example, to the validity of C’s billing for treatments it provided to Injured-Assignor A) would not affect whether Provider-Assignee D was entitled to payment for different treatments that D provided to A. In that circumstance, the insurer’s verification requests to C would not toll the insurer’s time to pay or deny D’s bills.

Footnote 4:Because Brutus, the injured assignor in this case, is the insured under the underlying no-fault policy, this case is not controlled by Fiduciary Ins. Co. of Am. v Medical Diagnostic Servs., P.C. (150 AD3d 498, 498-499 [1st Dept 2017]) and Hertz Vehs., LLC v Cepeda (156 AD3d 440, 441 [1st Dept 2017]). In those cases, the injured assignors were merely passengers in an insured vehicle, rather than being the insureds themselves. As a result, the insurers there did not owe the injured assignors (or their medical-provider assignees) a duty to defend—or a corollary duty under City Club Hotel to pay attorney fees arising from an unsuccessful declaratory-judgment coverage action brought by the insurers. Not so here.

Decided on August 15, 2022

Supreme Court, New York County

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), dated April 15, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.

Plaintiff argues that defendant failed to deny the claims underlying the first through fourth causes of action within 30 days of the second EUO nonappearance and that, as to all seven causes of action, defendant’s mailing affidavits did not set forth practices and procedures sufficient to demonstrate proper mailing of the EUO scheduling letters and denial of claim forms on the dates alleged.

Plaintiff correctly argues that defendant failed to establish that it timely denied the claims underlying the first through third causes of action within 30 days of the second EUO nonappearance (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on those causes of action, as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued 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]).

With respect to the fourth through seventh causes of action, the proof submitted by defendant was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms had been properly mailed on the dates alleged (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Finally, with respect to the fourth cause of action, the record establishes that a letter had been mailed on March 28, 2018 scheduling an EUO for April 28, 2018. The resulting toll applied to the claim underlying the fourth cause of action, which claim defendant had received on April 6, 2018 (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11tth & 13th Jud Dists 2011]). A follow-up letter was then timely mailed on April 30, 2018, scheduling an EUO for May 25, 2018. Thus, defendant’s June 5, 2018 denial of that claim was timely (see id.; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]).

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through third causes of action are denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 12, 2022

Hollander Legal Group, P.C. (Damin J. Toell of counsel), for appellant. The Rybak Firm, PLLC (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered August 22, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider’s assignor had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the assignor, that the assignor had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Parisien v Metlife Auto & [*2]Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Upon a review of the record, we find, contrary to plaintiff’s sole contention on appeal with respect to defendant’s motion, that defendant sufficiently established that the EUO scheduling letters had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; JCC Med., P.C. v Lancer Ins. Co., 71 Misc 3d 140[A], 2021 NY Slip Op 50485[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Parisien v Ameriprise Ins., 68 Misc 3d 131[A], 2020 NY Slip Op 50990[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

Accordingly, the order is affirmed.

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

Decided on August 12, 2022

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

Decided on August 12, 2022

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, August 12, 2022

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel) for appellant.

Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel) for respondent.

Ordered that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits from the alleged insurer of its assignor, defendant failed to appear or answer the complaint, and a default judgment was entered on July 26, 2018. On September 6, 2018, defendant served an answer and, in November 2018, it moved to vacate the default judgment. Plaintiff appeals from an order of the Civil Court entered October 21, 2019, granting defendant’s motion, finding that defendant had demonstrated a reasonable excuse for its default and a meritorious defense.

In its moving papers, defendant explained that its default had been due to its own failure to forward the complaint to its attorneys. However, it asserted that it had not ignored the matter, but rather had informed plaintiff several months prior to the commencement of the action that it was not the insurance carrier for plaintiff’s assignor—an assertion which plaintiff has never contradicted. Upon receiving notice of the default judgment, defendant requested that the action [*2]be “withdrawn.” Defendant thereafter referred the matter to its counsel, which promptly served an answer and then moved to vacate the default judgment.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The determination of what constitutes a reasonable{**76 Misc 3d at 16} excuse for a default generally lies within the sound discretion of the motion court (see Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 886 [2019]). Here, in light of the absence of an evident pattern of neglect and counsel’s prompt actions, upon entering the case, in seeking to vacate the default (see Barajas v Toll Bros., 247 AD2d 242, 242-243 [1998]), the meritorious defense of lack of coverage, which plaintiff has never disputed, plaintiff’s failure to claim any prejudice by reason of the brief delay involved (see New York Univ. Hosp. Tisch Inst. v Merchants Mut. Ins. Co., 15 AD3d 554, 555 [2005]; see also Matter of A&F Scaccia Realty Corp. v New York City Dept. of Envtl. Protection, 200 AD3d 875, 878 [2021]; Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d 745, 746 [2018]), and the public policy favoring the resolution of cases on the merits (see Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d at 746; Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832, 833 [2009]; Legion Ins. Co. v James, 27 Misc 3d 128[A], 2010 NY Slip Op 50593[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), we conclude that the Civil Court providently exercised its discretion in granting defendant’s motion.

Accordingly, the order is affirmed.

Weston, J. (dissenting and voting to reverse the order and deny defendant’s motion to vacate the default judgment in the following memorandum).

When defendant was served with a summons and complaint on May 29, 2018, it elected not to forward the matter to its attorney to serve and file an answer because it believed that plaintiff’s claim is meritless. Defendant did not answer until September 6, 2018, approximately six weeks after a default judgment had been entered on July 26, 2018, and more than three months after service. A party may not choose when to answer and, given the lengthy delay in answering, it is clear that defendant’s default was intentional and, therefore, inexcusable (see Fok v Insurance Co. of N. Am., 151 AD2d 722, 722 [1989]). Since defendant failed to establish a reasonable excuse for its default in answering the complaint, defendant’s motion should have been denied without the need to consider whether defendant demonstrated the existence of a potentially meritorious defense (see Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 887 [2019]; New Century Mtge. Corp. v Adeyan-Ju, 139 AD3d 683, 684 [2016]).

Accordingly, I vote to reverse the order and deny defendant’s motion to vacate the default judgment.{**76 Misc 3d at 17}

Aliotta, P.J., and Buggs, J., concur; Weston, J., dissents in a separate memorandum.

Marshall & Marshall, PLLC (David A. Gierasch of counsel), for appellant. Dash Law Firm, P.C. (James Errera of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered July 19, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, without costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) (sued herein as MVAIC Insurance Company) appeals from an order of the District Court denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

It is undisputed that plaintiff was required to submit its claim forms to MVAIC within 45 days after the services at issue had been rendered (see 11 NYCRR 65-1.1; Synergy First Med., PLLC v MVAIC, 44 Misc 3d 127[A], 2014 NY Slip Op 50964[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2014]) and that plaintiff did not do so. In support of its motion for summary judgment, MVAIC established that it had timely denied plaintiff’s claims, based upon plaintiff’s untimely submissions, and that it had informed plaintiff that MVAIC could excuse the delay if plaintiff provided “reasonable justification” for the delay (see 11 NYCRR 65-3.3 [e]; see also Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 862-863 [2003]; Mount Sinai Hosp. of Queens v Country Wide Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50780[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). In opposition to MVAIC’s motion, plaintiff demonstrated that it had initially sent the claims at issue to an insurance company, but after plaintiff learned that the insurance company would not cover the claims, plaintiff sent the claims to MVAIC. However, plaintiff did not establish that it had provided MVAIC with a reasonable justification as to why it had initially submitted the claims to the insurance company. As a result, plaintiff did not establish that it had provided MVAIC with a reasonable justification for its untimely submission to MVAIC of the claim forms (see Norman Y. Schoenberg, M.D., P.C. v N.Y.C. Tr. Auth., 39 Misc 3d 128[A], 2013 NY Slip Op 50421[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 26 Misc 3d 145[A], 2010 NY Slip Op 50449[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

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

EMERSON, J.P., GARGUILO and DRISCOLL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 11, 2022

Index No. CV-750591-18/KI

Attorney for Plaintiff:
Zachary Whiting, Esq.
Law Office of Zara Javakov Esq., P.C.
100 Livingston St, Fl 4
Brooklyn, NY 11201

Attorney for Defendant:
William Ross Van Tuyl, Esq.
Law Offices of Buratti Rothenberg & Burns
90 Merrick Avenue, Suite 300
East Meadow, NY 11554

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment on ground that plaintiff’s assignor failed to appear for Independent Medical Examinations (“IMEs”). Plaintiff opposes the defendant’s motion and cross moves for summary judgment in its favor. The following bill is at issue:

Upon the forgoing cited papers, and after oral argument, the Decision/Order on defendant’s motion for summary judgment and plaintiff’s cross motion is as follows:

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action.
(Xiang Fu He v. Troon Mgt., Inc., 34 NY3d 167, 175 (2019) (internal citations and quotation marks omitted)).

I. IME No-Show

An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy.” (Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 (2d Dept. 2006)). “Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs ‘when, and as often as, the [insurer] may reasonably require.'” (Id. at 722, citing 11 NYCRR 65-1.1).

To meet its prima facie burden, the defendant must establish that: (1) it properly mailed scheduling letters for IMEs to plaintiff’s assignor; (2) the IME was timely scheduled; (3) the assignor failed to appear at the initial IME and the rescheduled follow-up IME; and (4) defendant timely denied the claim on that ground. (Motionpro Physical Therapy v. Hereford Ins. Co., 58 Misc 3d 159(A) (App Term 2018)).

Here, the defendant contends that it issued proper and timely denials based on the assignor’s failure to appear for three scheduled IMEs. Defendant submitted the affidavit of its claims representative, Christopher Stewart to explain why defendant requested the IMEs. (See defendant’s exhibit D, Stewart aff). Stewart attested that defendant requested an IME after receiving notice that plaintiff’s assignor was involved in an accident on March 22, 2018. (Id. at ¶ 14). Thereafter, defendant requested a third-party company, ExamWorks, Inc. to schedule an initial IME on June 12, 2018 at 2:15pm. (Id. at ¶ 15). ExamWorks, Inc. also rescheduled follow-up IMEs for July 10, 2018 at 1:00 pm and August 14, 2018 at 1:00 pm. ((Id.).

“Generally, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee.” (Viviane Etienne Med. Care, P.C. v. Country—Wide Ins. Co.,114 AD3d 33, 46 (2d Dept 2013)). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.” (New York and Presbyt. Hosp. v. Allstate Ins. Co., 29 AD3d 547 (2d Dept 2006) quoting Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 (2d Dept 2001). To the extent that proof of mailing is based upon a standard office practice or procedure, the burden is on the insurer to present an affidavit of an employee who personally mailed the items, or an employee with personal knowledge of the office’s mailing practices and [*2]procedures. (Quality Psychological Services, P.C. v. Hartford Ins. Co., 38 Misc 3d 1210(A) (Civ Ct 2013)). This individual “must describe those practices or procedural in detail, explicitly denoting the manner in which she/he acquired the knowledge of such procedures or practices, and how a personal review of the file indicates that those procedures or practices were adhered to with respect to the processing of that particular claim.” (Id.)

Here, defendant relies on the affidavit of Georgianna Michios, a litigation manager at ExamWorks Inc. to establish proof of timely mailing of the IME scheduling letters. (See defendant’s exhibit I, Michios aff). The Court finds that defendant’s submission of Michios’ affidavit is insufficient to establish that the IME scheduling letters were timely and properly mailed. The Court agrees with plaintiff that the affidavit is conclusory. Michios merely states that an employee places the scheduling letters in a properly addressed envelope and mails the letter via regular mail and/ or certified mail. (Id. at ¶ 5). This affidavit fails to explicitly state ExamWorks, Inc. practices and procedures for mailing the scheduling letters.

Further, defendant’s submission of the three delivery confirmation receipt is also insufficient to prove that the IME scheduling letters were timely and properly mailed. (See defendant’s exhibit G, IME Scheduling Letters). The Appellate Division, Second Department found that defendant’s submission of a certified mail receipt and “Track & confirm” printout were insufficient where there was no evidence presented that the item purportedly mailed to the plaintiff was mailed under the proffered certified receipt number. (New York and Presbyt. Hosp., 29 AD3d 547). Here, the three delivery confirmation receipts submitted by the defendant state that the items were delivered on May 23, 2016, June 18, 2018 and July 27, 2018, respectively. However, there was no evidence presented that the items purportedly mailed to the plaintiff were mailed under the proffered certified receipt number listed on each delivery confirmation receipt. Thus, the defendant failed to establish timely mailing of the IME scheduling letters.

Even if defendant had demonstrated timely mailing of the scheduling letters, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs. Here, defendant submitted the affidavit of John Iozzio, a licensed chiropractor and acupuncturist. (See defendant’s exhibit H, Iozzio aff). The basis of Iozzio’s information is his personal knowledge of his office policy, and review of the physical file and computer records. (Id. at ¶ 3). Iozzio’s business practice is to make a notation in the file, if the individual fails to appear. (Id. at ¶ 4). Iozzio stated that he personally recorded each of Keandre Black’s nonappearance at the scheduled IMEs. (Id. at ¶¶ 6,8,10). However,

“it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Accordingly, [e]vidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay.’ “

Further, Iozzio stated that he was present at each scheduled IME. According to Iozzio, the assignor failed to appear for the initial IME on June 12, 2018, and rescheduled follow-up IMEs on July 10, 2018 and August 14, 2018. (See Iozzio aff Iozzio at6,8,10). Iozzio neither stated how and whether he would have been able to identify the insured, or that no one appeared at the office at the time of each scheduled IME. (Longevity Medical Supply, Inc., 68 Misc 3d at 748). Therefore, the court agrees with plaintiff that Iozzio’s affidavit lacked personal [*3]knowledge regarding the assignor’s nonappearance.

Thus, defendant failed to establish that plaintiff’s assignor failed to appear at the IMEs on June 12, 2018, July 10, 2018 and August 14, 2018.

II. Timeliness of the Denial of Claim Forms

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim.” (Infinity Health Prods., Ltd. v. Eveready Ins. Co., 67 AD3d 862, 864 (2d Dept. 2009) [internal citations omitted]).

Defendant contends that on June 12, 2018 it received a bill from plaintiff for the dates of service on May 17, 2018 through June 6, 2018. The bill was in the amount of $1049.79. According to defendant, after plaintiff’s assignor failed to appear for IMEs on June 12, 2018 and August 14, 2018, a general denial form dated August 22, 2018 was mailed to plaintiff on August 23, 2022. This denial falls within the 30-days period. Also, another denial of claim form dated September 20, 2018 was mailed to plaintiff on September 21, 2018.

To establish proper mailing, defendant submits the affidavit of Carlton Lewis, a mailing manager, and certificates of mailing report. (See defendant’s exhibit E, Lewis aff; defendant’s exhibit C, Denials). According to Lewis, the items were either generated and mailed from mailing centers in Chino, California or Caledonia, Michigan. (Lewis aff ¶ 3). Lewis further stated that both denials were delivered to the U.S. Post Office, and there were no notations on the certificate of mailing reports that either denial was delayed or there were any malfunctions. (Id. at ¶¶ 9,10,15). Lewis’ affidavit and certificates of mailing reports establish proof of mailing of the denial claims forms on August 23, 2022 and September 21, 2018, in accordance with a standard office procedure. (Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679 (2d Dept. 2001); Ortho-Med Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 27 Misc 3d 141(A) (App Term 2010)).

Contrary to plaintiff’s arguments, Lewis demonstrated personal knowledge of the mailing procedures. Lewis was employed as the mailing manager at both the Caledonia and Chin mailing centers (Curtin aff ¶ 1). Also, he is responsible for ensuring that the standard mailing practices and procedures are followed. (Id. at ¶ 2). Further, Lewis’ affidavit properly laid the foundation for the admission of the denial of claim forms and certificates of mailing reports as business records.

Thus, defendant timely issued denial of claim forms for the dates of service on May 17, 2018 through June 6, 2018. However, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs on May 23, 2016, June 18, 2018 and July 27, 2018.

Accordingly, defendant’s motion for summary judgment is granted to the extent it established that it timely denied plaintiff’s claim.

A no-fault provider establishes its prima facie entitlement to summary judgment by (1) proof of the submission to the defendant of a claim form; (2) proof of the fact and the amount of the loss sustained; and (3) proof either that the defendant had failed to pay or deny the claim within the requisite 30—days period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. (See Insurance Law § 5106(a)); Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 (2010); see also New York & Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512 (2006)). Once plaintiff meets its prima facie [*4]burden, the burden shifts to defendant to raise a triable issue fact. (See Alvarez v. Prospect Hosp., 68 NY2d 320 (1986)).

To establish proper mailing, plaintiff submits the affidavit of its owner, Albert Khaimov to describe its’s standard office and procedures for generating and mailing bills. (See plaintiff’s exhibit C, Khaimov aff). Khaimov stated that he created a bill in the amount of $1049.79 for the dates of service on May 17, 2018 through June 6, 2018. (Id. at 20). However, he does not state when the bill was mailed to defendant. The court may, in its discretion, rely on defendant’s documentary submissions to establish defendant’s receipt of plaintiff’s claims. (Devonshire Surgical Facility v. GEICO, 16 Misc 3d 130(A) (App Term 2007)). Here, defendant’s claim representative affidavit established receipt of plaintiff’s bill on June 12, 2018. (Stewart aff 18). Further, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s motion papers, which admitted receipt of plaintiff’s bills. (Bob Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135(A) (App Term 2016); see Oleg Barshay, DC, P.C. v. State Farm Ins. Co., 14 Misc 3d 74 (App Term 2006); Longevity Med. Supply, Inc., 68 Misc 3d at 758). Therefore, defendant’s claim representative affidavit and denial of claims forms established receipt of plaintiff’s claim. Further, Khaimov stated that the bill was neither paid nor denied within the 30-days period. (Khaimov aff 20).

Defendant proved that it timely denied plaintiff’s claim by timely mailing denial of claim forms. However, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at duly scheduled IMEs. Therefore, the issue that is presented here is whether the timely denials warrant denial of plaintiff’s cross motion for summary judgment in its favor, even though the evidence of the grounds of the denials was insufficient. The court in Longevity Med. Supply, Inc. v. Progressive Ins. Co discussed how two Appellate Term, Second Department decisions reached opposite results on this issue. (See Longevity Med. Supply, Inc., 68 Misc 3d at 759-60. The court discussed that,

[In Rockaway Med. and Diagnostic, P.C. v. Country-Wide Ins. Co., 29 Misc 3d 136(A) (App Term 2010)], once the plaintiff met its prima facie burden, the Appellate Term required the defendant not only to come forward with evidence that the denial was timely, but also to lay bare the evidence of the grounds of the denial, which had to be sufficient to establish the grounds. [Three years later in Shara Acupuncture, P.C. v. Allstate Ins. Co., 41 Misc 3d 129(A) (App Term 2013), once the plaintiff met its prima facie burden that the claims were neither paid nor denied within the 30-day period after defendant’s receipt of the bill, the Appellate Term required the insurer only to come forward with evidence that the denial was timely to defeat the plaintiff’s motion for summary judgment. Put differently, once the insurer came forward with evidence that the denial was timely, the burden in Shara Acupuncture, P.C. appears to shift back to the plaintiff to establish the denial was conclusory, vague or without merit as a matter of law to be entitled to summary judgment.

(Longevity Med. Supply, Inc., 68 Misc 3d at 760) (internal citations omitted.)

Shara Acupuncture, P.C. controls here. As discussed above, the plaintiff’s prima facie burden can be established in two ways: (1) proof that the defendant had failed to pay or deny the claim within the requisite 30-days period, or (2) proof that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. (Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128(A) (App Term 2011)). If plaintiff cannot meet its prima facie burden under the first method because defendant submitted evidence of a timely [*5]denial, then the court should consider whether plaintiff met the prima facie burden under the second method. (Longevity Med. Supply, Inc., 68 Misc 3d at 760 citing Longevity Med. Supply, Inc. v. Glob. Liberty Ins. Co., 67 Misc 3d 135(A) (App Term 2020)).

Here, the plaintiff’s prima facie burden was based solely on proof that the claims were neither paid nor denied within the 30-days period. However, the defendant established that it timely denied plaintiff’s bill. Because plaintiff had not demonstrated that the denials were conclusory, vague, or without merit as a matter of law, plaintiff is not entitled to judgment in its favor.

Thus, plaintiff’s cross motion for summary judgment is granted to the extent that it established timely submission of the bill to defendant, and that it remains unpaid.

Plaintiff met its prima facie case by establishing timely mailing of the bill to defendant, and that it remains unpaid. Defendant met its prima facie case by establishing timely denial.

Accordingly, the defendant’s motion for summary judgment is granted to the extent it established that it timely denied plaintiff’s bill. The plaintiff’s cross motion for summary judgment is granted to the extent it established timely submission of the claim to defendant, and the bill remains unpaid. The issue left for trial is defendant’s IME no-show defense.

This constitutes the decision and order of the court.