Wellness Diagnostic Imaging, P.C. v American Tr. Ins. Co. (2025 NY Slip Op 50628(U))

Reported in New York Official Reports at Wellness Diagnostic Imaging, P.C. v American Tr. Ins. Co. (2025 NY Slip Op 50628(U))

[*1]

Wellness Diagnostic Imaging, P.C. v American Tr. Ins. Co.

2025 NY Slip Op 50628(U) [85 Misc 3d 141(A)]

Decided on April 10, 2025

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 10, 2025

PRESENT: : JERRY GARGUILO, P.J., ELENA GOLDBERG-VELAZQUEZ, JOSEPH R. CONWAY, JJ
2024-663 N C

Roman Kravchenko and Jason Tenenbaum of counsel, for appellant. Short & Billy, P.C. (Seok Ho [Richard] Kang of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (Ignatius L. Muscarella, J.), dated October 12, 2023. The order denied a petition in a proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated March 27, 2023.

ORDERED that the order is modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, the order is affirmed, without costs.

Petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated March 27, 2023, which upheld the award of an arbitrator, rendered pursuant to Insurance Law § 5106 (b), denying petitioner’s claims to recover assigned first-party no-fault benefits. The District Court (Ignatius L. Muscarella, J.) denied the petition.

In the decision, the arbitrator stated that, based on a stipulation, the only issue to be resolved was whether petitioner’s assignor had appeared for scheduled independent medical examinations (IMEs). The arbitrator found that, as the assignor had not appeared, the assignor had failed to comply with a condition precedent to coverage under the insurance policy. The provider appealed the award to the master arbitrator who, by an award dated March 27, 2023, upheld the arbitrator’s award. However, on appeal, petitioner contends that the arbitrator’s award was contrary to settled law because the IME scheduling letters were not timely, the IMEs themselves were not timely, and because respondent’s proffered defense was precluded as the denial of claim forms were untimely.

“A court reviewing the award of a master arbitrator is limited to the grounds set forth in CPLR article 75, which include, in this compulsory arbitration, the question of whether the determination had evidentiary support, was rational, or had a plausible basis (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981])” (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 176 AD3d 800, 802 [2019]). Applying this standard, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award, as the award was predicated upon a stipulation between the parties and the arbitrator determined that, as a result of the stipulation, the only issue to be determined by the arbitrator was whether the assignor had appeared for the IMEs (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207). Consequently, the District Court properly denied the petition to vacate the master arbitrator’s award (see Matter of Empire Mut. Ins. Co. v Jones, 151 AD2d 754 [1989]) but, in doing so, should have confirmed the award (see CPLR 7511 [e]).

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Accordingly, the order is modified by adding thereto a provision confirming the master arbitrator’s award.

GARGUILO, P.J., GOLDBERG-VELAZQUEZ and CONWAY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 10, 2025Medical Supply of NY Corp. v Berkshire Hathaway Homestate Ins. Co. (2025 NY Slip Op 50504(U))

Reported in New York Official Reports at Medical Supply of NY Corp. v Berkshire Hathaway Homestate Ins. Co. (2025 NY Slip Op 50504(U))

[*1]

Medical Supply of NY Corp. v Berkshire Hathaway Homestate Ins. Co.

2025 NY Slip Op 50504(U)

Decided on April 4, 2025

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 4, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, JOANNE D. QUIÑONES, JJ
2023-1392 K C

Kopelevich & Feldsherova, P.C. (Mikhail Kopelevich of counsel), for appellant. Hardin, Kundla, McKeon & Poletto, P.A. (Ari Reiser of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Heela D. Capell, J.), dated July 12, 2023. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to vacate a judgment entered on September 12, 2019 upon defendant’s failure to appear or answer the complaint and extended defendant’s time to serve its answer.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical supplies furnished to its assignor for injuries he sustained in a motor vehicle accident which occurred on May 9, 2018. Plaintiff served the summons and complaint on the New York State Department of Financial Services (DFS) on April 18, 2019, pursuant to Insurance Law § 1212, and filed its affidavit of service on May 3, 2019. Defendant received the summons and complaint from the DFS on June 3, 2019 via regular mail. It is undisputed that defendant’s claims representative contacted plaintiff’s counsel’s office between June 12, 2019 and June 14, 2019, and defendant’s counsel contacted plaintiff’s counsel between June 27, 2019 and August 12, 2019, stating that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident and requesting that the lawsuit be voluntarily discontinued on the ground that the injuries were covered by workers’ compensation insurance. In an email sent on June 28, 2019, plaintiff’s counsel stated that she needed proof of these assertions, which defendant’s counsel provided via email on July 10, 2019. Defense counsel served an answer on [*2]July 1, 2019 and filed it on July 2, 2019. A default judgment was entered against defendant on September 12, 2019.

By notice of motion dated January 30, 2020, defendant moved to vacate the default judgment and, upon such vacatur, for summary judgment dismissing the complaint. Insofar as is relevant on appeal, defendant argued that the default judgment should be vacated, pursuant to CPLR 5015, as a timely answer had been served, and, in any event, defendant had a reasonable excuse for its delay in answering as well as a meritorious defense to the action. In support of its motion, defendant submitted the affidavits of its employees who averred that the summons and complaint was not received until June 3, 2019 and so the answer was timely. Any alleged delay in answering was due to the attempts of defendant’s employee and defendant’s counsel to obtain a voluntary discontinuance of the action. Defendant also submitted an affidavit by plaintiff’s assignor’s employment supervisor, in which the supervisor asserted that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident in which the assignor was injured. In opposition, plaintiff argued that defendant had not filed a timely answer and had otherwise failed to proffer a reasonable excuse for its delay in answering, and noted that plaintiff’s assignor, in his no-fault benefits application, had denied that the accident occurred within the scope of his employment. By order dated July 12, 2023, the Civil Court (Heela D. Capell, J.) granted the branch of defendant’s motion seeking to vacate the default judgment, finding that defendant had proffered a reasonable excuse for its delay in answering as well as a potentially meritorious defense, extended defendant’s time to serve its answer, and implicitly denied the branch of defendant’s motion seeking summary judgment dismissing the complaint. Plaintiff appeals from so much of the order as granted the branch of defendant’s motion seeking to vacate the default judgment and extended defendant’s time to serve an answer.

Defendant established its entitlement to vacate the default judgment under CPLR 317. Although defendant specifically moved pursuant to CPLR 5015, under the circumstances presented, its motion to vacate the default judgment was also governed by CPLR 317 (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143 [1986]; Kircher v William Penn Life Ins. Co. of NY, 165 AD3d 1241 [2018]). A defaulting defendant who was “served with a summons other than by personal delivery” may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (CPLR 317; see Booso v Tausik Bros., LLC, 148 AD3d 1108, 1108 [2017]). “There is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay” (Kircher, 165 AD3d at 1243; Booso, 148 AD3d at 1108). Here, defendant established that it did not receive actual notice of the action until it received the summons and complaint from the DFS on June 3, 2019, and, thus, it did not have enough time to defend within the 30-day period set forth in CCA 402 (b).

Defendant also demonstrated the existence of a potentially meritorious defense to the action, as the affidavits of defendant’s employee and plaintiff’s assignor’s employment supervisor stated that plaintiff’s assignor was acting within the scope of his employment at the time of the automobile accident in which he was injured, which would entitle him to workers’ compensation benefits (see Mani Med., P.C. v American Tr. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51185[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, we find that the Civil Court did not improvidently exercise its discretion in granting the branch of defendant’s [*3]motion seeking to vacate the default judgment.

Accordingly, the order, insofar as appealed from, is affirmed.

TOUSSAINT, P.J., MUNDY and QUIÑONES, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 4, 2025Chiropractic Assoc. of Richmond Hill, P.C. v Nationwide Gen. Ins. Co. (2025 NY Slip Op 50506(U))

Reported in New York Official Reports at Chiropractic Assoc. of Richmond Hill, P.C. v Nationwide Gen. Ins. Co. (2025 NY Slip Op 50506(U))

[*1]

Chiropractic Assoc. of Richmond Hill, P.C. v Nationwide Gen. Ins. Co.

2025 NY Slip Op 50506(U)

Decided on April 4, 2025

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 4, 2025

PRESENT: : CHEREÉ A. BUGGS, J.P., MARINA CORA MUNDY, JOANNE D. QUIÑONES, JJ
2024-603 Q C

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Karen Lin, J.), dated December 28, 2023. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court (Karen Lin, J.) denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that the policy limits had been exhausted.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that the policy limits were exhausted before completed claims from plaintiff were received (see Alleviation Med. Servs., P.C., 55 Misc 3d 44, affd 191 AD3d 934; S.O.V. Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51365[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint. We reach no other [*2]issue.

Accordingly, the order is affirmed.

BUGGS, J.P., MUNDY and QUIÑONES, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 4, 2025State Farm Mut. Auto. Ins. Co. v Lifeline Med. Imaging, P.C. (2025 NY Slip Op 02025)

Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Lifeline Med. Imaging, P.C. (2025 NY Slip Op 02025)

State Farm Mut. Auto. Ins. Co. v Lifeline Med. Imaging, P.C.

2025 NY Slip Op 02025

Decided on April 03, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 03, 2025
Before: Manzanet-Daniels, J.P., Moulton, Gesmer, Pitt-Burke, Michael, JJ.
Index No. 815415/21|Appeal No. 4041|Case No. 2024-00540|

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

Goldeberg, Miller & Rubin, PC, New York (Harlan R. Schreiber of counsel), for respondents.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered July 24, 2023, which granted the motion of plaintiffs State Farm Mutual Automobile Insurance Company, State Farm Indemnity Company, State Farm Guaranty Insurance Company, and State Farm Fire and Casualty Company (collectively State Farm) for summary judgment declaring that State Farm had no obligation to pay bills submitted by defendant Lifeline Medical Imaging, P.C., unanimously reversed, on the law, without costs, the motion denied, and the declaration vacated.

In this action, State Farm sought a declaration that it was not obligated to provide no-fault coverage for various claims submitted by Lifeline, a medical provider. According to State Farm, Lifeline failed to meet a condition precedent to coverage by failing to appear for duly scheduled examinations under oath (EUOs) and by refusing to produce an individual who could provide the information needed to verify Lifeline’s claims. As a result, State Farm maintains, Lifeline’s claim to no-fault benefits is foreclosed.

Supreme Court should have denied the motion as premature, as State Farm failed to offer Lifeline an objective justification for requesting the EUOs, as required by the governing no-fault regulations (see Country-Wide Ins. Co. v Alicea, 214 AD3d 530, 531 [1st Dept 2023]; Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 473 [1st Dept 2022]). The criteria by which State Farm decided that an EUO was required is essential for Lifeline to oppose State Farm’s summary judgment motion, and those criteria are exclusively within the State Farm’s knowledge and control (see Delacruz, 205 AD3d at 473, citing 11 NYCRR 65-3.5[e]). In addition, despite State Farm’s assertion otherwise, it did not fully respond to Lifeline’s discovery request for a copy of the objective standards relied upon when the EUO was scheduled (see Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671, 671 [1st Dept. 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]; see also Ops Gen Counsel NY Ins Dept No. 02-10-14 [October 2002]; Ops Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]).

Because State Farm’s rationale for requesting the EUOs has yet to be determined, the issue of whether State Farm’s no-coverage defense is subject to preclusion cannot yet be determined.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 3, 2025

Medical Supply of NY Corp. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50412(U))

Reported in New York Official Reports at Medical Supply of NY Corp. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50412(U))

[*1]

Medical Supply of NY Corp. v State Farm Mut. Auto. Ins. Co.

2025 NY Slip Op 50412(U)

Decided on April 1, 2025

Civil Court Of The City Of New York, Kings County

Roper, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 1, 2025

Medical Supply of NY Corp., A/A/O JENNIFER TRINIDAD, Plaintiff(s), against State Farm Mutual Automobile Ins. Co., Defendant(s).

Index No. CV- 705575-19/KI


Kopelevich & Feldsherova, P.C., Brooklyn, for Plaintiff

Rossillo Licata LLP, Westbury, for Defendant. Sandra Elena Roper, J.

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

Papers
Notice of Motion and Affidavits Annexed 1
Affirmation in Opposition 2
Reply 3
Memoranda of Law 4,5

Upon the foregoing cited papers, pursuant to CPLR §3212 (g), the Decision and Order on Defendant’s Motion for Summary Judgment is as follows:

Plaintiff proffered an affidavit, hereinafter referred to as Kuperman Affidavit, as a corroborating exhibit in opposition to Defendant’s Motion for Summary Judgment in a No-Fault case. The Kuperman Affidavit was offered to attest that all verification requests were timely responded to in rebuttal upon the shifting of the burden to Plaintiff to establish a triable issue of fact defeating Defendant’s judgment as a matter of law. Defendant did not object to the admissibility of the Kuperman Affidavit in its Reply to Plaintiff’s opposition. Rather, Defendant exhaustively and substantively argued against the contents and statements contained therein as sworn under oath truths. Defendant exhaustively availed itself of its full and fair opportunity to challenge the Kuperman Affidavit. However, it was at oral argument where Defendant first objected to the Kuperman Affidavit as being defective in form and thus inadmissible. The notarial acknowledgment contained the proper statutory stamp and statutory language dated 4th Day of February 2021 (CPLR 2106 pre — 1/1/2024 Amendment). Defendant argued however, [*2]that the signature line above “Notary Public” written in script clearly and unequivocally failed to bear the notary’s signature and rather upon which was written the word “February” (Kuperman Affidavit, Plaintiff’s Exhibit A NYSCEF #14). Defendant therefore argued that the Kuperman Affidavit was inadmissible and could not be considered in the decision-making analysis since it was not duly signed with the name of the notary. Plaintiff counsel conducting its oral argument was the named notary public on the notarial stamp. Plaintiff did not argue that Defendant had waived its right to object to the form of the Kuperman Affidavit pursuant to CPLR 2001. Nor did Plaintiff argue that it was a Scrivener’s error to be disregarded as a mere technical defect or curable upon application for leave of Court to correct (CPLR 2001; KSP Constr., LLC v LV Prop. Two, LLC, 224 AD3d 58, 60 [1st Dept 2024]). Rather, Plaintiff’s counsel countered that the written “February” in and of itself is his written signature. Plaintiff’s counsel further stated that he is the attorney at law notary public who signed the Kuperman Affidavit as “February”, which is his signature.^[FN1] Succinctly, Plaintiff’s counsel as the notary public argues that his signature is whatever he says it is and he is stating that he handwrote in script “February” above the notary public line and it is his signature thereby rendering the Kuperman Affidavit not defective and therefore admissible. This Court therefore ordered memoranda of law, inter alia, on the Question: What is a signature?

The quite ordinary task of signing with a uniquely scripted flourish of an individualized signature ^[FN2] , whether for the pleasantries of a thank you note, the solemnity of a Will, or the gravitas of legally binding documents in commerce, is generally taken for granted until consequences of its unlawful reproduction. From its ancient beginnings, methods of individualized personal identification and authentication had taken many forms.^[FN3] However, archeologically the oldest first known signature in the form of a stamped name on a clay tablet [*3]by the signatory ^[FN4] was in 3000BC. Although the scripted signature had been in use for centuries, it was legally codified into English law in 1677 by the enactment of the Statute of Frauds, which was also adopted by the American colonies at the time. Thereby mandating enforceable contracts shall be in writing and bear the signature ^[FN5] of the party to be legally bound as validation of the obligations contained therein. The signature has been defined as: “1a: the act of signing one’s name to something; 1b: the name of a person written with his or her own hand;”^[FN6] “The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.” (NY CLS Gen Const § 46). “A signature is made by use of any name, including any trade or assumed name, upon an instrument, or by any word or mark used in lieu of a written signature” (NY CLS UCC § 3-401[2]). Although having its origins in ancient times and still recognized for the untrained, ill, or disabled is the signature by mark, “an indication usually in the presence of witnesses by a distinctive sign or mark (such as an X) of acquiescence in or assent to the content of a document by one unable to write”^[FN7] “The most important feature of a signature is that it reflect the intent of the signatory (People v Rodriguez, 50 Misc 3d 1223[A], 2016 NY Slip Op 50248[U] [Crim Ct, Queens County 2016], citing People v Lo Pinto, 27 AD2d 63 [3d Dept 1966]). To that end, courts have routinely upheld various forms of markings as a valid signature” (id. citing In re Mack’s Will, 21 AD2d 205 [3d Dept 1964] [it is immaterial how a person signs his name or adopts his signature); Mohawk Airlines, Inc. v Peach, 81 Misc 2d 211 [Sup Ct, Oneida County 1974] [typewritten initials qualify as a signature]; Brooklyn City R.R. Co. v City of New York, 139 Misc. 691, 248 NYS 196 [1930] [printed, typewritten or lithographed signature held valid so long as adopted as such).

Although the intent of the principal signatory to the substance of the document may be an element as to whether an adopted marking is indeed the signature of the principal signatory, not [*4]so for the notary public. The probing into the intent of the notary public’s signature in authenticating the signature of the principal signatory is antithetical to the legislative purpose of the notary public laws. The Notary public laws’ legislative purpose is to provide certitude of authentication by a governmental official licensed notary public. Although New York Law states that the notary stamp as the official statement of authority is required to include the name in black ink, it does not specifically state that a notary’s signature must be the name of the notary public, nor shall it be as affixed upon its oath of office as filed in the county clerk’s office. However, the “American Association of Notaries always recommends using your official, handwritten signature, exactly as it appears on your oath of office.”^[FN8] Thus for certitude of authentication as well as for an enhanced fraud deterrent, the notary public’s signature, whatever form it may take should be consistent with the signature as affixed upon the oath of office filed with the licensing county clerk’s office as an industry standard.^[FN9]

“In all the courts within this state the certificate of a notary public, over the signature of the notary public, shall be received as presumptive evidence of the facts contained in such certificate; provided, that any person interested as a party to a suit may contradict, by other evidence, the certificate of a notary public” (NY CLS Exec § 137). “A notary public who is duly licensed as an attorney and counsellor at law in this state may substitute the words ‘Attorney and Counsellor at Law’ for the words ‘Notary Public'”^[FN10] (id.; see NY CLS Exec § 135). Further,

“The notary public’s electronic signature is deemed to be reliable if the standards which have been approved through regulation by the secretary of state have been met. Such regulations shall include, but not be limited to, the requirements that such electronic signature be: (i) unique to the notary public; (ii) capable of independent verification; (iii) retained under the notary public’s sole control; (iv) attached to the electronic record; and (v) linked to the data in such a manner that any subsequent alterations to the underlying document are detectable and may invalidate the electronic notarial act. ”

(NY CLS Exec § 135-c 5 [b]). Although not specifically defined within the statutory language, it may be deduced that the notary’s signature is required to be unique, capable of independent [*5]verification and not an easily alterable nor reproducible representation yet consistent with the signature affixed upon the oath of office provided to the licensing County Clerk in which “notary public’s certificate of official character is filed” (NY CLS Exec § 137).

In this instant matter, Plaintiff counsel’s argument that his signature is whatever he says it is, is indeed consistent with statutory and case law for the lay person principal signatory, although such inconsistency may be problematic in personal transactions. Not so, for Plaintiff counsel’s signature as the notary public of the Kuperman Affidavit. His notary public signature cannot be fungible from one moment in time to another nor from one document to another. Rather, it must be reliably consistent with his unique, capable of independent verification and not easily alterable nor reproducible signature as affixed to his notarial oath of office filed in the Richmond County Clerk’s Office, pursuant to the legislative intent, purpose and the industry standards (Plaintiff’s Exhibit A, NYSCEF document #14). Of note, Plaintiff counsel as the notary public is also the attorney signatory to the Statement of Authorization for Electronic Filing of which his signature affixed thereto is not “February” (NYSCEF document #15). Nevertheless, Plaintiff counsel’s claim at oral argument that “February” as affixed in the Kuperman Affidavit is his signature is herein credited.^[FN11] Nevertheless, based upon the totality of the circumstances herein, This Court irrefutably finds that “February” is not his non-fungible notarial signature affixed to his notarial oath of office filed in the Richmond County Clerk’s Office. Therefore, This Court finds that the Kuperman Affidavit is defective in form for the failure of the notary public to have affixed his signature consistent with his signature that is affixed to his oath of office filed in the Richmond County Clerk’s Office.

Nevertheless, such a defect in form is not fatal and may be rehabilitated within the discretion of the court. It has been held that where the notarial signature was omitted from a document it is considered a technical defect, where the defect is not jurisdictional in nature and where there is no undue nor substantial prejudice to a substantial right, then said defect may be disregarded or curable by subsequent affidavit: “Contrary to the defendants’ contention, the Supreme Court properly considered the expert affidavit submitted by the plaintiffs on that issue, since the notary’s failure to sign the jurat was a technical defect which could be disregarded in the absence of substantial prejudice to the defendants” (see CPLR 2001; Carter v Grenadier Realty, 83 AD3d 640, 642 [2d Dept 2011]) citing Baluchinsky v General Motors Corp., 248 AD2d 574, 575, 670 NYS2d 536 [1998]; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700, 700, 468 NYS2d 125 [1983]). “[T]he court disregarded Ms. Kim’s affidavit because of two technical defects: (1) the notary’s signature on the affidavit was illegible; and (2) there is no indication what date in April 1998 the document was notarized” (Seoulbank, NY Agency v D&J Export & Import Corp., 270 AD2d 193, 194 [1st Dept 2000]) citing Baluchinsky v GMC, 248 AD2d 574, 575 [2d Dept 1998]; Supreme Auto. Mfg. Corp. v Cont. Cas. Co., 97 AD2d 700 [1st Dept 1983]; see also, Pasqualini v Tedesco, 248 AD2d 604 [2d Dept 1998]; Lane Crawford Jewelry Ctr. v Han, 222 AD2d 214 [1st Dept 1995]). “Given the lack of prejudice to a substantial right of the defendant, the Supreme Court should have disregarded the defect in the affidavit of the plaintiff’s expert and should have considered the affidavit in opposition to the defendant’s motion (see, CPLR 2001; Baluchinsky at 575, citing Supreme Automotive; see also, [*6]Lauer v Rapp, 190 AD2d 778 [2d Dept 1993]). “[T]he single defect in the search warrant application is that the jurat was not signed. The jurat is, however, ‘simply evidence of the fact that the oath was properly taken before a duly authorized officer. It is no part of the oath’, and its absence is a defect curable by subsequent affidavits or testimony” (People v Zimmer, 112 AD2d 500, 501 [3d Dept 1985], citing People ex rel. Fifth Ave. & 37th St. Corp. v Miller, 261 AD 550 [1st Dept 1941]; see, Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700). “We reject plaintiff’s contention that Supreme Court erred in permitting defendant owners to correct, in reply, the defects in Kellam’s original affidavit neither signed nor notarized; however, defendant owners submitted a signed and notarized affidavit from Kellam in reply” (KSP Constr., LLC v LV Prop. Two, LLC, 224 AD3d 58, 66-67 [1st Dept 2024]). “The notary’s failure to sign the investigator’s affidavit is the type of defect which a court may permit to be corrected upon such terms as are just or, if a substantial right of a party is not prejudiced, disregard” (CPLR 2001; Supreme Automotive at 700 citing People ex rel. Fifth Ave. & 37th St. Corp. at 553-554). Herein, Defendant duly availed itself of the opportunity to full and fair exhaustive challenge to the Kuperman Affidavit in its Reply yet failed to object as to its inadmissibility in its form of notarization and therefore it cannot be found that Defendant is unduly prejudiced by its consideration. Moreover, it is found that Defendant has not been deprived of a substantial right and therefore further not prejudiced, such that this defect in the notarial signature is held as disregarded. Further, Defendant waived its right to object to the defect in form pursuant to CPLR § 2001. The Kuperman Affidavit is hereby ruled admissible and is being considered. Defendants have satisfied its burden for judgment as a matter of law. However, upon the shifting of the burden, Plaintiff has satisfied its burden in rebuttal establishing a scintilla of a triable issue of fact as to the Outstanding Verification Requests.

For the foregoing reasons, the answer to the Question as to what is a signature? A signature is whatever the signatory says it is. However, a notarial signature must be consistent with the signature affixed upon the oath of office filed with the licensing county clerk’s office.

Defendant’s Motion for Summary Judgment is Granted to the extent that Defendant has been found to have timely issued its Denials and the triable issue of fact is the Outstanding Verification Requests.

This Constitutes the Decision and Order of This Honorable Court.

Date: April 1, 2025
Brooklyn, New York
Hon. Sandra Elena Roper
Judge of the Civil Court

Footnote 1:“Plaintiff’s counsel responded, asserting that the notary public in question—who was also Plaintiff’s counsel—could confirm that the signature of the notary was authentic and is that of plaintiff’s counsel, even if it was not in the form of a full legal name. Plaintiff’s counsel argued that a notary’s signature need not be the notary’s full legal name, but rather any mark or representation that the notary can confirm as their signature” (Plaintiff’s Memorandum of Law, NYSCEF document #17).

Footnote 2:“Though individuality and legibility seem as if they ought to be essential traits of a signature, that’s never really been the case. Starting in the 9th and 10th centuries, scribes validated documents using the sign of the cross. This practice may account for the custom among illiterates of signing an “x” in place of their name. By contrast, among the literate gentility, a signature was not meant to be easily discerned—an intricate and illegible signature, rather than a printed one, suggested an education in handwriting” (Julia Fesenthal, Slate, Give me Your John Hancock https://slate.com/news-and-politics/2011/03/when-did-we-start-signing-our-names-to-authenticate-documents.html [March 18, 2011]).

Footnote 3:See n 2, supra.

Footnote 4:The Guardian, “Whose Scribble is that“

https://www.theguardian.com/australia-news/2023/sep/08/celebrity-famous-person-signatures-quiz#:~:text=Some%20time%20around%203000BC%20a%20Sumerian%20scribe,contracts%2C%20replacing%20the%20seal%20or%20the%20X (March 8, 2023).

Footnote 5:“In ecclesiastical law. The name of a sort of rescript, without seal, containing the supplication, the signature of the pope or his delegate, and the grant of a pardon. In contracts. The act of writing one’s name upon a deed, note, contract, or other instrument, either to identify or authenticate it, or to give it validity as one’s own act. The name so written is also called a “signature” (The Law Dictionary, Signature https://thelawdictionary.org/signature/#:~:text=The%20act%20of%20writing%20one’s,Signatory).

Footnote 6:Merriam-Webster, Signature: Legal Definition https://www.merriam-webster.com/dictionary/signature#:~:text=na%C2%B7%E2%80%8Bture-,1,or%20her%20wishes%20or%20intentions.

Footnote 7:Merriam-Webster, signature by mark https://www.merriam-webster.com/dictionary/signature%20by%20mark.

Footnote 8:Robert T. Koehler, American Association of Notaries, Can a Notary Use a Signature Stamp to Notarize Documents? https://www.notarypublicstamps.com/articles/can-a-notary-use-a-signature-stamp-to-notarize-documents#:~:text=If%20you%20are%20a%20notary,a%20handwritten%20or%20wet%20signature [September 29, 2019].

Footnote 9:See n 8, supra.

Footnote 10:The second question presented: Whether an attorney who is a notary admitted in the State of New York is held to a different standard pertaining to a signature than a non-attorney notary. “No” is the response agreed upon by Plaintiff and Defendant. However, unlike lay-person notary publics, attorney at law notary publics are held to a higher ethical standard. Anecdotally, in the practice of law in avoidance of allegations of legal malpractice or professional misconduct for ethical lapses, it is cautioned that counselors at law by virtue of their heightened ethical oath of office should be wary of notarization of legal documents that they did not draft themselves, particularly wills, deeds contracts and powers of attorney.

Footnote 11:Parenthetically, similarly to judges, certain public figures and professions, such as in the arts, choose a personal signature and a public signature.Nationwide Gen. Ins. Co. v Gaines (2025 NY Slip Op 01896)

Reported in New York Official Reports at Nationwide Gen. Ins. Co. v Gaines (2025 NY Slip Op 01896)

Nationwide Gen. Ins. Co. v Gaines

2025 NY Slip Op 01896

Decided on April 01, 2025

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 01, 2025
Before: Manzanet-Daniels, J.P., González, Shulman, Rodriguez, Pitt-Burke, JJ.
Index No. 151738/22|Appeal No. 4009|Case No. 2024-03961|

Hollander Legal Group, PC, Melville (Brian Kaufman of counsel), for appellants.

The Rybak Firm, P.L.L.C., Brooklyn (Maksim Leyvi of counsel), for respondents.

Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered April 15, 2024, which denied plaintiffs’ motion for summary judgment declaring that they have no obligation to pay no-fault benefits to defendants Emote Medical Services P.C. and Nourseen PT P.C. (together, the Providers) in connection with the underlying June 2, 2021 motor vehicle collision, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.

Plaintiffs are entitled to summary judgment because they established that the injured claimant failed to attend properly noticed independent medical examinations (IMEs), thus foreclosing coverage (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). Plaintiffs submitted the affidavit of an employee from the company that schedules the IMEs, who averred that he sent two IME notices to the claimant and that the claimant failed to appear on either date. Plaintiffs also submitted the affirmations of the IME doctor, which were consistent with the scheduling employee’s affidavit in that claimant failed to appear for the examinations.

The Providers’ argument that the IMEs were untimely is unpersuasive. Where, as here, an insurer sends “notices scheduling . . . IMEs prior to the receipt of . . . claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply” (Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]). Moreover, the failure to attend a properly noticed examination is a “coverage defense [that] appl[ies] to any claims, and is not determined on a bill by bill basis” (PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645, 646 [1st Dept 2020] [internal quotation marks omitted]).

Nor were plaintiffs required to establish timely disclaimer of coverage in light of claimant’s failure to attend the medical examinations (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424-425; see also Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 1, 2025

MAZ Chiropractic, P.C. v State Farm Ins. Co. (2025 NY Slip Op 50492(U))

Reported in New York Official Reports at MAZ Chiropractic, P.C. v State Farm Ins. Co. (2025 NY Slip Op 50492(U))

[*1]

MAZ Chiropractic, P.C. v State Farm Ins. Co.

2025 NY Slip Op 50492(U)

Decided on March 28, 2025

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 28, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-405 K C

Law Office of David Paul Horowitz, PLLC (David Paul Horowitz and Katryna L. Kristoferson of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Edward H. King, J.), entered September 28, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court (Edward H. King, J.) entered September 28, 2023 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s sole contention on appeal, the affirmation submitted by the attorney who was to conduct the scheduled EUOs was sufficient to establish that plaintiff had failed to appear. The attorney stated that he was present at the location of the scheduled EUOs, that he would have conducted the EUOs if plaintiff had appeared, and that he possessed personal knowledge that plaintiff had failed to appear (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; SVP Med Supply, Inc. v GEICO,76 Misc 3d 134[A], 2022 NY Slip Op 50931[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To the extent plaintiff contends that an issue existed with respect to counsel’s recollection of plaintiff’s failure to appear, such a contention is without [*2]merit, as, on its face, counsel’s affirmation was not unworthy of belief (see e.g. Joseph-Felix v Hersh, 208 AD3d 571 [2022]; SVP Med Supply, Inc., 2022 NY Slip Op 50931[U]).

Accordingly, the order, insofar as appealed from, is affirmed.

TOUSSAINT, P.J. and MUNDY, J., concur.

OTTLEY, J., taking no part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 28, 2025Integral Med. Supply Corp. v Progressive Ins. Co. (2025 NY Slip Op 50493(U))

Reported in New York Official Reports at Integral Med. Supply Corp. v Progressive Ins. Co. (2025 NY Slip Op 50493(U))

[*1]

Integral Med. Supply Corp. v Progressive Ins. Co.

2025 NY Slip Op 50493(U)

Decided on March 28, 2025

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 28, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-508 RI C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. McCormack, Mattei & Holler, P.C. (Jamila Shukry of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Robert J. Helbock, Jr., J.), dated May 16, 2024. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Robert J. Helbock, Jr., J.) dated May 16, 2024 granting defendant’s motion for summary judgment dismissing the complaint.

Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had materially misrepresented where the vehicle was garaged. As this defense is subject to preclusion (see JFL Med. Care, P.C. v Wesco Ins. Co., 77 Misc 3d 139[A], 2022 NY Slip Op 51376[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Empire State Med. Supplies, Inc. v Sentry Ins., 55 Misc 3d 130[A], 2017 NY Slip Op 50403[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), defendant was required to establish that it had timely denied the claims on that ground, but it failed to do so (see JFL Med. Care, P.C., 2022 NY Slip Op 51376[U]; Empire State Med. Supplies, Inc., 2017 NY Slip Op 50403[U]; Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant’s motion should have been denied. In view of the foregoing, we reach no other issue.

Accordingly, the order is reversed and defendant’s motion for summary judgment [*2]dismissing the complaint is denied.

TOUSSAINT, P.J. and MUNDY, J., concur.

OTTLEY, J., taking no part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 28, 2025Grand Med. Supply Corp. v Permanent Gen. Assur. Corp. (2025 NY Slip Op 50491(U))

Reported in New York Official Reports at Grand Med. Supply Corp. v Permanent Gen. Assur. Corp. (2025 NY Slip Op 50491(U))

[*1]

Grand Med. Supply Corp. v Permanent Gen. Assur. Corp.

2025 NY Slip Op 50491(U) [85 Misc 3d 135(A)]

Decided on March 28, 2025

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 28, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2024-384 K C

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated October 23, 2023. The order denied defendant’s motion to vacate a judgment of the same court entered December 19, 2022 upon defendant’s failure to appear or answer the complaint and, upon such vacatur, to dismiss the complaint as abandoned or, in the alternative, to compel plaintiff to accept defendant’s answer.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment and, thereupon, to dismiss the complaint as abandoned is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor as a result of a motor vehicle accident which occurred on December 10, 2019. Plaintiff served the summons and complaint on defendant’s agent on September 18, 2020. Defendant did not appear or answer, and a default judgment was entered against defendant on December 19, 2022.

In May 2023, defendant moved to vacate the default judgment and, upon such vacatur, to dismiss the complaint as abandoned pursuant to CPLR 3215 (c) or, in the alternative, to compel plaintiff to accept an answer pursuant to CPLR 3012 (d). Defendant argued that the action should be dismissed pursuant to CPLR 3215 (c) as plaintiff failed to enter a default judgment within one year of defendant’s default in appearing. Service was made on September 18, 2020, but plaintiff did not obtain a default judgment until December 19, 2022. With respect to its alternative relief, defendant submitted the affidavit of its employee who averred that defendant was not personally served with the summons and complaint, the summons and complaint was never received by defendant, and defendant first received notice of this action when it received a copy of the notice of entry of the default judgment on December 28, 2022. As a meritorious defense, defendant’s employee stated that there was a lack of coverage, as plaintiff’s assignor was injured in an automobile accident while occupying a vehicle other than the specific vehicle insured under the subject insurance policy. Plaintiff failed to oppose the motion. By order dated October 23, 2023, the Civil Court (Sandra E. Roper, J.) denied defendant’s motion, finding that [*2]defendant failed to establish a reasonable excuse for the default, noting that “[t]he summons and complaint was properly served on [d]efendant[‘s] agent . . . and any issues of delay or failure in forwarding summons and complaint should be resolved between [d]efendant and [its] agent.”

Defendant correctly contends that the complaint should have been dismissed as abandoned. “CPLR 3215 (c) provides that ‘[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed’ ” (Josephson v State Farms Ins. Co., 60 Misc 3d 139[A], 2018 NY Slip Op 51132[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “Where . . . a plaintiff fails to initiate proceedings for the entry of judgment within one year after a default, the plaintiff is obligated to offer a reasonable excuse for its delay in moving for leave to enter a default judgment, and must demonstrate that it has a meritorious cause of action” (DJS Med. Supplies, Inc. v Infinity Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52073[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Here, there was no dispute that the summons and complaint was served on September 18, 2020 and that plaintiff did not obtain a default judgment until December 19, 2022, more than two years later. Moreover, plaintiff, by failing to submit papers in opposition to defendant’s motion or cross-move for relief, failed to show good cause for its delay in seeking a default judgment or demonstrate that it has a meritorious cause of action. Consequently, the Civil Court should have granted defendant’s motion to, among other things, dismiss the complaint as abandoned (DJS Med. Supplies, Inc. v Infinity Ins. Co., 2013 NY Slip Op 52073[U]).

We reach no other issue.

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment and, thereupon, to dismiss the complaint as abandoned is granted.

TOUSSAINT, P.J. and MUNDY J., concur.

OTTLEY, J., taking no part.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 28, 2025First Stop P.T., P.C. v GEICO Ins. Co. (2025 NY Slip Op 50947(U))

Reported in New York Official Reports at First Stop P.T., P.C. v GEICO Ins. Co. (2025 NY Slip Op 50947(U))

[*1]

First Stop P.T., P.C. v GEICO Ins. Co.

2025 NY Slip Op 50947(U) [86 Misc 3d 1216(A)]

Decided on March 26, 2025

Civil Court Of The City Of New York, Richmond County

Helbock, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 26, 2025

First Stop P.T., P.C. As Assignee of Sandy Molina, Plaintiff against GEICO Insurance Company, Defendant.

Index No. CV-734838-24/RI

Robert J. Helbock, J.

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

Papers       & nbsp;       Numbered
Notice of Motion and Affirmation Affidavit annexed dated Sept. 11, 2024 NYSCEF Doc#: 4-10
Affirmation in Opposition dated November 11, 2024 NYSCEF Doc#: 13-14
Affirmation in Reply dated December 5, 2024 NYSCEF Doc#: 15-16

Upon the foregoing cited papers, the decision on Defendant’s Motion for Summary Judgment is as follows:

Plaintiff, FIRST STOP P.T., P.C. (hereafter “Plaintiff” or “First Stop”), as assignee of Sandy Molina (hereafter “Assignor”), commenced this action against the defendant, GEICO INSURANCE COMPANY (hereinafter, “Defendant”), to recover assigned first-party No-Fault insurance benefits for medical treatment provided to the Assignor pursuant to an automobile insurance policy issued by the Defendant.

Currently before the Court is Defendant’s motion seeking (i) an order pursuant to CPLR §3212 to grant summary judgment to the Defendant on the grounds that Plaintiff failed to provide GEICO with response to written demands for verification requested pursuant to the N.YS. Insurance Department regulation. (11 N.Y.C.R.R. §65-3.5).

The Court finds the following facts relevant to the decision in this matter.

The Defendant received a bill on May 23, 2023 for treatment rendered by the Plaintiff to [*2]the Assignor on April 14, 2023 in the amount of $614.00. On June 6, 2023 the Defendant requested the Plaintiff to appear for an “examination under oath (hereafter referred to as “EUO”) to take place on July 18, 2023, which was eventually rescheduled to August 29, 2023.

In the same letter making the EUO request dated June 6, 2023, the Defendant asked the Plaintiff to produce the following documents no later than seven days prior to the EUO:

1. “Sign in sheets, treatment notes, evaluation and reevaluation reports, and referrals from other healthcare providers to the extent not already provided;

2. Documents evidencing ownership of First Stop at the time of treatment for which you seek payment, by one or more licensed professionals, including but not limited to a copy of the certificate of incorporation, receipts for filing, stock certificates and the stock ledger for the professional corporation;

3. A list of the individuals who provide health care services on behalf of First Stop, licensing documentation for those individuals, and documents identifying the relationship between each individual and First Stop (i.e. W2s, 1099s, and/or K-1s);

4. Documents relating to the income and expenses of First Stop, including but not limited to payroll tax returns, corporate tax returns, financial statements, general ledgers, and bank statements for the past 12 months; and

5. Documents, contracts and agreements (including proofs of payments thereunder) relating to the relationship between First Stop and any entity or individual that (i) leases space and/or equipment to or First Stop or (ii) provides management, marketing, consulting, administrative, mailing, billing or collection services to First Stop.” (June 6, 2023 letter from Anuj Kundnani from GEICO to First Stop PT PV, including any typographical errors.)

Both sides agree that the Plaintiff appeared for the EUO on August 29, 2024. Then on September 1, 2023 the Defendant’s attorney sent a follow-up letter to the Plaintiff demanding the following documentation:

1. “Copies of all leases between First Stop and primary leaseholders, as well as proof of payment made thereunder the time period of January 1, 2023 to present regarding the following locations (14 addresses listed)… If there are no written leases, rent amounts at each location and names of doctors or clinics who serves as primary lease holder for First Stop;

2. A complete list of employees and individuals who provide or have provided services on behalf of First Stop, documents identifying the relationship between each individual and First Stop, including all W-2s, W-4s, W-9s, 1099s, K-a forms; and documentation identifying the compensation for these individuals, including quarterly payroll returns;

3. All licenses and certificates for each and every healthcare professional, including physical therapists, and technicians, who provide or have provided services on behalf of First Stop, including, but not limited to: (i) Mohamed Afify; (ii) Waleed Abdelrohman, (iii) “Dennis”;

4. All Billing agreements and paperwork, and proof of payment thereunder relating to billing (copies of the front and back of checks), between First Stop and (i) RMA Billing and Consulting; and (ii) Billing Experts Inc.;

5. All Functional Capacity Evaluation referral forms from treating providers for patients listed in Exhibit ‘A’;

6. All documentation relating to the employment status for patients listed in exhibit ‘A’; and

7. Copies of any materials disseminated by First Stop on behalf of its practice, including Flyers or business cards.”

The Defendant issued a second letter dated September 18, 2023 requesting verification of the same information requested in the September 1, 2023 letter. Then a follow-up letter was issued requesting the same information again on October 24, 2023.

The Plaintiff responded by a letter from their attorney dated December 28, 2023 in which the attorney raised objections to the requests, and then allegedly provided responses to the requests as follows:

1. In response to Defendant’s verification request #1 in the September 1, 2023 letter the Plaintiff responded:

“Please see Exhibit I and Exhibit 2” (The Court notes, Exhibit I attached to the September 1, 2023 letter included with the motion contains only three (3) leases for 160-59 Rockway Blvd., Jamaica, NY 11434; 1251 Ralph Avenue, Brooklyn NY, 11236; and 146 Empire Blvd., Brooklyn NY 11225, which were attached to the motion. Exhibit 2 contains the front and back of checks from First Stop PT PC made payable to different vendors some of which are labeled as “rent.”)

2. In response to Defendant’s verification request #2 in the September 1, 2023 letter the Plaintiff responded:

“Please see Exhibit 3.” (The Court notes, Exhibit 3, attached to the September 1, 2023 letter included with the motion, contains a document labeled “Payroll Register Report.”)

3. In response to Defendant’s verification request #3 in the September 1, 2023 letter the Plaintiff responded: “Please see Exhibit 4.” (The Court notes, Exhibit 4, attached to the September 1, 2023 letter included with the motion, contains documents labeled as licensing and registration certificates from the NYS Department of Education Department, and an attendance certificate from a medical company.)

4. In response to Defendant’s verification request #4 in the September 1, 2023 letter the Plaintiff responded:

“Please see Exhibit 5 and Exhibit 2.” (The Court notes, Exhibit 5, attached to the September 1, 2023 letter included with the motion, contains marketing material and Exhibit 2 is the cancelled checks referred to above.)

5. In response to Defendant’s verification request #5 in the September 1, 2023 letter the Plaintiff responded:

“Overbroad and irrelevant…” (The Court notes that no Exhibits were attached or referred to in response to this verification request.)

6. In response to Defendant’s verification request #6 in the September 1, 2023 letter the Plaintiff responded:

“Objection: Vague, overbroad and irrelevant….” (The Court notes that no Exhibits were attached or referred to in response to this verification request.)

7. In response to Defendant’s verification request #7 in the September 1, 2023 letter the Plaintiff responded:

“Please see Exhibit 6.” (The Court notes that Exhibit 6 was not included in the documents attached to the motion with the December 28, 2023 letter from the Plaintiff’s attorney.)

By a NF-IO Form dated January 25, 2024, the Defendant denied payment of the bill giving the reason for denial as “Payment is denied. You have failed to comply without verification request of 9/18/2023 within 120 days of such request or provide us with written proof providing reasonable justification for your failure to comply with the verification request.”

The Plaintiff instituted this action by a summons and complaint filed June 20, 2024. The Defendant filed an answer with the Court on July 30, 2024. The Defendant filed this motion for summary judgment on September 11, 2024. The Plaintiff filed opposition to the motion on November 11, 2024, and a reply was filed on December 5, 2024. The parties argued the motion on December 19, 2024 along with motions for summary judgment in actions between the same parties in NYC Civil Court Index Numbers CV-734903-24/RI, CV-734948-24/RI, CV-735025-24/RI. The Court reserved decision on all of these motions.

The claim procedure for payments pursuant to a New York automobile insurance policy (hereafter referred to as a “No-Fault” policy) are set forth in detail by the regulations of the NYS Insurance Department in the New York Codes, Rules and Regulations (NYCRR) Title 11, Chapter III, Subchapter B, Part 65, Subpart 65-3 (hereafter referred to as 11 NYCRR §65-3 et. seq.). Section 65-3.5 sets forth the particulars of the claim procedure. Paragraphs (a) and (b) of that section provide:

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

(b) Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification form. Requests by an insurer for additional verification need not be made on any prescribed or particular form… 11 NYCRR §65-3.5(a-b).

Pursuant to this section, the “initial verification request” made by the insurance carrier is to direct an applicant, who notifies the carrier of a claim, to file the specifics of the claim on the designated form. The Superintendent provides the forms for the claim (NF-2 and NF-3). (11 NYCRR §65-3.5 [a]) The “subsequent” verification request must be made in 15 business days for any additional information required, however, the response to this request does not have to be on any particular form. (11 NYCRR §65-3.5[b]) The regulations require a “follow-up” verification request if there is no response to the subsequent verification request within thirty days. (11 NYCRR §65-3.6[b]) However, the follow-up request does not toll the time to issue the denial. The claim need not be denied until timely verification is provided. (11 NYCRR §65-3.8)

The regulations do not provide for a fourth or “supplemental” verification request after the response to the “subsequent” verification request is received. While the regulations do not preclude such a request, the time to file any denial of claim is not tolled by such a fourth request. If it did, this verification process would be endless, contrary to the public policy of swiftly addressing the payment of the bills. (LMK Psychological Services, PC, v. State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]).

However, the regulations are clear that the insurance carrier is entitled to receive proper proof of claim made in the initial and subsequent verification requests. (11 NYCRR §65-3.8). Likewise, the Court of Appeals is clear that the insurance carrier is entitled to delay or deny payments to an unlicensed or fraudulently licensed health care provider. (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). The Courts have permitted the insurance carrier to delay payments of invoices to investigate such unlicensed or fraudulent behavior within the time constraints provided by the regulations.

In this instance, the “subsequent” verification request was made by the letter of June 6, 2023 which outlined the items the Defendant sought to be produced at, or seven days before, the EUO. The EUO was held on August 29, 2023 and by the letter dated September 1, 2023 the Defendant’s attorney notified the Plaintiff that two of the items requested in the June 6, 2023 letter were not supplied by the responses in the EUO, namely:

(3) A list of the individuals who provide health care services on behalf of First Stop, licensing documentation for those individuals, and documents identifying the relationship between each individual and First Stop (i.e. W-2s, 1099s, and/or K-1s);

(5) Documents, contracts and agreements (including proofs of payments thereunder) relating to the relationship between First Stop and any entity or individual that (i) leases space and/or equipment to or First Stop or (ii) provides management, marketing, consulting, administrative, mailing, billing or collection services to First Stop.”

This is information was requested a second time in the letter of September 1, 2023 in the following paragraphs of the letter:

(1) “Copies of all leases between First Stop and primary leaseholders. . .”

(2) “All licenses and certificates for each and every healthcare professional, including physical therapists, and technicians, who provide or have provided services on behalf of First Stop, . . . . .”

The remainder of the information requested in the September 1, 2023 letter was new information requested for the first time.

The Plaintiff submitted a response to the verification request by a letter dated December 28, 2023 that included three leases, copies of checks to vendors, and licensing certificates for the medical providers. The Defendant issued a denial of the claim (NF-10) on January 25, 2024 alleging the Defendant failed to comply with the verification request. The Plaintiff contends that it did comply by its response on December 28, 2023.

The issue raised is whether the Plaintiff’s response to the verification request made by its December 28, 2023 letter with attachments satisfied the demand of the “subsequent” verification request issued June 6, 2023.

In this instance, the subsequent verification request was timely made and issued simultaneously with the request for the EUO. The Defendant’s time to pay or deny the claims was tolled by the EUO scheduling letter. 11 NYCRR §65-3.5(b).

However, that toll does not apply to the time to request the verification. In Burke Physical Therapy, P.C. v State Farm Mutual Automobile Ins. Co. 209 N.Y.S.3d 712 [Second Dept, 2nd, 11th & 13th J.D, 2024]) the Court opined that:

” . . . the regulations do not provide that a toll of the time to pay or deny a claim created by timely additional verification request also grants an insurer additional opportunities to make requests for verification that would otherwise be untimely. (Neptune Med. Care, P.C. v. Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 N.Y Slip op 51220[U]; see O & M Med. P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U], indeed, an original request for additional verification made more than 30 days after receipt of a prescribed verification form i.e., an NF-3 form or NF-4 form, is a nullity as to that claim, regardless of any toll of the time to pay or deny the claim that might be in effect. ” Burke Physical Therapy, P.C. v State Farm Mutual Auto. Ins. Co., 209 N.Y.S.3d 712, at 714-715, [App. Term, Second Dept., 2nd, 11th, 13th J.D. [2024].)

So, while the time to deny the bill is tolled until the verification is complete, the time to make the subsequent verification requests, 15 business days, is not tolled.

By the letter of September 1, 2024 the Defendant notified the Plaintiff that some of the verification information that was originally requested in the June 6, 2023 letter was still outstanding. That same September 1, 2023 letter also asked for new verification information that was not previously requested in the June 6, 2023 verification request. The new information requested is made more than 15 business days after the receipt of the prescribed initial verification form and therefore is a nullity. (Burke Physical Therapy, P.C v State Farm Mutual Automobile Ins. Co., 209 N.Y.S.3d 712). The Plaintiff is not required to respond to the request for the new information requested in the September 1, 2023 letter, but was still responsible for those items requested in the Defendant’s June 6, 2023 letter that were not provided at the EUO as identified by Defendant’s September 1, 2023 letter.

The Plaintiff’s December 28, 2023 response provided documents allegedly in response to the June verification request. The regulations only require the response provide all the information under the Plaintiff’s “control or possession or written proof providing reasonable justification for the failure to comply.” (11 NYCRR 65-3.5[o]) The issue of whether the Plaintiff’s verification response satisfies the June 6, 2023 demand is a material issue of fact for trial. If it is determined that the December 28, 2023 letter was responsive to the verification request, then the January 24, 2024 denial would be in error. Therefore, a trial is necessary in this matter.

Accordingly, the Court rules the summary judgment motion is DENIED and the matter is referred to trial on the issue of whether the December 28, 2023 response to the June 6, 2023 subsequent verification request satisfied the request.

This is the decision and order of the Court.