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

APPEARANCES OF COUNSEL

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Decided on June 6, 2016

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 2, 2013. 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, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered October 2, 2013, the Civil Court granted defendant’s motion.

For the reasons stated in Great Health Care Chiropractic, P.C., as Assignee of Carlos Thomas v Hereford Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-1720 Q C], decided herewith), the order is reversed and defendant’s motion for summary judgment is denied.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 3, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage, in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, or that plaintiff had failed to appear for the EUOs; that defendant lacked justification for its EUO requests; that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests; and that defendant failed to prove that plaintiff had willfully obstructed defendant’s investigation.

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

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

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

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

Accordingly, the order is affirmed.

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

Decided on June 6, 2016

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered September 9, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered September 9, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

For the reasons stated in Great Health Care Chiropractic, P.C., as Assignee of Carlos Thomas v Hereford Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-1720 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 14, 2013, deemed from a judgment of the same court entered September 4, 2013 (see CPLR 5512 [a]). The judgment, entered pursuant to the August 14, 2013 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,092.34.

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

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

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

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

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

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

Decided on June 6, 2016

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered July 25, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on the failure of plaintiff’s assignor to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied defendant’s motion but, in effect, limited the issues for trial, pursuant to CPLR 3212 (g), to whether plaintiff’s assignor had failed to appear for duly scheduled IMEs. As limited by its brief, defendant appeals from so much of the order as denied its motion.

In support of its motion, defendant submitted affidavits from the doctor and chiropractor who were to perform the IMEs, which affidavits were sufficient to establish that plaintiff’s assignor had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

Decided on June 6, 2016

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 6, 2013. 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 which granted defendant’s motion for summary judgment dismissing the complaint.

For the reasons stated in Alleviation Med. Servs., P.C., as Assignee of Kadeem Anderson v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-2132 K C], decided herewith), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decided on June 6, 2016

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 6, 2013. 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 which granted defendant’s motion for summary judgment dismissing the complaint.

While defendant submitted an affirmation from the doctor who was scheduled to perform the independent medical examinations (IMEs), the doctor did not establish that he possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs. Therefore, defendant failed to establish its entitlement, as a matter of law, to judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for IMEs (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In addition, as each IME scheduling letter was mailed to plaintiff’s assignor at a different address, there is also an issue fact as to whether plaintiff’s assignor received notice of both scheduled IMEs.

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

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

Decided on June 6, 2016

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 4, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered March 4, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

For the reasons stated in Great Health Care Chiropractic, P.C., as Assignee of Carlos Thomas v Hereford Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-1720 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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