Decided on August 5, 2022

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

Decided on August 5, 2022

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

Index No. CV-009422-20/NY

Peter C. Merani, P.C. (Adam Waknine, of counsel), New York City, for petitioner.

Samandarov & Associates, P.C. (David M. Gottlieb, of counsel), New York City, for respondent.

In this special proceeding arising out of a no-fault arbitration, petitioner American Transit Insurance Company (ATIC) seeks to vacate the determination of a master arbitrator affirming the award of a no-fault arbitrator, which awarded respondent first-party no-fault benefits (Motion Seq. No. 001). Respondent Mark S. McMahon MD, P.C. a/a/o Rubin Gomez opposes the petition and seeks attorney’s fees incurred in opposing the petition.

BACKGROUND

Respondent Mark S. McMahon MD, P.C is the assignee of claims for no-fault benefits for arthroscopic surgery performed on the right knee of Rubin Gomez on October 31, 2017 , for injuries allegedly arising out of an automobile accident on June 3, 2017 (see petitioner’s exhibit B, NF-10 form and Explanation of Benefits). ATIC denied the claims on the ground that the [*2]surgery and surgically related services to the right knew were not causally related to the accident, based on a peer review, and “no medical necessity and no causal relationship between the accident and the shoulder surgery of 10/31/17” (see id.). Respondent then submitted the claims to no-fault arbitration (see petitioner’s exhibit D, no-fault arbitration request).

A no-fault arbitration hearing of respondent’s claims was held before the American Arbitration Association on January 8, 2020 (see petitioner’s exhibit A, no-fault arbitrator award).

Arbitrator Marcie Glasser ruled in favor of respondent, finding that “Claimant had a causally-related ongoing knee injury for which surgery was medically necessary under the circumstances” (see id. at 5). The no-fault arbitration award dated January 14, 2020 states, in relevant part:

“With regard to medical necessity defense, I find that [ATIC]’s Peer Review Report is sufficient to meet its burden of proof and to rebut [respondent]’s evidence. Thereafter, the burden shifts back to [respondent] to present competent medical proof as to the medical necessity for the knee arthroscopy, by a preponderance of the credible evidence. . . . Ultimately, the burden of proof rests with the [respondent].

* * *

I find that this burden as to medical necessity has been met by [respondent]’s medical records, the Rebuttal Report, Letter of Medical Necessity of Dr. McMahon, and the evidence collectively. I am convinced that the Claimant attempted an ample course of non-operative conservative treatment measures including physical therapy under the circumstances, and the decision to perform arthroscopic knee surgery was reasonable to repair the meniscus tear. Moreover, this finding is supported by the fact that the credibility of the Peer Review Report is diminished as it is found to be conclusory in nature, and because Dr. Skolnick primarily relied upon the independent radiology report of Dr. Fitzpatrick which bears minimal weight in this determination. The treating radiologist and the treating orthopedist both reviewed the MRI which showed a tear of the posterior horn of the medial meniscus. The Rebuttal Report appropriately addressed the issues of the Peer Review Report. The orthopedic surgeon, Dr. McMahon, based on his professional experience, examination and treatment of the Claimant determined that the surgery for the meniscus tear was in accordance with the standard of care. I find that the Claimant had a causally-related ongoing knee injury for which surgery was medically necessary under the circumstances”

“I find that Respondent has not adequately demonstrated lack of causation, and therefore, the defense cannot be sustained. The Peer Review Report of Dr. Skolnick is found to be conclusory with regard to the issue of causation. Moreover, Dr. Skolnick relied on the Independent Radiology Evaluation of Dr. Fitzpatrick, which states that the MRI findings, specifically the cartilage thinning, are degenerative in nature, but the Independent Radiology Evaluation, was not specific as to the tear in relation to the thinning cartilage. In the Addendum, Dr. Skolnick stated that he agrees with the treating radiologist’s report that the MRI showed a tear of the meniscus; however, according to the independent radiology review of Dr. Fitzpatrick, there was no evidence of traumatic injury. I find that [*3]Dr. Skolnick’s determination that the MRI showed no traumatic injury is without appropriate reliance on the independent radiology review of Dr. Fitzpatrick. The Peer Reviewer himself interpreted the MRI as showing a meniscus tear, which is in accordance with the interpretation of the MRI by the treating orthopedist and the treating radiologist. The independent radiologist did not state with specificity that the meniscus tear is degenerative in nature and there is a lack of support for the opinion that the injury is not causally related to the accident. I find that the reliance on the Independent Radiology Review is misplaced, and Dr. Skolnick’s finding of lack of causation is conclusory”

The arbitrator also awarded interest from the date of 1/21/2019, and attorney’s fees in the amount “in accordance with newly promulgate 11 NYCRR 65-4.6(d) on the amount awarded of $4,702.03 at a rate of 2% per month, simple and ending with the date of payment of the Award” (id. at 7). The arbitrator also directed ATIC to pay respondent $40 for reimbursement of the fee paid to the Designated Organization, unless the fee was previously returned pursuant to an earlier award (id.).

On appeal, Master Arbitrator Robert Trestman affirmed the original arbitrator’s award in its entirety. The master arbitration award, dated March 24, 2020 states, in relevant part:

“I have carefully reviewed the parties’ briefs, the record on appeal, as presented by respondent and the pertinent case law, including the two cases hereinabove cited by respondent. The arbitrator’s detailed findings and conclusions as to the medical necessity and causal relationship issues were within the arbitrator’s sound discretion and rational interpretation of the evidence and which I do not find to be reversible error within my purview as a Master Arbitrator. . . . Within my powers as a Master Arbitrator, I cannot conduct a de novo review of the case and I cannot substitute my interpretation or my view as to the weight or credibility of the evidence over that of the lower arbitrator, especially as the arbitrator’s decision appears to be rational and based on the evidentiary record”

The master arbitrator also awarded $195 to the applicant for attorney’s fees for having prevailed in the master arbitrator’s review of the award (see id. at 5).

On July 29, 2020, ATIC commenced this proceeding pursuant to CPLR 7511 to vacate the master arbitrator’s award.

DISCUSSION

“Judicial review of a master arbitrator’s award is restricted, by the terms of the statute, to the grounds for review set forth in article seventy-five of the CPLR” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981] [internal quotation marks omitted]; Insurance Law § 5106 [c]). Pursuant to CPLR 7511 (b), an arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeding his, her, or their power or imperfectly executed it that a final or definite award was not made; or (4) the failure to follow [*4]the procedures of CPLR article 75. Additionally,

“[w]here, as here, there is compulsory arbitration involving no-fault insurance, the standard of review is whether the award is supported by evidence or other basis in reason. This standard has been interpreted to mean that the relevant test is whether the evidence is sufficient, as a matter of law, to support the determination of the arbitrator, [and whether the determination] is rational and is not arbitrary and capricious”

According to ATIC, the arbitrators ignored explicit evidence that ATIC had submitted, failed to apply the proper evidentiary burdens, and rendered an award that was not final and definite that was prejudicial to petitioner (affirmation of petitioner’s counsel ¶ 62). Citing the standards applicable to an insurer’s motion for summary judgment on the ground of medical necessity, ATIC contends that, once it offered it peer review report of Dr. Skolnick, the burden should have shifted to respondent to rebut with evidence establishing that the services were medically necessary (see id. ¶¶ 21-23). ATIC contends that respondent failed to meet its burden because “Respondent offered no significant rebuttal to actually rebut the findings of Dr. Skolnick” (id. ¶ 34).

ATIC argues, “Dr. Skolnick submitted an addendum dated 3/7/19. In it, Dr. Skolnick directly addressed Dr. McMahon’s general statements concerning an alleged tear in the knee necessitating the surgery. Dr. Skolnick stated there was no right knee fracture or dislocation” (id. ¶ 31). According to ATIC, “[t]he no-fault arbitrator exceeded his bestowed powers as there was no basis simply to cast aside the entirety of petitioner’s evidence” (id. ¶ 38).

Respondent maintains that “ATIC’s evidence was not cast aside. It was carefully reviewed and found to be insufficient, in light of the facts and Respondent’s rebuttal (affirmation in opposition of respondent’s counsel ¶ 11). Respondent contends that petitioner’s disagreement with the arbitrator’s findings of fact is not a basis to vacate the award (id.). Respondent further argues, “Applicant was not required to prove that the motor vehicle [sic] exacerbated a pre-existing condition. That was ATIC’s burden if ATIC wanted to prove that the injury was not caused by the accident. . . .it is well-settled that exacerbation of a preexisting condition is compensable under no-fault.”

In reply, ATIC argues that the issue of causality was never considered (reply affirmation of petitioner’s counsel ¶ 7). ATIC submits that “the arbitrator failed to apply the rules in connection to a lack of causation defense” (id.. ¶ 10). According to ATIC, “lack of causation does not require a citation to medical rationales as to whether or not certain types of treatment should be administered. The causation issue is not whether or not a doctor should administer treatment” (id. ¶ 11). ATIC maintains, “the peer review doctor is not required to cite any medical authorization as to support his conclusion for lack of causation as the issue is not one regarding lack of medical necessity. The arbitrator confused the proof required with that of prima facie proof for a lack of medical necessity defense” (id. ¶ 17).

The court agrees with respondent.

“The master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator” (Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577 [2d Dept 2002]). Where error of law is at issue, the [*5]test is “whether any reasonable hypothesis can be found to support the questioned interpretation. Generally, a court will not set aside an arbitrator’s award for errors of law or fact unless the award is so irrational as to require vacatur” (Matter of Carty v Nationwide Ins. Co., 212 AD2d 462, 462 [1st Dept 1995]); accord Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533 [2d Dept 1996]).

Here, ATIC fails to establish that the no-fault arbitrator’s award was so irrational as to require vacatur. First, the burden of proof applicable at trial involving medical necessity and an insurer’s burden on a motion for summary judgment are not described in the same terms.

“In a no-fault trial dealing with a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form; however, it is the plaintiff [provider] who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary”

Here, it is abundantly apparent that the no-fault arbitrator ruled that respondent had met its ultimate burden of demonstrating that the services at issue were medically necessary by a preponderance of the evidence (see petitioner’s exhibit A, no-fault arbitrator award, at 5).

The no-fault arbitrator also found that “[ATIC] has not adequately demonstrated lack of causation” (no-fault arbitrator award, at 5). The no-fault arbitrator thoroughly considered the evidence. A reasonable hypothesis can be found to support this interpretation. Insofar as there was no dispute that respondent had established its prima facie case, ATIC “had the burden to proffer evidence in admissible form demonstrating that the assignor’s alleged injuries were not causally related to the accident” (A & A Dental, P.C. v State Farm Ins. Co., 19 Misc 3d 135[A], 2008 NY Slip Op 50709[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

The no-fault arbitrator rejected as conclusory the Peer Review Report of Dr. Skolnick with regard to the issue of causation. It would appear that the no-fault arbitrator concluded that the tear was caused by trauma, given that “the independent radiologist did not state with specificity that the meniscus tear is degenerative in nature” (see petitioner’s exhibit A, no-fault arbitrator award, at 5). ATIC essentially argues that the no-fault arbitrator should not have found that the tear was caused by trauma because Dr. Skolnick stated in his Addendum that there was no evidence of a fracture or dislocation. However, the no-fault arbitrator’s finding that ATIC did not meet its burden that the surgery was not causally related to the accident is consistent with the no-fault arbitrator’s credibility determinations about Dr. Skolnick and Dr. Fitzpatrick.

Contrary to ATIC’s argument, there is no basis to conclude that the arbitrator made a mistake of law by ignoring ATIC’s evidence that services rendered Rubin Gomez were not medically necessary; the arbitrator simply made a factual determination that they were medically necessary (Miller, 170 AD3d at 437). ATIC argues, in essence, that the arbitrator’s determination was an error of law because the arbitrator did not resolve issues of credibility in ATIC’s favor. “However, where, as here, the evidence is conflicting and room for choice exists, this Court may not weigh the evidence or reject the choice made by the arbitrator” (Matter of Powell v Bd. of Educ. of Westbury Union Free School Dist., 91 AD3d 955, 955-56 [2d Dept 2012]). “Obviously, if a court cannot ‘weigh’ the evidence, it cannot weigh credibility, which in [*6]the end is simply a component of that evidence” (Matter of McMahan & Co. [Dunn Newfund I], 230 AD2d 1, 5 [1st Dept 1997]).

The fact that the no-fault arbitrator accepted respondent’s affirmed rebuttal letter over Dr. Skolnick’s peer review report and Addendum presented an issue of Dr. Skolnick’s credibility for the factfinder to resolve. These are not errors of law, notwithstanding that the ATIC’s peer review report and other evidence in the record might support a contrary result. The no-fault arbitrator credited the written testimony of respondent’s physician over that of ATIC’s peer reviewer.

To the extent that ATIC argues that the award “went against the entire weight of the unrebutted evidence” (see petition ¶ 38),

“[a] master arbitrator’s powers of review do not encompass such a review of the facts, nor do they authorize him to determine the weight of the evidence. This is not to say that in making his determinations as to whether the arbitrator’s determination is correct, that the master arbitrator will conduct no review of the facts; rather, it means his review in this respect is limited to whether or not the evidence is sufficient, as a matter of law, to support the determination of the arbitrator”

Here, the master arbitrator correctly determined that the evidence was sufficient, as a matter of law, to support the original arbitration’s determination (see State Farm Mut. Auto. Ins. Co. v Stack, 55 AD3d 594, 595 [2d Dept 2008] [testimony of expert witness, who based his opinion upon his examination of defendant and his review of defendant’s relevant medical records, including, inter alia, CT scans and MRIs, was sufficient to establish that defendant’s condition was causally related to the accident]; cf. Advanced Orthopedics, PLLC v GEICO, 63 Misc 3d 136[A], 2019 NY Slip Op 50500[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [record supported the dismissal of complaint because Civil Court found defendant’s expert witness credibly testified that the surgery was not causally related to accident in question]). Thus, the master arbitrator did not exceed his/their powers.

ATIC’s argument that the award was not final or definite is without merit. “An award is deficient in this regard and subject to vacatur only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy” (Matter of Meisels v Uhr, 79 NY2d 526, 536 [1992]). Here, the no-fault arbitration award determined ATIC’s and [respondent]’s rights and obligations, resolved the claims submitted to arbitration, and did not create any new controversies.^[FN1]

Therefore, ATIC’s petition to vacate the master arbitrator’s award is denied.

CPLR 7511(e) mandates confirmation of the award upon denial of an application to [*7]vacate or modify the award (Blumenkopf v Proskauer Rose LLP, 95 AD3d 647, 648 [1st Dept 2012]). Therefore, the award is confirmed.

The no-fault arbitrator awarded respondent the amount of $4,702.03, with interest from 1/21/2019, plus attorney’s fees (petitioner’s exhibit A, no-fault arbitrator award at 6-7). Interest on overdue payments is fixed by regulation at the rate of 2 per cent per month (11 NYCRR 65-3.9 [a]). The total amount of interest due on $4,702.03 from 1/21/2019 until 1/14/2020 (the date of the award) is $1,106.86(2% x $4,702.03 x 11 months 24 days). The amount of attorney’s fees awarded by the no-fault arbitrator is therefore $1,161.78(20% x [$4,702.03 + $1,106.86) (11 NYCRR 65-4.6 [d]).

In addition, the master arbitrator awarded $195 in legal fees for the master arbitration (see petitioner’s exhibit A, master arbitrator award).

Respondent is also entitled to recover costs of the proceeding in the amount of $50.00, for the amount of the judgment is more than $6,000, and no notice of trial has been filed (CPLR 8101; NY City Civ Ct Act § 1901 [a], [b] [1]).

Citing 11 NYCRR 65-4.10 (j) (4), respondent also requests that the court award attorney’s fees in the amount of $1,000, for 2.5 hours (calculated at a rate of $400 per hour) spent to oppose the petition (see affirmation in opposition of respondent’s counsel ¶ 19).

ATIC opposes the request, claiming that $400.00 is a “marquee rate for private litigation” (reply affirmation of petitioner’s counsel ¶ 24). ATIC argues that the hourly rate for attorney’s fees should not exceed the hourly rates of attorney’s fees for a master arbitration, which are capped at $65.00 an hour, and $650.00 in total (id. ¶¶ 24-27).

Respondent correctly indicates that it is entitled to recovery attorney’s fees incurred in the Article 75 proceeding. If a valid claim for first-party no-fault benefits is overdue, the claimant is entitled to recover reasonable attorney’s fees for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations (Insurance Law § 5106 [a]). No-fault regulations provide that “[t]he attorney’s fee for services rendered … in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (11 NYCRR § 65-4.10[j][4] ). “The term ‘court appeal’ applies to a proceeding taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award (Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414, 414 [1st Dept 2020]).

ATIC’s argument raises a threshold issue of whether there any regulatory limits on amount of attorney’s fees incurred in connection with Article 75 proceeding to vacate or confirm a master arbitration award.

As ATIC points out, the no-fault regulations limit the amount of attorney’s fees recoverable for services rendered in connection with the master arbitration itself. For example, for preparatory services, the attorney is entitled to “a fee of up to $65 per hour, subject to a maximum fee of $650,” and “a fee of up to $80 per hour for oral argument before the master arbitrator” (see 11 NYCRR 65-4.10 [j] [2] [i], [ii]). For disputes subject to arbitration or court proceedings involving a “policy issue,” the no-fault regulations also limit the attorney’s fee for the arbitration or litigation of all issues to “a fee of up to $70 per hour, subject to a maximum fee of $1,400” (11 NYCRR 65-4.6 [c]; see Kamara Supplies v GEICO Gen. Ins. Co., 67 Misc 3d [*8]129[A], 2020 NY Slip Op 50414[U] [App Term, 1st Dept 2020]). ^[FN2]

However, there do not appear to be any no-fault regulations limiting the amount of attorney’s fees recoverable for services rendered in a proceeding taken pursuant to Article 75 of the CPLR to vacate or confirm a master arbitration award (see e.g. Matter of Hempstead Gen. Hosp. v Natl. Grange Mut. Ins. Co., 179 AD2d 645, 646 [2d Dept 1992]).

In Matter of Hempstead General Hospital, the Appellate Division, Second Department implicitly endorsed the calculation of the attorney’s fees upon a reasonable hourly rate without any limitations, for services rendered in a proceeding to vacate or confirm a master arbitration award. There, the Supreme Court had determined that petitioner was entitled to counsel fees in vacating a master arbitration award, and that the petitioner’s counsel’s work was worth $175 per hour, for a total of $7,000 (179 AD2d at 646). However, the Supreme Court reduced the award to $756, on the ground that it would only award a fee on that portion of the work performed directly on behalf of the client (id.). On appeal, the Appellate Division, Second Department, modified the Supreme Court’s order to increase the award of counsel fees to the full amount of $7,000 (id.).

The court finds that the time that respondent’s counsel spent on this Article 75 proceeding and the hourly rate were reasonable. Accordingly, respondent is awarded $1,000.00 in attorney’s fees for services rendered in opposing the petition.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED and ADJUDGED and the petition to vacate the arbitration award (Motion Seq. No. 001) is DENIED, and it is further

ADJUDGED that the award of the master arbitrator Robert Trestman, dated March 24, 2020 rendered in favor of respondent Mark S. McMahon MD P.C. a/a/o Rubin Gomez against petitioner American Transit Insurance Company, affirming the award of the no-fault arbitrator Marice Glasser issued on January 14, 2020 is confirmed; and it is further

ADJUDGED that respondent Mark S. McMahon MD P.C. a/a/o Rubin Gomez, having an address at 876 Park Avenue, New York, NY 10075, do recover from petitioner American Transit Insurance Company, having an address at 5 Broadway, Freeport, New York 11520, the amount of $4,702.03, plus interest at the rate of 2% per month from the date of 1/21/2019 until 1/14/2020, in the amount of $1,106.86, plus attorney’s fees in the amount $1,161.78, plus $40.00 as reimbursement for a fee previously paid by respondent, plus attorney’s fees incurred in the master arbitration in the amount of $195.00, plus attorney’s fees incurred in this proceeding in the amount of $1,000.00, together with costs of this proceeding in the amount of $50.00, for the [*9]total amount of $8,255.67, and that the respondent have execution therefor.

This constitutes the decision, order, and judgment of the court.

____________/s/__________________
RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1: Although not raised by petitioner, the court notes that the fact that the no-fault arbitration award did not specify an exact amount of interest or attorney’s fees awarded does not render the award indefinite, because the amounts may be ascertained through computation of simple arithmetic (see Matter of Hunter [Proser], 274 AD 311, 312 [1st Dept 1948], affd 298 NY 828 [1949]).

Footnote 2: “‘[P]olicy issues’ enumerated on the denial of claim form at bar are clearly limited to include only: (1) the policy was not in force on the date of the accident (box 3); (2) the injured person is excluded under policy conditions or exclusion (box 4); (3) the policy conditions were violated, which is limited to two categories involving late submission of a notice of claim (box 5); (4) the injured person is not an eligible injured person (box 6); (5) and the injuries did not arise out of use or operation of a motor vehicle (box 7)” (Kamara Supplies, 67 Misc 3d 129[A], 2020 NY Slip Op 50414[U], *1).

ATIC does not contend that the arbitration involved a “policy issue.” No “policy issues” were checked off as reasons for denial on the denial of claim form (see petitioner’s exhibit B).

Index No. CV-718889-16/KI

The plaintiff was represented by Michael Nathan, Esq., Lewin & Baglio LLP, 1100 Shames Drive, Westbury, New York 11590, (T) 516-307-1777 ext. 121, (F)516-307-1770, Mnathan@lewinbaglio.com.

The defendant was represented by Adam Waknine, Esq., Peter C. Merani, P.C., 1001 Avenue of the Americas, Suite 1800, New York, NY 10018, Phone: (212) 629-9690, Fax: (212)629-9664, E-Mail: awaknine@meranilaw.com.

After trial, held before me in the above captioned action on July 13, 2022, I find:

Plaintiff, James J. Kim, a licensed acupuncturist, commenced this no-fault action against defendant, Allstate Insurance Company (“Allstate”), following Allstate’s denial of plaintiff’s claims for no-fault benefits for acupuncture services provided from February 9, 2015, through December 7, 2015. Plaintiff’s assignor, Rick Greengus, was injured in an accident on December 7, 2013. Allstate denied the claims based upon the report of an Independent Medical Examination (“IME”) conducted by Dr. Thomas McLaughlin on March 13, 2014. At trial, Allstate defended their denials based on lack of medical necessity by solely relying upon the IME report and live testimony of Dr. McLaughlin. The plaintiff rebutted the denial through the live testimony of Dr. Kim, as well as by cross-examining Dr. McLaughlin about the contents of his IME report. Each party also submitted trial packets for the court’s consideration which were introduced into evidence on consent and without objection.

Dr. McLaughlin examined Mr. Greengus on March 13, 2014. At that time, Mr. Greengus had been receiving acupuncture services for approximately three months. Mr. Greengus complained of pain in his left shoulder and neck. Dr. McLaughlin referred to those complaints in his report as “non-descript” but did not specify what, if any, questions he asked that were designed to elicit a detailed description of Mr. Greengus’ symptoms. The report notes that Mr. Greengus indicated that his symptoms had not improved with care.

In his report, Dr. McLaughlin included a section on acupuncture treatment under the heading “Traditional Chinese Medicine (TCM) Discussion.” In relevant part, Dr. McLaughlin concludes:

Combined with a full history and inspection the TCM practitioner will also study the quality of the patient’s pulse and tongue in order to determine not only if pathology is present and the type it is, but in order to devise a treatment protocol. Traditional Chinese [*2]Medicine, acupuncture being one facet of it, is then employed in order to rebalance the body and aid in the facilitation of health and wellness. The treatments are administered by applying needles, in the case of acupuncture, to acupoints along channels that course throughout the body and promote a physiologic response. Nine of the fourteen body channels used are named after organ systems in the body. With respect to Mr. Rick Greengus’s pulse, which has a rate of 64bpm, his tongue, and the channels are unremarkable with regard to a Qi and/or blood stagnation disorder according to the principles of TCM.

Based upon his examination findings, Dr. McLaughlin concluded that no further acupuncture care was necessary because Mr. Greengus’ examination did not reveal any objective findings of dysfunction or discomfort. His trial testimony echoed those findings to a certain extent. He opined that standard practice for an acupuncturist would be to evaluate the patient by taking a history and checking certain relevant factors such as pulse, the condition of the tongue and blood stagnation. Dr. McLaughlin testified that periodic evaluation or revaluation is warranted when there is an ongoing course of treatment in order to determine whether the medical provider needs to adjust the treatment being provided (Tr at 15, 17).

The plaintiff rebutted Dr. McLaughlin’s findings through the testimony of Dr. Kim the provider who opined that continued acupuncture treatment was medically necessary due to continued neck pain, shoulder pain and lower back pain. Dr, Kim also referenced the same traditional Chinese Medicine diagnosis referenced in Dr. McLaughlin’s IME report, i.e., blood stagnation and tongue diagnosis. Dr Kim also testified that he performed through evaluations of Mr. Greengus prior to each treatment session.

After considering the testimony and evidence presented at this trial, I find that the plaintiff should have judgment in its favor. The defense being asserted by the defendant insurer is commonly known as a “IME cut-off”. The court finds this terminology, although widely used in no-fault litigation, to be imprecise and arguably misleading. To the defendant, IME cut-off is the sole proper basis for the denials. The assertion is that after March 14, 2014, based upon the findings of Dr. McLaughlin after the IME, Mr. Greengus was perfectly healthy and no longer required any further treatment, specifically acupuncture and chiropractic related. The defendant would have the court believe that the injured party’s health and condition is frozen in time as of the date of the IME and, absent evidence from the plaintiff that rebuts the findings of the IME, the plaintiff has failed to meet its burden for recovery of no-fault benefits. This misstates the purpose and/or probative value of an IME.

An IME is not some inflexible permanent fixture that cannot be altered or changed. An IME is merely a snapshot of the injured party’s medical condition as of the date of the IME. The opinion of the doctor conducting an IME and issuing a report that no further treatment or testing is needed is nothing more than an expert’s prediction that the claimant has fully recovered or received the maximum therapeutic benefit from the treatment and does not presently need any additional treatment.

An IME cut-off is not a complete defense to the action. While an IME can demonstrate a lack of medical necessity for future treatment, it does not, by itself, conclusively demonstrate that any future treatment would not be medically necessary. Instead, the IME merely shifts the burden to the plaintiff to demonstrate, by a preponderance of the credible evidence, that the treatment at issue was medically necessary (see Amato v State Farm Ins. Co., 40 Misc 3d 129(A) [App Term 2d Dept 2013], Unitrin Advantage Insurance Company v Lake Chiropractic, PLLC, [*3]64 Misc 3d 1201[A] [New York County Civ Ct 2019]; Amato v State Farm Ins. Co., 30 Misc 3d 238, 242 [NY Dist Ct 2013]; All-In-One Med. Care, P.C. v Govt. Employees Ins. Co., 43 Misc 3d 726, 734 [NY Dist Ct 2014]).

The defendant maintains that by not recognizing the IME as a fixed cut-off date for no-fault benefits deemed not medically necessary, the Court is allowing for the reimbursements of benefits indefinitely so long as the provider self-certifies that the treatment is providing medical benefits to the injured party. This is not the Court’s intention nor is it the practical result. Again, the only effect of the pre-claim IME on this litigation was to shift the burden to the plaintiff-provider to show that the treatment was medically necessary. If the defendant subsequently felt the need to try to further limit the scope of future treatment, they could have requested a supplemental IME, an EUO of the provider, or they could have had their expert conduct a peer review of all the post-IME treatment records. Instead, the defendant just denied the bills and relied on a single pre-treatment IME. The defendant is entitled to rely on that single IME if they wish, but the effect is no different than any other denial based on the alleged lack of medical necessity. It simply shifts the burden to the plaintiff, who can then rebut with credible testimony and shift the burden back to the defendant insurer.

That is exactly what happened here. Dr. Kim credibly testified that he conducted an evaluation of the patient each time the patient came to see him before providing any treatment (Tr at 55, 60). This testimony is bolstered by the records in evidence of Dr. Kim’s treatment of the patient prior to the IME – which each contain notes regarding the current diagnosis of the patient and notes of what was evaluated. (Plaintiff’s Exh. D, pages 182-187, 332-356, 422-427, 451-456). The court credits the testimony of Dr. Kim that further medical treatment was necessary for the injured assignor, over the testimony of Dr. McLaughlin, that it was not medically necessary. The court finds that Dr. Kim properly performed additional evaluations of the patient, consistent with the very same standards of traditional Chinese Medicine referenced in Dr McLaughlin’s report, and Dr. Kim was in possession of both objective and subjective findings which correlated to support the conclusion that continued treatment was medically necessary. Dr. Kim possessed more information and was in a better position to make the determination than Dr. McLaughlin. I find that Dr. Kim’s testimony is sufficient to demonstrate, by a preponderance of the credible evidence, that the treatments at issue were medically necessary.

Accordingly, judgment is rendered for the plaintiff in the amount of $2018.77 — the amount the parties stipulate is correct under the fee schedule — plus statutory interest and attorney fees.

The clerk may enter judgment.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Dodge & Monroy, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 8, 2019. The order granted defendant’s motion to vacate a judgment of that court entered April 13, 2018 upon defendant’s failure to appear or answer the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to vacate a judgment entered on April 13, 2018 upon defendant’s failure to appear or answer the complaint. In support of the motion, defense counsel alleged that an answer had been timely served but it contained a wrong index number, as the year was incorrectly written, which error was due to law office failure. Approximately two weeks later, a second answer, with the correct index number, was served on plaintiff’s counsel, after the time to answer had expired. Defendant alleged as a meritorious defense to the action that plaintiff was not entitled to recover on its claim, as the underlying automobile accident was staged. In addition, defendant filed a declaratory judgment action in February 2018 against, among others, plaintiff and its assignor, [*2]wherein, by order entered April 19, 2018, plaintiff was enjoined from all no-fault collection/reimbursement actions. In opposition to the motion, plaintiff’s counsel alleged that defendant failed to properly serve an answer, as the first answer contained the wrong year in the index number and both answers were served by mail to the wrong address. In reply, defendant failed to explain why the answers were mailed to plaintiff’s counsel’s prior address. The Civil Court granted defendant’s motion.

It is well settled that in order to vacate a default judgment based on excusable default, the defaulting party must demonstrate both a reasonable excuse for its default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]). A court may, in the exercise of its discretion, accept law office failure as an excuse (see CPLR 2005). However, counsel “must submit supporting facts in evidentiary form sufficient to justify the default” (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]) and include “a detailed explanation of [the] oversights” (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; see also Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]).

In the case at bar, defendant failed to provide a detailed explanation of its default. Defendant’s attorney merely stated that the wrong index number reflected on its initial answer was due to law office failure. However, defendant’s attorney did not explain why both answers were mailed to plaintiff’s counsel’s prior address. In view of the foregoing, we need not consider whether defendant established a meritorious defense to the action (see Levi v Levi, 46 AD3d 519 [2007]). In any event, contrary to defendant’s contention in the Civil Court, this action was not barred based upon the April 19, 2018 order in the Supreme Court declaratory judgment action enjoining plaintiff from proceeding in this action, as that order was entered after the default judgment had been entered herein, and terminated upon the entry of the declaratory judgment on May 20, 2019 and there was no disposition against plaintiff in that judgment (see generally DSD Acupuncture, P.C. v Metlife Auto & Home, 49 Misc 3d 153[A], 2015 NY Slip Op 51778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, we find that the Civil Court improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment.

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment is denied.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 22, 2022

APPEARANCES OF COUNSEL

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

Gullo & Associates, LLC (Kristina O’Shea of counsel) for respondent.

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

Jules Francois Parisien, M.D., commenced this action against Kemper Insurance Company to recover assigned first-party no-fault benefits for medical services provided to his assignor, Jeremy Jagdeo, as a result of injuries Jagdeo allegedly sustained in an automobile accident on June 17, 2013. In its answer to the complaint, dated April 21, 2016, defendant identified itself as Unitrin Advantage Insurance Company (Unitrin). Before Parisien commenced this action, a declaratory judgment action had been commenced in Supreme Court, New York County, by Unitrin against Parisien, eight other providers, and the assignor herein, Jagdeo, alleging that Jagdeo had breached the terms of the insurance policy in question by failing to appear for duly scheduled independent medical examinations. Parisien appeared and interposed an answer in the declaratory judgment action. In an order entered September{**76 Misc 3d at 20} 11, 2017, the Supreme Court, upon granting an unopposed motion by Unitrin for summary judgment, declared [*2]that Parisien and five other providers were “not entitled to no-fault coverage for the motor vehicle accident that occurred on June 17, 2013 involving Jeremy Jagdeo.”

Plaintiff moved in the Civil Court for summary judgment, and defendant cross-moved for, in effect, summary judgment dismissing the complaint on the ground that the instant action is barred by virtue of the order in the declaratory judgment action. By order entered August 10, 2021, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Collateral estoppel, or issue preclusion, precludes a party from relitigating an issue where “the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]; Manko v Gabay, 175 AD3d 484 [2019]). While “[a]n issue is not actually litigated if, for example, there has been a default” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]), “ ’collateral estoppel may be properly applied to default judgments where the party against whom preclusion is sought appears in the prior action, yet willfully and deliberately refuses to participate in those litigation proceedings, or abandons them, despite a full and fair opportunity to do so’ ” (Miller v Falco, 170 AD3d 707, 709 [2019], quoting Matter of Abady, 22 AD3d 71, 85 [2005]). The party seeking to rely on collateral estoppel has the burden of establishing that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought (see Forcino v Miele, 122 AD2d 191, 193 [1986]; Triboro Quality Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 131[A], 2012 NY Slip Op 51289[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). The party attempting to defeat the application of collateral estoppel has the burden of establishing the absence of a full and fair opportunity to litigate (see D’Arata, 76 NY2d at 664; Uptodate Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Here, defendant established that the issue of whether plaintiff was entitled to receive no-fault benefits in connection with the June 17, 2013 accident involving Jagdeo was identical{**76 Misc 3d at 21} to the issue previously decided in the declaratory judgment action. The order in the declaratory judgment action indicates that Jagdeo was not entitled to receive no-fault benefits without regard to who the provider might be. Although plaintiff herein did not submit opposition to the motion giving rise to the order in the declaratory judgment action, he did appear and answer the complaint in that action. Therefore, plaintiff failed to establish that he did not receive a full and fair opportunity to litigate in the declaratory judgment action (see Reid v Reid, 198 AD3d 993, 994 [2021]; Miller, 170 AD3d at 709; David v State of New York, 157 AD3d 764, 765-766 [2018]; Matter of Abady, 22 AD3d at 85). Thus, defendant was entitled to summary judgment dismissing the complaint on the ground of collateral estoppel.

We reject plaintiff’s argument that defendant was required to establish privity between itself and Unitrin in order for the Civil Court complaint to be dismissed based upon the order in the declaratory judgment action. Privity between the party seeking to invoke the doctrine and a party to the prior action is an element of res judicata (see Matter of Hunter, 4 NY3d 260, 269[*3][2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]), not collateral estoppel (see B. R. DeWitt, Inc. v Hall, 19 NY2d 141, 147-148 [1967]; Windowizards, Inc. v S & S Improvements, Inc., 11 Misc 3d 128[A], 2006 NY Slip Op 50310[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). We note that the Civil Court, in granting defendant’s cross motion, did not specifically rely on res judicata.

We further note that, while defendant failed to raise the affirmative defense of collateral estoppel in its April 21, 2016 answer, defendant had no basis to assert that defense before September 11, 2017, when the order in the declaratory judgment action was entered (see Metro Health Prods., Inc. v Nationwide Ins., 52 Misc 3d 138[A], 2016 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). While the better practice would have been for defendant to move to amend its answer after September 11, 2017, we deem defendant’s answer amended to assert the affirmative defense of collateral estoppel (see Barrett v Kasco Constr. Co., 84 AD2d 555, 556 [1981], affd 56 NY2d 830 [1982]; Active Chiropractic, P.C. v Allstate Ins., 58 Misc 3d 156[A], 2018 NY Slip Op 50201[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). {**76 Misc 3d at 22}In any event, “an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party” (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]; see Renelique, 2016 NY Slip Op 50096[U]).

Accordingly, the order is affirmed.

Weston, J.P., Golia and Buggs, JJ., concur.

Index No. CV-711172-18/QU

Plaintiff’s Counsel:
Lewin & Baglio
1100 Shames Drive, Suite 100
Westbury, NY 11590

Defendant’s Counsel:
Travelers Insurance Company
3 Hunting Quadrangle
Melville, NY 11747

I. Papers

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

II. Background

In a summons and complaint filed September 7, 2018, Plaintiff sued Defendant insurance company to recover $3,116.03 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Laporte from February 4 to May 4, 2018, plus attorneys’ fees and statutory interest (see Motion, Aff. of Granov, Ex. A). Defendant moved for summary judgment dismissing Plaintiff’s complaint on the ground that Defendant timely paid Plaintiff’s claim according to the applicable fee schedule (CPLR 3212[b]). Plaintiff cross-moved for summary judgment on its claim against Defendant. The motions were assigned to this Court for determination on March 16, 2022.

III. Discussion

Automobile insurers must provide $50,000.00 coverage for “basic economic loss” (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016]). Basic economic loss expenses are limited by Insurance Law § 5108 (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). Charges for basic economic loss “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). No payment is due for services in excess of charges permitted by Insurance Law § 5108 (11 NYCRR 65-3.8[g][1][ii]; Excel Surgery Ctr., LLC v Metropolitan Prop. & Cas. Ins. Co., 65 Misc 3d 149[A], 2019 NY Slip Op 51843[U] * 1 [App Term 2d Dept 2019]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] *1 [App Term 2d Dept 2018]).

Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-82).

Defendant requested that the court take judicial notice of the various fee schedules. The party requesting judicial notice must furnish the court “sufficient information to enable it to comply with the request” (CPLR 4511[b]; see Ponnambalam v Sivaprakasapillai, 35 AD3d 571, 574 [2d Dept 2006]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], 2017 NY Slip Op 50207[U] *1 [App Term 2d Dept 2017]; Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] * 2 [App Term 2d [*3]Dept 2011]). Here, Defendant presented a copy of the fee schedules upon which its witness relied (see Motion, Granov Aff., Ex. D).

Although the court may take judicial notice of the fee schedules, they do not independently establish whether Plaintiff properly applied them in billing for the services provided (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20-22 [2d Dept 2009]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 2017 NY Slip Op 50207 *1-2). Rather, interpretation of the applicable fee schedule must be supported by expert opinion evidence (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 55 Misc 3d147[A], 2017 NY Slip Op 50706[U] *1 [App Term 2d Dept 2017]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] *2 [App Term 2d Dept 2012]). To support its motion, Defendant relied on the affidavit of Marchitte, Defendant’s Medical Appeals Analyst sworn September 24, 2019, in which she concluded that, based on the fee schedule, Plaintiff’s bills for the medical equipment exceeded the applicable fee schedule (Motion, Granov Aff., Ex. E).

To qualify as an expert, a witness must possess skill, training, knowledge, and experience to allow an assumption of the reliability of the opinion rendered (Price v. New York City Hous. Auth., 92 NY2d 553, 559 [1998]; Matott v. Ward, 48 NY2d 455, 459 [1979]; DiLorenzo v. Zaso, 148 AD3d 1111, 1112-13 [2d Dept 2017]; Doviak v. Finkelstein & Partners, LLP, 137 AD3d 843, 847 [2d Dept 2016]). In her affidavit, Marchitte attested that her position as a Medical Appeals Analyst necessitated that she became familiar with specified billing codes. Since Marchitte did not identify how she became familiar with the billing codes whether through education, training or apprenticeship, she failed to specify her qualifications, which are necessary to establish that she was an expert (Chtchannikova v. City of New York, 174 AD3d 572, 573 [2d Dept 2019]; DiLorenzo v Zaso, 148 AD3d at 1115; Leicht v. City of NY Dept of Sanitation, 131 AD3d 515, 516 [2d Dept 2015]; Currie v Wilhouski, 93 AD3d 816, 817 [2d Dept 2012]). Since Defendant failed to support its motion with an expert affidavit to interpret the fee schedule, Defendant failed to meet its initial burden of demonstrating its entitlement to summary judgment reducing the amount in controversy (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706[U] *1; W.H.O. Acupunctrure, P.C. v Progressive Preferred Ins. Co., 2012 NY Slip Op 51335[U] *2, see Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 134[A], 2017 NY Slip Op 50954[U] *2 [App Term 2d Dept 2017]). Therefore, the court denies Defendant’s Motion for summary judgment.

Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). To support its Cross-Motion, Plaintiff essentially relied on Defendant’s denial of claim forms which were sufficient to establish Defendant’s receipt of Plaintiff’s claim and nonpayment of that claim (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). In our instant case, Defendant’s denial of claim forms demonstrated partial payment of defendant’s claims and timely denial of the remainder of the claims (see Motion, Granov Aff., Ex. F). Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claims against Defendant, the court denies Plaintiff’s Cross-Motion for summary judgment.

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint is denied, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant is denied.

This constitutes the Decision and Order of the court.

______________________________________
Honorable WENDY CHANGYONG LI, J.C.C.

Decided on July 15, 2022

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

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 23, 2019. The order, insofar as appealed from as limited by the brief, denied 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, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to defendant’s contention, defendant’s motion failed to establish that defendant had timely denied plaintiff’s claims after plaintiff failed to appear at both an initial and a follow-up EUO (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2020]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied (see Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226[U]). We reach no other issue.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 15, 2022

Decided on July 15, 2022

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