—[*1] Brand, Glick & Brand, P.C., Garden City (Peter M. Khrinenko of counsel), for appellant.

Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Harlan S. Budin of counsel), for respondent.

Order, Supreme Court, New York County (Carol E. Huff, J.), entered April 30, 2012, which granted the petition to vacate the arbitration awards, and remanded the matter for a new arbitration before a new arbitrator, unanimously reversed, on the law, without costs, and the arbitration awards reinstated.

The arbitral awards, rendered in compulsory arbitration, were not irrational or contrary to settled law, and therefore should have been confirmed. Respondent insurer’s disclaimer, based strictly upon primacy of coverage, was not so absolute or unequivocal as to constitute a repudiation of the policy (see Seward Park Hous. Corp. v Greater N.Y. Mut. Ins. Co., 43 AD3d 23, 30 [1st Dept 2007]). The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated (11 NYCRR 65-1.1, 65-2.4 [c]).

We have considered the parties’ remaining arguments and find them unavailing. Concur—Friedman, J.P., Acosta, Renwick, Manzanet-Daniels and Gische, JJ.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Spina, Korshin & Welden, Woodbury, N.Y. (Jeanne M. Ortega and P. Stephanie Estevez of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff Westchester Medical Center, as assignee of Arianna Thrasher, appeals from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered January 23, 2012, as denied that branch of its motion which was for summary judgment on its first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the plaintiff Westchester Medical Center, as assignee of Arianna Thrasher, which was for summary judgment on its first cause of action is granted.

The plaintiff Westchester Medical Center, as assignee of Arianna Thrasher (hereinafter the appellant), made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence in admissible form that the prescribed statutory billing form had been mailed to and received by the respondent insurer, which failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306, 1306-1307 [2012]; Westchester Med. Ctr. v Lancer Ins. Co., 94 AD3d 984, 984 [2012]; NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702, 703 [2011]; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136, 1137 [2011]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2009]).

Contrary to the Supreme Court’s determination, the respondent, in opposition to the appellant’s prima facie showing, failed to raise a triable issue of fact.

The respondent’s contention that there was a complete absence of coverage that could be asserted as a basis for disclaimer notwithstanding its failure to comply with the 30-day rule set forth in Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) (see generally Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Zappone v Home [*2]Ins. Co., 55 NY2d 131 [1982]), is improperly raised for the first time on appeal, and, therefore, is not properly before this Court.

In light of our determination, we need not reach the plaintiff’s remaining contentions. Mastro, J.P., Dickerson, Sgroi and Hinds-Radix, JJ., concur.

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 (Carolyn E. Wade, J.), entered May 17, 2012. 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, that defendant lacked justification for its EUO requests, and 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.

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012] Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]). Finally, contrary to plaintiff’s argument on appeal, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: January 28, 2014

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered February 7, 2011. The judgment, entered pursuant to a decision of the same court dated October 14, 2010, insofar as appealed from, after a nonjury trial, dismissed the complaint except for so much thereof as sought to recover the principal sum of $330 for a massager and a Thermophore.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated October 14, 2010 is deemed a premature notice of appeal from the judgment entered February 7, 2011 (see CPLR 5520 [c]); and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited to defendant’s defense of lack of medical necessity. Following the trial, the Civil Court found in favor of defendant on most of plaintiff’s claims, and a judgment was entered dismissing the complaint except for so muchthereof as sought to recover the principal sum of $330 for a massager and a Thermophore.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff raises only evidentiary objections.

Contrary to plaintiff’s arguments, the Civil Court properly overruled plaintiff’s hearsay objection to defendant’s doctor’s testimony as to the issue of medical necessity (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012] Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011] Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff’s remaining contentions lack merit (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013] see also Eagle Surgical Supply, Inc. v GEICO Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50854[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: January 28, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated November 13, 2012. 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, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied defendant’s motion for summary judgment dismissing the complaint.

Contrary to the determination of the District Court, the affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim forms, which denied the two claims at issue on the ground of lack of medical necessity. The conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services provided (see Zuckerman v City of New York, 49 NY2d 557 [1980] Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]). Defendant’s remaining contention lacks merit.

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

LaSalle, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: January 27, 2014

Supreme Court, New York County

101549/12

Plaintiff:

Bryan Cave, LLP

1290 Avenue of the Americas

New York, NY 10104

Defendants:

Leon Kucherovsky, Esq. (for Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc.)

115 South Corona Avenue

Valley Stream, NY 11580

Doris Ling-Cohan, J.

This is an action for declaratory judgment arising out of an alleged motor vehicle collision on July 21, 2011. Defendants Akil Aime (Akil), Jeffrey J. Aime (Jeffrey), and Lynval Howell (Lynval) (collectively “Defendant Claimants”) were allegedly injured in such motor vehicle accident involving a U-Haul truck, in which Defendant Claimants were passengers. The U-Haul truck is insured by plaintiff Repwest Insurance Company (Repwest Ins.). No physical injuries were reported on the date of the accident, Defendant Claimants refused medical attention at the scene, and the U-Haul sustained no damage. Thereafter, Defendant Claimants began seeking treatment, for injuries alleged sustained in the July 21, 2011 collision, from defendants Advantage Radiology, P.C., A & F Medical, P.C., Comprehensive Psychological Evaluation, P.C. (Comprehensive Psychological), Living Well Chiropractic, P.C., Metropolitan Medical & Surgical, P.C., New Age Acupuncture, P.C., O & M Medical, P.C., NY Universal Medical, P.C., Orthoplus Products, Inc. (Orthoplus), Psychological Evaluation & Testing Services, LLC, Rehabxpress PT, P.C., and RM Physical Therapy, P.C. (collectively “Medical Provider Defendants”). Such Medical Provider Defendants submitted claims to plaintiff Repwest Ins. as alleged assignees of Defendant Claimants.

On November 8, 2011, plaintiff Repwest Ins., through its attorney, sent a letter to each Defendant Claimant, as well as to defendant Akil’s attorney and defendant Jeffrey’s attorney, requesting that each Defendant Claimant attend an examination under oath (EUO) on November 22, 2011. As each Defendant Claimant failed to appear at such EUO, plaintiff Repwest Ins.’s attorney sent another letter, dated December 1, 2011, to each Defendant Claimant, as well as to defendant Akil’s attorney and defendant Jeffrey’s attorney, requesting that each Defendant Claimant appear for an EUO on December 15, 2011. While defendant Akil and defendant Lynval both failed to appear at such EUO, defendant Jeffrey contacted plaintiff Repwest Ins.’s attorney’s office by telephone to reschedule his EUO. As defendant Jeffrey was represented by an attorney, he was informed that his counsel needed to call to reschedule. Thereafter, defendant Jeffrey failed to appear at the EUO scheduled for December 15, 2011, and no call was received by his attorney to reschedule. By letter dated January 3, 2011, sent to defendant Jeffrey and his attorney, plaintiff Repwest Ins.’s attorney requested that defendant Jeffrey appear for an EUO on January 18, 2012. Defendant Jeffrey failed to appear at such EUO. Subsequently, plaintiff Repwest Ins. denied all no-fault coverage for this claim based upon Defendant Claimant’s failure to attend the scheduled EUOs.

In this action, plaintiff Repwest Ins. seeks a declaration that it owes no duty to pay No-Fault benefits to any of the named defendants on the ground that the Defendant Claimants failed to appear for duly scheduled EUOs, in violation of the No-Fault regulations and in violation of a condition precedent to coverage for all No-Fault claims submitted by the Medical Provider Defendants.

By Decision/Order dated September 19, 2013, a default judgment was granted against all defendants except for defendants Comprehensive Psychological and Orthoplus (collectively [*2]“Answering Defendants”), the only remaining defendants ^[FN1].

Plaintiff Repwest Ins. now moves for summary judgment against the Answering Defendants, declaring that such defendants are not entitled to no-fault coverage, as Defendant Claimants failed to attend the EUOs. The Answering Defendants jointly oppose plaintiff Repwest Ins.’s motion.

DISCUSSION

The standards of summary judgment are well settled. Summary judgment should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case”. Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure…to do [so]”. Zuckerman v City of New York, 49 NY2d 557, 560 (1980). However, the Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat such a motion. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).

Here, plaintiff Repwest Ins.’s motion for summary judgment against the Answering Defendants is granted. In support of its motion, plaintiff Repwest Ins. proffers, inter alia, the two letters sent to defendant Akil and her attorney requesting her appearance at two EUOs, the two letters sent to defendant Lynval requesting his appearance at two EUOs, and the three letters sent to defendant Jeffrey and his attorney requesting his appearance at three EUOs, the affidavits of service for all such letters, and an affidavit from Joseph R. Federici, Esq. stating that on each scheduled EUO date, he waited for the Defendant Claimants and each Defendant Claimant failed to attend the scheduled EUOs. As such, plaintiff Repwest Ins. has shown that it arranged two EUOs for defendant Akil and Lynval, and three EUOs for defendant Jeffrey, that Defendant Claimants were all notified of such EUOs by mail, and that all Defendant Claimants failed to attend the EUOs.

The Appellate Division, First Department, has found that “failure to appear for IMEs requested by the insurer when . . . [it] may reasonably require . . . is a breach of a condition precedent to coverage under the No-Fault policy.” Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 (1st Dep’t 2011)(internal quotations and citations [*3]omitted); see also 11 NYCRR 65-1.1. As such, “when defendants’ assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued.” Id. Thus, plaintiff Repwest Ins. has established entitlement to summary judgment as a matter of law declaring that the Answering Defendants are not entitled to no-fault coverage for the motor vehicle accident that occurred on July 21, 2011.

In opposition, the Answering Defendants proffer only an attorney’s affirmation, which is not based upon the requisite personal knowledge and is insufficient to raise any factual issues to warrant a denial of the within motion. See GTF Marketing Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 (1985); Wehringer v Helmsley Spear, Inc., 91 AD2d 585, 585 (1st Dep’t 1982). New York courts have consistently held that “a bare affirmation of . . . [an] attorney who demonstrated no personal knowledge . . . is without evidentiary value and thus unavailing.” Zuckerman v City of New York, 49 NY2d 557, 563 (1980). Furthermore, an affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 (1 Dept 1981), aff’d 54 NY2d 715 (1981). Thus, the Answering Defendants’ attorney’s conclusory and speculative affirmation, is insufficient to raise any factual issues to warrant a denial of the within motion. See GTF Marketing Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 (1985).

Even if this court were to consider such attorney affirmation, the Answering Defendants have failed to raise an issue of fact sufficient to preclude summary judgment. Specifically, the Answering Defendants argue that the EUO requests were defective in that they made improper demands for the production of documents, that Defendant Claimants failed to appear at the EUOs due to the defective requests, and that plaintiff Repwest Ins. has failed to demonstrate that Defendant Claimants failed to appear at the EUOs. In support of its argument, the Answering Defendants cite Dynamic Medical Imaging, P.C. v State Farm Mutual Automobile Ins. Co., 29 Misc 3d 278 (Dist. Ct, 1st Dist., Nassau Cty. 2010). The District Court in Dynamic held that EUO requests requiring claimants to provide documentation pertaining to the validity of the professional corporation prior to the EUOs were improper, as a Mallela defense is not precludable. The Dynamic Court went on to hold that “[i]f a carrier believes the provider/assignee is subject to a Mallela defense, the proper way to assert it is as an affirmative defense in its answer.” Id. at 284. In holding that the EUO requests were improper, and, thus, could not be the basis for obtaining summary judgment, the Dynamic Court stated that “[i]n addition to appearing for an [EUO], the assignee can be compelled to execute a written proof of claim under oath and provide other pertinent information as may assist the insurer in determining the amount due and payable. … The [no-fault] regulations only permit the insurer to obtain written information to verify the claim. Nothing in the no-fault regulations permits an insurer to request an assignee to produce corporate organizational and financial douments”. Id. at 283 (internal citations omitted).

Here, the documents requested in the EUO requests consist of, inter alia, insurance policies, documents related to bodily injuries from 2009 to date, identification, and photographs relating to the July 21, 2011 collision. Such documents, indisputably, are not related to a Mallela defense, and, thus, Dynamic is not applicable herein. Moreoever, plaintiff Repwest Ins. has proffered the affirmation of Joseph R. Federici, Esq., in which he clearly states that on each [*4]scheduled EUO date and time, he personally waited for each Defendant Claimant, and that each Defendant Claimant failed to appear. Thus, plaintiff Repwest Ins.’s motion for summary judgment is granted.

Accordingly, it is

ORDERED that plaintiff Repwest Insurance Company’s motion for summary judgment against defendants Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc. is granted; and it is further

ORDERED, ADJUDGED and DECLARED that the defendants Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc. are not entitled to no-fault coverage, from plaintiff Repwest Insurance Company, for the motor vehicle accident that occurred on July 21, 2011; and it is further

ORDERED that the Clerk is directed to enter judgment in favor of plaintiff; and it is further

ORDERED that, within 30 days of entry, plaintiff shall serve upon defendants Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc. a copy of this decision and order, together with notice of entry.

This constitutes the Decision and Order of the Court.

Dated: January 13, 2014

DORIS LING-COHAN, J.S.C.

Footnotes

Footnote 1: The Court notes that the Answering Defendants’ amended affirmation in opposition to plaintiff Repwest Ins.’s motion for summary judgment states that it is a joint opposition by defendants Comprehensive Psychological, Orthoplus, and NY Universal Medical, P.C. However, by Decision/Order dated September 19, 2013, a default judgment was entered against NY Universal Medical, P.C. Defendant NY Universal Medical, P.C. has not filed an answer in this action and has failed to move to vacate its default. As such, the affirmation in opposition will only be considered as to defendants Comprehensive Psychological and Orthoplus.

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 (Dawn Jimenez Salta, J.), entered February 6, 2012. The order granted defendant’s motion to dismiss 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, the record indicates that, subsequent to the provision of acupuncture services by plaintiff to its assignor, defendant Kemper Insurance Company (Kemper) commenced a declaratory judgment action in the Supreme Court, New York County, against plaintiff, 12 other providers and the injured assignor, alleging that the providers had breached the terms of the insurance policy by failing to appear for scheduled examinations under oath. On September 4, 2009, several months after the declaratory judgment action had been filed, plaintiff commenced the present action in the Civil Court. In a judgment entered on default on June 22, 2010, the Supreme Court declared that plaintiff and the other named providers were not entitled to recover no-fault benefits arising out of the accident in question. Kemper thereafter moved in the Civil Court to dismiss plaintiff’s complaint, contending that the instant action is barred by virtue of the declaratory judgment. Plaintiff appeals from an order of the Civil Court which granted Kemper’s motion and dismissed the action.

In light of the declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012] Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012] SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in the instant action would destroy or impair rights or interests established by the Supreme Court judgment (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929] S.Z. Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]).

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur. [*2]
Decision Date: January 10, 2014

—[*1] The Rybak Firm, PLLC, Brooklyn, N.Y. (Damin J. Toell and Andrew S. Fisher of counsel), for appellants.

Law Office of Jason Tenenbaum P.C., Garden City, N.Y., for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff has no obligation to pay certain no-fault claims, the defendants Compas Medical, P.C., T&J Chiropractic, P.C., Charles Deng Acupuncture, P.C., and Great Health Care Chiropractic, P.C., appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Adams, J.), dated November 22, 2011, as, upon an order of the same court entered July 6, 2011, among other things, granting that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against those defendants, declared that those defendants were not entitled to recover no-fault benefits.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

“The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath . . . is a material breach of the policy, precluding recovery of the policy proceeds” (Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 487-488 [1992]; see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [2011]). Here, the plaintiff insurer established as a matter of law that it twice duly demanded an examination under oath from the appellants’ assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the plaintiff issued a timely denial of the claims arising from the appellants’ treatment of the assignor. Based upon the foregoing, the plaintiff established its prima facie entitlement to judgment as a matter of law. In opposition, the appellants failed to raise a triable issue of fact as to either the propriety of the demand for the examination under oath or whether the assignor actually appeared at the examination.

Moreover, the appellants 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 [*2]their contention that the plaintiff’s motion was premature, the appellants did not establish what information they hoped to discover that would demonstrate the existence of a triable issue of fact. Eng, P.J., Dillon, Dickerson and Sgroi, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

McDonnell & Adels, P.C., Garden City, N.Y. (Jannine A. Gordineer of counsel), for respondent.

In an action to recover no-fault insurance benefits, the plaintiff Westchester Medical Center, as assignee of Paul Knable, appeals from an order of the Supreme Court, Nassau County (Brown, J.), dated November 28, 2012, which denied its motion for summary judgment on the first cause of action.

Ordered that the order is reversed, on the law, with costs, and the motion of the plaintiff Westchester Medical Center, as assignee of Paul Knable, for summary judgment on the first cause of action is granted.

Contrary to the primary argument advanced by the defendant insurance company, the plaintiff Westchester Medical Center, as assignee of Paul Knable (hereinafter the hospital), made a prima facie showing of entitlement to judgment as a matter of law on the first cause of action (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., — AD3d —, 2013 NY Slip Op 08430 [2d Dept 2013]). In opposition, the defendant failed to raise a triable issue of fact as to whether, after receiving the hospital’s NF-5 claim form, the 30-day period within which to pay, deny, or seek verification of the no-fault claim was extended or tolled indefinitely due to the hospital’s failure to comply with a certain request for verification.

Upon the hospital’s failure to timely comply with the defendant’s initial request for verification within “30 calendar days after the original request [for verification]” (11 NYCRR 65-3.6 [b]), the defendant was under a regulatory duty to issue a second request for verification within 10 days after the expiration of that 30-day period (see 11 NYCRR 65-3.6 [b]; Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 163-165 [2013]). In the absence of any such second request for verification, there is no merit to the defendant’s contention that the 30-day period within which it had to pay, deny, or request verification of the claim had been extended. The defendant “failed to submit any evidence that it mailed a second or follow-up request for verification at the end of the 30-day period subsequent to [its] mailing [of] the initial request for verification” (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d at 165; see also Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 431 [1996]). [*2]

The defendant’s remaining contentions either are without merit or have been rendered academic by our determination.

Accordingly, the Supreme Court should have granted the hospital’s motion for summary judgment on the first cause of action. Dillon, J.P., Angiolillo, Roman and Sgroi, JJ., concur.

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 15, 2011, which, upon preclusion of defendant’s expert testimony, directed a verdict in favor of plaintiff.

Per Curiam.

Order (Fernando Tapia, J.), entered March 15, 2011, reversed, with $10 costs, and matter remanded for a new trial.

Plaintiff sues to recover first-party no-fault benefits for chiropractic services rendered to the insured assignor in the form of manipulation under anesthesia (MUA). At the commencement of trial, the parties stipulated in open court to “the credentials [and] the expertise” of defendant’s chiropractor, Dr. Kevin Portnoy, D.C. However, during Dr. Portnoy’s redirect testimony, the trial court precluded the witness from testifying as an expert on MUA procedures based on his acknowledgment that he was not certified to perform MUA. The Court thereupon directed a verdict in favor of plaintiff.

On defendant’s appeal, we reverse and order a new trial. Based upon the parties’ open court stipulation, Dr. Portnoy was qualified as a chiropractic expert. Thus, he need not have been certified as an MUA specialist to offer an opinion as to the medical necessity of the MUA procedures here at issue (see Matter of Solano v City of Mount Vernon, 108 AD3d 676, 677 [2013]). His lack of certification in this area goes to the weight to be accorded his testimony, not its admissibility (see Borawski v Huang, 34 AD3d 409, 410 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 24, 2013