Trapezius Diagnostic Chiropractic, P.C. v Adirondack Ins. Exch. (2025 NY Slip Op 50173(U))

Reported in New York Official Reports at Trapezius Diagnostic Chiropractic, P.C. v Adirondack Ins. Exch. (2025 NY Slip Op 50173(U))

[*1]

Trapezius Diagnostic Chiropractic, P.C. v Adirondack Ins. Exch.

2025 NY Slip Op 50173(U)

Decided on January 17, 2025

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 17, 2025

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-957 K C

McDonnell, Adels & Klesyzick, PLLC (Michael J. Giordano of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (L. Austin D’Souza, J.), dated May 8, 2023. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross-motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

Trapezius Diagnostic Chiropractic, P.C. (Trapezius) commenced this action to recover assigned first-party no-fault benefits for medical services that it had provided to its assignor as a result of injuries which the complaint stated had been sustained in a motor vehicle accident on November 4, 2017. After Adirondack Insurance Exchange (Adirondack) filed its answer, it separately commenced a declaratory judgment action in Supreme Court, Nassau County, against Trapezius, among others, alleging that Adirondack had no duty to pay no-fault benefits to Trapezius with respect to an accident which had occurred on November 14, 2017. In a default judgment entered on March 5, 2021 against Trapezius, among others, based on their failure to appear or answer, the Supreme Court declared that the November 14, 2017 accident was a “staged accident” and that Adirondack was not obligated to provide coverage or reimbursements for any and all no-fault related services submitted by Trapezius arising from that accident.

Adirondack, thereafter, moved in the Civil Court for summary judgment dismissing the complaint on the ground that the instant action was barred by virtue of the declaratory judgment. In support of its motion, Adirondack submitted an attorney’s affirmation and annexed the declaratory judgment and Trapezius’s complaint in that action. Plaintiff cross-moved for summary judgment. In opposition, defendant submitted an affidavit of its employee who stated that there was no accident involving the parties on any date other than November 14, 2017. By order dated May 8, 2023, the Civil Court (L. Austin D’Souza, J.) denied Adirondack’s motion and granted plaintiff’s cross-motion for summary judgment. The Civil Court stated that the accident date listed in the complaint was not the same as the one listed in the declaratory judgment and the affidavit of defendant’s employee did not mention a November 4, 2017 accident.

Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same transaction or series of transactions which were raised or could have been raised in a prior proceeding between the same parties or those in privity (see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; see also Watts v Swiss Bank Corp., 27 NY2d 270 [1970]).

Adirondack failed to establish, prima facie, that, in this action, Trapezius sought to recover for medical services rendered to its assignor as a result of injuries allegedly sustained by its assignor in the November 14, 2017 accident that was the subject of the Supreme Court declaratory judgment action. Defendant’s submissions in support of its summary judgment motion highlight the discrepancy as to the date of the accident. The affidavit of defendant’s employee was not submitted in further support of defendant’s motion, and, in any event, the affidavit was conclusory in its statement that there was no accident on November 4, 2017 (see Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Adirondack failed to establish that the instant action is barred by res judicata (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see e.g. Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; cf. Medical Supply of NY Corp. v Nationwide Ins. Co.,77 Misc 3d 133[A], 2022 NY Slip Op 51253[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; New Millennium Med. Imaging, P.C. v Repwest Ins. Co., 72 Misc 3d 127[A], 2021 NY Slip Op 50577[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Moreover, Adirondack failed to establish its prima facie entitlement to judgment as a matter of law based on a theory of collateral estoppel, as it failed to establish that the issues litigated and determined in the prior action were identical to the issues on which preclusion is now sought (see Parisien v Kemper Ins. Co., 76 Misc 3d 18 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

However, plaintiff’s cross-motion for summary judgment also should have been denied as there is a material issue of fact as to the date of the accident and the proof submitted in support of plaintiff’s cross-motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had [*2]issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that plaintiff’s cross-motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 17, 2025Precision Acupuncture P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50021(U))

Reported in New York Official Reports at Precision Acupuncture P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50021(U))

[*1]

Precision Acupuncture P.C. v State Farm Mut. Auto. Ins. Co.

2025 NY Slip Op 50021(U)

Decided on January 14, 2025

Civil Court Of The City Of New York, Kings County

Roper, J.

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

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

Decided on January 14, 2025

Precision Acupuncture P.C. a/a/o BLANCO ESTEVEZ, Plaintiff(s), against State Farm Mutual Automobile Ins. Co., Defendant(s).

Index No. 738833-21/KI


Marina Josovich Esq., P.C., Brooklyn, for Plaintiff

Rivkin Radler LLP, Uniondale, for Defendant. Sandra Elena Roper, J.

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

Papers
Notice of Motion and Affidavits Annexed 1-2
Cross-motion 3-4
Opposition 5
Reply 6

Upon the foregoing cited papers, pursuant to CPLR §3212(g), the Decision and Order on Defendant’s Motion for Summary Judgment is hereby Granted in its entirety.

Defendant’s burden has been met and not rebutted. Defendant has established: timely mailing of its EUO scheduling letters, timely issuance of the subject denials for each bill and Plaintiff’s failure to appear for the two scheduled EUOs. Plaintiff’s rebuttal argument that there is a triable issue of fact as to the timeliness of the denial for Bill 2 subsequently received by Defendant after the first EUO no-show but before the second EUO no-show and denied within 30 days of the second EUO no show is rejected. Although the No-Fault Regulations are silent as to the tolling effect of a pending EUO request upon a subsequent bill, it has been held that where an initial EUO scheduled before a defendant received a subsequent bill, a defendant’s time to pay or deny this subsequent bill remained tolled at the time that the subsequent bill was received by the defendant (NGM Acupuncture, P.C. v Nationwide Ins. Co., 77 Misc 3d 135[A], 2022 NY Slip Op 51271[U] [App Term 2022]), citing ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term 2011]). “We find that, once defendant served plaintiff with requests for EUOs, the resulting toll of defendant’s time to pay or deny plaintiff’s claims applied to each claim form which was submitted by the same plaintiff for the same [*2]assignor subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs” (ARCO Med v Lancer). In this instant matter, Plaintiff yet again failed to appear to the second timely scheduled follow-up EUO during the period of time that subsequent Bill 2 remained tolled. Thus, Defendant’s denial of this subsequent Bill 2 issued within 30 days of the second EUO no-show was timely.

Plaintiff’s motion for summary judgment is denied. Defendant’s cross-motion for summary judgment granted. This case is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Date: January 14, 2025
Brooklyn, New York
Hon. Sandra Elena Roper, JCCFyzio PT, PLLC v Ocean Harbor Cas. Ins. Co. (2025 NY Slip Op 50103(U))

Reported in New York Official Reports at Fyzio PT, PLLC v Ocean Harbor Cas. Ins. Co. (2025 NY Slip Op 50103(U))

[*1]

Fyzio PT, PLLC v Ocean Harbor Cas. Ins. Co.

2025 NY Slip Op 50103(U)

Decided on January 13, 2025

Civil Court Of The City Of New York, Bronx County

Chambers, J.

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

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

Decided on January 13, 2025

Fyzio PT, PLLC as Assignee of Edouard Eguelino, Plaintiff(s), against Ocean Harbor Casualty Insurance Company C/O New York State Department of Financial Services, Defendant(s).

Index No. CV-701364-21/BX


Counsel for Plaintiff:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302
Rockville Centre, New York 11570

Counsel for Defendant:
Gallo Vitucci Klar LLP
90 Broad Street , 3rd Floor
New York, New York 10004

Taisha L. Chambers, J.

The following papers were read on Defendant’s Motion for SUMMARY JUDGMENT,

Defendant’s Notice of Motion, Affirmations, Affidavits, and Exhibits 1
Plaintiff’s Affirmation in Opposition 2
Defendant’s Reply 3

Defendant moves the court pursuant to CPLR 3212 seeking summary judgment and a dismissal of the complaint which seeks $558.02 in unpaid medical bills for services rendered to claimant, Edouard Eguelino, on the grounds that claimant failed to appear for several Examinations Under Oath (“EUO”). Defendant also asserts that claimant failed to appear for duly scheduled Independent Medical Exams (IMEs). Moreover, defendant asserts that the subject policy was issued in Florida and therefore Florida law controls.

In support of its motion, defendant annexes, inter alia, an affirmation in support establishing the facts; the EUO and IME scheduling letters; denial letters; the bills at issue; the affidavit of Joseph Celli, Vice President and Claims Manager for defendant’s underwriter, who attests to defendant’s standard business procedures regarding investigations of claims, and the [*2]scheduling of EUOs and IMEs and denials of claims.

Plaintiff opposes the motion and contends that defendant fails to meet their burden to demonstrate entitlement to summary judgment. Specifically, plaintiff argues that defendant fails to annex any documentation to demonstrate claimant’s failure to appear for an IME. Additionally, plaintiff argues that defendant fails to annex an affidavit of personal knowledge to support to the non-appearance insofar as defendant only annexes the affidavit of its claims manager and fails to annex any physician affirmations. Also, plaintiff posits that defendant fails to demonstrate a good faith basis for the scheduling of EUO’s and fails to annex any evidence to demonstrate that the EUO scheduling letters were properly sent. With respect to the conflict of laws issue, plaintiff argues that claimant received treatment in New York, utilized a New York address for treatment, and the accident occurred in New York, and thus New York has more significant contacts in this instance, and therefore New York law controls.

In reply, defendant argues that all the relevant contacts to the issuance of the insurance policy were in Florida and New York courts have consistently held that the state where the policy is issued has the strongest interest in the case and therefore its law controls. As such, defendant contends that plaintiff’s remaining opposition is unavailable under Florida law.

Summary judgment is a drastic remedy which a court should employ only when there is no doubt as to the absence of triable issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issues of fact and entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986] and Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (see Assaf v Ropog Cab Corp., 153 AD2d 520 [1st Dept 1989]). It is well-settled that issue finding, not issue determination, is the key to summary judgment (see Rose v Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). Summary judgment will only be granted if there are no material, triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant’s papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish 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 [1980]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833[2014]; Vega v Restani Construction Corp., 18 NY3d 499, 503 [2012]).

This Court finds that defendant has failed to establish a prima facie showing of entitlement to a summary determination.

As an initial matter, “the first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved” (Matter of Allstate Ins. Co. (Stolarz), 81 NY2d 219 [1993]). A conflict is shown to exist where the laws in question must provide different substantive rules in each jurisdiction that are ‘relevant’ to the issue at hand and have a significant possible effect on the outcome of the trial (TBA Glob., LLC v Proscenium Events, LLC, 114 AD3d 571 [1st Dept 2014]).

Here, defendant asserts that Florida law must be used to determine whether there is a lack [*3]of coverage due to breach of a condition precedent as a result of claimant’s failure to appear for an EUO. However, New York law also holds that the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage (Mapfre Ins. Co. of New York v. Manoo, 140 AD3d 468 [2016]). Therefore, defendant fails to demonstrate a conflict of law that would have a significant effect on the outcome of the instant matter. As such, the court applies the law of New York, the forum state.

Hence, plaintiff’s claims are without merit if a claimant has not fully complied with conditions precedent to reimbursement prior to seeking judicial intervention (see Insurance Department Regulations [11 NYCRR] § 65-1.1).

Turning to defendant’s assertions regarding claimant’s failure to appear for scheduled EUOs and IMEs. Despite defendant’s assertions regarding Florida substantive law, defendant moves for summary judgment under New York CPLR 3212. Pursuant to 3212, a motion for summary judgment shall be supported by affidavit of a person having knowledge of the facts.

Joseph Celli, Vice President and Claims Manager for defendant’s underwriter, avows that two IME notices were mailed to claimant pursuant to defendant’s standard mailing practices. Celli also avers that two EUO notices were mailed to claimant pursuant to the same procedures. This Court finds that the procedures described in the affidavit sufficiently ensure the likelihood that EUO and IME notices are properly addressed and mailed. Therefore, contrary to plaintiff’s assertions, this Court must presume that the notices at issue in this matter were duly addressed and mailed (see Nassau Ins. Co. v. Murray, 46 NY2d 828 [1978]).

However, defendant nonetheless fails to meet its burden insofar as it fails to submit proof in admissible form from anyone with personal knowledge of the nonappearances. The affidavit of Joseph Celli is insufficient insofar as Celli makes conclusory assertions that claimant failed to appear for the scheduled EUOs. Celli fails to attest as to how he is aware of such information and fails to describe a standard business procedure utilized to record the alleged non-appearance. As such, Celli fails to demonstrate personal knowledge of the office procedures to establish claimant’s failure to appear for an EUO (Am. Tr. Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]). Furthermore, defendant fails to annex an affidavit of anyone with personal knowledge of claimant’s failure to appear for the scheduled IMEs at the physician’s office indicated by defendant. The assertions made by Celli in his affidavit regarding claimant’s failure to appear are inadmissible hearsay insofar as Celli fails to either avow that he was personally present in the physician’s office at the time of the appointment or has any personal knowledge of said physicians offices’ standard business procedure utilized to record the alleged non-appearance. As such, defendant also fails to establish claimant’s failure to appear for the scheduled IMEs. Therefore, defendant’s motion for summary judgment is denied as issues of fact remain as to whether plaintiff breached a condition precedent vitiating coverage.

All other claims and arguments have been considered and need not be addressed given the findings above. Accordingly, it is hereby

ORDERED that, defendant, OCEAN HARBOR CASUALTY INSURANCE COMPANY’s motion for summary judgment is denied, and it is further

ORDERED that, the plaintiff shall file a Notice of Trial within thirty (30) days of the date herein; and it is further

ORDERED that, the scope of trial in this matter is limited to whether defendant failed to appear for the EUOs and/or IMES.

This constitutes the decision and order of the Court.

Dated: January 13, 2025
HON. TAISHA L. CHAMBERS, J.C.C.Williams v Kemper Independence Ins. Co. (2025 NY Slip Op 50101(U))

Reported in New York Official Reports at Williams v Kemper Independence Ins. Co. (2025 NY Slip Op 50101(U))

[*1]

Williams v Kemper Independence Ins. Co.

2025 NY Slip Op 50101(U)

Decided on January 10, 2025

Civil Court Of The City Of New York, Bronx County

Chambers, J.

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

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

Decided on January 10, 2025

Cindy Anne Williams As Assignee of Damally Caine, Plaintiff(s), against Kemper Independence Insurance Company, Defendant(s).

Index No. CV-724690-22 /BX


Counsel for Plaintiff:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue
Suite 302
Rockville Centre, New York 11570

Counsel for Defendant:
Gullo & Associates, LLP Firm
1265 Richmond Avenue
Staten Island, New York 10314 Taisha L. Chambers, J.

The following papers were read on Defendant’s Motion for SUMMARY JUDGMENT,

Defendant’s Notice of Motion, Affirmation, Affidavits, and Exhibits 1
Plaintiff’s Affirmation in Opposition and Exhibits 2

Defendant moves the court pursuant to CPLR 3212 seeking summary judgment and a dismissal of the complaint which seeks $1,949.69 in unpaid medical bills for services rendered to claimant, Damally Caine, on the grounds that plaintiff failed to submit a No-Fault Application to defendant. Defendant contends that claimant failed to timely submit a No-Fault Application within thirty (30) days of the alleged accident and therefore is not an eligible injured person for coverage. In support of its motion, defendant annexes, inter alia, an opinion letter from the Insurance Department; case precedent; and an affidavit authored by Stephanie Scarfino, No-Fault Claim Representative for defendant, wherein she attests that defendant mailed plaintiff a request for a complete No-Fault Application and to date has not received one.

Plaintiff opposes the motion and contends that defendant has failed to establish entitlement to a summary determination. Specifically, plaintiff argues that defendant is precluded from asserting a thirty-day rule defense insofar as it has not issued a denial of plaintiff’s claim.

Summary judgment is a drastic remedy which a court should employ only when there is no doubt as to the absence of triable issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issues of fact and entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986] and Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (see Assaf v Ropog Cab Corp., 153 AD2d 520 [1st Dept 1989]). It is well-settled that issue finding, not issue determination, is the key to summary judgment (see Rose v Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). Summary judgment will only be granted if there are no material, triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant’s papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish 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 [1980]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833[2014]; Vega v Restani Construction Corp., 18 NY3d 499, 503 [2012]).

This Court finds that defendant has made a prima facie showing of entitlement to a summary determination which plaintiff has failed to refute.

The court finds that defendant’s assertion that the failure to submit a properly completed No-Fault Application precludes coverage meritorious. However, plaintiff correctly notes that a defense grounded in the thirty-day written notice of claim requirement pursuant to 11 NYCRR 65-2.4(b) is subject to preclusion if defendant fails to issue a timely denial (Compas Med., P.C. v ELRAC, Inc., 53 Misc 3d 138(A) [App Term 2016]). Here, both parties misinterpret the relevant sections of the No-Fault statute.

As an initial matter, it is well settled that plaintiff’s claims are without merit if a claimant has not fully complied with conditions precedent to reimbursement prior to seeking judicial intervention (see Insurance Department Regulations [11 NYCRR] § 65-1.1).

11 NYCRR 65-2.4 establishes two broad categories of conditions precedent to coverage, notice of claim and proof of claim. The parties’ contentions seemingly stem from an interpretation that the provider’s submission of a completed No-Fault Application (hereinafter “NF-2″) solely constitutes written notice of claim. The court acknowledges that this interpretation has merit insofar as, pursuant to 11 NYCRR 65-3.3[d],”[t]he written notice required by section 65-2.4 of this Part and the mandatory and additional personal injury protection endorsement(s) shall be deemed to be satisfied by the insurer’s receipt of a completed prescribed application for motor vehicle no-fault benefits (NYS form N-F 2) forwarded to the applicant pursuant to section 65-3.4(b).” However, this court finds that although the statute allows for the submission of a completed NF-2 to satisfy the written notice of claim condition [*2]precedent, said submission is more appropriately interpreted as primarily satisfying the proof of claim condition precedent.

A review of the statute’s structure reveals the proper order of the steps involved in the processing of a No-Fault claim.

11 NYCRR 65-3.3 provides further detail of the requirements for insurers to be provided notice of the claim pursuant to § 2.4. Subsequently, § 3.4 mandates that insurers demonstrate to providers an acknowledgment of the claim once they are noticed. Thereafter, § 3.5 details the information and/or compliance insurers are entitled to request and receive for the purposes of verifying the claim. This structure of notice, acknowledgement, and then verification is consistent with the two conditions precedent established by § 2.4, notice and proof.

Pursuant to § 3.4(b), insurers are required to forward to providers a request for a completed NF-2 after they receive notice of the claim, “unless the insurer will pay the claim as submitted within 30 calendar days, then, within five business days after notice is received the insurer shall forward to the applicant the prescribed application for motor vehicle no-fault benefits” (11 NYCRR 65-3.4[b]).

Subsequently, pursuant to §3.5(a) it is the insurer’s receipt of the completed NF-2 that begins the verification process, “Within 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS form NF-2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim.

Although the statute here once again equates the submission of a completed NF-2 with written notice, as it does in § 3.3(d), it more unequivocally associates same with proof of claim in § 3.5(f) where it states that “[a]n insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form. An insurer, however, may require the submission of the prescribed application for motor vehicle no-fault benefits” (11 NYCRR 65-3.5[f]).

11 NYCRR 65-2.4(c) identifies, explicitly, several forms of proof of claim that may be required by an insurer. This includes written proof of claim under oath; Examinations Under Oath (EUOs); and Independent Medical Examinations (IMEs). It is this Court’s opinion that a completed NF-2 primarily constitutes written proof of claim under oath. Same comports with the statutes allowance of the submission of a completed NF-2 to satisfy the written notice requirement. As stated earlier, where an insurer is provided notice of claim in some other fashion, it is required to acknowledge the claim by forwarding an NF-2 for completion and is entitled to require its submission for verification. Insofar as the submission of an NF-2 is a required step to begin the verification process, it is reasonable for same to constitute sufficient notice of claim and expedite the overall process as it already intrinsically eliminates the need for the acknowledgement step.

As the submission of a completed NF-2 primarily constitutes written proof of claim under oath, rather than notice, the thirty-day rule under 11 NYCRR 65-2.4(b) does not apply. The court may have been inclined to find that the forty-five (45) day rule for proof of claim under 11 NYCRR 65-2.4(d) was applicable, however, case precedent regarding the other forms of proof of claim that are explicitly recognized by § 2.4(d) dictates otherwise.

As previously stated, § 2.4(d) explicitly names written proof of claim under oath, EUOs and IMEs. It is well settled that when the latter two are requested by an insurer and the provider fails to comply, under certain conditions, said failure to comply is considered a breach of a [*3]condition precedent precluding coverage (see Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468 [2016]); see also Unitrin Advantage Ins. Co. v Advanced Orthopedics & Joint Preserv. P.C., 2018 NY Slip Op 33296[U], *9 [Sup Ct, NY County 2018], citing Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3D 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Therefore, this Court finds that the submission of a completed NF-2, just as the other explicitly named proofs of claim in 11 NYCRR 65-2.4(d), constitutes a condition precedent to coverage. Thus, failure to submit a completed NF-2 constitutes a breach of condition precedent, precluding coverage.

In the instant case, Stephanie Scarfino, No-Fault Claim Representative for defendant, avers in her affidavit that requests for a properly executed No-Fault application were mailed to plaintiff on June 24, 2022, July 25, 2022, and September 20, 2022, pursuant to defendant’s standard mailing procedures. This Court finds that the procedures described in said affidavit sufficiently ensure the likelihood that IME notices are properly addressed and mailed. Therefore, this Court must presume that the IME notices at issue in this matter were duly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]).

Furthermore, Scarfino avers, pursuant to her review of defendant’s electronic records in compliance with defendant’s standard office practice, that, to date, defendant has not received a properly executed No-Fault application from plaintiff. As such, defendant establishes their non-receipt of the documents necessary to determine coverage (Nationwide Ins. Co. v Dye, 170 AD2d 683 [2d Dept 1991]).

Therefore, defendant has established through its annexed exhibits that plaintiff failed to comply with a condition precedent to coverage and plaintiff’s opposition fails to raise an issue of fact. Thus, defendant’s motion for summary judgment is granted.

All remaining arguments have been considered and are either without merit or need not be addressed given the findings above. Accordingly, it is hereby

ORDERED that, defendant, Kemper Independence Insurance Company’s motion for summary judgment is granted, and the complaint is dismissed in its entirety as against said defendant; and it is further

ORDERED that, the clerk is hereby directed to enter judgment accordingly.

This constitutes the decision and order of the Court.

Dated: January 10, 2025
HON. TAISHA L. CHAMBERS, J.C.C.Van Loon DME USA, Inc v Maya Assur. Co. (2025 NY Slip Op 50102(U))

Reported in New York Official Reports at Van Loon DME USA, Inc v Maya Assur. Co. (2025 NY Slip Op 50102(U))

[*1]

Van Loon DME USA, Inc v Maya Assur. Co.

2025 NY Slip Op 50102(U) [85 Misc 3d 1206(A)]

Decided on January 10, 2025

Civil Court Of The City Of New York, Bronx County

Chambers, J.

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

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

Decided on January 10, 2025

Van Loon DME USA, Inc A/A/O Jose Trujillo, Plaintiff(s), against Maya Assurance Company, Defendant(s).

Index No. CV-700004-22



Counsel for Plaintiff:
Sanders Grossman Aronova PLLC
100 Garden City Plaza, Suite 500
Garden City, New York 11530

Counsel for Defendant:
De Martini & Yi, LLP Firm
254 Pettit Avenue
Bellmore, New York 11710 Taisha L. Chambers, J.

The following papers were read on Defendant’s Motion for SUMMARY JUDGMENT,

Defendant’s Notice of Motion, Affirmation, Affidavits, and Exhibits 1
Plaintiff’s Cross Motion, Affirmation in Opposition, Affidavits, and Exhibits 2

Defendant moves the court pursuant to CPLR 3212 seeking summary judgment and a dismissal of the complaint which seeks $1,705.72 in unpaid medical bills for services rendered to claimant, Jose Trujillo, on the grounds that plaintiff failed to submit its bills to defendant within 45 days of the dates of service as prescribed by the Insurance Regulations. Defendant maintains that it received the subject bill on October 28, 2021, seeking reimbursement for service dates September 10, 2020 through September 23, 2020. Defendant acknowledges that plaintiff’s submission included a letter wherein plaintiff indicated that the bills were initially sent to the wrong insurer. Yet, defendant argues that plaintiff failed to include any proof of the errant mailing and offered no explanation as to why there was a year long delay in identifying the correct carrier.

In support of its motion, defendant annexes, inter alia, an affirmation in support establishing the facts; an affidavit authored by Denise Meade, Claims Adjuster for defendant, wherein she attests that plaintiff’s bills were denied for failure to make a timely submission; a [*2]letter from plaintiff’s counsel dated October 26, 2021; and denial of claim forms.

Plaintiff opposes the motion and cross-moves for summary judgment. In its opposition and cross-motion, plaintiff contends that under 11 NYCRR 65-1.1 late submissions of claim may be excused where providers offer a reasonable justification for the delay. Plaintiff argues that it is undisputed that plaintiff submitted an explanation for its delay to defendant. Plaintiff asserts that it timely submitted the bills to an incorrect insurer, Nationwide, however the claims were delayed until the parties went to arbitration on September 20, 2021. Plaintiff further asserts it subsequently learned Nationwide was the incorrect insurer and the parties entered into a stipulation of discontinuance on October 19, 2021. Plaintiff then promptly submitted its bills to defendants on October 26, 2021. As such, plaintiff argues that the delay was reasonably justified. Plaintiff additionally argues that defendant fails to prove it timely mailed denial of claim forms. Additionally, plaintiff argues that its prima facie case is undisputed insofar as defendant concedes it received the subject bills and as such payment of the bills are overdue.

In support of its motion, plaintiff annexes, inter alia, an affidavit authored by Arnold Pooran, an employee in plaintiff’s mailing department, wherein he attests to plaintiff’s standard mailing practices, and that plaintiff initially mailed the subject bills to Nationwide on October 1, 2020 and October 19, 2020, and subsequently mailed the bills to defendant on October 26, 2021; letters addressed to Nationwide dated October 1, 2020 and October 19, 2020; proof of mailing; and a stipulation of discontinuance.

Summary judgment is a drastic remedy which a court should employ only when there is no doubt as to the absence of triable issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issues of fact and entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986] and Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (see Assaf v Ropog Cab Corp., 153 AD2d 520 [1st Dept 1989]). It is well-settled that issue finding, not issue determination, is the key to summary judgment (see Rose v Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). Summary judgment will only be granted if there are no material, triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant’s papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish 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 [1980]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833[2014]; Vega v Restani Construction Corp., 18 NY3d 499, 503 [2012]).

This Court finds that defendant has failed to establish a prima facie showing of entitlement to a summary determination as an issue of fact remains.

It is well settled that defendant is entitled to notice of claim within 45 days of the date services are rendered (see 11 NYCRR 65-1.1; see also NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term 2007]). However, the Insurance Regulations allow for a missed deadline to be excused upon clear and reasonable justification [*3]subject to the standards and procedures for review established by the insurers (11 NYCRR 65-1.1; 11 NYCRR 65-3.5(l); In re Med. Socy. of State, 298 AD2d 255 [1st Dept 2002], affd sub nom. Matter of Med. Socy. of State v Serio, 100 NY2d 854 [2003]). Additionally, pursuant to 11 NYCRR 65-3.3, when an insurer denies a claim based upon the failure to provide timely written notice of claim or timely submission of proof of claim by the applicant, such denial must advise the applicant that late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice. Furthermore, said procedures must be based on objective criteria, to ensure due consideration of denial of claims based upon late filings, including supervisory review of all such determinations (Matter of Med. Socy. of State v Serio, 100 NY2d 854 [2003]).

In the review of a late submission of a claim, at a minimum, appropriate consideration must be given for situations where the claimant has difficulty ascertaining the insurer’s identity or inadvertently submits a claim to the incorrect insurer (Matter of Med. Socy. of State v Serio, 100 NY2d 854 [2003]). Here, the record is devoid of any evidence that defendant gave proper consideration to plaintiff’s explanation, and therefore defendant’s motion must be denied (Bronx Expert Radiology v Clarendon Nat. Ins. Co., 23 Misc 3d 133(A) [App Term 2009]).

Here, it is undisputed that plaintiff submitted the subject bills to defendant far past the 45-day deadline provided by the regulations. However, it is also undisputed the plaintiff submitted a written explanation of its delay with its submission of the bills, indicating that the bills were initially sent to the incorrect insurer.

Defendant, in its motion, despite acknowledging the letter plaintiff annexed to the bills, contradictorily asserts that plaintiff failed to provide a written justification for the late submission. Yet, defendant also argues that plaintiff’s excuse was insufficient as plaintiff failed to submit proof of mailing to the incorrect insurer and failed to explain in detail the length of the delay. Furthermore, defendant fails to submit any evidence that it provided plaintiff any notice of these considerations in its review of plaintiff’s justification, other than citing the language it its denial form apprising plaintiff that its delay may be excused upon written justification. As such, defendant fails to affirmatively establish that it complied with insurance regulations, insofar as it seemingly ignored plaintiff’s letter in issuing a denial, which renders its denial improper.

Turning to plaintiff’s cross-motion for summary judgment.

Arnold Pooran, employee in plaintiff’s mailing department, avows that, pursuant to the procedures he describes, plaintiff initially mailed the subject bills to Nationwide on the dates indicated in the proof of mailing plaintiff annexes. Pooran additionally avers that after learning that defendant was the proper insurer, plaintiff mailed its bills to defendant on October 26, 2021, pursuant to the same procedures. This Court finds that the procedures described in the affidavit sufficiently ensure the likelihood that bills are properly addressed and mailed. Therefore, this Court must presume that the bills at issue in this matter were duly addressed and mailed (see Nassau Ins. Co. v. Murray, 46 NY2d 828 [1978]). Based on the foregoing, and the court’s finding that defendant’s denial was improper, therefore rendering payment of the bills overdue, plaintiff has made a prima facie showing of entitlement to a summary determination, which defendant has failed to refute. Accordingly, it is hereby

ORDERED that, defendant, Maya Assurance Company’s motion for summary judgment is denied, and it is further

ORDERED that, Plaintiff, Van Loon DME USE, Inc’s motion for summary judgment is granted, and it is further

ORDERED that, a judgment is granted in favor of plaintiff, as against defendant, in the amount of $1,705.72 with interest from November 27, 2021, as calculated by the Clerk of the Court. The clerk is hereby directed to enter judgment accordingly.

This constitutes the decision and order of the Court.

Dated: January 10, 2025
HON. TAISHA L. CHAMBERS, J.C.C.Hereford Ins. Co. v Interdependent Acupuncture PLLC (2025 NY Slip Op 00021)

Reported in New York Official Reports at Hereford Ins. Co. v Interdependent Acupuncture PLLC (2025 NY Slip Op 00021)

Hereford Ins. Co. v Interdependent Acupuncture PLLC

2025 NY Slip Op 00021

Decided on January 02, 2025

Appellate Division, First Department

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

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

Decided and Entered: January 02, 2025
Before: Kern, J.P., Kennedy, Gesmer, Higgitt, Michael, JJ.
Index No. 152296/19 Appeal No. 3388 Case No. 2024-02707

Law Office of Yuriy Prakhin, P.C., Brooklyn (Yuriy Prakhin of counsel), for appellants.

Goldberg, Miller & Rubin, P.C., New York (Victoria Tarasova of counsel), for respondent.

Order, Supreme Court, New York County (David B. Cohen, J.), entered April 11, 2024, which denied the motion of defendants-appellants Shelly Sarben-Sarpong and Corey Hargrove to vacate orders and judgments, entered August 14, 2019 and February 17, 2023, granting plaintiff’s motions for entry of default judgments against them and declaring that they were not entitled to no-fault coverage, unanimously affirmed, without costs.

The court providently exercised its discretion in denying appellants’ motion to vacate the default judgments pursuant to CPLR 5015(a)(1) because appellants failed to demonstrate a reasonable excuse for their defaults (CPLR 5015[a][1]; see Towncenter Partners LLC v A.A. Castro Complex Litig., 203 AD3d 528, 529 [1st Dept 2022]). Appellants offered no explanation as to why they failed to respond to the complaint despite conceding that they received service of process. Their counsel’s suggestion that they were confused by the pendency of their separate personal injury action, in which they were represented by counsel, does not constitute a reasonable excuse (see Buckley v Nicklous, 210 AD3d 575, 575 [1st Dept 2022]). Appellants provide no support for their argument that plaintiff should have notified their counsel, who represented them in a separate personal injury action against plaintiff’s insured, of the commencement of this declaratory judgment action. In any event, appellants did not provide any affidavits to explain why they did not provide the pleadings in this action to their counsel after they were served. Since appellants’ proffered excuse for their defaults was not reasonable, the court did not need to consider whether they showed a potentially meritorious defense to the declaratory judgment action (see Besler v Uzieri, 179 AD3d 628, 628-629 [1st Dept 2020]).

As for appellants’ argument that the default judgments are a nullity because plaintiff failed to make an evidentiary showing as required by CPLR 3215(f), the Court of Appeals has held that a failure to submit the proof required by CPLR 3215(f) is “not a jurisdictional defect” and therefore “does not justify treating the judgment as a nullity” (Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203-204 [1st Dept 2013]). Appellants’ remedy was to move pursuant to CPLR 5015(a)(1) to vacate the default judgments, which required them to show a reasonable excuse for their defaults (see id.; Frazier v 811 E. 178th St. Realty Corp., 183 AD3d 413, 414 [1st Dept 2020]). In any event, plaintiff did submit admissible evidence supporting its assertion that it properly disclaimed coverage based on a founded belief that the treatment appellants received was not medically necessary or causally related to the subject motor vehicle accident (see State Farm Fire & Cas. Co. v AA Acupuncture Serv., P.C., 217 AD3d 643 [1st Dept 2023]).

We have considered appellants’ remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME [*2]COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 2, 2025

Ocean View Med. Care, P.C. v Good2Go Auto Ins. (2024 NY Slip Op 51832(U))

Reported in New York Official Reports at Ocean View Med. Care, P.C. v Good2Go Auto Ins. (2024 NY Slip Op 51832(U))

[*1]

Ocean View Med. Care, P.C. v Good2Go Auto Ins.

2024 NY Slip Op 51832(U)

Decided on December 20, 2024

Appellate Term, Second Department

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

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

Decided on December 20, 2024

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-1143 K C

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated September 26, 2023. The order granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Sandra E. Roper, J.), dated September 26, 2023, which granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default judgment.

Contrary to plaintiff’s sole contention on appeal, it was not improper for the Civil Court to rely upon the argument, made by defendant for the first time in its reply to its cross-motion, that the claim determination period had not been tolled by requests for verification, as it was made in response to new evidence submitted by plaintiff. Specifically, in its opposition to defendant’s cross-motion, plaintiff sought to demonstrate that its cause of action accrued later than the date relied upon by defendant by submitting an affidavit of its owner alleging, upon information and belief, that defendant had requested additional verification and that plaintiff had supplied the requested verification. This affidavit conflicted with documents that were submitted by plaintiff with its moving papers: the complaint and an earlier affidavit of plaintiff’s owner. As defendant’s arguments in its reply papers, regarding the alleged additional verification and, thus, the accrual date, were in response to the new evidence submitted by plaintiff in its opposition papers, the Civil Court properly considered defendant’s arguments (see Gelaj v Gelaj, 164 AD3d 878, 879 [2018]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207 [2009]; Anderson v Beth Israel Med. Ctr., 31 AD3d 284, 287 [2006]; Davison v Order Ecumenical, 281 AD2d 383, [*2]383 [2001]). Consequently, plaintiff has not demonstrated any basis to disturb the order.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 20, 2024Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am. (2024 NY Slip Op 51822(U))

Reported in New York Official Reports at Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am. (2024 NY Slip Op 51822(U))

[*1]

Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am.

2024 NY Slip Op 51822(U)

Decided on December 19, 2024

Appellate Term, Second Department

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

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

Decided on December 19, 2024

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2023-479 K C

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated October 11, 2022. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court (Keisha M. Alleyne, J.) dated October 11, 2022 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

As the Civil Court observed, although plaintiff’s owner appeared at an EUO scheduled to be held on April 10, 2018, plaintiff’s counsel refused to permit plaintiff’s owner to answer any questions regarding the claim at issue and plaintiff’s counsel stated that defendant should “consider it a no show” (see Country-Wide Ins. Co. v Gotham Med., P.C., 154 AD3d 608 [2017] [appearing at an EUO and refusing to answer questions is a failure to comply with the request for an EUO]). Defendant subsequently timely scheduled four additional EUOs, the last of which was scheduled for September 6, 2018. Although plaintiff’s owner appeared on that date, he left before the EUO could begin. As a result, the Civil Court correctly held that defendant’s denial of claim on September 12, 2018, on the ground that plaintiff had failed to appear for duly scheduled EUOs, had been timely (see Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013 [2023]). Contrary to plaintiff’s contention, Quality Health Supply Corp. stands for the proposition that an insurer may choose to timely schedule more than two EUOs and a denial of the claim will be timely as long as it was issued in a timely manner after the last scheduled EUO.

Furthermore, defendant was not required to set forth objective reasons for requesting [*2]EUOs as, to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insurer need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground “following the [] failure to appear at the last scheduled EUO” (Quality Health Supply Corp., 216 AD3d at 1014; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co., 82 Misc 3d 128[A], 2024 NY Slip Op 50395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).

Plaintiff’s remaining contentions lack merit.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2024Quick v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 06268)

Reported in New York Official Reports at Quick v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 06268)

Quick v State Farm Mut. Auto. Ins. Co.

2024 NY Slip Op 06268

Decided on December 12, 2024

Appellate Division, Third Department

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

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

Decided and Entered:December 12, 2024
CV-24-0456



Calendar Date:October 15, 2024
Before:Clark, J.P., Pritzker, Lynch, Fisher and Powers, JJ.

Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for appellant.

Abrams, Cohen & Associates, New York City (Frank Piccininni of counsel), for respondent.

Powers, J.

Appeal from an order of the Supreme Court (Sharon A. Graff, J.), entered February 16, 2024 in Ulster County, which, among other things, granted defendant’s motion for summary judgment dismissing the complaint.

In January 2021, plaintiff was operating a Peterbilt tractor trailer in the course of his employment with Casa Builders, Inc. when he was injured. The tractor trailer had been leased from FTC Leasing, LLC, who had insured the vehicle through defendant. In March 2021, plaintiff applied for no-fault benefits through defendant and specified on this application that, although he was eligible for workers’ compensation benefits, Casa Builders did not hold workers’ compensation insurance. After seeking wage verification, defendant sent plaintiff a letter indicating that there is a question as to whether he is eligible for workers’ compensation coverage for the injury and, subsequently, denied the application on the basis that plaintiff was injured while in the course of employment. Therefore, according to defendant, plaintiff’s primary source of recovery for basic economic loss was through workers’ compensation. Defendant further advised plaintiff to provide verification if plaintiff’s application for workers’ compensation benefits was denied so defendant may then consider recovery pursuant to the no-fault insurance policy. Plaintiff challenged this denial on the basis that his employer did not possess workers’ compensation coverage and, further, had found him to be an independent contractor. Defendant, in response, instructed plaintiff to submit a 1099 form if he was an independent contractor but, otherwise, “to file a claim with the New York State Insurance Fund.”

Based upon the foregoing, plaintiff commenced the instant action alleging that defendant had wrongfully denied his no-fault insurance claim which had sought recovery of lost wages, medical expenses and other economic losses sustained because of the accident. Following joinder of issue, defendant moved for summary judgment dismissing the complaint on the basis that plaintiff was required to seek workers’ compensation benefits either through the Workers’ Compensation Board or the Uninsured Employers’ Fund before seeking no-fault coverage. Plaintiff cross-moved claiming that he could not have applied for workers’ compensation benefits because, as indicated in his application for no-fault benefits, his employer did not carry workers’ compensation coverage. Supreme Court granted defendant’s motion for summary judgment finding that, because plaintiff had failed to seek benefits through the Uninsured Employers’ Fund prior to applying for no-fault benefits, the instant action was improper. Plaintiff appeals.

“As a general rule, when an employee is injured in the course of his or her employment, his or her sole remedy against the employer lies in his or her entitlement to a recovery under the Workers’ Compensation Law” (Pringle v AC Bodyworks & Sons, LLC, 145 AD3d 1410, 1411 [3d Dept 2016] [[*2]internal quotation marks, brackets and citations omitted; see Workers’ Compensation Law § 11). However, ” ‘[w]here an employer fails to secure workers’ compensation coverage, an injured employee can simultaneously pursue both workers’ compensation benefits and a personal injury action’ ” (Rueda v Elmhurst Woodside, LLC, 116 AD3d 1027, 1027-1028 [2d Dept 2014], quoting Matter of Ocasio v Sang Soo Kim, 307 AD2d 662, 663 [3d Dept 2003], lv denied 3 NY3d 612 [2004]). The parties do not contest that plaintiff’s employer did not have workers’ compensation coverage at the time plaintiff sustained his injuries, and, therefore, plaintiff was able to commence a plenary action against his employer (see Rosario v Montalvo & Son Auto Repair Ctr., Ltd., 149 AD3d 885, 886 [2d Dept 2017]).

As is relevant here, plaintiff commenced a separate personal injury action against the employer that has since settled (NY St Cts Elec Filing [NYSCEF] Doc No. 1, summons and complaint, Doc No. 36, stipulation of discontinuance, in Quick v Casa Builders, Inc., Sup Ct, Ulster County, index No. EF2021-1112). However, plaintiff’s recovery in that action was limited inasmuch as Insurance Law § 5104 precludes recovery for basic economic loss “in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state” (Insurance Law § 5104 [a]). As a result, plaintiff sought no-fault insurance benefits through defendant to recover his basic economic loss. The gravamen of plaintiff’s application for benefits was that because his employer did not possess workers’ compensation coverage at the time of his accident, he was free to pursue recovery of basic economic loss through no-fault insurance benefits. For these same reasons, plaintiff maintains that his application for benefits was improperly denied and, therefore, Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint and, similarly, in denying his own cross-motion.

“In accordance with the No-Fault Law, automobile insurers, like [defendant], must provide up to $50,000 of coverage for an insured’s ‘basic economic loss’ ” (Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016], quoting Insurance Law § 5102 [a]). However, because no-fault benefits and workers’ compensation benefits are meant to cover generally the same types of loss, “payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle” may be reduced by the “[a]mount[ ] recovered or recoverable on account of such injury under . . . workers’ compensation benefits” (Insurance Law § 5102 [b] [2]; see Dietrick v Kemper Ins. Co. [American Motorists Ins. Co.], 76 NY2d 248, 251 [1990]; Matter of New Millennium Pain & Spine Medicine, P.C. v Garrison Prop. & Cas. Ins. Co., 224 AD3d 428, 430 [1st Dept 2024]; see also 11 NYCRR 65-3.16[*3][a] [9]). Based upon this, “[a]s between no-fault and workers’ compensation, the latter is primary and an injured party may not elect between workers’ compensation benefits and no-fault benefits” (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 268 [1st Dept 1991] [internal quotation marks and citations omitted]). This is so even when the employer has failed to provide workers’ compensation coverage as the Uninsured Employers’ Fund steps into the shoes of the carrier by acting as a surety (see generally Workers’ Compensation Law § 26-a; Matter of Salvia v Nutritional Frontiers LLC, 221 AD3d 1376, 1377 [3d Dept 2023], lv denied 41 NY3d 910 [2024]; Matter of McCray v CTS Enters., Inc., 166 AD3d 1356, 1357 [3d Dept 2018]; Matter of Passero v Uninsured Employers’ Fund, 154 AD3d 1037, 1038 [3d Dept 2017]; Zeng Xi Chen v Spitz, 77 AD3d 529, 529 [1st Dept 2010]).

The fact that plaintiff’s employer did not possess workers’ compensation coverage at the time of the accident does not render him ineligible for Workers’ Compensation benefits; instead it changes the potential source of payment. As such, plaintiff was required to seek workers’ compensation benefits as the primary source of payment for his basic economic loss, and only thereafter could he seek payment of no-fault benefits with his recovery correspondingly reduced by what he received through workers’ compensation.^[FN1]

“It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998] [internal quotation marks and citations omitted]). The determination plaintiff seeks would not only run contrary to the exclusivity provision contained within Workers’ Compensation Law § 11 but, also, to the very purpose for which the Uninsured Employers’ Fund was created. Accordingly, Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint, and consequently properly denied plaintiff’s cross-motion (cf. Matter of Global Liberty Ins. Co. of N.Y. v North Shore Family Chiropractic, PC, 178 AD3d 525, 526 [1st Dept 2019]; Alam v Taxi Wheels To Lease, Inc., 35 AD3d 771, 771 [2d Dept 2006]; see generally Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 455 [2d Dept 1980]).

Clark, J.P., Pritzker, Lynch and Fisher, JJ., concur.

ORDERED that the order is affirmed, with costs.

Footnote 1: Although plaintiff does not directly contest that he was injured in the course of his employment, the Court of Appeals has made clear that “[t]he Workers’ Compensation Board . . . has primary jurisdiction over the issue of the availability of coverage” and “the court should not express an opinion as to the availability of compensation” (Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]). Accordingly, any determination with respect to plaintiff’s eligibility for benefits must first be made by the Workers’ Compensation Board (see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752, 754 [2d Dept 2009]; O’Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d 633, 634 [2d Dept 2008]; Nunes v Window Network, LLC, 54 AD3d 834, 835 [2d Dept 2008]). By doing so, “the possibility of contrary decisions in different forums which may result in the denial of intended first party benefits to a claimant [is diminished] and successive legal challenges on the same issues [are eliminated,] resulting in a more timely resolution and more efficient use of both administrative and judicial resources while protecting the panoply of rights afforded [workers’ compensation] claimants” (Matter of Esposito v Petruzzi, 278 AD2d 698, 701 [3d Dept 2000]).Atlantic Med. & Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 51785(U))

Reported in New York Official Reports at Atlantic Med. & Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 51785(U))

[*1]

Atlantic Med. & Diagnostic, P.C. v State Farm Mut. Auto. Ins. Co.

2024 NY Slip Op 51785(U)

Decided on December 12, 2024

District Court Of Suffolk County, Third District

Black-Kelly, J.

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

As corrected in part through January 09, 2025; it will not be published in the printed Offical Reports.

Decided on December 12, 2024

Atlantic Medical & Diagnostic, P.C. AS ASSIGNEE OF CERINEA SHIRLEY, Plaintiff against State Farm Mutual Automobile Insurance Company, Defendant ATLANTIC MEDICAL & DIAGNOSTIC, P.C. AS ASSIGNEE OF LENORE PARLEE-BOYD, Plaintiff against STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant

Index No. CV-1912-23/HU

Bronwyn Black-Kelly, J.

The above captioned actions having come on for trial before this Court and the parties having stipulated to the consolidation of these matters for joint trial, the Court conducted a trial on September 16, 2024 and reserved decision.

The Plaintiffs in these actions seek to recover first party no-fault benefits pursuant to NY [*2]Insurance Law §§ 5102 & 5108 and the regulations promulgated thereunder. The subject of each suit is for the interventional pain management services that were performed on patient/assignors, specifically trigger point injections in which radiologic assistance was used to locate the site where ultimately an injection was made. Each unit of ultrasound guidance was billed individually. In each case the Defendant/carrier paid for the ultrasound guidance for one unit and denied the remaining units.

As stipulated by the parties, Plaintiffs timely submitted bills for multiple units of radiology in support of trigger point injections to multiple muscle groups (CPT 20553) and all of the submitted bills were timely denied by Defendant. It was further stipulated that the ad damnum clauses in both actions were amended to $5,205.60 (Re: Index CV-1912-23/HU ) and $2,776.32 (Re: Index CV-6944-23/HU).

The sole defense presented by the Defendant and the sole issue before this Court is whether Plaintiffs are entitled to reimbursement of multiple units of radiology (CPT 76942) in support of the aforesaid trigger point injections.

The Defendant argues only one unit is reimbursable and presented evidence in support of its defense via expert witness testimony, Jeffrey Futoran, CPC. Defendant’s expert witness testified that based upon coding opinions published by the American Medical Association (hereinafter referred to as AMA) including the AMA CPT Assistant and the AMA Knowledge Base it was his opinion that only one unit of CPT Code 76942 may be reported in conjunction with trigger point injections under CPT Code 20553.

The Plaintiff argues multiple units are reimbursable and presented an expert witness Jacqueline Thelian, CPC, CPCT, who testified that the New York State Workers’ Compensation Medical Fee Schedule provides specific allowances and guidance with respect to billing, coding and for reimbursement of multiple units of CPT Code 76942. As such, Plaintiff argues the New York State Workers’ Compensation Medical Fee Schedule is instructive and no further extrinsic material is necessary.

The official New York State Workers’ Compensation Medical Fee Schedule, (hereinafter referred to as the “Fee Schedule”) prepared and established by the Workers’ Compensation Board “is designed to be an accurate and authoritative source of information about medical coding and reimbursement” (see Fee Schedule Optum 360 Notice). The instructions and guidelines explains that ” a primary purpose of the schedule is to provide a precise description and coding of the services provided by New York State Physicians in the care of Workers’ Compensation covered patients and to ensure the proper payment for such services by assuring that they are specifically identifiable” (see Fee Schedule Introduction and General Guidelines). Thus based on the plain language set forth, the Fee Schedule is the primary source for the applicability and interpretation of fee codes.

The Fee Schedule consists of (8) eight sections enumerating specific instructions. In the case at bar, the relevant sections are Surgery (Section 4) and Radiology (Section 5).The section pertaining to Surgery refers to the Medical Fee Schedule Code 20553 described as “injection(s); single or multiple trigger point(s), 3 or more muscles” and provides the relative value (see p 81). The Radiology section refers to Code 76942 described as “ultrasonic guidance for needle placement (eg. biopsy, aspiration, injection, localization device) imaging suspension and interpretation.” The Radiology Schedule also provides instructions for determining the fee for a [*3]procedure that is, “multiplying the relative value by the radiology conversion factor subject to ground rules, instructions and definitions”.

Additionally, multiple procedures are addressed under the General Ground rules wherein multiple procedures rendered on the same day are to be separate entries. The procedure and rate of reimbursement for multiple diagnostic procedures are set forth under Radiology Ground Rule Three which reads “For three or more parts, whether contiguous or remote, the charge shall be the greater fee, plus 75% of the total of the lesser fees”. Thus specifically allowing for multiple reimbursements of Code 76942.

The Defendant argues that the inquiry should go beyond the Fee Schedule to other sources and relies upon the Court’s finding in Global Liberty v. McMahon, 172 AD3d 500. The Appellate Division in Global Liberty found it was “reversible error to preclude extrinsic evidence such as CPT Manuel, CPT Assist and Knowledge Base Inquiry ” and such authorities must be considered by the Court.

However, based upon the purpose and language specifically expressed in the Fee Schedule itself, that being the primary source, the extrinsic authority does not supercedes the rules and regulations in the Fee Schedule.

In further support of this view, the introduction and guidelines specifically instruct one to “refer to the CPT book for an explanation of coding rules and regulations not billed in the schedule.” Such is not the case herein.

It is this Court’s opinion that one does not need to look beyond the Fee Schedule itself which presents guidelines allowing for multiple billing and Radiology Ground Rule Three which allows for multiple reimbursement.

Based upon the testimony and evidence presented the Court finds that multiple units of CPT Code 76942 on same day and same place were properly billed and can be reimbursed pursuant to the New York State Workers’ Compensation Fee Schedule when in conjunction with pain management trigger shots (20553). Accordingly, the Court finds for the Plaintiffs and awards judgment in the amounts as stipulated by the parties.

Hon Bronwyn Black-Kelly, J.D.C., #128
Dated: December 12, 2024