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

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 23, 2010. The order, insofar as appealed from, denied the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff’s claim for $879.73 and found, pursuant to CPLR 3212 (g), that defendant had timely denied that claim.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff’s claim for $879.73 is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees as to that claim.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims in question based on a lack of medical necessity. The Civil Court denied both motions, and held that plaintiff had [*2]“established its prima facie entitlement to summary judgment, pursuant to CPLR 3212 (g)” and that defendant had “timely and properly denied said bills.” The court further stated that the sole issue to be determined at trial was the medical necessity of the services that had been rendered to plaintiff’s assignor. Plaintiff appeals from so much of the order as denied the branch of plaintiff’s motion seeking summary judgment on the complaint insofar as it sought to recover upon plaintiff’s claim for $879.73, and so much of the order as found, pursuant to CPLR 3212 (g), that defendant had timely denied that claim.

To make a prima facie showing of entitlement to summary judgment, a no-fault provider must submit proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant had either failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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, 11th & 13th Jud Dists 2011]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]).

By invoking CPLR 3212 (g) and by limiting the trial in this case to the issue of medical necessity, the court implicitly found that (1) the fact and the amount of the loss sustained, and (2) the submission of the claim form to defendant, were “established for all purposes in the action” because they were “not in dispute” or were “incontrovertible” (CPLR 3212 [g]).

While the Civil Court also found, as incontrovertible, that defendant had timely denied plaintiff’s claim for $879.73, plaintiff correctly notes on appeal that, in defendant’s papers, defendant failed to even allege that it had mailed the denial of that claim. Plaintiff argues that, given the Civil Court’s CPLR 3212 (g) finding that, with respect to the claim for $879.73, plaintiff had established its prima facie entitlement to judgment as a matter of law, coupled with defendant’s failure to establish in its motion papers a timely denial of the claim, the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff’s claim for $879.73 should have been granted.

In opposition, defendant argues, among other things, that the Civil Court’s finding that plaintiff had established its prima facie case was incorrect because plaintiff had not proven the fact and the amount of the loss sustained. Plaintiff responds by arguing that this finding is not reviewable because defendant did not cross-appeal.

Under the circumstances presented, we need not reach the question of whether defendant was required to cross-appeal in order to obtain review of the CPLR 3212 (g) finding which established, for all purposes in the action, the fact and the amount of the loss sustained since, contrary to defendant’s argument on appeal, plaintiff did establish the fact and the amount of the loss sustained by demonstrating that its claim form is admissible, pursuant to CPLR 4518 (a), as proof of the acts, transactions, occurrences and/or events recorded therein, and defendant did not rebut that showing. Thus, whether or not the CPLR 3212 (g) finding in question can be reviewed on this appeal, plaintiff is entitled to summary judgment on so much of the complaint as sought to recover upon its claim for $879.73.

Accordingly, the order, insofar as appealed from, is reversed, the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon [*3]plaintiff’s claim for $879.73 is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees as to that claim.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 08, 2013

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 (Dolores L. Waltrous, J.H.O.), entered November 18, 2010. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s amended cross motion seeking to compel plaintiff to provide defendant with responses to its discovery demands and to produce Vladimir Grinberg for an examination before trial.

ORDERED that the appeal is dismissed as academic.

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 as denied plaintiff’s motion for summary judgment and granted the branch of defendant’s amended cross motion seeking to compel plaintiff to provide defendant with responses to its discovery demands and to produce Vladimir Grinberg for an examination before trial (EBT). Subsequent to the entry of the November 18, 2010 order, the Civil Court dismissed the complaint. The dismissal of the [*2]complaint renders this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the appeal is dismissed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 08, 2013

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 8, 2013

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Irena Golodkeyer of counsel), for appellant. Abrams, Cohen & Associates, New York City (Barry Cohen of counsel), for respondent.

{**39 Misc 3d at 10} OPINION OF THE COURT

Memorandum.

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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel plaintiff to provide full and complete responses to defendant’s discovery demands and to produce Vladimir Grinberg for an examination before trial (EBT).

Plaintiff was required, but failed, to challenge the propriety of defendant’s discovery demands pursuant to CPLR 3120 within the time prescribed by CPLR 3122. As a result, plaintiff{**39 Misc 3d at 11} is obligated to produce the information sought except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). To the extent the discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that plaintiff did not specifically object thereto (see Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d{**39 Misc 3d at 12} 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

Pursuant to CPLR 3124, if a party fails to respond to or comply with any request, notice, interrogatory, demand or order under article 31 of the CPLR, the party seeking disclosure may move to compel compliance (see also CPLR 3126). There is no requirement upon the movant other than to show that no response had been received. Thus, in the case at bar, defendant was not required to demonstrate that its discovery demands were not palpably improper. Rather, in order to successfully oppose defendant’s cross motion to compel, plaintiff would have had to show that defendant’s defense of billing fraud was precluded because it was not asserted in a timely NF-10 denial of claim form, which plaintiff did not do.

Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, is ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff’s financial records, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]). In addition, defendant is entitled to an EBT of Vladimir Grinberg (see CPLR 3101 [a]; Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51591[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [2008]). Consequently, the Civil Court properly denied plaintiff’s motion for summary judgment (see CPLR 3212 [f]) and granted defendant’s cross motion to compel plaintiff to provide full and complete responses to defendant’s discovery demands and to produce Vladimir Grinberg for an EBT.

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Solomon, 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 (Ingrid Joseph, J.), entered February 23, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

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

Plaintiff’s assignor was injured in a motor vehicle accident in New York while she was a passenger in a vehicle that was being driven by a New Jersey resident who owned the vehicle. The vehicle was insured by a New Jersey automobile insurance policy. Plaintiff, a New York corporation, rendered medical services to its assignor in New York and submitted a claim to defendant. Plaintiff subsequently commenced this action, alleging that the payment of no-fault benefits was overdue and, thereafter, moved for summary judgment. In opposition to plaintiff’s motion, defendant argued that New Jersey law controlled and, under New Jersey law, plaintiff had failed to establish its prima facie entitlement to summary judgment. Defendant also cross-moved for summary judgment dismissing the complaint. In its cross motion, defendant argued that, pursuant to New Jersey law and the New Jersey policy of insurance, the matter was [*2]required to be submitted to dispute resolution and, thus, that the Civil Court lacked jurisdiction. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion.

With respect to plaintiff’s motion for summary judgment, under New York law, in order to establish its prima facie case, a provider must show submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]), and the defense of a lack of medical necessity for the rendered services can be precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Under New Jersey law, a provider has the burden, in the first instance, to establish that the provided services were medically reasonable and necessary (see Elkins v New Jersey Mfrs. Ins. Co., 244 NJ Super 695, 583 A2d 409 [1990]), and an insurer can raise a lack of medical necessity defense at any time (see NJSA 39:6A-5; Kowaleski v Allstate Ins. Co., 238 NJ Super 210 [1990]). In view of the foregoing, a conflict clearly exists between the law of New York and the law of New Jersey (see Matter of Allstate Ins. Co. [Stolarz – New Jersey Mfrs. Ins. Co.], 81 NY2d 219 [1993]).

Upon the application of a “center of gravity” or “grouping of contacts” analysis, we find that the dispositive factors weigh in favor of New Jersey and that its law should control (see A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 27 Misc 3d 52 [App Term, 9th & 10th Jud Dists 2010]; Careplus Med. Supply, Inc. v Selective Ins. Co. of Am., 25 Misc 3d 48 [App Term, 9th & 10th Jud Dists 2009]). Inasmuch as, under New Jersey law, plaintiff is required, in the first instance, to establish the medical necessity of the rendered services, and since plaintiff failed to provide such proof, plaintiff’s motion for summary judgment should have been denied.

With respect to defendant’s cross motion for summary judgment dismissing the complaint, defendant argues that, since dispute resolution is mandatory under New Jersey law, the Civil Court lacks jurisdiction and, thus, the action should be dismissed. Contrary to defendant’s contention, dispute resolution is not mandatory in the case at bar pursuant to NJSA 39:6A-5.1 (a), as implemented by NJAC 11:3-5.1 (a) (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273 [2009]) since the insurance policy in question does not provide for mandatory dispute resolution; rather, it states that dispute resolution may be taken “on the initiative of any party to the dispute.” Consequently, the Civil Court does not lack jurisdiction and defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack of jurisdiction was properly denied. Inasmuch as, on the record before us, neither party has sought to compel dispute resolution, we do not reach any other issue regarding the dispute resolution provision and its effects.

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

Pesce, P.J., Weston and Aliotta, JJ., concur. [*3]
Decision Date: February 01, 2013

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered February 3, 2011. The order granted defendant’s motion to stay the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered February 3, 2011 which granted defendant’s motion to stay the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law. Subsequent to the entry of the February 3, 2011 order, the Civil Court entered an order dismissing the complaint. The dismissal of the complaint renders this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc [*2]3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the appeal is dismissed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 01, 2013

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered January 13, 2011. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint. The appeal is deemed to be from a judgment of the same court entered February 4, 2011 awarding plaintiff the principal sum of $1,780.19 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered January 13, 2011 as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s motion is denied, and that branch of defendant’s cross motion is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant [*2]appeals from so much of an order as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint. A judgment was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied (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]; see also All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51346[U] [App Term, 2d, 11th & 13th Jud Dists 2012]) plaintiff’s claims for dates of service December 18, 2008 and May 18, 2009 on the ground of lack of medical necessity. Defendant also annexed an affirmed peer review report and an affirmed independent medical examination (IME) report, each of which set forth a factual basis and medical rationale for the respective doctor’s determination that there was a lack of medical necessity for the services at issue. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report and the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009 should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, so much of the order entered January 13, 2011 as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s motion is denied, and that branch of defendant’s cross motion is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 01, 2013

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 (Reginald A. Boddie, J.), entered August 4, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, in effect, 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 that denied its motion for summary judgment and granted defendant’s cross motion, in effect, for summary judgment dismissing the complaint.

For the reasons stated in D & R Med. Supply v American Tr. Ins. Co. (32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. [*2]
Decision Date: February 01, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Robert R. Reed, J.), entered April 18, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered April 18, 2011, affirmed, with $10 costs.

We sustain the denial of defendant’s motion for summary judgment dismissing this first-party no-fault action. Defendant’s June 26, 2008 request for additional verification in the form of an examination under oath (EUO) of the plaintiff medical provider was untimely and did not serve to toll defendant’s time to pay or deny the claim, since the request was made well beyond the requisite 15-day time period following the assignor’s EUO (see 11 NYCRR 65-3.5[b]; 65—3.8[a][1]; see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 17-18 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 01, 2013

District Court of Nassau County, First District

CV-019669-12

Baker Sanders LLC, Attorneys for Plaintiff, 100 Garden City Plaza, Suite 500, Garden City, New York 11530, 516-741-4799; McCormack & Mattei, P.C., 1035 Stewart Avenue, Second Floor, Garden City, New York 11530, 516-505-0600

Michael A. Ciaffa, J.

Defendant, Progressive Casualty Ins. Co. (“Progressive”), moves for summary judgment dismissing plaintiff’s no-fault complaint on grounds of res judicata and collateral estoppel. Plaintiff, Sutter Medical Care, P.C. (“Sutter Med”) opposes the motion.

The issues presented by Progressive’s motion arise in the context of a broader dispute between Progressive and Sutter Med respecting the provider’s entitlement to no-fault benefits under New York law. In January, 2012, Progressive and its related companies commenced a declaratory judgment action against Sutter Med in the Supreme Court, Nassau County (index no. 000119/12). The complaint in that case (defendant’s ex. B) alleged, inter alia, that Sutter Med had failed to satisfy conditions precedent to Progressive’s obligation to cover a series of no-fault claims by failing to appear for examinations under oath, and by failing to provide requested verification of the claims. Based upon these allegations, Progressive requested a declaration that it had “no obligation to pay” any outstanding claims for services rendered by Sutter Med to the 14 named claimants referenced in the complaint. Plaintiff’s assignor in this matter, Atisha Grant, was one of those named claimants.

Sutter Med failed to answer Progressive’s declaratory judgment complaint. By order dated April 19, 2012, the Supreme Court (Brown, J.) granted Progressive’s motion for a default judgment against Sutter Med and directed Progressive to submit a judgment for the court’s approval. Sutter Med made no effort to contest Progressive’s entitlement to such relief from the Supreme Court. Instead, in early June, 2012, it commenced a series of no-fault lawsuits against Progressive in the District Court, Nassau County, [*2]seeking payment of no-fault benefits. At least six of these lawsuits involve claims for payment for medical services that it rendered to six of the same claimants who were specifically referenced in the declaratory judgment complaint. Progressive now moves before this Court for orders dismissing each of those six cases on the ground that each lawsuit is barred by the default judgment rendered in the declaratory judgment action. This matter is one of those six cases.

The papers before the Court on the instant motion confirm that the summons and complaint in this case was filed on June 4, 2012. It includes allegations that Sutter Med rendered necessary medical services to its assignor, Atisha Grant, which are the subject of three unpaid no-fault bills. As shown in an exhibit to the complaint, the services in question were rendered between June 17 and August 31, 2011. Each of the three bills submitted to defendant Progressive arose from the same accident date (April 8, 2011) and bear the same Progressive claim number (114814153).

Defendant’s answer to the complaint was served on June 27, 2012. It includes twenty-four separately stated affirmative defenses, including defenses asserting that plaintiff failed to properly verify its claims, and failed to satisfy a condition precedent to coverage. However, the answer does not include as defenses a claim that the action is barred by res judicata or collateral estoppel.

On the same date that defendant’s answer was served (June 27, 2012), the Supreme Court’s judgment (defendant’s ex. C) was formally entered, granting judgment to Progressive “on default … as to the claims that are the subject of this within action.” The Supreme Court’s judgment went on to declare that Sutter Med “…is not entitled to reimbursement for medical services … based upon [Sutter Med’s] failure to satisfy conditions precedent to coverage or to verify [its] claims.” The default judgment also declared: “Plaintiff [Progressive] is under no obligation to pay any of the no-fault claims … for which examinations under oath and documents were requested on the grounds that the Defaulting Defendant [Sutter Med] has not complied with conditions precedent to reimbursement …”

For reasons not explained, Progressive made no effort to amend its answer, as of right (see CPLR 3025[a]), following entry of the Supreme Court’s judgment. By law, it could have served an amended answer at any time within 20 days of the date of its original answer (id). Such an amended answer could have included allegations that plaintiff’s claims were now barred under principles of res judicata and collateral estoppel. Nor did defendant move for leave to amend its answer at any time thereafter seeking permission to include such defenses to plaintiff’s lawsuit. See generally Prof. David D. Siegel’s Practice Commentaries to McKinney’s CPLR 3211, at C3211:62. Instead of doing so, defendant simply made its summary judgment motion upon copies of the instant pleadings (defendant’s ex. A), its declaratory judgment complaint in the Supreme Court (ex. B), and the default judgment entered in the declaratory judgment action (ex. C).

In opposing the instant motion for summary judgment, Sutter Med challenges [*3]Progressive’s arguments for dismissal on procedural and substantive grounds. Ordinarily, a res judicata or collateral estoppel defense is deemed waived unless raised by a CPLR 3211(a)(5) motion to dismiss or asserted in the defendant’s responsive pleading. See CPLR 3211(e). Moreover, pursuant to the requirements of CPLR 3018(b), such affirmative defenses ordinarily must be included in the defendant’s answer. Based upon these rules, plaintiff argues, with considerable force, that defendant waived its right to seek dismissal on grounds of res judicata and collateral estoppel by not making a timely motion to dismiss or including these two affirmative defenses in its answer.

The Court rejects plaintiff’s argument. Contrary to plaintiff’s contention, defendant’s failure to raise these affirmative defenses earlier is not necessarily fatal. See, e.g. Sullivan v American Airlines, Inc., 80 AD3d 600, 602 (2d Dept 2011) (an unpleaded affirmative defense “may serve as the basis for granting summary judgment in the absence of surprise or prejudice”); Sheils v County of Fulton, 14 AD3d 919 (3d Dept 2005), lv den 4 NY3d 711 (2005) (granting summary judgment to defendant on unpleaded affirmative defense that plaintiff failed to exhaust administrative remedies); Kirilescu v American Home Prods. Corp., 278 AD2d 457 (2d Dept 2000), lv den 96 NY2d 933 (2001) (granting summary judgment to defendant upon unpleaded affirmative defense based upon federal preemption); Strauss v. BMW Financial Services, 29 Misc 3d 362, 364 (Sup Ct Kings Co. 2010) (granting summary judgment to defendant on unpleaded affirmative defense of immunity). As the Court explained in Strauss: “When a defendant fails to plead an affirmative defense, but asserts said defense in connection with a motion for summary judgment, the waiver is said to have been retracted and the court can grant or deny summary judgment based on the never plead affirmative defense.” Id. “The relevant inquiry…is the prejudice or surprise associated with assertion of a never plead affirmative defense.” Id. The risk of prejudice and surprise are “ameliorated when…the plaintiff has had a full and fair opportunity to respond and oppose the defense…” Id.

In any event, even if the Court were otherwise inclined to deny summary judgment on the ground that defendant waived its res judicata and collateral estoppel defenses by not asserting them in an answer or amended answer or in a timely CPLR 3211(a)(5) motion to dismiss, defendant could easily correct its oversight by seeking leave to amend its answer pursuant to CPLR 3025[b]. See, e.g. Complete Management, Inc. v. Rubinstein, 74 AD3d 722, 723 (2d Dept 2010) (although defendants waived affirmative defense of lack of capacity to sue “by failing to raise it in their answer or in a motion to dismiss made prior to answering, … defenses waived under CPLR 3211[e] can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025[b] so long as the amendment does not cause the other party prejudice or surprise”) ; Giacamazzo v. Moreno, 94 AD2d 369 (1st Dept. 1983) ( trial court properly allowed defendant to amend its answer at trial to assert previously waived affirmative defense of res judicata). Prolonging the case for that reason makes no sense.In this Court’s [*4]previous unpublished rulings in cases involving similar issues, it has made plain that Progressive need not seek to formally amend its answers before moving to dismiss a pending no-fault action on grounds of res judicata. See, e.g. New Century Medical Diagnostics, P.C. v Progressive Casualty Ins. Co., index no. 026933, decision dated December 5, 2012 (Dist Ct Nassau Co., Ciaffa, J.); Healthy Physique Physical Therapy P.C. v Progressive Casualty Ins. Co., index no. 019457, decision dated November 27, 2012 (Dist Ct Nassau Co., Ciaffa, J.). This Court reiterates the rulings it made in those cases.

Consistent with the principle that the CPLR should be “liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding” (CPLR §104), the Court concludes that it may properly consider defendant’s motion for summary judgment upon its unplead res judicata and collateral estoppel defenses. See New Century Medical Diagnostics, P.C. v Progressive Casualty Ins. Co., supra; Healthy Physique Physical Therapy P.C. v Progressive Casualty Ins. Co., supra. Plaintiff here has been afforded a full and fair opportunity to oppose the defenses on the merits. It cannot claim that defendant’s motion comes as a surprise. It makes no claim of colorable prejudice based upon delay. The Court accordingly turns to the merits of the motion.

The basic rules are well settled. Res judicata principles broadly prohibit a party from seeking to relitigate a claim “where a judgment on the merits exists from a prior action between the same parties involving the same subject matter.” In re Hunter, 4 NY3d 260, 269 (2005). Collateral estoppel, in turn, applies more narrowly to the attempted relitigation of “identical” issues which were “necessarily … decided” in the prior action. See Kaufman v Eli Lilly and Co., 65 NY2d 449, 455 (1983).

Progressive’s moving papers amply establish the prior action and the instant action both involve identical claims by Progressive that Sutter Med failed to provide proper no-fault verification for medical services rendered to Atisha Grant, and that Sutter Med failed to satisfy a condition precedent to coverage by not appearing for a requested EUO. As plaintiff’s counsel readily acknowledges, the judgment issued in the declaratory judgment case specifies that Progressive “is under no obligation to pay any of the no-fault claims … for which examinations under oath and documents were requested …” However, counsel points to the absence of any evidence of EUO requests or denial of claim forms respecting the subject three bills in this action. In the absence of such proof, plaintiff contends that defendant cannot meet its burden of proving that the issues presented in this case were necessarily litigated in the declaratory judgment action.

The Court rejects plaintiff’s contention. The declaratory judgment action concerned the same parties and the same subject matter. The complaint in the declaratory judgment action includes verified allegations that Progressive requested EUOs for a series of specific claims, including claims for services rendered to plaintiff’s assignor, Atisha Grant, under claim number 114814513 (defendant’s ex. B, ¶ 19). According to the [*5]insurer’s verified complaint, each of the EUO and document requests were timely mailed to Sutter Med, and each of the EUO requests asked for documents from Sutter Med which it failed to provide (ex. B, ¶¶ 20, 28). Progressive further alleged that it had sufficient basis to request the EUOs and documents, but Sutter Medical Care did not respond or appear for any of the EUOs (ex. B, ¶¶ 27, 28). As a consequence, all no-fault billings for services rendered to plaintiff’s assignors, including Atisha Grant, were allegedly denied and/or delayed, as allowed by applicable no-fault regulations (ex. B, ¶ 31).

Reading the complaint by Progressive and the Supreme Court’s declaratory judgment together, the default judgment entered in the declaratory judgment action clearly precludes plaintiff from pursuing assigned claims for medical services rendered to plaintiff’s assignor, Atisha Grant, under claim number 114814513. Based upon the verified allegations in the declaratory judgment action and Sutter Med’s default in answering the complaint, the Supreme Court issued a declaration that Sutter Med is “not entitled to reimbursement for medical services” rendered to Atisha Grant, and that Progressive has “no obligation to pay” any of such claims. Sutter Med cannot dispute that res judicata principles apply equally to judgments entered on default.See, e.g.Ava Acupuncture P.C. v NY Central Mut. Fire Ins. Co., 2012 NY Slip Op 50233 (App Term 2d Dept); see also Tantillo v Giglio, 156 AD2d 664 (2d Dept 1989), discussing Blair v Bartlett, 75 NY 150 (1878). Accordingly, the Supreme Court’s declarations are binding upon the parties in this lawsuit, and provide Progressive with a complete defense to the claims made in this proceeding. See, e.g. Ava Acupuncture P.C. v NY Central Mut. Fire Ins. Co., supra; EBM Med. Health Care, P.C. v Republic Western Insurance, 2012 NY Slip Op 22300 (App Term 2d Dept).

Under the circumstances presented, Sutter Med cannot avoid the preclusive effect of the declaratory judgment upon the particular bills and claims advanced in its complaint. Contrary to plaintiff’s contention, Progressive need not submit evidence establishing that it requested EUOs and documents from Sutter Med respecting each of the three bills referenced in the instant complaint. In view of the broad declaration issued by the Supreme Court, establishing that Sutter Med breached a condition precedent to coverage of Sutter Med’s claims for services rendered to Atisha Grant, the absence of such proof is immaterial. The complaint in the instant case, like the complaint in the declaratory judgment action, specifically references and concerns medical services provided by Sutter Med to Atisha Grant under claim number 114814513. The papers before the Court are sufficient to demonstrate an identity between the claims and issues in both cases.

Therefore, the declaratory judgment issued by the Supreme Court necessarily precludes pursuit of claims by Sutter Medical Care in this action, seeking payment for medical services rendered to Atisha Grant under that very same claim number. See, e.g. Naqiy Medical P.C. v Unitrin Direct Ins. Co., index no. 050030/10, decision dated May 1, 2012 (Dist Ct Nassau Co., Ciaffa, J.). “To hold otherwise could result in a judgment in [*6]the instant action which would destroy or impair rights established by the order rendered in the declaratory judgment action.” Id, quoting Ava Acupuncture P.C. v NY Central Mut. Fire Ins. Co., supra, citing Schykill Fuel Corp. v. Nieberg Realty Corp., 250 NY 304, 306-7 (1929).

Nor does it matter that Progressive may have partially paid other claims for services rendered to Atisha Grant upon receipt of other bills which are not the subject of the claims made in this no-fault action. Although plaintiff’s opposition includes documentary proof that defendant partially paid one such claim in July 2011, the EUO defaults alleged in the declaratory judgment complaint occurred the following month, in August 2011 (see defendant’s ex. B, ¶ 19). As of that date, but not before, Sutter Medical breached the condition precedent to Progressive’s obligation to provide coverage for pending claims. Cf. Arco Med.NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90, 92-3 (App Term 2d Dept 2012). Accordingly, the fact that Progressive may have paid earlier bills provides no basis for defeating the instant motion. It likewise fails to present a triable issue whether the validity of the claims made in this case were necessarily determined by the default judgment in the declaratory judgment action.

In closing, Sutter Med does not dispute that it had a full and fair opportunity to contest the allegations made in the declaratory judgment action. It failed to contest the allegations. A default judgment was entered as a result. That judgment is final and binding with respect to Progressive’s liability for paying for medical services rendered to Atisha Grant under claim number 114814513.

For these reasons, defendant’s motion is GRANTED and the complaint is DISMISSED.So Ordered:

District Court Judge

Dated: January 24, 2013

cc:McCormack & Mattei, P.C.

Baker, Sanders, LLC

Civil Court of the City of New York, Kings County

99743/09

Attorneys for Plaintiff QUALITY PSYCHOLOGICAL SERVICES

Law Offices of Melissa Betancourt

155 Kings Highway, 3rd Floor

Brooklyn, NY 11223

Attorneys for Defendant HARTFORD INSURANCE COMPANY

Iseman, Cunningham, Riester & Hyde, LLP

2649 South Road, Suite 230

Poughkeepsie, NY 12601

Harriet Thompson, J.

Motion Cal No.Motion Seq. #

Papers Submitted to Special Term

on2/15/12,

DECISION/ORDER

Recitation, as required by CPLR §2219 (a), of the papers

considered in the review of this Motion

PapersNumbered

Notice of Motion ………………………………. ..1-2; 3-4

Order to Show Cause and Affidavits Annexed _____________

Answering Affidavits .._____5_____

Replying Affidavits ._____6________

Exhibits _____________

Other …………………………………………………._____________

PROCEDURAL HISTORYThis Civil Court action was commenced in or about September 21, 2009, by the service of [*2]a Summons and Endorsed Complaint to recover first-party No-Fault benefits as a result of alleged injuries arising out of an automobile accident which occurred on July 25, 2008. In or about November 17, 2009, the Defendant interposed a Verified Answer which contained various applicable and inapplicable affirmative defenses.

The Defendant moves this Court for summary judgment pursuant to CPLR §3212 by Notice of Motion returnable on August 16, 2011 on the grounds that the Plaintiff failed to submit to two properly scheduled Examinations Under Oath (hereinafter “EUO”), a condition precedent to insurance coverage and a violation of the Insurance regulations, precluding recovery of the medical claim. On the return date, the attorneys, by written agreement, adjourned the motion to February 15, 2012 for the parties to engage in motion practice.

The Plaintiff, in opposition, attacks the admissibility and credibility of the Defendant’s affidavits. The Plaintiff seeks to persuade this court that the certificate of conformity affirmed by ALAN CHANDLER, ESQ. does not contain the language “under the penalties of perjury” pursuant to CPLR §2106 and therefore, is inadmissible. The Plaintiff also argues that the out-of-state affidavit of NANCY ALPIZAR is missing a certificate of conformity altogether and is void as a matter of law. Additionally, Plaintiff argues that the affidavits do not establish proper and timely mailing of the EUO notices and denials since it contains various factual discrepancies. The Plaintiff also argues that the Defendant failed to establish that EUO requests were properly mailed since the certified mail return receipts are absent from the motion; the Defendant failed to schedule the EUO’s in the county where the Plaintiff resides and therefore, it is palpably improper; and the Defendant failed to properly rebut the prima facie case of the Plaintiff and accordingly, the Plaintiff is entitled to judgment as a matter of law.

In reply, and in further support of the Defendant’s motion for summary judgment, the Defendant challenges the Plaintiff’s argument that the certificate of conformity of ALAN CHANDLER, ESQ. is defective for failure to swear “under the penalties of perjury” pursuant to CPLR §2106 and asserts that the certificates of conformity for the out-of-state affidavits are proper. The Defendant further reiterates that the affidavits of the Defendant’s Claims Representative and the Defendant’s Mailing Courier Representative are sufficient to establish the timely mailing of EUO letters and denials of the claim (NF-10) and lastly, argues that the request for a specific witness affiliated with the Plaintiff (Dr. Herbert Fischer, Ph. D., the treating physician) to appear for the EUO outside of the Plaintiff’s county was waived due the lack of any objections to the requests.

The Plaintiff, by Notice of Cross Motion, returnable on February 15, 2012, also seeks summary judgment. The Plaintiff contends that it has established its prima facie case through the submission of the proper proof of claim in the form of a health care services application (NF-3) that was properly generated and timely mailed to the Defendant in the ordinary course of business, the claim was received by the Defendant and the Defendant failed to make payment within thirty (30) days of receipt as required by No-Fault Insurance Law and regulations or to take any action to properly toll the time constraints imposed by 11 NYCCRR §65.

Both parties appeared by their attorneys and after oral argument, this Court reserved decision for a final disposition. [*3]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The following facts are uncontroverted. Justas Kalvaitis was treated by the above named Plaintiff for alleged injuries between August 26, 2008 and September 29, 2008 for the total sum of $1,341.14. The bills for the above services were received by the Defendant on September 29, 2008.

In order to establish its prima facie case, the Plaintiff must prove that the proper notice of claim for the medical services provided to the assignor was mailed to the Defendant and received by the Defendant, and that payment of the No-Fault benefits were neither paid or denied within thirty (30) days of receipt. Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742, 774 NYS2d 564 (2nd Dept., 2004) [plaintiff hospital made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue]; see also Westchester Med. Center v. Liberty Mutual Ins. Co., 40 AD3d 981, 837 NYS2d 210 (2nd Dept.-, 2007); Insurance Law 5106(a).

The No-Fault Law requires the insurance carrier to either pay or deny the claim for No-Fault benefits within thirty (30) days from the date of receipt of the claim. Insurance Law, §5106(a); 11 NYCRR §65.15(g)(3). Within ten (10) business days after the receipt of the NF-2, the insurer must send verification forms to the insured or the provider. In the regulations, after receipt of the completed verification, the insurer may seek “additional verification” or further proof of claim from the insured or assignee within fifteen (15) days thereof. 11 NYCRR 65§ 3.5(b). The insurer may seek additional verification in the form of an independent medical examination (IME) within thirty (30) days from the date of the initial medical bills (11 NYCRR65.3.5(d)), or as in this case, if the insurer requires an EUO of the insured or provider to establish such proof of claim, the EUO must be based upon “the application of objective standards so that there is specific objective justification supporting the use of such examination”. Such standards are subject to review by the Insurance Department. 11 NYCRR §65-3.5(e). The regulations direct that the insured or provider be informed that the use of either the IME or EUO by the insurer require the insurer to reimburse the affected party for “any loss of earnings and reasonable transportation expenses.”

If any additional verification has not been provided to the insurer within 30 calendar days after the original request, the insurer shall, within ten (10) calendar days, “follow-up” with the noncompliant party by either telephone call or by mail. 11 NYCRR § 65.3.6 (b). At that time, the insurer must notify the claimant or their representative of the basis for the delay of the claim by “identifying, in writing, the missing verification and the party from whom it was requested.”

The prescribed thirty (30) day time line to pay or deny a claim is tolled until the insurer has received proper verification of all relevant information requested of the injured party or provider. 11 NYCRR 65.15(d), (g), (7); St. Vincent Hospital of Richmond v American Tr. Ins. Co., 299 AD2d 338, 750 NYS2d 98 (NY A.D., 2002). The burden does not shift to the insurer to pay or deny the claim until the required party has complied with the verification request.

Of course, in reality, the insurer does not always act timely. In this judicial department, the Appellate Division in Keith v. Liberty Mutual Fire Ins. Co., 118 AD2d 151, 503 NYS2d 441 (1986) determined that 11 NYCRR 65.3.8(j), which describes the process of deviation from the rules which [*4]reduces the thirty calendar days for regulatory noncompliance, that “[a]lthough the clock does not begin to run on the thirty-day calendar requirement until the insurer receives all of the necessary verification … the insurer’s lack of diligence in obtaining the verification may reduce the thirty-day period even before verification is obtained. In that case, the insurer was four business days late in requesting the verification and thus, the insurer’s thirty-day calendar days to pay or deny the claim must be reduced by four days, leaving 26 days.”

According to Judge Hagler, in Inwood Hill Med v. Allstate, 3 Misc 3d 1110 (A), 787 NYS2d 678 (NY Civ. Ct., 2004), a thorough and excellent analysis of the No-Fault regulations, the thirty (30) day rule does not apply to requests for additional verification within the prescribed time frame and this court concurs. He states that “the inconsistency may be resolved by stating that the insurer’s time is not reduced where it sought the additional verification request late but within the prescribed thirty calendar days (i.e. more than fifteen business days and up to twenty-nine days which would not effectively reduce the thirty days to zero). Where the insurer either seeks additional verification requests or even provides a time to respond outside the thirty calendar days, the proverbial clock has run and there is no need to resort to the 11 NYCRR 65-3.8(j) counting requirement. A contrary interpretation of the regulation would run counter to the clear wording of Insurance law §5106(a) providing for the strict 30-day rule. See Karciscs v. Merchants Mutual Ins. Co., 49 NY2d 451, 426 NYS2d 454 (N.Y, 1980).”

An EUO permits the insurer to question the injured party or its assignee regarding the claim. As Judge Hirsh aptly stated in Dynamic Medical Imaging, P.C. v State Farm Mutual Auto Ins., 29 Misc 3d 278, 905 N.Y.S.2d 880 (Dis. Ct. Nassau) “while an EUO has been treated by the courts as a condition precedent to coverage, the no-fault regulations treat the EUO as a form of verification. Thus, where a carrier properly demands an EUO “…the verification is deemed to have been received by the insurer on the day the examination was performed. 11 NYCRR 65-3.8(a)(1).” In addition, it has been held that the appearance at a properly demanded EUO is a condition precedent to an insurance carrier’s liability to pay no-fault benefits (Five Boro Psychological Services, P.C. v. Progressive Northeastern Ins. Co., 27 Misc 3d 141(A), 91 NYS2d 692 (N.Y.Supp. App. Term, 2010)).

As the Defendant correctly states in the instant motion, all automobile insurance policies with No-Fault endorsements in our state contain the prescribed language of the Insurance Regulations. Specifically, 11 NYCRR 65-1.1 provides that “[u]pon request by the Company, the eligible injured person or that person’s assignee or representative shall:…(b) as may reasonably be required to submit to examination under oath by any person named by the Company and subscribe same…..”

Moreover, 11 NYCRR 65-3.5 (c) states that “[t]he insurer is entitled to received all items necessary to verify the claim directly from the parties from whom such verification was requested.” Lastly, as also correctly argued by the Defendant, 11 NYCRR-1 provides that “[n]o action shall lie against the Company, unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage.” After all, the goal of the insured or provider is to get paid and each must act in good faith and cooperate with the insurer to achieve that purpose. So even if the insured believes it can not or should not comply with the insured’s request, the insured has a duty to communicate with the insurer about that request. See Dilon Med. Supply Corp. v. Travelers Ins. Co., 7 Misc 3d 927, 796 NYS2d 872 (NY Civ Ct, Kings County, 2005). [*5]

The most significant substantive issue before this court is whether the affidavits of mailing meet the requirements of the No-Fault law to establish proper proof of mailing of the EUO notices and the denials. Surprisingly, there are a significant number of cases that tackle, what at first blush appears, seemingly a simple issue. It is essential that we examine the legal criteria adopted by the courts for establishing proper mailing.

The common law doctrine of presumption of regularity is still alive in New York State despite arguments to the contrary. Generally speaking, a letter or notice that is properly stamped, addressed and mailed is presumed to be received by the addressee. News Syndicate Co. v. Gatti Paper Stock Corp., 256 NY 211, 176 NE 169 (NY, 1931); New York New Jersey Products Dealers Coop v. Mocker, 59 AD2d 970, 399 NYS2d 280 (NY A.D., 3d Dept., 1977). A simple denial of receipt has been held insufficient to rebut this presumption. Countrywide Home Loans, Inc. v. Brown, 305 AD2d 626, 760 NYS2d 200 (NY AD2d Dept., 2003) . See also Precision Dev. V. Hartford Fire Ins. Co, 10 Misc 3d 1055(A), 809 NYS2d 483 (NY Sup., 2005) where the court precluded recovery on a payment bond issued by the Defendant based on the failure of the Plaintiff to comply with the notice requirements of the State Finance Law. The court would not allow the Plaintiff’s to rely on this common law presumption of regularity to prove receipt of the required notice based on the legislative mandate that the notice of claim by the contractor be made by personal delivery or by registered mail. Conversely, the No-Fault regulations, namely, 11 NYCRR 65-3.5(a) state that once the insurer receives the NF-2 application for benefits, the insurer “[s]hall forward to the parties those prescribed verification forms it will require prior to payment of the initial claim.” As Judge Tapia recently stated in Hastava & Aleman Assoc. P.C. v. State Farm Mut. Auto Ins. Co., 24 Misc 3d 1239(A), 899 NYS2d 59 (Civ. Ct., Bx Ct., 2009) “the regulation uses “forward” to describe the manner in which notification is to be effected. The only kink is determining what constitutes sufficient “notice” because the regulation does not specify the mailing procedure by which to notify the injured party.” In that case, the court determined that the mailing of a letter by certified mail, return receipt requested is entitled to the same presumption of receipt as regular first-class mail in the absence of the signed returned receipt”. Furthermore, “satisfying No-Fault policy conditions does not have to be compromised at the expense of challenging mailing procedures because proof of mailing of verification letters via regular USPS is enough to create a presumption of receipt. In addition, the use of certified mail does not create a more demanding presumption of mailing and receipt beyond that of a letter that was properly mailed. The regulations make no distinction between sending a letter via regular mail or via certified mail.”

The presumption of receipt may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 729 NYS2d 776 (2001); Nassau Ins Co. v. Murray, 46 NY2d 828, 414 NYS2d 117 (1978); Matter of Francis v. Wing, 263 AD2d 432, 694 NYS2d 29 (NY A.D. 1st Dept., 1999); Azriliant v. Eagle Chase Assoc., 213 AD2d 573, 575, 624 NYS2d 238 (NY AD2d Dept., 1995); Phoenix Ins. Co v. Tasch, 306 AD2d 288, 762 NYS2d 99 (NY AD2d Dept., 2003); Matter of Colyar, 129 AD2d 946, 947, 515 NYS2d 330 (NY AD3d Dept., 1987). Therefore, affidavits that merely state that the bills were mailed within the statutory time period have been held insufficient to establish proof of actual mailing. Comprehensive Medical v. Lumbermens Mutual Ins. Co., 4 Misc 3d 133(A) (App. Term 9 & 10th Jud. Dists, 2004). [*6]

The burden is on the insurer to present an affidavit of an employee who personally mailed the verification/denial, or on the other hand, an affidavit of an employee with personal knowledge of the office’s mailing practices and procedures. Such individual must describe those practices or procedural in detail, explicitly denoting the manner in which she/he acquired the knowledge of such procedures or practices, and how a personal review of the file indicates that those procedures or practices were adhered to with respect to the processing of that particular claim (emphasis added).

By demonstrating its routine and reasonable office procedures, the Defendant meets its burden of proof that the notices were mailed to the plaintiff and were received. The burden then shifts to the plaintiff to rebut the presumption of receipt. Abuhamra v. New York Mut. Underwriters, 170 AD2d 1003, 566 NYS2d 156 (NY A.D. 4th Dept., 1991); Residential Holding Corp. v. Scottsdale Ins. Co., supra. It is worthy of repetition that the denial of receipt, standing alone, is insufficient to rebut the presumption. Indeed, “[i]n addition to a claim of no receipt, there must be a showing that the routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed. Nassau Ins Co. v. Murray, 46 NY2d 828, 414 NYS2d 117 [1978]; See also Badio v. Liberty Mutual Fire Ins. Co., 12 AD23d 229, 785 NYS2d 52 (App. Div., 1st Dept., 2004).

Having discussed the frame work of the insurance law and regulations to lay the proper foundation for our analysis in the case at bar, the court makes the following findings of facts and conclusions of law.

The Plaintiff submitted a proof of claim in the form of a health care services application (NF-3) for reimbursement for health care services rendered to the assignor, JUSTAS KAVAITIS, in the amount of $1,341.14 for dates of services from 8/26/2008-9/16/2008.

The affidavit of STEVEN HAYDEN, an employee in the Special Investigation Unit since 1999 at Hartfort, informs the court that there was an ongoing investigation into the operation and management of the provider, QUALITY PSYCHOLOGICAL SERVICES, P.C., independent of this case. This case is yet another case that has delved into the operation and billing practices of the Plaintiff. The affidavit of STEVEN HAYDEN states that the Defendant commenced the investigation to verify bills submitted by the Plaintiff, [s]pecifically, Hartford initially questioned the fact that nearly all clinical findings of QUALITY PSYCHOLOGICAL SERVICES, P.C., were identical from patient to patient and the frequency and duration of their psychological testing and treatment appeared to be excessive. He further states that…”the bills and records…not only appeared to be boilerplate, but also incomplete and inaccurate information was provided”. Additionally, …in many records submitted…references were made to a patient’s age or sex, which was inconsistent with the other information submitted by the patient, including their no-fault application or personal identification (HAYDEN affidavit at ¶3 and ¶4). As significant, he affirmed that the Defendant “…learned that in a majority of instances these patients had not had psychological problems or complaints, yet the records submitted by QUALITY PSYCHOLOGICAL indicated otherwise and during the investigation…[he] learned that many patients actually never received treatment and/or testing billed by QUALITY PSYCHOLOGICAL to Hartford” ( HAYDEN affidavit at ¶5 and ¶6).

The court finds that the prior investigation and the investigation of this particular case produced ample evidence to warrant such a demand for the EUO and such demand was fair, [*7]reasonable and in accordance with the above insurance regulations. Based on the above findings, it is the opinion of this court that the Defendant properly sought the EUO of the treating physician, Herbert Fischer, Ph. D. to investigate the claim.The court also finds no impediment, statutorily or otherwise, for the insurer to demand the appearance of the treating physician of the Plaintiff corporation at the EUO particularly since the regulations provide that the insurer may insist on the appearance of “any person named by the Company”. 11 NYCRR 65-1.1. Moreover, since the treating physician is responsible for the actual treatment of the patient, such individual would have exclusive knowledge of the course of treatment of the assignor including but not limited to the patient’s logs, narrative reports, testing, diagnoses, prescriptions, file memoranda and the like. Although the Plaintiff argues that is was palpably improper for the Defendant to schedule the EUO outside of the county of the Plaintiff, this claim is without merit. Since the Plaintiff did not object, in writing or orally, to the EUO notice, the court finds that the Plaintiff waived any objection to the content and scope of the EUO request. Dilon Med. Supply Corp. v. Travelers Ins. Co., supra.

To establish its prima facie case, the Defendant relies on the affidavit of SARA LOMNICKY. SARA LOMNICKY, at the time of this claim, was a No-Fault Claims Specialist with the Defendant’s No-Fault Department located at 8 Farm Springs Road in Farmington, Connecticut. She states that she has knowledge of Defendant’s mailing procedures used in connection with written requests for EUO’s and/or the production of other documents, as well as the mailing of any denial of claim forms based upon her eight (8) years of employment experience at Hartford. She specifically states that “based on my personal knowledge of the preparation and mailing of the documents at issue in this matter under claim number YXHAF65085”, the EUO notices to the assignor were sent by certified mail (SARA LOMNICKY affidavit at ¶4). She explicitly describes the mailing procedures of the Defendant in paragraphs 15 (a)-(o). Based upon her knowledge of Defendant’s mailing practices and procedures and her review of the file in the instant matter, SARA LOMNICKY informs the court that the Defendant received the medical bills on September 29, 2008 and this fact is undisputed by the Plaintiff. The first EUO letter was mailed on October 3, 2008, within the prescribed fifteen (15) business days after the receipt of the claims, seeking an EUO on October 28, 2008. Then, when the Plaintiff failed to provide the documentary evidence demanded by the verification or appear for the EUO on October 28, 2008, the insurer on November 5, 2008, within ten (10) calendar days after that request, issued a “follow-up” notice for an EUO on November 26, 2008. The EUO request was in compliance with the insurance regulations by identifying the missing verification which the assignor was required to provide to comply with the insurance policy. The letter highlights that ” the policy of insurance under which [your] claim is made requires claimants to cooperate with our investigation, produce the demanded documents and [to] testify [at] an examination under oath. The EUO notice demands ten enumerated documents from ¶1- ¶10 which the Plaintiff was duty bound to produce at the EUO, since as stated above, the Plaintiff waived all objections.

On December 2, 2008, the Defendant issued a timely denial for payment of the health care services performed by the Plaintiff based on the grounds that the Plaintiff failed to appear at two scheduled EUO’s. The Defendant attaches the denial of claim form as Exhibit A-3 which explicitly states that “all benefits are denied for failure to cooperate in the claims investigation, policy condition violated and failure to appear for Examinations Under Oath on October 28, 2008 and November 26, 2008.” Furthermore, it also states that the insured or her representative did not [*8]comply with the insurance policy “without a reasonable excuse” and the insurer would reconsider its position should the assignor or representative provide a reasonable excuse for noncompliance. The Plaintiff has not offered any “reasonable excuse” for noncompliance with the insurance policy or the law.

The Defendant also proffers the affidavit of NANCY ALPIZER, a Supervisor with Pitney Bowes, to complete the practices and procedures of the Defendant insurer’s mailing procedures. She affirms that a courier from her company picks up the mail from the Defendant’s Farmington, Connecticut office every weekday at 3:00 p.m. and at 4:30 p.m. and delivers the mail to the US Post Office on that same day. All of the mail that is picked up on a particular day is delivered to the US Post Office on the same day. The court finds this affidavit reliable and is ample proof of the completion of the mailing practices and procedure of the Defendant particularly since Pitney Bowes is a nonparty witness that has no stake in this litigation notwithstanding the contractual relationship with the Defendant.

Lastly, the Defendant provides the affirmation of JOSHUA E. MACKEY, ESQ., the attorney responsible for conducting the proposed EUO of Herbert Fisher, Ph.D. JOSHUA E. MACKEY affirms he was present in his office prepared to take the EUO of the Plaintiff on both dates and no one affiliated with Plaintiff’s office appeared on either date. He also attests that the Plaintiff did not supply the various documents requested to verify the medical services, to wit: patient questionnaire, charts, handwritten notes, memoranda, any referrals, medical treatment, testing and examinations.

The above evidentiary proof submitted by the Defendant is sufficient to demonstrate timely and proper mailing of all EUO letters and the denials. By demonstrating its routine and reasonable office procedures, the Defendant meets its burden of proof that the notices were mailed to the Plaintiff and were received. The burden now shifts to the Plaintiff to rebut the presumption of receipt and to raise a triable issue of fact. Abuhamra v. New York Mut. Underwriters, supra; Residential Holding Corp. v. Scottsdale Ins. Co., supra. The opposition papers of the Plaintiff as well as the supporting attorney affirmation, party affidavit and documentary evidence annexed to the Plaintiff’s cross motion do not contain any factual claims that the EUO notices were not received and is devoid of any claim of any fatal defect(s) in their content; neither do they assert in any manner that the routine office practice was not followed or was so haphazard that it would be completely unreasonable to assume that the notice was mailed and received by the Plaintiff. Therefore, the Plaintiff having failed to meet its burden, this court finds that all of the notices and denials were timely received by the Plaintiff.

Although this irrefutable proof has been produced by the Defendant, the Plaintiff argues that the lack of the certified mail receipt is fatal to the Defendant’s case. This contention is without merit. The lack of the certified mail receipts is insignificant in this case. The certified mail receipts are superflorous and the court will not infer any negative inference from their absence; the Defendant, through irrefutable admissible evidence in the above affidavits and supporting documents, established proper and timely mailing of the EUO notices and the denials.

Does the Plaintiff raise any issue of fact that would warrant the denial of summary judgment for the insured? The answer is in the negative. The Plaintiff’s papers do not raise any issue of fact; it contains only the affirmation of the attorney for the Plaintiff. As the Court of Appeals has firmly held an affidavit or affirmation from a party’s attorney who lacks personal knowledge of the facts [*9]is of no probative value and is insufficient to support an award of summary judgment; in our case, to defeat an award for summary judgment (see Zuckerman v. City of New York, 49 NY2d 557 [1980]; Amaze Med. Supply, Inc. v. Allstate Ins. Co., 3 Misc 3d 133(A), [App Term, 2nd & 11th Jud. Dists, 2004]; Wisnieski v. Kraft, 242 AD2d 290, 6691 NYS2d 46 [NY A.D., 2d Dept., 1997]; Lupinsky v. Windham Constr. Corp., 293 AD2d 317, 739 NYS2d 171 [NY A.D., 1st Dept., 2002]). Thus, even when the attorney has affirmed that a review of the file and records of his client is the basis of his knowledge, the Appellate Courts have consistently determined that it is insufficient to defeat a motion for summary judgment. (See Park Health Ctr. v. Green Bus Lines, Inc., App. Term., 2d & 11th Jus. Dists., 2002 NY Slip Op. 40029[U]) in which the court found that “[t]he defendant’s attorney submitted an opposing affirmation, based on his knowledge which was “obtained from a reading of the files,” wherein he alleged that the NF-2 form was not in the certified mailing and asserted that defendant first received a completed no-fault application on April 10, 1995, was insufficient to defeat summary judgment. In the absence of an affidavit from one with personal knowledge of the facts, the defendant’s attorney’s affirmation is insufficient to establish the existence of a triable issue of fact (Drug Guild Distribs. v 3-9 Drugs, 277 AD2d 197, 715 NYS2d 442 [NY AD2d Dept., 2000]). See also Drug Guild Distribs. v 3-9 Drugs, supra, where the Appellate Division held that “an affidavit of [the Defendant] president and an affirmation of counsel, that it never ordered or received these goods, and that the invoices, receipts, and account statement produced by the plaintiff were fraudulent” were insufficient to defeat summary judgment. ” The defendant’s conclusory denial of the transactions is insufficient to counter the facts established by the plaintiff’s documentary evidence”. See also Park Health Center v. Green Bus Lines, Inc., (2002 WL 416484, 2002 NY Slip Op. 40029(U).

Furthermore, the affidavit of VICTORIA SIMKINA, the Supervisor of Billing for QUALITY PSYCHOLOGICAL SERVICES, P.C., as described in the cross motion, was submitted only to attest to the mailing practices and procedure of her employer of the claim forms. Her affidavit and that of the attorney never rebuts the presumption of receipt of the EUO notices and denials. In fact, neither sworn statement allege that the EUO notices were not received and that the mailing practices and procedure was not properly implemented by the Defendant.

We the substantive issues established in this case, this court shall examine the alleged defects claimed by the Plaintiff in the Defendant’s papers. The Plaintiff asserts that the certificate of conformity by ALAN CHANDLER, ESQ. accompanying the affidavit of SARAH LOMINKY should be deemed fatally defective because it was not sworn to under the “penalties of perjury” pursuant to CPLR Rule §2106. The Plaintiff also argues that the affidavit of NANCY ALPIZER is void since it lacks a certificate of conformity altogether. This court has conducted substantial research involving this issue with our civil cases and found no statutory authority or case authority to support the proposition that the lack of the words “under penalty of perjury” makes the certificate of conformity inadmissible.

Rule §2106 provides in relevant part that “the statement of any attorney admitted to practice in the courts of the state,…authorized to practice law in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit”. Plaintiff’s reliance on this provision is misplaced. This rule is limited to professionals licensed in our state and permits them [*10]to submit affirmations instead of affidavits.

The applicable section of the CPLR is §2309(a) and ( c). A certificate of conformity is an acknowledgment that a legal document conforms to the law of the place where it is taken. CPLR Section 2309(c) in conjunction with RPL Sections 299 and 311, allows an oath or an affirmation taken outside of the state administered by any person authorized to take acknowledgments of deeds under the real property law. CPLR Section 2309(c ) states that “an oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.”

CPLR §2309 thus adopts the requirements of RPL§299 and §311, which govern acknowledgment of deeds and authentication of acknowledgments outside the state. RPL 299 (3) specifically designates a notary public as a person eligible to acknowledge deeds outside of the state of New York. RPL §311(5) describes the limitations for a certificate of authentication “…except as provided in this section, no certificate of authentication shall be required to entitle a conveyance to be read in evidence or recorded in this state when acknowledged or proved before any officer designated in section two hundred ninety-nine or in section three hundred one of this chapter to take such acknowledgment or proof.”

As Professor David I. Siegel states in NY Practice, (2d ed), this oath …as long as it is , it will be backed, at least theoretically, by the perjury penalties in the Penal Law, which defines “oath” to include “an affirmation and every other mood authorized by law of attesting” to what is said. This affirmation, by the way, is a form of oath, duly taken before one qualified to administer an oath, and should not be confused with the “affirmation” authorized by CPLR 2106.”

In this case, the statements of both witnesses were sworn to before a notary public and then subsequently, the attorney affirmed that the “oath” was performed in accordance with the laws of the state of Connecticut. The “affidavit of merit” for NANCY ALPIZAR is a certificate of conformity. The Court’s review of the content of the “affidavit of merit” reveal that it is a certificate of conformity; it was merely given the wrong title in the caption.

This court has also reviewed the case precedent cited by Hartford Insurance Company and is in accord. The absence of a proper certificate of conformity is not fatal to this motion but is “a mere defect in form which can be given nunc pro tunc effect once properly acknowledged.” (JP Morgan Chase Bank, N.A. v. S.I. Wood Furniture, 34 Misc 3d 1214(A), 946 NYS2d 67 [Sup. Ct, Kings County, 2012]); Hall v ELRAC, 79 AD3d 427, 913 NYS2d 37 [NY A.D. 1st Dept., 2010]; Betz v. Daniel Conti, Inc., 69 AD3d 545, 892 NYS2d 477 [NY AD2d Dept., 2010]; Matapos Tech. Ltd. v Compania Andina De Comercio Ltd., 68 AD3d 672 , 891 NYS2d 394 [NY A.D. 1st Dept., 2009]; Moccia v Carrier Car Rental, Inc. 40 AD3d 504, 837 NYS2d 67 [NY A.D. 1st Dept., 2007]; Smith v Allstate ins. Co., 38 AD3d 522, 832 NYS2d 587 [NY A.D. 2nd Dept., 2007]; Falah v Stop & Shop Cos. Inc., 41 AD3d 638, 838 NYS2d 639 [NY AD2d Dept., 2007)]; Sparaco v Sparaco, 309 AD2d 1029, 765 NYS2d 6683 [NY AD3d Dept., 2003]; Nandy v Albany Med. Ctr. Hosp., 155 AD2d 83, 548 NYS2d 98 [NY AD3d Dept., 1989]; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C2309:3 at 348). [*11]

As important, our courts, pursuant to CPLR §2001, have the authority, at any stage of an action, to permit a mistake, omission, defect or irregularity, to be corrected and disregarded, upon such terms as may be just if a substantial right of a party is not prejudiced.

In our case, the Plaintiff has not disputed the authenticity of the notary public or the substance of the certificate of conformity. The Plaintiff has also not made any allegations of any prejudice or undue hardship resulting from this defect and the record in this action does not support any finding of prejudice or hardship to the Plaintiff. As Judge Demarest so aptly stated in JP Morgan Chase N.A. v S.I. Wood Furniture Corp., supra, “inasmuch as the content of the documents submitted, as opposed to their form, is what is critical to the determination of this motion, [Plaintiff] cannot be permitted to seize upon any technical requirements of CPLR 2309(c) to create delay and avoid [dismissal]) see Falah, 41 AD3d at 639; Smith, 38 AD3d at 523; Nandy, 155 AD2d at 834). Consequently, this Court deems the two certificates of conformity executed by ALAN J. CHANDLER, ESQ. dated June 30, 2011 admissible and any defect therein disregarded.

The court has reviewed the other claims by the Plaintiff of alleged factual discrepancies’ and finds that they are without merit.

For all of the reasons described above, the Plaintiff’s motion for summary judgment is denied, the Defendant’s motion for summary judgment is granted and the complaint is dismissed with prejudice.

A courtesy copy of this decision and order shall be mailed by the court to both parties.

The Defendant shall submit a judgment of dismissal to the Clerk of the Court and upon issuance thereof, shall serve a copy of the judgment and this order and decision with notice of entry on the Plaintiff within 45 days thereafter.

This constitutes the decision and order of this court.

_________January 15, 2013____________________________________________________________

DateHON. HARRIET THOMPSON

Judge of the Civil Court