[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 16, 2012

APPEARANCES OF COUNSEL

Rubin, Fiorella & Friedman LLP, New York City (Jason W. Moussourakis and Joseph R. Federici of counsel), for appellant. Law Offices of Bruce Newborough, P.C., Brooklyn (Damin J. Toell of counsel), for respondent.

{**38 Misc 3d at 2} OPINION OF THE COURT

Memorandum.

Ordered that the order is reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

EBM Medical Health Care, P.C. commenced this action to recover assigned first-party no-fault benefits for medical services provided to its assignor as a result of injuries sustained in an automobile accident. While this no-fault action was pending, Republic Western Insurance commenced a declaratory judgment action in Supreme Court, New York County, against EBM, alleging that EBM was not properly licensed under Business{**38 Misc 3d at 3} Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c), and therefore was not eligible to recover no-fault benefits. A judgment was entered, on default, in the declaratory judgment action, declaring “that EBM Medical Health Care, P.C. is not properly licensed under Business Corporation Law 1507 and 1508 and Education Law 6507 (4) (c)” and that Republic had no duty to pay no-fault benefits to EBM “arising out of any current or future proceeding.” After the judgment in the declaratory judgment action had been entered, Republic moved in this no-fault action for summary judgment dismissing EBM’s complaint, contending that this action was barred by virtue of the declaratory judgment. The Civil Court denied Republic’s motion, finding, among other things, that Republic had not established that the term “current” proceeding, as used in the declaratory judgment, applied to the instant action.

Based upon the declaratory judgment, the instant action is barred under the doctrine of res judicata (see Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). To hold otherwise could result in a judgment in the instant action which would destroy or impair rights established by the judgment of the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). [*2]Contrary to EBM’s contention, the declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default, since res judicata applies to a judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]). The instant no-fault action was pending at the time the declaratory judgment was entered, and therefore, pursuant to the unambiguous language used in the judgment, this action falls within the ambit of the declaratory judgment as a “current” proceeding. Accordingly, the order of the Civil Court is reversed and Republic’s motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Rios and Solomon, JJ., concur.

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

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated March 22, 2010. 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 reversed, without costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

In support of its cross motion, defendant submitted an affidavit of its claims examiner, which demonstrated that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]) its denial of claim forms, which denied the claims on the ground of lack of medical necessity. The affirmed reports of defendant’s peer reviewer set forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for the services provided to plaintiff’s assignor (see Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]). In opposition to defendant’s cross motion, plaintiff failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity (see Specialty Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud [*2]Dists 2010]; 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 order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Iannacci, J.P., Molia and LaCava, JJ., concur.
Decision Date: October 11, 2012

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered January 15, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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

In support of its motion, defendant submitted an affidavit by the owner of the company retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME scheduling letters had been timely mailed in accordance with that company’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit by the chiropractor who had been retained to perform the IMEs which was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant established that the denial of claim forms, which denied the claims at issue based upon plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).

Rios, J.P., Pesce and Aliotta, JJ., concur. [*2]
Decision Date: October 05, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

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

Per Curiam.

Order (Fernando Tapia, J.), entered March 18, 2011, modified to the extent of granting, upon a search of the record, plaintiff summary judgment on its first cause of action in the principal sum of $3,126.28; as modified, order affirmed, without costs.

Inasmuch as the record conclusively establishes that the defendant insurer did not timely deny the claim for first-party no-fault benefits within the prescribed 30-day period, it is precluded from asserting the defense that the fees charged were excessive (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [211]). Although plaintiff did not cross-move for summary judgment, we search the record and grant it summary judgment in the principal amount demanded in the first cause of action (see 3212[b]), since defendant’s payment on the claim is overdue and defendant has not raised any other defenses.

We do not pass upon plaintiff’s request for statutory interest and attorneys’ fees, issues not reached below. Our disposition of this appeal is without prejudice to renewal of these issues in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 03, 2012

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 (Kathryn E. Freed, J.), entered December 4, 2009, deemed from a judgment of the same court entered January 29, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 4, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,949.

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branch of plaintiff’s motion seeking summary judgment on its claim for $2,199 for supplies provided to Jose Cayetano is vacated, and that branch of plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in opposition to plaintiff’s motion for summary judgment established that defendant had timely denied the claim for $2,199 for supplies provided to Jose Cayetano on the ground of lack of medical necessity (see St. Vincent’s Hosp. of [*2]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]). Moreover, defendant annexed to its opposition papers an affirmed peer review report which was sufficient to demonstrate that the branch of plaintiff’s motion seeking summary judgment on its $2,199 claim should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

As to plaintiff’s claim for $1,750 for supplies provided to Argenis Plata-Gil, the denial submitted by defendant in opposition to plaintiff’s motion showed that defendant received the claim on January 29, 2007, but did not deny the claim until October 1, 2007, more than 30 days after the claim had been received (see Insurance Department Regulations [11 NYCRR] § 65-3.8). Defendant failed to demonstrate proper tolling of this claim. Accordingly, defendant did not establish that its denial was timely and, thus, that it is not precluded from raising its proffered defenses as to this claim (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Defendant’s remaining contention lacks merit.

Accordingly, the judgment is reversed, so much of the order as granted the branch of plaintiff’s motion seeking summary judgment on its claim for $2,199 for supplies provided to Jose Cayetano is vacated, and that branch of plaintiff’s motion is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: September 28, 2012

—[*1] Crafa & Sofield, P.C., Rockville Centre, N.Y. (Joseph R. Crafa of counsel), for appellant.

Gregory J. Cannata, New York, N.Y. (Alison Cannata Hendele of counsel), for respondents.

In an action to recover damages pursuant to the supplementary uninsured/underinsured motorist endorsement of an insurance policy, the defendant appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated March 10, 2011, which granted those branches of the plaintiffs’ motion which were, in effect, for summary judgment determining that the amount of supplementary uninsured/underinsured motorist coverage available to the plaintiffs pursuant to the subject insurance policy is $400,000 and to dismiss the third and fourth affirmative defenses pursuant to CPLR 3211, and denied its cross motion, in effect, for summary judgment determining that the amount of supplementary uninsured/underinsured motorist coverage available to the plaintiffs pursuant to the subject insurance policy is limited to $145,000.

Ordered that the order is reversed, on the law, with costs, those branches of the plaintiffs’ motion which were, in effect, for summary judgment determining that the amount of supplementary uninsured/underinsured motorist coverage available to the plaintiffs pursuant to the subject insurance policy is $400,000 and to dismiss the third and fourth affirmative defenses pursuant to CPLR 3211 are denied, and the defendant’s cross motion, in effect, for summary judgment determining that the amount of supplementary uninsured/underinsured motorist coverage available to the plaintiffs pursuant to the subject insurance policy is limited to $145,000 is granted.

On March 4, 2003, Rifka and Anton Goldenberg were killed when a vehicle operated by a drunk driver, Michael McGibbon, collided with their vehicle. The insurance policy covering McGibbon’s vehicle contained coverage limits of $50,000 per person and $100,000 per accident. The Goldenbergs’ automobile insurance policy (hereinafter the subject policy), issued by the defendant, Tri-State Consumer Insurance Company (hereinafter Tri-State), included a supplementary uninsured/underinsured motorist (hereinafter SUM) endorsement which contained a coverage limit of $250,000 per person and $500,000 per accident. The plaintiffs in this action, the Goldenbergs’ daughters, who are the administrators of their estates, commenced an action to recover damages from, among others, McGibbon’s estate, the owner of McGibbon’s vehicle, and a bar and a diner that had served McGibbon alcohol before the accident. The insurer of McGibbon’s vehicle agreed to pay [*2]the $100,000 maximum coverage limit of its policy in settlement of the claims against McGibbon’s estate and the owner of his vehicle. The bar and the diner (hereinafter together the Dram Shop defendants), and their insurers, agreed to pay a total of $255,000 in settlement of the “Dram Shop” claims asserted against them (hereinafter the Dram Shop recovery). Thus, the plaintiffs settled the prior action for a total of $355,000.

The plaintiffs submitted a claim to Tri-State for recovery under the SUM endorsement of the subject policy. Tri-State asserted that the amount available to the plaintiffs under the SUM endorsement was limited to $145,000 (the $500,000 coverage amount less the total amount of the $355,000 settlement in the prior action). Thereafter, the plaintiffs commenced this action against Tri-State seeking to recover damages pursuant to the SUM endorsement in the amount of $400,000. In the complaint, they alleged that the SUM endorsement’s $500,000 coverage limit could properly be reduced only by the $100,000 attributable to McGibbon’s policy, and not by the amount of the Dram Shop recovery. In its answer, the defendant alleged, under the third and fourth affirmative defenses, that the amount of SUM coverage available to the plaintiffs is reduced by the amount of the Dram Shop recovery. The plaintiffs moved, inter alia, in effect, for summary judgment determining that the amount of SUM coverage available to them pursuant to the subject policy is $400,000 and to dismiss the third and fourth affirmative defenses pursuant to CPLR 3211, and Tri-State cross-moved, in effect, for summary judgment determining that the amount of such coverage is limited to $145,000. The Supreme Court granted the aforementioned branches of the plaintiffs’ motion and denied Tri-State’s cross motion. Tri-State appeals, and we reverse.

The subject policy contained the standard SUM endorsement prescribed by the Superintendent of Insurance in Regulation No. 35-D (11 NYCRR 60-2.3 [c], [f]). Two conditions in the endorsement are directly at issue in this appeal. Condition 6 provides:

“6. Maximum SUM Payments. Regardless of the number of insureds, our maximum payment under this SUM endorsement shall be the difference between:

“(a) The SUM limits; and

“(b) The motor vehicle bodily injury liability insurance or bond payments received by the insured or the insured’s legal representative, from or on behalf of all persons that may be legally liable for the bodily injury sustained by the insured.

“The SUM limit shown on the Declarations for ‘Each Person’ is the amount of coverage for all damages due to bodily injury to one person. The SUM limit shown under ‘Each Accident’ is, subject to the limit for each person, the total amount of coverage for all damages due to bodily injury to two or more persons in the same accident.”

Condition 11 provides:

“11. Non-Duplication. This SUM coverage shall not duplicate any of the following:

“(a) Benefits payable under workers’ compensation or other similar laws;

“(b) Non-occupational disability benefits under article nine of the Workers’ Compensation Law or other similar law;

“(c) Any amounts recovered or recoverable pursuant to article fifty-[*3]one of the New York Insurance Law or any similar motor vehicle insurance payable without regard to fault;

“(d) Any valid or collectible motor vehicle medical payments insurance; or

“(e) Any amounts recovered as bodily injury damages from sources other than motor vehicle bodily injury liability insurance policies or bonds.”

SUM coverage in New York is a converse application of the golden rule; its purpose is “to provide the insured with the same level of protection he or she would provide to others were the insured a tortfeasor in a bodily injury accident” (Matter of Prudential Prop. & Cas. Co. v Szeli, 83 NY2d 681, 687 [1994]; see Matter of Allstate Ins. Co. v Rivera, 12 NY3d 602, 608 [2009]; Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 204 [2007]; see generally Norman H. Dachs and Jonathan A. Dachs, SUM Insurance Dilemma Hits the Mainstream, NYLJ, Sept. 19, 2012 at 3, col 1). With this limited purpose, SUM coverage does not function as a stand-alone policy to fully compensate the insureds for their injuries (cf. Bauter v Hanover Ins. Co., 247 NJ Super 94, 96-97, 588 A2d 870, 872 [1991], cert denied 126 NJ 335, 598 A2d 893 [1991]). The conditions quoted above make this clear, as do other conditions not directly at issue in this case.

Here, the maximum SUM coverage of the subject policy was $500,000 per accident. The amount payable under that coverage was reduced, under Conditions 6 (a) and (b), by the $100,000 paid by McGibbon’s insurer, inasmuch as that amount constituted a “motor vehicle bodily injury liability insurance . . . payment[ ]” that the plaintiffs received (11 NYCRR 60-2.3 [f]). Further, the Dram Shop claims were settled for a total of $255,000. The Dram Shop recovery constitutes, under Condition 11 (e), an amount “recovered as bodily injury damages from sources other than motor vehicle bodily injury liability insurance policies or bonds.” Condition 11 does not allow duplicate recovery of such damages. Consequently, under the terms of the SUM endorsement, the plaintiffs’ receipt of the Dram Shop recovery reduces, by that same $255,000, the amount payable under the SUM endorsement. The plaintiffs are not penalized by this reduction, since they received the maximum amount for which they are covered under the SUM endorsement: $100,000 from McGibbon’s policy, $255,000 from or on behalf of the Dram Shop defendants, and $145,000 from Tri-State.

We reject the plaintiffs’ argument that 11 NYCRR subpart 60-2, which includes the nonduplication provision, is inconsistent with Insurance Law § 3420 (f) (2) (A). When the Legislature enacted the no-fault structure in 1977, its concern about duplicate payments was reflected in the law itself (see L 1977, ch 892, § 7; see also Mem of State Executive Department, 1977 McKinney’s Session Laws at 2448). The adoption by the Superintendent of Insurance of additional provisions regarding duplication furthers the Legislature’s goal, and is not inconsistent with it (cf. Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d at 201-202).

Finally, as the plaintiffs point out, a claimant has the right to submit a SUM claim upon exhaustion of the full liability limits of just one tortfeasor (see e.g. S’Dao v National Grange Mut. Ins. Co., 87 NY2d 853 [1995]). However, that does not mean that a claimant’s ultimate entitlement to payment under the SUM endorsement may not be reduced or eliminated, depending on amounts recovered from additional tortfeasors (see Matter of Central Mut. Ins. Co. [Bemiss], 12 NY3d 648, 657-659 [2009]; Matter of Liberty Mut. Ins. Co. v Walker, 84 AD3d 960, 961 [2011]).

Accordingly, the Supreme Court should have denied those branches of the plaintiffs’ motion which were, in effect, for summary judgment determining that the amount of SUM coverage available to them pursuant to the subject insurance policy is $400,000 and to dismiss the third and fourth affirmative defenses pursuant to CPLR 3211, and should have granted the defendant’s cross motion, in effect, for summary judgment determining that the amount of such coverage is limited to $145,000. Florio, J.P., Balkin, Hall and Miller, JJ., concur.

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

Law Offices of Moira Doherty, P.C., Bethpage, N.Y. (Janice Rosen and Maureen Knodel of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), entered March 7, 2012, which granted the defendant’s motion to vacate a clerk’s judgment of the same court entered December 1, 2011, which, upon the defendant’s default in appearing or answering the complaint, was in favor of the plaintiff and against the defendant in the sum of $38,645, and to compel the plaintiff to accept the defendant’s answer.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate the default judgment and to compel the plaintiff to accept its answer (see CPLR 3012 [d]). In light of the lack of any prejudice to the plaintiff resulting from the minimal delay in serving an answer to the complaint, the lack of willfulness on the part of the defendant, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the defendant’s default in appearing or answering the complaint was properly excused (see CPLR 2004; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Vinny Petulla Contr. Corp. v Ranieri, 94 AD3d 751, 752 [2012]; Zeccola & Selinger, LLC v Horowitz, 88 AD3d 992, 993 [2011]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-20 [1999]). Angiolillo, J.P., Balkin, Austin and Miller, 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 (Johnny Lee Baynes, J.), entered October 8, 2010, deemed from a judgment of the same court entered November 4, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 8, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s contentions on appeal, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form had been timely mailed (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]), and that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). An appearance at an EUO is a condition precedent to [*2]an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720). As plaintiff’s remaining contention lacks merit, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 19, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), entered on or about May 10, 2010, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $1,277.64.

Per Curiam.

Judgment (Anil C. Singh, J.), entered on or about May 10, 2010, reversed, with $25 costs, and judgment awarded in favor of defendant dismissing the complaint. The Clerk is directed to enter judgment accordingly.

It is well settled that the 30-day period within which an insurer must pay or deny a claim for first-party no-fault benefits is tolled until it receives a response to properly issued verification requests (see 11 NYCRR 65-3.8[a][1]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]). Here, the defendant insurer established at trial that it timely and properly mailed its initial and follow-up verification requests to the plaintiff medical provider’s attorney, as authorized by plaintiff’s counsel’s prior correspondence to defendant (see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 339-340 [2002]; New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588, 590-591 [2002]), and that plaintiff failed to respond. In the absence of any countervailing evidence from plaintiff, the clear and consistent testimony of defendant’s litigation examiner as to the substance of plaintiff’s counsel’s letter of representation and defendant’s standard office mailing procedure was sufficient to establish proper mailing of the verification requests and to create an as yet unrebutted presumption of receipt, and this despite the absence from the record of counsel’s representation letter.

We note plaintiff’s failure to file a respondent’s brief on appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 19, 2012

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, September 19, 2012

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant.

{**37 Misc 3d at 91} OPINION OF THE COURT

Memorandum.

Ordered that the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment on the third through ninth causes of action are denied; as so modified, the order is affirmed, without costs.{**37 Misc 3d at 92}

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions regarding “treatment” and plaintiff’s “billing practices.” In opposition to plaintiff’s motion, defendant proffered the defense that Drs. Mayard and Berardi had failed to appear for examinations under oath (EUOs). The Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding, among other things, that defendant had failed to raise a triable issue of fact in opposition to plaintiff’s motion for summary judgment because it had violated Insurance Department Regulations (11 NYCRR) § 65-3.5 (e) by [*2]scheduling the EUOs outside the county in which plaintiff is located, and that defendant had “failed to establish a wilful noncompliance with the EUO request.”

Since defendant raises no issue on appeal with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto. Furthermore, we find that the defenses upon which defendant bases its request for the depositions of Dr. Mayard and Dr. Berardi, regarding “treatment” and plaintiff’s “billing practices,” are precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Accordingly, defendant is not entitled to the denial of plaintiff’s motion pursuant to CPLR 3212 (f) or to have its cross motion to compel the depositions granted (see ARCO Med. N.Y., P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71, 73 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Turning to plaintiff’s motion for summary judgment, we find that the branches of the motion seeking summary judgment on the first two causes of action were properly granted. Defendant admits that it received plaintiff’s claims comprising those causes of action on December 26, 2006 and December 29, 2006, respectively, and it is undisputed that the claims were not paid or denied within 30 days of their receipt. Nor does defendant claim that the EUOs of Drs. Mayard and Berardi were requested, or pending, during that time. We note that defendant’s January 15, 2007 letter purporting to delay payment of the claims is insufficient to toll the 30-day statutory time period{**37 Misc 3d at 93} within which a claim must be paid or denied (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Accordingly, defendant failed to demonstrate that these two claims had been timely denied and therefore it has not established that its defense, that plaintiff failed to comply with a condition precedent to coverage, is not precluded as to these two causes of action (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

However, defendant did raise a triable issue of fact with respect to the third through ninth causes of action by demonstrating that the time to pay or deny the claims comprising those causes of action had been tolled by the timely issuance of EUO scheduling letters, that the doctors had failed to appear for either of two properly scheduled EUOs, and that the claims had been timely denied on April 10, 2007 (see ARCO Med. N.Y., P.C., 2011 NY Slip Op 52382[U]).

We note that there is no merit to the reasons given by the Civil Court in finding that defendant had not raised a triable issue of fact in response to plaintiff’s motion for summary judgment. First, there is nothing in the no-fault regulations prohibiting an insurer from scheduling an EUO outside the county in which the applicant is located (cf. CPLR 3110 [regarding where a deposition shall be taken]). Insurance Department Regulations (11 NYCRR) § 65-3.5 (e) requires only that “[a]ll examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant,” and the Civil Court did not make a finding that the location chosen for the subject EUOs was not reasonably convenient to the applicant. Furthermore, appearance at an EUO is a [*3]condition precedent to coverage (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), and there is no requirement that defendant establish willful noncompliance with an EUO request.

In light of the foregoing, the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment on the third through ninth causes of action are denied.

Pesce, P.J., Weston and Rios, JJ., concur.