[*1]

The Rybak Firm, PLLC, Brooklyn, N.Y. (Damin J. Toell of counsel), for appellant.

McCormack & Mattei, P.C., Garden City, N.Y. (John E. McCormack and Kevin Mattei of counsel), for respondents.

In an action for a judgment declaring that the plaintiffs are not obligated to provide insurance coverage for any of the no-fault claims submitted to it by the defendant, the defendant appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered May 8, 2013, which granted the plaintiffs’ motion for summary judgment on the complaint.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion for summary judgment on the complaint is denied.

The defendant allegedly provides durable medical equipment (hereinafter DME) and supplies to persons who are involved in motor vehicle accidents in New York State. The defendant, upon the assignment by the injured persons of no-fault insurance benefits, submitted bills to the plaintiffs seeking reimbursement for the DME provided to the injured persons. State regulation 11 NYCRR 65-1.1 and the applicable insurance policies provided that, for each of the claims submitted by the defendant for reimbursement, upon the plaintiffs’ request, the eligible insured person or that person’s assignee or representative shall: (1) execute, under oath, written proof of the claim, and (2), as may reasonably be required, submit to examinations under oath (hereinafter EUOs) by any person named by the plaintiffs.

The plaintiffs launched an investigation into the defendant’s billing practices in an attempt to verify the documented cost of the DME. The plaintiffs alleged that their investigation could not confirm the defendant’s existence at the claimed location provided on its billing statements. Furthermore, the plaintiffs alleged that the defendant routinely billed under miscellaneous codes for DME despite the fact that all such DME items had legitimate codes that should have been utilized for billing purposes, and that the defendant failed to submit any wholesale supply invoices or any documentation identifying the wholesale company it utilized so as to substantiate its documented costs.

In order to investigate these issues, the plaintiffs requested that the defendant submit [*2]to EUOs and advised that compliance was a condition precedent to coverage. They also made verification requests for purchase receipts, cancelled checks, wholesale invoices, information regarding the name, model, manufacture, serial number, and age of the DME, and the physician referral for the DME. The plaintiffs alleged that none of the information requested for purposes of claim verification was received, and the defendant did not appear for the scheduled EUOs. As a result, the plaintiffs issued denials of the defendant’s claims on the ground that the defendant violated policy conditions, i.e., the defendant failed to provide the requested information and to appear for the EUOs.

The plaintiffs commenced this action for a judgment declaring that they are not obligated to provide insurance coverage for any of the no-fault claims submitted to it by the defendant on the ground that the defendant failed to comply with conditions precedent to reimbursement under the no-fault laws and regulations and insurance laws of this state. After the defendant interposed its answer, the plaintiffs successfully moved for summary judgment on the complaint declaring that they are not obligated to provide insurance coverage for any of the defendant’s claims.

The defendant contends that the plaintiffs failed to establish, prima facie, that the denials of claims were timely and properly mailed to it. Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013] [internal quotation marks omitted]; see Matter of Rodriguez v Wing, 251 AD2d 335, 336 [1998]). “ ’The presumption 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’ ” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]). However, in order for the presumption to arise, office practice must be geared so as to ensure the likelihood that a denial of claim is always properly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]). “Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption” (id. at 829-830).

Here, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the denial of claim forms to the defendant. The affidavit of Joseph M. Andre, the Medical Claims Representative assigned to this matter, asserted that for denials mailed after August 17, 2010, as is relevant herein, all items were mailed through an automated system, and explained how documents were identified. However, Andre did not state, in his affidavit, how the envelopes were addressed so as to ensure that the address was correct or whether the envelope was addressed by the automated system or by an employee. He also did not state how and when the envelopes, once sealed, weighed, and affixed with postage using the automated system, were transferred to the care and custody of the United States Postal Service or some other carrier or messenger service to be delivered. Therefore, Andre’s affidavit was insufficient to establish, as a matter of law, that the denial of claim forms were timely and properly mailed to the defendant (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676-677 [2007]; Matter of Government Empls. Ins. Co. [Hartford Ins. Co.], 112 AD2d 226, 228 [1985]; cf. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Since the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the issue of their timely and proper denial of coverage, summary judgment should have been denied regardless of the sufficiency of the defendant’s opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). Accordingly, the Supreme Court erred in granting the plaintiffs’ motion for summary judgment on the complaint declaring that they are not obligated to provide insurance coverage for any of the defendant’s claims.

In light of our determination, the defendant’s remaining contentions have been rendered academic. Mastro, J.P., Chambers, Austin and Miller, JJ., concur.

Decided on April 21, 2015

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor), entered July 8, 2014, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor), entered July 8, 2014, insofar as appealed from, modified by granting defendant’s motion for summary judgment dismissing plaintiff’s claim in the sum of $212.37; as modified, order affirmed, without costs.

We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the orthopedic surgery underlying plaintiff’s first-party no-fault claim in the sum of $3,408.11. However, defendant made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claim in the sum of $212.37, by the affidavit of its claims adjuster demonstrating that plaintiff submitted the claim beyond the 45-day time limit for submission of claims (see 11 NYCRR 65-1.1[d]; Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]). Plaintiff’s opposing submissions failed to raise any triable issue. The affidavit of plaintiff’s office manager did not allege a personal mailing of the claim within the 45-day period or describe plaintiff’s regular office mailing practice and procedure (see Tower Ins. Co. of NY v Ray & Frank Liq. Store, 104 AD3d 482 [2013]; Westchester Med. Ctr. v. Countrywide Ins. Co., 45 AD3d 676, 677 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on April 16, 2015

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 (Larry Love, J.), entered July 31, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that defendant did not provide insurance coverage for the vehicle in question on the date of the accident at issue. By order entered July 31, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

In support of its cross motion and in opposition to plaintiff’s motion, defendant submitted an affidavit by its employee, who described the details of a record search which she had performed and stated that her search had revealed that there was no Allstate Insurance Company policy in effect on the date of the accident in question. We find that defendant’s affidavit was sufficient to demonstrate, prima facie, that plaintiff’s claim did not arise out of a covered incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). As plaintiff failed to raise a triable issue of fact, the Civil Court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

Aliotta, J.P., Solomon and Elliot, JJ., concur.

Decided on April 16, 2015

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 (Wavny Toussaint, J.), entered January 29, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor, the insured, had fraudulently procured the insurance policy. Defendant appeals from an order entered January 24, 2013 which denied the motion.

For the reasons stated in Jamaica Dedicated Med. Care, P.C. as Assignee of Lalbachan Sooklall v Praetorian Ins. Co. ( Misc 3d , 2014 NY Slip Op [Appeal No. 2013-1345 K C], decided herewith), the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on April 16, 2015

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 (Wavny Toussaint, J.), entered January 24, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor, the insured, had fraudulently procured the insurance policy. By order entered January 24, 2013, the Civil Court denied defendant’s motion due to defendant’s failure to annex to its motion papers a copy of the original insurance policy.

The Civil Court properly denied defendant’s motion, since defendant did not submit sufficient evidence in support of its motion to establish its entitlement to judgment as a matter of law. While the transcript of the insured’s testimony at an examination under oath (EUO) was admissible (see American States Ins. Co. v Huff, 119 AD3d 478 [2014]), the insured’s EUO testimony failed to eliminate all material issues of fact as to his actual residence at the time he procured the policy (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Furthermore, the investigative report submitted by defendant in support of its motion was based upon statements that constituted inadmissible hearsay (see Petrillo v Town of Hempstead, 85 AD3d 996 [2011]; Saunders v 551 Galaxy Realty Corp., 64 AD3d 564 [2009]). Consequently, as defendant failed to make a prima facie showing that the insured had fraudulently procured the insurance policy, defendant’s motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on April 16, 2015

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 (Devin P. Cohen, J.), entered March 23, 2012. The order granted 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 denied.

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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Defendant’s motion should have been denied, as defendant failed to establish, as a matter of law, its defense that plaintiff had failed to appear for properly scheduled EUOs (see e.g. Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is reversed and defendant’s motion is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on April 16, 2015

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered February 9, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.) entered February 9, 2012, reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). The affidavit of defendant’s third-party IME scheduler, who had personal knowledge of his office’s standard mailing practices and procedures, sufficiently established the mailing of the IME notices (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]). Defendant also submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor and acupuncturist, as well as the IME scheduler, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).

In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on April 16, 2015

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joseph E. Capella, J.), entered March 19, 2014, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joseph E. Capella, J.), entered March 19, 2014, insofar as appealed from, affirmed, with $10 costs.

This action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal, since defendant-insurer failed to establish the proper and timely mailing of the denial of claim forms at issue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564—565 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). The affidavit submitted by defendant to establish proof of mailing, identifying the affiant as an employee of nonparty Tower Insurance Group (“Tower”), an entity remotely related to defendant, lacked probative value, since it failed to set forth the basis of affiant’s personal knowledge of the internal mailing practices and procedures of defendant during the pertinent period (see Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 253-254 [2011]), especially given that affiant began his employment with Tower after the denial at issue was allegedly mailed by defendant (see Nocella v Fort Dearborn Life Ins. Co. of NY, 99 AD3d 877, 879 [2012]). “It is the burden of the proponent of an affidavit to demonstrate the basis of the affiant’s knowledge . . . and here, defendant failed to meet that burden” (Gogos v Modell’s Sporting Goods, Inc., 87 AD3d at 254).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: April 16, 2015

Decided on April 14, 2015

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered March 20, 2013, as denied its cross motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered March 20, 2013, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits. The evidentiary proof submitted by defendant established that, following the timely denial of plaintiff-provider’s claim on the ground of lack of medical necessity, the governing insurance policy’s coverage limits had been exhausted through payment of no-fault benefits in satisfaction of arbitration awards rendered in favor of other health care providers, and that such payments were made in compliance with the priority of payment regulation (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; New York and Presbyt. Hosp. v Allstate Ins. Co., 28 AD3d 528 [2006]).

In opposition, plaintiff failed to raise a triable issue. Contrary to plaintiff’s contention, defendant was not precluded by 11 NYCRR 65-3.15 from paying other providers’ legitimate claims subsequent to the denial of plaintiff’s claims. Adopting plaintiff’s position, which would require defendant to delay payment on uncontested claims, or, as here, on binding arbitration awards – pending resolution of plaintiff’s disputed claim – “runs counter to the no-fault regulatory scheme, which is designed to promote prompt payment of legitimate claims” (Nyack Hosp. v General Motors Accept. Corp., 8 NY3d at 300).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on April 7, 2015

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

Appeal from an order of the City Court of Long Beach, Nassau County (Frank D. DiKranis, J.), entered March 20, 2013. 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 moved for summary judgment dismissing the complaint on the ground that it

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit of its counsel’s paralegal, who was responsible for creating EUO scheduling letters and who had personally mailed the letters. The affidavit established that the EUO notices had been sent to plaintiff’s assignor in accordance with the law office’s standard practices and procedures (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]). Defendant also proffered transcripts of the scheduled EUOs, which established that the assignor had failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124). The opposing affirmation submitted by plaintiff’s counsel was insufficient to raise a triable issue of fact in opposition to defendant’s motion.

An appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722). Contrary to the determination of the City [*2]Court, no provision of No-Fault Regulation 68 requires an insurer to set forth any objective standards for requesting an EUO (see Flow Chiropractic, P.C. v Travelers Home and Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 9th & 10th Jud Dists 2014]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Tolbert, J.P., Garguilo and Connolly, JJ., concur.