The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Heela D. Capell, J.), dated July 13, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Heela D. Capell, J.) dated July 13, 2023, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment. Plaintiff argues on appeal that the order should be reversed and the matter remitted to the Civil Court to decide what plaintiff denominated as an amended cross-motion for summary judgment, which the court declined to consider. The court rejected that submission, which also included amended opposition to defendant’s motion, as “procedurally improper,” citing CPLR 2214. In the alternative, plaintiff argues that defendant’s motion should be denied.

Contrary to plaintiff’s contention on appeal, the affidavit by plaintiff’s owner in opposition to defendant’s cross motion for summary judgment, in which he stated “that he had mailed the [*2]requested verification ‘to the extent such responses were proper and in [his] possession’ does not raise a triable issue of fact, as it does not ‘demonstrate that [plaintiff] had provided the requested verification or had set forth a reasonable justification for the failure to comply with defendant’s verification requests’ ” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 79 Misc 3d 132[A], 2023 NY Slip Op 50794[U], * 2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023], quoting Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50623[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see 11 NYCRR 65-3.5 [o]). Moreover, it was not improper for defendant to seek, during the claim verification stage, information—such as management agreements, W-2 forms, business-related bank records and lease agreements—for the purpose of determining whether plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Burke 2 Physical Therapy, P.C., as Assignee of Lewis, Destiny v State Farm Mut. Auto. Ins. Co., — Misc 3d &mdash, 2025 NY Slip Op — [appeal No. 2023-961 K C], decided herewith).

“[C]ontrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no preclusive effect on this case as it was not a final determination on the merits” (Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 45 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the subsequent submission of that decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.

Accordingly, the order is affirmed.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 12, 2024. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to open its default in answering and to compel plaintiff to accept defendant’s late answer.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor as a result of a motor vehicle accident which occurred on August 26, 2017. The summons and complaint were served upon defendant on or about December 22, 2020. Defendant did not serve an answer. Plaintiff applied for a default judgment and mailed defendant a copy of the default judgment application on October 28, 2021.

On November 17, 2021, defendant moved, pursuant to CPLR 3012 (d) and/or 2001, to open its default and to compel plaintiff to accept its late answer on the ground that defendant had a reasonable excuse for its delay in answering as well as a meritorious defense to the action.

In support of its motion, defendant submitted the affidavit of an employee who worked at [*2]defendant’s attorney’s office who was responsible for serving the answer. She averred that, although the answer had been timely prepared, she had inadvertently failed to serve it. Defendant’s attorney argued that forgetting to serve the answer amounted to law office failure and should be excused by the Civil Court, especially considering that there was no evidence that this was willful or part of a pattern of neglect by defendant, or that plaintiff had been prejudiced by the default. As a meritorious defense, defendant asserted that the subject action was barred by res judicata or collateral estoppel. Defendant submitted a Supreme Court, Nassau County, declaratory judgment which declared that the August 26, 2017 motor vehicle accident involving plaintiff’s assignor was an intentional act and, therefore, there was no duty on defendant’s part to provide coverage for any claims arising therefrom.

Plaintiff cross-moved for summary judgment and, in opposition to defendant’s motion, argued that the affidavit of the law office employee was vague as to the details leading to the oversight in serving an answer and mere neglect was not a reasonable excuse. Moreover, the declaratory judgment did not have res judicata or collateral estoppel effect since it did not involve the same parties or causes of action as the subject action and was not fully litigated, as it was obtained on default.

By order dated January 12, 2024, the Civil Court (Sandra E. Roper, J.) granted defendant’s motion, finding that defendant had provided a reasonable excuse for its default and a meritorious defense to the action. The order also denied plaintiff’s cross-motion for summary judgment. Plaintiff appeals from so much of the order as granted defendant’s motion.

In order to open its default and obtain an order compelling plaintiff to accept a late answer, defendant had to provide a reasonable excuse for the delay in answering and demonstrate a potentially meritorious defense to the action (see CPLR 3012 [d]; Pain Mgt. Ctr. of N.J., P.C. v All Car Rent-A-Car, 57 Misc 3d 138[A], 2017 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). “The determination of what constitutes a reasonable excuse lies within the trial court’s discretion” (New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]) and the court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where there is a lack of evidence of willfulness or neglect (see Roussodimou v Zafiriadis, 238 AD2d 568 [1997]). Here, the law office failure resulted from an isolated, inadvertent mistake, not from repeated neglect (see Gutman v A to Z Holding Corp., 91 AD3d 718 [2012]), and plaintiff never demonstrated or suggested, in the Civil Court or on appeal, any prejudice caused by defendant’s default (see Parisien v Allstate Ins. Co., 76 Misc 3d 14 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see also New York Univ. Hosp. Tisch Inst. v Merchants Mut. Ins. Co., 15 AD3d 554, 555 [2005]). Consequently, the Civil Court did not improvidently exercise its discretion in finding that defendant had provided a reasonable excuse.

Defendant also demonstrated the existence of a potentially meritorious defense to the action. The declaratory judgment from the Supreme Court, Nassau County, was a conclusive final determination that defendant was not obligated to provide coverage or reimbursements for [*3]any and all no-fault related services submitted by plaintiff and plaintiff’s assignor for the subject motor vehicle accident and, thus, the instant action should be barred by res judicata (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; see also Watts v Swiss Bank Corp., 27 NY2d 270 [1970]), notwithstanding that the declaratory judgment was entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]; St. Mark’s Med. Health Care, PLLC v 21st Century Ins. Co., 68 Misc 3d 127[A], 2020 NY Slip Op 50851[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

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

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

Roman Kravchenko and Jason Tenenbaum of counsel, for appellant. Short & Billy, P.C. (Soek Ho [Richard] Kang of counsel), for respondent.

Appeal, on the ground of inadequacy, from a judgment of the District Court of Suffolk County, Sixth District (James F. Matthews, J.), entered September 29, 2023. The judgment, insofar as appealed from, upon awarding petitioner assigned first-party no-fault benefits in the principal sum of $1,454.70, awarded petitioner $1,360 in attorney’s fees.

ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the District Court for the entry of a new judgment following a determination of the amount of attorney’s fees to which petitioner is entitled, in accordance with this decision and order.

Petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated March 27, 2023, which upheld the award of an arbitrator dated January 27, 2023, rendered pursuant to Insurance Law § 5106 (b), denying petitioner’s claim which had sought assigned first-party no-fault benefits in the amount of $1,454.70. The District Court (James F. Matthews, J.) granted the petition and, among other things, awarded petitioner “its reasonable counsel fees in bringing this Petition.” The court directed petitioner to submit a judgment for $1,454.70 plus interest, and attorney’s fees pursuant to 11 NYCRR 65-4.6 (d) and [*2]11 NYCRR 65-4.10 (j) (4). Along with a proposed judgment, petitioner submitted an attorney’s affirmation seeking $3,900 as petitioner’s legal fees for the Article 75 proceeding (see 11 NYCRR 65-4.10 [j] [4]). A judgment, entered on September 29, 2023, awarded petitioner the principal sum of $1,454.70, plus $678.86 in interest, $230 in costs and fees, and $1,360 in attorney’s fees. Petitioner appeals, arguing that the award of $1,360 for attorney’s fees was inadequate.

Pursuant to 11 NYCRR 65-4.6 (d), attorney’s fees for the arbitration and master arbitration, in which petitioner ultimately prevailed, are not discretionary, as they are established by the no-fault regulations (see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]; City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co.,54 Misc 3d 128[A], 2016 NY Slip Op 51793[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Such fees are limited to 20 percent of the total amount of first-party benefits awarded, plus interest, subject to a maximum fee of $1,360. Further, having successfully prevailed in the Article 75 proceeding to vacate the master arbitrator’s award, petitioner was also entitled to an additional award of reasonable attorney’s fees therefor pursuant to 11 NYCRR 65-4.10 (j) (4), which amount is to be fixed by the court (see Matter of Country-Wide Ins. Co. v TC Acupuncture P.C., 179 AD3d 414 [2020]; Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168 [2019]).

The appropriate attorney’s fees due for the arbitration pursuant to 11 NYCRR 65-4.6 (d), calculated at 20 percent of $1,454.70 plus $678.86, is $426.71. In awarding a total sum of $1,360 in attorney’s fees for both the arbitration and the CPLR article 75 proceeding, we assume that the Civil Court mistakenly applied the $1,360 cap imposed by 11 NYCRR 65-4.6 (d) to the attorney’s fees to be awarded for the article 75 proceeding pursuant to 11 NYCRR 65-4.10 (j) (4), and therefore, in effect, awarded $933.27 in attorney’s fees for the article 75 proceeding, notwithstanding the fact that petitioner submitted a claim seeking $3,900 as reasonable attorney’s fees for that proceeding. Under the circumstances, the matter must be remitted to the District Court for a determination of the amount of reasonable attorney’s fees to which petitioner is entitled as a result of the court proceeding, without any regulatory cap thereon (see 11 NYCRR 65-4.10 [j] [4]), in addition to the $426.71 regulatorily mandated attorney’s fees for the arbitration (see 11 NYCRR 65-4.6 [d]). The court shall state the evidentiary basis for its determination (see Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2017]). We note that petitioner is also entitled to reasonable attorney’s fees for this appeal (see 11 NYCRR 65-4.10 [j] [4]; Acuhealth Acupuncture, P.C., 170 AD3d 1168).

Accordingly, the judgment, insofar as appealed from, is reversed and the matter is remitted to the District Court for the entry of a new judgment following a determination of the total amount of attorney’s fees to which petitioner is entitled pursuant to both 11 NYCRR 65-4.6 (d) and 11 NYCRR 65-4.10 (j) (4).

GARGUILO, P.J., GOLDBERG-VELAZQUEZ and CONWAY, JJ., concur.

Lawrence N. Rogak, LLC (Lawrence N. Rogak and Alison Gladowsky of counsel), for appellant. Law Offices of Gabriel & Moroff, PC (Koenig Pierre and Matthew Sledzinski of counsel), for respondent.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered March 5, 2024. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $7,582.15.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held at which the parties stipulated that: (1) plaintiff had established its prima facie case; (2) defendant had timely denied plaintiff’s claim on the ground of lack of medical necessity; and (3) after defendant denied plaintiff’s claim, the insurance policy limits were exhausted due to defendant having paid claims which defendant received after it had denied the claim at issue. Defendant’s sole argument at trial was that the insurance policy limits had been exhausted by payment of claims which it had received after the instant claim had been denied. The District Court (C. Stephen Hackeling, J.) found in favor of plaintiff and a judgment was entered on March 5, 2024 awarding plaintiff the principal sum of $7,582.15.

Defendant’s sole contention on appeal, that it need not pay the claim at issue because defendant paid other claims after it had denied the instant claim, which subsequent payments exhausted the available coverage, lacks merit (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Ortho Passive Motion, Inc. v Allstate Ins. Co., 61 Misc 3d 149[A], 2018 NY Slip Op 51749[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; but see Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]).

Accordingly, the judgment is affirmed.

GARGUILO, P.J., WALSH and CONWAY, JJ., concur.

The defendant Repwest Insurance Company has moved pursuant to CPLR §3212 seeking summary judgement dismissing the action. The plaintiff has cross-moved seeking summary judgement. The motions have been opposed respectively. The court has reviewed all the papers submitted and now renders the following determination.

The assignor, Jose David Torres was involved in a motor vehicle accident on November 20, 2019 and sustained injuries. The plaintiff assignee performed medical services on his behalf and seeks $1,689.70 in payment for those services. The defendant, the insurer of the assignor, refused the payment on the grounds the assignor failed to appear for two scheduled examinations under oath [EUO]. The plaintiff commenced this action seeking payment. The defendant duly answered. The defendant has now moved seeking summary judgement dismissing the action arguing the assignor failed to appear for examinations under oath which is a condition precedent for payment. The plaintiff opposes the motion arguing there was no legitimate basis seeking any examination prior to payment and therefore summary judgement should be granted in plaintiff’s [*2]favor.

Concerning first party no-fault benefits, an insurer may move seeking summary judgement dismissing the action on the grounds the assignor failed to attend a timely-scheduled independent medical examination (Vega Chiropractic P.C. v. Clarendon National Insurance Company, 25 Misc 3d 144(A), 906 NYS2d 776 [Supreme Court Appellate Term Second Department 2009]). For a medical provider to obtain summary judgement there must be evidentiary proof that claims were mailed and received and that payment is overdue (Mary Immaculate Hospital v. Allstate Insurance Company, 5 AD3d 742, 774 NYS2d 564 [2d Dept., 2004]).

The No-Fault regulations permit an insurer to demand “all items necessary to verify the claim directly from the parties from whom such verification is requested” (11 NYCRR §65-3.5(c)). Indeed, there are no limits to the information an insurer may request other than the limitation found in 11 NYCRR §65-3.2(c). That regulation states that an insurer should not demand verification of facts “unless there are good reasons to do so” (id). There are no specific No-Fault regulations that provide any mechanism for a medical provider to contest the verification sought on the grounds it is improper or unnecessary (Burke 2 Physical Therapy P.C. v. State Farm Mutual Automobile Insurance Company, 71 Misc 3d 1229(A), 146 NYS3d 468 [Civil Court Kings County 2021]). Nevertheless, courts have suggested that a provider can specifically respond and object to the information sought (Victory Medical Diagnostics P.C. v. Nationwide Property and Casualty Insurance Company, 36 Misc 3d 568, 949 NYS2d 855 [District Court Nassau County 2012]).

In this case the insurer received bills for payment for services rendered from December 3, 2019 through December 10, 2019. Without paying or denying the bills the insurer sent a letter to the assignor informing him that “additional information is required in order to properly evaluate this claim” and that the assignor would have to submit to an examination under oath (see, Letter dated January 9, 2020 [NYSCEF Doc. No. 6 page 88]). The assignor failed to appear for the examination and a follow up letter was sent dated February 11, 2020 scheduling the examination under oath for February 25, 2020. The assignor failed to appear and never objected to the examinations on the grounds the insurer never provided a basis for such examinations. The claims were subsequently denied and this action was commenced. In seeking summary judgement the insurer argues the assignor failed to appear for the examination under oath and consequently failed to satisfy a necessary condition precedent obligating the insurance company to pay the claim. In opposition, the medical provider argues the insurer failed to present any reasonable basis requiring an examination under oath and therefore, the insurer failed to comply with the No-Fault regulations and the insurer’s summary judgement motion must be denied and summary judgement should be granted in favor of the medical provider.

Concerning 11 NYCRR §65-3.2(c) and the limits imposed upon insurers seeking verification only when there are good reasons to do so, there is some disagreement which party bears the initial burden. In State Farm Mutual Auto Insurance Company v. East Coast Medical Care P.C., 2023 WL 2711659 [Supreme Court New York County 2023] the court explained that once an insurer demonstrates the verification demands were reasonable then the burden shifts to the provider to explain why the demands were not reasonable. However, in Ameriprise Insurance Company v. Pugsley Medical Care P.C., 2016 WL 9176586 [Supreme Court New York County 2016] the court held the burden for reasonableness is on the provider not the [*3]insurer.

In any event, it is clear the information sought must have some rational relationship to the specific claims. Therefore, certain requests for verification are obvious, no explanation is required and are per se reasonable. For example, “requests for medical records for the treatment in question, letters of medical necessity for the testing or treatment, copies of x-ray or MRI films or test results” (Garden State Anesthesia Associates PA v. Progressive Casualty Insurance Company, 41 Misc 3d 996, 971 NYS2d 858 [District Court Nassau County 2013]). Likewise, a request to establish medical necessity is reasonable pursuant to 11 NYCRR §65-3.2(c) (Lenox Hill Radiology v. Global Liberty Insurance, 20 Misc 3d 434, 858 NYS2d 587 [Civil Court New York County 2008]).

Turning to the other extreme, some requests are so unreasonable they violate 11 NYCRR §65-3.2(c). In Omega Diagnostic Imaging P.C. v. MVAIC, 29 Misc 3d 129(A), 958 NYS2d 309 [Supreme Court Appellate Term First Department 2010]) the court held a verification request sent to the medical provider and the assignor seeking an affidavit of no-insurance from the out-of-state driver that struck the assignor was without any good reason. The court explained that out-of-state driver was not a party to the first party benefits action and was not under the control of the provider or the assignor. Again, in Pro-Align Chiropractic P.C. v. Travelers Property Casualty Insurance Company, 58 Misc 3d 857, 67 NYS3d 439 [District Court Suffolk County 2017]) the court held the insurer’s requests were not reasonable and were burdensome.

Turning to the specific question whether an insurer must furnish an objective and specific basis why an examination under oath has been requested, it appears to be a split among the Departments of the Appellate Division.

The First Department holds that “the reason for the EUO request is a fact essential to justify opposition to plaintiff’s summary judgment motion” (American Transit Insurance Company v. Jaga Medical Services P.C., 128 AD3d 441, 6 NYS3d 480 [1st Dept., 2015]). Further, in Country-Wide Insurance Company v. Delacruz, 205 AD3d 473, 168 NYS3d 68 [1st Dept., 2022] the First Department noted that an insurer seeking summary judgement must provide a “specific objective justification” requesting the examination under oath. The court held the reason why an examination was requested was essential to afford the provider an opportunity to oppose the motion seeking to dismiss the action for the failure of the assignor to appear for the examination. Without such reason the motion could not be adequately opposed necessitating its denial on the grounds the motion was premature (see, also, State Farm Mutual Auto Insurance Company v. Quality Orthopedic and Complete Joint Care P.C., 2023 WL 6206098 [Supreme Court New York County 2023] and State Farm Mutual Auto Insurance Company v. Access Medical Diagnostic Solutions P.C., 2023 WL 2572920 [Supreme Court New York County 2023]

The Second Department on the other hand has held the reason why an examination is requested does not play any role whether the request is proper. In Interboro Insurance Company v. Clennon, 113 AD3d 596, 979 NYS2d 83 [2d Dept., 2014]) the court granted summary judgement to an insurer where the assignor failed to attend an examination under oath. Notably, the court held that assignor and the provider failed to raise any issues of fact as to the “propriety of the demand for the examination under oath” (id, see, IDS Property Casualty Insurance Company v. Starcar Medical Services P.C., 116 AD3d 1005, 985 NYS2d 116 [2d Dept., 2004]). Recently, in Northern Medical Care P.C. v. Nationwide Affinity Insurance Company of America, 84 Misc 3d 136(A), 2024 WL 5347270 [Supreme Court Appellate Term Second [*4]Department 2024] the court, citing Interboro (supra) explained that the “defendant was not required to set forth objective reasons for requesting EUOs as, to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insurer need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground ‘following the [ ] failure to appear at the last scheduled EUO'” (id).

The discrepancy between the departments was presaged in the trial court opinion Country-Wide Insurance Company v. Delacruz, 71 Misc 3d 247, 142 NYS3d 313, footnote 5 [Supreme Court New York County 2021] and in MUA Chiropractic Healthcare PLLC v. Nationwide Mutual Insurance Company, 77 Misc 3d 140(A), 182 NYS3d 488 [Supreme Court Appellate Term Second Department 2022].

Moreover, the approach of the Second Department, which binds this court, does not conflict with 11 NYCRR §65-3.5(e). 11 NYCRR §65-3.5(e) states that “when an insurer requires an examination under oath of an applicant to establish proof of claim, such requirement must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination” (id). However, that does not mean a reasonable basis must be provided. Indeed, the very next sentence of the regulation provides that “insurer standards shall be available for review by department examiners” (id). Two counsel opinions issued by the Department of Financial Services (formerly the Department of Insurance) are illuminating. In the first, the opinion states that “the Department also added the provision in Section 65-3.5(e) to ensure that insurers would not request EUO’s on either a routine or arbitrary basis, but would only do so when reasonably warranted, based upon the application of specific facts to objective standards established by the insurer in order to provide a reasonable basis for the request” (Ops Gen Counsel NY Ins Dept No. 02-10-14 [October 2002]). The opinion continued that the Department itself could “perform market conduct examinations of insurers and to evaluate the practices of insurers in requiring EUOs. The regulation contains no requirement for insurers to provide those standards for review by a claimant or claimant’s attorney when an EUO has been requested” (id). Again, in a subsequent opinion, it was held that “with respect to whether an insurer must include language stating the reason(s) for requiring the EUO, the regulation contains no such requirement” (Ops Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]). Therefore, only the Department of Financial Services can monitor the “specific objective justification” of 11 NYCRR §65-3.5(e), not medical providers seeking reimbursement for claims (see, Bronx Chiropractic Care P.C. v. State Farm Insurance, 63 Misc 3d 132(A), 114 NYS3d 175 [Supreme Court Appellate Term Second Department 2019]). Lastly, there is little merit to the argument that once a request for justification has been made by a medical provider then the above opinions of the Department of Financial Services are no longer relevant and an explanation must be afforded to the provider (cf., Kemper Independence Insurance Company v. Accurate Monitoring LLC, 73 Misc 3d 585, 156 NYS3d 677 [Supreme Court New York County 2021]). As noted, only department examiners are tasked with insuring compliance with the specific rule the insurer must maintain a justification for serving an EUO. That task cannot somehow be abrogated merely because a medical provider requests the justification as well. To the extent those arguments have been accepted (see, e.g., Country-Wide Insurance Company v. Henderson, 77 Misc 3d 1218(A), 178 NYS3d 922 [Supreme Court New York County 2022]) they merely serve to highlight the split in authority as noted above.

Therefore, based on the foregoing, the plaintiff has failed to present any question of fact [*5]why they failed to attend the EUO. Consequently, defendant’s motion seeking summary judgement dismissing the action is granted. The plaintiff’s motion seeking summary judgement is therefore denied.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This constitutes the Decision and Order of the Court.

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

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

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

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

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

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

If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant’s papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so (Zuckerman v City of New York, 49 NY2d 557 [1980]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833[2014]; Vega v Restani Construction Corp., 18 NY3d 499, 503 [2012]).

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

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

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

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

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

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

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

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

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

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

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

This constitutes the decision and order of the Court.