CV-708764-2020/KI

Attorney for Petitioner: Oleg Rybak, Esq.The Rybak Firm, PLLC1810 Voorhies Avenue, 3rd Floor, Suite 7 Brooklyn, NY 11235
Attorney for Respondent:Lola Klis, Esq. Law Office of Goldstein, Flecker & Hopkins 2 Huntington Quadrangle, Suite 2N01 Melville, NY 11747

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Plaintiff’s motion for summary judgment and Defendant’s cross-motion for summary judgment, numbered as they appear on EDDS.

After argument, Plaintiff’s motion for summary judgment and Defendant’s cross-motion for summary judgment are consolidated for disposition purposes only and decided jointly as follows:

In this action seeking assigned no-fault benefits, SB Chiropractic, P.C. a/a/o Rivera, Eddie (“Plaintiff”) seeks summary judgment against Geico Insurance Co. (“Defendant”), or in the alternative, an order limiting the issues of fact for trial and dismissing Defendant’s affirmative defenses. Defendant opposes the motion and cross-moves for summary judgment in its favor.

Plaintiff alleges that it provided medical care to Eddie Rivera (“Assignor”) from July, 2017 through April 2018 after a July 9, 2017 automobile accident. It is undisputed that Plaintiff sent ten bills to the Defendant insurance carrier for this medical care (Plaintiff’s Motion Ex. 3). Each bill includes a list of dates when care was provided, a Current Procedural Terminology code (“CPT”) designated by the Worker’s Compensation Fee Schedule (“WCFS”) to be used for the procedure or procedures that were performed on that date, and a monetary amount billed. (Id.) The amount billed is derived from the multiplication of the Relative Value Unit (“RVU”) which is assigned to the CPT code by a conversion factor based upon where in New York State the services were rendered (see Renelique v Am. Tr. Ins. Co., 53 Misc 3d 141[A], [App Term 2016])^[FN1] .

Defendant asserts that it partially paid or denied each of these bills, by sending Plaintiff”Denial of Claim forms” within 30 days of receipt (11 NYCRR 65-3.8[c]; see Defendant’s Ex C). Each Denial of Claim form includes the amount Defendant reimbursed the Plaintiff for each date of service, along with a note explaining the reasons for any reduction in reimbursement from the amount requested (Defendant’s Ex. C). Defendant’s cross-motion contains both an affirmation and an affidavit from a “Claims Representative,” which explain the computations utilized for each reimbursement, partial reimbursement, and denial (see Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], [App Term 2017]).

Plaintiff argues that it is entitled to summary judgment because it submitted claim forms to the Defendant, Defendant failed to issue a timely denial of claim form and/or the form was conclusory, vague, or without merit as a matter of law (Ave T MPC Corp. v Auto One Ins. Co., 934 NY2d 32, 2011 [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2011], Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498, 501, [2015][“A plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are [sic] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer”]). Defendant argues that it properly and timely mailed Denial of Claim forms, and that each partial payment or denial was proper. Therefore, the issue is whether Defendant’s denials are sufficient to defeat Plaintiff’s motion for summary judgment, and whether they entitle Defendant to summary judgment (see Ave T MPC Corp. v Auto One Ins. Co., 934 NY2d 32, [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2011]).^[FN2]

The standard for summary judgment is clearly articulated in CPLR § 3212(b) which provides that “the motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in [*2]directing judgment in favor of any party.” The function of summary judgment is issue finding, not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Summary judgment should be granted when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, giving sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]).

In order to succeed on its motion, Defendant must establish that it mailed the Denial of Claim forms within 30 days of receiving Plaintiff’s bills. To establish that denial of claim forms were mailed on time, the insurance company may rely upon the affidavit of a claims associate. Proof of mailing may be shown based on a mailing receipt, or, that the item was mailed pursuant to the affiant’s standard office practices and procedures (GL v Allstate Ins. Co., 2018 NY Slip Op 50842[U] [2d Dept 2018]). The claim representative must demonstrate, through an affidavit, knowledge of the insurance company’s standard office practices or procedures, and that the items were properly addressed and mailed pursuant to these practices or procedures (St. Vincent’s Hosp. of Richmond v Govt. Empls. Ins. Co., 50 AD3d 1123 [2d Dept 2008]). Crucially, an insurer’s non-substantive technical or immaterial defect or omission shall not affect the validity of a denial of claim (11 NYCRR 65-3.8[h]). Proof of a standard office practice and procedure gives rise to a presumption of mailing and receipt (Cit Bank N.A. v Schiffman, 36 NY3d 550 [2021]). To rebut the presumption,

“[T]here must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient” (Id).

Defendant attaches to its cross-motion an affidavit from Cleone Victor, (“Victor Affidavit”) who avers that they are a “claims associate” in Defendant’s Woodbury, New York, office (Defendant’s Cross Ex. B). The Victor Affidavit recounts, in detail, Defendant’s standard office procedures for mailing and processing bills, that Plaintiff’s bills were processed according to these procedures, and that Denial of Claim Forms were processed according to these procedures. Cleone Victor describes Defendant’s application of the ATLAS Claim System to process bills and denials like the ones submitted by Plaintiff here (Defendant’s Cross Ex. B) and how the system is designed to ensure that the denials arrive to the Defendant within the required time.

Plaintiff argues that the Victor Affidavit is insufficient because it fails to lay a proper foundation for Victor’s knowledge of Defendant’s mailing processes. But, Plaintiff’s objections are mainly technical, grammatical arguments rather than based on merit, and, Plaintiff misstates the Victor Affidavit multiple times; Plaintiff argues that Cleone Victor “never asserts that she has knowledge of what procedures were in place at the time mailing purportedly occurred” and that “Victor states that she has been employed by Geico in the Woodbury, New York office since on or about January 1995” (Plaintiff’s Aff in Opp., 72). The Victor Affidavit, however, clearly states: “[t]he procedures described in this affidavit were in place and were utilized by GEICO in the Woodbury Office at the time that the documents relating to this matter were created, printed and mailed” and, “I have been employed by GEICO in the Woodbury, New York office since on or about June 2005” (Defendant’s Cross Ex. B). Plaintiff’s remaining [*3]arguments similarly lack a factual basis necessary to rebut the presumption of timely mailing; Defendant has demonstrated that it timely mailed the Denial of Claim forms in this case.

Plaintiff also maintains Defendant has not met its burden on summary judgment because Defendant failed to establish it properly reimbursed Plaintiff for its bills. To establish proper reimbursement pursuant to the WCFS, the Defendant may submit an affidavit setting forth the calculation (Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], [App Term 2017]). Notably, an expert affidavit is not required to support fee schedule reductions (Id). Rather, the Defendant needs to prove that it multiplied the RVU assigned to the CPT code for the services rendered by a conversion factor based upon where in New York State the services were rendered (Renelique v Am. Tr. Ins. Co., 53 Misc 3d 141[A]), which, in this case, is $5.78.

In addition to the Victor Affidavit, Defendant’s cross-motion includes an affirmation in support (“Affirmation”) which explains the method Defendant used to calculate the proper reimbursement of the Plaintiff’s bills. The Affirmation and Victor Affidavit explain that based upon the WCFS formula, Plaintiff often billed Defendant in excess of the permissible amount. For example, WCFS Ground Rule 2 specifies that reimbursement for an initial evaluation shall be limited to 13.5 RVUs (Defendant’s Cross Ex. B). On 7/10/2017, however, Plaintiff billed 14.04 RVU’s for the initial evaluation: one unit of code 99203, carrying an RVU of 9.47, and one unit of code 98940, carrying an RVU of 4.57. Defendant reimbursed Plaintiff for the maximum permissible amount, 13.5 RVUs, and denied the remaining .54 RVUs. As provided below, Victor’s Affidavit and Defendant’s Affirmation articulate the application of the WCFS to each of Plaintiff’s bills and therefore an expert affidavit is not required (Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], [App Term 2017]).

The Affirmation and the Victor Affidavit explain Defendant’s processing of Plaintiff’s ten bills as follows:

• Defendant received Plaintiff’s first bill on August 10, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $530.12 on July 10-14, 17-21, 24-28, 31 of 2017 and August 1-2 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on August 30, 2017, determined that Plaintiff was entitled to $527.00, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement amount as the WCFS permits reimbursement for only 13.5 RVU per day, and Plaintiff billed for 14.04 RVU (Defendant’s Cross Ex. C at 77-79).

• Defendant received Plaintiff’s second bill on September 18, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $269.17 on August 23-24, and 28-30 of 2017 and September 7-8 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on October 10, 2017, determined that Plaintiff was entitled to $206.77, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement amount as the WCFS provides for a maximum reimbursement of 8 RVU per day, for “modalities and procedures” and Defendant had already reimbursed a separate provider, Healthway Medical Care, P.C., for 7.65 RVU on each date. Defendant includes the bills and reimbursements to the separate provider for services provided to Assignor on the same date. The court notes that Defendant actually reimbursed more than what was required on this bill; Defendant paid 4.6 RVU for the date of service when .35 RVU was all [*4]that remained of the allotment of 8 RVU (Defendant’s Cross Ex. C at 87-88).

• Defendant received Plaintiff’s third bill on October 23, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $361.65 on October 2-5, 10, 12-13, and 16 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on November 8, 2017, determined that Plaintiff was entitled to $314.42, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement amount as the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and the Defendant had already paid a different provider 7.65 RVU. (Id.) In addition, the WCFS provides for a maximum reimbursement of 11 RVU for a re-evaluation, but the Plaintiff had billed for 13.46 RVU (Defendant’s Cross Ex. C at 100-102). The court notes that Defendant overpaid for certain procedures on this bill.

• Defendant received the Plaintiff’s fourth bill on November 13, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $219.64 on October 18, 20, 24, 26, and 30 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on November 30, 2017, determined that Plaintiff was entitled to $191.02, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement as the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and Defendant had already paid a different provider 7.65 RVU on three of the four dates of service included in that bill (Defendant’s Cross Ex. C at 115-116). The court notes that Defendant overpaid for certain procedures on this bill.

• On November 20, 2017, Frank J. McNally, a New York State licensed chiropractor, and Rachel Saperstein, a New York State licensed acupuncturist, both conducted an Independent Medical Evaluation (“IME”) of Assignor, on behalf of Defendant. After these evaluations and a review of certain delineated medical records, both concluded that no further chiropractic or acupuncture treatment was medically necessary (Defendant’s Cross Ex. D). A “Blanket Denial of Claim” form was generated on November 27, 2017 and notice was provided to Plaintiff that further treatment was not medically necessary (Defendant’s Cross Ex. C). The form also provided that all benefits for treatment would be denied effective December 3, 2017 (Id).

• Defendant received Plaintiff’s fifth bill on December 4, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $323.68 on November 2, 6, 8, 10, 14-15, and 27 of 2017 (Defendant’s Cross Ex. C). Respondent issued its Denial of Claim form on December 18, 2017, determined that Plaintiff was entitled to $266.44, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement because the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and Defendant had already paid a different provider 7.65 RVU on six of the seven dates of service included in that bill (Defendant’s Cross Ex. C at 129-130). The court notes that Defendant overpaid for certain procedures on this bill.

• Defendant received Plaintiff’s sixth bill on December 22, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $138.72 on November 28 of 2017 and December 1, and 4 of 2017 (Defendant’s Cross Ex. C). Defendant [*5]issued its Denial of Claim form on January 8, 2018, determined that Plaintiff was entitled to $73.40, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement for two reasons: first, the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and Defendant had already paid a different provider 7.65 RVU on two of the dates of service included in that bill (Defendant’s Cross Ex. C at 143-145). The remaining procedures were denied based upon the IME reports which determined that there was no further “acupuncture, chiropractic, massage therapy, diagnostic testing and supplies treatment” necessary as of December 3, 2017 (Defendant’s Cross Ex. D).

• Defendant received Plaintiff’s seventh through tenth bills on January 15, 2018, February 5, 2018, March 26, 2018, April 19, 2018, which were all timely denied, on January 19, 2018, February 12, 2018, April 4, 2018, May 1, 2018, respectively, based upon the IME reports and the accompanying Blanket Denial (Defendant’s Cross Ex. C at 158-182), as well as the WCFS.

Plaintiff attaches a rebuttal fee schedule affidavit (Plaintiff’s Opp. Ex. 6), to rebut the Victor Affidavit and Defendant’s use of the WCFS. However, the affidavit purports to, but does not actually use the billing codes in Plaintiff’s bills. Rather, the affidavit explains why Plaintiff purportedly billed for medical procedures using codes 97799, 97810, 97811, and 99204 when in fact the bills seek reimbursement for procedures utilizing codes 99203, 98940, 98941, 99212, and 97139. As such, Plaintiff’s affidavit does not rebut, or even relate to, the Victor Affidavit. Furthermore, the Defendant’s fee schedule denials in this case do not rely upon the billing codes. Defendant denied payment of these bills because Plaintiff billed more than the maximum RVU per day per the WCFS Ground Rules, or Defendant paid a different provider for treatment performed on Assignor on the same date (Defendant’s Cross Ex. B). Accordingly, the rebuttal fee schedule affidavit does not successfully challenge the Defendant’s use of the WCFS. The court finds Defendant’s use of the WCFS proper.

Plaintiff also challenges Defendant’s denial of claims based upon lack of medical necessity. Generally, Plaintiff’s bills carry a presumption of medical necessity (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2d Dept 2009]). On summary judgment, Defendant has the burden to rebut this presumption (Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], [App Term 2015]). If rebutted, the burden shifts back to the Plaintiff to demonstrate that the procedures were medically necessary (Id). Plaintiff argues that Defendant has not rebutted the presumption of medical necessity, and that Defendant has failed to provide a sufficient foundation for the authority of the IME reports.

The first IME report, written by Frank J McNally, D.C., a New York state licensed chiropractor, finds that “[t]here is no need for further chiropractic treatment. There is no need for further diagnostic testing, household help, medical supplies, special transportation, or massage therapy, from a chiropractic standpoint.” (Defendant’s Cross Ex. D). Dr. McNally specifies that the Assignor’s diagnosis is “[r]esolved cervical sprain/strain…[r]esolved lumbar sprain/strain.” (Id). He further notes that “[t]he claimant is able to work if he chooses to seek employment, from a chiropractic standpoint” (Id). Similarly, Rachel Saperstein, L.Ac. concludes that “no further acupuncture treatment is recommended or necessary…” (Defendant’s Cross Ex. D). She also notes “[t]he [Assignor] does not appear to be in any acute distress or discomfort…[a]mbulation and gait is normal, and the [Assignor] moves freely and without the assistance of any aid or appliance” (Id). These IME reports each provide a detailed accounting [*6]of the signatory’s personal evaluation of Assignor based upon documents specified and answers provided by the Assignor at the evaluation.

Plaintiff argues that the IME’s do not “explain how the treatment or services provided were ineffective and cite medical literature and standard practices in the community to support the opinion” (Plaintiff’s Opp., 37). However, Defendant’s IME’s do not state that the medical treatment provided was ineffective; on the contrary, they both state that the issues that the Assignor complained about have been resolved, and that Assignor does not require any further medical treatment for the condition caused by the accident. Accordingly, Plaintiff’s argument is misplaced. Plaintiff also argues that the IME reports are inadmissible because the physician’s signature was “computerized, affixed, or stamped” (Plaintiff’s Opp., 48). However, the signature pages of the affidavits clearly show that the signatures were handwritten and notarized.

The court finds Defendant has rebutted the presumption of medical necessity. The burden therefore shifts back to the Plaintiff to demonstrate medical necessity. Plaintiff submits an “Affidavit of Medical Necessity” from Mark Tischler, D.C., the owner of the Plaintiff corporation, which provides, in vague and conclusory terms, the benefits of acupuncture treatment, and the alleged weaknesses and shortcomings of Defendant’s IME reports (Plaintiff’s Opp. Ex. 1). Dr. Tischler defends the medical necessity of the “acupuncture treatments” but does not mention the medical necessity of the chiropractic treatments Plaintiff is seeking reimbursement for. Moreover, Defendant does not claim that all of the treatments rendered were medically unnecessary. Rather, the only treatments denied for lack of medical necessity were the treatments rendered after the IME reports were issued. Defendant also has produced a report from both a licensed chiropractor and a licensed acupuncturist to rebut the presumption of medical necessity. However, the only relevant portion of the Tischler Affidavit which relates to the post-IME condition of the Assignor is:

“[a]fter the IMEs performed by [D]efendant, Rivera, Eddie returned to my office, maintained that he still experienced significant pains and discomfort, and required medical treatment for injuries he suffered in the accident. Having re-evaluated Rivera, Eddie post-IME evaluation I concluded that he was still suffering from the effects and injuries sustained in the accident and further treatment was required given the fact that it reduced her [sic] pain.” (Plaintiff’s Opp. Ex. 1, 27)

These conclusory statements do not meet the burden of demonstrating that the treatments provided were medically necessary as the Tischler Affidavit does not describe Assignor’s physical condition, nor provide details of which medical treatments were necessary at that time (Dayan v Allstate Insurance, 49 Misc 3d 151[a]). As such, Plaintiff has not sufficiently demonstrated the medical necessity of the post-IME medical treatment on summary judgment (Id).

By submitting a detailed, fact-specific and comprehensive set of papers, Defendant has eliminated material issues of fact from this case and is entitled to summary judgment as a matter of law. Defendant’s Denial of Claim forms clearly demonstrate that Plaintiff submitted ten bills to Defendant. Certain bills were accurately reimbursed according to the WCFS for the medical care provided to Assignor, and certain bills were partially paid based upon the basic math required by the WCFS. Certain bills were partially denied based upon prior payment to a separate provider for care rendered on that same date. The calculations are clearly explained in the Victor affidavit and the Defendant’s Affirmation in support. Furthermore, certain bills were denied based upon a credible and unrebutted lack of medical necessity. In fact, Defendant [*7]concedes that it actually overpaid Plaintiff on multiple bills. Accordingly, Defendant has met its burden, and its motion for summary judgment is granted pursuant to CPLR 3212. Plaintiff’s motion for summary judgment, or to limit the issues of fact for trial is denied in its entirety. This action is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Footnotes

Footnote 1: Neither party disputes that the appropriate conversion factor according to the WCFS in this case is Region IV, in the amount of $5.78 (Defendant’s Cross Ex E 211-212).

Footnote 2: While Plaintiff argues that Defendant’s defenses should be dismissed, this blanket argument is not supported by any facts or specificity and that branch of Plaintiff’s motion is dismissed.

Respondent appeals from an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), dated October 4, 2021, which granted the petition of Allstate Fire & Casualty Insurance Company to vacate a master arbitrator’s award and denied respondent’s cross-motion to confirm the arbitration award.

Per Curiam.

Order (Sabrina B. Kraus, J.), dated October 4, 2021, affirmed, with $10 costs.

Civil Court properly vacated the master arbitrator’s award and denied respondent’s cross motion to confirm the award. When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co v Sawh, 272 AD2d 245 [2000][internal quotation marks omitted]). An arbitrator’s award directing payment in excess of the monetary limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 823 [1998]; Matter of Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 179 AD3d 563 [2020]). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30—day period (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580 [2004]).

At the framed issue hearing on the issue of policy exhaustion, petitioner’s submissions were sufficient to establish that the policy had been exhausted on May 8, 2019 by payments of no-fault benefits to other health care providers and lost wages to the assignor before petitioner was obligated to pay the claim at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U][App Term, 1st Dept 2016]). The evidence includes the testimony of petitioner’s claims adjustor, coupled with the policy declaration page showing a $50,000 policy limit for Personal Injury Protection coverage and a $25,000 limit for Optional Basic Economic Loss coverage, a payment ledger listing in chronological order the dates the claims by various providers were received and paid, and a [*2]ledger showing the dates and amounts of lost earnings reimbursed to the assignor. In response, respondent called no witnesses nor offered any evidence at the hearing.

Contrary to respondent’s contention, petitioner was not precluded by 11 NYCRR 65-3.15 from paying other legitimate claims subsequent to the denial of respondent’s claims (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A]; 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]). Adopting respondent’s position, which would require petitioner to delay payment on uncontested claims pending resolution of respondent’s disputed claims “runs counter to the no-fault regulatory scheme, which is designed to promote prompt payment of legitimate claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]). Respondent’s contention that the other claims paid by petitioner were not shown to be “verified” is unpreserved as a matter of law for this court’s review, no such argument having been raised at Civil Court (see Matter of Allcity Ins. Co. [Rodriguez], 212 AD2d 405 [1995]). The alleged defect in petitioner’s proof could have been raised at the framed issue hearing. An appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance (see Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342, 349 [1955]; Douglas Elliman-Gibbons & Ives v Kellerman, 172 AD2d 307 [1991], lv denied 78 NY2d 856 [1991]).

Having admitted in its papers that the assignor was a pedestrian, respondent may not now claim that additional personal injury protection (APIP) benefits are payable because “there was no evidence … that assignor was a pedestrian.”

We have considered respondent’s remaining arguments and find them unavailing.

All concur

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

Law Office of Jonathan B. Seplowe, P.C., Malverne, NY (Alan M. Elis of counsel), for appellant.

Jaffe & Velazquez, LLP, New York, NY (Thomas Torto of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated April 10, 2018, which vacated an arbitration award in favor of the petitioner, and to confirm the arbitration award, the petitioner appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered October 2, 2018. The order denied the petition.

Ordered that the order is reversed, on the law, with costs, the petition to vacate the award of the master arbitrator dated April 10, 2018, is granted, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

“[A] master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator” (Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577 [2002]). “If the master arbitrator vacates the arbitrator’s award based upon an alleged error of ‘a rule of substantive law,’ the determination of the master arbitrator must be upheld unless it is irrational” (id. at 576 [internal quotation marks omitted]; see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168 [2019]).

The Supreme Court erred in denying the petition, inter alia, to vacate the award of the master arbitrator, as there was no rational basis to support the award. The master arbitrator’s determination that a denial of liability based upon a failure to appear at an examination under oath constitutes a defense of lack of coverage, which is not subject to preclusion, is irrational (see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d at 1168; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-1047 [2009]). Further, the master arbitrator’s application of 11 NYCRR 65-3.5 (p) is irrational, as it effectively allows an insurer to avoid the statutory timeliness requirements set forth in 11 NYCRR 65-3.8 (a). Where, as here, the initial request for an examination under oath is sent more than 30 days after receipt of the claim, the request is a nullity (see Excel Prods., Inc. v Farmington Cas. Co., 71 Misc 3d 137[A], 2021 NY Slip Op 50441[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]), and the insurer’s failure to timely notice the examination under oath is not excused by 11 NYCRR 65-3.5 (p) (see American Tr. Ins. Co. v Foster, 2019 NY Slip Op 30746[U], *4 [Sup Ct, NY County 2019]; cf. Z.M.S. & Y. Acupuncture, P.C. v [*2]Geico Gen. Ins. Co., 56 Misc 3d 926, 930 [Civ Ct, Kings County 2017]). Barros, J.P., Chambers, Zayas and Dowling, JJ., concur.

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Order and judgment (one paper), Supreme Court, New York County (Melissa A. Crane, J.), entered on or about March 2, 2021, declaring that defendants Metro Pain Specialists, P.C. and Right Aid Medical Supply Corp. are not entitled to no-fault benefits, unanimously reversed, on the law, with costs, and the judgment vacated.

Plaintiff insurer failed to make a prima facie showing that it complied with the time frames in scheduling defendant Louis Melendez’s independent medical examination (IME) as set forth in the no-fault implementing regulations (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Martinez, 202 AD3d 526 [1st Dept 2022]). Plaintiff did not provide evidence as to when it received the claims from Metro and Right Aid, and thus failed to establish that it scheduled the IME within the prescribed time frame (see 11 NYCRR 65-3.5 [b], [d]). Concur—Manzanet-Daniels, J.P., Kapnick, Webber, Gesmer, Oing, JJ.

[*1]

Law Offices of Peter C. Merani, P.C., New York, NY (Adam Waknine of counsel), for appellant.

Baker & Cantin, P.C., Rego Park, NY (Elyse R. Ulino of counsel), for respondent.

In an action to recover no-fault benefits, the defendant appeals from an order of the Supreme Court, Queens County (Chereé A. Buggs, J.), entered October 31, 2019. The order denied the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof denying those branches of the defendant’s motion which were for summary judgment dismissing so much of the first cause of action as sought reimbursement greater than $1,724.22 and so much of the third cause of action as sought reimbursement greater than $12,924.78, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, with costs payable to the defendant.

The plaintiff, a medical provider, commenced this action to recover assigned first-party no-fault benefits for medical services rendered. The defendant moved for summary judgment dismissing the complaint, arguing that the services lacked medical necessity and the amount sought exceeded the amount permitted by the applicable fee schedule. The Supreme Court denied the motion, and the defendant appeals.

The defendant failed to establish, prima facie, that the services provided were not medically necessary (see Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768 [2016]). The peer review reports submitted by the defendant did not establish a factual basis and medical rationale for the determination that there was a lack of medical necessity for the services, as each doctor merely set forth a conclusory opinion that the alleged motor vehicle injuries were degenerative and chronic, and conservative treatment would suffice (see Eagle Surgical Supply, Inc. v Mercury Cas. Co., 36 Misc 3d 131[A], 2012 NY Slip Op 51286[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the defendant’s failure to meet its prima facie burden, we need not consider the sufficiency of the opposing papers on that issue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Allstate Ins. Co. v Buffalo Neurosurgery Group, 172 AD3d 967 [2019]).

The defendant nevertheless established, prima facie, that the bills for the services provided were in excess of the proper fee schedule (see Insurance Law § 5108 [a], [c]; 11 NYCRR 68.6 [a] [1]). The defendant’s expert stated in an affidavit that if the services were determined to be [*2]medically necessary, the plaintiff would be entitled to a reimbursement of only $1,724.22 of the $2,586.34 claimed in the first cause of action, and only $12,924.78 of the $25,849.56 claimed in the third cause of action. As the plaintiff failed to raise a triable issue of fact in opposition to this showing, the Supreme Court should have granted those branches of the defendant’s motion which were for summary judgment dismissing so much of the first cause of action as sought reimbursement greater than $1,724.22 and so much of the third cause of action as sought reimbursement greater than $12,924.78 (see Allstate Ins. Co. v Buffalo Neurosurgery Group, 172 AD3d 967 [2019]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2007]). Brathwaite Nelson, J.P., Chambers, Roman and Zayas, JJ., concur.

Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.), entered March 26, 2020. The order granted defendant’s motion to, in effect, vacate a judgment of that court entered March 23, 2017 and, upon such vacatur, to dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the judgment and dismiss the complaint is denied.

Plaintiff commenced this action in 2000 to recover first-party no-fault benefits for supplies it furnished to its assignor as a result of a motor vehicle accident that occurred on June 11, 1998. Defendant appeared and answered. On June 27, 2001, the State of New York dissolved plaintiff by proclamation. On or about July 15, 2003, the parties entered into a settlement agreement. It is uncontroverted that defendant did not pay the amount set forth in the settlement. On March 23, 2017, plaintiff had a judgment entered, ex parte, in the total sum of $4,781.27, including $2,972.06 in interest. In December of 2018, plaintiff moved to recalculate the interest as compound instead of simple. Defendant submitted opposition to the motion and the motion was marked fully submitted on October 21, 2019. It remains pending.

In November of 2019, defendant moved to, in effect, vacate the March 23, 2017 judgment and, upon such vacatur, to “dismiss[ ] the complaint on the ground that plaintiff lacks standing to [*2]maintain this action and collect on the judgment . . . since the Secretary of State dissolved plaintiff and annulled its authority on June 27, 2001, and plaintiff has failed to wind up its affairs within a reasonable time as a matter of law.” In the alternative, defendant’s motion sought to “vacat[e] the judgment . . . upon the ground that plaintiff failed to comply with CPLR 5003-a.” Plaintiff opposed the motion, to which defendant replied.

By order entered March 26, 2020, the Civil Court granted defendant’s motion and vacated the judgment on the ground of (1) fraud (see CPLR 5015 [a] [3]) based on plaintiff’s failure to inform the court clerk that it had been dissolved in 2001 and (2) lack of jurisdiction (see CPLR 5015 [a] [4]) based on plaintiff’s failure to comply with CPLR 5003-a. Upon such vacatur, the court dismissed the complaint pursuant to CPLR 1017 and 1021 due to the failure to have a proper party substituted for plaintiff within a reasonable time after plaintiff was dissolved.

On appeal, plaintiff contends, among other things, that the Civil Court improperly vacated the judgment.

Under the circumstances presented, we find that plaintiff had the capacity to seek entry of judgment and maintain this action as part of the winding up of its business affairs pursuant to Business Corporation Law §§ 1005 and 1006. While CPLR 1017 provides that a court shall order substitution of the proper party where a corporate party is dissolved, to the extent that Business Corporation Law §§ 1005 and 1006 can be deemed to be inconsistent with CPLR 1017 and 1021, the Business Corporation Law provisions govern (see CPLR 101). Business Corporation Law § 1006 provides, in pertinent part, that “(a) A dissolved corporation, its directors, officers and shareholders may continue to function for the purpose of winding up the affairs of the corporation in the same manner as if the dissolution had not taken place, except as otherwise provided in this chapter or by court order.” Business Corporation Law § 1005 (a) (2) defines “winding up” as the performance of acts directed toward the liquidation of the corporation, including the collection and sale of corporate assets (see Matter of 172 E. 122 St. Tenants Assn. v Schwarz, 73 NY2d 340 [1989]). Since Business Corporation Law § 1006 does not include any time limit for winding up the dissolved corporation’s affairs, courts will imply a reasonable period of time (see e.g. Spiegelberg v Gomez, 44 NY2d 920, 921 [1978]).

As the party moving to vacate the judgment and dismiss the complaint on the ground that plaintiff lacked the capacity to enter judgment and to maintain this action, defendant had the burden of proving that plaintiff is no longer winding up its affairs (see e.g. Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 151 AD3d 818 [2017]; Singer v Riskin, 137 AD3d 999, 1000 [2016]; Brooklyn Elec. Supply Co., Inc. v Jasne & Florio, LLP, 84 AD3d 997 [2011]; Brach v Levine, 36 Misc 3d 1213[A], 2012 NY Slip Op 51312[U] [Sup Ct, Kings County 2012]). Defendant’s initial moving papers, which include the conclusory statement that plaintiff failed to show that it was “in the process of winding up its affairs,” were insufficient to establish, prima facie, that plaintiff’s actions did not relate to the winding up of its affairs or that the nearly 14-year time period between the July 2003 settlement and when plaintiff sought to enter judgment in March of 2017 was an unreasonable period of time to wind up its affairs. Thus, the branch of defendant’s motion seeking to vacate the judgment and, upon such vacatur, to dismiss the [*3]complaint on the ground that plaintiff was a dissolved corporation which was not winding up its affairs should have been denied (see Lamarche Food Prods. Corp. v 438 Union, LLC, 178 AD3d 910 [2019]; Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 151 AD3d at 821; Lance Intl., Inc. v First Nat’l City Bank, 86 AD3d 479 [2011]; Moran Enters., Inc. v Hurst, 66 AD3d 972 [2009]).

While defendant contends that the judgment against it was improperly entered because plaintiff had not provided defendant with a duly executed release and stipulation of discontinuance (see CPLR 5003-a [a]), defendant failed to submit an affidavit from someone with knowledge establishing that failure. We note that the Civil Court’s basis for vacating the judgment pursuant to CPLR 5015 (a) (4) was improper. The court had jurisdiction to enter the judgment herein (see Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200 [2013]).

Accordingly, the order is reversed, defendant’s motion is denied and the matter is remitted to the Civil Court to determine plaintiff’s pending motion.

ALIOTTA, P.J., WESTON and GOLIA, JJ., concur.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), entered March 10, 2020. The order granted 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, 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’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s sole contention on appeal, the affidavit by defendant’s special investigator who was scheduled to conduct the EUOs, accompanied by certified transcripts of the EUOs, established that the assignor had failed to appear at either of the EUOs (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Atlantic Radiology Imaging, P.C. v Metropolitan Prop. & Cas. Ins. Co., 50 Misc 3d 147[A], 2016 NY Slip Op 50321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), thereby demonstrating that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. McCormack & Mattei, P.C. (Andre S. Haynes of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.; op 53 Misc 3d 216 [2016]), entered June 30, 2016. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $2,226.41, following a calculation of statutory no-fault interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from a judgment which dismissed the complaint after a nonjury trial that was limited, pursuant to a stipulation, to the sole issue of whether plaintiff had appeared for examinations under oath (EUOs).

Transcripts recording defendant’s attorney’s statements that, as of a certain time, the provider, plaintiff herein, had not appeared for EUOs scheduled to be held at that place and time—”bust” statements—were admitted into evidence, over plaintiff’s objection, as business records (see CPLR 4518 [a]) to prove the nonappearances. Following the trial, the Civil Court determined that defendant proved by a preponderance of the evidence that plaintiff failed to appear at least two times for a scheduled EUO, and entered a judgment dismissing the action (Charles Deng Acupuncture, P.C. v Titan Ins. Co., 53 Misc 3d 216 [2016]). Plaintiff appeals, arguing that the court erred in admitting the transcripts, and that, without the transcripts, defendant did not establish that plaintiff had failed to appear at the EUOs.

Contrary to the determination of the Civil Court, the transcripts of the “bust” statements should not have been admitted into evidence. They were hearsay—out-of-court statements being used to prove the truth of the matter asserted—and therefore generally would only be admissible if a hearsay exception applies. While defendant contended, and the court agreed, that the transcripts were admissible as business records pursuant to CPLR 4518 (a), we disagree and hold that these transcripts were not admissible at this trial as business records to prove that plaintiff had not appeared for examinations under oath.

Under CPLR 4518 (a), a business record—a “writing or record” that is “made as a memorandum or record of any act, transaction, occurrence or event”—will be admissible as proof of the acts, transactions, occurrences or events recorded, if the court finds that the record “was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.” A transcript is a record of words that were uttered; while those words may describe an event, transcripts are generally not made as a memorandum or record of the event described. Here, defendant did not show a sufficient basis to admit counsel’s hearsay statements or that these transcripts should otherwise be treated as admissible pursuant to CPLR 4518 (a). Indeed, even if the transcripts could be treated as a “memorandum or record” of a nonappearance, rather than of a statement, there is no basis on this record to find that the record “was made in the regular course of any business” or “that it was the regular course of such business to make” a transcript as such a “memorandum or record” of a nonappearance (CPLR 4518 [a]).

We note that, while CPLR 3117 specifically permits deposition transcripts to be admitted into evidence at trials under certain circumstances, the CPLR is silent when it comes to EUO transcripts. To use a deposition transcript as evidence in chief at trial, as defendant attempted to use the EUO transcripts here, one of the requirements of CPLR 3117 (a) (3) must be met. Even if the transcripts at issue were to be treated as EUO transcripts notwithstanding that no examination took place, since, here, there was no showing that any of the grounds to permit the use of a deposition transcript were met, we need not decide whether CPLR 3117 (a) (3) can be extended to the use of EUO transcripts.

As defendant relied exclusively upon the transcripts of the “bust” statements to prove, at trial, that plaintiff failed to appear at the EUOs, and those transcripts were not properly admitted into evidence, defendant did not sustain its burden of proving that plaintiff had failed to appear for EUOs.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the sum of $2,226.41, following a calculation of statutory no-fault interest and an assessment of attorney’s fees.

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered October 25, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 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 denying defendant’s motion which sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court held that there is an issue of fact as to whether the EUO scheduling letters were properly mailed to plaintiff’s assignor. While the address on the scheduling letters to the assignor matched the address on the NF-3 forms plaintiff had provided to defendant, it did not match the address set forth on the assignment of benefits form.

A review of the record indicates that the proof submitted by defendant in support of its motion for summary judgment dismissing the complaint established that defendant’s initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that the claims were timely denied on that ground (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123). Moreover, we find, contrary to the determination of the Civil Court, that, since the address to which defendant mailed the EUO scheduling letters to the assignor matched the address contained on the NF-3 forms plaintiff provided to defendant, defendant established, prima facie, that the letters had been properly mailed to plaintiff’s assignor (see Compas Med., P.C. v American Tr. Ins. Co., 64 Misc 3d 141[A], 2019 NY Slip Op 51257[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). As plaintiff’s opposition papers failed to rebut defendant’s prima facie showing, defendant’s motion for summary judgment dismissing the complaint should have been granted.

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

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.

Index No. 652582/2019

Larkin Farrell LLC, New York, NY (William Larkin of counsel), for plaintiff.

The Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Columbus Imaging Center, LLC and Metro Pain Specialists, P.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85 were read on this motion for SUMMARY JUDGMENT.

This motion concerns the potential obligation to pay no-fault insurance benefits of plaintiff American Transit Insurance Company. Defendant Jose Marte Lopez was in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by American Transit. Lopez assigned the right to collect no-fault benefits under that policy to [*2]various treating medical providers. American Transit denied those providers’ applications for no-fault benefits.

American Transit brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Lopez or to Lopez’s medical-provider assignees (the other defendants here). Lopez and a number of the medical-provider defendants did not appear. This court previously granted default judgment against those defendants, without opposition, on March 25, 2021. (See NYSCEF No. 60 [granting motion and directing American Transit to settle order]; NYSCEF No. 64 [granting judgment].) American Transit now moves for summary judgment against the remaining answering defendants.^[FN1] The motion is denied.

American Transit premises its claim for declaratory judgment on Lopez’s failure twice to appear for independent medical examinations (IMEs) scheduled under the terms of the underlying no-fault insurance policy. But a no-fault insurer seeking a declaration of no coverage due to the claimant’s failure to appear for an IME required under the no-fault policy must first demonstrate that it complied with the procedural and timeliness requirements of 11 NYCRR § 65-3.5, governing the handling of no-fault claims. (See American Transit Ins. Co. v. Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) If an insurer receives NF-3 verification forms from treating providers and then wishes to request additional verification of the no-fault claim in the form of an IME, that IME must be (i) requested within 15 business days of the receipt of an NF-3 form, and (ii) scheduled to be held within 30 calendar days of receipt of the NF-3 form. (See 11 NYCRR 65-3.5 [b], [d]; American Transit Ins. Co. v Acosta, 2022 NY Slip Op 01097 [1st Dept Feb. 17, 2022].)

American Transit has concededly not provided copies of NF-3 verification forms submitted by the remaining medical-provider defendants.^[FN2] American Transit therefore cannot show that it timely requested the IME at issue—as needed to obtain its requested declaratory judgment. (See Acosta, 2022 NY Slip Op 01097, at *1 [reversing grant of summary judgment to American Transit; accord American Transit v Alcantara, 2022 NY Slip Op 01871, at *1 [1st Dept Mar. 17, 2022] [same].)

American Transit advances several arguments for why it is nonetheless entitled to summary judgment. (See NYSCEF No. 85 at 1-15.) But this court has repeatedly rejected these same arguments before when made on behalf of American Transit by the same attorney who makes them here. (See American Transit Ins. Co. v Romero-Richiez, 2020 NY Slip Op 51181[U] [Sup Ct, NY County Oct. 9, 2020]; American Transit Ins. Co. v Martinez, 2020 NY Slip Op 50930[U] [Sup Ct, NY County Aug. 21, 2020]; American Transit Ins. Co. v Wildex, 2020 NY Slip Op 50929[U] [Sup Ct, NY County Aug. 21, 2020]; accord American Transit Ins. Co. v Rodriguez, 2020 WL 7692216 [Sup Ct, NY County Dec. 23, 2020]; American Transit Ins. Co. v Johnson, 2020 WL 7692201 [Sup Ct, NY County Dec. 23, 2020]; American Transit Ins. Co. v City Wide Health Facility Inc., 2020 WL 6440760 [Sup Ct, NY County Oct. 14, 2020]; American Transit Ins. Co. v Reynoso, 2020 WL 5524771 [Sup Ct, NY County Sept. 11, 2020]; [*3]American Transit Ins. Co. v. Schenck, 2020 WL 5290820 [Sup Ct, NY County Sept. 2, 2020]; American Transit Ins. Co. v Fermin, 2020 WL 5105760 [Sup Ct., NY County Aug. 27, 2020].)

American Transit’s papers on this motion do not even acknowledge these numerous prior decisions, much less put forward reasons why they might be mistaken. That counsel evidently does not agree with this court’s prior decisions and reasoning does not explain counsel’s choice to ignore them altogether. Nor, in any event, can American Transit’s position on this motion be reconciled with the recent decisions of the Appellate Division, First Department, in Acosta and Alcantara.^[FN3]

Accordingly, for the foregoing reasons, American Transit’s motion for summary judgment is denied.

Footnotes

Footnote 1:American Transit previously settled with answering defendant Longevity Medical Supply, Inc. (See NYSCEF No. 61.)

Footnote 2:Nor does American Transit contend that it requested the IME before receiving any NF-3 verification forms from those defendants. Had it done so, the 15-day and 30-day deadlines would not apply. (See Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 469-470 [1st Dept 2016].)

Footnote 3:American Transit’s counsel here also represented it in the trial court in Acosta and Alcantara—i.e., he obtained the grants of summary judgment that the First Department reversed in those cases. (American Transit did not file a brief on appeal in either case.) Although defendants’ opposition papers on this motion cite the First Department decision in Acosta as an additional reason for denying American Transit’s motion (see NYSCEF No. 75 at 4), American Transit’s reply does not address Acosta’s implications for this motion. Instead, the reply cites only the trial-court ruling in Acosta, without acknowledging its reversal. (See NYSCEF No. 85 at 11.) (The First Department decided Alcantara on March 17, 2022, after this motion was fully submitted.)