[*1]

Civil Court of the City of New York, Richmond County, March 22, 2022

APPEARANCES OF COUNSEL

The Law Offices of Rubin & Nazarian for defendant.

Rizzo Law Group, PLLC, P.C. for plaintiff.

The decision on defendant’s motion for summary judgment is as follows:

Plaintiff, Kolb Radiology, P.C., as assignee of Claudia Walker (hereinafter, assignor), commenced this action against the defendant, Hereford Insurance Company, to recover assigned first-party no-fault benefits for medical treatment provided to assignor in the amount of $1,791.73.

Currently before the court is defendant’s motion seeking an order pursuant to CPLR 3212 granting summary judgment and dismissing plaintiff’s complaint as premature in that there are outstanding responses to defendant’s verification requests. By way of a cross motion, plaintiff submitted opposition to defendant’s motion. Defendant filed an affirmation in further support to its motion and in opposition to plaintiff’s cross motion. The motion was argued before the undersigned February 17, 2022, and submitted for decision.

Defendant moves for summary judgment dismissing plaintiff’s complaint on the grounds that defendant established its prima facie case in that plaintiff’s claim is premature as responses are outstanding to defendant’s verification requests. Plaintiff argues that its response to defendant’s request was made on August 28, 2020, with all documents in its control or possession. Plaintiff also cross-moves for summary judgment on the grounds that it has established its prima facie entitlement to judgment.

A motion for summary judgment should be granted if “upon all the papers and proof submitted, the cause of action . . . shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any [of the] part[ies]” (CPLR 3212 [b]). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Chiara v Town of New Castle, 126 AD3d 111, 125 [2d Dept 2015], citing Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57 [1966]).{**75 Misc 3d at 325}

The issue presented in the instant motion appears to be one of first impression in Richmond County, and a relatively novel issue in the Civil Court of New York City.^[FN*] The plaintiff performed an MRI that was billed and submitted to the defendant pursuant to the no-fault insurance regulations and subject to the applicable fee schedule. The defendant received the bills and made a timely demand for verification documents, which included a copy of the MRI films. The plaintiff responded to the verification demands but did not supply the MRI films requested by the defendant. Instead, the plaintiff demanded the payment of a $5 fee, as provided in ground rule 8 of the Workers’ Compensation Fee Schedule. The defendant replied to plaintiff stating its response was incomplete and improper but did not specifically address the demand for the payment of the fee. The result was a stalemate that must now be decided by this court.

The no-fault insurance system was established to expedite medical treatment and payment for injuries arising from motor vehicle accidents. In this instance, the plaintiff provided the MRI diagnostic test to the injured party, relying upon the contractual and statutory obligation of the defendant to pay for necessary health care pursuant to the fee schedule. Similarly, the plaintiff should have provided the films requested by the defendant and then billed defendant the statutory costs of $5. Instead, the plaintiff refused to provide the MRI films until it received the $5 from defendant. That act appears to this court to be more shortsighted than productive.

Conversely, the defendant received the demand for $5 and instead of promising or making payment of the $5, the defendant responded that the plaintiff only partially complied with the verification request and demanded the full compliance. An insurer is statutorily required to pay or deny a claim within 30 calendar days after proof of claim is received (11 NYCRR 65-3.8 [a]), but the deadline may be extended if the insurer makes a timely demand for additional verification of the claim (id. § 65-3.5; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept 1999]).

What concerns the court is that the defendant’s response appears strategic, aimed at promoting further litigation and thus delaying payment, rather than responding and addressing the{**75 Misc 3d at 326} dispute that was delaying the plaintiff’s compliance with the verification request.

For guidance, the court looks to the Office of the General Counsel of the NYS Department of Financial Services (formerly the State Insurance Department) that issued an opinion on April 4, 2008 (Ops Gen Counsel NY Ins Dept No. 08-04-08 [Apr. 2008]) entitled “Reproduction Cost of a Magnetic Resonance Imaging (‘MRI’) Film Necessary to Verify a No-Fault Insurance Claim.” That opinion directs that if the original MRI films are provided to the insurance company, then there is no charge. If a copy is provided to the insurance company, then the insurance company must pay the fee schedule rate. Since there is an option of producing an original or a reproduction, logically speaking, the insurance company would have to receive the reproduced MRI films first before payment would be made.

In this instance, the defendant would have had to receive the MRI film reproductions, and once in receipt of the copies, made payment to plaintiff. While this process appears overly bureaucratic, it is the procedure directed by the fee schedule.

Since both parties acknowledge that the films were not provided, and they were requested as part of the verification request, the fact that the defendant did not pay for the films in advance is not a sufficient justification for the delay in complying with the verification request.

Therefore, the defendant’s motion is granted, and the matter is dismissed without prejudice as premature. Plaintiff’s cross motion is denied without prejudice as moot.

Footnotes

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 4, 2019. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

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

In November of 2015, plaintiff commenced this action by filing a summons and complaint seeking to recover assigned first-party no-fault benefits for medical services it had provided to defendant’s insured as a result of a car accident that occurred on December 21, 2013. Defendant denied the allegations in its answer dated December 24, 2015, and asserted affirmative defenses. By an undated notice of motion, plaintiff moved for summary judgment and, in support thereof, plaintiff submitted its counsel’s undated affirmation. Defendant cross-moved to dismiss the complaint, relying, in part, on an unsigned and undated affidavit.

By order entered October 4, 2019, the Civil Court denied plaintiff’s motion and defendant’s cross motion. The court stated that “Defendant’s [cross] motion is denied for defective notice/papers. Plaintiff’s motion is denied for defective papers.” Plaintiff appeals from so much of the order as denied its motion.

While a court may disregard procedural irregularities (see CPLR 2001), we find that the Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion “for [*2]defective papers,” particularly when the court also denied defendant’s cross motion for the same reason.

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

WESTON, J.P., and TOUSSAINT, J., concur.

GOLIA, J., dissents and votes to reverse the order, insofar as appealed from, and remit the matter to the Civil Court for a new determination of plaintiff’s motion for summary judgment in the following memorandum:

CPLR 2001 provides, in relevant part, that, “if a substantial right of a party is not prejudiced, [a] mistake, omission, defect or irregularity shall be disregarded” (see Grskovic v Holmes, 111 AD3d 234, 242-243 [2013]; see also Harrington v Brunson, 129 AD3d 1581 [2015]; Henry v Gutenplan, 197 AD2d 608 [1993]). The Civil Court failed to identify the defect in plaintiff’s motion papers or any substantial right of a party that was prejudiced thereby. The majority points out that the notice of motion was undated as was the supporting affirmation. I note, however, that there was a return date on the notice of motion, and even the omission of a return date is not necessarily prejudicial and has been held to have been properly disregarded (see Harrington v Brunson, 129 AD3d at 1581). In any event, under the circumstances presented, the matter should be remitted to the Civil Court for identification of the defect and a determination of whether any substantial right was prejudiced thereby. In the event that it is established that a substantial right of a party is not prejudiced, the defect shall be disregarded and the court should decide the motion on its merits.

Accordingly, I vote to reverse the order, insofar as appealed from, and remit the matter to the Civil Court for a new determination of plaintiff’s motion for summary judgment.

[*1]

Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about September 30, 2020, which, to the extent appealed from as limited by the brief, denied plaintiff insurer’s motion for a declaratory judgment on default, upon the first and second causes of action, against defendants Atlas PT PC, Bliss Acupuncture PC, Confident Medical Services, Harbor Medical Group, PC, M&D Elite Pharmacy LLC, MG Chiropractic PC, Red Oak Medical PC, RL Chiropractic Diagnostic PC, Seasoned Acupuncture PC (collectively, the Defaulting Medical Providers), Charles Guillaume, Jean Gedin, Orelien Huggins, John Doe, and Shenigthder Loiseau, unanimously modified, on the law, to grant the motion as to the Defaulting Medical Providers and defendant Huggins, and it is declared that plaintiff has no duty to pay these defendants’ claims arising out of an alleged October 17, 2018 automobile accident, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered April 2, 2021, which denied plaintiff’s motion to reargue, unanimously dismissed, without costs, as abandoned and as taken from a nonappealable order.

Plaintiff submitted proof of proper service pursuant to CPLR 308 (3) on the Defaulting Medical Providers and proof of proper service pursuant to CPLR 308 (1) on Huggins. Plaintiff failed to provide proof of proper service on defendants Guillaume, Gedin, and Loiseau. It provided affidavits of service on the latter three defendants pursuant to CPLR 308 (4), but, while the affidavits listed the dates and addresses of attempted service, they failed to specify the times of attempted service, as required by CPLR 306 (c).

In any event, plaintiff demonstrated that Guillaume, Gedin, and Huggins (collectively, the claimants) each breached a condition precedent to coverage by failing to appear for properly noticed Examinations Under Oath (EUOs) on two separate occasions (see Hertz Vehicles, LLC v Alluri, 171 AD3d 432, 432 [1st Dept 2019]). Documentary evidence shows that plaintiff sent the EUO scheduling letters to the claimants within 15 business days of receiving the prescribed verification forms (in this case, NF-3 forms), as required (see 11 NYCRR 65-3.5 [b]; Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617 [1st Dept 2018]). Contrary to the motion court’s calculation of the 15-day period as starting from plaintiff’s receipt of the claimants’ NYS Form NF-2s, the NYS Form NF-2 is not a “prescribed verification form[ ],” but an application for no-fault benefits (11 NYCRR 65-3.5 [b]). Plaintiff also submitted an affirmation by attorney Harlan R. Schreiber that demonstrated timely mailing of the EUO scheduling letters by describing the standard practices and procedures used by his office to ensure that such letters are properly addressed and mailed, as well as stating that he personally supervised the mailing of these particular letters (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411, 411 [1st Dept 2015]). Plaintiff further established [*2]that each claimant failed to appear for the duly scheduled EUOs by submitting the transcripts of the EUOs.

Plaintiff demonstrated that it has no duty to pay defendants’ claims in connection with the alleged accident, including the obligation to defend and indemnify Loiseau or John Doe, because it had a “founded belief” that the alleged injuries did not arise out of the subject insured accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Plaintiff did not have the benefit of discovery with respect to the claimants, but its complaint and supporting affidavits allege facts sufficient to state a viable cause of action, and, “[i]ndeed, defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71 [2003]). Plaintiff’s Claim Specialist, Danette Rodriguez submitted an affidavit stating that the policy was procured online to an Albany address 22 days before the collision, that the collision occurred late at night in Queens County, far from Albany, and that the adverse driver, Alister Brown, told the police he did not believe that the claimants were in the insured vehicle at the time of the collision. She stated further that the claimants began undergoing elaborate and mirror treatments the next day, although the police accident report showed no reported injuries at the scene and no damage to either car. Moreover, during an interview with plaintiff, the alleged driver of the insured vehicle, Oneil Pierrisaint, denied ever driving the vehicle, knowing any of the claimants, or knowing Loiseau’s name, which led plaintiff to conclude that Pierrisaint’s identity had been stolen by John Doe, the unknown driver. Finally, Evans Julce, a witness to the collision, stated in an affidavit that the insured vehicle seemed to have collided with Brown’s car intentionally. Concur—Kapnick, J.P., Mazzarelli, Friedman, Gesmer, Oing, JJ.

[*1] (March 17, 2022)

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for Metro Pain Specialists PC and Pro Edge Chiropractic PC, appellants.

Order, Supreme Court, New York County (Louis L. Nock, J.), entered on or about February 24, 2021, which granted plaintiff American Transit Insurance Company’s motion for summary judgment declaring that the insurance policy it had issued was void ab initio and that the medical provider defendants were not entitled to no-fault insurance benefits arising out of a motor vehicle accident involving defendant Ada Alcantara, unanimously reversed, on the law, without costs, the motion denied, and the matter remanded for further proceedings consistent with this decision.

Plaintiff insurer failed to establish prima facie that it was entitled to summary judgment based on the insured’s failure to appear for an independent medical examination (IME), as its motion papers did not demonstrate that it sustained its burden of showing that it complied with New York State no-fault regulations (11 NYCRR 65-3.5 [b], [d]) governing the timeframes for scheduling IMEs (see Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 618 [1st Dept 2018]; Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]). Specifically, plaintiff did not establish that it timely requested the IMEs under the applicable no-fault regulations, since plaintiff’s motion papers did not establish the dates of the verification forms that it received from the medical provider defendants; therefore, it is not possible to determine whether plaintiff sent the appropriate notices within 15 business days or 30 calendar days of receiving the forms, as required under 11 NYCRR 65-3.5 (b) and (d) (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Vance, 131 AD3d 849, 850 [1st Dept 2015]). Concur—Kapnick, J.P., Mazzarelli, Friedman, Gesmer, Oing, JJ.

Index No. 150343/2021

The Law Office of Daniel J. Tucker, Brooklyn, NY (Fotini Lambrianidis of counsel), for plaintiff.

The Tadchiev Law Firm, P.C., Fresh Meadows, NY (Simon B. Landsberg of counsel), for defendants Global Surgery Center LLC and Safe Anesthesia and Pain LLC.

This motion concerns the potential obligation to pay no-fault insurance benefits of plaintiff American Transit Insurance Company. Defendant Erika Rivera was in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by American Transit. Rivera assigned the right to collect no-fault benefits under that policy to 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 Rivera or to Rivera’s medical-provider assignees. Only Rivera and defendants Global Surgery Center LLC and Safe Anesthesia and Pain LLC answered.^[FN1]

American Transit now moves for default judgment under CPLR 3215 against the various defaulting defendants, and moves for summary judgment under CPLR 3212 against Global Surgery Center LLC and Safe Anesthesia and Pain LLC. The motion is denied.

DISCUSSION

A no-fault insurer seeking a declaration of no coverage due to asserted violations of the terms of the policy must first demonstrate that it complied with each of 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].)

Under these regulations, a no-fault insurer’s request for additional verification in the form of an independent medical examination (IME) must be made within 15 business days of receiving claimant’s verification forms. (See 11 NYCRR § 65-3.5 [b].) The IME must be held within 30 calendar days from receipt of the verification forms. (See id. § 65-3.5 [d].) If the claimant does not appear for the IME, the insurer must send a letter rescheduling the IME within 10 calendar days of the nonappearance. (See 11 NYCRR 65-3.6 [b].)

American Transit has not established that it satisfied these timeframes, as required to establish the facts constituting its claim under CPLR 3215 and to establish prima facie its entitlement to judgment as a matter of law under CPLR 3212.

American Transit has submitted on this motion Rivera’s NF-2 benefits application, dated October 29, 2019. (See NYSCEF No. 19.) American Transit has not, however, submitted any NF-3 verification forms. American Transit thus cannot establish that the first IME here was timely requested or timely scheduled under § 65-3.5. Indeed, the record as it stands casts considerable doubt on the timeliness of the IME: American Transit’s first request, sent on February 13, 2020, scheduled an IME for March 3, 2020—fully 126 calendar days after the date of the NF-2 application. (See NYSCEF No. 17 at ¶ 3; NYSCEF No. 20 at 7.)

American Transit’s papers also reflect that it did not timely reschedule the IME. The IME first scheduled in the February 13, 2020, request letter was rescheduled several times due to the COVID-19 pandemic, and ultimately postponed to June 23, 2020. Rivera did not appear for the June 23 IME date. American Transit did not, however, then reschedule the IME again within 10 days. Its papers reflect instead that it sent a follow-up letter on July 14, 2020—21 calendar days after Rivera failed to appear, not 10. (See NYSCEF No. 17 at ¶ 8; NYSCEF No. 20 at 2.)

American Transit’s motion papers suffer from additional defects. American Transit’s proof that Rivera did not appear for the June 23, 2020, IME date, or the rescheduled August 4, 2020, IME date, is a boilerplate affidavit from its IME physician.^[FN2] But that affidavit is not signed. (See NYSCEF No. 17 at 4.) Moreover, the notary’s stamp states that the notary is “Qualified in Suffolk County” while the top of the affidavit reflects that it was prepared in the “County of Nassa [sic].”^[FN3] (Id.) This document is not competent evidence of Rivera’s asserted failure to appear for IMEs.

Minor delays in requesting additional verification (or following-up on verification requests) may constitute “a technical defect excusable under 11 NYCRR 65-3.5 (p).” (Kemper Independence Ins. Co. v. Cornerstone Chiropractic, P.C., 185 AD3d 468, 469 [1st Dept 2020] [internal quotation marks omitted]). But American Transit’s outright failure to establish when it first requested an IME relative to when it received provider bills or other verification forms, coupled with the absence of a competent affidavit to establish Rivera’s failure to appear at the rescheduled IMEs, far exceeds the “nonsubstantive technical or immaterial defect or omission” that § 65-3.5 (p) excuses. (See American Transit Ins. Co. v Foster, 2019 NY Slip Op 30746[U], at *4 [Sup Ct, NY County Mar. 26, 2019] [holding substantial and repeated delays in seeking verification not excusable under § 65-3.5 [p]].)

Further, Global Surgery and Safe Anesthesia represent in opposition to summary judgment that American Transit has not yet responded to their discovery requests, rendering the summary judgment motion against them premature under CPLR 3212 (f). (See NYSCEF No. 28 at 14-16.) American Transit has not controverted that representation.

American Transit has thus failed to establish either that it is entitled to default judgment against the defaulting defendants under CPLR 3215, or that it is entitled to summary judgment against the answering defendants under CPLR 3212. It is somewhat doubtful that plaintiff can make out the necessary showings. But this court elects to afford American Transit one more opportunity to do so, rather than dismiss the action outright at this time.

Accordingly, for the foregoing reasons it is

ORDERED that the branch of American Transit’s motion under CPLR 3215 seeking default judgment against the defaulting defendants is denied; and it is further

ORDERED that the branch of American Transit’s motion under CPLR 3212 seeking summary judgment against Global Surgery and Safe Anesthesia is denied; and it is further

ORDERED that American Transit shall, within 30 days of entry of this order, respond to the discovery requests served by Global Surgery and Safe Anesthesia on September 24, 2021 [*2](see NYSCEF No. 11); and it is further

ORDERED that if American Transit does not serve a renewed motion for default judgment and for summary judgment within 60 days of entry of this order, the action will be administratively dismissed; and it is further

ORDERED that Global Surgery and Safe Anesthesia shall serve a copy of this order with notice of its entry on all parties.

Footnotes

Footnote 1:American Transit settled with Rivera and two of her treating providers. (See NYSCEF Nos. 3, 6, 8.)

Footnote 2:The affidavit appears to be a generic form document in which the names of the examining physician and the claimant, and the address of the physician’s office, are filled in using a word-processing macro or the equivalent. (See NYSCEF No. 17 at 4.) It states that on the two IME dates at issue, “Erika Rivera never checked in, never had his/her file pulled, [and] was never examined.” (Id. at 4 ¶ 6.)

Footnote 3:It is also unclear why a physician with an office in Manhattan, referred by a company with an office in Nassau County to conduct an examination on behalf of a company that is located in Brooklyn and is represented by counsel located in Brooklyn, would be executing an affidavit before a Suffolk County notary. (See generally NYSCEF Nos. 17, 20; see also NYSCEF No. 16 at 11.)

[*1]

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

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 11, 2020, which granted plaintiff’s motion for summary judgment declaring that it need not honor or pay claims from defendants Northside Acupuncture, P.C., Seo Han Medical, P.C., and Straight Up Chiropractic, P.C. in connection with a November 23, 2017 accident, reversed, on the law, without costs, and the motion denied.

The failure to appear for a properly scheduled medical examination (ME) requested by the insurer “when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the no-fault policy” and vitiates coverage ab initio (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011] [internal quotation marks, brackets, and citation omitted], lv denied 17 NY3d 705 [2011]). However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient’s failure to appear for an ME, the insurer must establish that it requested MEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear (American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841-842 [1st Dept 2015]). As defendants argued in opposition to the summary judgment motion, because it is impossible to discern from the record whether plaintiff complied with the requisite time frames requiring it to request MEs within 15 days of receiving defendants’ claims and scheduling the MEs within 30 days of receiving their claims (11 NYCRR 65-3.5 [b], [d]), plaintiff failed to establish its prima facie entitlement to summary judgment (Longevity Med. Supply, 131 AD3d at 841-842; see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]). Concur—Gische, Mazzarelli, Friedman, Mendez, JJ.

Manzanet-Daniels, J.P., concurs in a memorandum as follows: Insofar as the majority opinion is premised on our precedent in Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]), I am constrained to concur; however, I favor the reasoning of our sister departments that the failure to appear for a medical examination (ME) constitutes a breach of policy term and not a failure of condition precedent that would entitle the insurer to void the policy ab initio. The defense of failure to appear for an ME is more akin to a policy exclusion than a lack of coverage in the first instance such as where the policy had terminated prior to the accident or the injuries were not caused by the covered accident (see e.g. Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [4th Dept 2018]).

[*1]

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

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 11, 2020, in index No. 656140/18, which granted plaintiff’s motion for summary judgment declaring that it need not honor or pay any claims from defendants Burke Physical Therapy, P.C., Columbus Imaging Center, LLC, Metro Pain Specialists, P.C., and Right Aid Medical Supply Corp. in connection with a May 22, 2018 accident, unanimously reversed, on the law, without costs, and the motion denied.

Order, same court and Justice, entered on or about October 6, 2020, in index No. 656207/18, which granted plaintiff’s motion for summary judgment declaring that it need not honor or pay any claims from defendants Longevity Medical Supply, Inc., Sanford Chiropractic, P.C., and Verebrae Chiropractic Care, P.C. in connection with an accident that occurred on June 11, 2018, unanimously reversed, on the law, without costs, and the motion denied.

The failure to appear for a properly scheduled independent medical examination (IME) requested by the insurer “when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the no-fault policy” and vitiates coverage ab initio (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [internal quotations marks, brackets, and citation omitted]). However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient’s failure to appear for an IME, the insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear (American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841-842 [1st Dept 2015]). Because it is impossible to discern from the record in each case here whether plaintiff complied with the requisite time frames requiring it to request IMEs within 15 days of receiving appellants’ claims and scheduling the IMEs for within 30 days of receiving their claims (11 NYCRR 65-3.5 [b], [d]), plaintiff failed to establish its prima facie entitlement to summary judgment (Longevity Med. Supply, 131 AD3d at 841-842; see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]). Concur—Kern, J.P., Oing, Singh, Moulton, González, JJ.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Darya Klein 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 September 11, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, it is undisputed that the vehicle in question was insured by defendant under a Pennsylvania automobile insurance policy and that defendant received notice of plaintiff’s claim more than 30 days after the accident. Defendant moved for summary judgment dismissing the complaint, asserting that Pennsylvania substantive law applied, and arguing that, under Pennsylvania law, it was entitled to dismissal of the complaint because it had not received timely notice of either the accident or the claim for insurance benefits, and plaintiff had failed to demonstrate good cause for the lateness of the notice it had provided. In support of its motion, defendant submitted, among other things, a portion of its insured’s automobile insurance policy, which provided, in part: “We must be notified within 30 days, or as soon as practicable, of how, when and where the accident or loss happened.”

Plaintiff opposed the motion in part on the ground that it was untimely because it had been made more than 120 days after a notice of trial had been served. With respect to the substantive portion of the motion, plaintiff agreed that Pennsylvania law controlled, but argued that questions of fact as to whether plaintiff had given notice of the accident or loss as soon as practicable precluded summary judgment, and, in addition, that the governing policy did not require plaintiff or plaintiff’s assignor to provide a reasonable justification for its late notice. The Civil Court deemed the motion to have been timely made, but denied it on the ground that there existed a triable issue of fact as to whether defendant had been notified of the claim as soon as practicable.

We note that the record is devoid of any showing that a notice of trial, the Civil Court equivalent to a note of issue, was filed with the clerk of the Civil Court more than 120 days prior to the time when defendant made its summary judgment motion. Consequently, the motion was not shown to be untimely (see CPLR 3212 [a]).

It is undisputed that Pennsylvania law controls with respect to the substance of this controversy (see T & S Med. Supply Corp. v Ocean Harbor Cas. Ins. Co., 59 Misc 3d 142[A], 2018 NY Slip Op 50665[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; see also Jimenez v Monadnock Constr., Inc., 109 AD3d 514, 516 [2013]). Pennsylvania insurance policies, such as the one at issue in this matter, pursuant to which an insured is required to provide the insurer with notice “as soon as practicable,” are governed by a “notice-prejudice” rule (see Lozado v Workers’ Compensation Appeal Board [Dependable Concrete Work and Uninsured Employers Guaranty Fund], 123 A3d 365, 378 [Pa Commw 2015]). Under the notice-prejudice rule, “unless the insurer establishes prejudice resulting from the insured’s failure to give notice as required under the policy, the insurer cannot avoid its contractual obligation” (Ario v Underwriting Members of Lloyd’s of London Syndicates, 996 A2d 588, 598 [Pa Commw 2010]; see Brakeman v Potomac Ins. Co., 472 Pa 66, 76-77, 371 A2d 193, 198 [1977]). The Civil Court correctly concluded that there was an unresolved issue of fact as to whether defendant had been given notice of the accident or loss as soon as practicable. In any event, as defendant’s motion papers failed to establish that it had been prejudiced by reason of the lateness of the notice it received, the Civil Court properly denied defendant’s motion.

Accordingly, the order is affirmed.

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

Decided on January 21, 2022

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

Decided on January 10, 2022

Supreme Court, New York County