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.

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 $1,949.69 in unpaid medical bills for services rendered to claimant, Damally Caine, on the grounds that plaintiff failed to submit a No-Fault Application to defendant. Defendant contends that claimant failed to timely submit a No-Fault Application within thirty (30) days of the alleged accident and therefore is not an eligible injured person for coverage. In support of its motion, defendant annexes, inter alia, an opinion letter from the Insurance Department; case precedent; and an affidavit authored by Stephanie Scarfino, No-Fault Claim Representative for defendant, wherein she attests that defendant mailed plaintiff a request for a complete No-Fault Application and to date has not received one.

Plaintiff opposes the motion and contends that defendant has failed to establish entitlement to a summary determination. Specifically, plaintiff argues that defendant is precluded from asserting a thirty-day rule defense insofar as it has not issued a denial of plaintiff’s claim.

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 made a prima facie showing of entitlement to a summary determination which plaintiff has failed to refute.

The court finds that defendant’s assertion that the failure to submit a properly completed No-Fault Application precludes coverage meritorious. However, plaintiff correctly notes that a defense grounded in the thirty-day written notice of claim requirement pursuant to 11 NYCRR 65-2.4(b) is subject to preclusion if defendant fails to issue a timely denial (Compas Med., P.C. v ELRAC, Inc., 53 Misc 3d 138(A) [App Term 2016]). Here, both parties misinterpret the relevant sections of the No-Fault statute.

As an initial matter, it is well settled that 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).

11 NYCRR 65-2.4 establishes two broad categories of conditions precedent to coverage, notice of claim and proof of claim. The parties’ contentions seemingly stem from an interpretation that the provider’s submission of a completed No-Fault Application (hereinafter “NF-2″) solely constitutes written notice of claim. The court acknowledges that this interpretation has merit insofar as, pursuant to 11 NYCRR 65-3.3[d],”[t]he written notice required by section 65-2.4 of this Part and the mandatory and additional personal injury protection endorsement(s) shall be deemed to be satisfied by the insurer’s receipt of a completed prescribed application for motor vehicle no-fault benefits (NYS form N-F 2) forwarded to the applicant pursuant to section 65-3.4(b).” However, this court finds that although the statute allows for the submission of a completed NF-2 to satisfy the written notice of claim condition [*2]precedent, said submission is more appropriately interpreted as primarily satisfying the proof of claim condition precedent.

A review of the statute’s structure reveals the proper order of the steps involved in the processing of a No-Fault claim.

11 NYCRR 65-3.3 provides further detail of the requirements for insurers to be provided notice of the claim pursuant to § 2.4. Subsequently, § 3.4 mandates that insurers demonstrate to providers an acknowledgment of the claim once they are noticed. Thereafter, § 3.5 details the information and/or compliance insurers are entitled to request and receive for the purposes of verifying the claim. This structure of notice, acknowledgement, and then verification is consistent with the two conditions precedent established by § 2.4, notice and proof.

Pursuant to § 3.4(b), insurers are required to forward to providers a request for a completed NF-2 after they receive notice of the claim, “unless the insurer will pay the claim as submitted within 30 calendar days, then, within five business days after notice is received the insurer shall forward to the applicant the prescribed application for motor vehicle no-fault benefits” (11 NYCRR 65-3.4[b]).

Subsequently, pursuant to §3.5(a) it is the insurer’s receipt of the completed NF-2 that begins the verification process, “Within 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS form NF-2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim.

Although the statute here once again equates the submission of a completed NF-2 with written notice, as it does in § 3.3(d), it more unequivocally associates same with proof of claim in § 3.5(f) where it states that “[a]n insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form. An insurer, however, may require the submission of the prescribed application for motor vehicle no-fault benefits” (11 NYCRR 65-3.5[f]).

11 NYCRR 65-2.4(c) identifies, explicitly, several forms of proof of claim that may be required by an insurer. This includes written proof of claim under oath; Examinations Under Oath (EUOs); and Independent Medical Examinations (IMEs). It is this Court’s opinion that a completed NF-2 primarily constitutes written proof of claim under oath. Same comports with the statutes allowance of the submission of a completed NF-2 to satisfy the written notice requirement. As stated earlier, where an insurer is provided notice of claim in some other fashion, it is required to acknowledge the claim by forwarding an NF-2 for completion and is entitled to require its submission for verification. Insofar as the submission of an NF-2 is a required step to begin the verification process, it is reasonable for same to constitute sufficient notice of claim and expedite the overall process as it already intrinsically eliminates the need for the acknowledgement step.

As the submission of a completed NF-2 primarily constitutes written proof of claim under oath, rather than notice, the thirty-day rule under 11 NYCRR 65-2.4(b) does not apply. The court may have been inclined to find that the forty-five (45) day rule for proof of claim under 11 NYCRR 65-2.4(d) was applicable, however, case precedent regarding the other forms of proof of claim that are explicitly recognized by § 2.4(d) dictates otherwise.

As previously stated, § 2.4(d) explicitly names written proof of claim under oath, EUOs and IMEs. It is well settled that when the latter two are requested by an insurer and the provider fails to comply, under certain conditions, said failure to comply is considered a breach of a [*3]condition precedent precluding coverage (see Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468 [2016]); see also Unitrin Advantage Ins. Co. v Advanced Orthopedics & Joint Preserv. P.C., 2018 NY Slip Op 33296[U], *9 [Sup Ct, NY County 2018], citing Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3D 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Therefore, this Court finds that the submission of a completed NF-2, just as the other explicitly named proofs of claim in 11 NYCRR 65-2.4(d), constitutes a condition precedent to coverage. Thus, failure to submit a completed NF-2 constitutes a breach of condition precedent, precluding coverage.

In the instant case, Stephanie Scarfino, No-Fault Claim Representative for defendant, avers in her affidavit that requests for a properly executed No-Fault application were mailed to plaintiff on June 24, 2022, July 25, 2022, and September 20, 2022, pursuant to defendant’s standard mailing procedures. This Court finds that the procedures described in said affidavit sufficiently ensure the likelihood that IME notices are properly addressed and mailed. Therefore, this Court must presume that the IME notices at issue in this matter were duly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]).

Furthermore, Scarfino avers, pursuant to her review of defendant’s electronic records in compliance with defendant’s standard office practice, that, to date, defendant has not received a properly executed No-Fault application from plaintiff. As such, defendant establishes their non-receipt of the documents necessary to determine coverage (Nationwide Ins. Co. v Dye, 170 AD2d 683 [2d Dept 1991]).

Therefore, defendant has established through its annexed exhibits that plaintiff failed to comply with a condition precedent to coverage and plaintiff’s opposition fails to raise an issue of fact. Thus, defendant’s motion for summary judgment is granted.

All remaining arguments have been considered and are either without merit or need not be addressed given the findings above. Accordingly, it is hereby

ORDERED that, defendant, Kemper Independence Insurance Company’s motion for summary judgment is granted, and the complaint is dismissed in its entirety as against said defendant; and it is further

ORDERED that, the clerk is hereby directed to enter judgment accordingly.

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 $1,949.69 in unpaid medical bills for services rendered to claimant, Damally Caine, on the grounds that plaintiff failed to submit a No-Fault Application to defendant. Defendant contends that claimant failed to timely submit a No-Fault Application within thirty (30) days of the alleged accident and therefore is not an eligible injured person for coverage. In support of its motion, defendant annexes, inter alia, an opinion letter from the Insurance Department; case precedent; and an affidavit authored by Stephanie Scarfino, No-Fault Claim Representative for defendant, wherein she attests that defendant mailed plaintiff a request for a complete No-Fault Application and to date has not received one.

Plaintiff opposes the motion and contends that defendant has failed to establish entitlement to a summary determination. Specifically, plaintiff argues that defendant is precluded from asserting a thirty-day rule defense insofar as it has not issued a denial of plaintiff’s claim.

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 made a prima facie showing of entitlement to a summary determination which plaintiff has failed to refute.

The court finds that defendant’s assertion that the failure to submit a properly completed No-Fault Application precludes coverage meritorious. However, plaintiff correctly notes that a defense grounded in the thirty-day written notice of claim requirement pursuant to 11 NYCRR 65-2.4(b) is subject to preclusion if defendant fails to issue a timely denial (Compas Med., P.C. v ELRAC, Inc., 53 Misc 3d 138(A) [App Term 2016]). Here, both parties misinterpret the relevant sections of the No-Fault statute.

As an initial matter, it is well settled that 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).

11 NYCRR 65-2.4 establishes two broad categories of conditions precedent to coverage, notice of claim and proof of claim. The parties’ contentions seemingly stem from an interpretation that the provider’s submission of a completed No-Fault Application (hereinafter “NF-2″) solely constitutes written notice of claim. The court acknowledges that this interpretation has merit insofar as, pursuant to 11 NYCRR 65-3.3[d],”[t]he written notice required by section 65-2.4 of this Part and the mandatory and additional personal injury protection endorsement(s) shall be deemed to be satisfied by the insurer’s receipt of a completed prescribed application for motor vehicle no-fault benefits (NYS form N-F 2) forwarded to the applicant pursuant to section 65-3.4(b).” However, this court finds that although the statute allows for the submission of a completed NF-2 to satisfy the written notice of claim condition [*2]precedent, said submission is more appropriately interpreted as primarily satisfying the proof of claim condition precedent.

A review of the statute’s structure reveals the proper order of the steps involved in the processing of a No-Fault claim.

11 NYCRR 65-3.3 provides further detail of the requirements for insurers to be provided notice of the claim pursuant to § 2.4. Subsequently, § 3.4 mandates that insurers demonstrate to providers an acknowledgment of the claim once they are noticed. Thereafter, § 3.5 details the information and/or compliance insurers are entitled to request and receive for the purposes of verifying the claim. This structure of notice, acknowledgement, and then verification is consistent with the two conditions precedent established by § 2.4, notice and proof.

Pursuant to § 3.4(b), insurers are required to forward to providers a request for a completed NF-2 after they receive notice of the claim, “unless the insurer will pay the claim as submitted within 30 calendar days, then, within five business days after notice is received the insurer shall forward to the applicant the prescribed application for motor vehicle no-fault benefits” (11 NYCRR 65-3.4[b]).

Subsequently, pursuant to §3.5(a) it is the insurer’s receipt of the completed NF-2 that begins the verification process, “Within 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS form NF-2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim.

Although the statute here once again equates the submission of a completed NF-2 with written notice, as it does in § 3.3(d), it more unequivocally associates same with proof of claim in § 3.5(f) where it states that “[a]n insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form. An insurer, however, may require the submission of the prescribed application for motor vehicle no-fault benefits” (11 NYCRR 65-3.5[f]).

11 NYCRR 65-2.4(c) identifies, explicitly, several forms of proof of claim that may be required by an insurer. This includes written proof of claim under oath; Examinations Under Oath (EUOs); and Independent Medical Examinations (IMEs). It is this Court’s opinion that a completed NF-2 primarily constitutes written proof of claim under oath. Same comports with the statutes allowance of the submission of a completed NF-2 to satisfy the written notice requirement. As stated earlier, where an insurer is provided notice of claim in some other fashion, it is required to acknowledge the claim by forwarding an NF-2 for completion and is entitled to require its submission for verification. Insofar as the submission of an NF-2 is a required step to begin the verification process, it is reasonable for same to constitute sufficient notice of claim and expedite the overall process as it already intrinsically eliminates the need for the acknowledgement step.

As the submission of a completed NF-2 primarily constitutes written proof of claim under oath, rather than notice, the thirty-day rule under 11 NYCRR 65-2.4(b) does not apply. The court may have been inclined to find that the forty-five (45) day rule for proof of claim under 11 NYCRR 65-2.4(d) was applicable, however, case precedent regarding the other forms of proof of claim that are explicitly recognized by § 2.4(d) dictates otherwise.

As previously stated, § 2.4(d) explicitly names written proof of claim under oath, EUOs and IMEs. It is well settled that when the latter two are requested by an insurer and the provider fails to comply, under certain conditions, said failure to comply is considered a breach of a [*3]condition precedent precluding coverage (see Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468 [2016]); see also Unitrin Advantage Ins. Co. v Advanced Orthopedics & Joint Preserv. P.C., 2018 NY Slip Op 33296[U], *9 [Sup Ct, NY County 2018], citing Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3D 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Therefore, this Court finds that the submission of a completed NF-2, just as the other explicitly named proofs of claim in 11 NYCRR 65-2.4(d), constitutes a condition precedent to coverage. Thus, failure to submit a completed NF-2 constitutes a breach of condition precedent, precluding coverage.

In the instant case, Stephanie Scarfino, No-Fault Claim Representative for defendant, avers in her affidavit that requests for a properly executed No-Fault application were mailed to plaintiff on June 24, 2022, July 25, 2022, and September 20, 2022, pursuant to defendant’s standard mailing procedures. This Court finds that the procedures described in said affidavit sufficiently ensure the likelihood that IME notices are properly addressed and mailed. Therefore, this Court must presume that the IME notices at issue in this matter were duly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]).

Furthermore, Scarfino avers, pursuant to her review of defendant’s electronic records in compliance with defendant’s standard office practice, that, to date, defendant has not received a properly executed No-Fault application from plaintiff. As such, defendant establishes their non-receipt of the documents necessary to determine coverage (Nationwide Ins. Co. v Dye, 170 AD2d 683 [2d Dept 1991]).

Therefore, defendant has established through its annexed exhibits that plaintiff failed to comply with a condition precedent to coverage and plaintiff’s opposition fails to raise an issue of fact. Thus, defendant’s motion for summary judgment is granted.

All remaining arguments have been considered and are either without merit or need not be addressed given the findings above. Accordingly, it is hereby

ORDERED that, defendant, Kemper Independence Insurance Company’s motion for summary judgment is granted, and the complaint is dismissed in its entirety as against said defendant; and it is further

ORDERED that, the clerk is hereby directed to enter judgment accordingly.

This constitutes the decision and order of the Court.

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang 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 26, 2023. The order granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default 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 (Sandra E. Roper, J.), dated September 26, 2023, which granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default judgment.

Contrary to plaintiff’s sole contention on appeal, it was not improper for the Civil Court to rely upon the argument, made by defendant for the first time in its reply to its cross-motion, that the claim determination period had not been tolled by requests for verification, as it was made in response to new evidence submitted by plaintiff. Specifically, in its opposition to defendant’s cross-motion, plaintiff sought to demonstrate that its cause of action accrued later than the date relied upon by defendant by submitting an affidavit of its owner alleging, upon information and belief, that defendant had requested additional verification and that plaintiff had supplied the requested verification. This affidavit conflicted with documents that were submitted by plaintiff with its moving papers: the complaint and an earlier affidavit of plaintiff’s owner. As defendant’s arguments in its reply papers, regarding the alleged additional verification and, thus, the accrual date, were in response to the new evidence submitted by plaintiff in its opposition papers, the Civil Court properly considered defendant’s arguments (see Gelaj v Gelaj, 164 AD3d 878, 879 [2018]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207 [2009]; Anderson v Beth Israel Med. Ctr., 31 AD3d 284, 287 [2006]; Davison v Order Ecumenical, 281 AD2d 383, [*2]383 [2001]). Consequently, plaintiff has not demonstrated any basis to disturb the order.

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang 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 26, 2023. The order granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default 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 (Sandra E. Roper, J.), dated September 26, 2023, which granted defendant’s cross-motion to dismiss the complaint on the ground that the action was barred by the statute of limitations and denied, as moot, plaintiff’s motion for the entry of a default judgment.

Contrary to plaintiff’s sole contention on appeal, it was not improper for the Civil Court to rely upon the argument, made by defendant for the first time in its reply to its cross-motion, that the claim determination period had not been tolled by requests for verification, as it was made in response to new evidence submitted by plaintiff. Specifically, in its opposition to defendant’s cross-motion, plaintiff sought to demonstrate that its cause of action accrued later than the date relied upon by defendant by submitting an affidavit of its owner alleging, upon information and belief, that defendant had requested additional verification and that plaintiff had supplied the requested verification. This affidavit conflicted with documents that were submitted by plaintiff with its moving papers: the complaint and an earlier affidavit of plaintiff’s owner. As defendant’s arguments in its reply papers, regarding the alleged additional verification and, thus, the accrual date, were in response to the new evidence submitted by plaintiff in its opposition papers, the Civil Court properly considered defendant’s arguments (see Gelaj v Gelaj, 164 AD3d 878, 879 [2018]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207 [2009]; Anderson v Beth Israel Med. Ctr., 31 AD3d 284, 287 [2006]; Davison v Order Ecumenical, 281 AD2d 383, [*2]383 [2001]). Consequently, plaintiff has not demonstrated any basis to disturb the order.

Accordingly, the order is affirmed.

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

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated October 11, 2022. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court (Keisha M. Alleyne, J.) dated October 11, 2022 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

As the Civil Court observed, although plaintiff’s owner appeared at an EUO scheduled to be held on April 10, 2018, plaintiff’s counsel refused to permit plaintiff’s owner to answer any questions regarding the claim at issue and plaintiff’s counsel stated that defendant should “consider it a no show” (see Country-Wide Ins. Co. v Gotham Med., P.C., 154 AD3d 608 [2017] [appearing at an EUO and refusing to answer questions is a failure to comply with the request for an EUO]). Defendant subsequently timely scheduled four additional EUOs, the last of which was scheduled for September 6, 2018. Although plaintiff’s owner appeared on that date, he left before the EUO could begin. As a result, the Civil Court correctly held that defendant’s denial of claim on September 12, 2018, on the ground that plaintiff had failed to appear for duly scheduled EUOs, had been timely (see Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013 [2023]). Contrary to plaintiff’s contention, Quality Health Supply Corp. stands for the proposition that an insurer may choose to timely schedule more than two EUOs and a denial of the claim will be timely as long as it was issued in a timely manner after the last scheduled EUO.

Furthermore, defendant was not required to set forth objective reasons for requesting [*2]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” (Quality Health Supply Corp., 216 AD3d at 1014; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co., 82 Misc 3d 128[A], 2024 NY Slip Op 50395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).

Plaintiff’s remaining contentions lack merit.

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

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

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated October 11, 2022. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court (Keisha M. Alleyne, J.) dated October 11, 2022 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

As the Civil Court observed, although plaintiff’s owner appeared at an EUO scheduled to be held on April 10, 2018, plaintiff’s counsel refused to permit plaintiff’s owner to answer any questions regarding the claim at issue and plaintiff’s counsel stated that defendant should “consider it a no show” (see Country-Wide Ins. Co. v Gotham Med., P.C., 154 AD3d 608 [2017] [appearing at an EUO and refusing to answer questions is a failure to comply with the request for an EUO]). Defendant subsequently timely scheduled four additional EUOs, the last of which was scheduled for September 6, 2018. Although plaintiff’s owner appeared on that date, he left before the EUO could begin. As a result, the Civil Court correctly held that defendant’s denial of claim on September 12, 2018, on the ground that plaintiff had failed to appear for duly scheduled EUOs, had been timely (see Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013 [2023]). Contrary to plaintiff’s contention, Quality Health Supply Corp. stands for the proposition that an insurer may choose to timely schedule more than two EUOs and a denial of the claim will be timely as long as it was issued in a timely manner after the last scheduled EUO.

Furthermore, defendant was not required to set forth objective reasons for requesting [*2]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” (Quality Health Supply Corp., 216 AD3d at 1014; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co., 82 Misc 3d 128[A], 2024 NY Slip Op 50395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).

Plaintiff’s remaining contentions lack merit.

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

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

The above captioned actions having come on for trial before this Court and the parties having stipulated to the consolidation of these matters for joint trial, the Court conducted a trial on September 16, 2024 and reserved decision.

The Plaintiffs in these actions seek to recover first party no-fault benefits pursuant to NY [*2]Insurance Law §§ 5102 & 5108 and the regulations promulgated thereunder. The subject of each suit is for the interventional pain management services that were performed on patient/assignors, specifically trigger point injections in which radiologic assistance was used to locate the site where ultimately an injection was made. Each unit of ultrasound guidance was billed individually. In each case the Defendant/carrier paid for the ultrasound guidance for one unit and denied the remaining units.

As stipulated by the parties, Plaintiffs timely submitted bills for multiple units of radiology in support of trigger point injections to multiple muscle groups (CPT 20553) and all of the submitted bills were timely denied by Defendant. It was further stipulated that the ad damnum clauses in both actions were amended to $5,205.60 (Re: Index CV-1912-23/HU ) and $2,776.32 (Re: Index CV-6944-23/HU).

The sole defense presented by the Defendant and the sole issue before this Court is whether Plaintiffs are entitled to reimbursement of multiple units of radiology (CPT 76942) in support of the aforesaid trigger point injections.

The Defendant argues only one unit is reimbursable and presented evidence in support of its defense via expert witness testimony, Jeffrey Futoran, CPC. Defendant’s expert witness testified that based upon coding opinions published by the American Medical Association (hereinafter referred to as AMA) including the AMA CPT Assistant and the AMA Knowledge Base it was his opinion that only one unit of CPT Code 76942 may be reported in conjunction with trigger point injections under CPT Code 20553.

The Plaintiff argues multiple units are reimbursable and presented an expert witness Jacqueline Thelian, CPC, CPCT, who testified that the New York State Workers’ Compensation Medical Fee Schedule provides specific allowances and guidance with respect to billing, coding and for reimbursement of multiple units of CPT Code 76942. As such, Plaintiff argues the New York State Workers’ Compensation Medical Fee Schedule is instructive and no further extrinsic material is necessary.

The official New York State Workers’ Compensation Medical Fee Schedule, (hereinafter referred to as the “Fee Schedule”) prepared and established by the Workers’ Compensation Board “is designed to be an accurate and authoritative source of information about medical coding and reimbursement” (see Fee Schedule Optum 360 Notice). The instructions and guidelines explains that ” a primary purpose of the schedule is to provide a precise description and coding of the services provided by New York State Physicians in the care of Workers’ Compensation covered patients and to ensure the proper payment for such services by assuring that they are specifically identifiable” (see Fee Schedule Introduction and General Guidelines). Thus based on the plain language set forth, the Fee Schedule is the primary source for the applicability and interpretation of fee codes.

The Fee Schedule consists of (8) eight sections enumerating specific instructions. In the case at bar, the relevant sections are Surgery (Section 4) and Radiology (Section 5).The section pertaining to Surgery refers to the Medical Fee Schedule Code 20553 described as “injection(s); single or multiple trigger point(s), 3 or more muscles” and provides the relative value (see p 81). The Radiology section refers to Code 76942 described as “ultrasonic guidance for needle placement (eg. biopsy, aspiration, injection, localization device) imaging suspension and interpretation.” The Radiology Schedule also provides instructions for determining the fee for a [*3]procedure that is, “multiplying the relative value by the radiology conversion factor subject to ground rules, instructions and definitions”.

Additionally, multiple procedures are addressed under the General Ground rules wherein multiple procedures rendered on the same day are to be separate entries. The procedure and rate of reimbursement for multiple diagnostic procedures are set forth under Radiology Ground Rule Three which reads “For three or more parts, whether contiguous or remote, the charge shall be the greater fee, plus 75% of the total of the lesser fees”. Thus specifically allowing for multiple reimbursements of Code 76942.

The Defendant argues that the inquiry should go beyond the Fee Schedule to other sources and relies upon the Court’s finding in Global Liberty v. McMahon, 172 AD3d 500. The Appellate Division in Global Liberty found it was “reversible error to preclude extrinsic evidence such as CPT Manuel, CPT Assist and Knowledge Base Inquiry ” and such authorities must be considered by the Court.

However, based upon the purpose and language specifically expressed in the Fee Schedule itself, that being the primary source, the extrinsic authority does not supercedes the rules and regulations in the Fee Schedule.

In further support of this view, the introduction and guidelines specifically instruct one to “refer to the CPT book for an explanation of coding rules and regulations not billed in the schedule.” Such is not the case herein.

It is this Court’s opinion that one does not need to look beyond the Fee Schedule itself which presents guidelines allowing for multiple billing and Radiology Ground Rule Three which allows for multiple reimbursement.

Based upon the testimony and evidence presented the Court finds that multiple units of CPT Code 76942 on same day and same place were properly billed and can be reimbursed pursuant to the New York State Workers’ Compensation Fee Schedule when in conjunction with pain management trigger shots (20553). Accordingly, the Court finds for the Plaintiffs and awards judgment in the amounts as stipulated by the parties.