Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt and Jamin Koo of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered September 19, 2019. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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 moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment. By order entered September 19, 2019, the Civil Court denied defendant’s motion and plaintiff’s cross motion, and limited the issues for trial, in effect pursuant to CPLR 3212 (g), to whether plaintiff’s assignor failed to appear for duly scheduled independent medical examinations (IMEs), and whether the amounts sought by plaintiff exceeded the amounts permitted by the workers’ compensation fee schedule. As limited by the brief, defendant appeals from so much of the order as denied defendant’s motion.

An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Contrary to the determination of the Civil Court, defendant demonstrated that, before it [*2]received the claims at issue, it had properly scheduled IMEs of plaintiff’s assignor, and that the assignor failed to appear for those duly scheduled IMEs (see id.; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion or challenge the implicit CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint. In view of the foregoing, we reach no other issue.

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

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

Law Offices of Tina Newsome-Lee (Michael L. Rappaport of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova of counsel), for respondent.

Appeal from a decision and order (one paper) of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered March 12, 2020. The decision and order awarded plaintiff the sum of $164.01.

ORDERED that the appeal is dismissed.

In this action to recover assigned first-party no-fault benefits, the Civil Court (Odessa Kennedy, J.), by order dated November 16, 2017, directed, “The sole issue for trial is for [defendant] to establish its fee schedule defense.” In lieu of a trial, the parties submitted memoranda, and no testimony was taken. Defendant appeals from a “decision and order” of the Civil Court (Carolyn Walker-Diallo, J.), which was entered on March 12, 2020 and awarded plaintiff the sum of $164.01. No judgment has been entered.

To the extent that the March 12, 2020 “decision and order” constitutes an “order,” in that it appears that the parties requested a “Decision ordering” relief, the paper is not appealable as of right because it did not decide a motion made upon notice (see CCA 1702 [a] [2]; CPLR 2211; Mautner-Glick Corp. v Tunne, 38 Misc 3d 126[A], 2012 NY Slip Op 52320[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; New Century Osteopathic v State Farm Fire & Cas. Ins. Co., 22 Misc 3d 126[A], 2008 NY Slip Op 52584[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]), and we decline to grant leave to appeal. To the extent that the March 12, 2020 “decision and order” constitutes a decision, no appeal lies from a decision (see Schicchi v J.A. [*2]Green Constr. Corp., 100 AD2d 509 [1984]; AR Med. Rehabilitation, P.C. v MVAIC, 65 Misc 3d 138[A], 2019 NY Slip Op 51683[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the appeal is dismissed.

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

Index No. CV-3161-20/SM
James F. Matthews, J.

Upon the following papers numbered 1 to 16 read on this motion by defendant for summary judgment of dismissal by Notice of Motion/ Order to Show Cause and supporting papers 1,2,9 ; Notice of Cross Motion and supporting papers 10,11 ; Answering Affidavits and supporting papers 10,11 ; Replying Affidavits and supporting papers 15,16 ; Filed papers; Other exhibits: 3-8,12-14 ;(and after hearing counsel in support of and opposed to the motion), it is

ORDERED that the motion by defendant for summary judgment dismissing plaintiff’s complaint, is denied, and plaintiff’s cross-motion for summary judgment in the total sum of $6,947.81, is denied.

In this action by a medical provider to recover assigned first-party no-fault benefits for medical services rendered, consisting of ten (10) bills totaling $6,947.81, defendant insurer moves for summary judgment dismissing the complaint based upon assignor’s failure to appear for orthopedic independent medical examinations (“IME’s”) on 08/14/2019, and then on 09/14/2019, not satisfying a condition precedent of its insurance policy (see 11 NYCRR 65-1.1), which defendant raised as a ninth affirmative defense in its amended verified Answer, thereby vitiating insurer’s liability (see Stephan Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2nd Dept 2006]). Defendant asserts it denied each of the 10 claims premised on a breach of condition to coverage, which voided the policy ab-initio, resulting in no coverage to the no-fault claims retroactively dated to the date of the automobile accident of 04/25/2019 (see Unitron Advantage Ins. Co. v Bay Shore Physical Therapy, PLLC., 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

In opposition to the motion, plaintiff argues defendant failed to properly and timely schedule the orthopedic IME’s pursuant to 11 NYCRR 65-3.5(d), which requires that a scheduled IME as additional verification of a claim, be scheduled to be held within 30 calendar days from the date of receipt of prescribed verification forms or claims (see W.H.O. Acupuncture , P.C. v Travelers Home & Marine Ins. Co., 36 Misc 3d 152[A][2nd Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff contends that defendant concedes (and admits) it received the first claim on 05/31/2019 as noted on defendant’s NF-10 Denial of Claim form, and should have scheduled its orthopedic IME within the next 30 days from 05/31/2019, or within 06/30/2019. However, defendant’s scheduling letter for its orthopedic IME was dated 07/30/2019, with its first IME date set for 08/14/2019, which was untimely and improper.

Plaintiff also contends that defendant concedes (and admits) it received the second claim on 06/17/2019 as noted on defendant’s NF-10 Denial of Claim form, and should have scheduled its orthopedic IME within the next 30 days from 06/17/2019, or within 07/17/2019. However, defendant’s scheduling letter for its orthopedic IME was dated 07/30/2019, with its first IME date set for 08/14/2019, which was untimely and improper.

Plaintiff further contends that defendant concedes (and admits) it received the third claim on 07/03/2019 as noted on defendant’s NF-10 Denial of Claim form, and should have scheduled its orthopedic IME within the next 30 days from 07/03/2019, or within 08/02/2019. However, defendant’s scheduling letter for its orthopedic IME was dated 07/30/2019, with its first IME date set for 08/14/2019, which was untimely and improper.

Plaintiff also cross-moves for summary judgment in the sum of $6,947.81, asserting it timely submitted the 10 NF-3 Notice of Claim forms to defendant for this total, and payment is overdue. Plaintiff contends that defendant’s NF-10 Denial of Claim forms for each of the 10 submitted claims, is prima facie proof of plaintiff’s timely submission and defendant’s receipt of each claim and that payment is overdue.

In opposition to plaintiff’s cross-motion, defendant denies plaintiff’s arguments in support, and raises the doctrine of res judicata as a defense to plaintiff’s contentions, citing 2 civil decisions from the City of New York, a copy of each of which was provided by defendant to the Court:

1) LONGEVITY MEDICAL SUPPLY, INC., a/a/o MARISOL TORRES v NY CENTRAL MUT. FIRE INS., Index No. 713404/20 (Civ Court, City of New York, Queens Cty, dated 6/9/2021 (Greenburg, J.), and

2) NORTH QUEENS SURGICAL CENTER, a/a/o MARISOL TORRES v NY CENTRAL MUT. FIRE INS., Index No. 715694/20 (Civ Court, City of New York, Queens Cty, dated 6/6/2021 (Lanzetta, J.).

Defendant argues that both decisions demonstrate that assignor Marisol Torres’ failure to appear at duly scheduled IME’s were the grounds for dismissal, with prejudice, and since plaintiff’s assignor herein is the same Marisol Torres as in the two cited cases, the instant cross-motion by plaintiff should be denied under the doctrine of res judicata, accordingly.

In addition, defendant replies in further support of its motion for summary judgment, that it is entitled to dismissal on the grounds it timely denied reimbursements for plaintiff’s bills, based upon the failure of plaintiff’s assignor to appear at duly scheduled IME’s, thereby failing to satisfy a condition precedent to the insurer’s liability under the no-fault policy, which voided the policy ab-initio, resulting in no coverage for the no-fault claims, retroactively dated to the automobile accident date of 04/25/2019.

Here, the Court finds that although defendant established that the notices of the scheduled orthopedic IME’s were properly mailed in accordance with defendant’s standard office practice and procedures (see St. Vincent’s Hosp. of Richmond v GEICO, 50 AD3d 1123 [2nd Dept 2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d,11th & 13th Jud Dists 2007), and that plaintiff’s assignor failed to appear at each of the IME’s (see [*2]Stephen Fogel Psychological , P.C. v Progressive Cas. Ins. Co., 35 AD3d 720,721 [2nd Dept 2006]; Utopia Equipment, Inc. v ELRAC, Inc.,56 Misc 3d 134[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2017]), defendant failed to demonstrate that the scheduling of the orthopedic IME’s complied with Regulation 11 NYCRR §65-3.5[d], which prescribes a statutory 30-calendar-day time frame for the timely holding of IME’s, from the date of receipt of the verification forms or claims (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]), or that the 30-day period was tolled by a proper verification request (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2nd Dept 2005]; 11 NYCRR 65-3.5).

Therefore, the Court finds that defendant has failed to demonstrate a prima facie entitlement for summary judgment (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557,562 [1980]), in that defendant failed to timely schedule its first orthopedic IME for each of the first submitted three claims, pursuant to 11 NYCRR 65-3.5(d), which requires that a scheduled IME as additional verification of a claim, be scheduled to be held within 30 calendar days from the date of receipt of the claims ^[FN1] (see Irina Acupuncture, P.C. v Nationwide Affinity Ins. Co., 57 Misc 3d 146[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2017]; W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co., supra at *2; see also O & M Medical, P.C. v Travelers Indem. Co., 47 Misc 3d 134[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2015]).

Defendant’s own NF-10 Denial of Claim form dated 10/21/2019, admits the first claim was received from plaintiff on 05/31/2019, requiring a scheduled IME by 06/30/2019. However, defendant’s scheduling letter for its first orthopedic IME for this claim was dated 07/30/2019, with its first orthopedic IME date set for 08/14/2019, which was untimely and improper (see 11 NYCRR 65-3.5[d]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., supra; W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co., supra).

In addition, Defendant’s own NF-10 Denial of Claim form dated 10/22/2019, admits the second claim was received from plaintiff on 06/17/2019, requiring a scheduled IME by 07/17/2019. However, defendant’s scheduling letter for its orthopedic IME for this claim was dated 07/30/2019, with its orthopedic IME date set for 08/14/2019, which was also untimely and improper (see 11 NYCRR 65-3.5[d]; American Tr. Ins. Co. v Longevity Med. Supply, Inc. supra; W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co., supra).

Furthermore, Defendant’s own NF-10 Denial of Claim form dated 10/21/2019, admits the third claim was received from plaintiff on 07/03/2019, requiring a scheduled IME by 08/02/2019. [*3]However, defendant’s scheduling letter for its orthopedic IME was dated 07/30/2019, with its orthopedic IME date set for 08/14/2019, which was also untimely and improper (see 11 NYCRR 65-3.5[d]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., supra; W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co., supra).

The remaining 7 NF-3 Notices of Claim were denied by defendant on the same basis of plaintiff assignor’s failure to appear at the scheduled orthopedic IME of 08/14/2019, and the rescheduled IME of 9/04/2019.^[FN2] However, these NF-10 Denials of Claim relied upon the same untimely and improperly scheduled IME date of 08/14/2019. Since the first IME date of 08/14/2019 was untimely and improper, the rescheduled IME date of 09/04/2019 was also untimely and improper, and it did not toll defendant’s time to pay or deny those bills (see St. Vincent’s Hosp. of Richmond v GEICO, 50 AD3d 1123 [2nd Dept 2008]); see also Concourse Chiropractic, PLLC. v Fiduciary Ins. Co. Of America, 35 Misc 3d 146[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2012).

In effect, there was no duly scheduled IME at which plaintiff failed to appear, as the scheduling letters for the IME’s were each scheduled to be held beyond the 30 days of defendant’s receipt of the claims, as required by 11 NYCRR 65-3.5(d), rendering each scheduling letter a nullity (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., supra; O & M Medical, P.C. v Travelers Indem. Co., supra).

Therefore, defendant failed to demonstrate that it had properly denied the claim, based upon plaintiff’s breach of a condition precedent to coverage, which voided the policy ab-initio, resulting in no coverage for the 10 no-fault claims, retroactively dated to the automobile accident date of 04/25/2019 (see Unitron Advantage Ins. Co. v Bay Shore Physical Therapy, PLLC., 82 AD3d 559 [1st Dept 2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., supra at 721]; 11 NYCRR 65-1.1).

Accordingly, the motion by defendant for summary judgment dismissing plaintiff’s complaint on this basis, is denied.

The Court now turns to plaintiff’s cross-motion for summary judgment for the amount in the complaint. Here, the Court determines that plaintiff has failed to demonstrate a prima facie entitlement for summary judgment, by proof in admissible form sufficient to establish the lack of any material issues of fact (see Alvarez v Prospect Hospital, supra; Winegrad v New York Univ. Med. Ctr., supra; Zuckerman v City of New York, supra).

Plaintiff attempts to use defendant’s NF-10 Denial of Claim forms as proof that it submitted its 10 claims totaling the sum of $6,947.81, which have not been timely paid or denied. “The Second Department has repeatedly held that a plaintiff no-fault provider establishes its prima facie entitlement to judgment by submitting proper evidentiary proof that it generated and mailed the prescribed statutory billing forms to the defendant insurer, that the defendant received [*4]it, and that the no-fault benefits were overdue” (see AR Medical Rehabilitation v State-Wide Ins. Co., 49 Misc 3d 918 [Civil Ct, New York City 2015], citing Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081-82 [2nd Dept 2011]).

This was later affirmed by the Court of Appeals wherein it held that a medical provider is required to submit proof of mailing through evidence in admissible form, which may include “the verification of treatment form and/or an affidavit from a person or entity (1) with knowledge of the claim and how it was sent to the insurer or (2) who has relied upon the forms in the performance of their business” (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). “The burden of proving submission is generally met by an affidavit of a billing agent or an employee averring that he or she personally mailed the claim forms to the insurer or averring that a standard office practice or procedure designed to ensure that items were properly addressed and mailed was followed” (see AR Medical Rehabilitation v State-Wide Ins. Co., supra at 919, citing Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., supra at 506-07).

Neither Court addressed the issue of whether a medical provider could forgo evidentiary proof of its mailing procedure by relying upon its receipt of a denial form from the insurer (see AR Medical Rehabilitation v State-Wide Ins. Co., supra at 920). However, the Appellate Term had previously ruled that a medical provider’s receipt of an NF-10 denial form from the insurer was sufficient to demonstrate that the claim form was sent by the medical provider and received by the insurer (see Eagle Surgical Supply, Inc. v Allstate Ins. Co., 42 Misc 3d 145[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2014). In this instance, “plaintiff is not trying to use the denial as the plaintiff’s own business record pursuant to CPLR 4518[a]; instead, in this context, the denial is being used as an admission by the defendant that the claim form had been received” (Id.).^[FN3] “Defendant’s denials admitted the receipt of the bills at issue…and plaintiff was not required to establish a CPLR 4518 foundation for the bills” (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A][App Term 2nd Dept, 2d, 11th & 13th Jud Dists 2014]). Therefore, a “plaintiff may establish its prima facie case by submitting a copy of its proof of claim form accompanied by an affidavit or testimony of its billing manager as to his personal knowledge of the issuance of the claim and a copy of defendant’s denial form indicating when defendant received the claim and when it denied it” (see AR Medical Rehabilitation v State-Wide Ins. Co., supra at 921, citing Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term 2nd Dept 2006]).

In the instant matter, plaintiff has failed to demonstrate it prima facie entitlement to summary judgment, by submission of a copy of its NF-3 proof of claim forms accompanied by an affidavit of its billing manager as to his personal knowledge of the issuance of the claim, in addition to defendant’s NF-10 denial of claim form. Accordingly, plaintiff’s cross-motion for summary judgment in the sum of $6,947.81 on this basis is denied.

Nevertheless, defendant has opposed plaintiff’s cross-motion for summary judgment, by raising the doctrine of res judicata (claim preclusion), as a defense to plaintiff’s contentions, citing two civil decisions from the City of New York, wherein plaintiff’s assignor, Marisol Torres, was also named as a plaintiff’s assignor, with the named defendant, NY Central Mut. Fire Ins. Company. Both decisions noted the failure of plaintiff’s assignor to appear at duly scheduled [*5]IME’s, and resulted in the Court’s dismissal of each case.

The Court finds that defendant has failed in its burden to produce evidentiary proof in admissible form sufficient to establish material issues of fact which would require a trial of the action (see CPLR 3212[b]; Alvarez v Prospect Hospital, supra at 324). Though defendant has interposed the doctrine of res judicata as a defense, under res judicata, “a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction” (see Cortazar v Tomasino, 150 AD3d668 [2nd Dept 2017]). Or more simply, “a valid final judgment bars future actions between the same parties on the same cause of action” (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). “One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously ‘brought to a final conclusion'” (see Blue Sky, LLC. v Jerry’s Self Storage, LLC., 145 AD3d 945 [2nd Dept 2016]).

The Court further finds that the cited cases by defendant fail to demonstrate they are a disposition on the merits for the same litigation between the same parties, or those in privity with them, for a cause of action arising from the same transaction (see Cortazar v Tomasino, supra). Indeed, the cited cases refer to litigants, Longevity Medical Supply, Inc. and North Queens Surgical Center, as assignees of Marisol Torres, but there is no link to Jiang Acupuncture, P.C., other than there being the same assignor in the instant matter. Also, there is no factual showing that the cited matters refer to the same transaction.

Accordingly, the Court finds that defendant has failed in its burden to produce evidentiary proof in admissible form sufficient to establish material issues of fact which would require a trial of the action.

Any remaining contentions of the parties are either unavailing or have been rendered academic.

The foregoing constitutes the decision and order of this Court.

Dated: September 23, 2021

HON. JAMES F. MATTHEWS

J.D.C.

Footnotes

Footnote 1:The Court notes that “the record does not reflect when [defendant] received the ‘prescribed verification forms'” (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841 [1st Dept 2015][citing to dissent of Friedman, J.P. at 844]), though “the 30 day period within which the IME was supposed to be scheduled, is measured from the date on which [defendant insurer] received the prescribed verification form from [plaintiff] itself (citing to Ops Gen Counsel NY Ins Dept No. 03-02-12, Feb 2003, remaining cite omitted ), noting that the prescribed verification form to which §65-3.5[d] refers is, in the case of a non-hospital healthcare provider, as in the instant matter, ‘NYS Form NF-3, Verification of Treatment by Attending Physician or Other Provider of Health Service [emphasis added]'” (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., supra at dissent of Friedman, J.P. at page 845).

Footnote 2:The remaining NF-10 Denial of Claim forms also refer to the Reason For Denial (#33) as being based upon the failure of plaintiff assignor to appear at a scheduled Chiropractor and Acupuncture IME held on 08/21/2019. However, no factual evidence, such as a dated scheduling letter, or failure to appear affidavit, to support this statement was submitted, and the Court makes no ruling in this regard. Additional reasons for denial (#33) were for plaintiff’s submission of excessive workers’ compensation fee schedule rates, and submission of inaccurate insurance information based upon the insurer’s investigation, but no supporting evidence was submitted and the Court also makes no ruling in this regard.

Footnote 3:The Court notes that the Eagle case ultimately turned on the fact that defendant insurer consented to the admission into evidence of plaintiff’s claim form.

[*1]

Supreme Court, New York County, September 23, 2021

APPEARANCES OF COUNSEL

Goldberg, Miller & Rubin, P.C., New York City (Harlan R. Schreiber and Benjamin Bagenski of counsel), for plaintiff.

Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for Alpha Chiropractic P.C., defendant.

This motion concerns plaintiff Kemper Independence Insurance Company’s potential obligation to pay no-fault insurance benefits. Defendants Lateef Fowler and Cynthia Brown were passengers in a vehicle that was involved in a collision in February 2018. The vehicle was covered by a no-fault insurance policy issued by Kemper. Fowler and Brown assigned their rights to collect no-fault benefits under that policy to various treating medical providers, including defendant Alpha Chiropractic P.C.

In May 2018, Kemper sent Alpha a letter requesting among other things that Alpha produce a witness for an examination under oath (EUO) on May 31, 2018. (See NY St Cts Elec Filing [NYSCEF] Doc No. 78 at 4.) Alpha did not appear on the scheduled EUO date. On June 5, 2018, Kemper sent a second letter, requesting that Alpha produce a witness on June 22, and warning that a second failure to appear would constitute a breach of the policy leading to a denial of Alpha’s claims. (See NYSCEF Doc No. 78 at 1-2.) On June 14, Alpha wrote back to Kemper, seeking a “reasonable justification for the instant EUO request.” (NYSCEF Doc No. 78 at 7.) Kemper declined. In a July 24, 2018 letter to Alpha, Kemper stated that “while the request for EUO is made in good faith and does seek to verify necessity and causality of treatment,” the “Department of Insurance has specifically found that disclosing of the basis for EUO is not required by an insurer.” (NYSCEF Doc No. 78 at 10.) Kemper adjourned the EUO to August 7, 2018, and requested that Alpha’s witness appear on that date whether or not Kemper had provided a “reasonable justification” for that request. (See id. at 11.) Alpha did not appear on August 7.

Kemper later brought this action, seeking a declaration that it is not required to pay no-fault benefits to Fowler and Brown,{**73 Misc 3d at 587} Alpha or the other medical-provider defendants. Kemper moves here for summary judgment under CPLR 3212 against Alpha. The motion is denied.

Discussion

A no-fault-benefits claimant must appear for an examination under oath (EUO) on the reasonable request of the insurer. (See 11 NYCRR 65-1.1.) A claimant’s failure without reasonable cause to appear for a timely and properly scheduled EUO is grounds to deny coverage. An EUO request “must be based upon the application of objective standards so that there is specific objective justification supporting” the choice to seek an EUO. (Id. § 65-3.5 [e].)

Here, Kemper argues that Alpha failed to appear for scheduled examinations under oath (EUOs), which breached Alpha’s obligations under the no-fault policy. Alpha, on the other hand, contends that because Kemper declined Alpha’s request to provide a specific justification for the EUO, Alpha’s refusal to appear for the rescheduled EUO did not breach the terms of the underlying no-fault insurance policy. This court agrees with Alpha.^[FN1]

Kemper relies in part on a 2006 interpretive opinion letter issued by the State Insurance Department (now the State Department of Financial Services [DFS]). This letter concluded that although section 65-3.5 (e) provides that an EUO notice will be effective only if it includes “language advising” the witness of the “right to reimbursement for lost earnings and transportation costs incurred in attending the EUO,” the regulation does not require that “an insurer must include language stating the reason(s) for requiring the EUO” in each {**73 Misc 3d at 588}scheduling notice. (Ops Gen Counsel NY Ins Dept No. 06-12-16 [Dec. 2006].)^[FN2]

The 2006 opinion letter does not, however, indicate whether it is intended also to address the extent of an insurer’s discretion to refuse to provide an EUO-justification should the benefits claimant request it after receiving an initial EUO scheduling notice—the issue presented here. Nor is this court aware of any Appellate Division authority (or, in the First Department, any appellate precedent at all) on the question.

The First Department has held that if a denial of a no-fault claim leads to coverage litigation, the insurer must on request disclose to the benefits claimant the insurer’s “specific objective justification” for having sought an EUO. (Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671, 671 [1st Dept 2020], quoting 11 NYCRR 65-3.5 [e]; see also American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015] [same].) Given that holding, it is difficult to see why an insurer should be excused during the claims-verification process itself from providing on request the insurer’s EUO-justification.

The Department of Financial Services has explained that the EUO-request provisions of DFS’s no-fault regulations are intended to balance two interests: “the importance of EUOs in identifying fraud and violations of New York law in the submission of claims for reimbursement,” on the one hand; and the need “to ensure that insurers would not request EUOs on either a routine or arbitrary basis, but would only do so when reasonably warranted” based on the particular facts underlying a given no-fault claim, on the other. (Ops Gen Counsel NY Ins Dept No. 02-10-14 [Oct. 2002].)^[FN3] If an insurer need not provide specific reasons justifying a given EUO, should a claimant request that justification during the claims-verification process, the justification-requirement language in section 65-3.5 (e) has little teeth. At most, a claimant might, years after the fact, request and obtain a justification should coverage litigation result and proceed to discovery. That contingent possibility alone seems insufficient to fulfill the{**73 Misc 3d at 589} regulatory aim of ensuring that insurers issue EUO requests only when warranted by the facts of particular cases.

This is not to say that an insurer’s justification provided during the claims-verification process must necessarily be lengthy or detailed. Requiring extensive justification would [*2]undermine the regulatory goal of resolving the high volume of no-fault claims quickly, efficiently, and fairly. For that matter, the ultimate purpose of EUO requests is to prevent or limit the granting of fraudulent claims. The insurer thus has an important interest in avoiding overly detailed EUO-request explanations: such explanations would risk tipping the insurer’s hand about when it would—and would not—find a claim suspicious so as to warrant further investigation through EUOs.

To say, though, that an insurer’s “specific objective justification” during the claims-verification process for its EUO request may be satisfactory even if it does not go into granular detail is quite different from saying that an insurer need not offer any justification at all. (See American Chiropractic Care, P.C. v GEICO Ins., 57 Misc 3d 529, 535 [Civ Ct, Kings County 2017] [drawing this distinction].) Here, Kemper expressly refused Alpha’s request to explain Kemper’s reasons for asking Alpha to produce an EUO witness.^[FN4] Given that categorical refusal, Kemper’s second EUO request to Alpha was not reasonable; and Alpha’s failure or refusal to appear for the rescheduled EUO does not form a basis to deny Alpha’s benefits claim.

Kemper’s contrary argument on this point relies in part on a decision of the Appellate Term, Second Department. (See NYSCEF Doc No. 93 ¶ 9, citing Bronx Chiropractic Care, P.C. v State Farm Ins., 63 Misc 3d 132[A], 2019 NY Slip Op 50423[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, Mar. 22, 2019].) This court is not persuaded by the holding of Bronx Chiropractic. That decision relies on the two DFS/Insurance Department opinion letters quoted above. But as this court has already discussed, the 2006 opinion letter does not definitively resolve the key question here: whether an EUO scheduling notice{**73 Misc 3d at 590} must disclose the insurer’s justification for the EUO after that justification has been requested by the claimant.^[FN5]

The 2002 opinion letter is also consistent with this court’s conclusions here. That letter states that DFS deliberately decided in enacting its regulations to refrain from requiring insurers to disclose to claimants the insurers’ internal standards for making EUO requests. But requiring production of the “objective standards established by the insurer” regarding when to request EUOs is different from requiring a more limited disclosure of the “specific facts” that, applied to those internal standards in a given case, prompted the insurer to request an EUO. (Ops Gen Counsel NY Ins Dept No. 02-10-14.) The former is materially more intrusive, and more likely to provide a guide to no-fault fraudsters on how to evade insurer scrutiny and detection. Indeed, in Jaga Med. [*3]Servs. and AB Med. Supply, the First Department drew this same distinction: The Court held in those decisions that insurers must turn over in discovery their justifications for requesting EUO-based-verification of particular claims, notwithstanding DFS’s conclusion that section 65-3.5 (e) does not require insurers to produce their underlying internal standards. (See AB Med. Supply, 187 AD3d at 671; Jaga Med. Servs., 128 AD3d at 441; see also American Chiropractic, 57 Misc 3d at 534 [holding that the insurer’s obligation to maintain its internal standards for “Insurance Department( ) oversight” of those standards should be treated as distinct from an insurer’s obligation to provide an explanation for a given EUO request to determine “whether those standards were properly applied with regard to a particular provider”].)

Kemper thus was not entitled to deny Alpha’s no-fault benefits claims based on Alpha’s nonappearance at requested EUOs. Kemper’s motion for summary judgment is denied. Although the facts relating to Alpha’s EUO-nonappearances are undisputed, this court concludes that it would be premature to grant Alpha summary judgment as the nonmoving party under CPLR 3212 (b).{**73 Misc 3d at 591}

Kemper appears to be relying on this motion only on Alpha’s EUO nonappearances. (See NYSCEF Doc No. 75 at 6-7 ¶¶ 21-29 [counsel’s affirmation]; NYSCEF Doc No. 93 ¶ 2 [counsel’s reply affirmation].) But some of Kemper’s motion papers also suggest that even had Alpha appeared for EUOs, Kemper still would have denied its no-fault claims because Kemper had concluded the treatment for which benefits were being sought was not causally related to the underlying vehicle collision. (See NYSCEF Doc No. 75 at 5 ¶¶ 14-15 [counsel’s affirmation]; NYSCEF Doc No. 80 [medical reports].) There is, however, no claim-denial form in the record that might clarify this ambiguity.^[FN6] In these circumstances, this court concludes that a reasonable possibility exists that Kemper could yet establish a valid basis for a declaration of no coverage, making it premature to grant summary judgment to Alpha dismissing Kemper’s claim.

Accordingly, for the foregoing reasons, it is hereby ordered that Kemper’s motion for summary judgment under CPLR 3212 is denied.

Footnotes

Footnote 1:There is also significant reason to doubt that Kemper has established that its EUO letters were timely under the governing regulations, as required to obtain a declaration of no coverage. (See American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) When the insurer makes an EUO request after receiving claim forms from the injured person or a medical-provider assignee, the request must be made within 15 business days of the insurer’s receipt of a claim form. (See 11 NYCRR 65-3.5 [a]-[b].) Here, Kemper’s first EUO letter states that Alpha “ha[s] made certain No-Fault claims for medical treatment to claimant.” (NYSCEF Doc No. 78 at 4.) But Kemper has not provided proof that this letter was sent within 15 days of receipt of any of those claims. Kemper also contends that its last EUO letter was sent within 15 days of receipt of a claim form. (See NYSCEF Doc No. 75 ¶ 28.) But that form, though dated prior to the last EUO letter, does not on its face reflect when Kemper received it. (See NYSCEF Doc No. 79.) Nor would a single EUO nonappearance support a claim denial in any event.

Footnote 2:This opinion letter appears on the DFS website at http://www.dfs.ny.gov/insurance/ogco2006/rg061216.htm (last visited Sept. 22, 2021).

Footnote 3:This opinion letter appears on the DFS website at https://www.dfs.ny.gov/insurance/ogco2002/rg021014.htm (last visited Sept. 22, 2021).

Footnote 4:Kemper contends that it did provide its reasons, by stating in its EUO letters that Kemper sought “to assess the necessity and causality of treatment and the business relationship of the treating provider to the company.” (NYSCEF Doc No. 93 ¶ 11; see also NYSCEF Doc No. 78 at 4, 10 [EUO letters].) Those statements, though, merely explained the information that Kemper was seeking to verify, not the specific objective justification for why Kemper believed it needed verification.

Footnote 5:An earlier Appellate Term decision cited by Bronx Chiropractic, Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co. (44 Misc 3d 132[A], 2014 NY Slip Op 51142[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014]) carries little weight here for similar reasons: The claimant in that case apparently did not respond to the insurer’s EUO notices at all, let alone request a justification for the EUO. And to the extent that Flow Chiropractic also concluded that an insurer need not provide an EUO-justification when sought in later coverage litigation (see id.), the First Department has since held otherwise in Jaga Med. Servs. and AB Med. Supply.

Footnote 6:The record is, in fact, unclear about whether Kemper ever formally denied Alpha’s claim. (Compare NYSCEF Doc No. 75 at 5 ¶ 15 [counsel’s opening affirmation, indicating that Kemper denied Alpha’s claims], and id. at 19 ¶ 25 [affidavit of no-fault claim representative, indicating that Kemper denied Alpha’s claims], with NYSCEF Doc No. 93 ¶¶ 36-38 [counsel’s reply affirmation, contending that Kemper was not required to have issued a denial-of-claim form to be entitled to a declaration of no coverage in later litigation].)

Index No. CV-723275-19/QU

Plaintiff’s counsel:
Mandell & Santora PC
29 Broadway
Lynbrook, NY 11563

Defendant’s counsel:
Rosillo & Licata LLP 355 Post Avenue, Suite 204
Westbury, NY 11590

I. Papers

Papers/Numbered

Defendant’s Notice of Motion and Affirmation in Support for summary judgment dismissing Plaintiff’s complaint under index number CV-723275-19/QU dated February 10, 2020 (“Motion 1“) and file stamped by the court on February 13, 2020. 1

Plaintiff’s Affirmation in Opposition under index number CV-723275-19/QU dated May 19, 2020 (“Opposition 1“) and electronically filed with the court on May 20, 2020. 2

Defendant’s Reply Affirmation under index number CV-723275-19/QU dated April 27, 2021 (“Reply 1“) and electronically filed with the court on May 12, 2021. 3

Defendant’s Notice of Motion and Affirmation in Support for summary judgment dismissing Plaintiff’s complaint under index number CV-723253-19/QU dated February 10, 2020 (“Motion 2“, together with Motion 1, the “Motions“) and file stamped by the court on February 13, 2020. 4

Plaintiff’s Affirmation in Opposition under index number CV-723253-19/QU dated May 19, 2020 (“Opposition 2“) and electronically filed with the court on May 20, 2020. 5

Defendant’s Reply Affirmation under index number CV-723253-19/QU dated April 27, 2021 (“Reply 2“) and electronically filed with the court on May 12, 2021. 6

In a summons and complaint under index number CV-723275-19/QU filed on October 31, 2019, Plaintiff sued Defendant insurance company to recover $1,110.36 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Allen from June 29, 2019 to July 18, 2019, plus attorneys’ fees and statutory interest (see Motion 1, Aff. of Scozzari, Ex. A). In a summons and complaint under index number CV-723253-19/QU filed on October 31, 2019, Plaintiff sued Defendant to recover $970.96 in unpaid first party No-Fault benefits for medical services provided to Allen from August 14, 2019 to August 30, 2019 (see Motion 2, Aff. of Scozzari, Ex. A). In both actions, Defendant moved for summary judgment dismissing Plaintiff’s complaints on the ground that the services Plaintiff rendered to Allen were not medically necessary. Plaintiff opposed Defendant’s Motions. An oral argument by both parties was conducted before this Court on September 1, 2021. Both parties agreed that the arguments in both actions were identical except for the dates of service and the respective amounts claimed. For judicial efficiency, this Court decides both motions together because they raise identical issues of law within a virtually identical factual background.

III. Decision

Insurers must pay or deny No-Fault benefit claims within thirty (30) days of receipt of proof of the claim (Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). Here, the affidavits of Defendant’s No-Fault examiner Dougert sworn February 6, 2020, which were appended to the Motions, establishing Defendant’s regular office mailing procedures showed Defendant timely denied Plaintiff’s claim (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2d Dept 2020]; see Progressive Cas. Ins. Co. v Infinite Ortho Prods, Inc., 127 AD3d 1050, 1051 [2d Dept 2015]).

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “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 directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

In our instant matters, Defendant based its denials of Plaintiff’s claims on lack of medical necessity. Defendant presented the sworn peer review report of Dr. T. McLaughlin, an acupuncturist and chiropractor, who reviewed Allen’s chiropractic examination report, pain fiber nerve conduction study, initial physical examination report, physical therapy progress notes, and physical therapy prescription from March 2019 (see Motions, Scozzari Aff., Ex. B). Dr. McLaughlin also performed a physical examination of Allen on April 30, 2019, in which he specified the tests he performed. Dr. McLaughlin tested Allen’s range of motion in the cervical, thoracic, and lumbar spine and the upper and lower extremities which revealed normal ranges of motion as compared to the maximum range and no other abnormalities. Dr. McLaughlin’s evaluation of Allen under traditional Chinese medicine also revealed normal findings. Here, Dr. McLaughlin’s report established lack of medical necessity for the services Plaintiff provided (Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 134[A], 2017 NY Slip Op 50954[U] *1 [App Term 2d Dept 2017]; Westcan Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066 * 1 [App Term 2d Dept 2015]; Lenox Hill Radiology & MIA, [*2]P.C. v Great N. Ins. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50680 *1 [App Term 2d Dept 2015]; Ayoob Khodadadi, M.D., MRI, P.C. v Clarendon Natl. Ins. Co., 37 Misc 3d 130[A], 2012 NY Slip Op 51968 * 1 [App Term 2d Dept 2012]).

In opposition, Plaintiff presented an affidavit dated May 4, 2020, in which Winslow, LA, who treated Allen, attested that she “reviewed the IME Report of Dorothy McLaughlin, DC, dated April 30, 2019.” (Opposition 1 and Opposition 2, Aff. of Nof, Ex. A at 1). Initially, this Court assumes that the reference to “Dorothy McLaughlin” in Winslow’s report was a typographical error. Based on review of medical records and treatment notes, Winslow attested that Allen had “reduced range of motion, continued complaints of pain and weakness, and reduced muscle strength, and continued complaints of tenderness and spasm,” (Id.) which indicated that Allen required further treatment. Winslow also attested that her treatment notes contradicted Dr. McLaughlin’s opinion, and concluded that additional physical therapy after the IME was medically necessary. Winslow’s affidavit “did not meaningly refer to, or discuss” Dr. McLaughlin’s report, so is insufficient to raise factual issues regarding medical necessity of the services Plaintiff provided (Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50884[U] *2 [App Term 2d Dept 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] *2 [App Term 2d Dept 2009]). Similarly, Winslow’s statement that her treatment notes contradicted Dr. McLaughlin’s opinion was conclusory (Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50884 *2; Pan Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 51495[U] *2), particularly since Plaintiff did not present the notes to which she referred.

It is well established that “expert’s affidavit must contain four elements: (1) the expert’s qualification; (2) the facts underlying the expert’s opinion; (3) the technical, scientific or other authoritative basis supporting the opinion; and (4) the opinion itself” (Avoiding the Conclusory When Preparing Experts’ Affidavits, Feb. 27, 2015 N.Y.L.J.) and that conclusory opinions in expert affidavits lack probative value (Sparks v Detterline, 86 AD3d 601, 602 [2d Dept 2011]; Borras v Lewis, 79 AD3d 1084, 1085 [2d Dept 2010]). Once a moving party establishes its prima facie case in a motion for summary judgment, the burden then shifts to the non-moving party to defeat moving party’s showing (De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 79 [2015]). Here, in our instant matters, Defendant’s expert applied various facts, i.e., Allen’s medical history and current complaint, experts’ physical examination on Allen, Allen’s range of motion and Allen’s medical condition at cervical spine, upper extremities, thoracic, lower extremities and lumbar, to western modern medical science, technology and cited authorities, as well as to traditional Chinese medicine, and had come to a conclusion that Allen’s treatment was not medically necessary. On the contrary, Plaintiff’s expert omitted the requirements of an expert’s affidavit, i.e., the underlying facts and the scientific basis upon which her opinion relied, but simply stated a conclusion/an opinion that Allen’s treatment by her was medically necessary. Here, Plaintiff’s expert affidavit failed to sufficiently rebut Defendant’s expert affidavit, and thus failed to defeat Defendant’s prima facie showing.

This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact, that the controversy regarding Plaintiff’s claims in both actions can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]), that Plaintiff has failed to raise factual issues requiring a trial (Innovative Chiropractic, P.C. v New York Cent. [*3]Mut. Fire Ins. Co., 2010 NY Slip Op 50884 *2; Pan Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 51495[U] *2), and that Defendant is entitled to dismissal of Plaintiff’s complaints in both actions.

IV. Order

Accordingly, it is

ORDERED that Defendant’s motions for summary judgment are granted and that Plaintiff’s complaints are dismissed in both actions, and it is further

ORDERED that the part clerk is directed to mark the index numbers in both actions disposed for all purposes.

This constitutes the Decision and Order of the court.

Dated: September 17, 2021
Queens County Civil Court
____________________________________
Honorable Wendy Changyong Li, J.C.C.

 Gary Tsirelman, P.C. (Stefan Belinfanti and Gary Tsirelman of counsel), for appellant. Law Office of Tina Newsome-Lee, for respondent Travelers Property & Casualty Ins. Co. (no brief filed). Law Office of Goldstein, Flecker & Hopkins (Tali K. Hernstat of counsel), for respondent GEICO Casualty Insurance.

Appeals from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.; op 67 Misc 3d 171 [2020]), entered January 3, 2020. The order, insofar as appealed from, upon, in effect, granting the branch of plaintiff’s motion seeking to consolidate 27 actions, including the above-captioned 11 actions, for the purposes of the disposition of the motion, denied the branches seeking to, among other things, substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each of the above-captioned actions.

ORDERED that, on the court’s own motion, the appeals are consolidated for the purposes of disposition; and it is further,

ORDERED that the order, insofar as appealed from, is modified by vacating so much thereof as denied the branches of plaintiff’s motion seeking to substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each of the above-captioned actions in which GEICO Casualty Insurance is the defendant, by granting those branches of plaintiff’s motion, and by further vacating the Civil Court’s findings that plaintiff was no longer winding up its affairs, had failed to timely be substituted, and had no standing to bring this motion; as so modified, the order, insofar as appealed from, is affirmed, without costs.

These actions by a provider to recover assigned first-party no-fault benefits were commenced in 2000 and 2001. In 2009, plaintiff corporation voluntarily dissolved. In 2017, plaintiff brought the instant motion seeking to, among other things, consolidate the various [*4]actions for purposes of the motion and to substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each action. Insofar as is relevant to this appeal, by order entered January 3, 2020, the Civil Court, upon, in effect, granting the branch of the motion seeking to consolidate the above-captioned actions for purposes of disposition of the motion, denied the branches seeking to, among other things, substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each of the above-captioned actions (Queens Neurology, P.C. v Travelers Prop. & Cas. Ins. Co., 67 Misc 3d 171 [Civ Ct, Queens County 2020]).

With respect to the action against Travelers Property & Casualty Ins. Co., the Civil Court denied plaintiff’s motion “due to Plaintiff’s failure to provide proof of service.” Since there was no argument made on this appeal that the action against Travelers Property & Casualty Ins. Co. was improperly dismissed, we do not disturb that part of the order.

With respect to the 10 actions against GEICO Casualty Insurance, the court found that plaintiff, as a dissolved corporation, was no longer winding up its affairs (see Business Corporation Law §§ 1005, 1006) and thus was required to be substituted pursuant to CPLR 1017. The court further found that plaintiff had not sought substitution within four months or “a reasonable time” (CPLR 1021) following its dissolution, and, thus, had no standing to bring the instant motion.

With certain exceptions not applicable here, “a corporation or voluntary association shall appear by attorney” (CPLR 321 [a]), and “[a] party’s choice of counsel is a substantive right not to be taken away absent some overriding public interest” (Petrossian v Grossman, 219 AD2d 587, 588 [1995]). As plaintiff cannot take any action or make any arguments in the cases involving GEICO Casualty Insurance without an attorney, we vacate so much of the order as denied the branches of plaintiff’s motion seeking to substitute counsel in these 10 actions and grant those branches of the motion. In light of the foregoing, any findings made by the Civil Court regarding whether plaintiff needed to be timely substituted (see CPLR 1017, 1021) and/or whether plaintiff was properly still winding up its affairs (see Business Corporation Law §§ 1005, 1006) were premature and are vacated.

Accordingly, the order, insofar as appealed from, is modified by vacating so much thereof as denied the branches of plaintiff’s motion seeking to substitute Gary Tsirelman, P.C., as plaintiff’s attorney of record in each of the above-captioned actions in which GEICO Casualty Insurance is the defendant, by granting those branches of plaintiff’s motion, and by additionally vacating the Civil Court’s findings that plaintiff was no longer winding up its affairs, had failed to timely be substituted, and had no standing to bring this motion.

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

CV-714768-19/QU

Plaintiff’s counsel:

Lewin & Baglio, LLP

1100 Shames Drive, Suite 100

Westbury, NY 11590

Defendant’s counsel:

Jaffe & Velasquez LLP

40 Wall Street, 12th Floor

New York, NY 10005

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment on its claim:

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated January 24, 2020 (“Motion”) and file stamped by the court on February 7, 2020. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated August 19, 2020 (“Cross-Motion”) and electronically filed with the court on August 24, 2020. 2

Defendant’s Affirmation in Opposition dated February 10, 2021 (“Opposition to Cross-Motion”) and electronically filed with the court on February 12, 2021. 3

II. Background

In a summons and complaint filed July 25, 2019, Plaintiff sued Defendant insurance company to recover $1,893.00 in unpaid first party No-Fault benefits for medical prescriptions provided to Plaintiff’s assignor Styles, plus attorneys’ fees and statutory interest (see Motion, Aff. of Kang, Ex. A). Defendant moved for summary judgment dismissing Plaintiff’s complaint (CPLR 3212[b]) on the ground that Plaintiff lacked standing (CPLR 3211[a][3]) and failed to state a cause of action (CPLR 3211[a][7]). Plaintiff cross-moved for summary judgment on its claim against Defendant.

III. Discussion

The Mandatory Personal Injury Protection Endorsement is required in all automobile insurance contracts (11 NYCRR § 65-1.1[a]) which provides that “[i]n the event of an accident, written notice setting forth details sufficient to identify the eligible injured person, along with reasonably obtainable information regarding the time, place and circumstances of the accident, shall be given by, or on behalf of, each eligible injured person, to the [insurance] Company, or any of the [insurance] Company’s authorized agents, as soon as reasonably practicable, but in no event more than 30 days after the date of the accident, unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation” (see 11 NYCRR § 65-1.1[d]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 589-90 [2011]). Thus, as here, Plaintiff assignor Styles was required to provide notice of the accident to Defendant within thirty (30) days of the accident (Hosp. for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317, 879 N.E.2d 1291, 1293 (2007), see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 562-63 [2008]). The notice of accident requirement is a condition precedent to a No-Fault insurer’s liability (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d at 590).

As to the matter before this Court, in an affidavit sworn January 28, 2020, Mena-Sibrian, Defendant’s No-Fault Litigation/Arbitration Supervisor, attested that Defendant first received notice of Styles’ accident in a correspondence from MVAIC dated January 17, 2019 and postmarked February 5, 2019, which was more than thirty (30) days after Styles’ accident on October 9, 2018 (see Motion, Kang Aff., Ex. C). Mena-Sibrian claimed to have personal knowledge of the file based on her responsibility for the claim and “review of the file which was kept in the ordinary course of business by [Defendant]” (Motion, Kang Aff., Ex. C at 1). Since review of records kept in the ordinary course of business does not confer upon the affiant personal knowledge, Mena-Sibrian’s statement that Defendant first received notice of Plaintiff’s accident in the January 17, 2019 correspondence postmarked February 5, 2019 (see Motion, Kang Aff., Ex. F) is hearsay (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934, [*2]935 [2d Dept 2021]). Because Mena-Sibrian did not identify the correspondence postmarked February 5, 2019 annexed as Exhibit F, she failed to authenticate it to render it admissible evidence (see Antoine v Kalandrishvili, 150 AD3d 941, 942 [2d Dept 2017]; Hefter v Elderserve Health, Inc., 134 AD3d 673, 675 [2d Dept 2015]). Likewise, Mena-Sibrian’s account that Defendant “contacted MCVIAC [sic] via the telephone, and a MVIA [sic] representative notified [Defendant] that MVIAC received the initial notification of the loss on November 20, 2018” (Motion, Kang Aff., Ex. C at 3) was vague and clearly not based on Mena-Sibrian’s personal knowledge, so also failed to demonstrate the untimeliness of Plaintiff’s notice of the accident to MVAIC (see Nuzzi v Gallagher, 60 AD3d 653, 654 [2d Dept 2009]).

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “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 directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968). Here, Defendant failed to establish its prima facie case with admissible evidence. Since Defendant failed to meet its burden of demonstrating entitlement to summary judgment, this Court denies Defendant’s motion for summary judgment without consideration of Plaintiff’s opposition (Luigi v Avis Cab Co., Inc., 96 AD3d 809, 810 [2d Dept 2012]; Alexander v Gordon, 95 AD3d 1245, 1246 [2d Dept 2012]).

Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Plaintiff presented an affidavit dated March 27, 2020, in which Munson, Plaintiff’s biller, attested that, based on her review of Plaintiff’s records maintained in the ordinary course of business, Plaintiff submitted proof of claim to Defendant within 45 days of providing prescriptions to Styles (see Cross-Motion, Aff. of Jillian M. Enright, Ex. 2 at 1). Munson’s affidavit suffered from the same infirmity as the affidavit of Mena-Sibrian, in that the review of records did not imbue an affiant with personal knowledge, so Munson’s assertion regarding Plaintiff’s timely submission of claim was also hearsay (Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d at 935). In addition, it is noted that the fact that Plaintiff submitted proof of claim to Defendant within 45 days of providing prescriptions to Styles (even if it was established by admissible evidence, while it did not here), does not provide that Styles had notified the insurance company within 30 days of the alleged car accident as required.

Although an insurer’s denial of claim form may establish the insurer’s receipt of a medical service provider’s claim and untimely denial of that claim, (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]), Defendant’s denial of claim form dated May 7, 2019, which acknowledged receipt of Plaintiff’s claim on April 25, 2019, demonstrated that Defendant denied Plaintiff’s claim twelve (12) days after receiving it (see Motion, Kang Aff. Ex. E). Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claim against Defendant, this Court denies Plaintiff’s Cross-Motion without consideration of Defendant’s opposition (U.S. Bank N.A. v Atia, 178 AD3d 747, 749 [2d Dept 2019]; Zalewski v MH Residential 1, LLC, 163 AD3d 900, 901 [2d Dept 2018]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint is denied, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant is denied.

This constitutes the Decision and Order of the court.

Dated: September 15, 2021

Queens County Civil Court

____________________________

Honorable Wendy Changyong Li, J.C.C.

The Law Office of Gregory A. Goodman, P.C. (Gregory A. Goodman of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (C. Stephen Hackeling, J.), dated April 16, 2019. The order, insofar as appealed from, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by Essential Health Chiropractic, P.C. and denied the cross motion by Essential Health Chiropractic, P.C. for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by plaintiff Essential Health Chiropractic, P.C. is denied; as so modified, the order is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiffs’ assignor had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). Insofar as is relevant to this appeal, plaintiff Essential Health Chiropractic, P.C. (Essential) opposed the motion and cross-moved for summary judgment. Essential appeals from so much of the order of the District Court as granted the branch of [*2]defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by Essential and denied the cross motion by Essential for summary judgment.

While defendant made a prima facie showing that the NF-10 forms denying claims which Essential had submitted were mailed, the affidavit of Essential’s owner was sufficient to raise an issue of fact as to whether the denial of claim forms at issue had been mailed to Essential (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). As an issue of fact exists, neither defendant nor Essential is entitled to summary judgment on so much of the complaint as was asserted by Essential (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The record before us also indicates that defendant failed to establish that it had timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) letters scheduling EUOs of Essential’s assignor, for which Essential’s assignor failed to appear, and that the assignor had also failed to appear for scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In view of the foregoing, defendant failed to demonstrate its entitlement to summary judgment dismissing Essential’s claims based upon the assignor’s failure to comply with conditions precedent to coverage (see id.).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as was asserted by plaintiff Essential Health Chiropractic, P.C. is denied.

VOUTSINAS, J.P., EMERSON and DRISCOLL, JJ., concur.

CV-711495-18/QU

Plaintiff’s counsel:
Baker & Cantin P.C.
63-36 99th Street
Rego Park, NY 11374

Defendant’s counsel:
Jaffe & Koumourdas LLP
40 Wall Street, 12th Floor
New York, NY 10005
Wendy Changyong Li, J.

I. Papers

The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion and Affirmation dated February 14, 2020 (“Motion”) and file stamped by the court on March 3, 2020 1

In a summons and complaint filed August 23, 2018, Plaintiff sued Defendant insurance company to recover $1,837.68 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Javier for injuries sustained in an automobile accident, plus attorneys’ fees and statutory interest (see Motion, Aff. of Kang, Ex. A). In a summons and [*2]complaint dated and filed on November 5, 2018, Defendant commenced an action in Supreme Court, New York County (“Supreme Court Action“) against Javier, Plaintiff, and other nonparty medical service providers, seeking a judgment declaring that Defendant owed no duty to pay No Fault claims arising from Javier’s automobile accident because Javier failed to appear for scheduled examinations under oath (“EUO“) (see Motion, Kang Aff., Ex. C). On September 16, 2019, Defendant moved in the Supreme Court Action for a default judgment against all defendants, including Javier and Plaintiff (see Motion, Kang Aff., Ex. F). In an order dated December 17, 2019 and entered December 19, 2019, Supreme Court granted Defendant’s motion for a default judgment and declared that Defendant was “not required to provide, pay or honor any current or future claim for no-fault benefits” under Defendant’s policy to Javier (Country-Wide Ins. Co. v Javier, Sup. Ct. NY County, December 17, 2019, K., J., Index No. 655488/18; Motion, Kang Aff., Ex. E). Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that the action is barred by res judicata. Plaintiff did not oppose Defendant’s motion.

III. Discussion

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, 111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Simmons v Trans Express Inc., 37 NY3d at 111; O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]).

The parties and subject matter in the instant matter and the Supreme Court Action are identical (Healthway Med. Care, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *1). Any judgment in Plaintiff’s favor in our instant action would adversely affect the rights and interests created by the judgment in the Supreme Court Action (Metro Health Prods., Inc. v Nationwide Ins., 55 Misc 3d 142[A], 2017 NY Slip Op 50607[U] *2 [App Term 2d Dept 2017]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *2). Thus res judicata bars Plaintiff’s action (Active Care Med. Supply Corp. v American Commerce Ins. Co., 54 Misc 3d 128[A], 2016 NY Slip Op 51813[U] *2 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1). Here, Judge K. rendered an order in the Supreme Court Action deciding Defendant in our instant case was “not required to provide, pay or honor any current or future claim for no-fault benefits” under Defendant’s policy to Plaintiff’s assignor, Javier (Motion, Kang Aff., Ex. E at 4). Therefore, Defendant is entitled to summary judgment dismissing Plaintiff’s complaint (Metro Health Prods., Inc. v Nationwide Ins., 2017 NY Slip Op 50607[U] *1; Active Care Med. Supply Corp. v American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Atlantic Chiropractic, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51072[u] *2 [App Term 2d Dept 2016]). Even though Supreme Court entered judgment on Plaintiff’s default in the Supreme Court Action, the judgment constitutes a conclusive final determination because Plaintiff’s [*3]default in the Supreme Court action has not been vacated (Active Care Med. Supply Corp. v American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion to dismiss Plaintiff’s complaint is granted and Plaintiff’s complaint is dismissed; and it is further

ORDERED that the part clerk is directed to dispose the index number for all purposes.

This constitutes the Decision and Order of the court.

Dated: September 8, 2021
Queens County Civil Court
Honorable Wendy Changyong Li, J.C.C.

Nightingale Law, P.C. (Michael S. Nightingale and Bryan Melnick of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt and Jamin Koo of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 20, 2018. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and granted the branch of plaintiff’s amended cross motion seeking leave to amend its summons and endorsed complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover the principal sum of $3,268.16 representing assigned first-party no-fault benefits, defendant moved for summary judgment on the ground that the action is premature. Defendant alleged that, on November 28, 2016, it received two bills dated November 21, 2016 from plaintiff totaling $3,268.16, for medical services provided to plaintiff’s assignor, Alan Bailey, on November 18, 2016. Each bill included a $241.50 electromyography service. Defendant further alleged that it timely mailed initial and follow-up requests for additional verification, and that plaintiff had not provided the requested verification with respect to the electromyography services.

On September 20, 2018, plaintiff served an amended cross motion seeking summary judgment and, pursuant to CPLR 3025 (b), leave to amend the summons and endorsed complaint such that it now sought to recover $2,785.16 for services rendered on November 18, 2016. Plaintiff claimed, in the papers submitted in support of its amended cross motion, that, in March [*2]2017, it had submitted two bills dated March 29, 2017 to defendant, for services rendered to Mr. Bailey on November 18, 2016, in the total amount of $2,785.16. The sole explanation for the submission of what plaintiff characterized as “amended bills” was a sworn statement by plaintiff’s medical billing supervisor that she “was made aware that the defendant was addressing bills with the incorrect amount and requesting verification for services that were mistakenly added to the bill.” Copies of the March 2017 bills were attached to plaintiff’s amended cross motion, which reflect all of the services billed for in the November 2016 submissions, with the exception of the two electromyography services. They are not labeled “amended bills,” nor is there any indication in this record that plaintiff communicated to defendant at the time that it intended to replace the November bills with the March bills. Defendant opposed the branch of plaintiff’s amended cross motion seeking summary judgment, but defendant’s papers were silent with respect to the branch of plaintiff’s amended cross motion seeking leave to amend its summons and endorsed complaint. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment and granted the branch of plaintiff’s amended cross motion seeking leave to amend the summons and endorsed complaint.

To the extent that defendant argues that the branch of plaintiff’s amended cross motion seeking leave to amend its summons and endorsed complaint should not have been granted because defendant was not served with it prior to a November 20, 2018 court appearance, the record does not support defendant’s contention. Plaintiff’s affidavit of service demonstrates that the amended cross motion was served on September 20, 2018. Defendant’s affidavit of service demonstrates that it served its papers a month later, on October 22, 2018. By failing to make any arguments in opposition to plaintiff’s request to amend the summons and endorsed complaint in those papers, defendant waived them and we do not consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

With respect to defendant’s motion for summary judgment, which sought dismissal of the original complaint prior to its amendment, defendant demonstrated that it had timely mailed initial and follow-up requests for verification upon receipt of plaintiff’s bills on November 28, 2016 (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that its 30-day period to pay or deny those bills (see 11 NYCRR 65-3.8 [a] [1]) did not begin to run because verification remained outstanding. Defendant thus demonstrated, prima facie, that this action is premature.

Plaintiff has not raised an issue of fact precluding summary judgment dismissing the complaint on the ground that the action is premature. Whereas this action was commenced to recover the principal sum of $3,268.16 (the amount sought in the November bills), plaintiff has now elected not to pursue payment for the $483 electromyography services that were the subject of the outstanding verification requests, but it cannot retroactively create an obligation for defendant to have paid or denied the remaining claims totaling $2,785.16, thereby providing a basis for this action (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]; Westchester Med. Ctr. v A Cent. Ins. Co., 42 Misc 3d 146[A], 2014 NY Slip Op [*3]50347[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]). Under the circumstances presented, the submission of the March 2017 bills did not create a new obligation for defendant to pay or deny plaintiff’s duplicate claims for the remaining services, totaling $2,785.16, within 30 days, nor did it give defendant a new opportunity to request additional verification with respect to those services (see Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2004]; Westchester Med. Ctr. v A Cent. Ins. Co., 42 Misc 3d 146[A], 2014 NY Slip Op 50347[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]), and plaintiff has not demonstrated that these bills were anything other than a nullity.

In view of the foregoing, we need not decide whether plaintiff could have ended the toll of defendant’s time to pay or deny the November 2016 claims by withdrawing the claims for electromyography services during claims processing, prior to the commencement of this action. Consequently, plaintiff did not raise a triable issue of fact and defendant’s motion for summary judgment dismissing the complaint should have been granted.

Accordingly, the order, insofar as appealed from, is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted.

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