[*1]

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

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

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

[*1]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), entered March 10, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

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

Accordingly, the order is affirmed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court held that there is an issue of fact as to whether the EUO scheduling letters were properly mailed to plaintiff’s assignor. While the address on the scheduling letters to the assignor matched the address on the NF-3 forms plaintiff had provided to defendant, it did not match the address set forth on the assignment of benefits form.

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

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

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

Index No. 652582/2019

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

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

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

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

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

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

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

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

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

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

Footnotes

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

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

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

[*1]

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

APPEARANCES OF COUNSEL

The Law Offices of Rubin & Nazarian for defendant.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Footnotes

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

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

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

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

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

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

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

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

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

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

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

[*1]

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

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

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

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

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