[*1] (March 17, 2022)

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

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

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

Index No. 150343/2021

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

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

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

American Transit brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Rivera or to Rivera’s medical-provider assignees. Only Rivera and defendants Global Surgery Center LLC and Safe Anesthesia and Pain LLC answered.^[FN1]

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

DISCUSSION

A no-fault insurer seeking a declaration of no coverage due to asserted violations of the terms of the policy must first demonstrate that it complied with each of the procedural and timeliness requirements of 11 NYCRR § 65-3.5, governing the handling of no-fault claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].)

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

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

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

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

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

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

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

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

Accordingly, for the foregoing reasons it is

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

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

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

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

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

Footnotes

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

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

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

[*1]

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

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

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

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

[*1]

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

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

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

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Gary Tsirelman, P.C. (Darya Klein of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated September 11, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

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

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

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

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

Accordingly, the order is affirmed.

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

Decided on January 21, 2022

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

Decided on January 10, 2022

Supreme Court, New York County

Index No. CV-1526-20/SM
James F. Matthews, J.

Upon the following papers numbered 1 to 65 read on this motion by defendant for an order seeking Summary Judgment of dismissal ; by Notice of Motion/Order to Show Cause and supporting papers 1-4,61 ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 62,63 ; Replying Affidavits and supporting papers 64,65 ; Filed papers; Other exhibits: 5-60, (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 pursuant to CPLR 3212(b), is granted.

Plaintiff medical provider seeks reimbursement from defendant insurer for assigned first party no-fault benefits for medical dates of service (“DOS”) rendered to plaintiff’s assignor from 02/06/2019 through 03/19/2020, for injuries sustained from a car accident of 01/28/2019, in the outstanding sum of $7,399.77, under New York’s No-Fault Law.

Defendant now moves for summary judgment dismissing the complaint pursuant to CPLR 3212(b), supported by the affidavit of its Claims Supervisor, Danuta Fudali, which asserts, inter alia, that defendant timely mailed its NF-10 Denial Of Claim forms (“denials”) and Explanation of Benefits (“EOB’s”) to plaintiff, pursuant to the practices and procedures it established to ensure timely deliver of its mailings to the intended recipient, thereby creating a presumption of receipt. The denials were based upon defendant’s payment in full for plaintiff’s submissions of excessive billing not compiled in accordance with the Workers’ Compensation [*2]Fee Schedule (“Fee Schedule”), pursuant to the findings in the affidavit of Carolyn Mallory, C.P.C. (“Certified Professional Coder”)^[FN1] , and the lack of medical necessity for certain chiropractic and acupuncture billing, as supported by the Independent Medical Examination (“IME”) and report of Dr. John Iozzio, D.C., L.Ac., dated 03/26/2019, the IME report of Dr. John Iozzio dated 05/02/2019, and the peer review report of Dr. Daniel Sposta, D.C., L.Ac., dated 05/15/2019, which cut off any further chiropractic and acupuncture treatments as of 04/22/2019 and 05/23/2019, respectively.

In opposition to the motion for summary judgment, plaintiff asserts it attached to its papers as an exhibit, the affidavit of Dr. Vadim Dolsky, L.Ac., to rebut the claims of Dr. Iozzio and Dr. Sposta, by demonstrating plaintiff’s assignor was symptomatic and required the treatments provided by the treating providers; that Dr. Iozzio’s IME reports concede that the evaluations and treatments prior to the IME dates were medically necessary; that defendant’s IME reports failed to demonstrate the disputed services were inconsistent with generally accepted medical or professional practices; and Dr. Dolsky’s professional opinion differs from that stated by defendant’s experts, thereby raising a question of fact requiring a trial.

In addition, plaintiff asserts it attached to its papers as an exhibit, the affidavit of Priti Kumar, C.P.C., to rebut the facts and opinions on the proper use of the fee schedule, in opposition to the opinion expressed by Carolyn Mallory, C.P.C. on behalf of defendant. Plaintiff contends the difference of opinion of each party’s expert raises a question of fact, which requires a trial.

In reply to plaintiff’s opposition papers, defendant urges the Court to ignore the purported findings of both Dr. Vadim Dolsky, L.Ac., and that of Priti Kumar, C.P.C., as there are no affidavits or exhibits attached to plaintiff’s papers as an exhibit. Indeed, a search by the Court for the existence of any exhibits or affidavits from plaintiff proved useless, as there is none to be found.

A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law with proof in admissible form sufficient to establish the lack of any material issues of fact (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]; see also Manhattan Medical v State Farm Mut. Ins. Co., 20 Misc 3d 1144[A][Civ. Ct. Richmond Cty. 2008]).

Once a showing of entitlement to summary judgment has been made, the burden shifts to the party opposing the motion for summary judgment, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see CPLR 3212 [b]; Alvarez v Prospect Hospital, supra; Zuckerman v City of New York, supra).

An attorney’s affirmation which demonstrates no personal knowledge of the facts, is insufficient to defeat a motion for summary judgment, but may serve as a vehicle for the submission of acceptable attachments, which do provide evidentiary proof in admissible form (see Zuckerman v City of New York, supra).

Here, the Court determines defendant has satisfied its burden of demonstrating the existence and following of its standard office practices and procedures for the timely and proper mailing of its NF-10 denial of claim forms and EOR’s to plaintiff (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2nd Dept, 2007]). Defendant’s mailing methods were sufficient to create a rebuttable presumption of proper mailing (see St. Vincent’s Hosp. of Richmond v GEICO, 50 AD3d 1123, 1124 [2nd Dept 2008]; New York Presbyt. Hosp. v Allstate Ins. Co.,29 AD3d 547 [2nd Dept 2006]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 57 Misc 3d 150[A][App Term, 2d, 11th & 13th Jud Dists 2017]). “…Proof of proper mailing gives rise to a presumption that the item was received by the addressee” (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2nd Dept 2001]), which presumptions of receipt, were not refuted or denied by plaintiff in the instant matter. Plaintiff’s arguments in opposition are unavailing.

The Court further determines that defendant has made a prima facie showing of entitlement to summary judgment as a matter of law with proof in admissible form sufficient to establish the lack of any material issues of fact, which has not been refuted by plaintiff (see Alvarez v Prospect Hospital,supra]; Winegrad v New York Univ. Med. Center, supra; Zuckerman v City of New York, supra).

The failure to submit a rebuttal affidavit from plaintiff’s C.P.C. expert on the contested fee schedule issues, leaves only the opposition analysis of plaintiff’s attorney, with no personal knowledge of the facts, unsupported by expert witness testimony as to the use and interpretation of the fee schedules in the context of defendant’s components and calculations of the alleged maximum permissible fee (see Murali v Upton, 175 Misc 2d 186, 187-188 [Civ Ct, NY Cty, 1997]).

In addition, the failure to submit a rebuttal affidavit from plaintiff’s expert physician showing the medical necessity of its billing in a non-conclusory manner and meaningful way, rebutting the issues raised in the insurer’s IME and peer review reports, fails to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the medical services at issue (see Throgs Neck Multicare, P.C. v Mercury Ins. Co., 52 Misc 3d 138[a}[App Term, 2nd Dept, 9th & 10th Jud Dists 2016]), and leaves the conclusions of defendant’s medical experts un-refuted (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A][App Term, 2nd, 11th & 13th Jud Dists 2009]).

“The law is well settled that a party, in opposition to a motion for summary judgment, must assemble and lay bare affirmative proof to demonstrate that the matters alleged are real and capable of being established upon trial” (see Nelson v Lundy, 298 AD2d 689, 690 [3rd Dept 2002]; see also Wasson v Bond, 80 AD3d 1114 [3rd Dept 2011]). The plaintiff’s papers fail to meet this standard and accordingly, judgment is granted in favor of defendant and the complaint is dismissed (see Jamil M. Abraham, M.D., P.C. v Country Wide Ins. Co.,3 Misc 3d 130[A][App Term, 2nd & 11th Jud Dists 2004]; Murali v Upton, supra).

Accordingly, the motion for summary judgment by defendant pursuant to CPLR 3212(b), is granted. The foregoing constitutes the decision and order of this Court.

Dated: January 5, 2022
J.D.C.

Footnotes

Footnote 1:Defendant’s expert Coder states under oath that in the event medical necessity is found at a trial, the amounts to be allowed under the fee schedule would be $447.32 for Bills 1 through 6, and $3,798.60 for Bills 7 through 46 (see page 46 of Carolyn Mallory’s affidavit).

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova 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 February 18, 2020. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and, in effect, granted plaintiff’s cross motion for summary judgment to the extent of (1) dismissing defendant’s affirmative defense that plaintiff had failed to appear for duly scheduled examinations under oath and (2) awarding plaintiff partial summary judgment on liability.

ORDERED that the order, insofar as appealed from, is modified by vacating so much of the order as granted the branches of plaintiff’s cross motion seeking (1) summary judgment dismissing defendant’s affirmative defense that plaintiff had failed to appear for duly scheduled examinations under oath with respect to the claims received between May 11, 2018 and June 22, 2018 and (2) partial summary judgment on liability with respect to the claims received between May 11, 2018 and June 22, 2018, and by providing that those branches of plaintiff’s cross motion are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. In an order entered February 18, 2020, the Civil Court denied defendant’s motion for summary judgment, stating that “Defendant [had] failed to issue the denials within 30 days of the second missed EUO,” and granted plaintiff’s cross motion to the extent of dismissing the affirmative defense that plaintiff failed to appear for duly scheduled EUOs and awarding plaintiff partial summary judgment on liability.

With respect to the claims received by defendant between May 11, 2018 through June 22, 2018, the record demonstrates, prima facie, that the EUO scheduling letters were timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) to plaintiff, that plaintiff failed to appear for those EUOs, and that defendant timely denied those claims on the ground that plaintiff had failed to appear. However, as we find that a triable issue of fact exists as to whether those EUOs were scheduled to be held at a place that was “reasonably convenient” to plaintiff (see 11 NYCRR 65-3.5 [e]; Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), defendant failed to establish that it is entitled to summary judgment dismissing so much the complaint as sought to recover upon the claims received between May 11, 2018 through June 22, 2018. Consequently, neither party is entitled to summary judgment upon those claims.

While defendant further contends that the branch of its motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims it received between March 22, 2018 and April 27, 2018 should have been granted and that the Civil Court erred in granting the branch of plaintiff’s cross motion seeking partial summary judgment on liability upon those claims, defendant’s argument lacks merit. The record establishes that defendant failed to timely deny those claims (see Island Life Chiropractic Pain Care, LLC v 21st Century Ins. Co., — Misc 3d &mdash, 2021 NY Slip Op 21340 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Furthermore, here there is no basis to disturb so much of the order as granted plaintiff partial summary judgment as to liability upon these claims.

Accordingly, the order, insofar as appealed from, is modified by vacating so much of the order as granted the branches of plaintiff’s cross motion seeking (1) summary judgment dismissing defendant’s affirmative defense that plaintiff had failed to appear for duly scheduled examinations under oath, with respect to the claims received between May 11, 2018 and June 22, 2018 and (2) partial summary judgment on liability with respect to the claims received between May 11, 2018 and June 22, 2018, and by providing that those branches of plaintiff’s cross motion are denied.

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

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Gallo, Vitucci & Klar, LLP, for respondent (no brief filed).

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, defendant moved for summary judgment dismissing the complaint on the ground that, pursuant to Florida law, there was a lack of coverage due to the valid rescission, ab initio, of the Florida automobile insurance policy in question. According to an affidavit submitted by an employee of defendant’s managing general agent, an investigation conducted after the accident revealed that, at the time the policy was renewed, about three weeks before the accident, the policyholder, who is also the assignor, did not reside, or garage the vehicle, in Florida. Plaintiff opposed the motion. By order entered March 10, 2020, the Civil Court granted the motion. On appeal, plaintiff contends that New York law, which does not permit retroactive rescission, controls and, in any event, that defendant failed to demonstrate that the insurance policy had been properly rescinded in accordance with Florida law.

Upon a review of the record, we find that the Civil Court properly applied Florida law to the substantive issue involved herein (see Matter of Allstate Ins. Co. [Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]; Auten v Auten, 308 NY 155, 160-161 [1954]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 60 [2000]). In order to demonstrate that an [*2]automobile insurance policy has been properly rescinded ab initio in accordance with Florida law, an insurer must demonstrate that it gave notice of the rescission to the policyholder and that it returned, or tendered, all paid premiums within a reasonable time after the discovery of the grounds for avoiding the policy (see Fla Stat Ann § 627.728 [5]; Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). Contrary to plaintiff’s arguments, in the case at bar, defendant was not required to demonstrate the basis for the retroactive rescission in support of its motion for summary judgment (see Craigg v Infinity Select Ins. Co., 38 Misc 3d 56, 58 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

As defendant’s motion papers demonstrated that a rescission notice was sent to the policyholder, and that defendant had returned all premiums paid to the policyholder within a reasonable period of time after defendant’s discovery of the grounds for rescinding the policy, defendant established, prima facie, that it had voided the policy ab initio pursuant to Florida law (see Omphil Care, Inc. v Pearl Holding Group Managing Gen. Agent for Ocean Harbor Cas. Ins. Co., 68 Misc 3d 129[A], 2020 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire and Cas. Co., 675 So 2d at 179). Plaintiff failed to raise a triable issue of fact in opposition to the motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

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