[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 10, 2021

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel) for appellant.

Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel) for respondent.

Ordered that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim in the sum of $1,314 submitted on November 26, 2014, is denied; as so modified, the order 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 defendant had timely denied the claims based upon plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. By order entered September 18, 2019, the Civil Court granted defendant’s motion and, in effect, denied plaintiff’s cross motion as untimely pursuant to the parties’ adjournment stipulation, which had been executed by both parties’ attorneys.

At issue are three claims, for $1,314, $620.07 and $620.07. Plaintiff alleges in its complaint that the claim for $1,314 was mailed to defendant on November 26, 2014, and that the two claims for $620.07 were each mailed on February 13, 2015. It{**74 Misc 3d at 19} is undisputed on this appeal that defendant scheduled EUOs of plaintiff’s assignor to be held on December 12, 2014, January 22, 2015, and February 17, 2015; that plaintiff’s assignor did not appear for any of these [*2]scheduled EUOs; that the November 26, 2014 claim was denied on February 24, 2015; and that the February 13, 2015 claims were denied on March 2, 2015. On appeal, plaintiff argues that defendant was required to deny all three claims within 30 days of plaintiff’s assignor’s failure to appear for the second scheduled EUO, on January 22, 2015, and therefore that defendant is precluded from raising this defense.

Plaintiff correctly argues that defendant, by claiming that it had mailed the denial of the November 26, 2014 claim on February 24, 2015, failed to establish, under the circumstances presented, that it had timely denied that claim. A no-fault claim must be paid or denied “within 30 calendar days after the insurer receives proof of claim” (11 NYCRR 65-3.8 [a] [1]; see e.g. New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). While it is not disputed on this appeal that defendant tolled its time to pay or deny the November 26, 2014 claim by timely scheduling an EUO of plaintiff’s assignor (see 11 NYCRR 65-3.8 [a] [1]; see also e.g. Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157 [2013]; Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), the toll ended when plaintiff’s assignor failed to appear at the second EUO on January 22, 2015 (Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it denied the November 26, 2014 claim within 30 days of the end of the toll, it has not demonstrated that it is not precluded from raising its proffered EUO no-show defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]; see also Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [2018]) as to that claim, and the branch of defendant’s motion seeking summary judgment dismissing the November 26, 2014 claim should have been denied.

However, there is no merit to plaintiff’s argument that the branch of defendant’s motion seeking summary judgment dismissing the February 13, 2015 claims should have been denied because defendant was similarly required to deny those{**74 Misc 3d at 20} claims within 30 days of plaintiff’s assignor’s failure to appear on January 22, 2015. Rather, defendant demonstrated that those claims were properly denied on March 2, 2015, within 30 days of their receipt, based upon the prior nonappearance (see 11 NYCRR 65-3.8 [a]; ARCO Med. N.Y., 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]).

It has been long held that “[t]he failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath . . . is a material breach of the [no-fault] policy, precluding recovery of the policy proceeds” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014] [internal quotation marks omitted]; see Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [2018]). While this failure has been termed “a breach of a condition precedent to coverage under the no-fault policy” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; see Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226[U]), it is more appropriately characterized as a “breach of an existing policy condition” (Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d at 197). It would be contrary to 11 NYCRR 65-3.8 (a) (1), and, in effect, render that paragraph a nullity, if, as plaintiff suggests, a no-show defense were to expire 30 days after the second nonappearance—in this instance, defendant’s time to pay [*3]or deny the February 13, 2015 claims would have expired well before the 30 days permitted by the regulations. Indeed, under plaintiff’s interpretation, an eligible injured person and his or her assignees could simply wait 30 days after failing to appear to submit any new claims, and the insurer would then be prohibited from denying those claims based upon the nonappearance.

To the extent that plaintiff argues that a failure to timely deny any one claim based upon a nonappearance at an EUO or independent medical examination (IME) once that defense has accrued constitutes a waiver of the right to thereafter assert that defense as to any and all subsequent claims submitted upon the same covered event, that argument is without merit. In other words, defendant’s failure to timely deny the November 26, 2014 claim based on the January 22, 2015 nonappearance was not a waiver of defendant’s right to timely deny, as it did, the February 13, 2015 claims based upon the same prior nonappearance (see ARCO Med. N.Y., P.C. v Lancer Ins. Co., 2011{**74 Misc 3d at 21}  NY Slip Op 52382[U]). Each such claim is treated on an individual basis (cf. Shtarkman v Allstate Ins. Co., 8 Misc 3d 129[A], 2005 NY Slip Op 51028[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005] [a “blanket” or “general” denial purporting to deny all future claims does not constitute a valid denial of any subsequent claim]; A&S Med. v Allstate Ins. Co., 196 Misc 2d 322 [App Term, 1st Dept 2003], affd 15 AD3d 170 [2005]). We note that, in this respect, EUO and IME nonappearances are treated differently from the failure to provide requested written verification, which is only a proper basis for the denial of claims for which the written verification was specifically requested and cannot, based on the regulations and the case law, be asserted as a basis for a denial of any subsequently submitted claim (see 11 NYCRR 65-3.8 [b] [3]; see generally Shtarkman v Allstate Ins. Co., 2005 NY Slip Op 51028[U]; A&S Med. v Allstate Ins. Co., 196 Misc 2d 322 [2003]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim in the sum of $1,314 submitted on November 26, 2014, is denied.

Aliotta, P.J., Weston and Toussaint, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 10, 2021

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC (Damin J. Toell of counsel) for appellant.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel) for respondent.

Ordered that the order, insofar as appealed from, is affirmed, with $25 costs; and it is further ordered that, on the court’s own motion, counsel for the respective parties and Damin J.{**74 Misc 3d at 10} Toell, Esq., are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against The Rybak Firm, PLLC, and Damin J. Toell, Esq., pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing a digital copy of an affidavit or affirmation on that issue, with proof of service, onto the court’s digital portal, Records, Briefs & Motions Drop Off, found on the court’s website at: https://nycourts.sharepoint.com/sites/AT2-DCS/Site Pages/Home.aspx, on or before January 10, 2022; and it is further ordered that the clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon counsel for the respective parties and Damin J. Toell, Esq.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8). In multiple affidavits in support of the motion, defendant’s employees asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no agents operating out of, or representatives soliciting business in, New York, and does not own, use or [*2]possess any real property in New York. Furthermore, defendant argued that it had been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over this defendant (see e.g. Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005]). Plaintiff cross-moved for summary judgment and opposed the motion with an affirmation of its counsel, who made unsupported assertions that, among other things, defendant had transacted business in New York by knowingly issuing policies to New York drivers, and that defendant had established an ongoing relationship with defense counsel in New York, thereby subjecting defendant to jurisdiction in New York. Defendant’s attorney asserted in a reply affirmation that the arguments raised by plaintiff had been rejected by this court in Compas Med., P.C. v American Ind. Ins. Co. (47 Misc 3d 134[A], 2015 NY Slip Op 50481[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff appeals, as limited by its brief, from so much an order of the Civil Court entered February 5, 2018, as granted defendant’s motion to dismiss the complaint.

[1] Contrary to plaintiff’s contention, defendant made a prima facie showing that personal jurisdiction had not been obtained over it (see Gentlecare Ambulatory Anesthesia Servs. v {**74 Misc 3d at 11}American Ind. Ins. Co., 63 Misc 3d 144[A], 2019 NY Slip Op 50635[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Lida’s Med. Supply, Inc. v American Ind. Ins. Co., 63 Misc 3d 137[A], 2019 NY Slip Op 50502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pavlova v American Ind. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50943[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “In opposing a motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction, a plaintiff need only make a prima facie showing that such jurisdiction exists” (Hopstein v Cohen, 143 AD3d 859, 860 [2016] [internal quotation marks omitted]; see also Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008]). In the case at bar, the affirmation of plaintiff’s attorney was insufficient to demonstrate that personal jurisdiction over defendant existed under the Civil Court’s long-arm statute (see CCA 404 [a]), as plaintiff’s counsel failed to establish that he possessed personal knowledge of the facts.

Plaintiff’s contention that Matter of American Ind. Ins. Co. v Nova Acupuncture, P.C. (137 AD3d 1270 [2016]) (Nova) stands for the proposition that New York courts might have personal jurisdiction over American Independent Insurance Company (AIIC) lacks merit. In Nova, the issue was limited to whether AIIC could be compelled to arbitrate a claim for first-party no-fault benefits. However, as the Appellate Division, Second Department, had previously noted, “[a]t this pre-arbitration stage, the issue is not whether New York courts have jurisdiction over AIIC, but whether the arbitrator has authority under the terms of the insurance contract to award no-fault benefits to the appellants” and “[w]hile personal jurisdiction is required for the exercise of the state’s judicial power over a party, arbitration is a form of dispute resolution almost wholly independent of the court system” (American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761, 762-763 [2013]).

To the extent plaintiff argues that “facts essential to justify opposition may exist but cannot then be stated” (CPLR 3211 [d]), this argument is not properly before us, as plaintiff’s contention that it needs discovery “regarding the nature and extent of [defendant’s] relationship with parent/subsidiary companies and, in particular, the extent of activity in New York State by these companies” is raised by plaintiff for the first time on appeal (see Copp v Ramirez, 62 AD3d 23 [2009]; Compas Med., P.C. v American Ind. Ins. Co., 47 Misc 3d 134[A], {**74 Misc 3d at 12}2015 NY Slip Op [*3]50481[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Even if the argument were properly before us, neither the unverified complaint nor the conclusory affirmation of plaintiff’s counsel in opposition to defendant’s motion constituted the “tangible evidence” (Mandel v Busch Entertainment Corp., 215 AD2d 455, 455 [1995]) necessary to substantiate plaintiff’s allegations that jurisdiction could exist, thereby demonstrating that plaintiff’s assertion of the existence of a jurisdictional predicate was not “frivolous” (Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]). Thus, plaintiff did not make a “sufficient start” (id.) by showing that essential jurisdictional facts might exist to warrant discovery on the issue of personal jurisdiction over defendant (see Compas Med., P.C., 2015 NY Slip Op 50481[U]).

[2] We conclude that sanctions may be warranted for the conduct of The Rybak Firm, PLLC, and Damin J. Toell, Esq., as their conduct appears to be frivolous (see Flushing Expo, Inc. v New World Mall, LLC, 116 AD3d 826 [2014]; Ram v Torto, 111 AD3d 814 [2013]). As relevant here, frivolous conduct includes the assertion of arguments that are “completely without merit in law and [which] cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [c] [1]). Here, the appellant’s brief submitted on behalf of plaintiff is substantially the same as the appellant’s brief submitted by The Rybak Firm, PLLC, and Damin J. Toell, Esq., in Excel Prods., Inc. v American Ind. Ins. Co. (65 Misc 3d 157[A], 2019 NY Slip Op 51964[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]) in which, although the plaintiff provider was appealing from a 2017 order of the Civil Court which

“expressly stated that plaintiff’s arguments and the ‘evidence’ upon which plaintiff relied had previously been considered and rejected by this court and that plaintiff’s remaining arguments were either contrary to a prior decision by the Appellate Division, Second Department, or predicated upon ‘speculative factual arguments,’ plaintiff’s appellate brief d[id] not appear to mention, let alone address, the prior decisions of this court or of the Appellate Division which may have rendered plaintiff’s appellate arguments frivolous” (2019 NY Slip Op 51964[U], *2).

{**74 Misc 3d at 13}Similarly, the appellant’s brief submitted on behalf of plaintiff in the instant case is also substantially the same as the respondent’s brief submitted by The Rybak Firm, PLLC, and Damin J. Toell, Esq., in Parisien v American Ind. Ins. Co. (65 Misc 3d 157[A], 2019 NY Slip Op 51965[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

In light of the foregoing, the order, insofar as appealed from, is affirmed and, on the court’s own motion, counsel for the respective parties and Damin J. Toell, Esq., are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against The Rybak Firm, PLLC, and Damin J. Toell, Esq., pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing a digital copy of an affidavit or affirmation on that issue, with proof of service, onto the court’s digital portal, Records, Briefs & Motions Drop Off, found on the court’s website at: https://nycourts.sharepoint.com/sites/AT2-DCS/Site Pages/Home.aspx, on or before January 10, 2022.

Aliotta, P.J., Elliot and Golia, JJ., concur.

Index No. CV-703234-20/QU

Plaintiff’s counsel:

Mandell and Santora, PC

29 Broadway

Lynbrook, NY 11563

Defendant’s counsel:

Moira A. Doherty

999 Stewart Avenue, Suite 200

Bethpage, NY 11714

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 in Support dated January 5, 2021 (“Motion“) and electronically filed with the court on January 21, 2021. 1

Plaintiff’s Affirmation in Opposition dated May 27, 2021 (“Opposition“) and electronically filed with the court on the same date. 2

Defendant’s Affirmation in Reply dated June 4, 2021 (“Reply“) and electronically filed with the court on the same date. 3

II. Background

In a summons and complaint filed on February 21, 2020, Plaintiff sued Defendant insurance company to recover $1,310.94 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Desocorro, plus attorneys’ fees and statutory interest (see Motion, Aff. of Slack-Dery, Ex. A). A notice of trial was filed on August 5, 2020. On January 21, 2021, Defendant moved for an extension of time to move for summary judgment, and for summary judgment dismissing Plaintiff’s complaint on the ground that the medical services provided to Desocorro were not medically necessary and alternatively, that the amount billed by Plaintiff had exceeded the applicable Workers Compensation fee schedules. Plaintiff opposed Defendant’s motion for summary judgment. An oral argument by both parties was conducted by this Court on November 8, 2021.

III. Decision

CPLR 3212[a] provides:

Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

Since the notice of trial was filed on August 5, 2020, December 3, 2020 was the deadline for moving for summary judgment (see id.). Because Defendant served its instant motion for summary judgment on January 21, 2021, it is untimely. Defendant candidly admitted to the lateness of its motion, but sought an extension of time (CPLR 2004; 2005). The Court of Appeals has held that good cause under CPLR 3212[a] “requires a showing of good cause for the delay in making the motion — a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial filings, however tardy” (Brill v City of New York, 2 NY3d 648, 652 [2004]). Absent a showing of good cause for the delayed filing, this Court lacks discretion to consider a late motion even if it is meritorious and does not prejudice any party (Bargil Assoc., LLC v Crites, 173 AD3d 958, 958 [2d Dept 2019]; Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d 796, 796 [2d Dept 2011]).

In our instant matter, the only explanation Defendant offered was that “Defendant’s counsel was prevented from serving the subject motion as [its] offices were closed due to the Coronavirus/Covid 19 pursuant to state requirements/regulations pertaining to professional services and non-essential businesses” (Motion, Slack-Dery Aff. ¶107). Executive Order 202.6, which went into effect on March 20, 2020, provided:

All businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize. Each employer shall reduce the in-person workforce at any work locations by 50% no later than March 20 at 8 p.m. Any essential business or entity providing essential [*2]services or functions shall not be subject to the in-person restrictions”

(9 NYCRR 8.202.6). Executive Order 202.8 (collectively with Executive Order 202.6, the “Executive Orders“) increased the in-person workforce reduction to 100% by March 22, 2020 (see 9 NYCRR 8.202.8). Thus, rather than closing non-essential businesses as Defendant contended, the Executive Orders prohibited in-person working but allowed businesses to operate remotely. In addition, by Administrative Order of the Chief Administrative Judge, on March 22, 2020, New York State Court prohibited paper and electronic filings for non-essential matters (see AO/78/20). However, effective May 4, 2020, New York State Court permitted electronic filing of, among other things, motions in pending matters (see AO/87/20). It is noted that Defendant did not claim its counsel’s offices could not work remotely or was unable to file its motion electronically.

Since Defendant failed to establish good cause for untimely filing its summary judgment motion, it must be denied (Bargil Assoc., LLC v Crites, 173 AD3d at 959; Bivona v Bob’s Discount Furniture of NY, LLC, 90 AD3d at 796), without consideration of its merits (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 727 [2004]; Giambona v Hines, 104 AD3d 811, 812 [2d Dept 2013]; Czernicki v Lawniczak, 25 AD3d 581, 581 [2d Dept 2006]; Long v Children’s Vil., Inc., 24 AD3d 518, 519 [2d Dept 2005]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for an extension of time to file a motion for summary judgment is denied; and it is further

ORDERED that Defendant’s motion for summary judgment is denied as untimely.

This constitutes the DECISION and ORDER of the Court.

Dated: December 6, 2021

Queens County Civil Court

_________________________________

Honorable Wendy Changyong Li, J.C.C.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered March 18, 2019. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and denied the branches of plaintiff’s cross motion seeking a “finding that Plaintiff’s prima facie case has been established” and an order sanctioning defendant.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment or, in the alternative, for a “finding that Plaintiff’s prima facie case has been established,” and an order sanctioning defendant. Insofar as is relevant to this appeal, by order entered March 18, 2019, the Civil Court granted defendant’s motion and denied the branches of plaintiff’s cross motion seeking a “finding that Plaintiff’s prima facie case had been established” and an order sanctioning defendant.

Upon a review of the record, we find that a triable issue of fact exists as to whether the EUOs were scheduled to be held at a place which 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]). In addition, there is also an issue of fact as to whether, prior to the EUO scheduled for October 14, 2016, the parties mutually agreed to reschedule the EUO (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Plaintiff’s contention that the Civil Court should have granted the branches of plaintiff’s cross motion seeking a “finding that Plaintiff’s prima facie case has been established” and an order sanctioning defendant lacks merit.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decided on December 3, 2021

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

Index No. CV-711542-20/QU

Plaintiff’s counsel:

Lewin & Baglio, LLP

1100 Shames Drive, Suite 100

Westbury, NY 11590

Defendant’s counsel:

Law Offices of Goldstein, Flecker & Hopkins

2 Huntington Quadrangle, Suite 2N01

Melville, NY 11747

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 in its claims:

Papers/Numbered

Defendant’s Notice of Motion as well as Certification and Verification dated November 20, 2020 (“Motion“) and electronically filed with the court on the same date. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated March 31, 2021 (“Cross-Motion“) and electronically filed with the court on the same date. 2

Defendant’s Affirmation in Opposition to Cross-Motion dated April 26, 2021 (“Opposition to [*2]Cross-Motion“) and electronically filed with the court on the same date. 3

II. Background

In a summons and complaint filed July 17, 2020, Plaintiff sued Defendant insurance company to recover $2,141.70 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Browne, plus attorneys’ fees and statutory interest (see Motion, Aff. of Tapada, Ex. A). Defendant moved to dismiss the complaint on the grounds that Plaintiff submitted some claims untimely and other claims exceeded the fee amount prescribed by applicable fee schedules. Plaintiff cross-moved for summary judgment on its claims. An oral argument by both parties was conducted by this Court on November 15, 2021.

III. Discussion

The injured party or assignee of No Fault benefits must submit proof of the claim to the insurer within 45 days of the date health services were rendered (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 AD3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; 11 NYCRR § 65-1.1[d]). Compliance with the 45-day proof of claim requirement is a condition precedent to a No Fault insurer’s liability (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 590 [2011]; 11 NYCRR § 65-1.1[d]). In addition, automobile insurers must provide $50,000.00 coverage for “basic economic loss” (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016]). Basic economic loss expenses are limited by Insurance Law § 5108 (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). Charges for basic economic loss “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). No payment is due for services in excess of charges permitted by Insurance Law § 5108 (11 NYCRR 65-3.8[g][1][ii]; Excel Surgery Ctr., LLC v Metropolitan Prop. & Cas. Ins. Co., 65 Misc 3d 149[A], 2019 NY Slip Op 51843[U] * 1 [App Term 2d Dept 2019]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] *1 [App Term 2d Dept 2018]).

Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (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]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; 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 281-82).

To support its motion, Defendant presented an affidavit sworn November 19, 2020, in which Victor (see Motion, Aff. of Tapada, Ex. C, Defendant’s Claims Associate, attested in detail to Defendant’s standard office practices and procedures for processing claims it received. Victor attested that Defendant submitted six (6) bills forming the claim for $2,141.70 in this case, which Defendant received respectively on September 16, 2019. A bill for $206.69 for services provided [*3]on July 10, 2019, a bill for $154.38 for services provided from July 9 to 13, 2019, a bill for $800.00 for services provided on July 9, 2019, a bill for $49.82 for services provided on July 11, 2019, and a bill for $235.31 for services provided on July 10, 2019 (“Early July 2019 Bills“) were denied on September 24, 2019 on the grounds that Plaintiff failed to timely submit proof of claim and that the bills exceeded the applicable fee schedule. Given the range of dates of service from July 9 to July 13, 2019, the deadline for filing proof of claim ranged from August 23 to 27, 2019. Regarding a bill for $898.94 for services provided July 30, 2019 (“Late July 2019 Bill“), Defendant paid $203.44 and denied the remainder of the claim on the ground that it exceeded the applicable fee schedule. The deadline for filing proof of claim for this bill was September 13, 2019. Copies of Plaintiff’s claim forms, Defendant’s denials of claim and explanations of review for each claim were attached to Victor’s affidavit. Defendant’s evidence demonstrated that Plaintiff untimely submitted all the claims for the Early July 2019 Bills. Thus, Defendant established that the Early July 2019 Bills were timely denied on the ground that proof of claim was untimely submitted (Lenox Hill Radiology & Mia, P.C. v American Mfrs. Mut. Ins. Co., 41 Misc 3d 131[A], 2013 NY Slip Op 51750[U] *1 [App Term 2d Dept 2013]; Lecia Supply, Inc. v American Tr. Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50711[U] *1 [App Term 2d Dept 2013]; Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51351[U] *1-2 [App Term 2d Dept 2012]; Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 26 Misc 3d 145[A], 2010 NY Slip Op 50449[U] *1 [App Term 2d Dept 2010]).

In opposition, Plaintiff argued that Defendant’s evidence was inadmissible, so that it was insufficient to establish timely denial of Plaintiff’s claim. While Plaintiff argued that Victor’s statements that Plaintiff untimely submitted its claims were hearsay because Defendant failed to present the forms upon which he based his statements (see Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1021 [2d Dept 2020]), as noted above, the denial of claim forms and explanations of review which Victor addressed in his affidavit were attached to his affidavit. Contrary to Plaintiff’s contention, Defendant’s denial of claim forms expressly advised that the untimely submission of claim would be excused if Plaintiff provided reasonable justification for the claim’s late submission, so complied with applicable regulations (11 NYCRR §§ 65-1.1[d]; 65-3.3[e]; Lenox Hill Radiology & Mia, P.C. v American Mfrs. Mut. Ins. Co., 2013 NY Slip Op 51750[U] *1; Lecia Supply, Inc. v American Tr. Ins. Co., 2013 NY Slip Op 50711[U] *1; Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51351[U] *2; Prestige Med. & Surgical Supply, Inc. v Chubb Indem. Ins. Co., 2010 NY Slip Op 50449[U] *1).

Plaintiff also presented an affidavit dated March 29, 2021, in which Higgins, Plaintiff’s office manager, attested that the claims were mailed to Defendant on September 10, 2019. Higgins acknowledged that the bills were not sent “within 45 days as the result of an internal office error” and explained that assignor’s “insurance information was misplaced and the office had difficulty getting in touch with [assignor] to verify the insurance information” (Cross-Motion, Aff. of Enright, Ex. 2 at 2). The court rejects this conclusory explanation as it did not detail Plaintiff’s attempts to contact assignor to justify the delay of at least 14 days between the deadline to submit the claims and the date Plaintiff sent them (see Synergy First Med., PLLC v MVAIC, 44 Misc 3d 127[A], 2014 NY Slip Op 50964[U] *1 [App Term 2d Dept 2014]). In any event, Plaintiff was required to provide “written proof providing clear and reasonable justification for the failure to comply with such time limitation” (11 NYCRR 65-1.1[d]; Synergy First Med., PLLC v MVAIC, 2014 NY Slip Op 50964[U] *1; AAA Chiropractic, P.C. v MVAIC, 29 Misc 3d 131[A], 2010 NY Slip Op 51896[U] *1 [App Term 2d Dept 2010]).

Finally, Regarding the Late July 2019 Bill, for which Defendant paid a reduced amount and denied the remainder on the ground it exceeded the applicable fee schedule, Defendant raised no arguments how the Late July 2019 Bill exceeded the fee schedule in support of its motion. Defendant only identified in its Explanation of Review regarding this bill the fee code that should have been applied warranting reduction of the amount billed. Although the court may take judicial notice of the fee schedules, they do not independently establish whether Plaintiff properly applied them in billing for the services provided (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20-22 [2d Dept 2009]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 2017 NY Slip Op 50207 *1-2). Rather, interpretation of the applicable fee schedule must be supported by expert opinion evidence (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 55 Misc 3d147[A], 2017 NY Slip Op 50706[U] *1 [App Term 2d Dept 2017]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] *2 [App Term 2d Dept 2012]). Here, Victor did not purport to be an expert in fee schedules in his affidavit. Since Defendant did not otherwise support its motion with an expert affidavit to interpret the fee schedule, Defendant failed to meet its initial burden of demonstrating its entitlement to summary judgment reducing the amount of the Late July 2019 Bill (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706[U] *1; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 2012 NY Slip Op 51335[U] *2, see Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 2017 NY Slip Op 50954[U] *2 [App Term 2d Dept 2017]). Since Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, the Court denies Defendant’s Motion regarding the Late July 2019 Bill (see Pullman v Silverman, 28 NY3d 1060, 1062 [2016]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

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]). As discussed above, Higgins admitted that the bills were not timely submitted and provided a conclusory explanation for the untimely submission of the bills, which the court rejected. Plaintiff also relied on Defendant’s denials of 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]), but they demonstrated that the bills were untimely submitted and denied on that basis. Plaintiff presented no arguments that the Late July 2019 Bill complied with the applicable fee schedule and presented no expert evidence to support such a contention. 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 (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 granted as to the Early July 2019 Bills (i.e., the bill for $206.69 for services provided on July 10, 2019, the bill for $154.38 for services provided from July 9 to 13, 2019, the bill for $800.00 for services provided on July 9, 2019, the bill for $49.82 for services provided on July 11, 2019, and the bill for $235.31 for services provided on July 10, 2019), but otherwise denied; and it is further

ORDERED Plaintiff’s cross-motion for summary judgment in its claims is denied.

This constitutes the Decision and Order of the court.

Dated: December 2, 2021

Queens County Civil Court

Honorable Wendy Changyong Li, J.C.C.

Decided on November 26, 2021

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

Nightingale Law, P.C. (Michael S. Nightingale of counsel), for appellant. The Law Offices of Florence D. Zabokritsky, PLLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 5, 2019. The order denied defendant’s motion to sever the claim of each assignor into separate actions.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to sever the claim of each assignor into separate actions is granted.

In this action by a provider to recover first-party no-fault benefits assigned to it by two assignors, defendant appeals from an order of the Civil Court which denied defendant’s motion pursuant to CPLR 603 to sever the cause of action seeking to recover upon a claim for supplies furnished to Joe Chaluisant from the remaining cause of action seeking to recover upon a claim for supplies furnished to Robert Murray. Defendant’s counsel asserted that the claims had arisen out of two different accidents and that defenses relating to each claim differed. The Civil Court denied defendant’s motion.

While the decision to grant severance (see CPLR 603) is an exercise of judicial discretion which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co., 61 Misc 3d [*2]152[A], 2018 NY Slip Op 51785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; City Chiropractic, P.C. v Auto One Ins. Co., 59 Misc 3d 144[A], 2018 NY Slip Op 50730[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; King’s Med. Supply Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), in this instance, severance is warranted.

The complaint alleges that the claims arose out of separate accidents which occurred on different dates. The record further reveals that while one claim was denied on the ground of lack of medical necessity, the other claim was denied due to a failure to cooperate with defendant’s attempt to investigate the alleged accident. As such, different questions of fact and law are involved, and defendant’s motion to sever the causes of action should have been granted (see Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co., 65 Misc 3d 140[A], 2019 NY Slip Op 51704[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; King’s Med. Supply Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U]; cf. Unique Physical Therapy, PT, P.C. v Global Liberty Ins. Co. of NY, 71 Misc 3d 132[A], 2021 NY Slip Op 50323[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Accordingly, the order is reversed and defendant’s motion to sever the claim of each assignor into separate actions is granted.

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

Index No: CV-714348/19

Attorney for plaintiff: Gabriel & Moroff, PC

Attorney for defendant: The Law Offices of Rubin & Nazarian

In this action for the payment of no-fault benefits, defendant moves seeking an order granting it summary judgment and dismissal of this action. Defendant avers that inasmuch as it timely and properly denied plaintiff’s claims for medical services under the no-fault portion of its policy, on grounds that it did not insure any of the vehicles involved in the assignor’s accident, the instant action must be dismissed. Plaintiff opposes the instant motion, asserting that insofar as defendant’s submissions fail to establish that it did not insure the vehicles involved in the assignor’s accident with admissible evidence, defendant fails to establish prima facie entitlement to summary judgment. Plaintiff also cross-moves seeking summary judgment, averring that defendant’s very own denial forms establish that it timely submitted the instant claim and is now overdue.

For the reasons that follow hereinafter, defendant’s motion is denied and plaintiff’s cross-motion is granted.

The instant action is for payment of no-fault insurance benefits for medical treatment. The complaint alleges, in relevant part, the following: STEAVEN MERCEDES (Mercedes) was involved in a motor vehicle accident and thereafter, sought medical treatment from plaintiff for injuries sustained. Mercedes was covered by an insurance policy issued by defendant, which pursuant to Article 51 of the Insurance Law, required payment of health related expenses and whose benefits Mercedes [*2]assigned to plaintiff. The treatments provided by plaintiff to Mercedes totaled $1,789.19, were covered by defendant’s policy, were billed to defendant, but were nevertheless not paid. Based on the foregoing, plaintiff seeks payment of the aforementioned sums pursuant to the Comprehensive Motor Vehicle Insurance Reparations Act ^[FN1] (11 NYCRR 65-3.1 et seq.).

Standard of Review

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not. As noted by the Court of Appeals,

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’ Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case

(Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in admissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]).

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]), [s]upreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding, not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).

No-Fault Law

Pursuant to 11 NYCRR 65-2.4(a), entitlement to no-fault benefits requires compliance with all conditions precedent, one of which is that the eligible injured person or that person’s assignee or legal representative shall submit written proof of claim to the self-insurer, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered. The eligible injured person or that person’s legal representative shall submit written proof of claim for work loss benefits and for other necessary expenses to the self-insurer as soon as reasonably practicable but, in no event, later than 90 days after [*3]the work loss is incurred or the other necessary services are rendered. The foregoing time limitations for the submission of proof of claim shall apply unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.

(11 NYCRR 65-2.4[c]^[FN2] ). Because the No-Fault Law is a derogation of common law, it must be strictly construed (Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]; Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049, 1050 [3d Dept 1983]), and thus, when an insurer fails to timely deny or pay a claim, as required by the statutory schedule, it is precluded from interposing a statutory exclusion defense (Presbyt. Hosp. in City of New York, 210 AD2d at 211; Presbyt. Hosp. in the City of New York v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2d Dept 2002]; Mount Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11, 16 [2d Dept 1999]; Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]).

Similarly, and for the same reasons, compliance with the technical requirements of the no-fault law are preconditions for payment to a medical provider thereunder. Accordingly, a medical provider’s failure to tender a claim and requisite proof to an insurer within 45 days generally warrants denial of said claims [*4](Kane v Fiduciary Ins. Co. of Am., 114 AD3d 405, 405 [1st Dept 2014] [“The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated.”]; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2d Dept 2010]; Sunrise Acupuncture PC v ELRAC, Inc., 52 Misc 3d 126[A], *1 [App Term 2016]; Nir v MVAIC, 17 Misc 3d 134[A], *1-2 [App Term 2007]). However, 11 NYCRR 65-2.4[c] and 11 NYCRR 65-1.1 state that the time limitations for the submission of proof of claim shall apply unless the eligible injured person or that person’s representative submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.

Accordingly, when the proponent of a belated claim establishes that the delay is reasonably justifiable, the insurer may not deny the same (Matter of Med. Socy. of State v Serio, 100 NY2d 854, 862-863 [2003] [“At the same time, the new regulations relax the standard for accepting late filings, replacing the previous rule that late filings were permitted only when written proof showed that compliance with a deadline was ‘impossible’ (11 NYCRR 65.11 [m] [2], [3]; 65.12), with a standard excusing a missed deadline when there is a “clear and reasonable justification” for the delay (11 NYCRR 65-2.4 [b], [c]; 65-1.1).”]). In such cases, plaintiff must assert its reasonable justification with its belated submission (Nir at *2 [“The record further reveals that, in opposition to MVAIC’s cross motion seeking summary judgment, plaintiff failed to proffer admissible evidence demonstrating that there was a ‘reasonable justification’ for the submission of the claim more than 130 days after the services were rendered.”]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89, 90 [App Term 2007] [“Even assuming, arguendo, that plaintiff’s inadvertent submission of the claim to State Farm initially justified its delay in submitting the claim to MVAIC (see 11 NYCRR 65-3.5 [1]), plaintiff failed to address, much less provide a ‘reasonable justification’ for the 3½-month delay between December 18, 2003, when plaintiff’s counsel advised plaintiff that there was no coverage, and plaintiff’s submission of the claim to MVAIC on March 26, 2004.”]; see Bronx Expert Radiology, P.C. v Motor Veh. Acc. Indem. Corp., 20 Misc 3d 140[A], *1 [App Term 2008]; Elm Med., P.C. v MVAIC, 20 Misc 3d 145[A], *1 [App Term 2008]).

Generally, once an insured receives a claim from a medical provider, it must pay or deny the same within 30 days thereof (11 [*5]NYCRR 65-3.8[c]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1168 [2d Dept 2010]; Nyack Hosp. v Gen. Motors Acceptance Corp., 27 AD3d 96, 100 [2d Dept 2005], affd as mod and remanded, 8 NY3d 294 [2007]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999]).

However, the foregoing period – within which to deny or pay a claim – can be extended by a proper request for verification (11 NYCRR 65-3.5[b] [“Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms.”]), and when such a request is made, “an insurer is not obligated to pay or deny a claim until all demanded verification is provided” (New York and Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2d Dept 2006]; see Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004]; Nyack Hosp. at 101; New York Hosp. Med. Ctr. of Queens at 584; New York & Presbyt. Hosp. v Am. Tr. Ins. Co., 287 AD2d 699, 700 [2d Dept 2001]). A request for verification submitted more than 15 days after a claim is received does not render the same invalid and merely serves to diminish the 30 day period within which to pay or deny a claim once verification is received; such time diminished by the number of days beyond the 15 days within which to request verification prescribed by the No-Fault Law (11 NYCRR 65-3.8[j]; Nyack Hosp. at 100-101 [“Therefore, inasmuch as the defendants mailed the request for additional verification two days beyond the 15-day period, the time within which the defendants had to either pay or deny the claim was reduced from 30 to 28 days.”]). A request for verification, thus, tolls the time within which to pay or deny a claim and such time does not begin to run until the documents are provided (New York & Presbyt. Hosp. at 700 [“Since the respondent did not supply the additional verification of the claim, the 30-day period in which the defendant had to either pay or deny the claim did not begin to run.”]; Westchester County Med. Ctr. at 555).

A medical provider seeking payments under the relevant no-fault policy establishes prima facie entitlement to summary judgment with proof of that it submitted a timely claim form to the defendant, proof of the fact and the amount of the loss sustained, and “proof either that the defendant [] failed to pay or deny the claim within the requisite 30-day period, or that the defendant [] issued a timely denial of claim that was conclusory, vague or without merit as a matter of law” (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A] [App Term 2011]; see, New York and Presbyt. Hosp. at 513; Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742 [2d Dept 2004]; E. Coast Psychological, P.C. v [*6]Allstate Ins. Co., 13 Misc 3d 133(A), *1 [App Term 2006]; Mollins v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 133(A), *1 [App Term 2007]). A provider can establish the foregoing with “evidentiary proof that the prescribed statutory billing forms were mailed and received [and] that payment of no-fault benefits [is] overdue” (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]). However, an insurer raises an issue of fact sufficient to preclude summary judgment when it tenders evidence evincing a timely denial (id. at 124 [“However, in opposition, the defendant submitted admissible evidence in the form of an affidavit of an employee with knowledge of the defendant’s standard office practices or procedures designed to ensure that items were properly addressed and mailed.”]; New York and Presbyt. Hosp. at 513 [“However, in opposition to the motion, the defendant established that it had made a timely request for additional information and that it timely denied the claim within 30 days of receipt of the hospital records it had requested to verify the claim. Accordingly, the Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action.”]), or that denial within the 30 day prescribed by law wasn’t given because such period was extended by a request for verification (Nyack Hosp. at 100 [“Here, the defendants presented evidence in opposition to the motion and in support of their cross motion demonstrating that the request for the complete inpatient hospital records mailed to the plaintiff on September 12, 2003, resulted in an extension of the 30-day statutory period.”]; New York Hosp. Med. Ctr. of Queens at 585; New York & Presbyt. Hosp. at 700).

Conversely, once an insurer establishes a timely denial on grounds that a plaintiff failed to tender a claim within 45 days, the insurer establishes prima facie entitlement to summary judgment (St. Barnabas Hosp. v Penrac, Inc. at 734; Sunrise Acupuncture PC at *1). In addition, an insurer who demonstrates that despite proper requests for verification, verification was never received resulting in a denial of the claim also establishes prima facie entitlement to summary judgment (New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 649 [2d Dept 2014]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2d Dept 2006]; Nyack Hosp. at 99; Cent. Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2d Dept 2005]; Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]; Westchester County Med. Ctr. at 555). This is particularly true when a demand for verification remains unanswered for more than 120 days. To be sure, 11 NYCRR 65-3.5(o) states that [a]n applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such [*7]verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply. The insurer shall advise the applicant in the verification request that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.

Additionally, 11 NYCRR 65-3.8(b)(3) states that

an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5(o) of this Subpart.

Thus, when the insurer establishes denial of a claim because a demand for verification went unanswered for 120 days or more, prima facie entitlement to summary judgment is established (Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004] [relying on 11 NYCRR 65.11[m][3] which is now 11 NYCRR 65-3.8[b][3], the court held that “[t]he defendant denied the claim on October 9, 2002, more than 180 days after NY & P Hospital first notified it of the claim. Under these circumstances, the claim was properly denied.”]; Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co., 232 AD2d 454, 454 [2d Dept 1996] [same]; TAM Med. Supply Corp. v Tri State Consumers Ins. Co., 57 Misc 3d 133(A), *1 [App Term 2017]). Significantly, in Hosp. for Joint Diseases, the court held that defendant – the insurer – established prima facie entitlement to summary judgment with an affidavit from a claims representative, who, based on his review of defendant’s business records, established defendant’s defense – timely denial (id. at 433-434)^[FN3] .

It is well settled that a party’s burden to establish that forms were mailed and therefore, presumed to have been received by another is established upon the tender of proof in admissible form “of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (New York and Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001] [“Here, the deposition testimony of AIC’s president, a certificate of mailing, and a mailing ledger signed and date-stamped by a U.S. Postal Service employee established the actual mailing of the notice of cancellation to the plaintiff, giving rise to a rebuttable presumption of delivery.”]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term 2007] [the law does not “requir[e] that an affidavit of mailing must state either that it was the affiant’s duty to ensure compliance with the insurer’s standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed.”]). Notably, an affidavit of mailing, which attests to the practice of mailing documents must contain information with respect to how the items mailed were accurately addressed and the absence of such information renders the affidavit inadequate (Orthotech Express Corp. v MVAIC, 37 Misc 3d 128(A), *1 [App Term 2012] [“In the absence of any recitation of such matters as how the names and addresses on the IME notices were checked for accuracy and how the notices were picked up for mailing, we cannot say, on this record, that the office practice and procedure followed by defendant’s contractor was designed to ensure that the IME notices were addressed to the proper parties and properly mailed.” (internal quotation marks omitted)]; Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676-677 [2d Dept 2007] [“The supervisor, however, had no personal knowledge that the verification requests were actually mailed on the dates they were issued, and her conclusory allegations regarding the defendant’s office practice and procedure failed to establish that the practice and procedure was designed to ensure that the verification requests were addressed to the proper party and properly mailed.”]).

In New York, no-fault benefits, also known as first party benefits are both promulgated and governed by the Insurance Law and the Comprehensive Motor Vehicle Insurance Reparations Act (CMVIRA) (11 NYCRR 65-1.1, et seq).

Insurance Law § 5103 (a) and (a)(1) state, in relevant part that [e]very owner’s policy of liability insurance issued on a motor vehicle . . . shall be liable for; the payment of first party benefits to . . . Persons, other than occupants of another motor vehicle or a motorcycle, for loss arising out of the use or operation in this state of such motor vehicle.

First party benefits “means payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle” (Insurance Law § 5102[b]). Basic economic loss “means, up to fifty thousand dollars per person of” medical expenses and lost earnings (Insurance Law § 5102[a]].

11 NYCRR 65-1.1 states that [e]very owner’s policy of liability insurance issued in satisfaction of the minimum requirements of article 6 or 8 of the Vehicle and Traffic Law and article 51 of the Insurance Law and every policy issued in satisfaction of the minimum requirements of article 44-B of the Vehicle and Traffic Law shall contain provisions providing minimum first-party benefits equal to those set out below in the mandatory personal injury protection endorsement (New York).

The foregoing insurance is required in all policies issued in New York after January 26, 2011 (11 NYCRR 65-1.1[b][1] [“An insurer shall provide . . . The Mandatory Personal Injury Protection Endorsement (New York) to every insured with respect to a policy issued, renewed, modified, altered or amended on or after January 26, 2011.”]). Per the relevant endorsement, an insurer “will pay first-party benefits to reimburse for basic economic loss sustained by an eligible injured person on account of personal injuries caused by an accident arising out of the use or operation of a motor vehicle” (11 NYCRR 65-1.1[d]). Per the endorsement, “[b]asic economic loss shall consist of medical expense, work loss, other expense[s.] (id.). An eligible person is defined as the named insured . . . any relative who sustains personal injury arising out of the use or operation of any motor vehicle . . . [and] any other person who sustains personal injury arising out of the use or operation of the insured motor vehicle in the State of New York while not occupying another motor vehicle (11 NYCRR 65-1.1[d]).

Based on the foregoing, it is clear, that first party or no-fault benefits are only available when the injuries claimed arise from an accident involving an insured vehicle by the defendant from whom first party benefits are sought. Indeed, a review of [*8]the plain language of the Insurance Law and the CMVIRA, evinces that first party benefits are only available from an insurer if, inter alia, the insurer insures one of the vehicles involved in an accident from which injuries arise. Specifically, Insurance Law § 5103 (a) and (1) require an owner to provide a policy that pays “first party benefits to . . . Persons, other than occupants of another motor vehicle or a motorcycle, for loss arising out of the use or operation in this state of such motor vehicle.” The word “such” is a direct reference to the insured vehicle on which there is a policy to pay said benefits. It is the relevant insurer, of course, which would necessarily have to provide the relevant policy under which claims need to be made.

The forgoing is bolstered by the CMVIRA, which per 11 NYCRR 65-1.1, requires that all policies of insurance in New York “contain provisions providing minimum first-party benefits equal to those set out below in the mandatory personal injury protection endorsement.” Per that endorsement, first party benefits are limited to an eligible person, meaning one “the named insured . . . any relative who sustains personal injury arising out of the use or operation of any motor vehicle . . . [and] any other person who sustains personal injury arising out of the use or operation of the insured motor vehicle in the State of New York while not occupying another motor vehicle.” Clearly, the “insured motor vehicle” is a reference to the relevant policy in place and of course to the relevant insurer, such that claims can only be made to an insurer if the same’s vehicle was involved in the accident giving rise to the injuries for which first party benefits are made.

Besides the clear language of the forgoing statutes, case law supports the proposition that no first party benefit claims can be made to an insurer who did not insure a vehicle at the time of an accident. For example, it is well settled that when an insurer cancels a policy on a vehicle, which is subsequently involved in an accident, the prior insurer is not required to pay first party benefits (SK Prime Med. Supply v Permanent Gen. Assur. Corp., 66 Misc 3d 129[A]], *1 [App Term 2019] [Court granted defendant’s motion for summary judgment on grounds that defendant insurer did not insure the assignor’s vehicle at the time of the accident.]; KJC Chiropractic, P.C. v Hartford Ins. Co., 65 Misc 3d 145[A], *1 [App Term 2019] [same]). The same is true when first party benefits are sought from an insurer who never provided insurance coverage to a vehicle involved in an accident. To be sure, in Compas Med., P.C. v Hereford Ins. Co., (49 Misc 3d 146[A] [App Term 2015]), defendant moved for summary judgment asserting that “plaintiff’s assignor was not entitled to receive no-fault benefits from defendant since plaintiff’s assignor had been injured while driving a vehicle insured by a different insurer” (id. at *1). The trial court granted [*9]defendant’s cross-motion on the grounds asserted, but the Appellate Term then reversed (id. at *1). Implicit in the Court’s holding however, is that but for the absence of proof that defendant did not insure the assignor’s vehicle, it would have affirmed the grant of summary judgment on the grounds asserted by defendant (id. at *1 [“In support of its cross motion for summary judgment dismissing the complaint, defendant relied upon a conclusory affidavit from its no-fault claims supervisor and a partially illegible copy of a police report which, according to defendant’s counsel, purported to establish that, when the accident occurred, plaintiff’s assignor was in a car insured by another insurer and not an occupant in the vehicle insured by defendant. However, as the foregoing was insufficient to establish, as a matter of law, that defendant did not insure the vehicle in which plaintiff’s assignor was riding when the accident occurred, defendant’s cross motion should have been denied.”]). The court in Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co. (127 AD3d 980 [2d Dept 2015]), is in accord with the holding in Compas Med., P.C. In Matter of Tri State Consumer Ins. Co., the court vacated an arbitration award requiring the insurer to pay first party benefits for an accident involving a vehicle it did not insure (id. at 981). The court, noting that there can be no payment of first party benefits unless the insurer insured the assignor’s vehicle, held that “there was no rational basis in the record for the arbitrators’ rejection of the appellant’s defense of lack of coverage, since the record demonstrated that the subject insurance policy issued by the appellant pertained to a vehicle and an insured different from those involved in the accident.” (id. at 981).

Notably, in cases where there is an allegation that the assignor’s injuries are unrelated to an insured accident, “an insurer, despite its failure to reject a claim within the 30—day period prescribed by [the] Insurance Law . . . may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Cent. Gen. Hosp. v Chubb Group of Ins. Companies, 90 NY2d 195, 199 [1997] [internal citations omitted]; see Mount Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11, 19 [2d Dept 1999]; Amaze Med. Supply, Inc. v Utica Mut. Ins. Co., 26 Misc 3d 129[A], *1 [App Term 2009] [“In opposition to plaintiff’s motion, defendant asserted that the alleged injuries did not arise out of an insured incident. We find that defendant’s submissions were sufficient to demonstrate that defendant possessed a founded belief that the alleged injuries do not arise out of an insured incident”] [internal citations and quotations marks omitted]; Ema Acupuncture, P.C. v State Farm Ins. Co., 16 Misc 3d 135[A], *1 [App Term 2007]; Ocean Diagnostic Imaging, P.C. v Lancer Ins. [*10]Co., 6 Misc 3d 62, 63 [App Term 2004]). This is because, it is well settled that the failure to timely deny coverage cannot create coverage where none existed in the first place (Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [“We conclude, however, that the Legislature did not intend by its use of the words ‘deny coverage’ to bring within the policy a liability incurred neither by the person insured nor in the vehicle insured, for to do so would be to impose liability upon the carrier for which no premium had ever been received by it and to give no significance whatsoever to the fact that automobile insurance is a contract with a named person as to a specified vehicle.”]; see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188 [2000] [“Disclaimer pursuant to section 3420 (d) is unnecessary when a claim falls outside the scope of the policy’s coverage portion. Under those circumstances, the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed.”]).

Defendant’s Motion

Defendant’s motion for summary judgment is denied. Significantly, defendant fails to establish that it did not insure the vehicle in which Mercedes, the assignor, was a passenger at the time of the instant accident. As such, defendant fails to establish its defense and therefore, fails to establish prima facie entitlement to summary judgment.

In support of its motion, defendant submits an affidavit by Tony Singh (Singh), a No-Fault Supervisor, employed by defendant, who states the following: Singh is responsible for the oversight and management of all no-fault claims made to defendant. Moreover, Singh is familiar with plaintiff’s claim with regard to Mercedes because he was the supervisor responsible for the handling of said claim and because Singh reviewed defendant’s file with regard to said claim. Singh states that defendant’s office procedure with regard to mail is that all mail is processed on the same day it is received. All mail, including bills, are date and time stamped upon receipt and then imported into a claim system used to track each bill. Each bill is then assigned an adjuster to process the bill and claim. When an adjuster creates a denial for a claim or requests additional verification, those documents are given to a mailing officer, which is either Singh or Carl Periana. The mailing officers then address the envelopes, the forgoing documents are placed therein, postage is applied and then they are mailed that same day. Specifically, the envelopes are given to an agent of the United States Postal Service, who picks up the mail on a daily basis. The foregoing documents are created and maintained in the ordinary course of defendant’s business. With regard to Mercedes and plaintiff’s claim, a bill for services rendered to Mercedes on November 7, 2018 was received by defendant on December 14, [*11]2018. A denial was subsequently issued on January 10, 2019. The basis of the denial was that Mercedes was not an eligible injured person insofar as his injuries did not arise out of the use and operation of the motor vehicle and/or the vehicle was not the proximate cause of Mercedes’ injuries. On November 28, 2018, defendant issued a global denial asserting that Mercedes was not an occupant in defendant’s vehicle.

Singh also states that the proximate cause of Mercedes’ accident was a collision between a vehicle owned by Mohammad Badrudoza and insured by American Transit Insurance Company and a vehicle owned by Alassane Yoda and insured by Park Insurance Company.

Defendant submits the documents described by Singh in his affidavit. Said documents, which deny the claim made by plaintiff, contain the information described by Singh. Specifically, the denial on January 10, 2019, states that Mercedes “is not an Eligible Injured Person as the applicant’s injuries did not arise out of the use or operation of the motor vehicle and/or the motor vehicle was not the proximate cause of the applicant’s injuries.” The denial dated November 28, 2018 states that Mercedes “was not an occupant in our vehicle.”

Defendant also submits a Police Accident Report, for which no foundation is laid.

Based on the foregoing, defendant fails to establish prima facie entitlement to summary judgment. Significantly, here, defendant denied the instant claim on grounds that it did not insure any of the vehicles involved in Mercedes’ accident such that it has no obligation to provide first party no-fault benefits to him. However, while, defendant’s submission establish some of the foregoing contentions with regard to the timely mailing of the denials, the record is bereft of competent and admissible evidence establishing the substance of said defense.

Preliminarily, here, defendant does establish that it timely ^[FN4] denied the instant claim on the grounds, that defendant urges warrants dismissal. First, defendant provides the denials it sent to plaintiff and laid the foundation for their admission [*12]into evidence ^[FN5] . These denials do evince that they were made within 30 days of receipt of plaintiff’s claim. One denial was actually made before the instant claim was submitted, presumably when plaintiff applied for first party benefits. Second, defendant established that it timely denied the claims. To be sure, it is well settled that a party’s burden to establish that forms were mailed and therefore, presumed to have been received by another is established upon the tender of proof in admissible form “of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (New York and Presbyt. Hosp. at 547; Residential Holding Corp. at 680; Delta Diagnostic Radiology, P.C. at 18). Here, Singh’s affidavit, which describes defendant’s procedure for the receipt, processing and mailing of no-fault claim related documents, establishes that the claims herein were timely denied insofar as the denials were mailed within 30 days of receiving plaintiff’s claim.

However, defendant’s evidence is wholly inadequate for purposes of establishing, as urged, that the claim herein warranted denial because defendant did not insure any of the vehicles involved in Mercedes’ accident, let alone the one in which he was a passenger. Again, an insurer who establishes that it never insured an assignor’s vehicle at the time of the accident giving rise to the claim for first party benefits is not liable to pay the same (Compas Med., P.C. v at *1; Matter of Tri State Consumer Ins. Co. at 981). Here, it is clear that Singh’s assertion – that defendant did not insure any of the vehicles involved in the instant accident – is entirely based on the Police Accident Report appended to defendant’s motion. The record, however, is bereft of any foundation for the same’s admission and as such it cannot be considered. As such, defendant fails to establish prima facie entitlement to summary [*13]judgment. Inasmuch as defendant fails to meet its burden, the Court need not consider the sufficiency of any of the opposition papers submitted (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). Accordingly, defendant’s motion is denied.

Plaintiff’s Cross-Motion

Plaintiff’s cross-motion seeking summary is granted. Significantly, plaintiff establishes that it timely submitted the instant claim, that although timely denied, the defense undergirding the denial has no legal merit, and that the claim is overdue.

A medical provider seeking payments under the relevant no-fault policy establishes prima facie entitlement to summary judgment with proof of that it submitted a timely claim form to the defendant, proof of the fact and the amount of the loss sustained, and “proof either that the defendant [] failed to pay or deny the claim within the requisite 30-day period, or that the defendant [] issued a timely denial of claim that was conclusory, vague or without merit as a matter of law” (Ave T MPC Corp. at *1; New York and Presbyt. Hosp. at 513; see Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Mary Immaculate Hosp. at 742; E. Coast Psychological, P.C. at *1; Mollins at *1).

Here although, plaintiff submits no evidence in support of its motion, it nevertheless establishes prima facie entitlement to summary judgment by relying on the denial forms submitted by defendant in support of its motion for summary judgment. To be sure, in no fault cases, the proponent of summary judgment may establish prima facie entitlement to summary judgment using the evidentiary submissions of the opposing party (Oleg Barshay, DC, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term 2006]; see E. Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128(A) [App Term 2007]; Fair Price Med. Supply Corp. v Elrac Inc., 12 Misc 3d 119, 120 [App Term 2006]. In Oleg Barshay, DC, P.C., the court granted plaintiff’s motion for summary judgment even though plaintiff had not submitted sufficient evidence to establish prima facie entitlement thereto (id. at *1-2). That court searched the record, noted that the missing elements of plaintiff’s prima facie case were annexed to defendant’s opposition papers, and granted plaintiff’s motion (id. at *1-2). Specifically, that court stated [w]hile in its motion papers, plaintiff proved that it prepared a claim setting forth the fact and amount of the loss, plaintiff’s proof that it submitted the claim to defendant was inadequate. We have held that a no-fault benefits applicant may cure deficiencies in its proof of mailing by annexing to its motion papers an insurer’s denial of claim form wherein the insurer acknowledges the claim’s receipt. Where, as here, plaintiff failed to annex the defendant’s denial of claim form to its motion papers, and the defendant annexes the denial of claim form to its opposing papers, the deficiency is similarly cured. We are aware of the well-established principle that the failure of a proponent of a motion for summary judgment to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion regardless of the sufficiency of the [*14]opposing papers. Moreover, it has been said that where a movant fails to demonstrate its entitlement to judgment as a matter of law, it is unnecessary for the court to even consider the sufficiency of the opposition papers. While opposition papers should not be reviewed for the sufficiency of the opposition, i.e., in order to determine whether a triable issue of fact has been raised, since in such cases the burden of proof will not have shifted to the party opposing the motion, this is not to say that where a movant fails to establish a prima facie case, the court may never review the opposition papers. Where the missing elements of a movant’s prima facie showing of entitlement to judgment as a matter of law (such as here, plaintiff’s submission of the claim forms) are supplied in the opposition papers, it is our opinion that the court may, in its discretion and pursuant to its power to search the record, find that a prima facie case exists, thereby shifting the burden of proof, notwithstanding the evidentiary deficiencies in the moving papers. Indeed, CPLR 3212 (b) authorizes the court to grant a motion for summary judgment, 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.’ The discretion of the court to review the opposition papers may be viewed as akin to the court’s discretionary power to grant reverse summary judgment in an appropriate case. This discretion exists both in the motion court and, in the first instance, in an intermediate appellate court. Thus, the opposition papers may, in the court’s discretion, be perused to determine whether the record as a whole establishes the movant’s prima facie entitlement to judgment. Were we to interpret the law otherwise, a court could not, for example, grant summary judgment to a plaintiff whose moving papers are insufficient, even where there has been a concession of liability in defendant’s opposition papers (internal citations omitted) (id. at *1-2).

Here, as previously noted, defendant’s denial form establishes that the claim herein was timely, that it was timely denied, but insofar as defendant denied the existence of coverage, never paid. Now that this Court, by denying defendant’s motion, has, by operation of law, determined that defendant’s defense lacks merit, payment on the claim is over due. Accordingly, plaintiff establishes prima facie entitlement to summary judgment and nothing submitted by defendant raises an issue of fact sufficient to preclude summary judgment in plaintiff’s favor. It is hereby

ORDERED that the Clerk enter judgment in plaintiff’s favor in the amount of 1,789.19, plus interest. It is further

ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon defendant within thirty (30) days hereof.

This constitutes this Court’s decision and Order.

Dated: November 19, 2021
FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1: 11 NYCRR 65-3.1 states that “[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law.”

Footnote 2: See also 11 NYCRR 65-1.1 [“No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage. . . . Medical, Work Loss, and Other Necessary Expenses. In the case of a claim for health service expenses, the eligible injured person or that person’s assignee or representative shall submit written proof of claim to the Company, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered. The eligible injured person or that person’s representative shall submit written proof of claim for work loss benefits and for other necessary expenses to the Company as soon as reasonably practicable but, in no event, later than 90 days after the work loss is incurred or the other necessary services are rendered. The foregoing time limitations for the submission of proof of claim shall apply unless the eligible injured person or that person’s representative submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.”]

Footnote 3: It bears mentioning that the court’s reasoning in Hosp. for Joint Diseases – that “[p]ersonal knowledge of [defendant’s] documents, their history, or specific content are not necessarily required of a document custodian” (id. at 433), for purposes of laying a business record foundation sufficient to admit the documents in evidence, or in that case, for consideration on summary judgment – is merely a recognition of well settled law. Indeed, the business record foundation only requires proof that (1) the record at issue be made in the regular course of business; (2) it is the regular course of business to make said record and; (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 NY2d 569, 579 [1986]). Accordingly, “[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity’s files” (DeLeon v Port Auth. of New York and New Jersey, 306 AD2d 146 [1st Dept 2003]).

Footnote 4: This is, of course, is irrelevant here since the defense is a lack of coverage defense which can be asserted even in the absence of a timely denial (Gen. Hosp. v Chubb Group of Ins. at 199; see Mount Sinai Hosp. at 19; Amaze Med. Supply, Inc. at *1; Ema Acupuncture, P.C. at *1; Ocean Diagnostic Imaging, P.C. at 63 [App Term 2004]). This is because, it is well settled that the failure to timely deny coverage cannot create coverage where none existed in the first place (Zappone at 135-136; see Matter of Worcester Ins. Co. at 188).

Footnote 5: Defendant’s denial forms are admissible insofar as Singh laid the requisite business records foundation. To be sure, the business record foundation only requires proof that (1) the record at issue be made in the regular course of business; (2) it is the regular course of business to make said record and; (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 NY2d 569, 579 [1986]). Accordingly, “[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity’s files” (DeLeon v Port Auth. of New York and New Jersey, 306 AD2d 146 [1st Dept 2003]).

Decided on November 12, 2021

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