Burke 2 Physical Therapy, P.C., A/A/O SANG, STERNETH, Plaintiff(s), against State Farm Mutual Automobile Ins. Co. PIP/BI Claims, Defendant(s).

Index No. CV-733608-19
Gina Levy Abadi, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion and cross motion for summary judgment:

Papers/ Numbered

Notice of Motion and Affidavits/Affirmations Annexed 0O9NBM

Cross-Motion and Answering Affidavits E2E86J

Opposition/Reply Affidavits/Affirmations Q486UA

Memoranda of Law________

Other________

Defendant State Farm Mutual Automobile Ins. Co. PIP/BI Claims (hereinafter “State Farm”) moves for an order, pursuant to CPLR § 3212 granting summary judgment and dismissing the complaint. Plaintiff Burke 2 Physical Therapy, P.C. (hereinafter “Burke”), A/A/O Sterneth Sang (hereinafter “Sang”), cross-moves for an order: pursuant to CPLR § 3211(c) and CPLR § 3212(a) granting summary judgment; denying defendant’s motion; pursuant to CPLR § 3212(g) limiting the issues of fact for trial by finding that the prescribed statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits is overdue; and pursuant to CPLR § 3211(b) to dismiss defendant’s affirmative defenses.

Plaintiff commenced the instant action by filing the summons and complaint on July 2, 2019. Issue was joined on July 31, 2019. Sang allegedly sustained injuries in a motor vehicle accident on September 13, 2018 and defendant was the responsible no-fault insurance carrier. The accident was reported to defendant and a claim number was issued. Sang sought treatment [*2]with Burke on October 3, 2018 and assigned his claims to Burke on October 30, 2018. On September 14, 2018, prior to submission of the claim, an examination under oath (hereinafter “EUO”) of Burke’s owner, John Nasrinpay (hereinafter “Nasrinpay”), was held by defendant regarding claims unrelated to Sang. Nasrinpay’s EUO pre-dated receipt of the bills in dispute in the instant matter. Nevertheless, defendant issued numerous verification requests in this action precipitated by Nasrinpay’s EUO.

At issue in the instant matter are bills for dates of service from October 3, 2018, October 5, 2018, October 30, 2018, October 31, 2018, December 4, 2018, and December 11, 2018. State Farm acknowledged receipt of these claims. State Farm, by letters dated, December 3, 2018, December 17, 2018, January 23, 2019, and January 29, 2019, issued verification requests of the claims seeking production of numerous documents, including tax returns, bank records, and documents related to defendant’s various operating locations. State Farm sent follow-up requests for verification on January 9, 2019, January 23, 2019, February 26, 2019, and March 6, 2019. Plaintiff’s counsel alleges that Burke “replied to every verification request in a timely manner.” Those letters of response to the verification requests and any proof that they were mailed were not attached to the instant motion. State Farm issued denial of claim forms (NF-10s) on April 8, 2019, April 23, 2019, and June 4, 2019.

State Farm contends that it timely requested verifications of the bills at issue in the instant matter, thus tolling their time to pay pursuant to 11 NYCRR § 65-3.5. Moreover, it alleges it properly denied plaintiff’s claims for failure to provide the requested verification within 120 days. Defendant argues that the licensing of a medical provider is a condition precedent to the payment of no-fault benefits, therefore, such verification is relevant to the proof of the claim. Defendant contends that although it “need not demonstrate the ‘good cause’ of its verification requests,” its basis for the requests is substantiated by the affidavit of State Farm’s investigator, Lisa Stockburger. Defendant maintains its verification requests were proper and its denials timely.

In opposition, plaintiff argues that Nasrinpay’s affidavit establishes that plaintiff responded to defendant’s verification requests. Plaintiff alleges that the verification request were “impermissible and improper” as they were discovery requests that do not verify the claim but were “made merely to harass and burden the plaintiff.” In support of its motion and in further opposition to defendant’s motion, plaintiff annexes “Objections to Defendant’s Verification Requests,” undated but served on December 23, 2020, wherein plaintiff’s counsel objected to defendant’s verification and follow-up verification letters during the course of the instant litigation.

An insurer must pay or deny a claim in whole or in part within 30 calendar days after receipt of proof of claim. See 11 NYCRR § 65-3.8(c); Insurance Law § 5106(a). Proof of claim includes “verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart.” 11 NYCRR § 65-3.8(a); see New York Univ. Hosp. Tisch Inst. v Govt. Employees Ins. Co., 117 AD3d 1012, 1013 (2d Dept 2014). An insurer can extend or toll its time to pay or deny a claim by forwarding verification forms within 15 business days of receipt of the claim. See 11 NYCRR § 65-3.5(b); Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 120 AD3d 561, 563 (2d Dept 2014); Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 163 (2d Dept 2013). If any of the requested verifications are not “supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested ” 11 NYCRR § 65-3.6(b); [*3]see Westchester Med. Ctr. v Allstate Ins. Co., 112 AD3d 916, 917 (2d Dept 2013).

Although verification of a claim is permitted pursuant to 11 NYCRR § 65-3.5(c), “the no-fault regulations do not specifically define or limit the information or documentation an insurer may request through verification.” Victory Med. Diagnostics, P.C. v Nationwide Prop. and Cas. Ins. Co., 36 Misc 3d 568, 573 (NY Dist Ct 2012). Litigants sometimes refer to a response to a verification request as an “objection letter,” but “[n]either the no-fault law nor the no-fault regulations establish a mechanism or procedure by which a claimant provider can contest or challenge a request for verification on the grounds it is improper, unduly burdensome, unfounded, unnecessary or harassing.” Id. at 573; cf Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 (2d Dept 1999) (holding that “[a]ny confusion on the part of the plaintiff as to what was being sought [in the verification letters] should have been addressed by further communication, not inaction”); Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 58 Misc 3d 137 (App Term 2017). However, a demand for verification of facts can only be made if “there are good reasons to do so.” 11 NYCRR § 65-3.2(c). An insurer “is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.” 11 NYCRR § 65-3.5(c). The Superintendent’s regulations provide for agency oversight of insurance carriers, and demand that carriers “delay the payment of claims to pursue investigations solely for ‘good cause’ ” State Farm Mut. Auto. Ins. Co. v Robert Mallela, 4 NY3d 313, 322 (2005); see 11 NYCRR § 65-3.2 (c). In the licensing context, “carriers will be unable to show “good cause” unless they can demonstrate behavior tantamount to fraud.” State Farm Mut. Auto. Ins. Co. v Robert Mallela, 4 NY3d at 322.

11 NYCRR § 65—3.5 (o) provides that a verification letter must be responded to by either submitting “all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.” If the claimant fails to respond to the verification letters, “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.” 11 NYCRR § 65-3.5 (b)(3).

In the instant matter, although the EUO of plaintiff occurred prior to receipt of the claim, the request for verification was sent after the claim was received. Therefore, the verification request tolled defendant’s time to deny the claim. See Clear Water Psychological Services, P.C. v Hereford Ins. Co., 68 Misc 3d 127(A) (App Term 2020). The follow-up verifications letters were also timely. Defendant’s verification letters, in compliance with 11 NYCRR § 65-3.5(o), notified plaintiff that it was required to provide all documents requested or provide written proof of a reasonable justification for its failure to comply.

Notably, plaintiff’s statements fluctuate between arguing that they provided the documentation and that State Farm is not entitled to such documentation. While plaintiff attests that it timely responded to the verification requests, it fails to attach such letters in response to the instant motion. Moreover, the affidavit of Nasrinpay states that he “personally responded and mailed on 01/18/2019, 02/06/2019 and 03/26/19 the verification responses in issue in this case to the address designated by defendant on the verification requests, to the extent such response was proper and in my possession.” Cross-Motion, p 160, ¶ 5. Nasrinpay fails to attach his responses to the verification letters to illustrate what was produced or to provide written proof of a reasonable justification for the failure to comply. Additionally, his affidavit fails to [*4]detail what was allegedly mailed to defendant. Defendant denies having received any such correspondence from plaintiff before issuing the NF-10 denials of its claims.

Furthermore, although 11 NYCRR § 65-3.5(o) provides for a response which allows for written proof of reasonable justification for the failure to comply with a verification request, no such response was submitted in support of this motion. Plaintiff’s counsel submits an “objection” to the verification request, which is not a proper response to defendant’s verification requests as it is not timely pursuant to 11 NYCRR § 65-3.5(o). Moreover, the “objection” appears to reference Mallela materials sought during litigation. The Court notes that the instant action was commenced on July 2, 2019 and plaintiff’s “objection” was served over 18 months after commencement of the action and over 2 years after the initial verification request was made. Therefore, plaintiff failed to submit proof that it complied with §11 NYCRR § 65-3.5(o). Finally, the Court finds the remainder of plaintiff’s arguments to be pro forma, without merit, and specious.

Accordingly, defendant’s motion pursuant to CPLR § 3212 for summary judgement dismissing the complaint is granted in its entirety and plaintiff’s cross-motion is denied as moot.

The foregoing constitutes the decision and order of this Court.

Dated: June 8, 2021
Hon. Gina Levy Abadi
Judge, Civil Court

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.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 16, 2019. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking to dismiss the complaint.

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

This action by a provider to recover assigned first-party no-fault benefits was commenced by the filing of a summons and complaint on August 11, 2015 in Civil Court, Kings County. However, the summons indicated that the matter was to be heard in the Civil Court, Queens County, and required defendant to appear at the courthouse at 89-17 Sutphin Boulevard, Jamaica, New York. Defendant served an answer upon plaintiff on September 9, 2015, which listed the Civil Court, Queens County, as the venue in the caption, and the answer was allegedly filed there. Plaintiff thereafter moved for the entry of a default judgment against defendant, which motion was granted, without opposition, on December 3, 2018. A judgment in the total sum of $260.89 was entered on February 7, 2019.

Defendant moved to vacate the default judgment and to dismiss the complaint. In his affirmation in support, defense counsel stated, among other things, that the default judgment should be vacated and that plaintiff’s complaint “should be dismissed outright based on the deficiencies” on the face of the summons, the fact that plaintiff never modified its summons and [*2]complaint and the fact that the Civil Court, Kings County, does not have jurisdiction over this matter.

In opposition, plaintiff’s counsel argued that defendant failed to establish a reasonable excuse for its default or a meritorious defense.

In its reply affirmation, defense counsel argued that plaintiff’s “opposition papers do nothing to dispel the notion that its complaint must be dismissed.”

In an order entered August 16, 2019, the Civil Court granted the motion, vacated the default judgment and dismissed plaintiff’s complaint, as it was “fatally defective.”

As limited by its brief, plaintiff argues that so much of the August 16, 2019 order as dismissed the complaint should be reversed because dismissal of the complaint was not the proper remedy upon the vacatur of the default judgment. Rather, plaintiff should have been permitted to correct its error pursuant to CPLR 2001.

Plaintiff’s argument, that it should have been afforded an opportunity to amend the complaint pursuant to CPLR 2001, is unpreserved for appellate review, as plaintiff failed to raise the issue in opposition to defendant’s motion (see Gerschel v Christensen, 128 AD3d 455 [2015]; Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 114 AD3d 935 [2014]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 4, 2021

State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC

2021 NY Slip Op 03536 [195 AD3d 454]

June 3, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, August 4, 2021

[*1]

State Farm Mutual Automobile Insurance Company, Appellant, v Surgicore of Jersey City, LLC, et al., Defendants, and Wellmart RX, Inc., Respondent.

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

Orders, Supreme Court, New York County (Barbara Jaffe, J.), entered December 18, 2019 and May 12, 2020, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for a default judgment on its claims seeking a declaration of noncoverage against all defaulting defendants other than Keith Dumont and Steven Rob, unanimously reversed, on the law, with costs, the motion granted in its entirety and it is so declared.

In support of its motion for entry of a default judgment plaintiff submitted evidence of defendants’ defaults after proper service, as well as an affidavit of its no-faults claims representative sufficiently setting forth the basis for plaintiff’s claims seeking a declaration of noncoverage (see CPLR 3215 [f]; Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71 [2003]). The claim representative’s affidavit set forth the factual basis for plaintiff’s belief that the accident was not a covered event because the loss was intentionally caused and the injuries purportedly sustained by the claimants in connection with the June 1, 2018 accident therefore did not arise from an insured event. By failing to answer, the defaulting defendants are “deemed to have admitted” the allegations in the complaint, including that the accident was intentional and staged (Al Fayed v Barak, 39 AD3d 371, 372 [1st Dept 2007] [internal quotation marks and brackets omitted]). The claims representative’s affidavit, as well as red flags raised by defendant Walton’s testimony at her EUO, support plaintiff’s belief. In addition, on reargument, plaintiff submitted an arbitration award in which the Arbitrator found that plaintiff had demonstrated by a preponderance of the evidence that it had a founded belief that the subject accident was not a covered event, because it was a deliberate event in furtherance of an insurance fraud scheme. As a result, plaintiff is entitled to a declaration that it is not obligated to defend or indemnify Jhoie Bradford, the owner of the insured vehicle, or Walton, the driver, or to provide no-fault coverage to any of the claimants in connection with the June 1, 2018 accident.

As to claimant Ronald Marcellus, plaintiff additionally provided sufficient proof that he failed to appear for an examination under oath (EUO) despite receiving proper notice, which vitiates the policy (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]). Generally, an insurer must provide proof that the EUO requests were timely mailed, within 15 business days of receipt of the prescribed verification forms, in compliance with 11 NYCRR 65-3.5 in order to obtain a default declaratory judgment (see e.g. Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 617-618 [1st Dept 2018]). However, that requirement does not apply where, as here, the EUOs are scheduled prior to the insurance company’s receipt of a claim form (see Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 469 [1st Dept 2016]; see also [*2]Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]). Since Marcellus failed to appear on two or more occasions and the EUO requests were sent prior to plaintiff’s receipt of a claim form, plaintiff did not need to demonstrate compliance for the verification requests under 11 NYCRR 65-3.5. Concur—Manzanet-Daniels, J.P., Kapnick, Mazzarelli, Oing, JJ.

Lenox Hill Radiology & MIA, P.C. v Hereford Ins. Co.

2021 NY Slip Op 21157 [72 Misc 3d 702]

June 1, 2021

Tsai, J.

Civil Court of the City of New York, New York County

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, August 25, 2021

[*1]

Lenox Hill Radiology and MIA, P.C., as Assignee of Shahrooz Sabzehroo, Plaintiff, v Hereford Ins. Co., Defendant.

Civil Court of the City of New York, New York County, June 1, 2021

APPEARANCES OF COUNSEL

Law Offices of Rubin & Nazarian, New York City (Joseph Kuroly of counsel), for defendant.

Sanders Barshay Grossman, PLLC, New York City (Edward A. Cespedes of counsel), for plaintiff.

Richard Tsai, J.

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the complaint on the ground that the action is premature, because plaintiff did not provide MRI films demanded pursuant to a verification request (mot seq No. 001). Plaintiff opposes the motion, arguing that it had responded that it would send the films after it received payment from defendant for the reasonable costs of the films. It is undisputed that no payment for the films was ever sent.

The issue presented is whether the toll upon the insurer’s time to pay or otherwise deny a claim, which was triggered by a verification request for the provider to provide MRI films, ends when the provider responds that the films will be sent only after the insurer reimburses the provider for the reproduction costs of those films.

Background

On October 31, 2017, plaintiff’s assignor, Shahrooz Sabzehroo, was allegedly injured in [*2]an automobile accident (see defendant’s exhibit C in support of mot, police accident rep; see also defendant’s exhibit A in support of mot, complaint ¶ 3).

On December 5, 2017, plaintiff allegedly took MRIs of Sabzehroo’s right knee and left knee, billed separately in the amount of $878.67 for each knee (see defendant’s exhibit E in support of mot, NF-3 forms). On December 6, 2017, plaintiff allegedly took MRIs of Sabzehroo’s cervical and lumbar spine, billed in the amount of $879.73 and $912, respectively (see id., NF-3 forms). Plaintiff allegedly submitted these bills to defendant, and defendant allegedly neither paid nor denied the bills within 30 days of receipt (complaint ¶¶ 16-17, 20, 40-41, 44, 64-65, 68, 88-89, 92).

Verification Requests and Responses

On January 11, 2018, defendant allegedly mailed a verification request to plaintiff to submit, among other things, “copies of the MRI/CD Film for dates of services 12/5/17 & 12/6/17, lumbar, cervical, right knee, and left knee” (see defendant’s exhibit {**72 Misc 3d at 704}E, first request).^[FN1] On February 14, 2018, defendant allegedly mailed a follow-up verification request to plaintiff for those MRI films (see id., second request).

On February 16, 2018, and March 8, 2018, plaintiff’s counsel allegedly mailed to defendant undated letters bearing the heading “VERIFICATION COMPLIANCE” for the MRIs taken of Sabzehroo’s cervical spine and one of Sabzehroo’s knees (see plaintiff’s exhibit 1 in opp to mot).^[FN2] The letters identically stated,

“Please see the attached responses to your request for verification dated 01/11/2018. This comprises full and complete compliance with the demand based on documents and information in control of the Provider. . . .

“Pursuant to Radiology Ground Rule 8, a copy of the MRI Film/CD/or Electronic Media will be provided upon receipt of $5.00, made payable to Lenox Hill Radiology, P.C.” (see plaintiff’s exhibit 1 in opp to mot).

On March 13, 14, and 21, 2018, plaintiff’s counsel allegedly mailed to defendant undated “VERIFICATION COMPLIANCE” letters in response to defendant’s follow-up verification {**72 Misc 3d at 705}request dated February 14, 2018, with respect to all four bills (see id.).

Meanwhile, by a letter dated March 14, 2018, defendant acknowledged receipt of an undated “Verification Compliance” letter, and responded, in relevant part:

“When a carrier or self insured employer requests x-rays, MRI’s or other recorded images and satisfactory reproductions including electronic media are furnished in lieu of the original films, a fee of $5.00 may be charged for the first sheet of duplicating film or electronic media and $3.00 for each additional film or electronic media; payment issued under separate cover

“Your claim remain [sic] in delay for the requested verification. . . .

“In order to properly evaluate your claim, we are still awaiting:

“Submit the MRI film/CD of the right knee, left knee, lumbar spine and cervical spine performed on 12/05/17 and 12/06/17.

“Regulation 68 65-3.5 (c) states the insurer is entitled to receive all items necessary to verify the Claim directly from the parties from which such verification was requested[.]

“Until all verification is received, your claim will remain in delay status” (defendant’s exhibit E in support of mot).

On April 18, 2018, defendant allegedly mailed to plaintiff a similar letter stating,

“Payment for MRI invoice will be paid under separate cover[.]

“Your claim remain [sic] in delay for the requested verification. . . .

“In order to properly evaluate your claim, we are still awaiting:

“Submit the MRI film/CD of the right knee, left knee, lumbar spine and cervical spine performed on 12/05/17 and 12/06/17[.] . . .

“Until all verification is received, your claim will remain in delay status” (defendant’s exhibit E in support of mot).

On May 1, 2018, plaintiff’s counsel allegedly mailed to defendant undated “VERIFICATION COMPLIANCE” letters in {**72 Misc 3d at 706}response to defendant’s follow-up verification request dated March 14, 2018, with respect to all four bills, which were nearly identical to the prior responses which plaintiff sent in February and March 2018 (plaintiff’s exhibit 1 in opp to mot). On May 29, 2018, plaintiff’s counsel allegedly mailed to defendant undated “VERIFICATION COMPLIANCE” letters in response to defendant’s April 18, 2018 follow-up request, and the responses were nearly identical to plaintiff’s prior responses (id.).

Meanwhile, on May 15, 2018, defendant allegedly mailed to plaintiff another follow-up verification request, which was almost identical to the follow-up request which defendant allegedly mailed on April 14, 2018, i.e., that defendant was still awaiting the MRI films and that the claims were in delay status until they were received (see defendant’s exhibit E in support of mot). This follow-up request indicated that the MRI invoice was paid under separate cover (see id.).

The Instant Action

On September 27, 2018, plaintiff commenced this action seeking to recover assigned first-party no-fault benefits, with interest plus attorneys’ fees (defendant’s exhibit A in support of mot, summons and complaint). On October 30, 2018, defendant allegedly [*3]answered the complaint (id., answer and aff of service).

On December 15, 2020, the court held oral argument on defendant’s motion. At argument, the parties agreed that the only items requested for verification which remained outstanding were the MRI films. Additionally, it was undisputed that no payment for the MRI films was ever sent. The court allowed the parties to submit supplemental papers on the issue of whether defendant may be allowed to assert that the verification was outstanding due to MRI films, when defendant had not paid for the cost of those films, after due demand from plaintiff in accordance with New York Workers’ Compensation Medical Fee Schedule radiology ground rule 8. Plaintiff submitted a supplemental affirmation in opposition; defendant apparently did not submit any supplemental papers.

Discussion

“On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of{**72 Misc 3d at 707} any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action” (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [internal quotation marks and citations omitted]).

Defendant argues that the action must be dismissed as premature because defendant’s time to pay or deny the claims is currently tolled, pending receipt of the MRI films from plaintiff (affirmation of defendant’s counsel ¶¶ 10-16). To establish that verification requests and follow-up verification requests were timely mailed, defendant submitted an affidavit from Tony Singh, a no-fault supervisor employed by defendant (see defendant’s exhibit D in support of mot, aff of Tony Singh ¶ 2). According to Singh, defendant received the four bills at issue on December 18, 2017 (Singh aff ¶ 6 [a]). Verification requests were issued and mailed on January 11, 2018, and February 14, 2018 (id.), and defendant submitted copies of proofs of mailing for these requests (see defendant’s exhibit E in support of mot).

According to Singh, defendant received a letter from plaintiff on February 27, 2018, and defendant issued a “Missing/Incomplete Verification” acknowledging receipt on March 14, 2018 (Singh aff ¶ 6 [a]). On March 19, 2018, defendant received another letter from plaintiff, and defendant issued another “Missing/Incomplete Verification” acknowledging receipt on April 18, 2018 (id.). On May 8, 2018, defendant received several letters from plaintiff, and defendant issued another “Missing/Incomplete Verification” acknowledging receipt on May 15, 2018 (id.). According to Singh, defendant has still not received the verification requested (id.).

In opposition, plaintiff argues that defendant’s motion should be denied for issues of fact as to whether plaintiff’s response to the verification requests was sufficient. Alternatively, plaintiff argues that “plaintiff’s claims were fully verified ending the toll on defendant’s time to pay or deny,” because defendant “failed to respond to plaintiff’s response” (affirmation of plaintiff’s counsel at 4). Lastly, plaintiff argues that defendant failed to demonstrate a “good reason” to request a copy of the MRI films in its verification request (id. at 5).

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after{**72 Misc 3d at 708} an applicant’s proof of claim is received” (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009]).

“Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days [*4]after the expiration of that 30-day period, must follow up with a second request for verification (see 11 NYCRR 65-3.6 [b]). If there is no response to the second, or follow-up, request for verification, the time in which the insurer must decide whether to pay or deny the claim is indefinitely tolled. . . . Accordingly, any claim for payment by the medical service provider after two timely requests for verification have been sent by the insurer subsequent to its receipt of [a claim] form from the medical service provider is premature, if the provider has not responded to the requests” (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 163 [2d Dept 2013] [citations omitted]).

Defendant met its prima facie burden of establishing that the action was premature based on the affidavit of the no-fault supervisor, who averred that defendant has not received any MRI films in response to its initial and follow-up verification requests. Plaintiff’s argument that a triable issue of fact arises as to the sufficiency of plaintiff’s responses to defendant’s verification requests for the MRI films is without merit. Plaintiff does not dispute that the initial and follow-up verification requests were timely mailed. It is also undisputed that plaintiff did not provide any MRI films to defendant. There is no circumstance under which it could be reasonably inferred that plaintiff sent the MRI films. Thus, there are no disputed issues of fact for the trier of fact to determine.

To the extent that plaintiff argues that the action is not premature because: (1) its demand for reimbursement for the MRI films was a response that complied with the verification request, or (2) defendant “failed to act upon receipt of plaintiff’s response to defendant’s verification requests,” i.e., that defendant did not pay plaintiff for the costs of the MRI films when defendant had indicated payment was forthcoming, the analysis is more complex.

On the one hand, it is undisputed that plaintiff never provided the MRI films requested for verification. On the other{**72 Misc 3d at 709} hand, it is equally undisputed that a provider may charge the insurer a fee for the costs for reproduction of MRI films. Although neither party submitted a copy of radiology ground rule 8 of the New York State Workers’ Compensation Medical Fee Schedule, both parties agreed that, pursuant to ground rule 8, when an insurance carrier (or self-insured employer) requests X rays, MRIs, or other recorded images, and the provider furnishes satisfactory reproductions (including electronic media) in lieu of the original films, the provider may charge the insurer, at most, a fee of $5 for the first sheet of duplicating film or electronic media and $3 for each additional sheet of film or electronic media (compare defendant’s exhibit E in support of mot, with supplemental affirmation of plaintiff’s counsel in opp to mot at 3; see also Ops Gen Counsel NY Ins Dept No. 08-04-08 [Apr. 2008], available at https://www.dfs.ny.gov/insurance/ogco2008/rg080408.htm [accessed May 28, 2021]).

The issue presented is how the provider’s right to reimbursement for the reproduction of films fits within the no-fault regulatory scheme. If the provider’s duty to provide the MRI films is contingent upon the insurer’s payment of the reproduction costs, then plaintiff complied with the verification request when plaintiff demanded payment of the reproduction costs. However, if the provider has no right to insist that the insurer reimburse the reproduction costs before sending the MRI films, then plaintiff’s responses to the insurer would not be adequate, and it would be irrelevant whether the insurer had, in fact, paid the reproduction costs—even if the insurer had promised payment.

The no-fault regulations do not expressly require defendant to reimburse plaintiff in advance of receiving the MRI films. The no-fault regulations are silent as to when the provider [*5]must receive payment of these reproduction costs. Thus, the insurer’s duty to pay the reproduction costs appears independent from the insurer’s right to demand verification. Conceivably, plaintiff could have submitted the reproductions to defendant, along with a bill for the reproduction costs. Alternatively, plaintiff could have also decided to submit the original MRI films to defendant for verification in lieu of sending reproductions of the films. In that scenario, the insurer would not incur any fee for reproductions, but it would have to return the original films to the provider within 20 days of receipt (see Ops Gen Counsel NY Ins Dept No. 08-04-08). Thus, the question of whether or not the insurer must pay a reproduction fee at all lies within the control of the provider.{**72 Misc 3d at 710}

As a practical matter, it seems unlikely that providers would send originals to an insurer for verification, given the risk that originals could be lost while in transit to the insurer. This court also understands why a provider would insist that the reproduction costs be paid before the MRI films are sent, because a $5 bill for reproduction costs may go ignored.

However, to accept plaintiff’s approach that a provider may insist upon reimbursement before it must comply with a verification request for films “runs counter to the no-fault regulatory scheme, which is designed to promote prompt payment of legitimate claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]). A core and essential objective in the no-fault regulations is “to provide a tightly timed process of claim, disputation and payment” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 281 [1997]). In this case, the back-and-forth disagreement over whether defendant was paying the reproduction costs of the films went on for four months, before ending in a stalemate.

Plaintiff’s approach also goes too far. First, plaintiff essentially advocates that a provider would be excused from complying with any verification requests to provide the MRI films until it was reimbursed the reproduction costs. Second, plaintiff appears to argue that, when it responded that defendant must pay the reproduction costs before receiving the MRI films, the toll on the insurer’s time to pay or otherwise deny a claim ended, even though the verification sought was never provided, and plaintiff had not objected to providing the MRI films. Those arguments find no support in either the no-fault regulations themselves, or in the regulatory scheme.^[FN3] As discussed above, the decision to charge a reproduction fee is within the control of the provider.

While plaintiff’s approach would incentivize insurers to pay reproduction fees, the approach is unworkable and would add another layer of complexity and litigation over a host of new issues{**72 Misc 3d at 711} regarding the toll: Does the toll end when the plaintiff responds with a demand for payment? Does the toll restart if defendant sends payment for the reproduction costs? At what point in time would the toll be restarted? What would happen to the toll if the payment were [*6]delayed, or if plaintiff denies that the payment was ever sent? In this case, defendant promised payment, but payment was never sent. The host of issues that would follow from adopting plaintiff’s approach would undermine the objectives of the No-Fault Law of “promoting prompt resolution of injury claims, limiting cost to consumers and alleviating unnecessary burdens on the courts” (Pommells v Perez, 4 NY3d 566, 570-571 [2005]).

Finally, as a policy matter, the downside of plaintiff’s approach is that the sanction against the insurer for failing to pay the reproduction fees would be the entire amount of the claim, which could be significantly disproportionate to reproduction cost, which is very modest. Here, defendant would be liable for $3,549.07 because defendant did not pay $5 in reproduction fees.

Although plaintiff submitted decisions from no-fault arbitrations where the arbitrators ruled that the provider’s responses to demand payment of reproduction costs complied with the insurer’s verification requests (see plaintiff’s supplemental affirmation in opp, arbitration awards), this court declines to follow those arbitration decisions. Those decisions rest on the premise that the toll triggered by the insurer’s verification request ended when the provider demanded payment of the reproduction costs. However, as discussed above, in this court’s view, the insurer’s right to demand and receive verification is not contingent upon the insurer’s payment of the reproduction costs. Thus, the provider is not excused from complying with any verification requests to provide the MRI films until it was reimbursed the reproduction costs. Consequently, the toll did not end either when plaintiff responded that defendant must pay the reproduction costs before receiving the MRI films, or when defendant had promised but failed to pay the reproduction costs. The toll should not end because plaintiff had not objected to providing the MRI films, and the verification sought was never provided.^[FN4]

{**72 Misc 3d at 712}In its supplemental opposition papers, plaintiff argues that defendant failed to “[c]learly inform the applicant of the insurer’s position regarding any disputed matter,” which is one of the principles of claim settlement practices (see 11 NYCRR 65-3.2 [e]), in that defendant promised to send payment but never did (see plaintiff’s supplemental affirmation in opp at 6). As discussed above, because a provider has no right to insist upon payment of reproduction costs before complying with a verification request for MRI films, the insurer’s response to such demands is irrelevant. “[T]o rule otherwise would sanction the parties’ sending countless letters to each other, which would violate the intent of the No-Fault Law which encourages the prompt resolution of no fault claims” (LK Health Care Prods. Inc v GEICO Gen. Ins. Co., 39 Misc 3d 1230[A], 2013 NY Slip Op 50810[U], *3 [Civ Ct, Kings County 2013]).

Because the toll has not ended due to the outstanding MRI films, the action is therefore premature.

[*7]

Plaintiff’s objection to the reasonableness of the request for the MRI films is unavailing. It is readily apparent that copies of any MRI films (or lack of such films) would substantiate whether the billed MRIs were, in fact, actually performed. Moreover, plaintiff never objected to the request for these films in its verification responses (see Compas Med., P.C. v Travelers Ins. Co., 53 Misc 3d 136[A], 2016 NY Slip Op 51441[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [“plaintiff did not allege, much less demonstrate, that it objected to such requests during claims processing”]).

Therefore, defendant’s motion for summary judgment dismissing the complaint is granted, and the complaint is dismissed without prejudice as premature.

Conclusion

Upon the foregoing cited papers, it is hereby ordered defendant’s motion for summary judgment dismissing the complaint is granted, and the complaint is dismissed without prejudice.

Footnotes

Footnote 1:Defendant’s verification request and follow-up requests each combined all four bills into a single letter.

Footnote 2:Plaintiff’s counsel apparently responded to the verification requests with separate letters with respect to each bill. In its exhibits to the court, plaintiff’s counsel arranged all the undated responses to the verification requests and follow-up requests, which were sent on different dates and involved different bills, under a single exhibit tab. For the sake of clarity, the court will refer to documents submitted under that single exhibit tab based on the page number assigned by the document viewer used to access the electronically filed opposition papers.

Pages 7 through 14, and pages 15 through 20, of plaintiff’s opposition papers apparently pertain to the MRIs taken of Sabzehroo’s left and right knees. These pages reference dates of service on December 5, 2017, billed in the amount of $876.67.

Pages 21 through 26 apparently pertain to the MRI taken of Sabzehroo’s lumbar spine, as these pages reference a date of service on December 6, 2017, billed in the amount of $912.

Pages 27 through 34 apparently pertain to the MRI taken of Sabzehroo’s cervical spine, as these pages reference a date of service on December 6, 2017, billed in the amount of $879.73.

Because the MRIs of plaintiff’s knees were taken on the same day, and were billed for the same amount, it cannot be determined from the “Verification Compliance” letter allegedly mailed on February 16, 2018, whether that response was meant for the request of the MRI taken of the left or right knee.

Footnote 3:The no-fault regulations also specify that when an insurer requests examination under oath or independent medical examination, the insurer must reimburse the person being examined for “any loss of earnings and reasonable transportation expenses incurred in complying with the request” (11 NYCRR 65-3.5 [e]). The no-fault regulations are similarly silent as to when these costs must be paid.

Plaintiff’s approach that the insurer must reimburse costs in advance of the provider’s compliance because it is entitled to be reimbursed under the no-fault regulatory scheme could logically extend to these reimbursements as well.

Footnote 4:The court leaves open the question of whether the outcome might be different if an insurer had not paid the reproduction costs for the MRI films and yet sought dismissal of the claims, due to the provider’s failure to supply the requested verification within 120 days after the date of the initial verification request (see 11 NYCRR 65-3.5 [o]; see Psychology YME, P.C. v Travelers Ins., 65 Misc 3d 146[A], 2019 NY Slip Op 51798[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). In that situation, the no-fault regulations allow a provider to provide written proof providing reasonable justification for the failure to comply (11 NYCRR 65-3.5 [o]), which does not apply here.

American Tr. Ins. Co. v Espinal

2021 NY Slip Op 03399 [195 AD3d 401]

June 1, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, August 4, 2021

[*1]

American Transit Insurance Company, Respondent, v Samuel O. Espinal, Appellant, et al., Defendants.

The Tadchiev Law Firm, P.C., Fresh Meadows (Simon B. Landsberg of counsel), for appellant.

Law Office of Daniel J. Tucker, Brooklyn (Ethan A. Rothschild of counsel), for respondent.

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about August 14, 2020, which, insofar as appealed from as limited by the briefs, granted plaintiff’s motion for summary judgment against defendant Samuel O. Espinal and declared that plaintiff was not obligated to pay no-fault benefits to Espinal, unanimously reversed, on the law, without costs, the order vacated, and the matter remanded for further proceedings.

Espinal’s opposition to the summary judgment motion was timely filed in accordance with CPLR 2214 (b). Since the motion court granted plaintiff’s motion on the ground that Espinal failed to submit opposition papers, and therefore did not reach the merits of the motion, the matter is remanded for the motion court to consider the merits of the summary judgment motion in the first instance (see Fomina v DUB Realty, LLC, 156 AD3d 539, 540 [1st Dept 2017]; Commissioner of the State Ins. Fund v Weissman, 90 AD3d 417, 418 [1st Dept 2011]). Concur—Gische, J.P., Webber, Singh, Kennedy, JJ. [Prior Case History: 2020 NY Slip Op 31721(U).]

[*1]

Sufficient Chiropractic Care, P.C. v Global Liberty Ins. Co.

2021 NY Slip Op 50879(U) [73 Misc 3d 127(A)]

Decided on May 28, 2021

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 28, 2021

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

PRESENT: : WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ
2020-107 K C

Sufficient Chiropractic Care, P.C., as Assignee of Linda Bryant-Williams, Appellant,

against

Global Liberty Insurance Company, Respondent.

Law Office of Melissa Betancourt, P.C. (Melissa Betancourt and Jasmine Koo of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered October 17, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered October 17, 2019 granting defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s sole contention on appeal, the affidavit submitted by plaintiff in opposition to defendant’s motion was insufficient to rebut defendant’s prima facie showing that there was a lack of medical necessity for the services at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 28, 2021

Country-Wide Insurance Company, Plaintiff, against Saquan Ware, THE JAMAICA HOSPITAL MEDICAL CENTER DIAGNOSTIC AND TREATMENT CENTER CORPORATION, LONGEVITY MEDICAL SUPPLY INC., BEACON ACUPUNCTURE, P.C., COLUMBUS IMAGING CENTER, LLC, DIRECT RX PHARMACY INC., SUN CHIROPRACTIC SERVICES, P.C., LIFE HEALTH CARE MEDICAL PC, MAG MEDICAL DIAGNOSTIC, P.C., ELSANAA PT PC, DR. WATSON CHIROPRACTIC, P.C., TOP Q INC., DITMAS PRIMARY MEDICAL CARE PC, and BRIDGES PSYCHOLOGICAL SERVICES P.C., Defendants.

650050/2020

Jaffe & Velazquez, LLP, New York, NY (Carl J. Gedeon of counsel), for plaintiff.

The Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Longevity Medical Supply, Inc., Columbus Imaging Center, LLC, and Bridges Psychological Services, P.C.

Gerald Lebovits, J.

This motion concerns plaintiff Country-Wide Insurance Company’s potential obligation to pay no-fault insurance benefits. Defendant Saquan Ware was the driver of a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by Country-Wide. Ware assigned his right to collect no-fault benefits under that policy to the medical provider defendants. They applied for no-fault benefits from Country-Wide but were [*2]denied.

Country-Wide now moves for summary judgement under CPLR 3212 against defendants Jamaica Hospital Medical Center Diagnostic and Treatment Center (Jamaica Hospital Center), Columbus Imaging Center, Direct RX Pharmacy, Longevity Medical Supply, and Bridges Psychological Services. Country-Wide seeks a declaratory judgment that it is not liable to pay no-fault benefits to these medical-provider assignees because Ware failed to appear for duly scheduled independent medical examinations (IMEs).

The motion is granted on default and without opposition as to defendants Jamaica Hospital Center and Direct RX Pharmacy. The motion is granted as to defendants Columbus Imaging Center, Longevity Medical Supply, and Bridges Psychological Services.

DISCUSSION

I. Whether Country-Wide Timely Requested that Ware Appear for Timely Scheduled IMEs

A no-fault insurer seeking a declaratory judgment of no-coverage for the injured person’s failure to appear for IMEs must establish that it complied with the regulatory timeliness requirements for the processing of no-fault insurance claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) Under those regulations, the insurer must request an IME within 15 business days of receipt of the forms that it requires to verify no-fault claims, such as the NF-3 forms in this case; and the IME must be scheduled to be held within 30 calendar days of receipt. (See 11 NYCRR 65-3.5[b], [d].)

Country-Wide submits affidavits from two administrative employees (with supporting documentation) representing that that the IME request form was mailed on January 13, 2017; that the IME was originally scheduled to be held on January 26; and that Ware failed to appear for his IME either on January 26 or on the rescheduled examination date. Country-Wide also provides the affidavit of its no-fault litigation supervisor representing that Country-Wide received, among others, provider bills on December 28, 2016, December 30, 2016, and January 9, 2017—along with copies of the date-stamped bills themselves. Country-Wide has thus established that Ware failed to appear for two timely requested and timely scheduled IMEs.

There is no merit to defendants’ argument that Country-Wide must demonstrate when it received the first bill from a given provider, nor that Country-Wide must demonstrate that it requested an IME within 15 business days of the very first bill received from any provider. Rather, for timeliness purposes it is sufficient for the insurer to establish that it requested an IME within 15 business days of receipt “of a medical provider claim (NF-3).” (Unitrin Direct Ins. Co. v Beckles, 188 AD3d 620, 620 [1st Dept 2020] [emphasis added].) And the First Department has made clear not only that an injured person’s failure twice to appear for a timely and properly scheduled IME “is a breach of a condition precedent to coverage” that “voids the policy ab initio,” but therefore also that this “coverage defense applies to any claim and is not determined [*3]on a bill by bill basis.”^[FN1] (Unitrin Advantage Ins. Co. v Dowd, 2021 NY Slip Op 03012 [1st Dept May 11, 2021] [emphasis added], citing PV Holding Corp. v. AB Quality Health Supply Corp., 189 AD3d 645, 646 [1st Dept 2020].)

Nor, given the detailed representations in the affidavits supplied by Country-Wide, is this court persuaded by defendants’ arguments (i) that those affidavits are insufficient to make the documents submitted by Country-Wide admissible as business records; or (ii) that the affidavits are insufficient to establish timely and proper IME mailings by Country-Wide and Ware’s failure to appear for the IMEs.

This court therefore concludes that Country-Wide has established as a matter of law that Ware failed twice to appear for properly scheduled IMEs. Given those failures to appear, Ware’s insurance coverage is void ab initio, and Country-Wide has no liability to pay him no-fault benefits. The medical-provider defendants on this motion, as Ware’s assignees, stand in his shoes and have no greater right to collect no-fault benefits than he does. Country-Wide has thus established that it has no liability to pay them no-fault benefits, either. Country-Wide’s motion for summary judgment is granted.

Settle Order.

DATE 5/28/2021

Footnotes

Footnote 1: There also is no merit to defendants’ oft-repeated argument that the First Department has retreated from or repudiated its holding in Unitrin Advantage Insurance Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011])—or to defendants’ assertion that this court is free to disregard the First Department’s decision in Bayshore because it is (supposedly) bad law.

 

Advanced Recovery v Allstate Ins. Co.

2021 NY Slip Op 21148 [72 Misc 3d 671]

May 27, 2021

Li, J.

Civil Court of the City of New York, Queens County

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, August 25, 2021

[*1]

Advanced Recovery, as Assignee of Loduca, Plaintiff, v Allstate Insurance Company, Defendant.

Civil Court of the City of New York, Queens County, May 27, 2021

APPEARANCES OF COUNSEL

Law Offices of Karen L. Lawrence, Garden City, for defendant.

Law Offices of Jonathan B. Seplowe, PC, Malverne, for plaintiff.

Wendy Changyong Li, J.

I. Background

In a summons and complaint filed on August 29, 2019, plaintiff commenced an action against defendant insurance company to recover a total of $5,119.50 in unpaid first-party no-fault benefits for medical services provided to plaintiff’s assignor Loduca from November to December 2016, plus attorneys’ fees and statutory interest (see mot, aff of Inguanti, exhibit A). Defendant moved for summary judgment dismissing the complaint (CPLR 3212 [b]) on the ground that defendant timely denied plaintiff’s claims based on Loduca’s failure to appear for two independent medical examinations (IME).

II. Discussion and Decision

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212 [b]). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021]; see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing{**72 Misc 3d at 673} judgment in favor of any party” (CPLR 3212 [b]; Zuckerman v City of New York at 562; see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

Insurers must pay or deny no-fault benefit claims “within 30 calendar days after receipt of the proof of claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 [*2]NY3d 498, 505 [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 N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to nonpayment (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 N.Y. v Maryland Cas. Co., 90 NY2d at 281-286). An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]; Greenway Med. Supply Corp. v Hartford Ins. Co., 56 Misc 3d 135[A], 2017 NY Slip Op 50960[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Parisien v Citiwide Auto Leasing, 55 Misc 3d 146[A], 2017 NY Slip Op 50684[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Longevity Med. Supply, Inc. v Praetorian Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50393[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

To sustain its burden, defendant must present evidence that it mailed the IME notices to Loduca and that Loduca failed to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d at 721). Defendant presented an affidavit sworn December 31, 2019 (see mot, Inguanti aff, exhibit F), in which Donovan, an employee of MES Solutions, the company retained by defendant to schedule IMEs, attested to the ordinary business practices of MES Solutions in mailing IME scheduling letters and recording the status of the IMEs scheduled. Defendant also presented the scheduling letters to establish that defendant timely scheduled the IMEs (Bronx Acupuncture Therapy, P.C. v A. Cent. Ins. Co., 58 Misc 3d 141[A], 2017 NY Slip Op 51870[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Brand Med. Supply, Inc. v {**72 Misc 3d at 674}Praetorian Ins. Co., 56 Misc 3d 133[A], 2017 NY Slip Op 50947[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Broadway Massage Therapy, P.C. v Citiwide Auto Leasing, 55 Misc 3d 132[A], 2017 NY Slip Op 50426[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Longevity Med. Supply, Inc. v Praetorian Ins. Co., 2015 NY Slip Op 50393[U], *1). The affidavits of Perrie, D.C. sworn January 29, 2020, and Bogdan, D.C. sworn January 2, 2020, the two chiropractors who were to perform the IMEs, established that Loduca failed to appear for the IMEs (see mot, Inguanti aff, exhibit H; Brand Med. Supply, Inc. v Praetorian Ins. Co., 2017 NY Slip Op 50947[U], *1; Broadway Massage Therapy, P.C. v Citiwide Auto Leasing, 2017 NY Slip Op 50426[U], *2; Longevity Med. Supply, Inc. v Praetorian Ins. Co., 2015 NY Slip Op 50393[U], *1). The affidavits of defendant’s employees and an officer of the company defendant retained to provide mailing services establishing defendant’s regular mailing procedures adequately demonstrated defendant’s timely denial of plaintiff’s claims based on Loduca’s failure to attend the IMEs (see Bronx Acupuncture Therapy, P.C. v A. Cent. Ins. Co., 2017 NY Slip Op 51870[U], *1; Greenway Med. Supply Corp. v Hartford Ins. Co., 2017 NY Slip Op 50960[U], *1; Brand Med. Supply, Inc. v Praetorian Ins. Co., 2017 NY Slip Op 50947[U], *1; Broadway Massage Therapy, P.C. v Citiwide Auto Leasing, 2017 NY Slip Op 50426[U], *2).

In opposition, plaintiff argued that the affidavits of the examining chiropractors Perrie and Bogdan, which were sworn more than three years after Loduca’s purported nonappearances at the IMEs and failed to state the basis for their recollection, rendered their [*3]assertions as to Loduca’s nonappearances conclusory (Satya Drug Corp. v Global Liberty Ins. Co. of N.Y., 65 Misc 3d 127[A], 2019 NY Slip Op 51505[U], *1 [App Term, 1st Dept 2019]; Utica Acupuncture P.C. v Amica Mut. Ins. Co., 55 Misc 3d 126[A], 2017 NY Slip Op 50331[U], *1 [App Term, 1st Dept 2017]; Five Boro Med. Equip., Inc. v Praetorian Ins. Co., 53 Misc 3d 138[A], 2016 NY Slip Op 51481[U], *1 [App Term, 1st Dept 2016]; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U], *1 [App Term, 1st Dept 2016]). Conclusory affidavits and affirmations are insufficient to establish an assignor’s nonappearance at an IME (Compas Med., P.C. v Geico Ins. Co., 49 Misc 3d 140[A], 2015 NY Slip Op 51590[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). {**72 Misc 3d at 675}However, whether a failure to state a basis of recollection renders an affidavit regarding nonappearance at an IME conclusory has not been previously addressed by the Appellate Term, Second Department or any higher authority binding this court.^[FN*]

Here, this court finds that the affidavits of Perrie and Bogdan are not conclusory even though they did not specify a basis for their recollection of Loduca’s nonappearances as explained below.

Perrie and Bogdan both attested that they had personal knowledge of Loduca’s nonappearances because they were present in their offices on the dates of the scheduled IMEs and Loduca did not appear or contact them to cancel or reschedule the IMEs (see Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Plaintiff presented no evidence to support its assertions casting doubt on the personal knowledge of Perrie and Bogdan regarding Loduca’s nonappearances (Quality Health Prods. v Hertz Claim Mgt. Corp., 2012 NY Slip Op 51722[U], *2; see MB Advanced Equip., Inc. v New York Cent. Mut. Fire Ins. Co., 51 Misc 3d 151[A], 2016 NY Slip Op 50863[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). While a contemporaneously executed affidavit is more probative than an affidavit executed later (Williams v New York City Hous. Auth., 183 AD3d 523, 527 [1st Dept 2020]), plaintiff has not established that the Perrie and Bogdan affidavits were “inherently unworthy of belief” or otherwise “incredible as a matter of law” (Salako v Nassau Inter-County Express, 131 AD3d 687, 688 [2d Dept 2015]). Affidavits executed a significant time after the events to which the witness attested have only been rejected when other infirmities existed in them (see Cruz v Roman Catholic Church of St. Gerard Magella in Borough of Queens in the City of N.Y., 174 AD3d 782, 784 [2d Dept 2019] [conclusory]; Deutsche Bank Natl. Trust Co. v Cunningham, 142 AD3d 634, 635 [2d Dept 2016] [failed to attest plaintiff was note holder at time foreclosure action commenced]; Fredette v Town of Southampton, 95 AD3d 940, 943 [2d Dept 2012] [affidavit tailored to avoid consequences of earlier testimony]; Montanaro v Kandel, 288 AD2d {**72 Misc 3d at 676}275, 275 [2d Dept 2001] [examining physician failed to specify tests used to support conclusions]). In our instant matter, plaintiff has not shown that any of these infirmities existed. Further, Perrie and Bogdan generally confirmed that letters were sent to MES Solutions on the same date as Loduca’s nonappearances. Donovan attested that MES [*4]Solutions received letters from the examiners with whom IMEs were scheduled advising whether the claimant appeared. Defendant appended letters signed by Perrie and Bogdan to its motion (see mot, Inguanti aff, exhibit G). Considering that the Perrie and Bogdan affidavits sufficiently established Loduca’s nonappearance at the IMEs, plaintiff’s contentions that these witnesses’ letters did not indicate their presence in the office at the time of Loduca’s nonappearance were irrelevant and failed to raise factual issues regarding defendant’s defense of nonappearance at scheduled IMEs. As defendant noted in reply, plaintiff presented no evidence that Loduca attended or unsuccessfully attempted to attend the IMEs. This court finds that defendant has presented prima facie admissible evidence proving that there is no material issue of fact and that the controversy can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]), and that plaintiff has failed to raise factual issues requiring a trial (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2d Dept 2020]; Nova Chiropractic Servs., P.C. v Ameriprise Auto & Home, 58 Misc 3d 142[A], 2017 NY Slip Op 51882[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; K.O. Med., P.C. v IDS Prop. Cas. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51454[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

III. Order

Accordingly, it is ordered that defendant’s motion for summary judgment is granted and plaintiff’s complaint is dismissed.

Footnotes

Footnote *:This court recognizes that case law from the Appellate Term, First Department held that examining professionals’ affidavits regarding an assignor’s nonappearance were conclusory for failing to state a basis for their recollection in the affidavits.