Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Peter C. Merani, P.C. (Adam J. Waknine and Samuel Kamara 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 January 23, 2019. The order granted defendant’s motion to dismiss the complaint.

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

Plaintiff commenced this action in 2015 to recover assigned first-party no-fault benefits. Defendant failed to appear in the action, and, on February 8, 2016, a default judgment was entered upon plaintiff’s motion. Defendant thereafter served an answer by mail and moved to dismiss the complaint for lack of jurisdiction, or, in the alternative, to vacate the default judgment, extend defendant’s time to answer and compel plaintiff to accept the answer. Plaintiff opposed the motion. By order entered July 28, 2017, the Civil Court (Andrew Borrok, J.) granted defendant’s motion to the extent of vacating the default judgment, stating that the “answer served by defendant is deemed served and received by plaintiff.” On November 2, 2017, defendant served plaintiff with a 90-day demand to file a notice of trial, which demand plaintiff rejected as premature. On February 1, 2018, defendant moved, pursuant to CPLR 3216, to dismiss the complaint on the ground that plaintiff had failed to prosecute the action. Plaintiff opposed and now appeals from an order of the Civil Court entered January 23, 2019 granting defendant’s motion.

A court may dismiss an action for failure to prosecute under CPLR 3216 only if the statutory preconditions to dismissal are met (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 [1997]; Alli v Baijnath, 101 AD3d 771 [2012]; Neary v Tower Ins., 94 AD3d 723 [2012]). In the instant case, as defendant moved to dismiss the complaint in February 2018, before the expiration of one year after the Civil Court had deemed defendant’s answer served as [*2]of July 28, 2017, defendant failed to satisfy a statutory precondition to dismissal of the complaint (see CPLR 3216 [b] [2]; Madigan v Crompton, 45 AD3d 650 [2007]). Consequently, there was no basis for the Civil Court to grant defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is denied.

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

[*1]

Supreme Court, Albany County, April 23, 2021

APPEARANCES OF COUNSEL

The Stuttman Law Group, P.C., White Plains (Dennis D. Murphy of counsel), for petitioner.

Letitia James, Attorney General, Albany (Charles Lim of counsel), for respondent.

In this CPLR article 75 proceeding, petitioner Allstate Insurance Company as subrogee of Martin Quirk (hereinafter Allstate) seeks a judgment confirming an arbitration award dated June 4, 2020, in the amount of $24,500, for a claim arising out of a motor vehicle accident that occurred on February 20, 2019. Respondent the State of New York also known as Office of General Services of the State of New York (hereinafter the State) cross-moves to vacate the award on the ground that the arbitrators exceeded their authority.

It is well settled that “[t]he scope of judicial review of an arbitration proceeding is extremely limited” (Elul Diamonds Co. Ltd. v Z {**72 Misc 3d at 404}Kor Diamonds, Inc., 50 AD3d 293, 293 [1st Dept 2008]). Courts are “obligated to give deference to the decision of the arbitrator” and may vacate an arbitrator’s award only on the grounds stated in CPLR 7511 (b) (Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]). CPLR 7511 provides four grounds upon which an arbitration award may be vacated on the application of a party which has participated in the arbitration. The third of these, the only one relevant here, is that “an arbitrator . . . exceeded his power” (CPLR 7511 [b] [1] [iii]). To establish that an arbitrator has “exceeded his power” within the meaning of CPLR 7511 (b) (1) (iii), a party must show that the award violates a strong public policy, is irrational or clearly “exceeds a specifically enumerated limitation on the arbitrator’s power” under CPLR 7511 (b) (1) (Elul Diamonds Co. Ltd. v Z Kor Diamonds, Inc., 50 AD3d 293, 293 [1st Dept 2008]). With respect to arbitration proceedings concerning no-fault insurance benefits, “[a]n [arbitration] award made in excess of the contractual limits of an insurance policy [has been deemed] an action in excess of authority” (Matter of State Farm Ins. Co. v Credle, 228 AD2d 191, 191 [1st Dept 1996]) and such excess of authority constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 822 [1998]; 11 NYCRR 65-1.1).

Pursuant to the Insurance Law, automobile insurance policies issued in New York provide for up to $50,000 in coverage for basic economic loss for each person injured in an accident. Insurance Law § 5102 (a) (5) also provides that “basic economic loss” includes an option to purchase, for an additional premium, an additional $25,000 of coverage which the insured may specify will be applied to lost earnings after the initial $50,000 of basic economic loss has been exhausted (OBEL coverage).

The challenged arbitration arose out of an accident that occurred on February 20, 2019, when a vehicle owned by Martin Quirk (hereinafter Mr. Quirk) and a vehicle owned by the State of New York were involved in a collision. Both vehicles were traveling eastbound on Route 109 in the Town of Babylon, New York when the driver of the State-owned vehicle attempted to change lanes and struck Mr. Quirk’s vehicle.^[FN1] At the time of the accident, Mr. Quirk was insured by Allstate and the State was self-insured. As a result of the accident, Allstate paid Mr. Quirk $50,000 in personal injury protection (hereinafter PIP) first-party benefits as well as an [*3]additional $24,500 in OBEL coverage.^[FN2] Because the State’s vehicle exceeded 6,500 pounds^[FN3] Allstate sought loss transfer reimbursement from the State, pursuant to Insurance Law § 5105 (a). Thereafter, the State reimbursed Allstate in the amount of $50,000 for the basic no-fault payment made to Allstate’s insured. Allstate then sought, through arbitration, to recover from the State $24,500 it had paid to Mr. Quirk under its OBEL coverage. In the arbitration{**72 Misc 3d at 405} proceeding Allstate argued that, under Insurance Law § 5105, it was entitled to recover payments made to cover basic economic loss and that, pursuant to Insurance Law § 5102 (a) (5), the availability of OBEL coverage increased the total recoverable basic economic loss from $50,000 to $75,000. The State responded that it had already paid $50,000 in PIP loss transfer, which is the maximum amount allowed under Executive Law § 203.

By decision dated June 4, 2020, the arbitration panel granted Allstate’s application and determined that Allstate was entitled to recoup the $24,500. The instant proceeding ensued.

The Court of Appeals has held that where arbitration is mandatory, an award “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 46 [2d Dept 2015], quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [2d Dept 1980]; see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]).

The Insurance Law requires no-fault automobile insurance policies issued in New York to provide up to $50,000 in coverage for basic economic loss, which compensates the injured person for, among other things, medical expenses and lost income (Insurance Law § 5102 [a] [1], [2]). In addition, when an insured chooses to purchase OBEL coverage, the total amount of basic economic loss rises to $75,000 (id. § 5102 [a] [5]; see 11 NYCRR 65-1.2 [a] [requiring insurers to furnish to all insureds who purchase OBEL coverage an “Optional Basic Economic Loss Coverage Endorsement,” which provides, in pertinent part, that “(b)asic economic loss of each eligible injured person on account of any single accident shall not exceed $75,000, the last $25,000 of which represents optional basic economic loss coverage, payable after the first $50,000 of basic economic loss has been exhausted”]; Balanca v GEICO Gen. Ins. Co., 13 Misc 3d 90, 93 [App Term, 2d Dept, 2d & 11th Jud Dists 2006] [finding that Insurance Law § 5102 (a), (b) and 11 NYCRR 65-1.2 (a) “establish that when OBEL coverage is purchased, there is $75,000 in coverage for basic economic loss”]).

{**72 Misc 3d at 406}Where an accident involves at least one vehicle weighing more than 6,500 pounds, a [*4]no-fault carrier who pays first-party benefits, i.e. “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]), is entitled to reimbursement from the tortfeasor’s insurer in mandatory loss transfer arbitration (Insurance Law § 5105).

“Insurance Law § 5105 serves to mitigate the effect of placing the entire burden of loss on the first-party insurer, even where its insured was not at fault, and allows insurers to recover from each other the first-party no-fault benefits paid to their insureds, allocated on the basis of their relative fault” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 48 [2d Dept 2015] [internal quotation marks and citations omitted]).

To that end, where a no-fault insurer pays its insured $75,000 in first-party benefits, representing basic economic loss and OBEL, it is entitled to recoup the entire $75,000 from the tortfeasor’s insurer (see Matter of Allstate Ins. Co. v Travelers Cos., Inc., 159 AD3d 982, 983 [2d Dept 2018] [finding that “the arbitrators’ determination that Travelers was entitled to recoup the entire payment made to its insured pursuant to basic economic loss and optional basic economic loss coverage . . . was rationally based on the relevant statutes and regulations”]).

Here, the State does not dispute that the contractual limits for basic PIP and OBEL coverage under Mr. Quirk’s policy is $75,000. Nor does the State dispute OBEL payments are generally eligible for loss transfer under Insurance Law § 5105 (a). Rather, the State argues that the language of Executive Law § 203 limits the maximum amount payable by the State for any occurrence in accordance with article 51 of the Insurance Law to $50,000.

According to Executive Law § 203:

“The commissioner of the office of general services is authorized . . . to pay and cause to be satisfied and discharged claims for damage to personal or real property or for bodily injuries or wrongful death caused in connection with the operation of a motor vehicle (a) by officers or employees of the state, while acting within the scope of their employment . . . . Such claims payments shall be made in accordance with a contract with a private firm to{**72 Misc 3d at 407} process, adjust, investigate, negotiate, settle, pay, and subrogate such claims on behalf of the state, as specified in such contract, provided that such firm is duly licensed to perform such services by the state department of financial services.

“Notwithstanding any other provision of law, any such contract may provide for the payment of benefits up to a maximum of fifty thousand dollars for any occurrence in accordance with article fifty-one of the insurance law and for such payments, not based on tort, the attorney general’s approval shall not be required” (emphasis supplied).

Contrary to the State’s argument, Executive Law § 203 does not provide a cap on the State’s liability for damages caused by the negligence of its employees in operating motor vehicles in the course of their employment. Rather, it sets forth a procedure for processing certain claims against the State, pursuant to contracts with private firms, and limits the authority of such firms to settle such claims to $50,000 (without approval of the Attorney General). Here, Allstate’s claim against the State was not settled but, rather, resolved by an arbitration award after a contested proceeding. Because Executive Law § 203 does not provide a damages cap, the arbitration panel did not exceed its authority and did not act arbitrarily or capriciously in determining that Allstate was entitled to recoup the OBEL payment made to its insured. Rather, the arbitration panel’s decision was rationally based on the relevant statutes and regulations (see [*5]Insurance Law § 5102 [a], [b]; 11 NYCRR 65-1.1, 65-1.2).

Accordingly, it is ordered and adjudged that the motion of petitioner Allstate Insurance Company is granted; and it is further ordered and adjudged that the cross motion of respondent the State of New York also known as Office of General Services of the State of New York is denied; and it is further ordered and adjudged that the arbitration award rendered in favor of petitioner Allstate Insurance Company on June 4, 2020, is confirmed; and it is further ordered and adjudged that the clerk shall enter a judgment accordingly.

Footnotes

Footnote 1:The State concedes that its driver was 100% at fault.

Footnote 2:In addition to the basic $50,000 of no-fault coverage, Mr. Quirk’s policy included $25,000 in OBEL coverage.

Footnote 3:Insurance Law § 5105 provides, in relevant part, that if at least one of the motor vehicles involved in the accident weighs more than 6,500 pounds (unloaded), then a no-fault carrier may recover first-party benefits it has paid from the insurer of the at-fault party (hereinafter PIP loss transfer). Here, PIP loss transfer applies because the State’s vehicle was a Mack dump truck and qualifies due to weight.

[*1]

Civil Court of the City of New York, Kings County, April 20, 2021

APPEARANCES OF COUNSEL

Rivkin Radler, LLP, Uniondale (Donald Kernisant Jr. of counsel), for defendant.

Law Office of Melissa Betancourt, P.C., Brooklyn (Jaime Koo of counsel), for plaintiff.

In this first-party no-fault action, defendant moves pursuant to CPLR 2221 to reargue that portion of this court’s February 28, 2019 decision which reserved the reasonableness of the content of defendant’s request for post-examination under oath (EUO) additional verification as an issue of fact for trial. Defendant contends its request is not subject to judicial review and is valid under the no-fault rules as a matter of law. Defendant claims the court misapprehended the law when it reserved for trial the question of the reasonableness of these additional verification requests. Plaintiff claims defendant failed to establish its outstanding verification defense and that, under the circumstances of this case, the substance of the additional requests was improper and an abuse of the verification process. Plaintiff maintains that defendant’s demand for this type of additional verification placed an improper onus on the provider to supply documents outside the scope of the claim verification process. They claim that defendant’s denial was improper as it was based on a claimed failure to provide some or all of these impermissible requests. Plaintiff further argued that defendant had acquired sufficient information to determine whether to verify or [*2]deny the claim from the provider’s EUO and defendant’s own related investigation. The court notes that defendant interposed a Mallela defense in its answer and that similar demands were made in combined demands served upon plaintiff.

The decision of whether to grant reargument is within the sound discretion of the motion court (see Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2d Dept 2011]; Degraw Constr. Group, Inc. v McGowan Bldrs., Inc., 178 AD3d 772, 773 [2d Dept 2019]; Barnett v Smith, 64 AD3d 669 [2d Dept 2009]). A motion for reargument “ ’is not designed to provide an unsuccessful party with successive opportunities to{**72 Misc 3d at 344} reargue issues previously decided, or to present arguments different from those originally presented’ ” (Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d at 820, quoting McGill v Goldman, 261 AD2d 593, 594 [2d Dept 1999]; Jaspar Holdings, LLC v Gotham Trading Partners #1, LLC, 186 AD3d 582 [2d Dept 2020]). The movant must make an effort to demonstrate in what manner the court, in rendering the original determination, overlooked or misapprehended the relevant facts or law (see Nicolia v Nicolia, 84 AD3d 1327 [2d Dept 2011]; Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d at 820).

“Once the court reviews the merits of the movant’s arguments, the court, by doing so, has granted reargument, and must determine whether to adhere to the original determination, or alter the original determination. If the movant has alleged that the original determination overlooked or misapprehended the relevant facts or law, and the court disagrees, it will adhere to the original determination” (Ahmed v Pannone, 116 AD3d 802, 810-811 [2d Dept 2014, Hinds-Radix, J., dissenting] [citation omitted]).

Upon review of the parties’ submissions, defendant’s motion for leave to reargue is granted, and upon reargument, defendant’s motion is denied. Defendant failed to demonstrate that the court overlooked or misapprehended relevant facts or misapplied governing principles of law (see McGill v Goldman, 261 AD2d 593 [2d Dept 1999]). Accordingly, the court adheres to its original decision wherein it ruled that the reasonableness of defendant’s post-EUO request for additional verification remained an issue of fact for trial.

As an initial matter, this court notes that defendant’s post-EUO request for additional verification is the matter at issue herein. The court emphasizes this because in the instant motion, paragraph three of defendant’s affirmation and much of its supporting legal authority pertain to the issue of an EUO no-show, a matter that at no point was in dispute or an issue in the underlying motion. Conversely, at the outset of defendant’s affirmation in support of the underlying summary judgment motion, defendant argued for dismissal of the complaint “because Plaintiff failed to provide GEICO with post examination under oath (‘EUO’) verification that was timely requested pursuant to 11 NYCRR 65-3.5″ (emphasis added). Further, the affidavits in support of defendant’s underlying motion also relate to the issue of outstanding additional verification.{**72 Misc 3d at 345} Likewise, the arguments in plaintiff’s opposition to both the underlying and instant motions apply to outstanding additional verification requests. No other issue is properly before the court for reargument. It is also noted that reargument is not sought as to that portion of the decision wherein the court granted each party summary judgment to the extent that they established their prima facie case. Therefore, the court’s ensuing decision and analysis will discuss the issue of the outstanding post-EUO verification request only.

Defendant commenced an investigation into Arthur Avenue Medical Services because it claimed that it identified several facts and circumstances that called into question the provider’s eligibility to collect no-fault benefits. Defendant specifically investigated whether Arthur Avenue was truly owned and controlled by Jaime G. Gutierrez, M.D., or was actually owned and [*3]controlled by laypersons. The investigation included but was not limited to a review and analysis of claims files, public records, previous investigations into other entities that operate out of the same location, previous investigations into other entities where Dr. Gutierrez rendered services and billing submissions submitted to the carrier for reimbursement. Submitted with defendant’s original motion is the affidavit of Glenn Simmons, an investigator with GEICO’s Special Investigations Unit, which sets forth the extent of the investigation and conclusions arrived, namely that: patients treated at Arthur Avenue were referred to that provider by Dr. Gutierrez (who operates at the same location); Dr. Gutierrez provided services on behalf of Jaime G. Gutierrez, M.D., then referred the same patients to Arthur Avenue for additional medical treatment; various doctors performed services, yet the billing submissions name Dr. Gutierrez as the only service provider; improper performance of nerve testing including omissions of necessary steps in the administration of the tests; absence of variation in the pattern of treatment and use of predetermined treatment protocol, etc. Mr. Simmons states that the investigation uncovered indications that laypersons were improperly influencing the manner and method of treatment provided to claimants, that Arthur Avenue was rendering services pursuant to a predetermined treatment protocol designed to maximize profit and that Arthur Avenue’s charges may be the result of improper self-referrals.

In addition to the investigation, it is undisputed that on March 9, 2017, Jaime Gutierrez, M.D., appeared on behalf of{**72 Misc 3d at 346} Arthur Avenue in full compliance with defendant’s EUO request. The court’s review of the EUO transcript annexed to the underlying motion reveals that the EUO took place over the course of five hours with questioning involving medical treatment as well as the provider’s licensing and corporate structure. Dr. Gutierrez’s testimony lent further support to the concerns over fraud previously investigated by defendant, including whether Arthur Avenue was a party to unlawful financial relationships with unlicensed individuals and entities, whether laypersons were improperly influencing the manner and methods of treatment provided to GEICO’s insureds and whether Arthur Avenue is truly owned and controlled by Dr. Gutierrez or by laypersons all in contravention to New York law. Defendant claims that its request for additional verification was based on the information obtained during the EUO and that the EUO raised questions regarding improper corporate structure and fee sharing. Thus, by letter dated March 20, 2017, defendant requested that plaintiff provide the following additional verification:

“1. A complete copy of the lease agreements, if any, entered into by Arthur Medical, including any accompanying Schedules, Documents, Floor Plans or Riders, regarding the following premises:

“• 764 Elmont Road, Elmont

“• 293 East 53rd Street, Brooklyn

“• 2363 Ralph Avenue, Brooklyn

“• 9004 Merrick Boulevard, Jamaica

“• 2625 Atlantic Avenue, Brooklyn

“2. [*4]All article[s] of incorporation, including but not limited to any By-Laws for Arthur Medical;

“3. A complete copy of the billing agreement entered between Arthur Medical and Collection Services, Inc./Inna Lyubronestkaya;

“4. All invoices between Collection Services, Inc./Inna Lyubronestkaya and Arthur Medical;

“5. All W-2, 1099, and/or K-1 forms from Arthur Medical, including, but not limited to, any documentation regarding the employee status or relationship between Arthur Medical and any person rendering services on behalf of Arthur Medical;

“6. All quarterly payroll and tax returns (IRS Form 941 and NYS Form 45-MN) filed from 2016 to present by or on behalf of Arthur Medical;{**72 Misc 3d at 347}

“7. Opening/signatory authorization documents for the Arthur Medical Chase bank account;

“8. Copies of all bank statements and cancelled checks for Arthur Medical from 2016 to present;

“• These include, but is not to be limited to, all checks made to: (i) Collection Services, In[c]./Inna; (ii) Osvaldo; (iii) the physician assistant; and (iv) all rent payments.

“9. All documents relating to Arthur Avenue’s corporate card from 2016 to present;

“10. General ledgers for Arthur Medical from 2016 to present;

“11. Proof of payment of the P.O. Box utilized by Arthur Medical;

“12. All licenses to practice medicine in New York for Dr. Gutierrez as well as any certification to render EMG/NCV testing; and

“13. Proof of purchase of the medical equipment utilized by Arthur Medical, including but not limited to the EMG/NCV machine.”

Relevant to the matter herein, 11 NYCRR 65-3.5 (b) of the No-Fault Law provides, “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.” This section authorizes an insurer, upon receiving the written proof of claim or written notice of its substantial equivalent, to request “any additional verification required . . . to establish proof of claim . . . within 15 business days of receipt of the prescribed verification forms” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]; A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53 [2d Dept 2012]). Additionally, section 65-3.2 (c) dictates that insurance carriers “not demand verification of facts unless there are good reasons to do so. When verification of facts is necessary, it should be done as expeditiously as possible” (11 NYCRR 65-3.2 [c]). Indeed, underlying the enactment of the no-fault regulations is the principle of expediency in the processing of claims (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997]). “No-fault reform was enacted to provide prompt uncontested, first-party insurance benefits” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 285).{**72 Misc 3d at 348}

In the context of no-fault reimbursement, to be eligible for benefits, a medical services corporation must be owned by a physician who practices medicine through the corporation (Business Corporation Law § 1508) and may not bill for medical services provided by physicians not employed by the corporation, such as independent contractors (11 NYCRR 65-3.11 [a]). Further, the corporation may not share professional service fees with third parties, such as referral fees (8 NYCRR 29.1 [b] [4]). It is well established that New York law prohibits unlicensed individuals from organizing a professional service corporation for profit or exercising control over such entities (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; 11 NYCRR 65-3.16 [a]). As relevant herein, the underlying policy concern in the medical field is “that the so-called ‘corporate practice of medicine’ could create ethical conflicts and undermine the quality of care afforded to patients” (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 404 [2019], quoting State Farm Mut. Auto. Ins. Co. v Mallela, 372 F3d 500, 503 [2d Cir 2004]).

In the seminal case, State Farm Mut. Auto. Ins. Co. v Mallela, the Court of Appeals held that medical providers that fail to meet the New York State licensing requirements are not eligible for no-fault reimbursement (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

“A successful Mallela defense permits an insurer to avoid paying an otherwise valid no-fault claims [sic] because the provider is not eligible to obtain payment of no-fault benefits because the entity providing the services is owned or significantly controlled by persons who are not licensed to practice the profession for which the professional business entity was formed” (Brownsville Advance Med., P.C. v Country-Wide Ins. Co., 33 Misc 3d 1236[A], 2011 NY Slip Op 52255[U], *3 [Nassau Dist Ct 2011] [citations omitted]).

An insurance carrier may, at any time, assert a non-precludable “Mallela defense” and deny payment based on the medical provider’s fraudulent incorporation (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]; Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). “Inasmuch as the defense of ‘fraudulent incorporation’ is not subject to the preclusion rule, the defendant may raise this defense in its answer, even if not asserted in the{**72 Misc 3d at 349} claim denial” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 35 Misc 3d 1235[A], 2012 NY Slip Op 51001[U], *2 [Suffolk Dist Ct 2012]).

With regards to Mallela related documents, the case law clearly lays out a “good cause” [*6]standard which a carrier must demonstrate in order to investigate licensing violations. In its Mallela decision, the Court of Appeals emphasized the Superintendent’s regulation permitting carriers to withhold reimbursement from fraudulently licensed medical corporations:

“on the strength of this regulation, carriers may look beyond the face of licensing documents to identify willful and material failure to abide by state and local law. Defendants argue that the carriers will turn this investigatory privilege into a vehicle for delay and recalcitrance.

“The regulatory scheme, however, does not permit abuse of the truth-seeking opportunity that 11 NYCRR 65-3.16 (a) (12) authorizes. Indeed, the Superintendent’s regulations themselves provide for agency oversight of carriers, and demand that carriers delay the payment of claims to pursue investigations solely for good cause (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. Technical violations will not do. For example, a failure to hold an annual meeting, pay corporate filing fees or submit otherwise acceptable paperwork on time will not rise to the level of fraud. We expect, and the Legislature surely intended, vigorous enforcement action by the Superintendent against any carrier that uses the licensing-requirement regulation to withhold or obstruct reimbursements to nonfraudulent health care providers” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d at 321-322 [emphasis added]).

In the recently decided Andrew Carothers, M.D., P.C. v Progressive Ins. Co.,^[FN*] the Court of Appeals upheld its decision in Mallela and added that

“[a] corporate practice that shows ‘willful and material failure to abide by’ licensing and incorporation statutes (Mallela, 4 NY3d at 321) may support{**72 Misc 3d at 350} a finding that the provider is not an eligible recipient of reimbursement under 11 NYCRR 65-3.16 (a) (12) without meeting the traditional elements of common-law fraud” (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 405 [2019]).

In cases involving Mallela-type concerns, courts of competent jurisdiction have reviewed the reasonableness of verification requests similar to those at issue. In Island Chiropractic Testing, P.C. v Nationwide Ins. Co., the court held that “verification requests, seeking inter alia, copies of ‘sale of shares or transfer of ownership (and) lease agreements’ are impermissible and improper requests, and cannot support the finding of a denial ‘toll’ which would permit an award of summary judgment to defendant” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 35 Misc 3d 1235[A], 2012 NY Slip Op 51001[U], *2 [Suffolk Dist Ct 2012]). “Permitting an insurer to obtain written documents such as tax returns, incorporation agreements or leases regarding a potential fraudulent incorporation ‘[Mallela]’ defense as part of the verification process defeats the stated policy and purpose of the no-fault law and carries with it the potential for abuse” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 2012 NY Slip Op 51001[U], *2). In underlining that denying use of such requests does not prejudice the carrier, the court noted that as “the defense of ‘fraudulent incorporation’ is not subject to the preclusion rule, the defendant may raise this defense in its answer, even if not asserted in the claim denial” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 2012 NY Slip Op 51001[U], *2).

Similarly, the court in Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. ruled that “Mallela type material cannot be obtained as verification of the claim. Requesting an [sic] [*7]provider to produce voluminous corporate records in order to obtain payment of a no-fault claim is an abuse of the EUO and the entire verification process” (Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 35 Misc 3d 1213[A], 2012 NY Slip Op 50676[U], *6 [Nassau Dist Ct 2012], mod 42 Misc 3d 131[A], 2013 NY Slip Op 52225[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). This court notes that on appeal, the Appellate Term dismissed the plaintiff’s case based on an EUO no-show and therefore did not rule on the issue of the verification request content and reasonableness (Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 2013 NY Slip Op 52225[U]).

By comparison, in the context of litigation wherein a carrier asserts a Mallela defense, courts have generally ruled on the{**72 Misc 3d at 351} propriety of pretrial discovery demands for corporate documents and information. The Appellate Term has consistently held that a plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (Marino v County of Nassau, 16 AD3d 628 [2d Dept 2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Clinton Place Med., P.C. v USAA Cas. Ins. Co., 56 Misc 3d 136[A], 2017 NY Slip Op 51012[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Charles Deng Acupuncture, P.C. v United Servs. Auto. Assn., 58 Misc 3d 135[A], 2017 NY Slip Op 51810[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Further, discovery demands concerning a Mallela defense are granted as long as there are sufficient allegations supporting such a defense (see Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; BS Kings County Med., P.C. v State Farm Mut. Auto Ins. Co., 68 Misc 3d 879 [Civ Ct, Bronx County 2020]). However, it is proper for a court to deny discovery demands seeking information that is “irrelevant, overly broad, or burdensome” (Pesce v Fernandez, 144 AD3d 653, 655 [2d Dept 2016]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [2008]).

Based on the foregoing, the court adheres to its decision on defendant’s summary judgment motion. To prevail on summary judgment, the moving party must provide sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). The “[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Defendant failed to establish its affirmative defense of outstanding verification in its underlying motion. The reasonableness of defendant’s post-EUO additional verification request remains an issue of fact for trial.

Defendant’s assertion that this court lacks the authority to preserve the reasonableness of additional verification requests for trial conflicts with prevailing no-fault regulations and case law. Both the Mallela and Carothers Courts stressed principles of expediency and good cause in investigations of fraudulent licensing and improper fee sharing and acknowledged that abuse of the verification process may exist. At no time did the{**72 Misc 3d at 352} Court of Appeals state that carriers have unfettered authority in the extent of these investigations. Although there is a lack of Appellate Term authority on this issue, courts of competent jurisdiction have reviewed the content of verification requests in cases similar to the instant matter and have ruled that comparable requests fall outside of the verification scheme. It is the court’s view that it has authority to review additional verification requests to ensure that parties comply with no-fault claim verification procedures. Thus, the question of whether the additional verification was reasonable and necessary for defendant to verify or to deny the claim, based on fraud, is within the court’s authority to determine.

In this matter, the provider fully complied with defendant’s EUO request. Defendant obtained substantial Mallela-type information relevant to its suspicion of fraud during the course of the five-hour EUO, that included a multitude of questions related to corporate structure. Defendant also conducted its own investigation into plaintiff’s billing and medical practices as laid out in the affidavit of its special unit investigator. This inquiry and investigation were well within the guidelines of the No-Fault Law and adhered to the “good cause” requirement as set forth by Mallela and Carothers. However, defendant’s subsequent request for additional information through use of the no-fault claim verification process may be unreasonable and constitute an investigation that goes beyond the purview of the no-fault reimbursement system. “New York’s no-fault automobile insurance system is designed to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 562 [2008] [internal quotation marks omitted]). The court emphasizes the limited purpose of the no-fault system: “Verification is permitted to ‘verify the claim.‘ 11 NYCRR 65-3.5(c)” (Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 2012 NY Slip Op 50676[U], *4 [emphasis added]). A claim is either verified or it is not. Had defendant suspected fraud after the five-hour EUO, defendant may have denied the claim based on fraudulent incorporation at that point in time. Furthermore, in the context of verification of a claim, some of the requested information may be privileged or categorized as improper pre-litigation discovery. Thus, the propriety of the additional verification request upon which the defendant denied the claim remains an issue of fact for trial.{**72 Misc 3d at 353}

Notwithstanding the above, the court’s determination to adhere to its original decision is also based on defendant’s failure to provide the court with a complete record in support of its original request for summary judgment based on its outstanding verification defense. Defendant acknowledges in a footnote in its underlying motion that it received “some” of the requested documents from plaintiff. However, defendant does not identify what plaintiff provided and what remained outstanding from its comprehensive list of post-EUO verification requests, which includes documents subject to privilege and confidentiality rules. The court was unable to rule on the issue it preserved for trial in the absence of these relevant facts. Therefore, in accordance with the original decision, this defense remains an issue of fact for trial.

Finally, the court emphasizes that its decision should not be construed as a substantive ruling on the merit of defendant’s Mallela defense. Rather, the court’s decision is based on its adherence to claim verification procedures as laid out in the no-fault rules. The court is well versed in the public policy concerns underlying the no-fault regulations which govern medical provider licensing and prohibit fee sharing with nonmedical professionals. The prevalence of this fraud provides an insurance carrier with a choice of legal recourse including asserting a non-precludable Mallela defense or a defense related to licensing ineligibility within no-fault litigation, standing to bring a civil action against a medical provider based on fraud or filing a criminal complaint (see Travelers Indem. Co. v Parisien, 70 Misc 3d 1203[A], 2020 NY Slip Op 51561[U] [Sup Ct, Suffolk County 2020]; Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 2012 NY Slip Op 50676[U]). However, in light of the aforementioned case law and principles, the court reaffirms that the propriety of the post-EUO request for additional verification is subject to the court’s review.

Based on the foregoing, defendant’s motion for leave to reargue is granted, and upon reargument, defendant’s motion is denied.

Footnotes

Footnote *:In Andrew Carothers, M.D., P.C. v Progressive Ins. Co., the Court of Appeals modified the definition of fraud previously laid out in Mallela.

CV-704182-19/QU

Plaintiff’s Counsel:

Gitelis Law Firm, P.C.

2004 Coney Island Avenue, 2d Floor

Brooklyn, NY 11223

Defendant’s Counsel:

Hollander Legal Group, P.C.

105 Maxess Road, Suite S128

Melville, NY 11747

 Papers

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

Papers Numbered

Defendant’s Notice of Motion seeking summary judgment and Affirmation 1In Support dated July 29, 2019 (“Motion“) and file stamped by the court on August 7, 2019.

Plaintiff’s Affirmation in Opposition dated September 25, 2019 (“Opposition“). 2

Defendant’s Affirmation in Reply dated February 4, 2020 (“Reply“) 3and electronically filed with the court June 8, 2020.

Background

In a summons and complaint filed on March 1, 2019, Plaintiff sued Defendant insurance company to recover $9,609.62 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Seleznyov from February to July 2018, plus attorneys’ fees and statutory interest. Defendant moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO”), or alternatively for judgment that Defendant established its prima facie case. Plaintiff opposed the motion.

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

Insurers must pay or deny No-Fault benefit claims “within thirty (30) calendar days after receipt of the 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 the claim precludes the insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). Noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance [*2]policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]).

In order to establish a defense that an insured failed to attend a duly scheduled EUO, an insurer must present evidence of the timely and proper mailing of the EUO scheduling letters (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016]). This may be established with evidence of the actual mailing or by an affidavit of a person “with personal knowledge of the standard office practice for ensuring that the letters are properly addressed and mailed” (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d at 694). To support its motion, Defendant presented the first demand letter dated April 5, 2018, scheduling the EUO for May 1, 2018, (see Motion, Aff. of Drapan, Ex. X). Further, in an affidavit sworn July 29, 2019, Hollander, president of Defendant’s law firm, attested to the standard office mailing procedures for sending EUO request letters (see Motion, Drapan Aff. Ex. GG), which established timely submission of the EUO request (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2 [App Term 2d Dept 2017]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]). Although Seleznyov failed to appear for the EUO on May 1, 2018 with advanced notice, he appeared with counsel for the EUO rescheduled for May 30, 2018. Seleznyov’s counsel had a conflicting appointment, however, which did not allow the EUO to be completed (see Motion, Drapan Aff. Ex. AA). While a mutually agreed rescheduling prior to an EUO does not constitute a failure to appear (Apple Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] *1 [App Term 2d Dept 2015]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 2013 NY Slip Op 52005[U] *1; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] * 2 [App Term 2d Dept 2012]), there is no evidence of such agreement despite Defendant’s acknowledgement that the law firm representing Seleznyov contacted Defendant’s counsel the day before the EUO scheduled on May 1, 2018, to advise that Seleznyov would not appear. Defendant also presented a letter dated June 5, 2018, which scheduled the continued EUO for June 26, 2018 (see Motion, Drapan Aff. Ex. BB), and, a letter dated June 28, 2018, which scheduled the continued EUO for July 25, 2018 (see Motion, Drapan Aff. Ex. DD), as well as a follow up letter dated June 29, 2018 (see Motion, Drapan Aff. Ex EE). These subsequent EUO scheduling letters timely scheduled the continued EUOs after each time Seleznyov failed to appear for the respective scheduled EUO (11 NYCRR § 65-3.6[b]; see Active Care Med. Supply Corp. v Ameriprise Auto & Home, 58 Misc 3d 138[A], 2017 NY Slip Op 51835[U] *2 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] *2 [App Term 2d Dept 2011]). The transcripts of the EUO proceedings (see Motion, Drapan Aff. Ex. Y, CC, FF) constituted adequate proof of Seleznyov’s nonappearance at the EUOs (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] *1 [App Term 2d Dept 2017]; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). Although Seleznyov appeared for one EUO, Defendant’s evidence still established Seleznyov’s failure to appear for an initial EUO on May 1, 2018, and a [*3]follow-up EUOs on June 26 and July 25, 2018, to prove Plaintiff’s failure of a condition precedent to Defendant’s duty to pay the claims (see Apple Massage Therapy, P.C. v Adirondack Ins. Exch., 56 Misc 3d 132[A], 2017 NY Slip Op 50935[U] *2 [App Term 2d Dept 2017]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] *2 [App Term 2d Dept 2013]).

The affidavits of Mclendon, Operations Manager of Defendant’s agent for processing incoming and outgoing mail, established Defendant’s standard mailing procedures designed to ensure timely mailing and the timely denial of Plaintiff’s claims within 30 days after the last scheduled EUO at which Seleznyov failed to appear (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Tam Med. Supply Corp. v 21st Century Ins. Co., 2017 NY Slip Op 51510[U] *1; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). Therefore, Defendant’s denial of these claims on August 3, 2018 was timely (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757, see 11 NYCRR §§ 65-3.5[a]; 65-3.5[a]). Defendant’s evidence that it requested Seleznyov’s appearance at the continued EUOs twice after the EUO for which he did appear and testify, that he failed to appear both times for the scheduled continued EUOs and that Defendant denied Plaintiff’s claim on such basis satisfied Defendant’s burden of establishing a material policy breach by Plaintiff (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d at 1007; Interboro Ins. Co. v Clennon, 113 AD3d at 597). Finally, Defendant’s evidence demonstrated that it paid a bill from Plaintiff that Defendant received on March 30, 2018 (see Motion, Drapan Aff. Ex K).

In opposition, Plaintiff presented no contrary evidence, but merely argued generally that Defendant’s evidence was inadmissible. In the instant matter, Defendant denied Plaintiff’s claims on the ground that Plaintiff assignor failed to attend scheduled EUO. In its Motion, Defendant presented various affidavits documenting Plaintiff assignor’s failure to attend the scheduled respective continued EUOs. This Court finds such affidavits admissible. Defendant also presented affidavits establishing its timely denial of Plaintiff’s claims, and this Court finds such affidavits also admissible. If Plaintiff were to present affidavit indicating that Plaintiff assignor indeed had attended such scheduled respective continued EUOs or that Plaintiff did not timely receive Defendant’s denial of claims, a factual issue would have been raised warranting a trial. Here, Plaintiff did not. 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 and 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 at 757; 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 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 2017]). Although Plaintiff also argued without presenting any evidence, that Defendant failed to establish that its denials of claim were issued in duplicate, Mclerndon’s affidavits were sufficient to establish that Defendant’s explanations of review and denial of claim forms were submitted in duplicate (Lenox Hill Radiology, P.C. v Redland Ins. Co., 37 Misc 3d 140[A], 2012 NY Slip Op 52263[U] [*4]*1 [App Term 2d Dept 2012]). In any event, the failure to present a denial of claim in duplicate, standing alone, is not fatal to Defendant’s defense (Mollo Chiropractic, PLLC v American Commerce Ins. Co., 42 Misc 3d 66, 69 [App Term 2d Dept 2013]). Finally, in light of the Court’s dismissal of Plaintiff’s complaint, consideration of Defendant’s evidence that Plaintiff’s claims exceeded the applicable fee schedules is academic.

IV. Order

Accordingly, it is

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

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

This constitutes the DECISION and ORDER of the Court.

Dated: April 16, 2021

Queens County Civil Court

Honorable Li, J.C.C.

Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro and Susan Eisner of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered April 5, 2019. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

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

First Care Medical Equipment, LLC (First Care) commenced this action against Encompass Insurance (Encompass) to recover assigned first-party no-fault benefits for supplies which had been provided to Sophia Brooks, who was allegedly injured in an accident on August 4, 2014. Before First Care commenced this action, Encompass had commenced a declaratory judgment action in the Supreme Court, New York County, against First Care, among other providers, alleging, insofar as is relevant, that First Care had failed to appear for duly scheduled examinations under oath. Sophia Brooks was not a named defendant in the declaratory judgment action. After the providers failed to appear in the Supreme Court action, Encompass moved in the Supreme Court for a default judgment. The Supreme Court issued a declaratory judgment, dated April 3, 2018, declaring that Encompass is “not obligated to provide any coverage, reimbursements or pay any invoices, sums or funds to First Care . . . for any and all no-fault related services for which claims/bills have been or may in the future by submitted by [First Care] to [Encompass] for which an Examination Under Oath of . . . First Care . . . was requested and . . . First Care . . . failed to appear.”

Thereafter, Encompass moved in the Civil Court for summary judgment dismissing First Care’s complaint, contending that the Civil Court action is barred by the declaratory judgment. First Care opposed the motion and cross-moved for summary judgment. By order entered April 5, 2019, insofar as relevant to this appeal, the Civil Court denied defendant’s motion.

The doctrine of res judicata, or claim preclusion, may be invoked where a party seeks to [*2]relitigate a disposition on the merits of claims or causes of action arising out of the same transaction which had been raised or could have been raised in the prior litigation by a party or those in privity with a party (see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; New Millennium Med. Imaging, P.C. v American Tr. Ins. Co., 50 Misc 3d 145[A], 2016 NY Slip Op 50259[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). As the Civil Court correctly found, defendant failed to establish that the services at issue are ones for which an EUO had been timely requested and plaintiff failed to appear. Consequently, defendant did not meet its burden of demonstrating that this action is barred by res judicata based on the declaratory judgment, and, thus, its motion was properly denied.

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

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Buiyan of counsel), for appellant. Petre and Zabokritsky, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered July 23, 2018. The order, insofar as appealed from, denied the branches of defendant’s motion seeking leave to reargue or renew plaintiff’s prior motion, made pursuant to CPLR 3126, to preclude defendant from offering evidence at trial, which had been determined in an order of that court (Odessa Kennedy, J.) entered January 30, 2018, or, in the alternative, seeking to vacate so much of the order entered January 30, 2018 as granted plaintiff’s motion to preclude defendant from offering evidence at trial.

ORDERED that the order entered July 23, 2018, insofar as appealed from, is reversed, without costs, the branch of defendant’s motion seeking to vacate so much of the order entered January 30, 2018 as granted plaintiff’s motion to preclude defendant from offering evidence at trial is granted, and plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 603, to sever the first cause of action from the remaining four causes of action. Plaintiff opposed the motion and cross-moved to compel discovery or preclude defendant from offering evidence at trial. By order entered August 17, 2016, the Civil Court (Steven Z. Mostofsky, J.) denied defendant’s motion and granted plaintiff’s unopposed cross motion to the extent of compelling defendant to provide discovery “within 60 days of the date of the order or be precluded.” By decision and order dated October 14, 2016, this court granted defendant’s motion for a stay pending appeal of the August 17, 2016 order, but provided that, if defendant’s appeal was not perfected by January 6, 2017, this “court, on its own motion, may vacate the stay, or [plaintiff] may move to vacate the stay on three days’ notice.” Defendant was unable to perfect the appeal by January 6, 2017 because the clerk of the Civil Court did not file [*2]the return as required by CCA 1704 (b). Nevertheless, the stay imposed by this court’s October 14, 2016 decision and order was not vacated until October 18, 2019. Meanwhile, immediately upon learning that the papers necessary to perfect its appeal were missing from the Civil Court’s file, defendant moved to deem copies of the papers to be originals. On October 3, 2017, plaintiff moved to preclude defendant from offering evidence at trial. By order entered January 30, 2018, the Civil Court (Odessa Kennedy, J.) granted both unopposed motions.

Defendant then made the instant motion for leave to reargue or renew plaintiff’s motion to preclude defendant from offering evidence at trial, or, in the alternative, to vacate so much of the January 30, 2018 order as had granted plaintiff’s preclusion motion. By order entered July 23, 2018, the Civil Court (Sharon Bourne-Clarke, J.) denied defendant’s motion, finding that “defendant failed to demonstrate that there was a stay order in effect that prevented [the Civil Court] from issuing its January 30, 2018 order.”

The branch of defendant’s motion seeking leave to reargue or renew should have been denied on the ground that there was no opposition to plaintiff’s prior motion that could have been reargued or renewed (see Hudson City Sav. Bank v Bomba, 149 AD3d 704 [2017]). While defendant argues on appeal that so much of the January 30, 2018 order as granted plaintiff’s preclusion motion should be vacated pursuant to CPLR 5015 (a) (4), that argument lacks merit because the violation of a stay does not implicate subject matter jurisdiction within the meaning of CPLR 5015 (a) (4).

However, vacatur is appropriate in the “interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; cf. also PDQ Aluminum Prods. Corp. v Smith, 20 Misc 3d 94 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]), since plaintiff’s preclusion motion, which resulted in the January 30, 2018 order, violated a stay of this court. Contrary to the Civil Court’s statement, it had enough information to conclude that there had been a stay in effect that precluded the instant motion.

Accordingly, the order entered July 23, 2018, insofar as appealed from, is reversed, the branch of defendant’s motion seeking to vacate so much of the order entered January 30, 2018 as granted plaintiff’s motion to preclude defendant from offering evidence at trial is granted, and plaintiff’s motion is denied.

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Petre and Zabokritsky, P.C. (Damin Toell and Mark Petre of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 17, 2016. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion to sever the first cause of action seeking to recover upon a claim for services rendered to Yolanda Deleon from the remaining causes of action.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied defendant’s motion, which, relying only on the pleadings, had sought, pursuant to CPLR 603, to sever the first cause of action, seeking to recover upon a claim for services rendered to Yolanda Deleon, from the remaining causes of action. Defendant’s counsel asserted that the causes of action had arisen out of five accidents and that multiple defenses had been interposed in the answer. By order entered August 17, 2016, the Civil Court denied defendant’s motion.

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 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]). Here, the conclusion that resolution of the claim for services rendered to Yolanda Deleon will involve different questions of fact and law from the claims for services rendered to the other assignors is not compelled by the fact that the assignors were injured in separate [*2]accidents or by defendant’s pleading of 55 affirmative defenses (see Majestic Acupuncture, P.C., 61 Misc 3d 152[A], 2018 NY Slip Op 51785[U]). To the extent that defendant cites 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]) to support the opposite conclusion, it should not be relied upon for the proposition that severance is warranted solely on the ground that no-fault claims arose out of multiple car accidents on different dates. The record in Premier demonstrated that the denial of each claim was based on the particular assignor’s failure to appear for scheduled independent medical examinations and, while omitted from the decision, that fact was the basis for this court’s determination.

In view of the foregoing, defendant did not establish that the Civil Court’s denial of defendant’s motion was an improvident exercise of discretion. Accordingly, the order, insofar as appealed from, is affirmed.

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

CV-705866-17
John A. Howard-Algarin, J.

A bench trial was held before this Court on March 23, 2021, in this action to recover first party no-fault benefits related to claims made by Assignee, New York Center for Specialty Surgery (hereafter “Specialty Surgery” or “Provider”), for manipulation under anesthesia (“MUA”) procedures performed on Assignor, Jennifer Barrera (“Barrera”). Specifically, Specialty Surgery seeks payment in the amount of: $5,113.01 for an MUA performed on February 12, 2017 (as to Index No. 705866-17); $3,821.76 for an MUA performed on February 25, 2017 (as to Index No. 705867-17); and, $5,113.01 for an MUA on March 4, 2017 (as to Index No. 705884-17). Defendant, State Farm Insurance Company (“State Farm”), has declined to pay for the procedures deeming them medically unnecessary. A prior court order disposed of all other matters save for the question of payment for the aforementioned procedures.

Prior to commencement of the trial, the parties stipulated to the timeliness of both the plaintiff’s claims for payment for the procedures and the defendant’s denials thereof. The parties also stipulated into evidence: a peer review and addendum by State Farm’s sole witness herein, Daniel Spostas, D.C., (Defendant’s Exhibits A and B); the relevant treatment records (Defendant’s Exhibit C); and a series of bills and denials related to the three procedures (Defendant’s Exhibits D through I). Finally, the parties stipulated to Chiropractor Sposta’s expertise in the field of chiropractic medicine. Having satisfied its prima facie burden by way of the evidentiary stipulations, and after bilateral waivers of opening statements, the plaintiff rested. As is well settled in no-fault insurance law, State Farm bore the burden of establishing that the MUA procedures were not medically necessary (See e.g., Tremont Medical Diagnostic, P.C., v. GEICO Ins. Co., 13 Misc 3d 131(A) [App Term, 2nd & 11th Jud Dists 2006]).

State Farm’s case in chief consisted solely of Dr. Spostas’ testimony. As anticipated, Spostas testified on direct examination that the MUA procedures performed on Barrera were not medically necessary. Following the arguments set forth in his peer review of April 4, 2017, and addendum of May 3, 2017 — both documents virtually identical in substance — Spostas testified concerning the general protocols for chiropractors considering use of MUA procedures. In this [*2]regard, he deemed those promulgated by the National Academy of Manipulation Under Anesthesia Physicians (“NAMUA”) to be authoritative.

Relying primarily on the NAMUA protocols and the scope of chiropractic treatment as defined in Education Law § 6551(1), Spostas opined that Barrera was not a proper MUA candidate given the absence of evidence in the medical record reflecting: (1) a second medical opinion or interdisciplinary advice concerning use of the procedure; (2) blood tests and other screening for the patient’s tolerance of anesthesia; (3) a history of severe pain, spinal adhesions, voluntary muscle contracture, apprehensive muscle splinting or severe spasms; or (4) a failure to improve after a period of conventional chiropractic treatment. He also opined that anesthetized manipulation of Barrera’s hip and shoulder regions exceeded the scope of medical treatment contemplated within the discipline of chiropractic medicine.

Notably, Spostas proffered most of these very same pre-MUA standards in Kraft v. State Farm Mutual Automobile Ins Co., 34 Mic. 376 [Civ Ct, Queens Cty, 2011]. His purported standards were generally found to be lacking merit in that case. They gain no traction in this one. Here, as in Kraft, Dr. Spostas cited to no authority to support his contention that a second medical opinion or interdisciplinary advice was required prior to performance of a MUA procedure on a chiropractic patient. To be sure, the NAMUA protocols appear to be silent on the matter, as they are respecting his suggestion that a patient’s blood must be screened as part of NAMUA’s preoperative procedures under the protocols. Hence, what remains to be considered is whether, in view of Barrera’s medical and treatment history and the protocols, implementation of the MUA procedures was justified. Upon review of the record in evidence here, this Court finds justification for each procedure.

Among other considerations, the NAMUA protocols suggest, in relevant part, that MUA procedures are clinically justifiable when a patient has responded favorably to conservative, non- invasive chiropractic treatment but continues to experience intractable (i.e., hard to control) pain that interferes with his or her lifestyle. NAMUA protocols further recommend that manipulative procedures be utilized in a clinical setting for 2 to 6 weeks prior to recommending the procedure. Finally, as correctly noted by Spostas, the protocols also consider the MUA candidate’s history of severe pain, spinal adhesions, voluntary muscle contracture or muscle spasms, among other symptoms.

In his peer review dated April 4, 2017, Spostas noted that Barrera received her initial chiropractic examination on September 8, 2016, approximately 9 days after the underlying August 30, 2016 vehicular accident that is believed to have caused her injuries.1 She was examined, at that time, by chiropractor Arthur Schoenfeld, who recorded complaints of headache, dizziness, upper middle and lower back pain, and left sided neck pain radiating to the left shoulder. Range of motion in her cervical and thoracolumbar spine was found to have decreased with pain, and positive findings were noted in the cervical compression, heel walk, SLR (straight leg raise) and Kemp’s tests. On November 2, 2016, approximately 8 weeks after the vehicular incident and 2 weeks beyond the 2 to 6 week preliminary chiropractic period contemplated by the NAMUA protocols, Schoenfeld wrote a Letter of Medical Necessity to State Farm indicating that, while Barrera had demonstrated some responses to physiotherapy, she was still experiencing pain and difficulty performing many daily activities. The letter was used to justify Schoenfeld’s prescription of various medical supplies including a cervical pillow and collar, a car seat support, and a bed board, among other items. The record also reflects that, up to that date, she participated in regular chiropractic adjustments and continued to receive such treatment until just before January 25, 2017, when she first presented at Pro Align Chiropractic, P.C. (“Pro Align”), for evaluation as a candidate for MUA.

At her January 25, 2017 evaluation at Pro Align, Barrera was diagnosed with various pathologies including: displacement of both cervical and lumbar intervertebral discs; cervical, [*3]thoracic, lumbar and sacroiliac segmental dysfunction; cervicobrachial syndrome; cervical radiculitis; and other symptoms related to her shoulder and hip joints. The evaluation also depicted her as experiencing a significant loss of range of motion in all areas, and having reached a “plateau” in her recovery efforts considerably below her maximum medical improvement. Her prognosis was guarded. From this, her first MUA was scheduled for February 12, 2017. The target treatment areas included her cervical, thoracic, lumbar, pelvic, hip and shoulder regions.^[FN1]

The first MUA procedure involved manipulation of all parts of her spine and its supporting musculature, and included her shoulders and left hip. Post procedure, she was found to have increased range of motion without significant muscle guarding. In his report, Dipti Patel, D.C. (“Patel”), the chiropractor who performed the MUA, noted that Barrera’s fibro-adhesive conditions were significantly impacted increasing the potential for appropriate neuromuscular re-education and healing. She was instructed to follow up at the surgery center to determine if a second MUA procedure was indicated. In the interim, passive manipulation to the treated areas was prescribed to prevent the reformation of muscular adhesions.

This Court finds that Barrera’s treatment record leading up to January 25, 2017 satisfies the NAMUA considerations justifying the procedure. By the initial MUA date, Barrera had participated in frequent conservative chiropractic sessions and, while experiencing some improvement, was still hampered by pain in her activities daily living. This was true beyond the initial 2 to 6 week conservative manipulation period contemplated by the NAMUA protocols, and the numerous positive findings during her pre-MUA evaluation at Pro Align confirm as much. Furthermore, in keeping with the protocols, Dr. Patel prescribed post-MUA series therapy to prevent the reformation of muscular adhesions, suggesting that adhesions — another justifying factor under the NAMUA protocols — were a complicating factor prior to the procedure. Although further analysis of the treatment record would more robustly justify the initial MUA procedure, it is hardly necessary. In this Court’s view, the procedure was justified. This leaves the question of whether Specialty Surgery’s MUA exceeded the scope of chiropractic practice by including, and billing for, the anesthetized manipulation of Barrera’s left hip and shoulders during the initial MUA. It is this Court’s conclusion that the issue need not be decided here.

New York Education Law § 6551(1) defines the scope of chiropractic practice as follows:

The practice of the profession of chiropractic is defined as detecting and correcting by manual or mechanical means structural imbalance, distortion, or subluxations in the human body for the purpose of removing nerve interference and the effects thereof, where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column.

NY Educ. Law § 6551(1). From this it would appear that the general purpose of chiropractic practice is to correct structural or biomechanical problems within the human body by providing manual or mechanical treatment to the spine. Pertinent here, however, given Specialty Surgery’s failure to call any witnesses, the court is without a medical basis upon which to determine whether the anesthetized manipulation of Barrera’s shoulders and left hip could somehow could have been justifiably brought within the scope of providing treatment to her spine for the purpose of correcting some biomechanical malfunction. Notwithstanding this hurdle, there is ample basis in the record upon which to find that Specialty Surgery should be compensated for the portion of the MUA applied directly to her spine.

An examination of the February 12, 2017 bill submitted by Specialty Surgery to State Farm for the first MUA shows the carrier as being billed $25,000 for the manipulation of Barrera’s spine (Code No. 22505), with additional amounts totaling $44,060 billed for all MUA [*4]treatment provided that day. Given that Specialty Surgery has demanded a total of $5,113.01 for the February 12, 2017 MUA (Index No. 705866-17), upon the medical record in evidence, this court finds ample basis for such compensation for the manipulation of the patient’s cervical, thoracic and lumbosacral spinal regions. Accordingly, justification of the February 25, 2017 (Index No. 705867- 17), and March 4, 2017 (Index No. 705884-17), remains. This court finds that those procedures were also medically justified.

The NAMUA protocols set forth general patient recovery benchmarks to consider prior to performing serial MUA procedures. Generally, the protocols contemplate that a second (or serial) MUA procedure is usually unnecessary when a patient regains and retains 80% or more of normal biomechanical function as a result of the first procedure and post-MUA therapy. However, if the patient regains only 50-70% or less of normal biomechanical function as a result of the first procedure and post-MUA follow up therapy, then a second (or serial) MUA procedure is recommended. While the NAMUA scheme appears to leave biomechanical recovery in the 70- 80% range out of consideration for additional MUA procedures, the protocols ultimately recommend serial MUAs until the patient achieves the 80% or greater biomechanical recovery threshold. With that in view, we turn to the second and third MUA procedures.

On February 25, 2017, the day of Barrera’s second MUA procedure, Barrera presented at Pro Align for a pre-MUA evaluation and was found to have experienced approximately 51%-79% improvement from the first procedure. The evaluation report also noted that she continued to experience chronic pain, adhesions and myofascial pain syndrome. This scenario repeated itself again when she presented at Pro Align for the third and final MUA procedure on March 4, 2017. Hence, according to the NAMUA protocols, as of February 25, 2017, and again on March 4, 2017, Barrera’s recovery fell within the range of justification for the second and third MUA procedures.

As with the February 12, 2017 bill from Specialty Surgery to State Farm, the February 25, 2017, and March 4, 2017 bills each charged $25,000 for the manipulation of Barrera’s spine (Code Nos. 225059 and 22505), with bills totaling $44,060 and $48,030, respectively, for all MUA related services provided on those dates. Given that Specialty Surgery has demanded only $3,821.76 (for February 25, 2017) and $5,113.01 (for March 4, 2017) for the MUA services provided, this Court finds that compensation is warranted in each case.

Accordingly, the clerk is directed to enter judgment in favor of the plaintiff, New York Center for Specialty Surgery, in each of the following matters herein: CV-70566-17; CV-705867- 17; and, CV-705884-17.

This constitutes the Decision and Order of the Court.

Dated: April 14, 2021
Hon. John A. Howard-Algarin, J.C.C.

Footnotes

Footnote 1:All references to the record would have included citations to specific pages therein had counsel complied with the court’s trial part rules and submitted documentary evidence with Bates stamped identifiers.

CV-706933-20/RI

Sanders Barshay Grossman, LLC for Plaintiff;

Burke, Conway & Stiefeld For Defendant

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:

Papers Numbered

Amended Notice of Motion and Affirmation/Affidavit annexed 1-2

Affirmation in Opposition 3

Affirmation in Reply 4

Upon the foregoing cited papers, the decision on Defendant’s Motion to Dismiss is as follows:

Plaintiff, Happy Apple Medical Services, PC (hereinafter, “Plaintiff”), as assignee of Mario Eustache (hereinafter, “Assignor”), commenced this action against the defendant, Liberty Mutual Insurance Company (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion seeking an order pursuant to CPLR 3211(a)(2) dismissing Plaintiff’s complaint for lack of subject matter jurisdiction. Plaintiff submitted opposition to Defendant’s motion, and Defendant submitted an affirmation in reply. The motion was deemed submitted and decision was reserved.

Defendant moves to dismiss Plaintiff’s complaint on the grounds that this Court lacks subject matter jurisdiction over the underlying causes of action. Specifically, Defendant argues that as the New York State Workers’ Compensation Board (the “Board”) has found the underlying action to be a work-related accident, the Board has exclusive jurisdiction over all [*2]workers’ compensation claims. Defendant argues this claim is not covered under its policy.^[FN1] Therefore, Defendant argues, the complaint must be dismissed because the underlying accident was determined by the Board to be work-related.

In opposition, Plaintiff argues that Defendant’s policy exclusion defense should be precluded because the defense was not timely raised by a denial of the bill within 30 days of the submission of the claim (see Ins. Law 5106(a); 11 NYCRR 65-3.8(c)). The Plaintiff argues that there are only four exceptions to preclusion all involving “lack of insurance coverage” and since the exclusion due to a work-related injury is not one of them, Defendant’s motion should fail. The Plaintiff does not make any argument regarding the subject matter jurisdiction of the Court.

Discussion

Defendant is correct in noting that the Board has jurisdiction over the determination of whether an accident occurred within the scope of a claimant’s employment (O’Rourke v Long, 41 NY2d 219, 228 [1976]). The Court of Appeals has ruled that the Board has “the primary jurisdiction, but not necessarily exclusive jurisdiction, in factual contexts concerning compensability.” (Liss v Trans Auto Sys, 68 NY2d 15, 20 [1986]). “When the question is purely one of fact, the Workers’ Compensation Board has exclusive jurisdiction over the issue and it is only when the issue involves statutory construction that the trial court may hear the issue” (Gyory v Radgowsk, 89 AD2d 867, 869 [2d Dept 1982]). Therefore, it is outside this Court’s jurisdiction to make a factual determination as to the eligibility of a claimant for workers’ compensation benefits.

However, Plaintiff has not asked this Court to make such a determination. The causes of action before this Court seek monetary damages relating to unpaid invoices and attorneys’ fees in accordance with a no-fault insurance policy allegedly issued by Defendant to Assignor. This determination is squarely within the Civil Court’s jurisdiction (NY City Civ Ct Act § 202). The fact that the Assignor’s accident was deemed to have been work-related does not divest the Civil Court of its jurisdiction. Rather the Board’s determination is relevant to the extent that “workers’ compensation benefits serve as an offset against first-party benefits payable under no-fault as compensation for ‘basic economic loss'” (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 268 [2d Dept 1991]; Ins. Law § 5102(b)(2)).

Defendant’s motion mischaracterizes the underlying action as a claim for payment under a workers’ compensation insurance policy, rather than, as pleaded, for payment of benefits pursuant to a no-fault insurance policy. Therein lies the error of Defendant’s argument. The law provides the Defendant with a valid defense to such a Civil Court action — an exclusion from the no-fault insurance policy from payment in instances of a work-related accident.

The Insurance Law and corresponding regulations require the service of a timely denial of the payment of the bill upon the health care provider within 30 days to exercise the exclusion (Ins. Law § 5106(a); 11 NYCRR 65-3.8(c)). Defendant has failed not only to present any policy documentation but also a denial form, timely or otherwise. As such, that issue is not before the [*3]Court. Any discussion or argument pertaining to Defendant’s denial and issues of preclusion are not applicable to the current motion.

The sole question before this Court in the instant motion is whether the Court has subject matter jurisdiction. The matter before the Court is not a determination of a workers’ compensation claim, but rather a claim for reimbursement under a no-fault automobile insurance policy. The availability of workers’ compensation benefits can serve as a defense to the No-Fault claim, but it does not invalidate the Civil Court’s subject matter jurisdiction. This Court has jurisdiction to adjudicate the causes of action as it relates to the reimbursement and defenses under the no-fault insurance policy. The Defendant’s motion makes no other argument to justify the dismissal of the complaint other than alleging a lack of subject matter jurisdiction of the no-fault insurance claim.

Accordingly, the Defendant’s motion is hereby denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 13, 2021

Staten Island, New York

Hon. Robert J. Helbock, Jr.

Judge, Civil Court

Footnotes

Footnote 1:While New York law permits No-Fault policies to exclude payment for treatment of work-related injuries (11 NYCRR 65-3.16), the Defendant did not offer a copy of the no-fault insurance contract containing such an exclusion. However, the Court assumes the exclusion applies as a matter of the regular industry practice. However, this assumption, without admissible evidence, does not factor into the Court’s decision.

CV-724222-19/QU

Plaintiff’s Counsel:
Gabriel & Shapiro, L.L.C.
2 Lincoln Avenue, Suite 302
Rockville Centre, NY 11570

Defendant’s Former Counsel:
Bruno, Gerbino & Soriano, LLP
445 Broad Hollow Road, Suite 420
Melville, New York, 11747

Defendant’s Current Counsel:
Callinan & Smith, LLP
3361 Park Avenue, Suite 104
Wantagh, NY 11793

Papers

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

PapersNumbered

Defendant’s Notice of Motion seeking summary judgment and Supporting1

Affirmation dated as of January 10, 2020 (“Motion”) and entered by the court on

February 3, 2020.

Plaintiff’s Notice of Cross-Motion seeking summary judgment and Affirmation2

in Support dated as of October 16, 2020 (“Cross-Motion”) and electronically filed

with the court on October 19, 2020.

Defendant’s Affirmation to Cross-Motion dated as of October 20, 2020 (“Reply”) and

electronically filed with the court on October 20, 2020.3

Background

In a summons and complaint filed on October 24, 2019, Plaintiff sued Defendant insurance company to recover a total of $2,034.58 in unpaid first party No-Fault benefits for chiropractic services provided to Plaintiff’s assignor Martinez throughout 2018, plus attorneys’ fees and statutory interest. The First cause of action was for recovery of a $92.48 bill for services provided May 8 to 9, 2018 (“First Bill“). The Third cause of action was for recovery of a $458.16 bill for services provided June 18 to July 11, 2018 (“Second Bill“). The Fifth cause of action was for recovery of a $285.94 bill for services provided April 2 to 13, 2018 (“Third Bill“). The Seventh cause of action was for recovery of a $226.96 bill for services provided July 17 to 27, 2018 (“Fourth Bill“). The Ninth cause of action was for recovery of a $138.72 bill for services provided September 6 to 14, 2018 (“Fifth Bill“). The Eleventh cause of action was for recovery of a $231.20 bill for services provided August 10 to 27, 2018 (“Sixth Bill“). The Thirteenth cause of action was for recovery of a $92.48 bill for services provided August 2 to 3, 2018 (“Seventh Bill“). The Fifteenth cause of action was for recovery of a $369.92 bill for services provided April 17 to May 2, 2018 (“Eighth Bill“). The Seventeenth cause of action was for recovery of a $138.72 bill for services provided June 11 to 15, 2018 (“Ninth Bill“). The Second, Fourth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, Sixteenth, and Eighteenth causes of action sought recovery of attorneys’ fees for each of the separate bills.

Defendant now moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO“) and failed to timely submit a claim to Defendant, or alternatively for judgment that Defendant established its prima facie case. Plaintiff cross-moved for summary judgment on its claims against Defendant. After [*2]various adjournments, the motion papers were deemed to be fully submitted and subsequently assigned to this Court during the coronavirus pandemic. An oral argument by both parties was conducted by this Court on March 17, 2021.

Discussion and Decision

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). Noncompliance with an insurance policy provision requiring disclosure through an examination under oath is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Regarding notification of the EUO, the insurer must present proof of the actual mailing or its standard office practices that ensure notices “are properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016]; Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051 [2d Dept 2015]). An insurer must request verification within ten (10) days after receipt of claim (11 NYCRR § 65-3.5[a], see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604 [2d Dept 2011]).

In the instant matter, Plaintiff alleged that Defendant failed to timely pay or deny nine (9) separate bills for chiropractic services provided from April to September 2018. Defendant denied receiving Plaintiff’s Second Bill. With respect to the eight (8) remaining bills, Defendant maintained that it properly denied the claims based on those bills because Plaintiff failed to attend EUOs.

Plaintiff’s Second Bill/Plaintiff’s Third Cause of Action

Regarding Plaintiff’s Second Bill in the amount of $458.16 for chiropractic services rendered from June 18 to July 11, 2018 that Plaintiff prayed for in its third cause of action, Defendant denied receiving the bill. Defendant presented an affidavit sworn January 7, 2020, in which Overly, an employee of IDS Property Casualty Insurance Company, which works for Defendant, attested in detail to Defendant’s office practices and procedures for processing claims it received and that a records search revealed no bill for $458.16 for service performed from June [*3]18 to July 11, 2018. Here, such evidence sufficiently demonstrated that Defendant did not receive Plaintiff’s claim in the amount of $458.16 (Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] *1 [App Term 2d Dept 2013]; Vincent Med. Servs., P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 158[A], 2012 NY Slip Op 50431[U] *3 [App Term 2d Dept 2012]). In opposition, Plaintiff presented the affirmation of Moroff, a partner in Plaintiff’s law firm, who attested to the firm’s standard procedures for processing bills it received and submitting them to the insurer for payment (see Cross-Motion, Aff, of John E. Fagan Ex. B). An affidavit of mailing attached to Moroff’s affirmation indicated that the bill was mailed on July 24, 2018. Contrary to Defendant’s contention, Plaintiff properly used an affirmation from Moroff, instead of an affidavit because Moroff is not a party to this action (see Finger v Saal, 56 AD3d 606, 607 [2d Dept 2008]; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466, 466 [2d Dept 2004]; Radiology Today, P.C. v Mercury Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50148[U] *1 [App Term 2d Dept 2012]). Here, Plaintiff has raised factual issues regarding its timely submission of the Second Bill (BAB Nuclear Radiology, P.C. v Mercury Cas. Co., 50 Misc 3d 147[A]; 2016 NY Slip Op 50318[U] *1 [App Term 2d Dept 2016]; Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] *1 [App. Term 2d Dept 2016]), and such issue must be resolved at trial.

Plaintiff’s Third Bill and Eighth Bill/Plaintiff’s Fifth and Fifteenth Causes of Action

Defendant acknowledged receiving Plaintiff’s Third Bill in the amount of $285.94, on May 12, 2018, and Plaintiff’s Eighth Bill in the amount of $369.92, on June 4, 2018, which respectively constituted Plaintiff’s fifth and fifteenth causes of action. Although Defendant sent two separate explanations of benefits dated May 24, 2018 and June 6, 2018, which advised Plaintiff that payment was being delayed pending an EUO, this Court finds that these explanations of benefit are insufficient to delay payment or denial because they did not request verification (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [2d Dept 1999]; Parsons Med. Supply Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] *2 [App Term 2d Dept 2012]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *2 [App Term 2d Dept 2010]; Alur Med. Supply, Inc. v Progressive Ins. Co., 21 Misc 3d 134[A], 2008 NY Slip Op 52191[U] *1 [App Term 2d Dept 2008]). Therefore, regarding the Third Bill and Eighth Bill respectively received on May 12 and June 4, 2018, Defendant’s denial of Plaintiff’s claims based on these bills on July 27, 2018 was untimely (Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90, 92 [App Term 2d Dept 2012]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-47 [2d Dept 2009]; Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 2012 NY Slip Op 51649 *2). As a result, Defendant is not entitled to a judgment dismissing Plaintiff’s fifth and fifteenth causes of action based on the Third Bill and Eighth Bill respectively.

Plaintiff’s First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill, and Ninth Bill/

Regarding the remaining six (6) bills, i.e., Plaintiff first, fourth, fifth, six, seventh and ninth bills, which constituted Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action, Defendant presented an affidavit sworn January 10, 2020, in which Callinan, a partner in Defendant’s counsel’s office, attested to the standard mailing procedures for requests for EUOs and that counsel’s office mailed a request to Sayyed and his attorney on June 5, 2018, scheduling an EUO for June 21, 2017 (see Motion, Aff. of Michael Soriano, Ex. E). Defendant also presented a letter from Plaintiff’s counsel dated June 18, 2018, which acknowledged receipt of the June 5, 2018 scheduling letter (see Motion, Soriano Aff. Ex. K). Here, such evidence established Defendant’s timely submission of the EUO request (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2 [App Term 2d Dept 2017]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1. The transcripts of the EUO proceedings (see Motion, Soriano Aff., Ex. I and J) further constituted adequate proof of Sayyed’s nonappearance (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] *1 [App Term 2d Dept 2017]; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). In addition, Defendant established the timeliness of the second EUO request letter dated June 26, 2018, which scheduled the EUO for July 13, 2018 (see Motion, Soriano Aff. Ex. F), after Sayyed failed to attend the first EUO (11 NYCRR § 65-3.6[b]; see Active Care Med. Supply Corp. v Ameriprise Auto & Home, 58 Misc 3d 138[A], 2017 NY Slip Op 51835[U] *2 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] *2 [App Term 2d Dept 2011]). Since Defendant received the remaining bills after the request for EUO was sent to Plaintiff, the EUO request letter dated June 5, 2018 tolled Defendant’s time to pay or deny the claims (Sharp View Diagnostic Imaging, P.C. v Esurance, 57 Misc 3d 146[A], 2017 NY Slip Op 51466[U] *1 [App Term 2d Dept 2017]; Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] *1 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 2011 NY Slip Op 52382[U] *2).

Overly’s affidavit established Defendant’s standard mailing procedures designed to ensure timely mailing and the timely denial of Plaintiff’s claim within thirty (30) days after the second scheduled EUO (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Tam Med. Supply Corp. v 21st Century Ins. Co., 2017 NY Slip Op 51510[U] *1; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). Therefore, Defendant’s denial of these claims on July 27, 2018 was timely (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757, see 11 NYCRR §§ 65-3.5[a]; 65-3.5[a]). Here, Defendant’s evidence that it twice requested EUOs from Sayyed, that he failed to appear both times and that Defendant denied Plaintiff’s claim on that basis satisfied Defendant’s burden of establishing a material policy breach by Plaintiff (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d at 1007; Interboro Ins. Co. v Clennon, 113 AD3d at 597). As a result, Defendant has met its initial burden of demonstrating that Sayyed failed to attend duly scheduled EUOs and that Defendant timely denied the claims [*4]based on the First Bill, the Fourth Bill, the Fifth Bill, the Six Bill, the Seventh Bill and the Ninth Bill, which were embodied in Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action.

In opposition, Plaintiff contended that factual issues existed precluding Defendant’s motion for summary judgment. While Plaintiff contended that Defendant failed to respond to Plaintiff’s objections to the EUOs, here, such a response is not required to establish noncompliance with a scheduled EUO (see Interboro v Clennon, 113 AD3d at 597; 21st Century Pharm., Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] *1 [App Term 2d Dept 2020]; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U] *1 [App Term 2d Dept 2019]). Also, contrary to Plaintiff’s argument, Defendant was not required to provide “objective reasons for requesting [an] EUO” (21st Century Pharm., Inc. v Integon Natl. Ins. Co., 2020 NY Slip Op 51364[U] *1; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U] *1 [App Term 2d Dept 2017], see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 136[A], 2019 NY Slip Op 51158[U]*2 [App Term 2d Dept 2019]; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 2019 NY Slip Op 50171[U] *2).

Since Plaintiff failed to raise factual issues regarding Defendant’s defense, Defendant is entitled to dismissal of Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action.

Plaintiff’s Cross-Motion

Regarding the Cross-Motion, Plaintiff bore the 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]). Although Plaintiff presented no evidence supporting its Cross-Motion, Defendant’s denial of claim forms constituted prima facie evidence that Defendant received Plaintiff’s claims (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]).

With respect to Plaintiff’s fifth and fifteenth causes of action, as addressed above, Defendant failed to toll the time to pay or deny the claims based on Plaintiff’s Third Bill and Eighth Bill in the respective amount of $285.94 and $369.92. Therefore, Plaintiff is entitled to a summary judgment on its claims based on these bills in the total amount of $655.86, plus statutory interest (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d at 1046-47; Alur Med. Supply, Inc. v Progressive Ins. Co., 2008 NY Slip Op 52191[U] *1-2).

With respect to Plaintiff’s third cause of action, as noted above, factual issues remain regarding Defendant’s receipt of the Second Bill in the amount of $458.16. Such issue must be resolved at trial.

Finally, regarding the remaining six (6) bills alleged in Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action, given Defendant’s unrebutted evidence of its timely submission of EUO request letters, Sayyed’s failure to attend the two scheduled EUOs, and Defendant’s timely denial of Plaintiff’s claims on that basis, this Court dismisses these causes of action as set forth above. Plaintiff is not entitled to a payment for the First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill, and Ninth Bill.

It is noted that in its second, fourth, sixth, eighth, tenth, twelfth, fourteenth, sixteenth, and eighteenth causes of action, Plaintiff improperly pleaded claims for attorneys’ fees based on each individual bill. It is well established by case law that in No-Fault actions, attorneys’ fees are calculated based on a single insured, not on each bill submitted by a provider (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 26 Misc 3d 140[A], 2010 NY Slip Op 50264[U] *2 [App Term 2d Dept 2010]). Although the Court finds that Defendant failed to timely pay or deny the claims under the fifth and fifteenth causes of action, which entitles Plaintiff to recover attorneys’ fees (Insurance Law § 5106[a]; 11 NYCRR 65-3.9[a]; 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 278), given that Plaintiff’s third cause of action must proceed to trial, determination of attorneys’ fees is premature.

IV.Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment is granted to the extent of dismissing Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action based on Plaintiff’s First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill and Ninth Bill, but is otherwise denied, and it is further

ORDERED that Plaintiff’s Cross-Motion is granted to the extent of judgment in Plaintiff’s favor on Plaintiff’s fifth and fifteenth causes of action based on the Third Bill and Eighth Bill in the total amount of $655.86 plus statutory interest, but is otherwise denied, and it is further

ORDERED that Plaintiff’s third cause of action to recover the Second Bill in the amount of $458.16 for services provided June 18 through July 11, 2018, shall proceed to trial; and that Plaintiff’s attorneys’ fees shall be decided during or upon the conclusion of the trial.

This constitutes the DECISION and ORDER of the Court.

Dated: April 13, 2021
Queens County Civil Court
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Honorable Li, J.C.C.