CV-1909-18/SM
James F. Matthews, J.

Upon the following papers numbered 1 to 19 read on this motion by defendant for summary judgment of dismissal by Notice of Motion/Order to Show Cause and supporting papers 1,2,12 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 13,17 ; Replying Affidavits and supporting papers 18,19 ; Filed papers; Other exhibits: 3-11,14-16 ;(and after hearing counsel in support of and opposed to the motion), it is

ORDERED that the part of the motion by defendant seeking summary judgment of dismissal for the NF-3 claim forms with dates of service (“DOS”) of 10/23/17, 10/25/17 through 11/08/17, and 11/14/17 through 11/17/17, for the respective amounts of $34.68, $41.04, $41.04, $41.04, $101.87, $41.04, $101.87, $101.87 and $92.98, in the total sum of $597.43, upon the grounds of outstanding verification requests pursuant to 11 NYCRR 65-3.8(b)(3), is denied, and the Court awards summary judgment to the non-moving plaintiff in the sum of $597.43, pursuant to CPLR 3212(b).

Defendant’s proof submitted in support of its motion to dismiss the aforementioned NF-3 claims based upon outstanding verification requests, also demonstrates it improperly mailed its verification requests to plaintiff provider at the wrong address. The aforementioned NF-3 proof of claim forms (defendant admits their receipt) clearly lists the Provider’s name and address as being: Medalliance Medical Health Services, c/o Law Offices of Baker Sanders, 100 Garden City Plaza, Suite 500, Garden City, New York 11530. A copy of plaintiff’s envelope received and kept by defendant with each of these NF-3 proof of claim forms (submitted as part of defendant’s exhibits), shows a pre-printed return address of Baker Sanders LLC, 100 Garden City Plaza, Suite 500, Garden City, New York 11530.

Moreover, each correspondence to defendant from plaintiff’s health care provider occurred through its attorneys, Baker Sanders, LLC., whose letterhead clearly states the following: “For all Correspondence: 100 Garden City Plaza, Suite 500, Garden City, NY 11530.”

Yet the address on defendant’s verification requests for the aforementioned NF-3 claims, show they were mailed to: Medalliance Medical Health Services, Curtis Blumenthal, D.C., 100 [*2]Garden City Plaza, Suite 500, Garden City, New York 11530; Medalliance Medical Health Services, Ruchi Shah Pt, 100 Garden City Plaza, Suite 500, Garden City, NY 11530; Medalliance Medical Health Services, Lamercie Jean Jacques, 100 Garden City Plaza, Suite 500, Garden City, New York 11530.

The verification requests were improperly addressed as they did not conform to the specific address provided by the plaintiff provider in its NF-3 notice of claim forms. There is no evidentiary proof submitted which indicates the plaintiff provider had offices at the address indicated on the verification letters. As a result, receipt of the verification letters cannot be presumed, and it may be inferred that the provider did not receive the verification request letters, which would therefore excuse any non-compliance thereof (see Celtic Med. P.C. v Progressive Ins. Co., 194 Misc 2d 429 [Dist Ct, Nassau Cty 2002]). Therefore, the Court finds that defendant has failed in its burden to make a prima facie showing of entitlement to summary judgment of dismissal, as a matter of law, with proof in admissible form sufficient to establish the lack of any material issues of fact, concerning the alleged mailing of verification requests to plaintiff provider (see Alvarez v Prospect Hospital, 68 NY2d 320,324 [1986]); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557,562 [1980]). Defendant has failed to demonstrate that it mailed verification request letters to the proper address provided by the plaintiff provider (see Daily Med. Equip. Distrib. Ctr., Inc. v Auto One Ins. Co., 53 Misc 3d 136[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2016], citing St. Vincent’s Hosp. of Richmond v Government Employees Ins. Co., 50 AD3d 1123 [2nd Dept 2008]).

Defendant thereby failed to show that it properly tolled the 30 calendar days in which each claim must be paid or denied, from the date of receipt of the claim (see Insurance Law §5106[a]; 11 NYCRR §65-3.8[a][1]), by making additional verification requests within 15 days from its receipt of each claim (see 11 NYCRR 65-3.5[b]; NY & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2nd Dept 2006]), thereby making each claim overdue (see 11 NYCRR 65-3.8[a][1]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2nd Dept 2005]), and necessitating the denial of this part of defendant’s motion for summary judgment of dismissal.

The Court also awards summary judgment to the non-moving plaintiff in the sum of $597.43, pursuant to CPLR 3212(b), as plaintiff has demonstrated its prima facie case for entitlement to benefits, by showing evidentiary proof that the prescribed statutory billing forms were mailed to and received by the insurer and that payment of no-fault benefits are overdue (see Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498 [2015]; St. Luke’s Roosevelt Hospital v American Transit Ins. Co., 1 AD3d 498 [2nd Dept 2003]; Insurance Law §5106[a]); and it is further

ORDERED that the part of defendant’s motion seeking summary judgment of dismissal for 10 NF-3 claim forms with dates of service (“DOS”) of 11/14/17, 01/08/18, 03/26/18, 03/31/18, 04/18/18, 05/07/18, 07/14/18, 07/26/18 through 07/28/18, 08/09/18, and 08/24/18, for the respective sums of $41.04, $34.68, $111.80, $111.80, $111.80, $80.02, $111.80, $223.60, $111.80, and $111.80, for a total of $1,050.14, on the grounds of non-receipt of the NF-3 billing after the medical services were allegedly rendered, as required within 45 days by 11 NYCRR 65-1.1(d), is denied, and the Court awards summary judgment to the non-moving plaintiff in the sum of $1,050.14, pursuant to CPLR 3212(b).

The Court determines that the affidavit of Brian Edejer, the supervisor of the mailing [*3]department of plaintiff’s counsel, demonstrates his personal familiarity with and supervision over the standard office practices and procedures of his department, geared to insure the proper addressing and mailing of NF-3 no-fault claim forms to insurance carriers. He asserts that his review of the files and computer records of the mailing department made and kept in the regular and ordinary course of business for the instant matter, shows that the NF-3 claim forms and the cover letters from plaintiff’s counsel’s office, were delivered by plaintiff to the custody of the U.S. Postal Service, and have not been returned as undeliverable. He submits a stamped proof of mailing from the U.S. Postal Service for each of the 10 NF-3 claim forms, which confirm their receipt by the U.S. Postal Service, for mailing to defendant.

The Court also finds plaintiff has demonstrated it is entitled to the presumption of timely receipt by defendant of the 10 NF-3 claim forms, despite defendant’s allegations of denial of receipt (see A.B. Medical Services, PLLC. v MVAIC, 6 Misc 3d 131 [A][App Term, 2nd & 11th Jud Dists 2005]), especially in light of the stamped proof of mailing for each claim from the U.S. Postal Service which remains unrefuted by defendant (see St. Vincent’s Hosp. of Richmond v Government Employees Ins. Co., supra, at 1124; Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2nd Dept 2003]; Quality Psychological Services, P.C. v Hartford ins. Co., 38 Misc 3d 1210[A][Civ Ct, City of NY, Kings Cty, 2013]; Elmont Open MRI & Diagnostic Radiology, P.C., 30 Misc 3d 126[A][App. Term, 9th & 10th Jud. Dists 2010]).

In the view of the Court, defendant’s denial of receipt of the 10 NF-3 claim forms, and the statements of the general and customary standard office practices and procedures of defendant’s mailing department for receipt of incoming mail, as supported by the affidavit of defendant’s litigation examiner, Matthew Dunleavy, are insufficient (see S & M Supply Inc. v GEICO Ins., 2003 NY Slip Op 51192 [App Term, 2nd & 11th Jud Dists]; Amaze Med. Supply v Colonial Penn Ins. Co., 3 Misc 3d 135[A][App Term, 2nd & 11th Jud Dists 2004]), under the instant circumstances, to raise a triable issue of fact (see Matter of Fodor v Mena America Bank, N.A., 34 AD3d 473 [2nd Dept 2006]; Matter of State Farm Mut. Auto. Ins. Co. v Kankam, 3 AD3d 418 [2nd Dept 2006]).

Therefore, since defendant has failed to demonstrate it paid or denied the 10 NF-3 claims in the total sum of $1,050.14, within 30 calendar days of receipt of each claim (see 11 NYCRR 65-3.8[c]), or properly sought verification requests to toll the date within 15 days of receipt of each claim (see 11 NYCRR 65-3.5[b]; NY & Presbyt. Hosp. v Allstate Ins. Co., supra; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., supra), each of the 10 NF-3 claims is overdue (see 11 NYCRR 65-3.8[a][1]), and the part of defendant’s motion for summary judgment of dismissal of the 10 NF-3 claims totaling $1,050.14, is denied.

The Court also awards summary judgment to the non-moving plaintiff in the sum of $1,050.14, pursuant to CPLR 3212(b), as plaintiff has demonstrated its prima facie case for entitlement to benefits, by showing evidentiary proof that the prescribed statutory billing forms were mailed to and received by the insurer and that payment of no-fault benefits are overdue (see Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498 [2015]; St. Luke’s Roosevelt Hospital v American Transit Ins. Co., 1 AD3d 498 [2nd Dept 2003]; Insurance Law §5106[a]); and it is further

ORDERED that the part of defendant’s motion for summary judgment dismissing plaintiff’s complaint pursuant to CPLR 3212, for the NF-3 claim forms with dates of service (“DOS”) of 01/03/18, 01/10/18, 01/15/18, 01/16/18, 01/24/18, 02/14/18, 02/19/18, 02/20/18, 02/26/18, for the respective amounts of $26.42, $34.68, $34.68, $41.04, $34.68, $34.68, $34.68, [*4]$41.04 and $34.68, for the total of $316.58, on the grounds the medical services rendered by plaintiff were not medically necessary, is denied.

The Court determines that the factual basis and medical rationale of the conflicting medical opinions and conclusions offered by Dr. Daniel Sposta, D.C., L.Ac., by his peer review report and affidavit dated 10/06/17, which cut off any further chiropractic treatments effective 11/09/17 (see 11 NYCRR §65-3.8 [b][4]; Delta Dignostic Radiology, P.C. v American Mfrs. Mut. Ins. Co., 12 Misc 3d 145[A][App Term, 2nd & 11th Jud Dists 2006]), and the rebuttal affidavit of plaintiff’s expert and treating Chiropractor, Dr. Curtis Blumenthal, D.C., sworn to on 11/18/20, which disputes the findings and rebuts the conclusions of Dr. Sposta (see Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A][App Term, 2nd, 11th & 13th Jud Dists 2012]; Pan Chiropractic P.C. v Mercury Ins. Co., 24 Misc 3d 136[A] [App Term, 2d, 11th & 13th Jud Dists 2009]), meaningfully demonstrate the collective existence of triable issues of fact as to whether there was a lack of medical necessity for the billed services at issue, rendered by plaintiff’s assignee (see Throgs Neck Multicare, P.C. v Mercury Ins. Co., 52 Misc 3d 138[A][App Term, 2nd Dept, 9th & 10th Jud Dists 2016]; Western Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A][App Term, 9th & 10th Jud Dists 2015]; Alur Med. Supply, Inc. v Geico, 31 Misc 3d 126[A][App Term, 2nd, 11th & 13th Jud Dists 2011]), which must be determined at a trial (see also Alvarez v Prospect Hospital, supra; Winegrad v New York Univ. Med. Ctr., supra; Zuckerman v City of New York, supra); and it is further

ORDERED that the part of the motion by defendant seeking summary judgment of dismissal of the NF-3 claim form with the date of service (“DOS”) of 11/14/17, received by defendant on 02/12/18, in the sum of $41.04, and denied by defendant on 02/26/18, pursuant to 11 NYCRR 65-1.1(d), which requires submission of a no-fault claim within 45 days of rendered services, is denied.

Plaintiff’s affidavit of its mailing supervisor, Brian Edejer, acknowledges that the NF-3 claim form for DOS of 11/14/17, along with plaintiff’s counsel’s cover letter, were mailed to defendant on 02/06/18. Plaintiff justifies the late claim submission beyond the 45 days of rendered services, based upon the cover letter dated 02/06/18 from plaintiff’s counsel, Baker Sanders, LLC. to defendant, which informed defendant the claim was “previously submitted incorrectly to another insurance company based on the information provided to our law firm at the time and/or based on a difficulty in ascertaining the proper carrier.”

However, plaintiff also contends that defendant waived the right to challenge the late submission for the $41.04 NF-3 claim received by defendant on 02/12/18 for the DOS of 11/14/17, based upon defendant’s repudiation of liability as of 11/09/17 on the grounds of Dr. Daniel Sposta’s negative independent medical examination (“IME”), because a repudiation of liability excuses any obligations to comply with any conditions precedent under the insurance policy (see Ighara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201, 217-218 [1984]).

The Court determines that defendant has repudiated liability by denying all no-fault benefits based upon the opinion of its medical expert, Dr. Daniel Sposta, D.C., L.Ac., dated 10/06/17, which cut off any further chiropractic treatments effective 11/09/17, based upon the IME of the same date, which found there was no medical necessity for further chiropractic treatment. “This disclaimer of coverage excused the [claimant] from further compliance with conditions precedent regarding time limitations for submitting medical proofs of loss for the treatments she nevertheless continued to undergo” (see State Farm Ins. Co. v Domotor, 266 [*5]AD2d 219 [2nd Dept 1999]; see also State Farm Mut. Auto Ins. Co. V Urban, 78 AD3d 1064 [2nd Dept 2010], citing State Farm v Domotor, supra; Matter of NY Med. Health, P.C. v New York City Tr. Auth., 24 Misc 3d 1219[A][Civ Ct, Kings Cty 2009]; Greater Forest Hills Physical Therapy, P.C. v State Farm Auto Ins. Co., 45 Misc 3d 1215[A][D Ct, Nassau Cty 2014]).

Here, plaintiff’s DOS occurred on 11/14/17, five days after the cut-off date of 11/09/17. “An insurance carrier may not, after repudiating liability, create grounds for its refusal to pay by demanding compliance with proof of loss provisions of the policy” (see State Farm Ins. Co. v Domotor, supra at 220, 221). The insurance carrier “must ‘stand or fall upon the defense upon which it based its refusal to pay’…i.e., because ‘no treatment [was] necessary'” (Id., at 221).

Therefore, the Court finds that if the medical opinion of Dr. Daniel Sposta, D.C., L.Ac., should prevail at trial, on the grounds the medical services rendered by plaintiff were not medically necessary, then the part of defendant’s motion to dismiss the NF-3 claim form with the DOS of 11/14/17, in the sum of $41.04, received by defendant on 02/12/18, shall be deemed denied, on the basis defendant repudiated liability, which excused plaintiff from compliance with the time limitations for submitting medical proofs contained in the policy (see State Farm Ins. Co. v Domotor, supra).

However, in the event the medical opinion of Dr. Daniel Sposta, D.C., L.Ac, does not prevail at trial, on the grounds the medical services rendered by plaintiff were medically necessary, the Court finds under this set of circumstances, plaintiff has raised a triable issue of fact (see CPLR 3212[b]), concerning whether plaintiff was reasonably justified in submitting its NF-3 claim form beyond the 45 days of rendered service (see 11 NYCRR 65-1.1[d]), based upon the standards set forth in 11 NYCRR 65-3.5[l][insurer must give due consideration to plaintiff’s late justification explanation]; see also Bronx Expert Radiology v Clarendon Natl. Ins. Co., 23 Misc 3d 133[A][App Term, Sup Ct, 1st Dept 2009][insurer must give “appropriate consideration for situations where the claimant has difficulty ascertaining the insurer’s identity or inadvertently submits a claim to the incorrect insurer”]), which also must be determined at trial (see Alvarez v Prospect Hospital, supra; Winegrad v New York Univ. Med. Ctr., supra; Zuckerman v City of New York, supra); and it is further

ORDERED that the part of defendant’s motion seeking summary judgment of dismissal pursuant to CPLR 3212, for NF-3 claim forms with dates of service (“DOS”) of 02/05/18, 02/05/18, 02/14/18 through 02/19/18, 02/16/18, 02/24/18, 02/26/18, 05/10/18, 05/17/18 through 05/26/18, 05/19/18 through 06/13/18, 05/21/18 through 06/09/18,^[FN1] 05/23/18 through 06/16/18, 04/02/18 through 06/23/18,^[FN2] 06/27/18 through 07/07/18, 06/30/18 through 07/24/18, 07/05/18, [*6]07/10/18 through 07/19/18, 07/31/18, 08/02/18, 08/04/18, 08/18/18, 08/25/18 through 09/01/18 and 08/29/18 through 09/05/18, for the respective sums of $64.07, $101.87, $203.74, 101.87, $101.87, $101.87, $111.80, $223.60, $223.60, $335.40,^[FN1] $234.67, $536.52, $335.40, $447.20, $111.80, $223.60, $111.80, $111.80, $111.80, $111.80, $223.60 and $223.60, for a total submission of 22 NF-3 claims in the sum of $4,353.28, on the grounds that plaintiff’s claim amounts exceeded the permissible fee schedules of the official NY Workers’ Compensation Fee Schedule (“Fee Schedule”), as well as the Travelers Corechoice Preferred Provider Organization (“PPO”),^[FN3] is denied.

However, defendant is granted partial summary judgment of dismissal, for the sums of $53.73, $56.68, $103.30, $51.65, $51.65, $51.65, $56.69, $113.38, $113.38, $154.95, $103.30, $206.60, $154.95, $206.60, $51.65, $103.30, $51.65, $51.65, $51.65, $51.65, $113.38 and $103.30, for a total of $2,056.74, for its prior partial payments made to plaintiff provider, as demonstrated by the proofs submitted in Exhibit G attached to the affirmation of defendant’s counsel, showing defendant’s individual checks made payable to plaintiff provider, which were then deposited by plaintiff provider in its own account, but not credited by plaintiff provider in its complaint, which proof was not refuted by plaintiff.

Furthermore, the Court finds that defendant has failed to demonstrate a prima facie entitlement to summary judgment for dismissal, with proof in admissible form sufficient to establish there are no material issues of fact, for the sufficiency of the remaining sum of $2,296.54 ($4,353.28 less $2,056.74) (see Xiang Fu He v Troon Mgt. Inc., 34 NY3d 167, 175 [2019]).

Defendant has failed to present a sworn statement from a Professional Coder, or from an experienced Claim Representative, along with references to the applicable fee schedule, as sufficient proof demonstrating defendant’s denial at proper no-fault rates (see Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 55 Misc 3d 147[A][App Term, 2nd Dept, 9th & 10th Jud Dists 2017]; GBI Acupuncture, P.C. v 21st Century Ins. Co., 48 Misc 3d 140[A][App Term, 2d, 11th & 13th Jud Dists, 2015]).

Moreover, an affidavit of a no-fault/litigation examiner or professional medical coder/biller must show that defendant properly applied the appropriate relative value units and conversion factor assigned to the CPT codes for the services rendered in calculating the amount plaintiff is entitled to be reimbursed, which is lacking herein (see Renelique v American Tr. Ins. Co., 57 Misc 3d 145[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2017]; see also Adelaida Physical Therapy, P.C. v 21st Century Ins. Co., 58 Misc 3d 135[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2017]; Liberty Chiropractic P.C. v 21st Century Ins. Co., 53 Misc 3d 133[A][App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2016]).

Finally, there is insufficient proof to establish whether the fees submitted by plaintiff [*7]provider were correctly subject to reduction under the fee schedule and the PPO contract, as a part of the PPO contract pertinent to this matter was redacted and not provided by defendant, and there is no copy of a signed PPO contract establishing a nexus between the medical provider and the PPO network, for the time frames the medical services were rendered. Nor is there sufficient proof demonstrating that PPO rates were applicable to the instant matter. Furthermore, plaintiff’s contention that the name of Curtis Blumenthal, D.C. (affiliated with plaintiff medical provider), does not appear on any of the physical therapy bills paid under PPO rates, also raises questions of fact.

Any remaining contentions of the parties, are unavailing or have been rendered academic.

Submit judgment.

The foregoing constitutes the decision and order of this Court.

Dated: June 30, 2021
HON. JAMES F. MATTHEWS
J.D.C.

Footnotes

Footnote 1:The affirmation of Shana Kleinman overlooked providing an explanation for this particular NF-3 claim form, for dates of services (“DOS”) of 05/21/18 through 06/09/18, received by defendant on 06/21/18, in the claim sum of $335.40, with a partial payment by defendant tendered to plaintiff in the sum of $154.95 (by check #: 25693181, dated 07/05/18), leaving a disputed amount in defendant’s NF-10 denial form of $180.45. However, the proof submitted with the affirmation of Shana Kleinman in Exhibit G factually substantiates this set of facts, which includes a copy of both sides of the tendered check for $154.95 deposited by plaintiff in its account, which factual proof the Court accepts.

Footnote 2:In paragraph 176 of Shana Kleinman’s affirmation, it states that the dates of services (“DOS”) are from 5/31/18 through 6/23/18. However, the actual proof of the NF-10 denial of claim in Exhibit G, states the DOS is 04/02/18 through 06/23/18, which dates the Court accepts.

Footnote 3:Defendant asserts that the provider is a voluntary participant in Traveler’s Corechoice Preferred Provider Private Organization (“PPO”), and as a result for each pertinent claim, defendant applied the fee schedule amount, and then the PPO contract amount, with the remainder of the claim being denied. Corechoice Network (“Corechoice”) processes the PPO claims.

CV-740154-19/KI

Attorney for Plaintiff: Oleg Rybak, Esq. The Rybak Firm, PLLC1810 Voorhies Ave., 3rd Floor, Ste. 7, Brooklyn, NY 11235

Attorney for Defendant: Alisa Burns, Esq., McDonnell Adels & Klestzick, PLLC 401 Franklin Ave., 2nd Floor, Garden City, NY 11530

The court’s Decision and Order is based upon consideration of the following papers:

CPLR 2219(a) Recitation

NOTICE OF MOTION & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION 3

EXHIBITS

In this No-Fault action, Plaintiff medical provider seeks reimbursement for seven bills which cover a period of medical services provided from October 2, 2018 through January 24, 2019. Defendant acknowledges timely receipt of Plaintiff’s seven bills and now moves for summary judgment on its outstanding verification request defense. Plaintiff cross moves for summary judgment pursuant to CPLR 3212 and to dismiss Defendant’s affirmative defenses pursuant to CPLR 3211(b).

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). “The failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (id.). In order to prevail on a motion based on an outstanding additional verification request defense, the movant must establish that the plaintiff failed to comply with its additional verification requests (Compas Medical, P.C. v. New [*2]York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A] [App Term, 2d Dept., 11th & 13th Jud. Dists. 2016]; Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists. 2013]; TAM Medical Supply Corp. v. Tri State Consumers Ins. Co., 57 Misc 3d 133[A] [App Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017]).

As an initial matter, the court finds that Defendant established timely mailing of its verification requests pursuant to 11 NYCRR 65-3.5(b) for each of the seven bills at issue through the affidavit of claims specialist Timothy Dacey. However, the proper denial of the bills remains an issue of fact as Defendant failed to establish its outstanding verification request defense.

Defendant mailed post-EUO requests for additional verification to Plaintiff on December 4, 2018, January 18, 2019, February 7, 2019 and March 5, 2019 wherein it requested the following documents:

1. Burke’s federal and state tax returns for 2017 to the present, including any W-2s, 1099’s, and quarterly payroll tax returns.

2. Burke’s bank records for the period December 1, 2017 to the present, including any statements, deposits slips and cancelled checks.

3. Burke’s general ledgers for the period December 1, 2017 to the present, or such other documents as reflect its financial condition, payments made and payments received.

4. Any documents relating to or reflecting any agreement, contract, lease, deal, arrangement or understanding with any person or entity providing management, billing, collection, consulting, or administrative services to Burke during the period December 1, 2017 to the present, including Expert Billing Solutions and Streamline Services.

5. Any documents relating to or reflecting any payment to or received from any person or entity providing management, billing, collection, consulting, or administrative services to Burke during the period December 1, 2017 to the present, including Expert Billing Solutions and Streamline Services.

6. All contracts, leases, subleases and agreements concerning Burke’s operations at 941 Burke Avenue, Bronx, New York, including the written agreement with Seo Han Medical, P.C.

7. All contracts, leases, subleases and agreements concerning Burke’s operations at 764 Elmont Road, Elmont, New York, including the written agreement with Starmed Group, Inc.

8. All contracts, leases, subleases and agreements concerning Burke’s operations at 2625 Atlantic Avenue, Brooklyn, New York, including the written agreement with 2625 Group, Inc.

9. All contracts, leases, subleases and agreements concerning Burke’s operations at 152-180 Rockaway Boulevard, Jamaica, New York.

10. All contracts, leases, subleases and agreements concerning Burke’s operations at 80-12 Jamaica Avenue, Woodhaven, New York, including the written with 19413 Northern Boulevard, Inc.

11. All contracts, leases, subleases and agreements concerning Burke’s operations 424 East 147th Street, Bronx, New York, including the written agreement with 19413 Northern Boulevard, Inc.

12. All contracts, leases, subleases and agreements concerning Burke’s operations at 5037 Broadway, New York, New York, including the written agreement with 19413 Northern Boulevard, Inc.

13. All contracts, leases, subleases and agreements concerning Burke’s operations at 2510 Westchester Avenue, Bronx, New York, including the written agreement with 19413 Northern Boulevard, Inc.

14. All contracts, leases, subleases and agreements concerning Burke’s operations 90-04 Merrick Road, Merrick, New York, including any written agreement with Life Health Care Medical, P.C.

15. All contracts, leases, subleases and agreements concerning Burke’s operations at 2025 Davidson Avenue, Bronx, New York, including any written agreement with Seasoned Chiropractic P.C.

16. All contracts, leases, subleases and agreements concerning Burke’s operations at 550 Remsen Avenue, Brooklyn, New York.

17. All contracts, leases, subleases and agreements concerning Burke’s operations at 1122A Coney Island Avenue, Brooklyn, New York, including the written agreement with Marina Gadaborshev/MG Chiropractic, P.C.^[FN1]

Defendant states that it properly denied all seven bills due to Plaintiff’s failure to provide the requested documentation within 120 days or “written proof providing a reasonable justification for the failure to comply” (Defendant 1, ¶17). However, in the following paragraph, Defendant acknowledges receipt of Plaintiff’s written responses, by letters dated February 26, 2019 and April 16, 2019. Defendant attaches these letters and two of State Farms’ response letters dated March 11, 2019 and April 24, 2019 as an exhibit to its motion papers (Def. 1, exh. 4).

In Plaintiff’s four-page letter dated February 26, 2019, Plaintiff objects to Defendant’s verification request on both procedural and substantive grounds, citing case law and the No-Fault statutes in support of its arguments. The letter further demonstrates that Plaintiff provided similar written objections in previous correspondences along with specific responses to each of the items on Defendant’s list:

“State Farm has now received from Burke Physical all documents in its possession that are responsive to State Farm’s verification requests. As noted in previous correspondences with regards to State Farm’s unduly burdensome, improper and illegal request for additional documents/information listed in paragraphs 1-17 on page 4-5 of your Letter, it should be stated again for the record that the carrier has already been provided with the items in paragraphs 4, 5, 6, 7, 8, 10, 11, 12, 13 and 17 during the EUO. Meanwhile, the items in paragraphs 9, 14, 15 and 16 cannot be provided due to their verbal/oral nature. As for items in paragraphs 1, 2 and 3, they are improper to be requested by the carrier in the first place for the reasons supra.”

In cases where a medical provider sent a similar response to a verification request, courts have denied an insurer summary judgment based on an outstanding verification request defense. In Mount Sinai Hosp. v. Auto One Ins. Co., the Second Department found that the defendant insurer failed to demonstrate its prima facie entitlement to summary judgment as the record [*3]revealed that the medical provider hospital replied to the verification requests with respect to the records in its possession that it was authorized to release. However, the court did find triable issues of fact regarding the “propriety” of the defendant’s verification requests and whether the documents requested existed or were in the possession of the hospital (Mount Sinai Hosp. v. Auto One Ins. Co., 121 AD3d 869 [2d Dept. 2014]; Pro-Align Chiropractic, P.C. v. Travelers Property Casualty Ins. Co., 58 Misc 3d 857 [Dist Ct, Suffolk County 2017]).

Further, the No-Fault rules do not require a medical provider to provide each and every document requested by the insurer. New York Insurance Law Section 65-3.5(o) states that the applicant must provide “all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.” (11 NYCRR 65-3.5[o] [emphasis added]). Just as Defendant asserts its right to request all information necessary to verify a claim, Plaintiff’s right to object to such requests is codified in the no fault statute as noted in each of Defendant’s verification request letters:

“Please be advised that pursuant to 11 NYCRR 65-3.5(o), State Farm may deny the claim if Burke Physical Therapy does not provide within 120 calendar days from the date of this initial verification request all of the documents identified above under Burke Physical Therapy control or possession or written proof providing reasonable justification for the failure to comply” [emphasis added].

This principle is affirmed by the caselaw Defendant directly quotes in its opposition affirmation: “If a plaintiff deems a verification request to be defective and or unreasonable, it is incumbent on that plaintiff to convey that information to the defendant and to state the reasons thereof, thereby giving the defendant the opportunity to respond accordingly” (Canarsie Chiropractic P.C. a/a/o Day v. Adirondack Mut. Auto. Ins., 27 Misc 3d 1228[A] [Civ. Ct. Kings Cty., 2010]).

Here, Plaintiff objected to Defendant’s requests with strong and detailed arguments in its February 26, 2019 and April 16, 2019 letters. In its response letters dated March 11, 2019 and April 24, 2019, Defendant argued that its requests were proper and repeated its demand for all seventeen items listed in its original request, including those items which Plaintiff stated did not exist. In the instant motion, Defendant disregards these correspondences and either denies Plaintiff’s response altogether or characterizes Plaintiff’s response as a “generic refusal to provide any of the requested verification” (Def. 3, ¶16). Defendant also fails to properly address the arguments and issues raised in Plaintiff’s objection letters. Rather, Defendant argues that Plaintiff is barred from objecting to the propriety of the requests because of its failure to respond. This argument is without merit under the circumstances and wholly inconsistent with the documents provided in Defendant’s motion papers. Further, the objection letters raise an issue of fact regarding Plaintiff’s compliance with 11 NYCRR 65-3.5(o). Based on the foregoing, Defendant failed to meet its summary judgment burden on its outstanding verification defense.

The timely mailing of Plaintiff’s bills is established as Defendant acknowledged timely receipt of those bills. However, in its cross motion, Plaintiff failed to establish its full compliance with Defendant’s verification requests or that the requests themselves were improper. It is well settled that summary judgment is appropriate when sufficient evidence in admissible form is presented 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]). In support of its cross-motion, Plaintiff attaches the December 8, 2020 affidavit of John Nasrinpay, wherein he avers the following: “I personally responded and mailed on 01/18/2019, 03/07/2019, [*4]04/05/2019 and 05/07/2019 the verification response in issue in this case to the address designated by defendant on the verification requests, to the extent that such response was proper and in my possession.” The affiant provides no further details as to which documents constituted the “verification response in issue” that were “proper” and in his “possession.” Further, while the affidavit refers to the responses provided, there is no admissible documentation to that effect as Plaintiff fails to attach copies of the allegedly mailed responses to its motion. The arguments within Plaintiff’s motion objecting to the propriety of Defendant’s verification requests are equally vague and conclusory. Accordingly, Plaintiff’s request for summary judgment is denied.

Likewise, Plaintiff failed to provide the court with any legal or factual grounds to dismiss Defendant’s affirmative defenses. To prevail on a motion to dismiss an affirmative defense pursuant to CPLR 3211(b), ” the plaintiff bears the burden of demonstrating that the affirmative defense is ‘without merit as a matter of law'” (Bank of New York v. Penalver, 125 AD3d 796, 797 [2d Dept. 2015] quoting Vita v. New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept. 2006]). Plaintiff cites no legal authority and provides no substantive or even intelligible argument to support dismissal of Defendant’s affirmative defenses. The bulk of Plaintiff’s arguments against Defendant’s verification requests are conclusory, vague and repetitive. They are also intertwined with Plaintiff’s arguments against Defendant’s discovery demands, a matter which Plaintiff improperly raises in its motion. Further, as both Plaintiff’s arguments and supporting papers fail to establish, in evidentiary form, Plaintiff’s allegations of having mailed verification in compliance with Defendant’s request, this court will not hear Plaintiff’s objections regarding the substance of those requests (see Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept. 1999]; Compas Medical, P.C. v. New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A]).

Further, Defendant’s fraudulent incorporation defense is a non-precludable affirmative defense (State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]; 11 NYCRR 65-3.16[a]). 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, 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 claim denial” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 35 Misc 3d 1235[A] [Dist Ct, Suffolk County 2012]). Accordingly, Plaintiff failed to establish that dismissal of any of Defendant’s affirmative defenses, including its outstanding verification defense, is warranted under CPLR 3211 (b).

Finally, in its opposition, Plaintiff objects to the discovery demands served with Defendant’s Answer. However, as noted above, the matter is not properly before the court as Plaintiff does not move for relief based on the discovery demands. Plaintiff states, “Defendant has failed to demonstrate its entitlement to the discovery demanded in these matters. In light of that fact, Defendant cannot possibly be entitled to an Order compelling responses to improper discovery demands.” Yet, Defendant has not moved to compel discovery demands.

Based on the foregoing, Defendant’s motion for summary judgment is granted solely to the extent that it established timely mailing of its verification requests. Plaintiff’s cross-motion for summary judgment is granted to the extent that timely receipt of the bills has also been [*5]established. The remainder of Plaintiff’s cross-motion is denied. Defendant’s outstanding verification defense remains an issue of fact for trial.

This constitutes the decision and order of this court.

ENTER.

June 30, 2021

Brooklyn, NY

Hon. Consuelo Mallafre Melendez

Judge, Civil Court

Footnotes

Footnote 1:In its letter dated February 26, 2019, intra, Plaintiff claims that items 4, 5, 6, 7, 8, 10, 11, 12, 13 and 17 were provided during the EUO and items 9, 14, 15 and 16 could not be provided due to their verbal nature. Plaintiff objected to the propriety of Defendant’s request for items 1, 2 and 3.

Index No. CV-716670-16/KI

Attorney for Plaintiff:
Oleg Rybak, Esq.
The Rybak Firm, PLLC
1810 Voorhies Avenue, 3rd Floor, Suite 7
Brooklyn, New York 11235

This action seeks to recover first-party no-fault benefits, assigned by Souleyman Diallo, for services rendered. Plaintiff moves to amend to add a new party, Knightbrook Insurance Company, to the action pursuant to CPLR 305(c), CPLR 2001, and CPLR 3025(b), and to remove Grange Mutual Casualty Ins. Co. as a defendant under claim number 14982012. Plaintiff claims that in reviewing the Summons and Complaint it noticed there was a clerical error, in that the name of the defendant was not properly printed. Plaintiff thus seeks leave to re-serve the Amended Summons and Complaint upon Knightbrook Ins. Co. No opposition papers to this motion were submitted by the defendant, Grange Mutual Casualty Ins. Co.

After oral argument, the Decision/Order on plaintiff’s Motion to Amend is as follows:

The accident giving rise to this case occurred on May 5, 2012. Claims were allegedly submitted [*2]to the carrier on December 20, 2013. According to the court files and the plaintiff’s motion, no answer was filed in response to the Summons and Complaint dated May 6, 2016, and filed May 9, 2016. The six-year statute of limitations applies to first-party no-fault claims which begins to run from the date the cause of action accrues, not from the date of the insurer’s belated denial of claim form (DJS Med. Supplies, Inc. v. Clarendon Natl Ins. Co., 32 Misc 3d 129(a) (App Term 2d, 11th & 13th Judicial Dists, 2011)). An amendment to add a party at this juncture falls clearly outside of the statute of limitations.

Plaintiff’s counsel argues Knightbrook Ins. Co. will not suffer any prejudice should the court grant leave to amend. It will merely be called to defend against current claim amounts that remain unpaid and are overdue (Plaintiff Affirmation, Paragraph 10). Plaintiff’s counsel maintains that failure to permit an amendment of the Summons and Complaint would result in additional time, effort, and costs, to all parties, as well as unnecessary waste of judicial resources, as plaintiff would be forced to discontinue the instant action and commence a second lawsuit (id.). Plaintiff’s counsel further asserts, in the discontinuance of this action, there would be no prejudice to Grange Mutual Ins. Co., because no orders have been issued by the Court nor have the parties engaged in substantial litigation (Plaintiff Affirmation, Paragraphs 11, 16). Finally, plaintiff claims this application is not an attempt to circumvent an adverse ruling or otherwise derive underhanded advantage through discontinuing the action against Grange (Plaintiff Affirmation, Paragraph 16).

Relief pursuant to CPLR 305 (c) may be granted only where there is evidence that the correct defendant was served, albeit misnamed, in the original process, and that the correct defendant would not be prejudiced by the granting of the amendment (Nossov v. Hunter Mountain, 185 AD3d 948-949 (2nd Dept, 2020). Though “CPLR 305 (c) may be used to cure a misnomer in the description of a party defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served” (Tokhmakhova v. H.S. Bros. II Corp., 132 AD3d 662, 662 (2nd Dept. 2015); Smith v. Garo Enters., Inc., 60 AD3d 751,752 (2d Dept. 2009); see also Nossov v Hunter Mountain, 185 AD3d 948, 949 (2nd Dept. 2020). Under CPLR 305 (c), “an amendment to correct a misnomer will be permitted ‘if the court has acquired jurisdiction over the intended but misnamed defendant provided that … the intended but misnamed defendant was fairly apprised that [it] was the party the action was intended to affect … [and] would not be prejudiced’ by allowing the amendment” (Honeyman v. Curiosity Works, Inc., 120 A.D3d 1302, (2d Dept. 2014) [internal citations omitted]).

CPLR 2001 allows a party to correct mistakes, omissions, defects, or irregularities, at any stage of an action. Courts freely grant leave to amend a pleading under CPLR 3025 (b), unless the opposing party can show that the delay causes prejudice or surprise (O’Halloran v. Metropolitan Transp. Auth., 154 AD3d 83, 86 (1st Dept 2017)). If the statute of limitations has expired, a plaintiff may add a claim if it relates back to the incident alleged in the complaint (id.). However, “allowing the relation back of amendments adding new defendants implicates more seriously due process policy concerns than simply the relation back of new causes of action since, in the latter situation, the defendant is already before the court” (Buran v. Coupal, 87 NY2d 173, 178 [1995]).

Here, there is no indication Grange was served with the original summons and complaint or that Knightbrook Ins. Co. was served with the current motion or any other documents related to this incident. To bring a claim for no-fault benefits, statutory prerequisites must be met. The [*3]plaintiff must show claim forms were timely and properly sent to the carrier and that those claims were not paid or properly denied within the statutory period. In the proposed amended pleading, plaintiff merely switches the names of the party and retains the same claim number with the same allegations of timely mailing, albeit to a different address. Plaintiff fails to demonstrate notice to, nor that the statutory prerequisites have been met with the new party. By now moving to add a new party, the plaintiff is requesting this court extend the statute of limitations and resurrect a claim that is otherwise time barred.

According to CPLR 203 (f), “[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.” The relation-back doctrine “enables a plaintiff to correct a pleading error—by adding either a new claim or a new party—after the statutory limitations period has expired,” and gives courts the “sound judicial discretion to identify cases that justify relaxation of limitations strictures … to facilitate decisions on the merits if the correction will not cause undue prejudice to the plaintiff’s adversary” (Buran v. Coupal, 87 NY2d 173, 177-178, [citation and internal quotation marks omitted]; see O’Halloran v. Metropolitan Transp. Auth., 154 AD3d 83, 86); Catnap, LLC v. Cammeby’s Mgmt. Co., LLC, 170 AD3d 1103, 1106 (2019)).

A court could entertain the amendment of the pleading if plaintiff shows that (1) the claims arise out of the same occurrence, (2) the proposed new defendant is “united in interest” with the original defendant and, due to this relationship, the proposed new party is chargeable with notice of the of the action such that there is no prejudice, and (3) the proposed new defendant, Knightbrook Ins. Co., “knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well.” (id. [internal quotation marks and citation omitted]; see CPLR 203 [c]).

In arguing there would be no prejudice to Grange Mutual, the plaintiff misdirects the focus of the prejudice analysis. The dictates of due process require the court to consider prejudice to the new defendant, Knightbrook, where a belated amendment is requested. Additionally, where, as here, the statute of limitations has expired, plaintiff has the burden of showing that the relation-back doctrine applies (Garcia v. New York-Presbyt. Hosp., 114 AD3d 615, 615 [1st Dept 2014]). Plaintiff has not offered any arguments to satisfy this three-part test for the application of the relation-back doctrine. Finally, “[t]he moving party … has the added burden of establishing that diligent efforts were made to ascertain the unknown party’s identity prior to the expiration of the statute of limitations” (Bumpus v. New York City Tr. Auth., 66 AD3d 26, 35 [2d Dept 2009]). In this case, plaintiff has not provided the court with a factual basis to engage in an analysis and has failed to meet its burden. Given these failures, the court does not reach the question of prejudice to the new party.

Accordingly, the Motion to Amend is denied. This constitutes the decision and order of the court.

CV-723175-16/KI

Plaintiff’s Firm
Richard Rozhik
The Rybak Firm, PLLC
1810 Voorhies Avenue, Suite 7
Brooklyn, New York 11235
Telephone: (718) 975 – 2035
Facsimile: (718) 975 – 2037
rrozhik@rybakfirm.com

Defendant’s Firm:
Christin M. Brown
Attorney at Law
Wilson Elser Moskowitz Edelman & Dicker LLP
1133 Westchester Avenue
White Plains, NY 10604 914.872.7158 (Direct)
914.323.7000 (Main)
914.323.7001 (Fax)
christin.brown@wilsonelser.com

Recitation, as required by Civil Procedure Law and Rules (CPLR) §2219(a), of the papers considered on the review of these Motions for Summary Judgment and Cross-Motions for Summary Judgment.

Papers submitted for each above listed case and corresponding Index number: Numbered: ^[FN1]

1. CV-723175-16/KI

Plaintiff NYS Acupuncture, P.C., a/a/o Patrick Howard Notice of Motion, Affirmation and Annexed Exhibits BCYXMB

Defendant’s Cross-Motion and Annexed Exhibits 3ETAHL

2. CV-723178-16/KI

Plaintiff NYS Acupuncture, P.C., a/a/o Miguel Quinn Notice of Motion, Affirmation and Annexed Exhibits VEZUPK

Defendant’s Cross-Motion and Annexed Exhibits 9L2X9X

3. CV-723183-16/KI

Plaintiff Elmont Rehab, P.T., P.C., a/a/o Karen Cutler Notice of Motion, Affirmation and Annexed Exhibits SMQGV7

Defendant’s Cross-Motion and Annexed Exhibits X9J24W

4. CV-723185-16/KI

Plaintiff NYS Acupuncture, P.C., a/a/o Karen Cutler Notice of Motion, Affirmation and Annexed Exhibits HLHQKX

Defendant’s Cross-Motion and Annexed Exhibits HLCISL

5. CV-723177-16/KI

Plaintiff Elmont Rehab, P.T., P.C., a/a/o Miguel Quinn Notice of Motion, Affirmation and Annexed Exhibits EG9PNE

Defendant’s Cross-Motion and Annexed Exhibits JMEEDJ

6. CV-723180-16/KI

Plaintiff Uzma Nasir Physician, P.C., a/a/o Miguel Quinn Notice of Motion, Affirmation and Annexed Exhibits S9SATO

Defendant’s Cross-Motion and Annexed Exhibits 4MT2ST

7. CV-707439-17/KI

Plaintiff Solution Bridge, Inc., a/a/o Jennifer Schaum Notice of Motion, Affirmation and Annexed Exhibits L1TAWA

Defendant’s Cross-Motion and Annexed Exhibits 3C3RI6

8. CV-704429-18/KI

Plaintiff Metro Pain Specialist, P.C., a/a/o Eileen Kilbane Notice of Motion, Affirmation and Annexed Exhibits SV5FHT

Defendant’s Cross-Motion and Annexed Exhibits GCMFWC

9. CV-706460-19/KI

Plaintiff Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D., a/a/o Maglorie Bueno Notice of Motion, Affirmation and Annexed Exhibits P59UM6

Defendant’s Cross-Motion and Annexed Exhibits FSJMGT

10. CV-707274-19/KI

Plaintiff Right Aid Medical Supply Corp., a/a/o Enrique Alexander Notice of Motion, Affirmation and Annexed Exhibits TB0A9I

Defendant’s Cross-Motion and Annexed Exhibits LQADFZ

Upon the foregoing cited papers, the Decision and Order on these motions is as follows:

The New York State Insurance Fund (NYSIF/the Fund/Defendant), appearing by its attorney in these breach of contract no-fault proceedings, moves this Court pursuant to CPLR §§2221 and 5015(a) for an Order (a) vacating each default judgment entered against the Defendant in each of the above referenced matters; (b) dismissing each Complaint because this Court lacks subject matter jurisdiction; (c) dismissing each Complaint because Plaintiffs failed to state a claim upon which relief can be granted; (d) imposing sanctions against Plaintiffs’ counsel pursuant to CPLR §8303 and 22 NYCRR §130-1.1(c) for commencing frivolous actions; and (e) for any further relief that seems just, proper and equitable to the Court. Plaintiffs, appearing by their attorney, oppose Defendant’s motions to dismiss the complaints, claiming that this Court does have subject matter jurisdiction over Defendant. Plaintiffs also oppose vacatur of the default judgements on the grounds that Defendant failed to raise a reasonable excuse for defaulting, and they further oppose Defendant’s motions on the grounds that they are fatally defective pursuant to CPLR §2214(c) because Defendant failed to serve the motion with exhibits referenced in the attorney’s affirmations. Finally, Plaintiffs assert that their filings of the summons, complaints and motions for summary judgment were made in good faith and that this Court should not impose sanctions.

For the reasons discussed below, Defendant’s Motions to Vacate the Default Judgment and to Dismiss each of the above-captioned ten (10) actions are GRANTED WITHOUT PREJUDICE in case any of the Plaintiffs decide to seek relief in the Court of Claims. Defendant’s application for sanctions against Plaintiffs’ counsel is DENIED. Finally, Plaintiffs’ [*2]and their counsel are enjoined from commencing any future similar actions or proceedings seeking relief from this Defendant in Kings County Civil Court without a determination from the Appellate Term, that it is appropriate for Plaintiffs to do so.^[FN2]

Procedural History for Index Nos. CV-723175-16/KI; CV-723178-16/KI; CV-723183-16/KI; CV-723185-16/KI

#1 — Plaintiff NYS Acupuncture, P.C., (CV-723175-16/KI)

Plaintiff claims that Assignor Patrick Howard was allegedly involved in a motor vehicle accident on or about February 1, 2011, that Defendant was timely notified of Assignor Howard’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN3] On or about June 27, 2016, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Howard, as well as statutory interest and attorney’s fees, and served it on Defendant on or about July 6, 2016.^[FN4] On or about October 3, 2016, Defendant served and filed its answer which listed affirmative defenses, including but not limited to that the Civil Court “lacked subject matter jurisdiction to the extent that plaintiff is seeking monetary relief against the STATE INSURANCE FUND, a New York State agency [and that] [r]elief must be sought in the Court of Claims.”^[FN5] On or about October 11, 2016, Kings County Chief Clerk entered a default judgment against Defendant.^[FN6]

#2 — Plaintiff NYS Acupuncture, P.C., (CV-723178-16/KI)

Plaintiff claims that Assignor Miguel Quinn was allegedly in a motor vehicle accident occurring on or about February 12, 2012, that Defendant was timely notified of Quinn’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN7] On or about June 27, 2016, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Quinn, as well as statutory interest and attorney’s fees, and served it on Defendant on or about July 6, 2016.^[FN8] On or about October 3, 2016, Defendant served and filed its answer which listed affirmative defenses, including but not limited to that Plaintiff failed to properly serve Defendant, and the Civil Court lacked subject matter jurisdiction as the relief sought against NYSIF, a state agency, must be sought in the Court of Claims.^[FN9] On or about October 11, 2016 a default judgment was entered against the Defendant.^[FN10]

#3 — Plaintiff Elmont Rehab, P.T., P.C. (CV-723183-16/KI)

Plaintiff claims that Assignor Karen Cutler was allegedly in a motor vehicle accident occurring on or about January 26, 2011, that Defendant was timely notified of Cutler’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN11] On or about June 27, 2016, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Cutler, as well as statutory interest and attorney’s fees, and served it on Defendant on or about July 6, 2016.^[FN12] In its Answer, Defendant listed affirmative defenses, including but not limited to that Plaintiff failed to properly serve the Defendant and that the Civil Court lacked subject matter jurisdiction as the relief sought against NYSIF, a state agency, must be sought in the Court of Claims.^[FN13] On or about October 11, 2016 a default judgment was entered against the Defendant.^[FN14]

[*3]#4 — Plaintiff NYS Acupuncture, P.C., (CV-723185-16/KI)

Plaintiff claims that Assignor Karen Cutler was allegedly in a motor vehicle accident occurring on or about January 26, 2011, that Defendant was timely notified of Cutler’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN15] On or about June 27, 2016, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Cutler, as well as statutory interest and attorney’s fees, and served it on Defendant on or about July 6, 2016.^[FN16] On or about October 3, 2016, Defendant served and filed its answer which listed affirmative defenses, including but not limited to improper service of the summons and complaint in violation of CPLR § 307, and that the Civil Court lacked subject matter jurisdiction because Defendant was a state agency and, as such, monetary relief had to be pursued in the Court of Claims.^[FN17] On or about October 11, 2016, a default judgment was entered against the Defendant.^[FN18]

On or about March 15, 2019, the Plaintiffs on the four cases summarized above filed and served motions seeking summary judgment pursuant to CPLR §§3211(c) or 3212(a) and dismissal of Defendant’s affirmative defenses pursuant to CPLR §3211(b). Defendant subsequently filed notices of cross-motion in each case for summary judgment seeking an order granting its cross-motions for summary judgment and dismissing the cases on multiple grounds, including but not limited to that the Civil Court lacked subject matter jurisdiction. Defendant also sought sanctions on Plaintiffs’ counsel, pursuant to CPLR §8303 and 22 NYCRR §130-1.1(c) for commencing frivolous actions.

After a series of adjournments, on January 5, 2021, these four cases (index numbers CV-723175-16, CV-723178-16, CV-723183-16 and CV-723185-16) were called and argued from the Parts 40 and 41 Special 1 calendars in Kings County Civil Court. The same counsel represented Plaintiffs NYS Acupuncture, P.C. and Elmont Rehab, P.T., P.C. and Defendant had the same counsel in all four cases. This Court denied Plaintiffs’ motions for summary judgment. This Court further stated that it was inclined to grant Defendant’s cross-motion to dismiss the actions on the grounds that the Court lacked subject matter jurisdiction, and that it would be drafting its Decision and Order on the summary judgment and sanctions issues.

On or about January 25, 2021, via email to chambers, Plaintiffs’ counsel suggested instead that one of the four cases be decided on the merits instead of being dismissed for lack of subject matter jurisdiction, and the remaining three cases be stayed pending an appeal to and a decision from the Appellate Term. Defendant’s counsel objected to that, reiterating that the cases had to be dismissed because this Court did not have jurisdiction. Further, Defendant again [*4]urged that the Court impose sanctions against Plaintiffs’ counsel for continuing to commence actions against Defendant in the Civil Court despite Plaintiffs’ counsel’s knowledge of prior decisions holding consistently that only the Court of Claims had jurisdiction of the type of cases being litigated before this Court.

While drafting its Decision and Order, this Court found that the New York State Unified Court System Universal Case Management System (UCMS) listed all four cases as having had default judgments entered in favor of the Plaintiffs on October 11, 2016. As a result, on April 6, 2021, during a status conference on the four cases, this Court informed counsel that in the course of its review of UCMS and the Unified Court System public online case-tracking e-Courts information service, it not only found that the four instant cases had default judgments filed, but this Court had found additional no-fault insurance cases filed against Defendant by Plaintiffs’ counsel.

This Court further informed counsel that it was still drafting a Decision and Order dismissing the four cases for lack of subject matter jurisdiction. In addition, this Court directed Defendant’s counsel to review its records to identify any other no-fault insurance cases filed by Plaintiffs’ counsel in Kings County Civil Court that resulted in default judgments issued against it. The Court established a motion and conference schedule for both sides to file the appropriate motions. In addition, this Court urged counsel to review all their cases that had been filed in Kings County Civil Court involving this Defendant where default judgments had not been filed and to seek possible resolutions on those cases for review and approval by this Court.

On April 19, 2021, Defendant’s counsel, after apparently identifying six additional no-fault cases in which default judgments had been issued against it stemming from filings in Kings County Civil by Plaintiffs’ counsel, filed Motions to Dismiss in the ten (10) instant captioned matters pursuant to the motion schedule maintaining that the Civil Court does not have jurisdiction to hear said matters and moved this Court to vacate the default judgments, dismiss the summons and complaint and to impose sanctions on Plaintiffs’ Counsel. On or about April 22, 2021, Plaintiffs’ Counsel opposed said Motions to Dismiss asserting that Defendant’s motions were defective and its defects prejudicial to Plaintiffs given Defendant’s failure to annex all the exhibits it referenced in its motion, which Plaintiffs assert is a fatal defect warranting denial of Defendant’s motion. Plaintiffs also assert that Defendant lacks a reasonable excuse to support vacating the default judgements entered against it and the Court should not vacate the same. Plaintiffs’ counsel did not seek to revive the Motions for Summary Judgment in these submissions for the first four cases heard by this Court, Index Numbers CV-723175-16, CV-723178-16, CV-723183-16 and CV-723185-16.

The six additional cases identified by Defendant’s counsel and subsequently the subject of the moving and opposing papers filed by the parties on or about April 19, 2021 and April 22, 2021, respectively, and addressed in this Decision and Order, along with the first four captioned in this Decision and Order,^[FN19] are summarized procedurally below:

[*5]Procedural History regarding Index Nos. CV-723177-16/KI; CV-723180-16/KI; CV-707439-17/KI; CV-704429-18/KI; CV-706460-19/KI; CV-707274-19/KI

#5 — Plaintiff Elmont Rehab, P.T., P.C. (CV-723177-16/KI)

Plaintiff claims that Assignor Miguel Quinn was allegedly in a motor vehicle accident occurring on or about February 12, 2011, that Defendant was timely notified of Quinn’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN20] On or about June 27, 2016, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Quinn, as well as statutory interest and attorney’s fees.^[FN21] Defendant answered the complaint posing affirmative defenses,^[FN22] but on October 11, 2016 a default judgment was entered against the Defendant.^[FN23]

#6 — Plaintiff Uzma Nasir Physician, P.C. (CV-723180-16/KI)

Plaintiff claims that Assignor Miguel Quinn was allegedly in a motor vehicle accident occurring on or about February 1, 2011, that Defendant was timely notified of Quinn’s accident [*6]and injuries and was subsequently assigned a claim number by Defendant.^[FN24] As a result of Defendant’s alleged failure to either timely pay or deny payment for services rendered to Assignor Quinn, Plaintiff filed a Summons and Complaint in Kings Civil Court on or about July 6, 2016,^[FN25] seeking payment, statutory interest and attorney’s fees from Defendant.^[FN26] On October 11, 2016 a default judgement was entered against Defendant.^[FN27]

#7 — Plaintiff Solution Bridge, Inc. (CV-707439-17/KI)

Plaintiff claims that Assignor Jennifer Schaum was allegedly in a motor vehicle accident occurring on or about January 7, 2012, that Defendant was timely notified of Schaum’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN28] On or about March 8, 2017, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Schaum, as well as statutory interest and attorney’s fees.^[FN29] In its Answer, Defendant listed affirmative defenses.^[FN30] On or about September 8, 2017, Plaintiff rejected Defendant’s Answer as untimely.^[FN31] On or about September 8, 2017 a default judgement was entered against Defendant.^[FN32] The April 19, 2021 Affidavit of Rosanne [*7]Nichols, an Associate Attorney for the Defendant, listed affirmative defenses, including that Plaintiff failed to properly serve the Defendant and filed its action in the wrong court, service against the Defendant was improper, and that since Defendant is a state agency, relief could only be sought in the New York State Court of Claims and thus the Civil Court lacked subject matter jurisdiction.^[FN33]

#8 — Plaintiff Metro Pain Specialist, P.C. (CV-704429-18/KI)

Plaintiff claims that Assignor Eileen Kilbane was allegedly in a motor vehicle accident occurring on or about July 7, 2016, that Defendant was timely notified of Kilbane’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN34] On or about January 30, 2018, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Kilbane, as well as statutory interest and attorney’s fees.^[FN35] On or about November 14, 2018 a default judgment was entered against Defendant.^[FN36] The April 19, 2021 Affidavit of Rosanne Nichols, an Associate Attorney for the Defendant, listed affirmative defenses, including that Plaintiff failed to properly serve the Defendant, and that since Defendant is a state agency, relief could only be sought in the New York State Court of Claims and thus the Civil Court lacked subject matter jurisdiction.^[FN37]

#9 — Plaintiff Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, MD (CV-706460-19/KI)

Plaintiff claims that Assignor Maglorie Bueno was allegedly in a motor vehicle accident occurring on or about September 11, 2012, that Defendant was timely notified of Bueno’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN38] On or about February 13, 2019, Plaintiff filed a Summons and Complaint in the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Bueno, as well as statutory [*8]interest and attorney’s fees.^[FN39] On or about April 13, 2019, Defendant listed affirmative defenses, including but not limited to that Plaintiff filed its action in the wrong court since Defendant, a state agency, could only be sued in the New York State Court of Claims and thus the Civil Court lacked subject matter jurisdiction.^[FN40] On or about May 29, 2019 Plaintiff rejected Defendant’s Answer as untimely.^[FN41] On or about June 26, 2019 a default judgment was entered against Defendant.^[FN42]

#10 — Plaintiff Right Aid Medical Supply Corp. (CV-707274-19/KI)

Plaintiff claims that Assignor Enrique Alexander was allegedly in a motor vehicle accident occurring on or about January 19, 2016, that Defendant was timely notified of Alexander’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN43] On or about February 20, 2019, Plaintiff filed a Summons and Complaint in the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Alexander, as well as statutory interest and attorney’s fees.^[FN44] In its Answer, Defendant listed affirmative defenses, including that service against the Defendant was improper and Plaintiff filed its action in the wrong court, i.e., since Defendant is a state agency, relief could only be sought in the New York State Court of Claims and thus the Civil Court lacked subject matter jurisdiction.^[FN45] On or about June 26, 2019 a default judgment was entered against Defendant.

Issues Presented:

The threshold and dispositive issue is whether this Court has subject matter jurisdiction to entertain the Plaintiffs’ actions against this Defendant. A secondary issue is whether Defendant’s request for sanctions against the Plaintiffs and/or their counsel should be granted.

Positions of the Parties:

The Defendant moves this Court to vacate the default judgements entered against it and [*9]to dismiss the attendant breach of contract matters against the Defendant because the Civil Court did not have subject matter jurisdiction to render the judgments. The Defendant points to Nash v. Port Authority of NY and N.J., 22 NY3d 220, 229 (2013) to support the axiom that “a judgment rendered without subject matter jurisdiction is void, and that the defect may be raised at any time and may not be waived.”^[FN46] Defendant cites additional cases supporting its argument that a court cannot assert jurisdiction over a matter in which it does not have subject matter jurisdiction. See, e.g., Defendant’s Affirmation under Index number CV-723175-16, paragraphs 19, 21 (citing, e.g., Gager v. White, 53 NY2d 475, 488 [1981] [“Unlike subject matter jurisdiction, which limits the power of a particular court rather than the judicial jurisdiction of the State en gros, a defect in basis jurisdiction is waivable.”]; Morrison v. Budget Rent a Car Sys., 230 AD3d 253, 258, 260 [2d Dept 1997] [“If, however, a court lacks subject matter jurisdiction, the parties may not confer it on the court…and it may not be conferred by laches or estoppel…. More importantly in the case before us, we recognize that that when a court lacks subject matter jurisdiction it may not acquire it by waiver.”]).

Defendant claims that it is a state agency ^[FN47] and that, as such, Article VI, Section 9 of the [*10]New York State Constitution, Court of Claims Act Section 9 proscribes that the Court of Claims has exclusive jurisdiction to hear and determine actions for money damages against it and accordingly the Civil Court does not have subject matter jurisdiction over the instant matters. See, e.g., Defendant’s Affirmation dated April 19, 2021, Index number CV-723175-16, at paragraphs 21, 25 (citing, e.g., D’Angelo v. State Ins. Fund, 48 AD3d 400 [2nd Dept 2008]; Comm’rs of the State Ins. Fund v. Photocircuits Corp., [20 AD3d at 176]).^[FN48]

Plaintiffs’ counter with CPLR §2214(c) to stress to this Court that Defendant’s motions are fatally defective and should not be considered. Plaintiffs’ counsel confirms that Defendant failed to serve all of the exhibits referenced in Defendant’s affidavits and said failure was prohibitive and prejudicial to the Plaintiffs’ ability to properly defend the motions.

Plaintiffs further cite numerous sections of the CPLR, the NYCRR, the No-Fault Insurance Law and Regulations as well as cases to support their proposition that a Defendant’s failure to raise a reasonable excuse for defaulting is reason enough to deny vacatur of the same. Plaintiffs point to Defendant’s untimely filing of its answers to support their position that the Court deny Defendant’s motion.^[FN49] Finally, Plaintiffs assert that Defendant’s failure to raise improper service as a defense ^[FN50] is a waiver of its defense of personal jurisdiction ^[FN51] and vacatur of [*11]the default judgment must be denied.^[FN52]

Plaintiffs also urge the Court to deny vacatur of the default judgments because Defendant’s assertion that it is a state agency is an inadequate defense to Plaintiffs’ position that Defendant is still fully subject to the jurisdiction of this Court.^[FN53] In support of its argument, Plaintiffs’ cite Commissioners of State Insurance Fund v. Low, 3 NY2d 590 (1958), Carney v. Newburgh Park, 84 AD2d 599 (3d Dept 1981), State Ins. Fund v. State, 212 AD2d 98 (4th Dept 1995), Royal Ins. Co. of Am. v. Comm’rs of State Ins. Fund, 289 AD2d 807 (3rd Dept 2001); Matter of Central NY Workers’ Compensation Bar Assn v. State of NY Workers’ Compensation Bd., 16 AD3d 1066 (3d Dept 2005), Matter of Progressive Cas. Ins. Co. v. New York State Ins. Fund, 47 AD3d 633 (2d Dept 2008) and Merchants Mut. Ins. Co. v. New York State Ins. Fund, 85 AD3d 1686 (4th Dept 2011).^[FN54]

Defendant seeks sanctions against Plaintiffs and their counsel as well as costs and reasonable attorneys’ fees, alleging that Plaintiffs, by their counsel, have engaged in frivolous conduct by continuing to file actions against it that are completely without merit in the law and which cannot be supported by a reasonable argument for an extension, modification or reversal of existing law, and that doing so is a “continued and deliberate waste of judicial resources.”^[FN55] Defendant cited three cases to support its motion for sanctions and/or the awarding of costs and legal fees.^[FN56]

Plaintiffs’ counsel maintains that he acted in good faith and that the Court must consider such good-faith to modify existing case law through “common law jurisprudence.”^[FN57] Plaintiffs rely on cases holding that unpersuasive legal arguments do not rise to the level of frivolity to [*12]require the imposition of sanctions.^[FN58]

Discussion:

The Issues of Subject Matter Jurisdiction and Vacatur of the Default Judgments

The New York State Constitution Article VI, Section 9, Court of Claims Act Section 9 states in relevant part, “The Court [of Claims] shall have jurisdiction:… 2. To hear and determine a claim of any person, corporation…against the state for the appropriation of any real or personal property…, for the breach of contract, express or implied….” While it is uncontroverted that New York State statutory and case law prove that Defendant NYSIF is a State agency within the Department of Labor,^[FN59] the federal courts have likewise reached that conclusion. See Lipofsky v. The State Insurance Fund, 86 F.3d 15 (2nd Cir.), cert. denied, 519 U.S. 971 (1996). In Lipofsky, the plaintiff claimant unsuccessfully challenged the federal district court’s finding that NYSIF was a state agency and thus was entitled to immunity from suit in federal court under the U.S. Const. amend. XI.^[FN60]

The status of NYSIF as a state agency is only being mentioned briefly as it is the predicate to the dispositive question of subject matter jurisdiction, the answer to which is that New York courts have consistently held that claims for money damages against NYSIF, whether based on an alleged breach of contract or couched as an action for a declaratory judgment, if the remedy sought is financial recovery, must be litigated in the Court of Claims. See, e.g., GuideOne Specialty Mut. Ins. Co. v. State Ins. Fund, 94 AD3d at 700-01 (claim denominated as one for a declaratory judgment was really for money damages and thus belonged in the Court of Claims); Twin City Fire Ins. Co. v. State Ins. Fund, 65 AD3d 945, 946 (1st Dept 2009) (claim disguised as one for declaratory relief was actually for money damages and thus belonged in the Court of Claims); D’Angelo v. State Ins. Fund, 48 AD3d at 402 (Supreme Court erred in granting Plaintiffs’ cross-motion to add breach of contract claim to recover damages as such a claim must be litigated against the Fund in the Court of Claims); Commissioners of State Ins. Fund v. M. [*13]Mathews & Sons Co., 131 AD2d 301 (counter-claim for actual and punitive damages for wrongful policy cancellation could only be heard in the Court of Claims); Miraglia v. State Ins. Fund, 32 Misc 2d at 473-474 (Article 78 proceeding to compel payment could only be heard in the Court of Claims); Ultimate Care Chiropractic, P.C. v. State Ins. Fund, Civ. Ct., Kings County, Index No. 716668/2016 (Dec. 10, 2018, Gerstein, J.) (Civil Court lacked jurisdiction over State Insurance Fund in no-fault benefit action).^[FN61]

Attempts to recover money damages from the Fund in courts other than the Court of Claims have resulted in dismissals. See, e.g., GuideOne Specialty Mut. Ins. Co. v. State Ins. Fund, 94 AD3d at 700 (claim for money damages against State Insurance Fund in State Supreme Court rather than Court of Claims mandated dismissal). Accordingly, since this Court does not have subject matter jurisdiction over the claims at issue, the Court does not have the power to impose the money judgment relief sought by Plaintiffs. Further, while a claimant may subsequently seek to file the action in the Court of Claims,^[FN62] that is not an automatic fallback option.^[FN63]

Plaintiffs also urge the Court to deny vacatur of the default judgment citing to Defendant’s failure to establish a meritorious defense that this Court lacks subject matter jurisdiction over these matters.^[FN64] To support its argument, Plaintiffs’ attorney relies on Commissioners of State Insurance Fund v. Low, 3 NY2d 590 (1958); Carney v. Newburgh Park, 84 AD2d 599 (3d Dept 1981); State Ins. Fund v. State, 212 AD2d 98; Royal Ins. Co. of Am. v. Comm’rs of State Ins. Fund, 289 AD2d 807; Matter of Central NY Workers’ Compensation Bar Assn v. State of NY Workers’ Compensation Bd., 16 AD3d 1066; Matter of Progressive Cas. Ins. Co. v. New York State Ins. Fund, 47 AD3d 633 (2d Dept 2008) and Merchants Mut. Ins. Co. v. New York State Ins. Fund, 85 AD3d 1686). The Plaintiffs’ reliance on these cases to support their suing this Defendant in this court for money damages is misplaced, factually and/or legally.

The primary issue in Commissioners of State Insurance Fund v. Low, 3 NY2d 590 (1958) was a question of collateral estoppel and res judicata. Low involved a state trooper who died after the state car he was riding in collided with a private passenger car and whose widow received Workers’ Compensation benefits via a policy issued to the State by the State Insurance Fund. Id. at 593. After Mr. Low, the operator of the other car, successfully sued New York [*14]State, not the State Insurance Fund, in the Court of Claims, alleging negligence by the operator of the state car, the Fund, which had not been a party in Low’s suit but was the statutory assignee of the deceased trooper for Workers’ Compensation purposes, subsequently sued Low for negligence in State Supreme Court. Id. at 593-594. The Supreme Court agreed with Low that the matter was res judicata and that the Fund was collaterally estopped from pursuing its action, but the Court of Appeals affirmed the Appellate Division’s reversal of the Supreme Court’s decision, noting that while the Fund was a state agency, for purposes of litigation, it was a separate entity and as it was not a party in Mr. Low’s prior suit and thus had no opportunity to litigate the matter, neither res judicata nor collateral estoppel applied. Id. at 595-96. Accordingly, this case does not support Plaintiffs’ position that their cases can, in fact, be adjudicated in Civil Court. While Low does say that for purposes of applying res judicata and collateral estoppel in litigation, the Fund can be treated as a separate entity from the State, it does not say that the Court of Claims Act does not apply to the Fund. At most, the Low case shows that the legislature may enact a specific statute, e.g., the Workers’ Compensation Law Section 81, to allow the Fund to sue or be sued in courts other than the Court of Claims. Id. at 594.

A subsequent Court of Appeals case to Low not cited by Plaintiffs’ counsel provides further clarification about circumstances upon which a particular court may have jurisdiction is Koerner v. State, 62 NY3d 442 (1984). Koerner concerned whether a Plaintiff must, when seeking monetary damages pursuant to New York’s Human Rights Law, pursue the action only in the Court of Claims. Id. at 444. In Koerner, an employee terminated from Pilgrim State Psychiatric Hospital Plaintiff filed suit in Supreme Court. Id. at 444-45. The Defendants, including among others, Pilgrim State Psychiatric as well as the State itself, moved successfully to dismiss the complaint on multiple grounds, including that the court was without subject matter jurisdiction. See 62 NY2d at 445, 448. The Court of Appeals reversed, opining that while “[f]or the most part, the State’s waiver of immunity as to actions for money damages is limited to actions commenced in the Court of Claims”, the Legislature, in statutory language permitting the State Division of Human Rights to award damages administratively without recourse to the Court of Claims, “must be deemed to have waived both the State’s immunity to suit and the requirement that it be sued in the Court of Claims.” See 62 NY2d at 448-49. Koerner confirms that, barring specific legislation to the contrary, e.g. Workers’ Compensation Law §81 or the Human Rights Law, money-damage actions against New York State and its agencies lay in the Court of Claims.

Low is also referenced in Commissioners of State Ins. Fund v. M. Mathews & Sons Co., 131 AD2d 301 (1st Dept 1987), where the Fund instituted an action in Supreme Court pursuant to Workers’ Compensation Law §93 to recover unpaid premiums on a cancelled insurance policy and respondent had counter-claimed for actual and punitive damages. Id. at 301. When the Fund moved to dismiss the counterclaim on the grounds that the Supreme Court lacked subject matter jurisdiction, that Court rejected the argument, citing Commissioners of State Insurance Fund v. Low. Id. The Appellate Division reversed and dismissed the counter-claim on the grounds that as the Fund was a State agency, it was cloaked with sovereign immunities, one of which was that it could not be sued for money damages in courts other than the Court of Claims. Id. (also citing Methodist Hosp. of Brooklyn v. State Ins. Fund, 64 NY2d 365, 375 [1985] [holding that a counterclaim against the Fund for actual and punitive damages for wrongful policy cancellation can be heard only in the Court of Claims). Akin to Koerner, the Appellate Division in Mathews interpreted Low as allowing the Fund to consider itself a separate entity [*15]from the State itself for the purposes of instituting litigation (and thus unbound from the doctrines of collateral estoppel and res judicata by judgments rendered only against the State), but that status did not strip the Fund of its immunity as a State agency, including the requirement that it be sued for money damages in the Court of Claims absent any statute to the contrary. See 131 AD2d at 301-02.

Plaintiffs also rely on Carney v. Newburgh Park, 84 AD2d 599 to support their claim that Civil Court has jurisdiction over their cases. However, the Court’s reading of M. Mathews and Carney proves that in the absence of legislation to the contrary, claims against the Fund for money damages must be heard in the Court of Claims. Carney involved an arbitration hearing before the Workers’ Compensation Board which the Fund lost. The Fund then appealed the arbitration decision to the Appellate Division. Id. at 600. Plaintiffs argue that the Fund is deemed like any other litigant and is not afforded special treatment that an instrumentality of the state would enjoy to divest the Court of Claims of jurisdiction over this issue.^[FN65] Carney is another reminder that Workers’ Compensation proceedings are statutorily bound to arbitration, unlike automotive insurance claims. Because Carney involved the Fund as the actual insurer for these Workers’ Compensation policies (as well as many others in New York, where the Fund actually competes on the market for business), the Fund occupies a different position than it does in auto insurance No-Fault proceedings.

Plaintiffs also rely on State Ins. Fund v. State, 212 AD2d 98, as a basis for his filings in this Court. But, like Carney, the facts and applicable law in State Ins. Fund v. State were different from the Plaintiffs’ no-fault auto insurance cases, and do not establish grounds for this Court to have jurisdiction herein. State Ins. Fund v. State involved a trucking company employee who was injured by a garbage truck owned and operated by New York State. Id. at 99. As the insurance carrier for the company’s Workers’ Compensation policy, the Fund paid benefits on the employee’s behalf. Id. The Fund then sought reimbursement from New York State, which had self-insured its garbage truck. Id. at 99-100. When the State’s authorized no-fault adjuster, Continental Loss Adjusting Services Inc., denied the Fund the full amount sought, the Fund filed for mandatory arbitration against the State under Workers’ Compensation Law §29 and Insurance Law §5105. Id. at 100. After the arbitrator held the Fund failed to show that the State was the proper party to the arbitration, the Fund filed a petition in State Supreme Court pursuant to CPLR §7511 seeking to vacate the arbitrator’s decision. Id. at 100. The Supreme Court dismissed the petition, agreeing with the State that the latter could only be sued in the Court of Claims. Id. The Fourth Department reversed the Supreme Court, holding that Insurance Law §5105 stated that the sole remedy to recover on this type of claim was to submit it to mandatory arbitration. Id. at 100-101. The Appellate Court noted that as the State had chosen to self-insure its own vehicles, for the purpose of auto accident claims involving the State, it stood in the same position as any other insurer under the No-Fault Law, making it [*16]subject to mandatory arbitration. Id. at 101-102. Thus, State Ins. Fund v. State does not mean that any or all no-fault insurance cases can be litigated against the Fund or the State outside the Court of Claims, but is permissible under certain facts and applicable laws such as when a no-fault claim arises from an accident with a state-owned, operated and self-insured vehicle. Id. at 100-102.

Plaintiffs’ reliance on Royal Ins. Co. of Am. v. Comm’rs of State Ins. Fund, 289 AD2d 807 is similarly misplaced. This Court finds that this case does not support the proposition that filings against the NYSIF for money judgments can lie in the Civil Court. The Royal case involved an appeal from an underlying Court of Claims decision and the issue of Court of Claims jurisdiction was not addressed by the Third Department in its decision here. Id. at 807.

Plaintiffs’ reliance on Matter of Central NY Workers’ Compensation Bar Assn v. State of NY Workers’ Compensation Bd., 16 AD3d 1066 in support of their position that this Court has jurisdiction on Plaintiffs’ claims against the Fund is likewise unavailing. In Matter of Central NY Workers’ Compensation Bar Assn, the Fund was not a party to the action. Rather, the Defendant in this Article 78 filing, which pursuant to CPLR §7804, is required to be brought in the State Supreme Court, was the Workers’ Compensation Board (“WCB”), which was accused of showing favoritism toward Fund attorneys by allowing them to have wireless internet access during WCB proceedings. Id. at 1066-67. Aside from the statutory requirement that an Article 78 proceeding must be filed in Supreme Court, thus implicitly undercutting the relevance of this case to the issue of this Court’s jurisdiction, no issue of Court of Claims was explicitly raised in Matter of Central NY Workers’ Compensation Bar Assn. The Third Department noted that in the context of its dealings with the WCB, the Fund “is merely one of the insurers appearing in proceedings” and to provide one litigant, the Fund, with internet access while denying it to the Fund’s adversaries was arbitrary and capricious and could not stand. Id. Further, it was implicit that the relief sought was equitable, not monetary, further distinguishing this case from counsel’s list of cases. Id. at 1067.

Plaintiffs’ reliance on Merchants Mut. Ins. Co. v. New York State Ins. Fund, 85 AD3d 1686 does not address this Court’s ability to exercise of jurisdiction over these cases. Merchants Mut. Ins. Co. centered on whether the Fund was required to pay-out on a Workers’ Compensation insurance policy issued by the Fund in its capacity as a competitive, private insurer (see 85 AD3d at 1686-1687). That Merchants Mut. applied Workers’ Compensation Law to a case in which the Fund had contracted to provide insurance distinguished the case from the instant Plaintiffs’ No-Fault actions. See M. Mathews, 131 AD2d at 301-302; Carney, 84 AD2d at 600. Accordingly, the issue of whether the Supreme Court had subject matter jurisdiction was not raised here.

Matter of Progressive Cas. Ins. Co. v. New York State Ins. Fund, 47 AD3d 633 (2d Dept 2008), also relied on by Plaintiffs, involved Insurance Law §5105. In this case, the Fund, after paying Workers’ Compensation to and on behalf of an individual who was injured while employed by a company insured by the Fund, won an arbitration hearing pursuant to the statute, and then the Plaintiff moved, via an Article 75 proceeding, to vacate the award. See 47 AD3d at 633. This case further supports that the statute controls the venue since arbitration was required by statute, the Fund was the claimant as opposed to the Defendant, and the case involved Workers’ Compensation. CPLR §7502 permits the Supreme Court to hear Plaintiff’s Article 75 to vacate the award since it was not a monetary award. Progressive cannot be stretched to permit a basis for this Court’s jurisdiction in Plaintiffs’ current cases.

Further, the court’s lack of subject matter jurisdiction is not waivable and can be raised at any time,^[FN66] which this Defendant has done repeatedly. This Court finds that Kings County Civil Court does not have subject matter jurisdiction over Plaintiffs’ claims seeking money judgment against the Fund. Accordingly, as a judgment or order issued without subject matter jurisdiction is void, and that defect may be raised be raised at any time and may not be waived, this Court is vacating all of the default judgments issued in favor of Plaintiffs in the cases captioned in this Decision and Order. See, e.g., Editorial Photocopier Archives v. Granger Collection, 61 NY2d 517, 523 (1984). As the Civil Court did not have subject matter jurisdiction over the above-captioned ten (10) actions, this Court is compelled to dismiss the actions, but without prejudice in case any of the Plaintiffs decide to seek relief in the Court of Claims.

The Issue of Sanctions

With respect to Defendant’s request for sanctions, the Court observes patterns in Plaintiffs’ counsel’s conduct that are troubling. First, in Compass Med., P.C. v. New York State Ins. Fund, 2020 NY Misc. LEXIS 7010 (Civ. Ct., Kings County, Sept. 30, 2020), Judge Roper noted that Plaintiff’s counsel, namely Oleg Rybak of the Rybak firm, received a decision in December 2018 wherein another Civil Court judge had held that the Civil Court lacked jurisdiction over the State Insurance Fund.^[FN67] In Compass Med., P.C. v. State Ins. Fund, 2020 NY Misc. LEXIS 7010, the Plaintiff commenced an action against Defendant State Insurance Fund, alleging Defendant’s failure to pay first party No-Fault benefits for medical services Plaintiff rendered to its assigned eligible injured party. There, the Summons and Complaint were filed in 2015 and answered more than four months later. In 2018, the Plaintiff then filed for summary judgment pursuant to CPLR §3211(c) or §3212(a) and dismissal of Defendant’s affirmative defenses pursuant to CPLR §3211(b). Defendant then filed its cross-motion for summary judgment on the grounds that the Civil Court did not have jurisdiction to hear the case against a state agency and that jurisdiction rested in the Court of Claims. During oral argument held in 2019, Defendant argued, inter alia, that the jurisdictional argument had previously been decided in Defendant’s favor in Ultimate Care Chiropractic, P.C. v. State Ins. Fund, Civ. Ct., Kings County Index No. CV-716668-16, December 10, 2018 by Hon. Michael Gerstein, a case also brought by Plaintiff’s counsel. The Defendant also brought to Judge Roper’s attention twenty other first party No-fault actions that Plaintiff’s counsel filed in 2019, after the decision in Ultimate Care Chiropractic, P.C. v. State Ins. Fund. In Compass Med., P.C. v. State Ins. Fund, the Court noted that Plaintiff’s counsel, “with full knowledge and admittedly conced[ed] that [the] Court of Claims is the court of competent jurisdiction…”, counsel continued to seek relief in Civil Court. While Judge Roper did not find that Plaintiff was collaterally estopped from bringing the action since the Plaintiff and the specific facts of said case were different from Ultimate Care, the Court agreed that jurisdiction lay in the Court of Claims.^[FN68] That Court [*17]rejected Plaintiff’s claim that the Civil Court should retain jurisdiction because the matter would be time-barred if brought in the Court of Claims. Judge Roper reasoned that “[t]his Court’s jurisdiction is not a fail-safe, not a fallback and not a court of contingent jurisdiction.”^[FN69]

This Court’s review of UCMS on April 6, 2021 indicates that the Rybak Firm is listed as counsel for Plaintiffs on at least 118 matters in the Kings Civil Court against this Defendant, reflecting filings between the beginning of 2008 and the end of 2020. Even if Plaintiffs attempted to argue that Compass Med and Ultimate Care cases are distinguishable from the instant cases because there are different facts and different Plaintiffs, such assertions are without merit since it is irrefutable that the Defendant is a state agency and as a state agency, the Court of Claims is the proper court to hear their claims.

When actions are brought where there is incontrovertible proof that undercut their filing in the first place,^[FN70] much less cases where there existed conclusive defenses to the asserted claims,^[FN71] courts have the discretion, on their own initiative or upon a party’s motion, to impose sanctions on a party for commencing a frivolous proceeding. See 22 NYCRR §130-1.1;^[FN72] see also Ram v. Torto, 111 AD3d 814 (2nd Dept 2013), lv. dismissed, 22 NY3d 860 (2014) (court upheld Defendant’s motions for attorney’s fees as well as injunctive relief prohibiting self-represented Plaintiff from filing further actions related to the case without court approval and also imposed, on its own initiative, a fine for frivolous conduct); Flushing Expo, Inc. v. New World Mall, LLC, 116 AD3d 826 (2d Dept 2014) (defendant’s motions for sanctions and attorney’s fees granted); cf. CPLR §8303(a) (where a personal injury action is commenced or continued and is found by the court to be, at any point in the proceedings, frivolous, the court [*18]shall award costs and reasonable attorney’s fees up to $10,000).

In Ram, the Appellate Division noted that the self-represented Plaintiff commenced various proceedings relating to the same matter, all of which had been dismissed by lower courts, which were subsequently affirmed by the Appellate Division.^[FN73] The Ram Defendants moved to dismiss the complaint pursuant to CPLR §3211(a)(7) because the Plaintiff failed to state a cause of action, for injunctive relief, and for an award of costs pursuant to 22 NYCRR §130-1.1.^[FN74] The Appellate Division upheld the lower court’s dismissal of the complaint and further found that the lower court “acted providently in enjoining the Plaintiff ‘from commencing any action or proceeding seeking relief from [Defendants] or from anyone else, in any form or fashion, related to or arising from the [underlying money judgment] without prior permission from this court or from the Appellate Division, Second Department.'”^[FN75] The Appellate Division also upheld the lower court’s award of costs pursuant to 22 NYCRR §130-1.1.^[FN76] in the amount of $6,000 for attorney’s fees, payable by the Plaintiff.^[FN77] The Appellate Division in Ram also held that the Plaintiff’s appeal was frivolous as it had no legal merit and was not supported by any reasonable argument, and ordered him to pay $2,500 to the court clerk to be forwarded in turn to the State Department of Taxation and Finance.^[FN78] See also Greene v. Rachlin, 154 AD3d 818 (2d Dept 2017) (attorney’s fees awarded as sanction against Plaintiff for its frivolous conduct in commencing action that was without merit in law and could not be supported by a reasonable argument for extension or modification of existing law); Mosab Constr. Corp. v. Prospect Park Yeshiva, Inc., 124 AD3d at 733 (attorney’s fees of $500 awarded as sanction against Plaintiff for its frivolous conduct in commencing time-barred lawsuit); Flushing Expo, Inc. v. New World Mall, LLC, 116 AD3d at 827-28 (sanction and attorney’s fee warranted where Plaintiff and counsel filed new action after Plaintiff’s previous action, with same counsel, had been dismissed, and new action had no merit in law nor any reasonable argument). Similarly, sanctions may be considered where a party continues to file actions despite knowing that it has no basis for doing so.^[FN79]

When the Plaintiffs appealed in all of the Omni cases listed in footnote 79, which included not only the 34 cases decided on December 21, 2018, but a few more decided the same day, the Appellate Term affirmed each dismissal and, on the Appellate Term’s own motion, directed the parties to show cause as to whether the Court should impose sanctions and costs against Plaintiffs’ counsel. See, e.g., Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6469, 62 Misc 3d 136(A); see also Mosab Constr. Corp. v. Prospect Park Yeshiva, Inc., 124 AD3d at 733 (sanctions and attorney’s fees against Plaintiff warranted where Defendant not only showed debt claims were time-barred by a wide margin and Plaintiff, when asked for proof of debt, failed to provide it but rather discussed Defendant’s defenses). In the Appellate Term’s Omni Indemnity decisions, all of which were issued on December 21, 2018, the Court held that sanctions could be considered because Plaintiffs’ counsel’s conduct appeared not only to meet the definition of frivolous conduct as stated in 22 NYCRR §130-1.1, but that “[s]ince 2013, Plaintiff and/or other providers represented by Plaintiffs’ counsel have been before this court more than 20 times in similar actions wherein these providers, while represented by Plaintiffs’ counsel, have made the same or essentially the same arguments which Plaintiff raises in the instant appeal.” See, e.g., Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6469, 62 Misc 3d 136(A) (citations omitted); see also Greene v. Rachlin, 154 AD3d at 819) (Plaintiffs’ continued pursuit on appeal of the same claims that were previously found meritless and barren of any reasonable argument as well as the advancing of other meritless arguments warranted an additional consideration as to whether the appeal was frivolous and could result in additional sanctions); Flushing Expo, Inc. v. New World Mall, LLC, 116 AD3d at 827-28 (judicial record of a prior case involving the Plaintiff and a related party constituted documentary evidence that warranted summary dismissal as well as sanctions and attorney’s fees). The Appellate Term further stated that “Plaintiff’s counsel continues to advance [*19]essentially the same arguments notwithstanding the fact that Defendant’s appellate brief expressly notes that this court has previously considered and rejected the arguments put forth by Plaintiff’s counsel…”. See, e.g., Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6469, 62 Misc 3d 136(A) (citations omitted).

The Court is also troubled by Plaintiffs’ counsel’s insistence that it has proceeded in “good faith and with the support of binding authority on the matter as discussed above”^[FN80] , i.e., whether the Civil Court has subject matter jurisdiction. Rather, it appears to this Court that Plaintiffs’ citations to cases in support of jurisdiction are replete with either misunderstood and/or incomplete recitations of pertinent facts (e.g., Carney v. Newburgh Park [specific workers compensation legislation requires NYSIF to appear at arbitration hearings in matters in which NYSIF is actually providing the policy and acting as a competitor in the market]; Royal Ins. Co. of Am. v. Comm’rs of State Ins. Fund [underlying case actually was litigated in the Court of Claims]. Accordingly, this Court is stressed to give the Plaintiffs and their counsel the benefit of the doubt that they have cited “binding authority” in favor of subject matter jurisdiction over the Defendant in the instant cases. Last, this Court has been further tested about Plaintiffs’ counsel’s “good faith” due to the latter’s interpretation of the last series of communications with this Court that it would not be issuing this Decision and Order as stipulations of discontinuances on all of the cases would render the issues resolved (for now, or until the cycle repeated with more no-fault filings against Defendant in Civil Court). It is a close call whether this Court should impose monetary sanctions and/or costs and attorneys’ fees upon Plaintiffs’ counsel.

Conclusion:

Defendant established that the New York Constitution’s Court of Claims Act requires this Court to summarily dismiss the Plaintiffs’ complaints against this Defendant state agency.^[FN81] The [*20]Court is unpersuaded by Plaintiffs’ arguments, including the cases it cited that are immaterial to the issue presented and seek to unjustifiably expand this Court’s jurisdiction to adjudicate actions seeking money judgments against the Fund. This Court lacks subject matter jurisdiction over the ten (10) captioned matters above, wherein jurisdiction lies only with the Court of Claims, as the Plaintiffs are attempting to collect money damages from a State agency. The Defendant’s motions to dismiss are therefore granted in part and denied in part. Granted to the extent that all actions are dismissed and denied to the extent that neither monetary sanctions nor costs and attorney fees will not be issued against Plaintiffs or their counsel although this Court has the discretion to so issue given the facts and circumstances herein. However, Plaintiffs’ counsel, namely the Rybak Firm as well as Oleg Rybak, Esq. and the Plaintiffs are enjoined from commencing any action or proceeding seeking relief in the form of a money judgment from this Defendant, in any Civil Court, without prior approval from this Court or the Appellate Term. To do so otherwise, could warrant monetary sanctions, as well as costs and attorney fees.

This constitutes the Decision and Order of the Court.

Dated: June 24, 2021
Brooklyn, New York
Hon. Patria Frias-Colón
Civil Court, Kings County

Footnotes

Footnote 1: The “Numbered” column represents the electronic filing via the “Electronic Document Delivery System” (EDDS), which at the time of this decision was the method afforded New York State attorneys and other authorized persons to file legal papers by electronic means. This method of E-filing via EDDS is authorized for these proceedings in Kings County Civil Court. These identifying numbers represent the confirmation provided to each counsel upon uploading their respective legal documents under each Index number.

Footnote 2: The Motions for these ten cases involve the same attorneys and the same dispositive issues of law. For the sake of judicial economy, the Decision and Order for each matter will be combined into this single decision. To further minimize confusion for the reader in identifying the cases, Plaintiff NYS Acupuncture Inc. is on three of the cases (Number 1 [a/a/o Patrick Howard], Number 2 [a/a/o Miguel Quinn] and Number 4 [a/a/o Karen Cutler] in the captioned Decision and Order above; Plaintiff Elmont Rehab, P.T., P.C. is on two of the cases (Number 3 [a/a/o Karen Cutler] and Number 5 [a/a/o Miguel Quinn]) in the captioned order above, Plaintiff Uzma Nasir Physician, P.C. is on one case (Number 6 [a/a/o Miguel Quinn]), Plaintiff Solution Bridge, Inc. is on one case (Number 7 [a/a/o Jennifer Schaum]); Plaintiff Metro Pain Specialist, P.C. is on one case (Number 8 [a/a/o Eileen Kilbane]), Plaintiff Gentlecare Ambulatory Anesthesia Services is on one case (Number 9 [a/a/o Maglorie Bueno]), and Plaintiff Right-Aid Medical Supply Corp. is on one case (Number 10 [a/a/o Enrique Alexander]).

Footnote 3: See Exhibit B of Defendant’s motion under Index number CV-723175-16/KI — Defendant’s Answer.

Footnote 4: See Exhibit A of Defendant’s motion under Index number CV-723175-16/KI — Summons and Complaint for Plaintiff.

Footnote 5: See Exhibit B of Defendant’s motion under Index number CV-723175-16/KI — Defendant’s Answer.

Footnote 6: See Exhibit C of Defendant’s motion under Index number CV-723175-16/KI — Kings County Civil Court Judgment dated October 11, 2016.

Footnote 7: See Exhibit A of Defendant’s motion under Index number CV-723178-16/KI — Summons and Complaint.

Footnote 8: Id.

Footnote 9: See Exhibit B of Defendant’s motion under Index number CV-723178-16/KI — Answer.

Footnote 10: See Exhibit C of Defendant’s motion under Index number CV-723178-16/KI — Kings County Civil Court Judgment dated October 11, 2016.

Footnote 11: See Exhibit A of Defendant’s motion under Index number CV-723183-16/KI — Summons and Complaint.

Footnote 12: Id.

Footnote 13: See Exhibit B of Defendant’s motion under Index number CV-723183-16/KI — Defendant’s Answer.

Footnote 14: See Exhibit C of Defendant’s motion under Index number CV-723183-16/KI — Kings County Civil Court Judgment dated October 11, 2016.

Footnote 15: See Exhibit A of motion under Index number Defendant’s CV-723185-16/KI — Summons and Complaint Plaintiff.

Footnote 16: Id.

Footnote 17: See Exhibit B of Defendant’s motion under Index number CV-723185-16/KI — Answer for Plaintiff.

Footnote 18: See Exhibit C of Defendant’s motion under Index number CV-723185-16/KI — Kings County Civil Court Judgment dated October 11, 2016.

Footnote 19: Subsequent to the conference held on April 6, 2021, Stipulations of Discontinuances were submitted to this Court for 98 no-fault insurance cases filed in Kings County Civil Court against Defendant NYSIF in which Plaintiffs were all represented by the Rybak Firm, who is also representing the instant Plaintiffs. To this Court’s dismay, it found that of the 98 stipulations, 97 of which were dated May 13, 2021 and one which was dated May 19, 2021, ten of the stipulations were for the ten cases captioned above that this Court had previously emphasized to both sides that it intended to render a Decision and Order. In an email dated June 9, 2021, Plaintiffs’ counsel told this Court that it disagreed with this Court’s recollection of the multiple “discussions” held and that “your Honor made it abundantly clear that you intended to vacate years old defaults and permit the NYSIF to dismiss the 10 cases. Based on these prior discussions, it is Plaintiffs and their counsel’s position that they would like to dismiss all cases between the Providers represented by The Rybak Firm, PLLC and the NYSIF. Based of [sic] that, if possible, since there is no need to issue any orders and the cases can be dismissed on the previously submitted and executed stipulations.” Defendant’s counsel objected to Plaintiffs’ email. This Court rejects Plaintiffs’ counsel misinterpretation and accordingly, 88 of the 98 stipulations of discontinuances will be filed in Kings County Civil Court. For the reasons set forth, this Court renders this decision on the ten instant cases herein. This Court is troubled by the lack of discernible order the 98 stipulations were sent; there was no chronological or alphabetical order. This may be because either the ten stipulations for the instant cases were mixed-in deliberately with the other 88 in an attempt to preempt this Court from issuing its intended Decision and Order and any possible subsequent consequence to counsel, or the random insertion of these ten cases was an inadvertent error or a misinterpreted and innocent attempt to clear the Civil Court of all the cases between these parties.

Footnote 20: See Exhibit A of Defendant’s motion under Index number CV-723177-16/KI — Summons and Complaint for Plaintiff.

Footnote 21: Id.

Footnote 22: See Exhibit B of Defendant’s motion under Index number CV-723177-16/KI — Defendant’s Answer.

Footnote 23: See Exhibit C of Defendant’s motion under Index number CV-723177-16/KI — Kings County Civil Court Judgment dated October 11, 2016 for Plaintiff.

Footnote 24: See Plaintiff’s Affidavit at paragraph 9 and Exhibit 1 under Index number CV-723180-16/KI — Affidavit of Service dated July 6, 2016.

Footnote 25: See Exhibit 1 of Plaintiff’s Affidavit of Service of Summons and Complaint under Index number CV-723180-16/KI. The Summons and Complaint are missing from this Exhibit and not included elsewhere in Plaintiff’s Opposition; see also Affidavit of Roseanne Nichols, Esq., Defendant’s Exhibit K, dated April 19, 2021 (claiming, inter alia, no affidavit of service of the summons and complaint was filed with the Court, and there was improper service of the summons and complaint and entry of default judgment upon Defendant.no notice of leave to enter the default judgment was motion for default was served, and that the Civil Court did not have subject matter jurisdiction).

Footnote 26: See UCMS records regarding the Summons and Complaint for Plaintiff under Index number CV-723180-16/KI.

Footnote 27: See Exhibit A of Defendant’s motion under Index number CV-723180-16/KI — Kings County Civil Court Judgment dated October 11, 2016.

Footnote 28: See Exhibit A of Defendant’s motion under Index number CV-707439-17/KI — Plaintiff’s Summons and Complaint.

Footnote 29: Id.

Footnote 30: See Exhibit 2 of Plaintiff’s motion under Index number CV-707439-17/KI — Defendant’s Answer.

Footnote 31: See Exhibit 3 of Plaintiff’s motion under Index number CV-707439-17/KI — Plaintiff’s Rejection of Defendant’s Answer.

Footnote 32: See Exhibit B of Defendant’s motion under Index number CV-707439-17/KI — Kings County Civil Court Judgment dated October 11, 2016 for Plaintiff.

Footnote 33: See Exhibit C of Defendant’s motion under Index number CV-707439-17/KI.

Footnote 34: See Exhibit A of Defendant’s motion under Index number CV-704429-18/KI — Plaintiff’s Summons and Complaint.

Footnote 35: Id.

Footnote 36: See Exhibit C of Defendant’s motion, Index number CV-704429-18/KI.

Footnote 37: See Exhibit B of Defendant’s motion, Index number CV-704429-18/KI.

Footnote 38: See Exhibit A of Defendant’s motion, Index number CV-706460-19/KI — Summons and Complaint.

Footnote 39: Id.

Footnote 40: See Exhibit B of Defendant’s motion under Index number CV-706460-19/KI.

Footnote 41: See Exhibit C of Defendant’s motion under Index number CV-706460-19/KI.

Footnote 42: See Exhibit D of Defendant’s motion under Index number CV-706460-19/KI.

Footnote 43: See Exhibit A of Defendant’s motion under Index number CV-707274-19/KI — Plaintiff’s Summons and Complaint.

Footnote 44: Id.

Footnote 45: See Exhibit 4 of Plaintiff’s motion under Index number CV-707274-19/KI.

Footnote 46: See, e.g., Defendant’s Affirmation under Index number CV-723175-16, paragraphs 18-20. Defendant’s citation to Nash is from an opinion that dissented in part, on other grounds, from the majority decision which did not touch on subject matter jurisdiction. The Nash case involved the Court of Appeals review of the Port Authority’s successful motion in Supreme Court to vacate a tortious liability judgment against it after it had previously failed to appeal from an order of the Appellate Division affirming the judgment, contending that there had been a post-judgment change in the law immunizing the Port Authority. See 22 NY3d at 223. The Court of Appeals reversed the lower’s court vacatur of the judgment, finding that the lower court was wrong when it found that it had no discretion other than to vacate the judgment. See 22 NY3d at 225-226. The Nash case turned on the interplay between CPLR §5015(a)(5) (vacating a judgment because of reversal, modification or vacatur of a prior judgment) and whether the underlying court had the discretion to consider whether the Port Authority had waited too long to make its motion, rather than the question as to whether the underlying court even had jurisdiction to hear the case (see CPLR §5015[a][(4]), which is the issue before this Court. See 22 NY3d at 225-226, 229. The dissenting opinion, while agreeing with the majority on the vacatur of the judgment, emphasized that “unlike subject matter jurisdiction—an issue that is nonwaivable and can be raised by any party at any time in any forum—the Port Authority sought vacatur of the Nash judgment based on an issue that was waivable.” See 22 NY3d at 225-226, 229. Defendant subsequently cited to support its argument that the instant default judgments must be vacated because subject matter jurisdiction cannot be waived with case more on point than Nash. See 22 NY3d 220 (order vacating judgment reversed and remitted to Supreme Court for further proceedings), on remitter 131 AD3d 164, 165 (1st Dept 2015) (the motion court, which upon remand from the Court of Appeals, again vacated the judgment, which the Appellate Division reversed as an improvident exercise of discretion).

Footnote 47: See, e.g., Defendant’s Affirmation, Index number CV-723175-16, paragraph 20 (citing, e.g., Workers’ Compensation Law § 76; Comm’rs of the State Ins. Fund v. Photocircuits Corp., 20 AD3d 173, 176 [1st Dept 2005].

Footnote 48: Defendant asserts additional arguments, e.g., that Defendant was not made aware of the prior default judgments, that the default judgments were entered in error, that some Plaintiffs should have first filed their claims with the Worker’s Compensation Board before any further resolution could occur in the Court of Claims. See, e.g., Defendant’s Affirmation, Index number CV-723175-16 at paragraphs 16, 17, 27, 54, 58. Defendant cites several persuasive cases supporting the position that this Court would be providently exercising its discretion in vacating the judgments. See, e.g., Defendant’s Affirmation, Index number CV-723175-16 (citing Bunch v. Dollar Budget, Inc., 12 AD3d 391 [2d Dept 2004] [defendant’s delay in answering was brief, the default was not willful, and there was no evidence that the plaintiff was prejudiced]); Anamdi v. Anugo, 229 AD2d 408 [2d Dept 1996] [court exercised sound discretion in granting vacatur of default judgment where defendant was unaware that the action had commenced and presented an affidavit showing a meritorious defense]). Because this Court’s resolution of the subject matter jurisdiction issue is dispositive in the instant cases, this Court need not reach any of the parties’ arguments other than the jurisdictional one. E.g., c.f., Matter of Regina Metro Co., LLC. v. New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 382 n. 27 (2020) (Court did not reach claim as to whether there was an unconstitutional taking because issue was resolved on other grounds); Matter of Adirondack Wild Friends of the Forest Preserve v. New York State Adirondack Park Agency, 34 NY3d 184, 194 (2019) (for purposes of rendering decision, Court did not need to address whether Department of Conservation plan triggered a provision); Braunstein v. Day, 2021 NY App. Div. LEXIS 3548 (2nd Dept 2021) (As Appellate Division granted the defendant’s motion for summary judgment, it was unnecessary for it to reach the defendant’s remaining contention).

Footnote 49: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraph 6.

Footnote 50: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraph 10.

Footnote 51: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraph 13.

Footnote 52: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraphs 20-23.

Footnote 53: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraph 30.

Footnote 54: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraphs 31-38.

Footnote 55: See, e.g., Defendant’s Affirmation, Index No. 723175/16, at paragraphs 76, 78-79 (citing 22 NYCRR § 130-1.1).

Footnote 56: See, e.g., Defendant’s Affirmation, Index No. 723175/16, at paragraph 77 (citing Transaero, Inc. v. Biri Associates, Corp,. 39 AD3d 738 [2d Dept 2007] [sanctions imposed, on the court’s own motion, against plaintiff and plaintiff’s attorney for filing a lawsuit that attempted to skirt the statute of limitations by falsely claiming that the plaintiff and/or attorney had only recently become aware that they had a cause of action]; Yan v. Klein, 35 AD3d 729, 826 N.Y.S2d 669 [2d Dept 2006] [sanctions warranted where Plaintiff’s attorney repeatedly continued to advance cases that were barred by the doctrines of res judicata and collateral estoppel]); Weinstock v. Weinstock, 253 AD3d 873 [2d Dept 1998] [plaintiff attorney representing self in divorce proceeding ordered to pay $3000 in costs to ex-wife defendant and $10,000 to Lawyers Fund for Client Protection for pursuing an appeal that was meritless in that there was no identifiable relief being sought other than forcing defendant to incur unnecessary counsel fees]); see also CPLR § 8303-a (where a personal injury action is commenced or continued and is found by the court to be, at any point in the proceedings, frivolous, the court shall award costs and reasonable attorney’s fees up to $10,000).

Footnote 57: See, e.g., Plaintiff’s Affirmation, Index No. 723175/16, at paragraphs 40 and 43.

Footnote 58: W.J. Nolan & Co. v. Daly, 170 AD2d 320 (1st Dept 1991) vacated an order imposing sanctions on an attorney because the attorney did know that claims arising from Plaintiff utilizing confidential records of Defendant’s employment was subject to arbitration. Lewis v. Stiles, 158 A.D.2d589 (2d Dept 1992) rejected Defendant’s request to impose sanction in Plaintiff’s nuisance cause of action because counsel’s arguments about the alleged disturbances of children frolicking and dogs barking created by Defendant’s installation of a pool and building a pool house are unpersuasive but do not rise to the level of frivolous.

Footnote 59: See Workers’ Compensation Law §76[1]; Methodist Hosp. of Brooklyn v. State Ins. Fund, 64 NY2d at 375 ; D’Angelo v. State Ins. Fund, 48 AD3d 400, 402 (2d Dept 2008); GuideOne Specialty Mut. Ins. Co. v. State Ins. Fund, 94 AD3d 700 (2nd Dept 2012); Commissioners of State Ins. Fund v. M. Mathews & Sons Co., 131 AD2d 301 (1st Dept 1987); Miraglia v. State Ins. Fund, 32 Misc 2d 471, 473-74 (Sup. Ct. Bx. County 2011).

Footnote 60: See Lipofsky v The State Insurance Fund, 86 F.3d 15.

Footnote 61: This case, also cited as Ultimate Care Chiropractic, P.C. v. State Ins. Fund, Index No. CV-71668-16, was discussed in Compass Med., P.C. v. State Ins. Fund, 2020 NY Misc. LEXIS 7010 (Civ. Ct., Kings County, Sept. 30, 2020), wherein Judge Sandra Roper noted therein that Plaintiffs’ counsel in both cases was the Rybak Firm, who is also counsel in the instant cases.

Footnote 62: See GuideOne Specialty Mut. Ins. Co. v. New York State Ins. Fund, 2015 NY Misc. LEXIS 4345 (NY Ct. Cl., Nov. 12, 2015) where permission was granted to file late claim.

Footnote 63: See Compass Med., P.C. v. State Ins. Fund, 2020 NY Misc. LEXIS 7010 (citing Ultimate Care Chiropractic, P.C. v. State Ins. Fund, Index No. CV-716668-16 [Civil Court improperly granted Plaintiff leave to transfer case to Court of Claims because that court does not accept transfers and the matter was time-barred]).

Footnote 64: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraphs 30-39.

Footnote 65: See, e.g., Plaintiff’s Affidavit, Index No. 723175/16 dated April 22, 2021, paragraph 36. The additional cases that Plaintiffs cite in paragraphs 36—38, are likewise distinguishable from the instant cases because subject matter jurisdiction was not an issue in Plaintiffs’ cited cases where NYSIF was acting like a private insurer in the competitive market collecting premiums and in that context may bring actions in other state courts.

Footnote 66: See GuideOne Specialty Mut. Ins. Co. v. State Ins. Fund, 94 AD3d at 700; D’Angelo v. State Ins. Fund, 48 AD3d at 402.

Footnote 67: Ultimate Care Chiropractic, P.C. v. State Ins. Fund, Index No. CV-716668-16.

Footnote 68: See Compass Med., P.C. v. New York State Ins. Fund, 2020 NY Misc. LEXIS 7010.

Footnote 69: Id.

Footnote 70: See GuideOne Specialty Mut. Ins. Co. v. State Ins. Fund, 94 AD3d 700; D’Angelo v. State Ins. Fund, 48 AD3d 400; Miraglia v. State Ins. Fund, 32 Misc 2d 471.

Footnote 71: See Mosab Constr. Corp. v. Prospect Park Yeshiva, Inc., 124 AD3d 732, 733 (2d Dept 2015) (summary dismissal granted where case was time-barred after being filed eleven years after alleged breach of contract) and Flushing Expo, Inc. v. New World Mall, LLC, 116 AD3d 826, 827 (2d Dept 2014) (summary dismissal granted when Defendant’s evidence conclusively showed no contract existed between the parties).

Footnote 72: 22 NYCRR §130-1.1(a) authorizes a court to award to any party or attorney reasonable expenses incurred and reasonable attorney’s fees, resulting from frivolous conduct and, in addition to or in lieu of awarding costs, to impose financial sanctions upon any party or attorney for said conduct. Pursuant to 22 NYCRR §130-1.1(b), these sanctions can be imposed against the attorney personally or upon a partnership, firm or corporation with whom the attorney is associated and has appeared as attorney of record. In addition, 22 NYCRR §130-1.1(c) states, in part, that “conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law….Frivolous conduct shall include the making of a frivolous motion….In determining whether the conduct undertaken was frivolous, the court shall consider…the (1) circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.” 22 NYCRR §130-1.1(d) states, in part, “[a]n award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR §2214 or §2215 or upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.”

Footnote 73: Id. at 815.

Footnote 74: Id.

Footnote 75: Id. at 815-816 (citing Spremo v. Babchik, 216 AD2d 382 [2nd Dept 1995]).

Footnote 76: 22 NYCRR §130-1.2 authorizes a court to award costs, or impose sanctions, or both, up to $10,000 for any single occurrence of frivolous conduct, but the court can only do so “upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate.”

Footnote 77: Id. at 816.

Footnote 78: Id.

Footnote 79: In all the below-cited cases filed against Omni Indemnity Co., which were heard by various Kings County Civil Court judges, several medical providers sought to recover assigned first party no-fault benefits. Each Plaintiff was represented by the Rybak Firm. Except for an award to a Plaintiff by one judge which was subsequently reversed by the Appellate Term (see Charles Deng Acupuncture, P.C., v. Omni Indem. Co., 62 Misc 3d 134[A]), all were summarily dismissed because the Defendant showed that Plaintiff sued the wrong insurance company and the Plaintiff failed to raise an issue of fact in response. See T & S Med. Supply Corp. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6494, 62 Misc 3d 131(A).See, e.g., Charles Deng Acupuncture, P.C., v. Omni Indem. Co., 2018 NY Misc. LEXIS 6482, 62 Misc 3d 134(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Charles Deng Acupuncture, P.C., v. Omni Indem. Co., 2018 NY Misc. LEXIS 6487, 62 Misc 3d 135(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Charles Deng Acupuncture, P.C., v. Omni Indem. Co., 2018 NY Misc. LEXIS 6496, 62 Misc 3d 139(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); T & S Med. Supply Corp. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6494, 62 Misc 3d 131(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Maiga Prods. Corp. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6462, 62 Misc 3d 131(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6474, 62 Misc 3d 131(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6497, 62 Misc 3d 132(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6466, 62 Misc 3d 132(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6456, 62 Misc 3d 133(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6478, 62 Misc 3d 133(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6481, 62 Misc 3d 133(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6490, 62 Misc 3d 134(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6483, 62 Misc 3d 135(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6457, 62 Misc 3d 136(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6456, 62 Misc 3d 136(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6475, 62 Misc 3d 132(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6467, 62 Misc 3d 133(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6479, 62 Misc 3d 134(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6452, 62 Misc 3d 135(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6469, 62 Misc 3d 136(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas v. Omni Indem. Co., 2018 NY Misc. LEXIS 6454, 62 Misc 3d 132(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas v. Omni Indem. Co., 2018 NY Misc. LEXIS 6465, 62 Misc 3d 132(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas v. Omni Indem. Co., 2018 NY Misc. LEXIS 6450, 62 Misc 3d 135(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas v. Omni Indem. Co., 2018 NY Misc. LEXIS 6455, 62 Misc 3d 135(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas v. Omni Indem. Co., 2018 NY Misc. LEXIS 6486, 62 Misc 3d 135(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6451, 62 Misc 3d 131(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6492, 62 Misc 3d 131(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6472, 62 Misc 3d 131(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6471, 62 Misc 3d 132(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6491, 62 Misc 3d 133(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6461, 62 Misc 3d 134(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6495, 62 Misc 3d 134(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6915, 62 Misc 3d 134(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018) Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6470, 62 Misc 3d 136(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018).

Footnote 80: See, e.g., Plaintiff’s Affirmation, Index No. 723175/16, at paragraph 40 (emphasis supplied). Plaintiffs misplaced reliance on other cited cases to support their position that Defendant failed to move to dismiss the complaint for lack of personal jurisdiction or refute the presumption of valid service of process is unpersuasive. See, e.g., Plaintiff’s Opposition, CV-723175-16 at paragraphs 13 and 15 citing US Consults v. APG, Inc., 82 AD3d 753 (2d Dept 2011]) and paragraph 13. Plaintiffs’ counsel also cited US Consults case in Ultra Ortho Prods., Inc. v. North Carolina Farm Bur. Ins. Group, 2018 18 NY Misc. LEXIS 5076, 61 Misc 3d [Civ Ct, Kings County, Nov. 9, 2018, Kennedy, J]. The Court in Ultra Ortho Prods. found that “the cases cited by plaintiff’s counsel [Oleg Rybak Esq., The Rybak Firm] are distinguished from the facts of the instant action” rejecting the plaintiff’s claim that personal jurisdiction was acquired and dismissed the complaint.

Footnote 81: See, e.g., GuideOne Specialty Mut. Ins. Co. v. State Ins. Fund, 94 AD3d 700; Twin City Fire Ins. Co. v. State Ins. Fund, 65 AD3d 945; D’Angelo v. State Ins. Fund, 48 AD3d 400, 402; Commissioners of State Ins. Fund v. Mathews & Sons Co., 131 AD2d 301; Miraglia v. State Ins. Fund, 32 Misc 2d 471; Compass Med., P.C. v. New York State Ins. Fund, 2020 NY Misc. LEXIS 7010; Ultimate Care Chiropractic, P.C. v. State Ins. Fund, Index No. 716668/2016; see also NY Const. art. VI, § 9; Workers’ Compensation Law § 76[1]; Methodist Hosp. of Brooklyn v. State Ins. Fund, 64 NY2d at 375.

CV-702946-18/KI

Attorney for Plaintiff: Allen Tsirelman, Esq., Gary Tsirelman P.C., 129 Livingston Street Brooklyn, Brooklyn, New York 11201

Attorney for Defendant: Michael Philippou, Esq., Rubin, Fiorella, Friedman & Mercante LLP, 630 Thrid Ave. 3rd Floor, New York, NY 10017

The court’s Decision and Order is based upon consideration of the following papers:

NOTICE OF MOTION & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION 3

EXHIBITS

CPLR 2219(a) Recitation

Upon the foregoing cited papers, after oral argument, on June 4, 2021, the Decision and Order on Defendant’s Motion to Dismiss pursuant to CPLR 3211(A)(5) and 3212 on the grounds that it is barred by res judicata and collateral estoppel is as follows:

This action to seeking reimbursement of No-Fault benefits, was commenced on or about January 19, 2018. Issue was joined on or about February 21, 2018 with the service of Defendant’s Answer. The Answer contained numerous affirmative defenses including the defense that the action was barred by res judicata and/or collateral estoppel. On May 2, 2018 Defendant filed a summary judgment motion claiming that the underlying accident was staged and that there was fraud in the procurement of the policy. The motion was denied on April 16, 2019 as the court preserved these claims as questions of fact for trial. Plaintiff filed a Notice of Trial on or about May 7, 2019 that Defendant claims they received on May 20, 2019. The court file indicates that Defendant filed a motion to strike the notice of trial on June 18, 2019 and that after a number of adjournments due to COVID quarantine and/or requests by the parties, the motion will appear on the No-Fault motion calendar for argument on August 22, 2022. Thus, the motion to strike is not before this court.

On or about April 19, 2018, State Farm commenced a declaratory action in New York Supreme Court. On September 11, 2019, the Supreme Court issued an order declaring that State Farm has no obligation to cover No-Fault claims for the plaintiff, date of loss and claim number herein. “‘Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes re-litigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party'” (Milton v. Subraj, et al, 67 Misc 3d 140[A] [App Term, 2d Dept., 11th & 13th Jud. Dists. 2020] quoting Ciraldo v. JP Morgan Chase Bank, N.A.,140 AD3d 912 at 913 [2d Dept. 2016]; see Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 NY 304 [1929]). Defendant now seeks dismissal of this action based upon that Supreme Court order.

Plaintiff opposes the instant motion claiming that it is procedurally defective. Specifically, Plaintiff claims that Defendant improperly seeks relief under CPLR 3211(a)(5) because such a motion must be made before issue is joined, which was not done here. Additionally, Plaintiff argues that Defendant cannot move pursuant to CPLR 3212 because this motion was filed more than one hundred twenty (120) days after the filing of the Notice of Trial. Notably, Plaintiff does not oppose the motion on substantive grounds.

It is well established that CPLR 3212(a) provides that if no date is set by the court, a motion for summary judgment shall be made no later than one hundred twenty (120) days after the filing of the note of issue, except with leave of court on good cause shown (Brill v. City of New York, 2 NY3d 648 [2004]). Good cause has been defined as “a satisfactory explanation for the untimeliness” (Brill v. City of New York, 2 NY3d 648, 652). In this matter, Plaintiff correctly claims that this motion was filed beyond the one hundred and twenty (120) day period of the filing of the notice of trial. It is also noted that Defendant’s motion to strike the notice of trial has been adjourned well into next year and is not before the court at this time. Consequently, the May 7, 2019 filing of the notice of trial remains and the summary judgment motion is late.

Notwithstanding the above, the circumstances surrounding this case present good cause for the court to entertain a late summary judgment motion. Here summary judgment is sought based upon an order of the Supreme Court order which holds that as between the parties, Defendant bears no obligation to provide no fault coverage to Plaintiff stemming from the subject collision. In Armentano v Broadway Mall Properties, Inc., the Second Department found that the lower court had good cause to entertain a late summary judgment motion because it was based upon an order of the Appellate Department in a prior appeal of the matter which dismissed the case (Armentano v Broadway Mall Properties, Inc., 48 AD3d 493 [2d Dept 2008]). Similarly, in the instant action, the September 11, 2019 Supreme Court order is dispositive as to the merits of this matter and warrants dismissal of the case.

Further, Defendant could not have moved based on those defenses prior to joinder of issue as required by CPLR 3211(a)(5) because the declaratory judgment order did not exist at the time (see generally Renelique v State Wide Ins. Co., 50 Misc 3d 137[A] [App Term, 2d Dept., 11th & 13th Jud. Dists. 2016]; Metro Health Products, Inc. v. Nationwide Ins., 52 Misc 3d 138[A] [App Term, 2d Dept., 11th & 13th Jud. Dists. 2016]; see Atlantic Chiropractic, P.C., 62 Misc 3d 145[A] [App Term, 2d Dept.,11th & 13th Jud. Dists. 2019]; Milton v. Subraj, 67 Misc 3d 140 [A]). Likewise, when the first summary judgment motion was filed, the declaratory judgment order had not been issued; the only grounds for the initial summary judgment motion at that time were Defendant’s claims of fraud and staged accident.

Furthermore, to deny relief based on the untimeliness of the summary judgment motion under these facts would result in a disregard of a Supreme Court order and lead to an unjust result. Any judgment issued in favor of Plaintiff would destroy or impair rights or interests established by the judgment in the declaratory action. (see Active Chiropractic, P.C. v. Allstate Ins., 58 Misc 3d 156[A] [App Term, 2d Dept.,11th & 13th Jud. Dists. 2018]; Metro Health Products, Inc. v. Nationwide Ins., 52 Misc 3d 138 [A] [App Term, 2d Dept.,11th & 13th Jud. Dists. 2016]).

It is further noted that Plaintiff cannot now claim prejudice or surprise. Plaintiff was on notice of these defenses since early 2018, when Defendant raised its res judicata and collateral estoppel affirmative defenses in its Answer.

Although this is Defendant’s second summary judgment motion, the court will entertain the motion as it is based on the new evidence: the subsequently issued order of the Supreme Court which directly affects this action. “Multiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause (Burbige v. Siben & Ferber, 152 AD3d 641,642 [2d Dept 2017]; see Valley Natl. Bank v. INI Holding, LLC, 95 AD3d 1108 [2d Dept 2012]).

Lastly, Plaintiff’s assertion that the declaratory judgment has no merit because it was granted on default is erroneous. It is well settled that “res judicata applies ‘to an order or judgment taken by default which has not been vacated, as well as to issues which were or could have been raised in the prior [action]'” (Lazides v. P & G Enters., 58 AD3d 607, 609 [2d Dept 2009] [internal citation omitted]). “[A] Supreme Court’s order is a conclusive final determination, notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default” (Ava Acupuncture, P.C. v. NY Central Mut. Fire Ins. Co., 34 Misc 3d 149 [A] [App Term, 2d Dept. 2d, 11th and 13th Jud Dists 2012]; Atlantic Chiropractic, P.C. v. Utica Mutual Ins. Co., 62 Misc 3d 145[A]).

Based on the foregoing, Defendant’s motion is Granted. Defendant established that it properly preserved its res judicata and collateral estoppel defenses; that a declaratory judgment order was issued regarding this claim; and that the order has preclusive effect given the identity of issues and parties. Accordingly, the complaint is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

ENTER.
June 24, 2021
Brooklyn, NY
Hon. Consuelo Mallafre Melendez
Judge, Civil Court

CV-702880-19/QU

Plaintiff’s Counsel:
Gabriel Law Firm, P.C.
100 Merrick Road, 430W
Rockville Centre, NY 11570

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

I. Papers

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated October 24, 2019 (“Motion”) [*2]and file stamped by the court on October 31, 2019. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated October 1, 2020 (“Cross-Motion”) and electronically filed with the court on the same date. 2

Defendant’s Affirmation in Opposition to Plaintiff’s Cross Motion and in Support of Defendant’s Motion dated October 9, 2020 (“Opposition to Cross-Motion”) and electronically filed with the court on October 12, 2020. 3

Plaintiff’s Reply Affirmation dated November 30, 2020 (“Reply”) and electronically filed with the court on the same date. 4

In a summons and complaint filed February 15, 2019, Plaintiff sued Defendant insurance company to recover a total of $2,330.56 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Pierre, plus attorneys’ fees and statutory interest (see Motion, Aff. of Levy, Ex. A).

Defendant moved for summary judgment dismissing Plaintiff’s complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO“). Plaintiff cross-moved for summary judgment on its claims against Defendant. Both parties orally argued the motions before this Court on April 30 and May 6, 2021 respectively.

III. 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 payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment (Viviane [*3]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 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]).

Here, the undisputed facts as fully addressed hereinafter, are (i) that Plaintiff submitted its claim to Defendant, (ii) that Defendant received Plaintiff’s claims, (iii) that Defendant first requested EUO on the 17th business days after it received Plaintiff’s claims, (iv) that Plaintiff failed to attend any of the scheduled EUOs, and (v) that Defendant denied Plaintiff’s claims on the seventh (7th) day after Plaintiff’s failure to appear for the third scheduled EUO. The legal issues argued by the parties, however, before this Court, are:

First, whether an EUO scheduling letter is a request for additional verification, subject to the fifteen (15) business day requirement (11 NYCRR § 65-3.5[b]).

Second, whether an insurer’s transmission of an EUO request letter within thirty (30) calendar days of receiving a claim for No Fault benefits tolls an insurer’s time to pay or deny such claim.

Third, the effect of an insurer’s late transmission of request for an EUO, if such lateness defense is not precluded.

This Court will address the above issues in the context of Defendant’s Motion for summary judgment and Plaintiff’s opposition. Plaintiff’s Cross-Motion will be analyzed separately.

A. Defendant’s Motion

Legal Issue One: whether an EUO scheduling letter is a request for additional verification, subject to the fifteen (15) business day requirement (11 NYCRR § 65-3.5[b]).

Initially, parties disputed whether an EUO constitutes “additional verification.” Plaintiff contended that an EUO request was additional verification, which required Defendant to request an EUO within fifteen (15) business days of receipt of Plaintiff’s claims (11 NYCRR 65-3.5[b]). Defendant maintained that an EUO was not an additional verification.

Pursuant to Regulation 68-C of the Insurance Department of the State of New York, “(a) [w]ithin 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS form NF-2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim. (b) Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification [*4]forms (d) [i]f the additional verification required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms” (11 NYCRR 65-3.5).

Here, Regulation 68-C requires additional verification request to be sent within fifteen (15) business days of receipts of claims by insurer, except that medical examination shall be scheduled within thirty (30) calendar days of receipts of claims. However, statutes are silent as to whether an EUO constitutes “additional verification” subject to the fifteen (15) business day requirements. Although prior courts have not expressly found that EUO scheduling letters were requests for additional verification, pursuant to case law, EUO scheduling letters have been effectively treated as requests for additional verification (Urban Radiology, P.C. v Clarendon Natl. Ins. Co., 31 Misc 3d 132[A], 2011 NY Slip Op 50601[U] * 1 [App Term 2d Dept 2011]; Infinity Health Prods., Ltd. v Progressive Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51334[U] *1 [App Term 2d Dept 2010]; Advanced Med., P.C. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U] * 1-2 [App Term 2d Dept 2009]). Ultimately, determining whether an EUO request is or is not additional verification is irrelevant because courts have traditionally applied the fifteen (15) business day time requirement for additional verification to any request scheduling EUOs (see Great Health Care Chiropractic, P.C. v Travelers Ins. Co., 49 Misc 3d 145[A], 2015 NY Slip Op 51665[U] *1 [App Term 2d Dept 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] *1 [App Term 2d Dept 2015]; Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] *2 [App Term 2d Dept 2014]). Nevertheless, this Court adopts the tradition of viewing the EUO scheduling letter as an “additional verification” request, therefore subject to the fifteen (15) business day requirement.

Legal Issue Two, whether an insurer’s transmission of an EUO request letter within thirty (30) calendar days of receiving a claim for No Fault benefits tolls an insurer’s time to pay or deny such claim.

It is well established that 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).

At oral argument on April 30, 2021, Plaintiff’s counsel contended that Defendant’s initial EUO scheduling letter was untimely. Defendant’s counsel countered that the untimeliness of the EUO scheduling letter was not fatal to Defendant’s defense of Plaintiff’s nonappearance at scheduled EUOs. This Court invited counsels to submit memoranda regarding their respective positions on the timeliness of the EUO scheduling and the calculation of the times pursuant to relevant statutes.

Here, Defendant’s Explanation of Benefits to Plaintiff dated September 5, 2018 indicated receipt of Plaintiff’s bill on July 24, 2018 (see Motion, Levy Aff. Ex. P). Defendant must request additional verification “within 15 business days of receipt of the prescribed verification forms” (11 NYCRR § 65-3.5[b]; A.C. Med., P.C. v Ameriprise Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51787[U] *1 [App Term 2d Dept 2016]; Great Health Care Chiropractic, P.C. v Travelers Ins. Co., 2015 NY Slip Op 51665[U] *1; Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] *1 [App Term 2d Dept 2015]; O & M Med., P.C. v Travelers Indem. Co., 2015 NY Slip Op 50476[U] *1. As Plaintiff correctly pointed out, Defendant’s first EUO scheduling letter dated August 16, 2018, which set September 18, 2018 as the date for the EUO, was two (2) business days late (see Motion, Levy Aff. Ex. E). It is noted, however, Defendant’s first EUO request was made within thirty (30) calendar days of Defendant’s receipt of Plaintiff’s claims.

Obviously, scheduling an initial EUO in excess of thirty (30) calendar days precludes Defendant from denying a claim for failure to attend an EUO (see A.C. Med., P.C. v Ameriprise Ins. Co., 2016 NY Slip Op 51787[U] *1 [more than 30 days]; Great Health Care Chiropractic, P.C. v Travelers Ins. Co., 2015 NY Slip Op 51665[U] *1 [about 50 days]; Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 2015 NY Sip Op 51220[U] *1 [more than 30 days]; O & M Med., P.C. v Travelers Indem. Co., 2015 NY Slip Op 50476[U] *1 [nearly 3 months]; Optimal Well-Being Chiropractic, P.C. v Ameriprise Auto & Home, 40 Misc 3d 129[A], 2013 NY Slip Op 51106[U] *2 [App Term 2d Dept 2013] [more than 70 days]). Here, although Defendant’s initial EUO scheduling letter was untimely for being two (2) business day late, its untimeliness did not exceed the thirty (30) days in which Defendant was required to pay or deny the claim, so was sufficient to toll Defendant’s time to pay or deny the claim (see A.C. Med., P.C. v Ameriprise Ins. Co., 2016 NY Slip Op 51787[U] *1; Optimal Well-Being Chiropractic, P.C. v Ameriprise Auto & Home, 2013 NY Slip Op 51106[U] *2; St. Vincent Med. Care, P.C. v Travelers Ins. Co., 26 Misc 3d 144[A], 2010 NY Slip Op 50446[U] *1 [App Term 2d Dept 2010]). Although letters that do not request verification from a plaintiff are insufficient to delay an insurer’s time to pay or deny such plaintiff’s claim (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]), in our instant matter, Defendant’s initial EUO scheduling letter, which requested Plaintiff’s EUO, tolled Defendant’s time to pay or deny Plaintiff’s claim (J.C. Healing Touch Rehab, P.C. v Nationwide Ins., 41 Misc 3d 141[U], 2013 NY Slip Op 52011[U] *2 [App Term 2d Dept 2013]).

Legal Issue Three: the effect of an insurer’s late transmission of request for an EUO, if such lateness defense is not precluded.

As discussed above, Defendant sent out its initial EUO scheduling letter two (2) business days late, but within thirty (30) calendar days of its receipt of Plaintiff’s claim. Such delay is not fatal to Defendant’s defense that Plaintiff did not appear for the scheduled EUO, rather, such EUO request tolled Defendant’s time to pay or deny Plaintiff’s claims.

“For the purposes of counting the 30 calendar days after proof of claim, wherein the claim becomes overdue pursuant to section 5106 of the Insurance Law, with the exception of section 65-3.6 of this Subpart, any deviation from the rules set out in this section shall reduce the 30 calendar days allowed” (11 NYCRR § 65-3.8[l]). In the context scheduling an initial EUO, as Defendant’s counsel correctly maintained during the oral argument and in his email memorandum dated May 3, 2021, any lateness of scheduling the initial EUO merely reduces the thirty (30) calendar days within which an insurer must pay or deny a claim. In our instant case, since Defendant’s initial EUO scheduling letter was two (2) business days late, Defendant’s time to pay or deny Plaintiff’s claim was reduced to twenty-eight (28) days (see Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 2014 NY Slip Op 51244[U] *2; Eagle Surgical Supply, Inc. v Allstate Indem. Co., 41 Misc 3d 141[A], 2013 NY Slip Op 52012[U] *2 [App Term 2d Dept 2013]).

After Plaintiff failed to appear for the September 18, 2018 first EUO, Defendant timely mailed a second scheduling letter dated September 24, 2018, which scheduled the EUO for November 8, 2018 (see Motion, Levy Aff. Ex. F) (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]). By letter dated November 12, 2018, Defendant scheduled a third EUO for December 4, 2018 (see Motion, Levy Aff. Ex. G). The transcripts of the EUO proceedings (see Motion, Levy Aff. Ex. I, M and O) and affidavits of counsel assigned to conduct the EUOs appended to the motion established Plaintiff’s nonappearance at the scheduled 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., 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1).

In an affidavit sworn June 11, 2019, which was appended to the Motion, Overly, Defendant’s litigation examiner, established Defendant’s claim processing and standard mailing procedures designed to ensure timely mailing of Defendant’s denial of Plaintiff’s claims after the last EUO at which Plaintiff 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). Defendant denied Plaintiff’s claim on December 11, 2018, just seven (7) days after Plaintiff’s failure to appear for the third scheduled EUO on December 4, 2018 (see Motion, Levy Aff. Ex. Q).

As Defendant’s counsel correctly stated in its email memorandum dated May 3, 2021, even though Defendant had only twenty-eight (28) days to pay or deny Plaintiff’s claim because the initial EUO request was mailed two (2) days late, Defendant nevertheless timely denied Plaintiff’s claim, seven (7) days after Plaintiff’s non-appearance to the third scheduled EUO (Longevity Med. Supply, Inc. v IDS Prop & Cas. Ins. Co., 2014 NY Slip Op 51244[U] *2; Eagle Surgical Supply, Inc. v Allstate Indem. Co., 2013 NY Slip Op 52012[U] *2, see [*5]Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757).

Here, Defendant’s evidence that it requested Plaintiff’s appearance at EUOs three times, that Plaintiff failed to appear three 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).

Plaintiff’s Opposition to Defendant’s Motion

In opposition, Plaintiff contended that factual issues existed precluding Defendant’s motion for summary judgment, that Defendant failed to establish an objective basis for requesting an EUO, and that Defendant did not respond to Plaintiff’s objections to the EUO.

It is well established that the No-Fault regulations do not require “an insurer’s notice of scheduling an EUO to specify the reason[s] why the insurer is requiring the EUOs” (City Chiropractic, P.C. v State Farm Ins., 64 Misc 3d 134[A], 2019 NY Slip Op 51102[U] *1 [App Term 2d Dept 2019]; Bronx Chiropractic Care, P.C. v State Farm Ins., 63 Misc 3d 132[A], 2019 NY Slip Op 50423[U] *1 [App Term 2d Dept 2019]; Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] *1 [App Term 2d Dept 2014], see Longevity Med. Supply, Inc. v Praetorian Ins. Co., 47 Misc 3d 144[A], 2015 NY Slip Op 50685[U] *1 [App Term 2d Dept 2015]). Contrary to Plaintiff’s position, Defendant responded to Plaintiff’s letters objecting to the EUOs (see Motion, Levy Aff. Ex. K and L) even though no such response is 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).

Here, Plaintiff failed to raise factual issues regarding Defendant’s defense of Plaintiff’s failure to attend an EUO. This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact, that the controversy regarding Plaintiff’s claims 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]), 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]), and that Defendant is entitled to a dismissal of Plaintiff’s claims.

B. 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” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 501; New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 648 [2d Dept 2014]; 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]). Here, Defendant’s denial of claim forms dated December 11, 2018, acknowledging receipt of Plaintiff’s claims on July 24, 2018 (see Motion, Levy Aff. Ex. Q) constituted prima facie evidence that Defendant received Plaintiff’s claims and that the denial was overdue (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). As discussed above, however, Defendant demonstrated that Plaintiff failed to appear for scheduled EUOs which mandates a denial of Plaintiff’s Cross-Motion for summary judgment on its claims against Defendant (Actual Chiropractic, P.C. v Mercury Cas. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51435[U] *1 [App Term 2d Dept 2016]; Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 134[A], 2016 NY Slip Op 51026[U] *1 [App Term 2d Dept 2016]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90, 93 [App Term 2d Dept 2012]).

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 part clerk is directed to update the court system to reflect Plaintiff’s Cross-Motion as motion seq. No.2, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgement is denied.

This constitutes the DECISION and ORDER of the Court.

Dated: June 24, 2021
Queens County Civil Court
_____________________________________
Honorable WENDY CHANGYONG LI, J.C.C.

Bryan Cave, LLP (Jennifer M. Jordan and Matthew Sarles of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 7, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

New Millennium Medical Imaging, P.C. (New Millennium) commenced this action to recover assigned first-party no-fault benefits, under claim number 3375202011, for medical services that it had provided to its assignors as a result of injuries which, the complaint stated, had been sustained in an automobile accident on August 13, 2011. Before New Millennium commenced this action, the insurer, Repwest Insurance Company (Repwest) had commenced a declaratory judgment action in the Supreme Court, New York County, against New Millennium, among other providers, and the assignors herein, alleging that Repwest had no duty to pay no-fault benefits to the named defendants therein under claim number 00341462-2011 with respect to an accident which had occurred on August 12, 2011.

After the providers and assignors failed to appear in the Supreme Court action, Repwest moved in the Supreme Court for an order granting Repwest leave to enter a default judgment, declaring that, because the providers had failed to appear at duly scheduled examinations under [*2]oath (EUOs), they were not entitled to reimbursement of no-fault claims arising out of an August 12, 2011 accident. The Supreme Court granted Repwest’s motion and declared that Repwest owes no duty to New Millennium and the other providers to pay no-fault claims “with respect to the August 12, 2011 collision referenced in the complaint.”

Thereafter, Repwest moved in the Civil Court for summary judgment dismissing New Millennium’s complaint on the ground that the action in the Civil Court is barred by the order in the declaratory judgment action. In support of its motion, Repwest submitted each assignor’s initial, signed application for no-fault benefits (NF-2), in which each assignor swore, under penalty of perjury, that the accident date for claim number 3375202011 was August 12, 2011. Repwest also submitted a transcript of an EUO of assignor Lionel Ames, who had testified that the accident occurred on August 12, 2011. (Repwest had also requested an EUO of the second assignor, but he failed to appear.) In addition, Repwest submitted a copy of a police accident report and letters of representation from the assignors’ attorneys, all of which set forth August 12, 2011 as the date of the accident. In a supporting affidavit, Repwest’s claims supervisor asserted that Repwest received these documents from the assignors’ respective attorneys, and that, before the Civil Court complaint was served, the only documents Repwest received for these assignors using the August 13th date instead of the August 12th date were claim forms (NF-3s) created by New Millenium, not by either of the assignors. The claims supervisor’s affidavit also explained that “Repwest assigned claim number 00337520-2011 for the BI (‘liability’) claims and claim number 00341462-2011 for the PIP (no-fault) claims” for the August 12th accident.

New Millennium opposed the motion, arguing only that, pursuant to the complaint, this action seeks reimbursement for claims arising out of an accident which occurred on August 13, 2011, the date which appears on the claim forms annexed to defendant’s motion papers, and that the Supreme Court order pertains to a different accident. By order entered November 7, 2019, the Civil Court denied defendant’s motion, finding that a triable issue of fact exists as to whether res judicata applies to the instant litigation.

We find that Repwest established, prima facie, that New Millenium’s assignors sought coverage for injuries arising from an August 12, 2011 accident that was the subject of the Supreme Court declaratory judgment action; that they did not seek coverage for any injuries arising from any accident that may have occurred on August 13, 2011; and that res judicata therefore bars the instant action. All of the evidence created by the people who were in the alleged accident uses the August 12th date. New Millenium’s submission of its own claim forms and its reliance on the allegations in its own complaint, which are not based upon personal knowledge as to the accident and which contradict the documents created and executed by the assignors themselves, assignor Ames’s sworn testimony and the police report, are insufficient to rebut Repwest’s showing. Indeed, rather than taking the position that a trial is required to determine the date of the accident at issue in this case, plaintiff’s trial and appellate counsel each had an ethical obligation to the court to inquire whether the August 13th date was a mere typographical error (see Rules of Professional Conduct [22 NYCRR 1200.0] rules 3.1 Comment [2]; 3.3 Comment [10]).

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

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