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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The decision to grant severance (see CPLR 603) is an exercise of judicial discretion which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co., 61 Misc 3d 152[A], 2018 NY Slip Op 51785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; City Chiropractic, P.C. v Auto One Ins. Co., 59 Misc 3d 144[A], 2018 NY Slip Op 50730[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; King’s Med. Supply Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Here, the conclusion that resolution of the claim for services rendered to Yolanda Deleon will involve different questions of fact and law from the claims for services rendered to the other assignors is not compelled by the fact that the assignors were injured in separate [*2]accidents or by defendant’s pleading of 55 affirmative defenses (see Majestic Acupuncture, P.C., 61 Misc 3d 152[A], 2018 NY Slip Op 51785[U]). To the extent that defendant cites Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co. (65 Misc 3d 140[A], 2019 NY Slip Op 51704[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]) to support the opposite conclusion, it should not be relied upon for the proposition that severance is warranted solely on the ground that no-fault claims arose out of multiple car accidents on different dates. The record in Premier demonstrated that the denial of each claim was based on the particular assignor’s failure to appear for scheduled independent medical examinations and, while omitted from the decision, that fact was the basis for this court’s determination.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This constitutes the Decision and Order of the Court.

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

Footnotes

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

CV-706933-20/RI

Sanders Barshay Grossman, LLC for Plaintiff;

Burke, Conway & Stiefeld For Defendant

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

Papers Numbered

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

Affirmation in Opposition 3

Affirmation in Reply 4

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

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

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

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

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

Discussion

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

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

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

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

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

Accordingly, the Defendant’s motion is hereby denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 13, 2021

Staten Island, New York

Hon. Robert J. Helbock, Jr.

Judge, Civil Court

Footnotes

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

CV-724222-19/QU

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

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

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

Papers

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

PapersNumbered

Defendant’s Notice of Motion seeking summary judgment and Supporting1

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

February 3, 2020.

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

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

with the court on October 19, 2020.

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

electronically filed with the court on October 20, 2020.3

Background

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

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

Discussion and Decision

Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-82). Noncompliance with an insurance policy provision requiring disclosure through an examination under oath is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Regarding notification of the EUO, the insurer must present proof of the actual mailing or its standard office practices that ensure notices “are properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016]; Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051 [2d Dept 2015]). An insurer must request verification within ten (10) days after receipt of claim (11 NYCRR § 65-3.5[a], see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604 [2d Dept 2011]).

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

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

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

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

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

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

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

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

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

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

Plaintiff’s Cross-Motion

Regarding the Cross-Motion, Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits was overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Although Plaintiff presented no evidence supporting its Cross-Motion, Defendant’s denial of claim forms constituted prima facie evidence that Defendant received Plaintiff’s claims (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]).

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

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

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

It is noted that in its second, fourth, sixth, eighth, tenth, twelfth, fourteenth, sixteenth, and eighteenth causes of action, Plaintiff improperly pleaded claims for attorneys’ fees based on each individual bill. It is well established by case law that in No-Fault actions, attorneys’ fees are calculated based on a single insured, not on each bill submitted by a provider (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 26 Misc 3d 140[A], 2010 NY Slip Op 50264[U] *2 [App Term 2d Dept 2010]). Although the Court finds that Defendant failed to timely pay or deny the claims under the fifth and fifteenth causes of action, which entitles Plaintiff to recover attorneys’ fees (Insurance Law § 5106[a]; 11 NYCRR 65-3.9[a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 278), given that Plaintiff’s third cause of action must proceed to trial, determination of attorneys’ fees is premature.

IV.Order

Accordingly, it is

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

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

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

This constitutes the DECISION and ORDER of the Court.

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

CV-730032-18/KI

The Rybak Firm, PLLC (Oleg Rybak of counsel), New York City, for Barakat P.T., P.C., plaintiff. Law Offices of Rachel Perry, Lake Success (Edward R. Johannes of counsel), for Progressive Insurance Company, defendant.

BACKGROUND

On April 22, 2017, plaintiff’s assignor, Jerrod Bratcher, was allegedly injured in an automobile accident (see plaintiff’s exhibit 4 in support of motion, complaint ¶ 2).

On April 27, 2017, plaintiff allegedly provided the following services to Bratcher:

(see plaintiff’s exhibit 3 in support of motion, NF-3 form dated 5/16/17). According to Amro S Mohamed, P.T., the sole proprietor of plaintiff, the bill was mailed to the insurance carrier on May 16, 2017 (see plaintiff’s exhibit 2 in support of motion, Mohamed aff ¶¶ 1, 21).

On May 30, 2017, defendant allegedly denied the bill in its entirety. According to the Explanation of Benefits (EOB), the amount allowed was $103.95, based on the Workers’ Compensation fee schedule, and the amount fell within a deductible/copay (see defendant’s exhibit C in support of cross motion, NF-10 form and EOB).

The instant action

On July 13, 2018, plaintiff commenced this action seeking to recover assigned first-party no-fault benefits, with interest plus attorneys’ fees (see plaintiff’s exhibit 4 in support of motion, summons and complaint). On August 1, 2018, defendant allegedly answered the complaint (see defendant’s exhibit A in support of cross motion, answer and affidavit of service).

DISCUSSION

“On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action”

(Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).

Defendant generally argues that it is entitled to summary judgment dismissing the complaint because plaintiff billed in excess of the fee schedule, and defendant was reimbursed pursuant to the Workers’ Compensation fee schedule (see affirmation of defendant’s counsel ¶¶ 6-10 ^[FN1] ). Defendant contends that the allowable amount was properly applied to the assignor’s deductible (id. ¶¶ 11-12).

A. Workers’ Compensation Fee Schedule

“Insurance Law § 5108 provides, with some exceptions, that charges for services covered under Insurance Law § 5102 ‘shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents'” (Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd 27 NY3d 22 [2016], quoting Insurance Law § 5108 [a]).

To meet its prima facie burden that it fully paid the claims in accordance with the fee schedule, the defendant must submit an affidavit from a no-fault/litigation examiner or from a professional medical coder/biller (Merrick Med., P.C. v A Cent. Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Renelique v American Tr. Ins. Co., 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018][certified medical coder and biller]; Compas Med., P.C. v American Tr. Ins. Co., 56 Misc 3d 133[A], 2017 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [professional coder]).

The affidavit must show that defendant properly applied the appropriate relative value units and conversion factor assigned to the CPT code(s) for the services rendered in calculating the amount plaintiff was entitled to be reimbursed (see Renelique, 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U]; Renelique v American Tr. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op [*2]51450[U], [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [conversion factor not provided]; see also Adelaida Physical Therapy, P.C. v 21st Century Ins. Co., 58 Misc 3d 135[A], 2017 NY Slip Op 51808[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [defendant failed to demonstrate that it had used the correct conversion factor]; Liberty Chiropractic, P.C. v 21st Century Ins. Co., 53 Misc 3d 133[A], 2016 NY Slip Op 51409[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [defendant failed to demonstrate correct conversion factor was applied]). Lastly, the applicable portion of the fee schedule must be annexed to defendant’s papers (Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Here, defendant failed to meet its prima facie burden demonstrating that plaintiff billed in excess of the fee schedule. Defendant’s counsel argues that, based on an examination of plaintiff’s bill, plaintiff, a physical therapist, used a conversion factor of 8.45, which is reserved for medical doctors, instead of using the conversion factor for physical therapists (affirmation of defendant’s counsel ¶ 8). Defendant’s counsel asserts that the correct conversion factor for plaintiff is 7.70 (id. ¶ 7). However, defendant did not submit an affidavit from a no-fault/litigation examiner or from a professional medical coder/biller, stating that a physical therapist may only bill for services using the conversion factor for physical therapists, or that a physical therapist may not bill for services using the conversion factor for physical medicine, which is 8.45. Neither did defendant’s counsel cite to any ground rules from the fee schedule nor any statutory or case law authority to support his contention. Defendant therefore failed to demonstrate that it had used the correct conversion factor in calculating the reimbursement rate (Laga v GEICO Ins. Co., 58 Misc 3d 127[A], 2017 NY Slip Op 51713[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

B. Reduction of the claim due to a policy deductible

Although defendant did not demonstrate that the bill was properly reduced in accordance with the Workers’ Compensation fee schedule, defendant also argues that the policy under which no-fault benefits are being claimed had a $200 deductible. Insofar as the amount of the bill was within the deductible amount, the court must reach defendant’s alternative argument that the bill was validly denied due to the policy deductible.

To meet its prima burden that the bill was properly denied due to application of a deductible, defendant must submit affidavits and documents establishing that that the automobile insurance policy in question had a personal injury protection deductible, and that the claim at issue was timely denied due to said deductible (Healthy Way Acupuncture, P.C. v 21st Century Indem. Ins. Co., 54 Misc 3d 142[A], 2017 NY Slip Op 50204[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Innovative Chiropractic, P.C. v Progressive Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

1. Policy Deductible

Here, defendant submitted a copy of the policy declarations page, which indicates that the automobile policy that defendant issued to the named insured, Jerrod Bratcher, in effect at the time of the accident, has “Mandatory Personal Injury Protection” up to $50,000 for each person, with a $200 deductible (see defendant’s exhibit E in support of motion, Declarations Page at 2). Plaintiff did not raise any objections to this document (see affirmation of plaintiff’s counsel in further support of motion and in opposition to cross motion ¶¶ 14-52).

[*3] 2. Timely Denial

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim”

(Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009] [internal citations omitted]). According to defendant’s counsel, the denial was mailed on May 30, 2017 (see affirmation of defendant’s counsel ¶ 11 [table]).

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013], affd 25 NY3d 498 [2015] [internal quotation marks omitted]). A party can establish proof of mailing “through evidence of actual mailing (e.g., an affidavit of mailing or service) or—as relevant here—by proof of a sender’s routine business practice with respect to the creation, addressing, and mailing of documents of that nature” (CIT Bank N.A. v Schiffman, —NY3d&mdash, 2021 NY Slip Op 01933, *3 [2021]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]; accord American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]).

“Actual mailing may be established by a proper certificate of mailing or by an affidavit of one with personal knowledge” (J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [internal citation, emendations and quotation marks omitted]). For proof by office practice, “the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 229-30 [1st Dept 2004]).

Here, to establish proof of mailing, defendant submitted an affidavit from Tamu Jordan, a Litigation Representative employed by defendant since June 1999 (see defendant’s exhibit B in support of cross motion, Jordan aff ¶ 1), and copies of the denial of claim form and a mailing report (see defendant’s exhibit C in support of motion), which Jordan established were business records (Jordan aff ¶ 6).

According to Jordan, the claims representative electronically creates the document to be mailed, which includes the mailing address, and places the document into a digital file in a centralized computer for mailing (see Jordan aff ¶ 3 [l]). Once the claims representative creates the documents to be mailed, the centralized computer system generates the document with the mailing address (id. ¶ 3 [n]). Documents are printed from the centralized computer system at mailing facilities located in either Highland Heights, Ohio or Colorado Springs, Colorado (see id. ¶ 3 [l]). Once printed, an automated mail machine inserts the document into a windowed envelope so the mailing address is visible (id. ¶ 3 [n]).

Documents mailed in the same windowed envelope are identified with the same Envelope ID, and the sixth and seventh digit of the Envelop ID indicate the facility from which the documents were mailed (id. ¶ 3 [m]). If the sixth and seventh digits are 00 or 02, the documents were mailed from Highland Heights, Ohio; if the sixth and seventh digits are 01, the documents were mailed from Colorado Springs, Colorado (id. ¶ 3 [m]).

In Highland Heights, Ohio, mail is picked up by a United States Postal Service by 1:00 p.m. and 5:00 p.m. Eastern Standard Time, Monday through Friday; in Colorado Springs, Colorado, the mail is picked up by a United States Postal Service by 1:30 p.m. and 5:30 p.m. Mountain Time, Monday through Friday (id. ¶¶ 3[o]-[p]). As the mail is placed into the custody and control the United States Postal Service, information on a Medical Payments Proof of Mailing Report is contemporaneously captured (id. ¶ 3 [a]). The information cannot be altered once it is captured in defendant’s computer system, and the data on the report is compiled the same date that the documents were mailed (id. ¶ 3 [b]).

For denials, two copies are mailed, along with two EOBs (id. ¶ 3 [g]). The information appearing in the NF-10 form and the EOB regarding the recipient, recipient address, patient, dates of service, and the amount billed is obtained from the bill(s) submitted by plaintiff (id. ¶ 3 [i]).

Here, defendant established prima facie proof of mailing of the denial on May 31, 2017, in accordance with a standard office practice or procedure (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50997[U] [App Term, 2d Dept, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). The Medical Payments Proof of Mailing Report indicates that two NF-10s and two EOBs were mailed to plaintiff on May 31, 2017, with Envelope ID CMBPI02Q00566 (see defendant’s exhibit C in support of cross motion). Based on the sixth and seventh digits of the Envelope ID on the mailing report and on Jordan’s affidavit, the denial was therefore mailed from Highland Heights, Ohio.

Plaintiff’s arguments in opposition to proof of mailing are unavailing.

“[T]o rebut the presumption, there must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient”

(CIT Bank N.A. v Schiffman, —NY3d—, 2021 NY Slip Op 01933, *3 [2021]). Contrary to plaintiff’s argument, the affidavit stated Jordan’s current title as Litigation Representative (Jordan aff ¶ 1). Additionally, Jordan established personal knowledge of the standard mailing procedures in both Ohio and Colorado, based on training that Jordan received from the facilities at both Ohio and Colorado (id. ¶ 2).

Acupuncture Prima Care, P.C. v State Farm Mutual Auto Ins. Co. (17 Misc 3d 1135[A], 2007 NY Slip Op 52273[U] [Dist Ct, Nassau County 2007]), which plaintiff cites, is distinguishable.

There, to establish proof of mailing, the defendant submitted two affidavits—an affidavit from a claims representative from the defendant’s office in Ballston Spa, New York and an affidavit from a claims support supervisor from the defendant’s office in Melville New York. The claims representative described the procedure for generating the denial of claim forms, which were then sent to Claims Support Services personnel for processing (id. at *2). The affidavit from the Claims Support Services Supervisor stated, in essence, that the generated denial of claim forms are retrieved from a printer, placed in an envelope, and picked up by a courier who delivers the envelope to the United States Postal Service (id. at *2-3).

The court in Acupuncture Prima Care, P.C. ruled, “while this may describe a ‘standard office practice and procedure,’ it does not describe one “used to ensure that items were properly addressed and mailed” (id. at *3 [internal citation omitted]). The court reasoned that the procedure described did not contain enough safeguards to “take into account the possibility that an item of mail might get misplaced or lost anywhere between the CSA pool and the United States Post Office” (id.) The court also faulted the affiants for not indicating the basis for their knowledge that the office practice and procedure was followed, and the affiants failed to indicate that they were familiar with the defendant’s office practices and procedures when the first of the denials were allegedly mailed (id. at *3-4). Finally, the court indicated that neither of the affiants (who were in Ballston Spa and Melville) indicated from which office the denials were allegedly mailed, when the denials bore an address from Parsippany, New Jersey (id.).

Here, unlike the affiants in Acupuncture Prima Care, P.C., Jordan established personal knowledge of the standard mailing procedures in both Ohio and Colorado, based on training that Jordan received from the facilities at both Ohio and Colorado (Jordan aff ¶ 2). It is part of Jordan’s duties to ensure compliance with those procedures (id. ¶ 5). Unlike the affidavits in Acupuncture Prima Care, P.C., which did not state the office from which the denials were issued, Jordan provided information about the Envelope ID to establish that the denial was issued from Highland Heights, Ohio. In any event, the same court which decided Acupuncture Prima Care, P.C. acknowledged that its prior cases were no longer good law in light of St. Vincent’s Hospital of Richmond v Government Employees Insurance Co. (50 AD3d 1123 [2d Dept 2008]) (see Uniondale Chiropractic Off. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 1130[A], 2008 NY Slip Op 51687[U] [Dist Ct, Nassau County 2008]).

Defendant’s copies of the NF-3 Form that plaintiff submitted to defendant are date-stamped “Received Date: 05/22/2017” (see defendant’s exhibit C in support of motion), and plaintiff does not dispute that defendant received the bills on May 22, 2017. Even assuming, for the sake of argument, that the NF-3 Form was received on May 16, 2017, the same date on the NF-3 Form, defendant’s denial on May 31, 2017 was well within 30 days of defendant’s receipt of the bill.

Therefore, defendant met its prima facie burden that the claim was properly denied because the amount allowed was within the $200 policy deductible (Healthy Way Acupuncture, P.C., 54 Misc 3d 142[A], 2017 NY Slip Op 50204[U]; Innovative Chiropractic, P.C., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U]).

Plaintiff failed to raise a triable issue of fact warranting denial of summary judgment.^[FN2]

Therefore, defendant’s motion for summary judgment dismissing the complaint is granted.

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law”

(Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Once plaintiff meets its prima facie burden, the burden shifts to defendant “to show that it has a meritorious defense and that such a defense is not precluded” (Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [internal citation omitted]).

Here, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim form in defendant’s motion papers, which admitted receipt of the bill (Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, DC, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

However, plaintiff’s motion for summary judgment in its favor against defendant is denied. As discussed above, defendant timely denied the bill on the ground that the amount sought was within a $200 deductible.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED that plaintiff’s motion for summary judgment in its favor (Motion Seq. No. 001) is DENIED; and it is further

ORDERED that defendant’s cross motion for summary judgment dismissing the complaint (Motion Seq. No. 002) is GRANTED, and the complaint is dismissed, with costs and disbursements to defendant as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment in defendant’s favor accordingly.

This constitutes the decision and order of the court.

Dated: April 9, 2021

New York, New York

ENTER:

RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1:The paragraphs in defendant’s affirmation in opposition to the motion and in support of the cross motion are misnumbered. The paragraphs are numbered sequentially from 1 through 11, but the paragraphs that follow are numbered 6 through 12. The citation here refers to latter numbering.

Footnote 2:As defendant points out, plaintiff’s affirmation in further support of motion and in opposition to defendant’s cross motion was purportedly served on January 14, 2020, past the December 26, 2019 agreed-upon deadline for opposition to cross motion (see defendant’s exhibit A in reply). However, the court will consider these papers, in the absence of any demonstrable prejudice to defendant (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874, 875 [2d Dept 2011] [“Supreme Court did not abuse or improvidently exercise its discretion in considering the plaintiff’s untimely opposition papers inasmuch as the defendants were not prejudiced thereby”]).

Decided on April 9, 2021

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

Peter C. Merani, P.C. (Adam J. Waknine of counsel), for appellant-respondent. Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for respondent-appellant.

Appeal and cross-appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 22, 2018. The order, insofar as appealed from by defendant, granted plaintiff’s motion to renew its prior motion to recalculate interest awarded in a judgment entered August 10, 2007, and, upon renewal, ordered that the interest awarded in that judgment be calculated at 2% per month compounded. The order, insofar as cross-appealed from by plaintiff, sua sponte provided that postjudgment interest would accrue at 9% annually pursuant to CPLR 5004.

ORDERED that the cross-appeal by plaintiff is dismissed; and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on August 10, 2007 awarding statutory no-fault interest from August 18, 2000 at a simple rate (see 11 NYCRR 65-3.9 [a], effective April 5, 2002). Plaintiff moved, pursuant to CPLR 5019 (a), to have that interest recalculated pursuant to the pre-2002 regulations, which required no-fault interest to be calculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). Plaintiff’s motion was denied on the ground that the court could not determine the relevant dates, and thus could not determine the appropriate rate of interest to apply.

Plaintiff moved pursuant to CPLR 2221 (e) for leave to renew its motion and, upon renewal, to have the no-fault interest awarded in the August 10, 2007 judgment recalculated at a [*2]compound rate. Plaintiff attached to its motion papers, among other things, claim forms showing that the treatments at issue had been rendered in May 2000. By order entered February 22, 2018, the Civil Court granted plaintiff’s motion, finding that plaintiff had now established the relevant dates and that plaintiff had a reasonable justification for its failure to submit the claim forms with its original motion, and ordered that the interest awarded in the judgment be calculated at a compound rate. In addition, the order sua sponte provided that postjudgment interest would accrue at 9% annually pursuant to CPLR 5004. Defendant appeals from so much of the order as granted plaintiff’s motion to renew and, upon renewal, ordered that the interest in the judgment be calculated at a compound rate, and plaintiff cross-appeals from so much of the order as, sua sponte, provided that postjudgment interest would accrue at 9% annually.

Plaintiff’s cross-appeal is dismissed, as the portion of the order which set forth a rate for postjudgment interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]), and we decline to grant leave to appeal.

Contrary to defendant’s argument, plaintiff established a reasonable justification for its failure to submit the claim forms in its original motion. Moreover, the record clearly demonstrates that the claims involved herein are all governed by the former regulations providing for compound interest (see Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Thus, plaintiff’s motion to renew was properly granted, and, upon renewal, the Civil Court properly ordered that the interest awarded in the judgment be calculated at 2% per month compounded.

Accordingly, the order, insofar as reviewed, is affirmed.

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

656336/2019

Burke, Conway & Stiefeld, White Plains, NY (Asher Grossman of counsel), for plaintiffs.

The Gabriel Law Firm, Rockville Centre, NY (Joseph Padrucco of counsel), for defendants Dos Manos Chiropractic P.C. and Five Borough Supply Inc.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 49 were read on this motion for DEFAULT JUDGMENT

This is a no-fault insurance action for a declaration of no-coverage brought by plaintiffs Liberty Mutual Insurance Company and LM General Insurance Company (collectively, Liberty Mutual) against no-fault benefits claimant Jason Carranza and various medical providers to whom Carranza assigned his right to collect no-fault benefits. On this motion, Liberty Mutual moves under CPLR 3215 for a default judgment against defendant Carranza and against defaulting medical-provider assignees of Carranza. Defaulting defendants Dos Manos Chiropractic P.C. and Five Borough Supply Inc. (collectively, defendants) cross-move under CPLR 3012 (d) to compel Liberty Mutual to accept their otherwise-untimely answer.

DISCUSSION

I. Liberty Mutual’s Motion for Default Judgment

Liberty Mutual moves for a default judgment under CPLR 3215 against Carranza and the various defaulting medical-provider assignees of Carranza. The motion is denied.

Liberty Mutual has not shown proof of the facts necessary to constitute its claim, as the CPLR requires. (See CPLR 3215 [f].) In particular, Liberty Mutual has not established that it complied with the regulatory timeliness requirements for the processing of no-fault insurance claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) Liberty Mutual’s motion papers do not include claimant’s NF-2 application for benefits or any NF-3 verification forms or bills submitted by the claimant or his treating medical providers. Liberty Mutual thus cannot establish that it requested an examination under oath (EUO) or independent medical examination (IME) within 15 business days of receiving claimant’s verification forms (see 11 NYCRR § 65-3.5 [b]); or that it scheduled the requested IME to be held within 30 calendar days from receipt of the verification forms (see id. § 65-3.5 [d]).

Liberty Mutual contends that it established its compliance with the applicable no-fault regulatory timeframes through the affidavit of Dawn Smith, its “Claims Department Team Manager[,] regarding the bill handling process and timely denials.” (NYSCEF No. 49 at ¶ 30.) This court disagrees. The Smith affidavit states only that “[a]ll the requests that have been made a part of this motion have been timely requested by a member of my team, having been requested within the regulatory time frame after each of the bills was received by Liberty Mutual,” and that “[a]ll verification requests and denials were timely mailed.” (NYSCEF No. 40 at ¶¶ 5, 13.) The affidavit does not identify which bills prompted Liberty Mutual to seek further verification in the form of an EUO or IME, nor when Liberty Mutual received those particular bills.^[FN1] And, as noted above, Liberty Mutual has not provided the bills themselves. The conclusory assertions contained in the Smith affidavit are not sufficient, standing alone, to provide proof of the timeliness element of plaintiffs’ claim.

Liberty Mutual claims, alternatively, that it is “not required to state when Defendants’ bills were received, as Plaintiffs are not requesting the EUO of the Defendants.” (NYSCEF No. 49 at ¶ see also id. at ¶¶ 34-35.) Instead, Liberty Mutual says, it must show only that it timely requested EUOs relative to “receipt of the claim filed by the Individual Defendant since it is the Individual Defendant’s EUO being sought.” (Id. at ¶ 33.) Liberty Mutual asserts that having (supposedly) met that burden, it is entitled to default judgment. This position—for which Liberty Mutual provides no authority—is without merit.

The governing no-fault regulations do not necessarily measure timeliness of an EUO or IME request from receipt of an NF-2 benefits application submitted by the eligible injured person (as Liberty Mutual suggests). Rather, upon receipt of the NF-2, the insurer is directed to [*2]forward its prescribed verification forms “to the parties required to complete them.” (11 NYCRR 65-3.5 [a].) That phrase on its face suggests that the insurer’s request for verification can encompass individuals or entities other than the benefits applicant—a suggestion bolstered by § 65-3.5 [c], which provides that the “insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.” And it is receipt of those completed verification forms, not the NF-2 alone, that starts running the 15-business-day deadline for request of an EUO or IME, and the 30-calendar-day deadline for conducting a requested IME. (See id. § 65-3.5 [b], [d].)

Relatedly, the regulatory provisions governing an insurer’s request for additional verification upon review of the initial verification forms limit only the timing of that request. They do not say from whom the additional verification shall be sought; nor which verification forms, from which source, may prompt the insurer to seek further verification. (See 11 NYCRR 65-3.5 [b]-[d].) These provisions thus provide no basis for Liberty Mutual’s apparent position, quoted above, that receipt of a medical-provider assignee’s NF-3 verification form will starts the 15-day regulatory clock running for the insurer only if it wishes then to seek the EUO of the provider—as opposed to the injured-claimant assignor.

Indeed, on Liberty Mutual’s interpretation, receipt of a medical provider’s NF-3 form would presumably never start the 15-day and 30-day regulatory clocks running for seeking an IME, because an IME could only be requested from the benefits applicant, as opposed to one of his treating providers. Nothing in the regulations requires (or even supports) such an anomalous result. More broadly, it is often the receipt of substantial treatment bills for a seemingly minor accident that will first prompt an insurer to request an EUO or IME from the applicant, so as to investigate and assess the possibility of a staged accident or medically unnecessary treatment. And in that scenario, exempting the insurer from the regulations’ tight 15-business-day and 30-calendar-day deadlines for requesting and scheduling EUOs and IMEs would undermine the regulatory goal of requiring the insurer to expeditiously investigate—and then expeditiously resolve—the claims for which it needs additional verification. (See 11 NYCRR 65-3.8 [a] [1], [c] [1] [requiring the insurer to pay or deny benefits claims within 30 calendar days from receipt of all requested verification].)

In any event, even if one were to regard receipt of the initial claim as the trigger for the insurer’s regulatory deadlines, Liberty Mutual does not attempt to establish—either in its opening papers or on reply—when it “recei[ved] the claim filed by the Individual Defendant” in this case. (NYSCEF No. 49 at ¶ 33.) At best, Liberty Mutual falls back on the conclusory statements in the Smith affidavit. (See id. at ¶ 30.) That will not do.^[FN2]

II. Defendants’ Cross-Motion to Compel Liberty Mutual to Accept Their Late Answer

Defendants cross-move under CPLR 3012 (d) to compel Liberty Mutual to accept their answer, which was served and filed approximately one month late. The cross-motion is granted.

In considering whether to grant a CPLR 3012 (d) motion or cross-motion, the court should take into account “the length of the delay, the excuse offered, the extent to which the delay was willful, the possibility of prejudice to adverse parties, and the potential merits of any defense.” (Emigrant Bank v Rosabianca, 156 AD3d 468, 472-473 [1st Dept 2017].) Here, the delay was only a matter of weeks. Plaintiff has not attempted to identify any prejudice from that delay. The excuse offered by defendants—essentially law-office failure stemming from a combination of an excessive caseload, service via the Secretary of State, and an ongoing firm reorganization and office move—although “not overwhelming,” is sufficient, particularly given the brief length of the delay. (Cirillo v Macy’s Inc, 61 AD3d 538, 540 [1st Dept 2009].) And for the reasons set forth in Point I, supra, this court concludes that defendants have established a potentially meritorious defense. Given the State’s “policy of resolving disputes on the merits,” defendants should be “granted an opportunity to defend plaintiffs’ claims” rather than having them be resolved on default. (Naber Elec. v Triton Structural Concrete, Inc., 160 AD3d 507, 598 [1st Dept 2018].)

Accordingly, it is hereby

ORDERED that Liberty Mutual’s motion under CPLR 3215 for a default judgment is denied; and it is further

ORDERED that the motion of defendants Dos Manos Chiropractic P.C. and Five Borough Supply Inc. under CPLR 3012 to compel Liberty Mutual to accept their late answer is granted; and it is further

ORDERED that Liberty Mutual has 30 days from service of a copy of this order with notice of its entry to bring a renewed default-judgment motion or the action will be dismissed as to the remaining defaulting defendants; and it is further

ORDERED that Dos Manos Chiropractic and Five Borough Supply shall serve notice of entry on all parties.

DATE 4/7/2021

Footnotes

Footnote 1: The affidavit also does not state that Liberty Mutual had made its request that Carranza appear for an EUO or IME (or both) prior to receiving any bills. (Cf. Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468, 469 [1st Dept 2016] [holding that “notification requirements for verification requests under 11 NYCRR 65—3.5 and 65—3.6 do not apply to EUOs that are scheduled prior to the insurance company’s receipt of [an NF-3] claim form”].)

Footnote 2: Defendants also challenge Liberty Mutual’s basis for requesting that Carranza appear for an EUO. The no-fault regulations require a “specific objective justification” for requiring an EUO. (See 11 NYCRR 65-3.5 [e].) But the only justification that Liberty Mutual has provided for requesting Carranza’s EUO was that it was part of “an investigation . . . begun due to material misrepresentation-financial payments to policy.” (NYSCEF No. 35 at ¶ 3; NYSCEF No. 40 at ¶ 2.) This court is skeptical that this vague and cryptic statement meets Liberty Mutual’s burden under § 65-3.5 [e]. That said, the parties have not addressed whether an insurer seeking a no-coverage declaration based on an EUO no-show must affirmatively establish as an element of its claim the justification for the EUO request, such that an insurer’s failure to do so would warrant denial of a default-judgment motion. This court therefore declines on this motion to reach the merits of defendants’ challenge to Liberty Mutual’s justification for its EUO request.