Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered July 30, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely denied the claims based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. By order entered July 30, 2018, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

Where, as here, no other verification request is outstanding (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), the 30-day period for an insurer to pay or deny a claim (see 11 NYCRR 65-3.8 [a] [1]) based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance, when an insurer is permitted to conclude that there [*2]was a failure to comply with a condition precedent to coverage (see 11 NYCRR 65-3.8 [a] [1]; Chapa Prods. Corp. v MVAIC, 66 Misc 3d 16 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Veraso Med. Supply Corp. v 21st Century Ins. Co., 61 Misc 3d 146[A], 2018 NY Slip Op 51696[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Defendant asserted that the assignor had failed to appear on September 9, 2016, October 4, 2016, and November 1, 2016. As defendant did not deny the claims until November 14, 2016, which was more than 30 days after the second failure to appear, for the EUO scheduled for October 4, 2016, defendant is not entitled to summary judgment dismissing the complaint because defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Furthermore, as defendant raises no issue with respect to plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Accordingly, the order is affirmed.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered June 15, 2018. The order denied defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint is granted.

After issue was joined in this action by a provider to recover assigned first-party no-fault benefits arising from an accident that occurred on October 19, 2011, defendant defaulted in appearing for a scheduled court date. Defendant moved to, in effect, open its default and dismiss the complaint on the ground that, by amended order and judgment dated August 1, 2016, the Supreme Court, Bronx County, had declared, insofar as is relevant here, that defendant has no obligation to pay plaintiff for claims arising out of the accident underlying this claim. Defendant appeals from an order of the Civil Court entered June 15, 2018 denying defendant’s motion to, in effect, open its default and, upon opening the default, dismiss the complaint.

In our view, the Civil Court improvidently exercised its discretion in denying defendant’s motion when this action is barred by the August 1, 2016 order and judgment of the Supreme Court (cf. e.g. Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Under the circumstances, defendant’s motion should have been granted “for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]).

Accordingly, the order entered June 15, 2018 is reversed and defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint is granted.

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

Index No. 650138/2019

Larkin Farrell LLC, New York, NY (William Larkin of counsel), for plaintiff.

Law Offices of Viktoriya Litvenko P.C. (Viktoriya Litvenko of counsel), for defendant Right Choice Supply, Inc.

This motion concerns the potential obligation to pay no-fault insurance benefits of [*2]plaintiff American Transit Insurance Company. Defendant Juan Romero-Richiez was in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by American Transit. Romero-Richiez assigned the right to collect no-fault benefits under that policy to various treating medical providers, including defendant Right Choice Supply Inc. Romero-Richiez himself applied for no-fault benefits, which American Transit denied.

American Transit brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Romero-Richiez or to the other defendants (all medical-provider assignees of his). Romero-Richiez and several of the medical-provider defendants did not appear. American Transit moved for default judgment under CPLR 3215 against Romero-Richiez and the other non-appearing defendants.

This court granted the default-judgment motion without opposition. In October 2019 the court issued a declaration that Romero-Richiez and the non-appearing providers “are not entitled to no-fault benefits as a result of a motor vehicle accident involving Juan Romero-Richiez . . . due to Romero-Richiez’s failure to appear for duly scheduled independent medical examinations.” (NYSCEF No. 30 at 2 [capitalization omitted].)

American Transit now moves for summary judgment under CPLR 3212 against Right Choice.^[FN1] The motion is denied.

DISCUSSION

This action is the latest in a series of cases before this court, each brought by American Transit, on what evidentiary showing is required for a no-fault insurer to obtain a declaration of no-coverage based upon the injured party’s failure to appear for an independent medical examination (IME) or examination under oath (EUO).

American Transit has consistently taken the position in these cases that all it need show to obtain summary judgment is proof that (i) after receiving the injured-person assignor’s NF-2 application for no-fault benefits, American Transit properly mailed the injured person two requests to appear for an IME or EUO; (ii) the injured person twice failed to appear as requested (or to seek rescheduling of the IME or EUO); and (iii) American Transit sought and obtained a default judgment of no-coverage against the injured-person assignor for failure to appear for the duly scheduled IME or EUO.

This court has consistently rejected this position. (See, e.g., American Transit Ins. Co. v Martinez, 2020 NY Slip Op 50930[U] [Sup Ct, NY County Aug. 21, 2020]; American Transit Ins. Co. v. Reynoso, 2020 WL 5524771 [Sup Ct, NY County Sept. 11, 2020].) Instead, this court has held that under the decisions of the Appellate Division, First Department, in American Transit Ins. Co. v Longevity Med. Supply, Inc. (131 AD3d 841, 841 [1st Dept 2015]), and [*3]Mapfre Ins. Co. of NY v Manoo (140 AD3d 468, 469 [1st Dept 2016]), American Transit also must satisfy one of two additional elements to show its entitlement to summary judgment.

First, American Transit could establish that it has met the timeliness requirements of 11 NYCRR § 65-3.5 (b) and (d) through evidence that it requested an IME or EUO within 15 business days of receiving claimant’s NF-3 verification forms or bills submitted by the injured person’s medical providers (see 11 NYCRR § 65-3.5 [b]), and (in the case of an IME) scheduled the IME to be held within 30 calendar days of receipt of those forms. (See Longevity Medical Supply, 131 AD3d at 841.) Second, American Transit could establish that it did not need to satisfy these requirements because it had requested an IME or EUO prior to receiving an NF-3 form or a provider bill. (See Manoo, 140 AD3d at 469.)

Here, American Transit has not attempted to do either. Instead, it rests on the same evidentiary showing that this court has previously held insufficient. And its motion papers emphasize that numerous decisions rendered by other judges of Supreme Court, New York County, have granted it default judgment or summary judgment on that showing. (See NYSCEF No. 57 at 1-5; NYSCEF No. 58 [reproducing decisions].) These decisions, even if not binding on this court, might carry persuasive force. But American Transit does not contend that other judges have had before them the particular arguments about American Transit’s evidentiary burden that this court has found persuasive in its prior rulings—much less that other judges have considered and rejected those arguments.

That said, given the extent to which the issue has recurred, this court feels it appropriate to lay out in further detail why it finds American Transit’s position on the required evidentiary showing—and the three principal contentions supporting that position—to be without merit.

1. American Transit asserts that if an insurer obtains a default judgment against a injured-party assignor—thereby establishing prima facie that the assignor failed to comply with the requirement to appear for requested IMEs or EUOs—the assignee is bound by this judgment because the assignee has no more rights than those possessed by the assignor. (See NYSCEF No. 57 at 5-6.) But American Transit still fails to grapple with the decision of the Appellate Division, Second Department, holding that when an assignment of no-fault benefits is made prior to the institution of legal action, a decision on default against the assignor does not bar the assignee from asserting a claim to no-fault benefits. (See Lakeside Hosp. v Government Empls. Ins. Co., 70 AD2d 658, 658 [2d Dept 1979], citing Gramatan Home Inv. Corp. v Lopez, 46 NY2d 481, 486-487 [1979].) Absent a contrary decision of the Court of Appeals or Appellate Division, First Department, the holding of Lakeside Hospital is binding on this court. (See D’Alessandro v Carro, 123 AD3d 1, 6 [1st Dept 2014].) American Transit has not identified—and this court is not aware of—any such contrary decision.^[FN2]

2. American Transit argues that under the First Department’s decision in Unitrin Advantage Insurance Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011]), the failure to appear for IMEs is a breach of a condition precedent to coverage, such that the insurer cannot be precluded from denying the claim for failure to appear. (See NYSCEF No. 57 at 7-8, citing Central Gen. Hosp. v Chubb Grp. of Ins. Cos., 90 NY2d 195 [1997].) But, as this court noted in Martinez, Reynoso, and others, the rule in Bayshore does not sweep that far. Since Bayshore, the First Department has held that a plaintiff insurer’s motion for summary judgment is properly denied when the plaintiff fails to establish either that it complied with the IME-scheduling requirements of 11 NYCRR § 65-3.5, or that those requirements are inapplicable. (See, e.g., American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015] [failure to establish compliance]; Kemper Indep. Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017] [failure to establish inapplicability].)

Indeed, Longevity Medical Supply expressly distinguished Bayshore on the ground that in that case the insurer had established “that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations.” (131 AD3d at 842, quoting Bayshore, 82 AD3d at 560 [emphasis in Longevity]; accord Adelaida Physical Therapy, 147 AD3d at 438 [construing Bayshore to require an insurer to establish either timeliness or inapplicability of the timeliness requirements].) And this makes sense: the issue before the Court of Appeals in Central General Hospital was whether an insurer is precluded in litigation from raising an otherwise-valid lack-of-coverage defense by a prior failure to timely deny the claim (see 90 NY2d at 199-201)—not whether a failure-to-appear-for-IME defense is valid absent evidence that the IME was timely requested.

3. American Transit claims that the 15-business-day deadline to request an IME after receipt of a set of verification forms, and the 30-calendar-day period for holding the IME after receipt of the set of verification forms, “only appl[y] to medical examinations that are necessary to determine if th[e] particular claim” dealt with in that set of forms “should be paid.” (NYSCEF No. 57 at 10.) American Transit points out that the no-fault insurance endorsement mandated by regulation requires “the eligible injured person” to “submit to medical examination . . . when, and as often as, the Company may reasonably require.” (11 NYSCRR § 65-1.1.) Thus, where an IME “is being scheduled” under this provision “for a more broad reason, ie to determine, generally, if the claimant needs future treatment,” the 15- and 30-day deadlines assertedly do not apply. (NYSCEF No. 57 at 11.) This court is not persuaded.

American Transit cites no authority of any kind for its position. Given the sheer number of no-fault decisions issued by New York courts at all levels, this dearth of authority is striking. And none of the eleven First Department decisions issued on timeliness of IME/EUO requests over the last five years even suggest that some requests made after the insurer has received a claim for benefits are nonetheless exempt from the timeliness requirements of § 65-3.5.^[FN3] Instead, [*4]these decisions have looked only at whether an IME/EUO request was made prior to the receipt of a claim form or provider bill (in which case the request is governed by the rule announced in Manoo), or after receipt (in which case the timeliness requirements of § 65-3.5 apply).

Moreover, on American Transit’s position, an IME request made more than 15 business days after receipt of a given claim could still be timely—as long as the request were made for reasons other than assessing the validity of that particular claim. As a corollary, therefore, a failure to appear for the timely requested IME would assertedly warrant denial of the pending claim for breach of a condition precedent to coverage. Yet in All of NY, the First Department reversed the trial court and held that failure to appear for an EUO that had been requested untimely relative to a particular benefits claim would not warrant denial of that claim. (See 158 AD3d at 449.) American Transit provides no explanation about how in practice an arbitrator or a court would be able to distinguish between an IME/EUO request that was late (because it was made more than 15 business days after receipt of a given claim or bill), or timely (because it was not intended to seek verification of any particular claim or bill).

This potential confusion points to an additional shortcoming of American Transit’s interpretive argument. The carefully drafted, intricate no-fault-benefits regulatory framework contains no language drawing the distinction about types of IME/EUO requests that American Transit finds in “the plain language of the regulation” (NYSCEF No. 57 at 10). And the regulations do not contain provisions offering guidance to arbitrators and courts on how to determine on which side of that distinction a given IME/EUO request falls.

Further, American Transit’s argument heavily emphasizes the potential utility of an IME in assessing whether an individual needs further treatment, separate and apart from any individual claim. (See NYSCEF No. 57 at 9-10.) Yet the same mandatory insurance endorsement requires the injured person or their assignee to appear for EUOs “as may reasonably be required,” just like IMEs. (11 NYSCRR § 65-1.1.) And it is much harder to see how an EUO (i.e., a deposition) would be informative in assessing an individual’s general need for treatment.

To be sure, an EUO (or an IME) might well be helpful if the insurer suspects that an individual’s claimed injuries are exaggerated, or indeed invented altogether, as in the case of a staged “accident.” Yet the insurer’s interest in using IMEs and EUOs to limit potential insurance fraud is fully accommodated by its ability either (i) to request an IME or EUO based on suspicions of fraud that arise before claims have come in, which under Manoo would not be subject to the timeliness requirements of § 65-3.5; or (ii) to request an IME or EUO consistent with § 65-3.5 because particular claims for treatment have raised questions about excessive or unnecessary treatment. American Transit does not explain why, given these options, it would [*5]also be necessary to be able to request an IME (or EUO), in effect, preemptively in order to assess the injured person’s general need for further treatment before providers have submitted claims for such further treatment.

Finally, even if this court were inclined to accept American Transit’s argument that an IME/EUO request is outside the scope of § 65-3.5 if made out of a desire to assess the injured person’s general need for treatment, American Transit has not submitted any evidence that the IME request at issue in this case was made for that general-need-for-treatment reason. Absent such evidence—and absent any evidence about when the IME request was made relative to when American Transit received verification forms or bills from providers—American Transit cannot establish its prima facie entitlement to judgment regardless.

Accordingly, for the foregoing reasons it is hereby

ORDERED that American Transit’s motion under CPLR 3212 for summary judgment in its favor is denied.

DATE: 10/9/2020

Footnotes

Footnote 1:American Transit has separately settled with several other medical-provider defendants. (See NYSCEF Nos. 24, 25, 54.)

Footnote 2:The Court of Appeals decision on which American Transit relies, New York & Presbyterian Hospital v Country-Wide Insurance Co., involved a ruling on the merits in an action brought by an assignee against an insurer, rather than a ruling about the effects of a default judgment obtained by an insurer against an assignor. (See 17 NY3d 586, 588 [2011].)

Footnote 3:See Global Liberty Ins. Co. v Evans (176 AD3d 599 [1st Dept 2019]); Hertz Vehs. LLC v Best Touch PT, P.C. (162 AD3d 617 [1st Dept 2018]); Hereford Ins. Co. v Lida’s Med. Supply, Inc. (161 AD3d 442 [1st Dept 2018]); Unitrin Advantage Ins. Co. v All of NY, Inc. (158 AD3d 449 [1st Dept 2018]); Hertz Vehs. LLC v. Significant Care, PT, P.C. (157 AD3d 600 [1st Dept 2018]); Adelaida Physical Therapy (147 AD3d 437); Manoo (140 AD3d 468); National Liability & Fire Ins. Co. v Tam Medical Supply Corp. (131 AD3d 851 [1st Dept 2015); American Transit Ins. Co. v Vance (131 AD3d 849 [1st Dept 2015]); Longevity Medical Supply (131 AD3d 841); American Transit Ins. Co. v Clark (131 AD3d 840 [1st Dept 2015]).

[*1]

Hurwitz & Fine, P.C., Buffalo (Steven E. Peiper of counsel), for respondent-appellant.

Gelber & O’Connell, LLC, Amherst (Timothy G. O’Connell of counsel), for petitioner-respondent.

Appeal from a judgment of the Supreme Court, Erie County (Catherine R. Nugent Panepinto, J.), entered February 1, 2019. The judgment awarded petitioner money damages upon an arbitration award.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: This case arose from a motor vehicle accident that occurred when petitioner’s vehicle was struck by a vehicle that failed to stop for a red light. Following petitioner’s recovery of damages in an underlying action against the driver of the other vehicle, petitioner submitted a supplemental uninsured/underinsured motorist (SUM) coverage claim to respondent, State Farm Mutual Automobile Insurance Company (State Farm). The matter proceeded to compulsory arbitration, and the arbitrator awarded petitioner $2,250,000, less the setoff amount of $474,771.21, for a total of $1,775,228.79. Supreme Court granted petitioner’s motion to confirm the arbitration award and denied State Farm’s cross motion to vacate the award. In appeal No. 1, State Farm appeals from a judgment that, inter alia, confirmed the arbitration award. In appeal No. 2, State Farm appeals from an order that, inter alia, granted petitioner’s motion to confirm the arbitration award and denied State Farm’s cross motion to vacate the award. In appeal No. 3, State Farm appeals from an order denying its application, pursuant to CPLR 2601 and 5519 (c), for an order permitting payment of the judgment into court.

Preliminarily, inasmuch as the order appealed from in appeal No. 2 was subsumed in the judgment appealed from in appeal No. 1, appeal No. 2 must be dismissed (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988, 988 [4th Dept 1988]; see also Matter of Toussie v Coastal Dev., LLC, 161 AD3d 533, 533 [1st Dept 2018]; Deragon v Burkart, 55 AD3d 1309, 1309 [4th Dept 2008]). Furthermore, inasmuch as State Farm does not challenge any aspect of the order appealed from in appeal No. 3, we dismiss that appeal as abandoned (see Abasciano v Dandrea, 83 AD3d 1542, 1545 [4th Dept 2011]).

We reject State Farm’s contention in appeal No. 1 that the arbitration award is arbitrary and capricious, irrational and unsupported by the evidence. “It is well settled that judicial review of arbitration awards is extremely limited” (Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479 [2006], cert dismissed 548 US 940 [2006]; see Whitney v Perrotti, 164 AD3d 1601, 1602 [4th Dept 2018]). As relevant here, a court may vacate an arbitration award if it finds that the rights of a party were prejudiced when “an arbitrator . . . exceeded his [or her] power” (CPLR 7511 [b] [1] [iii]). An arbitrator exceeds his or her power where, inter alia, the award is “irrational” (Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]). “An award is irrational if there is no proof whatever to justify the award” (Matter of Town of Scriba [Teamsters Local 317], 129 AD3d 1596, 1597 [4th Dept 2015] [internal quotation marks omitted]; see Matter of Professional, Clerical, Tech., Empls. Assn. [Board of Educ. for Buffalo City Sch. Dist.], 103 AD3d 1120, 1122 [4th Dept 2013], lv denied 21 NY3d 863 [2013]). If the arbitrator “offers even a barely colorable justification for the outcome reached, the arbitration award must be upheld” (Whitney, 164 AD3d at 1602 [internal quotation marks omitted]; see Matter of Town of Tonawanda [Town of Tonawanda Salaried Workers Assn.], 160 AD3d 1477, 1477 [4th Dept 2018], lv denied 32 NY3d 908 [2018]).

Where, as here, the parties are “subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it ‘must have evidentiary support and cannot be arbitrary and capricious’ ” (City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 919 [2011], quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). “ ’When reviewing compulsory arbitrations . . . , the court should accept the arbitrators’ credibility determinations, even where there is conflicting evidence and room for choice exists’ ” (Matter of Powell v Board of Educ. of Westbury Union Free School Dist., 91 AD3d 955, 955 [2d Dept 2012]).

Here, the record establishes that the findings of the arbitrator were rational, had evidentiary support, and were not arbitrary and capricious (see Motor Veh. Acc. Indem. Corp., 89 NY2d at 223-224; Matter of Bender [Lancaster Cent. Sch. Dist.], 175 AD3d 993, 996 [4th Dept 2019]). The arbitrator’s decision reflects his review of the parties’ submissions, the oral arguments of counsel, and the testimony of petitioner, and the arbitrator’s evaluation of the testimony and analyzation of the medical, no-fault, and property damage records. The arbitrator noted that State Farm had conceded that petitioner had no prior relevant medical history but required an extensive three-level spinal surgery at a very young age, and the arbitrator determined that the diagnosis of petitioner’s spinal surgeon that petitioner’s injuries were caused by the accident was supported by the opinions of the radiologists and other treating physicians. The arbitrator further determined that the diagnosis and opinions of petitioner’s spinal surgeon and chiropractor were supported by the objective evidence, whereas the opinions of the neurosurgeon who conducted the independent medical examination of petitioner were at odds with the opinions of the radiologists and petitioner’s surgeon regarding the severity and progression of petitioner’s injuries. We thus conclude that there is evidentiary support for the arbitrator’s conclusion that petitioner is entitled to collect the SUM benefits from State Farm.

We have considered the remaining contentions of State Farm and conclude that none warrants modification or reversal of the judgment. Present—Centra, J.P., Troutman, Winslow and Bannister, JJ.

[*1]

Civil Court of the City of New York, Queens County, October 8, 2020

APPEARANCES OF COUNSEL

Rubin, Fiorella, Friedman & Mercante LLP, New York City, for defendant.

Sanders Barshay Grossman, LLC, Garden City, for plaintiff.

I. Papers

Papers filed with the court on June 18, 2019, were read on this motion by defendant for a summary judgment seeking to dismiss plaintiff’s complaint pursuant to CPLR 3212. The motion was submitted on March 13, 2020, without opposition, after respective adjournments on July 18, 2019, October 2, 2019, and January 27, 2020, by various courts. This matter is now before this court during the coronavirus pandemic before its trial date of February 5, 2021.

II. Background

Assignor allegedly had a car accident on October 11, 2017. Assignor “was the driver in the insured vehicle . . . [which] was insured by . . . [defendant] in the name of [assignor]” (affirmation at 1-2). Two passengers, Akeil C. and Jayquone B., were in the insured vehicle when the alleged incident occurred. “Passenger in . . . [the insured vehicle] did RMA with complaint of leg pain” (police rep at 1, 3) while defendant stated that the police report “indicated no injuries at the scene” (affirmation {**69 Misc 3d at 941}at 2). Assignor underwent treatment at plaintiff’s facility between October 23, 2017, and December 6, 2017, incurring a medical bill in the total amount of $845.78 (see exhibit A, plaintiff’s summons and complaint). Plaintiff [*3]submitted its medical bill to defendant. Defendant denied such claim based on a “finding that the loss was not an accident and [assignor] made false statements with the intent to conceal or misrepresent material facts or circumstances related to [the] loss in furtherance of an insurance fraud scheme.” In addition, defendant denied all claims related to the alleged collision based on fraud. (See claim specialist aff.)

III. Discussion

In the motion, defendant prayed for a summary judgment seeking to dismiss plaintiff’s complaint on the following grounds: (1) defendant’s “founded belief that the alleged injury [did] not arise out of an insured incident” (affirmation at 3); and (2) assignor’s failure to subscribe the transcript.

CPLR 3212 states that “[a] motion [for summary judgment] shall be granted if . . . the cause of action . . . [is] established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” and that “there is no defense to the cause of action” (CPLR 3212 [b]; Rodriguez v City of New York, 31 NY3d 312 [2018]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

1. Defendant’s “founded belief that the alleged injury [did] not arise out of an insured incident”

In support of its “founded belief that the alleged injury [did] not arise out of an insured incident” (affirmation at 3), defendant argued that: (1) “the insured vehicle [drove] directly into [the adverse] vehicle” pursuant to the adverse driver; (2) “the insured vehicle was destroyed prior to the collision” pursuant to the adverse driver; (3) defendant “had difficulty obtaining statements from the insured or occupants of the insured vehicle after the collision”; (4) “[o]ne of the occupants was involved in a prior loss less than one month before the collision”; and (5) “[t]he EUO testimony of [assignor] consist[ed] of incomplete and inconsistent testimony” due to the fact that assignor’s “answer to questions were so vague or she would respond ‘I [didn’t] know’ or ‘I [didn’t] remember’ to essentially every question asked.” As a result, defendant suspected that the collision was “staged,” and, therefore, was not a true accident covered by the insurance, citing V.S. Med. Servs., P.C. v Allstate Ins. Co. (11 Misc 3d 334 [2006]) (affirmation at 2-5).{**69 Misc 3d at 942}

The court in V.S. Med. Servs., P.C. stated that

“[i]n the no-fault context, the plaintiff need not prove coverage as part of its prima facie case . . .

“[A] defendant asserting a lack of coverage defense must set forth admissible evidence of ‘the fact or [a] founded belief that the alleged injury [did] not arise out of an insured incident’ ” (V.S. Med. Servs., P.C. v Allstate Ins. Co. at 340).

After trial, the V.S. Med. Servs., P.C. court dismissed plaintiff’s complaint based on the following factors:

“profile and claim history of the car (older model, accident shortly after insurance taking effect and policy cancelled shortly thereafter for nonpayment on two separate occasions), several passengers in the car, no emergency room treatment for any passenger, several material discrepancies in the car’s occupants’ stories as to the number and gender of people in the car, where they were going, and the driver denying knowing the owner of the car[,] . . . [adverse vehicle] suffered only a ‘small scratch’ in the alleged accident . . . which allegedly resulted in over $15,000 in treatment for these assignors alone” (V.S. Med. Servs., P.C. v Allstate Ins. Co. at [*4]343, 344).

Such court reasoned that if an alleged collision was not a true accident, in another word, was an intentional act, “then it [was] outside the scope of the no-fault policy regardless of why or how it occurred or who was behind it” (V.S. Med. Servs., P.C. v Allstate Ins. Co. at 341).

In our instant case, plaintiff submitted its medical bills to defendant, therefore establishing its prima facie case of coverage. It is then defendant’s burden to “rebut the presumption of coverage” by establishing “that the alleged collision was intentionally caused” (V.S. Med. Servs., P.C. v Allstate Ins. Co. at 342-344). Here, defendant formed its belief that the alleged collision at issue was not a covered incident based on the grounds that assignor’s insured vehicle, which was previously damaged, intentionally hit the other vehicle, one of the passengers in the insured vehicle claimed another loss shortly before the alleged collision, assignor’s answers to the examination under oath (EUO) were vague, and it was difficult for defendant to obtain statements from the passengers.

As to the matter at hand, the passengers of the insured vehicle are not parties to the instant proceeding; this court{**69 Misc 3d at 943} therefore will not address issues related to the passengers and is left to weigh the evidence presented by defendant, based on the pretrial motion papers, to determine if assignor’s car intentionally hit the other car and if assignor’s EUO answers were so vague that a dismissal of plaintiff’s complaint is warranted.

[1] Unlike the claim history of the car in the V.S. Med. Servs., P.C. case, defendant here failed to put forward evidence to demonstrate that assignor took her insurance policy with defendant shortly before the alleged incident and cancelled such insurance policy shortly after. In addition, it appears that there is a factual issue to be resolved in terms of how the alleged incident happened. Pursuant to the adverse driver, his vehicle “stopped . . . [at a stop sign, but] had inched further W/B to get a [b]etter vantage point of traffic” when assignor’s vehicle allegedly intentionally hit his vehicle; while pursuant to assignor, adverse driver’s vehicle “suddenly collide[d] with . . . [her vehicle] while heading W/B” (see police rep). Furthermore, this court finds that assignor has answered most of the questions during the EUO as indicated by the transcript.

It is well established that a movant for a summary judgment must present prima facie admissible evidence proving that there is no material issue of fact and that the controversy can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v City of New York at 561).

Here, this court is not persuaded, based on the evidence presented by defendant’s motion paper, that the alleged incident was staged and, therefore, not an insured incident. Although defendant argued that it did not believe that assignor’s alleged injury arose out of an insured incident, it failed to present evidence or argument that assignor had an existing condition prior to the alleged incident and that her treatment received at plaintiff’s facility did not arise out of the alleged incident at issue. In summary, defendant failed to rebut the presumption of no-fault medical coverage. Defendant’s motion seeking to dismiss plaintiff’s complaint based on its belief that the alleged injury did not arise out of an insured incident is denied without prejudice.{**69 Misc 3d at 944}

2. Assignor’s Failure to Subscribe the Transcript

Defendant also moved to dismiss plaintiff’s complaint because assignor failed to [*5]subscribe the transcript. Defendant argued that

“[p]ursuant to the No-Fault regulations, ‘[u]pon request by the [insurance company], the eligible injured person or that person’s assignee or representative [should]: (b) as may reasonably be required submit to examinations under oath by any person named by the [insurance company] and subscribe the same[;]’ [and that] [d]ue to the failure of . . . [assignor] to return a signed and executed copy of the [t]ranscript, the [assignor] [had] failed to comply with a condition precedent to coverage” (affirmation at 7, citing DTG Operations, Inc. v Park Radiology, P.C., 2011 NY Slip Op 32467[U] [2011], Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997], Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011], and Skeaney v Silver Beach Realty Corp., 10 AD2d 537 [1st Dept 1960]).

Defendant further argued that because assignor failed to return the signed transcript within 120 calendar days of request for subscription, defendant “reserve[d] the right to deny coverage for failure to provide an executed transcript within the allotted time period” (see demand for subscription).

In the instant case, assignor submitted herself to an EUO and, therefore, has satisfied one of the requirements of 11 NYCRR 65-1.1 which requires a no-fault insurance benefit claimant “submit to [an] examination[ ] under oath . . . and subscribe the same” (11 NYCRR 65-1.1). However, assignor failed to sign the transcript of the EUO. The issue before this court is how late is too late for assignor to sign the transcript, or alternatively until when can assignor sign the transcript in order to ensure that the complaint is not dismissed.

Regulation 68-C states that “an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply” (11 NYCRR 65-3.8 [b] [3]), and that “[i]n the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day the examination was performed” (11 NYCRR 65-3.8 [a] [1]). Here, {**69 Misc 3d at 945}Regulation 68-C provides a statutory ground for an insurer’s denial of a no-fault benefit due to an insured’s failure to submit to an EUO or provide the insurer with “verification under the [insured]’s control or possession” within 120 calendar days of first request (11 NYCRR 65-3.5 [o]; 65-3.8 [b] [3]); however, it is silent as to if an insurer can issue a denial if an insured fails to return a signed transcript of an examination under oath within 120 calendar days of initial demand. Although defendant reserved the right to deny plaintiff’s claim if a signed transcript was not received within 120 calendar days of demand for subscription, it failed to present this court with a copy of an insurance contract outlining such term.

[2] It is undoubted that subscribing the transcript is a condition precedent for assignor/plaintiff to receive no-fault benefits pursuant to 11 NYCRR 65-1.1; however, defendant failed to provide this court with evidence that the insurance contract between assignor and defendant had a provision mandating assignor to subscribe the transcript within 120 calendar days of first demand. In Skeaney v Silver Beach Realty Corp., cited by defendant, the insured did not return the executed transcript of examination under oath until the opposing party “obtained an order directing the [insured] to execute and return the transcript” (Skeaney v Silver Beach Realty Corp. at 537). Here, this court finds that there is no basis to dismiss plaintiff’s complaint, pretrial, because assignor failed to sign the transcript within 120 calendar days of demand. In another word, defendant’s motion seeking to dismiss plaintiff’s complaint, pretrial, due to assignor’s failure to subscribe the transcript, is premature when defendant has not exhausted remedies provided by law and absent evidence of insurance contract terms requiring [*6]the same. Defendant’s motion for summary judgment seeking to dismiss plaintiff’s complaint because assignor failed to sign the transcript is denied without prejudice.

IV. Order

Accordingly, it is ordered that defendant’s motion for summary judgment seeking to dismiss plaintiff’s complaint is denied in its entirety, without opposition and without prejudice.

Hollander Legal Group , P.C. (Allan S. Hollander 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 (Richard J. Montelione, J.), entered November 13, 2018. 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 reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. As limited by the brief, defendant appeals from so much of an order of the Civil Court entered November 13, 2018 as denied defendant’s motion.

We find that defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]), and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [2011]). Plaintiff failed to raise a triable issue of fact in opposition. Contrary to the Civil Court’s determination, “appearance at an [EUO] is required whether the insurance company demands the [EUO] before the claim form is submitted or after the claim form is submitted” (Stephen Fogel Psychological, P.C., 35 AD3d at 721; LDE Med. Servs., P.C. v Interboro Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, although the first EUO scheduling letter was mailed to the assignor before defendant received plaintiff’s first claim form, the scheduling letter was not a nullity (id.).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

CV-56687-15/KI

Oleg Rybak, Esq.
The Rybak Firm, PLLC
1810 Voorhies Avenue, Suite 7
Brooklyn, New York 11235
(718) 975-2035
Counsel for Plaintiff

Christin Brown, Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP
1133 Westchester Avenue
White Plains, New York 10604
(914) 323-7000
Counsel for Defendant

RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION

NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2

AFFIRMATION IN SUPPORT & EXH. ANNEXED 3-4

AFFIRMATION IN OPPOSITION & EXH. ANNEXED 5-6

Plaintiff moves This Honorable Court by Notice of Motion pursuant to CPLR 2221 (d) for an Order granting Plaintiff Leave to Reargue and pursuant to CPLR 2221 (e) Leave to Renew Decision and Order of This Court dated September 10, 2019, Denying Plaintiff’s Motion for Summary Judgment and Granting Defendant’s Motion to Dismiss for removal to Court of Claims [*2]for lack of jurisdiction pursuant to the New York State Constitution, Article VI, Section 9, Court of Claims Act Section 9. For the reasons set forth below, Plaintiff’s Motion for Leave to Reargue and Renew is hereby DENIED.

PROCEDURAL AND FACTUAL HISTORY

Action commenced by Plaintiff for Defendant’s failure to pay first party No-Fault benefits as a result of medical services rendered to Eligible Injured Party (hereinafter EIP) as result of motor vehicle accident (hereinafter MVA) on December 18, 2009. Summons and Complaint served September 15, 2015 and filed on September 16, 2015. Issue joined by Defendant’s service of Verified Answer on January 25, 2016. Subsequently, Plaintiff filed for Motion for Summary Judgment on September 28, 2018 pursuant to CPLR 3211 (c) or CPLR 3212 (a) and dismissal of Defendant’s affirmative defenses pursuant to CPLR 3211 (b), premised on grounds that it timely mailed its claims to Defendant, Defendant received these claims, but failed to timely pay nor timely deny the claims within the statutory thirty (30) day period. In opposition thereto, Defendant cross-moved for summary judgment pursuant to CPLR 3211 (a) (2), CPLR 3211 (a) (7), CPLR (a) (8), and CPLR 3212 on June 10, 2019, arguing that this Court lacks jurisdiction to entertain this case as NYSIF is a state agency and that any action brought against it must be brought in the New York State Court of Claims.

Underlying Oral Argument Held September 10, 2019

At initial oral argument of the dueling underlying motions, Plaintiff’s main arguments were based upon first party No-fault Benefits Law. Whereas, in sum and substance, Defendant argued quite vehemently that time and time again it has explained to Plaintiff’s Counsel that it was not the proper party; It is not a No-Fault insurer; it does not administer first party No-Fault claims; it is not responsible for the payment of No-Fault benefits; rather, it is a New York State statutorily created Worker’s Compensation Carrier; Kings County Civil Court has no Jurisdiction over this New York State statutorily created agency; Jurisdiction, except for worker’s compensation matters, lies solely with New York State Court of Claims pursuant to New York State Constitution Article VI, Section 9, Court of Claims Act §9. More so persuasive, Defendant argued that this very same lack of jurisdiction issue had already been decided in a similarly situated action brought by Plaintiff’s Counsel likewise for motion for summary judgment filed on May 1, 2017, which was presided over by Retired Kings County Civil Court Judge, Honorable Michael Gerstein by Decision/Order dated December 10, 2018. Judge Gerstein held that Kings County Civil Court lacked Jurisdiction over this New York State Actor Defendant in first party No-Fault benefit actions and granted Plaintiff leave to transfer this action to the Court of Claims (Ultimate Care Chiropractic, P.C. a/a/o Garris, Kenneth v NYSIF, Index No. 716668/2016 [hereinafter Ultimate Care]). Thereafter, Plaintiff’s Counsel filed Notice of Removal in the New York Court of Claims for Ultimate Care stating, “The Claimant brings this present action in the Court of Claims, State of New York as the court of competent jurisdiction over the Defendant New York State Insurance Fund” (affirmation in opposition, Exhibit I). However, Court of Claims rejected Ultimate Care because it does not accept transfer of cases and the matter was time-barred since a claim for breach of contract must be brought within six (6) months of the accrual date (New York State Constitution Article VI, Section 9, Court of Claims Act §10). Defendant expressed utter frustration that Plaintiff Counsel nevertheless continued to send No-Fault medical bills for payment and when no payment or denial was received (parenthetically, which should have been the anticipated outcome) commenced similarly situated first party No-Fault benefit actions against this very same New York State Actor Defendant since December [*3]10, 2018 Decision/Order by Judge Gerstein:

1. Allay Medical Services, P.C. a/a/o Duplessis, Mario v NYSIF — Index 706448/19

2. Jules Francois Parisien, M.D. a/a/o Cooper, Edweena v NYSIF — Index 706446/19

3. Jules Francois Parisien, M.D. a/a/o Guirand, Deromme v NYSIF — Index 706444/19

4. Jules Francois Parisien, M.D. a/a/o Magloire, Bueno v NYSIF — Index 706445/19

5. Jules Francois Parisien, M.D. a/a/o Magloire, Bueno v NYSIF — Index 706455/19

6. Jules Francois Parisien, M.D. a/a/o Cooper, Edweena v NYSIF — Index 706449/19

7. Quality Health Supply Corp., a/a/o Cooper Edweena v NYSIF — Index 706450/19

8. Ksenia Pavlova D.O. a/a/o Cooper, Edweena v NYSIF — Index 706452/19

9. Pierre J. Renelique, M.D. a/a/o Magloire, Bueno v NYSIF — Index 706457/19

10. Island Life Chiropractic Pain Care PLLC a/a/o Magloire, Bueno v NYSIF 706458/19

11. Excel Products Inc., a/a/o Gabriel, Marc v NYSIF — Index 706440/19

12. Charles Deng Acupuncture, P.C. a/a/o Cooper, Edweena v NYSIF — Index 706454/19

13. Maiga Products Corp., a/a/o Magloire, Bueno v NYSIF — Index 706459/19

14. Solution Bridge, Inc., a/a/o Goulbourne, Alfred v NYSIF — Index 706441/19

15. Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. a/a/o Magloire, Bueno v NYSIF Index — 706460/19

16. Allay Medical Services, P.C. a/a/o Guirand, Deromme v NYSIF Index — 706442/19

17. Allay Medical Services, P.C. a/a/o Guirand, Deromme v NYSIF Index — 706443/19

18. Allay Medical Services, P.C. a/a/o Petit-Saint, Marceau v NYSIF Index — 706445/19

19. Darren T. Mollo D.C., a/a/o Cooper, Edweena v NYSIF Index — 706453/19

20. Allay Medical Services, P.C. a/a/o Duplessis, Mario v NYSIF — Index 706447/19

(affirmation in opposition, paragraph 17).

Defendant argued that Plaintiff asked that if it is not the proper party for No-Fault benefits then identify the proper party, to which Defendant bristled that it is not its job to so do. Nevertheless, with full knowledge and admittedly conceding that indeed Court of Claims is the court of competent jurisdiction (exception for worker’s compensation claims), Plaintiff’s Counsel unexplainedly continued to seek relief in Kings County Civil Court. Defendant further argued, This Court was collaterally estopped by Judge Gerstein’s Decision/Order in Ultimate Care. This Court opined that collateral estoppel is not viable where, although argument may be made as to similarly situated actions, yet still, there were different parties and different specific facts. Therefore, issue preclusion may be persuasive but not dispositive with the instant matter, particularly where deciding jurist is of concurrent jurisdiction in the lower courts. Nevertheless, This Court in agreement with Ultimate Care similarly ruled jurisdiction lies with Court of Claims and not with Kings County Civil Court. Defendant quite frustratedly implored This Court to admonish Plaintiff to withdraw all the improperly filed pending cases including the instant action and cease sending medical bills for No-Fault Benefits to Defendant. This Court responded that Kings County Civil Court similarly lacks Jurisdiction in Equity to issue any such broad wide-ranging Declaratory Judgment in this regard and could merely rule on the instant matter before it. Consequently, This Court denied Plaintiff’s motion for summary judgment and to dismiss affirmative defenses, removing the action to the Court of Claims pursuant to the New York State Constitution Article VI, Section 9, Court of Claims Act §9.

Post-Underlying Oral Argument

Plaintiff filed This instant Motion to Reargue and Renew pursuant to CPLR 2221 (d) and CPLR 2221 (e) on September 27, 2019, returnable October 21, 2019. In the interim, Plaintiff’s [*4]Counsel similarly filed Motion to Reargue and Renew Judge Gerstein’s Decision pursuant to CPLR 2221 (d) and CPLR 2221 (e) for Ultimate Care, which was Denied with prejudice on February 4, 2020. This instant motion was ultimately adjourned to September 22, 2020, where oral argument was held and similarly as with Ultimate Care, Motion Denied.

DISCUSSION

LEAVE TO REARGUE: CPLR 2221(d)

Movant for leave to reargue underlying motion must persuade court that “matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion” is reversible error (CPLR 2221 [d]; Matter of Miness v Deegan, 41 Misc 3d 1206 [A], 977 NYS 2d 668, 2013 NY Misc LEXIS 4359, 2013 NY Slip Op 51601 [U], 2013 WL 5480399; Bolos v Staten Island Hosp., 217 AD2d 643, 629 NYS 2d 809 [2d Dept 1995]; Schneider v Solowey, 141 AD2d 813, 529 NYS 2d 1017 [2d Dept 1988]). It has been held that proper practice requires that motion for relief to reargue must be brought by order to show cause in lieu of by notice of motion for judicial economy and failure to do so may be sufficient basis for denial (Application of Central States Paper & Bag Co., Inc., 132 NYS 2d 69, 72 [Sup Ct, NY County 1954], aff’d mem 284 AD 841, 134 NYS 2d 271 [1st Dept 1954]; Rubin v Dondysh, 147 Misc 2d 221, 222, 555 NYS 2d 1004 [Civ Ct, Queens County 1990]). Nevertheless, it has also been held that CPLR 2221 (a) allows that said motions to reargue “shall be made, on notice, to the judge who signed the order” (Alta Apartments LLC v Wainwright, 4 Misc 3d 1009 [A], 791 NYS 2d 867, 2004 NY Slip Op 50797 [U], 2004 WL 1717573 [Civ Ct, NY County 2004]), as is herein.”A Motion to reargue is not an aggrieved party’s second bite of the apple to present new or divergent arguments from its original failed arguments” (819 Realty Group LLC v Beast Fitness Evolved LLC, 2019 NY Misc. LEXIS 5038, *14, 2019 NY Slip Op 51496 [U], 8, 65 Misc 3d 1204 [A], 118 NYS 3d 367, citing Giovanniello v Carolina Wholesale Off. Mach. Co., Inc., 29 AD3d 737, 815 NYS 2d 248 [2d Dept 2006]; Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388, 797 NYS 2d 316 [2d Dept 2005]; Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434, 793 NYS 2d 452 [2d Dept 2005]; Amato v Lord & Taylor, Inc., 10 AD3d 374, 781 NYS 2d 125 [2d Dept 2004]; Frisenda v X Large Enters., 280 AD2d 514, 720 NYS 2d 187 [2d Dept 2001]; Foley v Roche, 68 AD2d 558, 418 NYS 2d 588 [1st Dept 1979]), nor does it allow aggrieved party to reargue the same issues already previously considered and decided by the court (id, citing William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 588 NYS 2d 8 [1st Dept 1992]; Pro Brokerage v Home Ins. Co., 99 AD2d 971, 472 NYS 2d 661 [1st Dept 1984]).

In the instant matter, Plaintiff failed to state any misapprehension of fact or law nor any fact or law that had been overlooked by This Court. Rather, Plaintiff made the very same arguments as made in the underlying motion. Court explicitly queried several times of Plaintiff to be specific as to its re-argument: What law or fact was misapprehended or overlooked by Court. Recurringly, there was merely a restating of the very same argument by Plaintiff – “this court has jurisdiction.” Court noted to Plaintiff that said motion to reargue is not a second bite of the apple to relitigate its very same arguments. On the contrary, there shall be no relitigating of the very same arguments as made in the underlying motion. Failure to present any law or fact misapprehended or overlooked therefore failed to establish basis for leave to reargue.

However, on further inquiry by the Court, Plaintiff conceded that there was a fact that was overlooked, to wit, this matter was time-barred by Court of Claims. Court pointed out to Plaintiff that this is not a fact that had been argued in its underlying motion. On the contrary, the first introduction of this fact is in this instant motion rendering it a new fact being proffered for [*5]the first time by the movant. Therefore, it is indeed a new matter of fact not offered on the prior motion pursuant to CPLR 2221 (d) (2). Accordingly, Plaintiff’s argument fails in the second prong of CPLR 2221 (d) (2), in that leave to reargue “shall not include any matters of fact not offered on the prior motion“. Clearly, this is not the case here. Plaintiff failed to argue this fact and therefore, this fact could not have been misapprehended nor overlooked where not presented to the court. Jurists cannot “overlook” facts that are not argued by the adversarial parties. Jurists cannot “misapprehend” facts that are not argued by the parties. Jurists are but blank canvases upon which the parties provide the facts as to the issue in controversy, to paint their respective parts of the picture, upon which the jurist completes the picture as she applies any and all law at her ken as deemed relevant to the legal reasoning to the ultimate completion of the picture, to wit, her decision. It is the zealous advocacy of all parties to present the relevant and material facts to the jurist, make its law-based arguments upon which it desires the jurist to rely upon. However, presiding jurist is not so constrained to limit its legally reasoned decision making merely upon the parties’ cited legal arguments and rebuttals. Rather, jurist is duty-bound in the interest of justice, fairness, and judicial economy to make a fully extensively reasoned decision regardless of parties’ failure to so do. Notwithstanding Plaintiff contended in error at oral argument that this motion is actually for reargument as opposed to motion to renew, clearly, its introduction of a new fact renders this matter beyond the statutory scope of a motion to reargue and rather for a leave to renew.

LEAVE TO RENEW: CPLR 2221(e)

CPLR 2221 (e) (2) requires that a leave to renew, “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination.” Here, court finds it necessary to repeat its findings, supra for this branch of its Decision: Plaintiff conceded that it had not in its underlying motion contended that this instant matter was time-barred by Court of Claims. In Plaintiff’s failing to do so, renders this a new fact being proffered for the first time not previously offered on the prior underlying motion by the aggrieved Plaintiff-Movant, in compliance with the first prong of CPLR 2221 (e) (2). In addition, CPLR 2221 (e) (3) requires that leave to renew “shall contain reasonable justification for the failure to present such facts on the prior motion.” “The Second Department has repeatedly held that the additional evidence offered on a motion to renew must be either newly discovered or have been unavailable to the movant at the time of the prior application” (Matter of Miness v Deegan 41 Misc 3d 1206 [A], 977 NYS 2d 668, 2013 NY Misc LEXIS 4359, 2013 NY Slip Op 51601 [U], 2013 WL 5480399, citing Winograd v Neiman Marcus Group, 11 AD3d 455, 782 NYS 2d 753 [2d Dept 2004]; Seltzer v City of New York, 288 AD2d 207, 732 NYS 2d 364 [2d Dept 2001]; Delvecchio v Bayside Chrysler Plymouth Jeep Eagle, 271 AD2d 636, 706 NYS 2d 724 [2d Dept 2000]). The Second Department has also held, “a court, in its discretion may grant renewal where the additional facts were known to the party seeking renewal at the time of the original motion, provided the moving party offers a reasonable justification for the failure to submit the addition of facts on the original motion” or if the moving party offers a reasonable excuse for not having presented those facts (Granato v Waldbaum’s, Inc., 289 AD2d 289, 734 NYS 2d 498, 2001 NY App Div LEXIS 11962; see also Doviak v Finkelstein & Partners, LLP., 90 AD3d 696, at 700-01 [2d Dept 2011]; Schenectady Steel Co. v Meyer Contracting Corp., 73 AD3d 1013, at 1015 [2d Dept 2010]; Smith v State, 71 AD3d 866, at 867-68 [2d Dept 2010]; Surdio v Levittown Public School District, 41 AD3d 486, at 486-87 [2d Dept 2007]). When Plaintiff was queried by [*6]court for justification as to why it did not provide this fact at the September 10, 2019 argument on the underlying motion, there was no justification offered, in contravention to CPLR 2221 (e) (3). It thereby became apparent to this court that the fact that this matter was time barred in the Court of Claims was not known by Plaintiff until after the oral argument date of the underlying motion on September 10, 2019. Consequently, the fact that the instant action is time barred claim in the Court of Claims is a new fact not offered on the prior underlying motion pursuant to CPLR 2221 (e) (2) although it should have been readily available to Plaintiff during the prior underlying motion. Nevertheless, the introduction of this new fact proffered must also be deemed, as statutorily mandated by CPLR 2221 (e) (2), to change the outcome of the prior underlying decision. Here it does not.

In sum and substance, Plaintiff errs as it now argues that since this case is time-barred (“breach of contract must be brought within (six) 6 months of the accrual date” [affirmation in support at 7, ¶ 20, citing NY CT CL Act §10]) in its proper forum court of competent jurisdiction, to wit, Court of Claims, this court already has jurisdiction and should therefore maintain its jurisdiction of this case towards trial. However, the introduction of this new fact does not change the prior underlying motion’s Decision and Order. Jurisdiction is a very basic tenet of jurisprudence. This Court’s jurisdiction is not a fail-safe, not a fallback and not a court of contingent jurisdiction for Court of Claim cases. Either this Court has jurisdiction, or this Court does not have jurisdiction. There is no hybrid jurisdiction here. There is no contingent jurisdiction here. This Court’s finding of no jurisdiction in the underlying case is final and unalterable unless higher court upon appeal holds otherwise. Until then, this Court cannot reverse its previous decision premised upon this irrelevant new fact of being time-barred and therefore rejected by proper forum court of competent jurisdiction, Court of Claims. Where this Court has no jurisdiction over the subject matter in controversy then the only limited action within its authority is dismissal. Plaintiff fails both prongs to establish leave to renew- new fact not having been available at the time of underlying motion and new fact would change the outcome of the underlying decision.

For the foregoing reasons Plaintiff’s Motion pursuant to CPLR 2221 (d) for an Order granting Leave to Reargue and pursuant to CPLR 2221 (e) Leave to Renew Decision and Order of This Court dated September 10, 2019, Denying Plaintiff’s Motion for Summary Judgment and Granting Defendant’s Motion to Dismiss for removal to Court of Claims pursuant to the New York State Constitution, Article VI, Section 9, Court of Claims Act Section 9 is hereby DENIED.

The foregoing constitutes the opinion, decision, and order of This Honorable Court.

Dated: September 30, 2020
Brooklyn, New York
SO ORDERED:
SANDRA E. ROPER
Judge of the Civil Court

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered August 9, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Although defendant’s claim specialist referred to an affidavit annexed as exhibit K, which presumably discussed the payment log, an affidavit was not attached to the papers received by the court. Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.

Plaintiff’s motion for summary judgment was properly denied, as the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. [*2]Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; 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]).

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

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

The Rybak Firm, PLLC (Oleg Rybak and Karina Barska of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered March 15, 2019. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to dismiss the complaint.

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, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant moved to dismiss the complaint on the ground that plaintiff had failed to obtain personal jurisdiction over it. Plaintiff cross-moved for summary judgment. In an order entered March 15, 2019, insofar as appealed from as limited by the brief, the Civil Court granted defendant’s motion.

Initially, it is noted that defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) was made after issue had been joined. Generally, such a motion must be made “before service of the responsive pleading is required” (CPLR 3211 [a]), although “[w]hether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). Here, no such notice appears in the record; however, plaintiff does not raise the untimeliness of defendant’s motion, and, in any event, the specific issue raised regarding the lack of personal jurisdiction is purely a legal one, and notice is therefore not required (see generally Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

When service of the summons in a Civil Court action is other than by personal delivery, service is complete upon the filing of proof of service (see CCA 410 [b]), and, with respect to a purported service by mailing pursuant to CPLR 312-a, proof of service involves an [*2]acknowledgment of receipt of the summons and complaint, as provided for in CPLR 312-a (see CPLR 306 [d]; see generally Domny Med. Servs., P.C. v First Acceptance Ins. Co. Inc., 66 Misc 3d 129[A], 2019 NY Slip Op 52048[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co., 48 Misc 3d 59, 61-62 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record fails to demonstrate that a signed acknowledgment of receipt was returned to plaintiff (see CPLR 312-a [d]), or that service was otherwise completed within 120 days of the filing of the summons and complaint (see CCA 411). Thus, plaintiff failed to acquire personal jurisdiction over defendant (see CPLR 312-a [b]; Krasa v Dial 7 Car & Limousine Serv., Inc., 147 AD3d 744, 745 [2017]; Castillo v JFK Medport. Inc., 116 AD3d 899, 900 [2014]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; Bennett v Acosta, 68 AD3d 910, 911 [2009]; Horseman Antiques, Inc. v Huch, 50 AD3d 963, 964 [2008]).

We note that we do not consider any materials which are dehors the record on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]), nor do we consider any arguments that are raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]).

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

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants and defendants. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeals from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered September 18, 2018. The order, insofar as appealed from by defendant Omni Indemnity Company and insofar as separately appealed from by defendants American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2go Auto Insurance, denied defendants’ motion to dismiss the complaint.

ORDERED that, on the court’s own motion, the appeals are consolidated for the purposes of disposition; and it is further,

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs on each appeal, and defendants’ motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff’s papers do not contain an acknowledgment of service. Defendants moved to dismiss the complaint on the ground that plaintiff had failed to obtain personal jurisdiction over them. Plaintiff cross-moved for summary judgment. In an order entered September 18, 2018, insofar as appealed from, the Civil Court denied defendants’ motion.

When service of the summons in the Civil Court is other than by personal delivery, service is complete upon the filing of proof of service (see CCA 410 [b]), and, with respect to a purported service by mailing pursuant to CPLR 312-a, proof of service involves an acknowledgment of receipt of the summons and complaint as provided for in CPLR 312-a (see [*2]CPLR 306 [d]; see generally Domny Med. Servs., P.C. v First Acceptance Ins. Co. Inc., 66 Misc 3d 129[A], 2019 NY Slip Op 52048[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co., 48 Misc 3d 59, 61-62 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record fails to demonstrate that a signed acknowledgment of receipt was returned to plaintiff (see CPLR 312-a [d]), or that service was otherwise completed within 120 days of the filing of the summons and complaint (see CCA 411). Thus, plaintiff failed to acquire personal jurisdiction over defendants (see CPLR 312-a [b]; Krasa v Dial 7 Car & Limousine Serv., Inc., 147 AD3d 744, 745 [2017]; Castillo v JFK Medport. Inc., 116 AD3d 899, 900 [2014]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; Bennett v Acosta, 68 AD3d 910, 911 [2009]; Horseman Antiques, Inc. v Huch, 50 AD3d 963, 964 [2008]).

Accordingly, the order, insofar as appealed from, is reversed and defendants’ motion to dismiss the complaint is granted.

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