The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Bryan M. Rothenberg and Argyria A.N. Keltagias 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 June 29, 2018. The order granted defendant’s motion (1) to vacate an order of that court (Michael Gerstein, J.) entered November 29, 2017 granting plaintiff’s unopposed motion for the entry of a judgment based on defendant’s alleged failure to answer the complaint, (2) to, in effect, vacate the judgment entered March 1, 2018 pursuant to the November 29, 2017 order, and (3) upon such vacatur, to grant defendant summary judgment dismissing the complaint.

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

Plaintiff commenced this action on June 22, 2017 to recover assigned first-party no-fault benefits for services provided to Ludmilla Dejean, who was injured in a motor vehicle accident on or about June 7, 2011. The record contains an answer by defendant 21st Century Insurance Company (21st Century), along with an affidavit signed on July 21, 2017, attesting to service of the answer upon plaintiff’s attorneys by mail on July 21, 2017. On November 20, 2017, plaintiff served a motion seeking the entry of a default judgment on the ground that plaintiff had not received an answer from defendant. By order entered November 29, 2017, the return date of plaintiff’s motion, the Civil Court (Michael Gerstein, J.) granted the motion, finding, among other things, that defendant had “failed to appear for and answer the calendar call on the return date of the motion [and] to submit any opposition.” A default judgment was entered on March 1, 2018, pursuant to the November 29, 2017 order, awarding plaintiff the principal sum of $527.54.

In April 2018, defendant moved to vacate the November 29, 2017 order and, in effect, the [*2]judgment entered pursuant thereto and, upon such vacatur, for summary judgment dismissing the complaint on the ground that plaintiff’s action is precluded by an order of the Supreme Court, New York County, dated June 3, 2014, granting a motion by 21st Century for a default judgment against Freedom Chiropractic, P.C. and its assignor, Ludmilla Dejean, declaring, insofar as is relevant to the case at bar, that 21st Century is not obligated to reimburse Freedom Chiropractic, P.C. and its assignor for claims arising out of the June 7, 2011 accident, and that the applicable insurance policy is null and void with respect to that accident. Defendant also presented a judgment that was entered on July 21, 2017 in the Supreme Court, New York County, making the same declarations as were made in the June 3, 2014 order as to the parties’ rights. Plaintiff opposed defendant’s motion in the Civil Court. By order entered June 29, 2018, the Civil Court (Richard J. Montelione, J.) granted defendant’s motion and awarded defendant summary judgment dismissing the complaint.

As plaintiff acknowledges on appeal, defendant argued that defendant “did not receive at least 13 days’ notice [of plaintiff’s motion for leave to enter a default judgment], the minimum required for motions served by regular mail (see CPLR 2103 [b] [2]; 2214 [b]). Absence of proper service of a motion is a sufficient and complete excuse for a default on a motion, and deprives the court of jurisdiction to entertain the motion” (Financial Servs. Veh. Trust v Law Offs. of Dustin J. Dente, 86 AD3d 532, 532-533 [2011]; Bianco v LiGreci, 298 AD2d 482, 482 [2002]). As the Civil Court was deprived of jurisdiction, the November 29, 2017 order and the March 1, 2018 judgment entered pursuant thereto were nullities (see Financial Servs. Veh. Trust, 86 AD3d at 533).

In any event, defendant has demonstrated an excusable default and a meritorious defense to the action. By virtue of the Supreme Court’s declaratory judgment, there has been a conclusive determination of the merits of the claim in question (see Bayer v City of New York, 115 AD3d 897 [2014]; Panagiotou v Samaritan Vil., Inc., 88 AD3d 779 [2011]; Methal v City of New York, 50 AD3d 654 [2008]). In view of the foregoing, the Civil Court properly granted defendant’s motion, and we do not reach the parties’ remaining arguments.

Accordingly, the order is affirmed.

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

CV-746259-17/KI

Zara Javakov Esq., P.C. (Koenig Pierre and Zachary Albright Whiting of counsel), Brooklyn, for plaintiff.

Hollander Legal Group, P.C. (Johnathan Drapan of counsel), Melville, for defendant.

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

Papers/Numbered

Notice of Motion and Affidavits Annexed 1-4

Notice of Cross Motion and Affidavits Annexed 5-26

Answering Affidavits 27-28

Replying Affidavits 29-30

Exhibits

Other

In this action seeking to recover assigned first-party no-fault benefits for two assignors, plaintiff moves for summary judgment in its favor against defendant. Defendant opposes the motion and cross-moves for summary judgment dismissing the action on the grounds that [*2]plaintiff failed to appear for Examinations Under Oath (EUOs) and that plaintiff’s assignor Jason Dorvllier ^[FN1] failed to appear for Independent Medical Examinations (IMEs). Plaintiff opposes the cross motion.

BACKGROUND

This action arises out of services that plaintiff allegedly rendered to its two assignors, Selena Figueroa and Jason Dorvllier. On July 14, 2017, Selena Figueroa was allegedly injured in a motor vehicle accident (see plaintiff’s exhibit B in support of motion, Assignment of Benefits form and NF-3 forms). On May 1, 2017, Dorvllier was allegedly injured in a motor vehicle accident (see defendant’s exhibit AA in support of cross motion, NF-2 form). By a letter dated May 16, 2017, Ratsenberg & Associates, P.C. notified defendant that it represented “Jason Dorville” [sic] with respect to his claims for no-fault benefits for injuries resulting from the May 1, 2017 accident (id.). Plaintiff allegedly mailed to defendant six bills for services provided to Figueora from August 10 through September 26, 2017 and five bills for the services provided to Dorvllier from August 1 through September 27, 2017. The location where the services were allegedly provided to both assignors was 764 Elmont Road, Elmont, New York 11003 (see plaintiff’s exhibit B in support of motion, NF-3 forms).

Services provided to assignor Sandra Figueora

On August 10, 11, 17, 18, and 23, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $252.72 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 8/29/2017). Defendant allegedly received the bill for these dates of service (bill No.1) on September 8, 2017 (see defendant’s exhibit E in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On August 24, 25, 29, 31, 2017 and September 1, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $285.80 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/15/2017). Defendant allegedly received the bill for these dates of service (bill #2) on September 21, 2017 (see defendant’s exhibit F in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 5, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $57.16 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/15/2017). Defendant allegedly received a bill for this date of service (bill #3) on September 21, 2017 (see defendant’s exhibit G in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 7 and 8, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $114.32 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/22/2017). Defendant allegedly received a bill for these dates of service (bill #4) on September 27, 2017 (see defendant’s exhibit H in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 12, 14, 15, and 20, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $228.64 (see plaintiff’s exhibit B in support of motion, NF-3 [*3]form dated 9/22/2017). Defendant allegedly received a bill for these services (bill #5) on October 21, 2017 (see defendant’s exhibit I in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 21 and 26, 2017, plaintiff allegedly rendered medical services to Figueroa, billed in the amount of $114.32 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 10/2/2017). Defendant allegedly received a bill for these dates of service (bill #6) on October 7, 2017 (see defendant’s exhibit J in support of cross motion, affidavit of Douglas Taylor ¶ 12).

Services provided to assignor Jason Dorvllier

On August 1, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount $48.89 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 8/11/2017). Defendant allegedly received the bill for this date of service (bill #7) on August 21, 2017 (see defendant’s exhibit K in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On August 15, 16, and 23, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount of $146.67 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 8/29/2017). Defendant allegedly received the bill for these dates of service (bill #8) on September 8, 2017 (see defendant’s exhibit L in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On August 24 and 31, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount of $97.78 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/12/2017). Defendant allegedly received a bill for these dates of service (bill #9) on September 21, 2017 (see defendant’s exhibit M in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 13 and 18, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount of $97.78 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 9/28/2017). Defendant allegedly received a bill for these dates of service (bill #10) on October 2, 2017 (see defendant’s exhibit N in support of cross motion, affidavit of Douglas Taylor ¶ 12).

On September 25, 26, and 27, 2017, plaintiff allegedly rendered medical services to Dorvllier, billed in the amount of $146.67 (see plaintiff’s exhibit B in support of motion, NF-3 form dated 10/2/17). Defendant allegedly received a bill for these dates of services (bill #11) on October 7, 2017 (see defendant’s exhibit O in support of cross motion, affidavit of Douglas Taylor ¶ 12).

IME of Jason Dorvllier on September 13, 2017

By a letter dated August 15, 2017 sent to Dorvllier and his counsel, defendant’s IME scheduler, D & D Associates, allegedly scheduled an IME of Dorvllier on August 28, 2017 at 9:45 a.m. before Janice Salayka at an office in Queens Village, New York (defendant’s exhibit CC in support of cross motion, scheduling letter). By a letter dated August 21, 2017 sent to Dorvllier and his counsel, defendant’s IME scheduler, D & D Associates, allegedly rescheduled the IME on August 28, 2017 to September 13, 2017 at 1:00 p.m. before John Johnson Jr. at an office in Flushing, New York (defendant’s exhibit DD in support of cross motion, scheduling letter).

A letter dated September 13, 2017, purportedly signed by John E. Johnson, Jr., states,

“Please be advised that I was present to perform an Independent Medical Examination of JASON DORVILIER who failed to appear for the scheduled Independent Medical Examination . . . on September 13, 2017 at 9:00 a.m.

I swear that the above information is correct”

(defendant’s exhibit EE in support of cross motion). In an affidavit, John E. Johnson, Jr., a licensed chiropractor, averred that he was present at the office on September 13, 2017 at 1:00 p.m., and that “[a]t no time did JASON DORVILLIER appear on September 13, 2017, for his scheduled IME . . . .” (defendant’s exhibit HH, Johnson aff ¶¶ 4-5).^[FN2]

IME of Jason Dorvllier on September 27, 2017

By a letter dated September 15, 2017 sent to Dorvllier and his counsel, D & D Associates allegedly scheduled an IME of Dorvllier on September 27, 2017 at 8:30 a.m. before John Johnson, Jr. at an office in Flushing, New York (defendant’s exhibit FF in support of cross motion, scheduling letter). A letter dated September 27, 2017, purportedly signed by John E. Johnson, Jr., states,

“Please be advised that I was present to perform an Independent Medical Examination of JASON DORVILIER who failed to appear for the scheduled Independent Medical Examination . . . on September 27, 2017 at 8:30 a.m.

I swear that the above information is correct”

(defendant’s exhibit GG in support of cross motion). In an affidavit, John E. Johnson, Jr., a licensed chiropractor, averred that he was present at the office on September 27, 2017 at 8:30 a.m., and that “[a]t no time did JASON DORVILLIER appear on September 27, 2017, for his schedule IME . . . .” (defendant’s exhibit HH, Johnson aff ¶¶ 8-9).

EUO of plaintiff on October 30, 2017

By a letter dated October 4, 2017, allegedly mailed by first-class and certified mail to plaintiff, defendant’s counsel requested plaintiff to appear for an EUO on October 30, 2017 at the office of defendant’s counsel, located at 445 Broadhollow Road in Melville, New York (defendant’s exhibit P in support of cross motion, scheduling letter). However, by a letter dated October 30, 2017 emailed to defendant’s counsel, plaintiff’s counsel, which acknowledged the EUO scheduling letter, requested that the EUO be rescheduled to December 8, 2017 at 1 p.m., at the office of plaintiff’s counsel in Brooklyn, New York (defendant’s exhibit Q in support of cross motion).

Follow-up EUO of plaintiff on December 8, 2017

By a letter dated October 31, 2017, allegedly mailed by first-class mail to plaintiff’s counsel and by certified mail to plaintiff, defendant’s counsel scheduled a final date for the EUO on December 8, 2017 at 10:00 a.m., at the office of defendant’s counsel in Melville, New York (see defendant’s exhibit R in support of cross motion, scheduling letter). According to defendant’s counsel, plaintiff failed to appear at the EUO on December 8, 2017, and defendant’s counsel placed a statement on the record at 11:00 a.m. accordingly (see defendant’s exhibit S, affidavit of Brian E. Kaufman ¶¶ 5-7, tr 4-5).

Follow-up EUO of plaintiff on February 14, 2018

By a letter dated December 12, 2017, allegedly mailed by first-class mail to plaintiff’s [*4]counsel and to plaintiff, defendant’s counsel scheduled a final date for the EUO on February 14, 2018 at 11:00 a.m., at the office of defendant’s counsel in Melville, New York (see defendant’s exhibit T in support of cross motion, scheduling letter).

In response, by a letter dated December 18, 2017, plaintiff’s counsel contended that plaintiff “has fulfilled his obligations to cooperate with your demand for an EUO” (see defendant’s exhibit II in support of cross motion). According to its counsel, plaintiff previously appeared for an EUO on December 8, 2017 at the office of plaintiff’s counsel in Brooklyn, New York, notwithstanding that defendant’s counsel had requested that the EUO be held at the office of defendant’s counsel in Melville, New York. The letter stated, in relevant part, “in spite of our repeated communications that your offices in Suffolk County are not convenient for our client . . . your letter[ ] dated December 12, 2017[ ] again purport [sic] to schedule an EUO at your offices in Suffolk County” (id.).

By a letter dated December 20, 2017 addressed to plaintiff’s counsel, defendant’s counsel wrote, in pertinent part:

“As you were advised in our prior correspondence dated December 11, 2017, Nationwide had agreed to the time change for the examination under oath which you had requested. Additionally, as you had requested a Brooklyn location for the examination under oath, we were in the process of securing a court reporting agency in Brooklyn, New York. As you may recall, you refused to produce your client unless it was at your office.

Once again, you are reminded that the language of the Regulation states that the examination under oath ‘shall be held at a place and time reasonably convenient to the Applicant’ (emphasis added). Regulations do not permit your office to dictate the exact location where the examination under oath is to proceed. As you are further aware, your client maintains a service of process address in Bayport, New York. To this extent, we advised that we would secure a court reporting location in Suffolk County, New York. The services at issue were rendered in Elmont, New York. To this extent, Nationwide had advised that the examination under oath could proceed at a Nassau County or Queens County, New York location. We further advised that in the event you would like a Brooklyn location, which was your request, Nationwide would agree to hold the examination at a court reporting agency in Brooklyn, New York. However, you are insisting that the only way the examination under oath of your client could proceed is if it is at your office. Nationwide is of the position that this is an unacceptable arrangement. The regulation does not permit you to dictate the exact location and only requires the location to be ‘reasonably convenient’. . . .Your office is not central to mass transit and on prior occasions had no available parking for attorneys and the court reporter appearing at your office”

(defendant’s exhibit JJ in support of cross motion).

By a letter dated January 12, 2018, plaintiff’s counsel stated, “Your client’s opinion that a court reporting agency would have been ‘reasonably convenient’ to our client is not determinative. As we have written previously, you are not in a position to determine what locations are convenient to our client. Your office has conducted EUOs in our offices before, and no issues have ever arisen which would justify your refusal of our client’s reasonable request to conduct the EUO in our office” (defendant’s exhibit II in support of cross motion).

By a letter dated January 26, 2018, allegedly mailed by first-class mail to plaintiff’s counsel and to plaintiff, plaintiff was informed that defendant had new counsel, and that the location the EUO on February 14, 2018 at 11:00 a.m. had been changed to the office of defendant’s new counsel located at 105 Maxess Road in Melville, New York (see defendant’s exhibit U in support of cross motion, scheduling letter).

By a letter dated February 6, 2018 addressed to defendant’s counsel, plaintiff’s counsel acknowledged receipt of the scheduling letter and responded,

“However, as we stated in our December 18, 2017 [ ] letter addressed to your former law firm, a copy of which is enclosed, we have already produced our client for the same EUO on December 8, 2017. At that time, Nationwide or its representative failed to appear.

In light of the above, our client has fulfilled his obligations to cooperate with Nationwide’s demand for an EUO”

(defendant’s exhibit II in support of cross motion).

According to defendant’s new counsel, plaintiff failed to appear at the EUO on February 14, 2018, and defendant’s counsel placed a statement on the record accordingly at 11:50 a.m. (see defendant’s exhibit V, affidavit of Brian E. Kaufman ¶¶ 5-7, tr 4).

Follow-up EUO of plaintiff on March 15, 2018

By a letter dated February 15, 2018, allegedly mailed by first-class mail to plaintiff’s counsel and to plaintiff, defendant scheduled a final date for the EUO on March 15, 2018 at 11:00 a.m., at the office of defendant’s counsel in Melville, New York (see defendant’s exhibit W in support of cross motion, scheduling letter). According to defendant’s counsel, plaintiff failed to appear at the EUO on March 15, 2018, and defendant’s counsel placed a statement on the record accordingly at 12:00 p.m. (see defendant’s exhibit X in support of cross motion, affidavit of Brian E. Kaufman ¶¶ 5-7, tr 4).

Denial of Claim Forms

On October 27, 2017, defendant allegedly mailed to plaintiff a denial of claim form, denying the claims for bill #9 (for services rendered to Dorvllier on 8/24 and 8/31/17), on the ground that Dorvllier failed to appear for IMEs on September 13, 2017 and September 27, 2017 (see defendant’s exhibit M in support of cross motion, NF-10 form and affidavit of Douglas Taylor ¶ 12).

On March 28, 2018, defendant allegedly mailed denial of claim forms to plaintiff, denying all the services rendered to Figueroa, on the ground that plaintiff failed to appear for EUOs “scheduled for 10/30/2017, 12/08/2017, 02/14/2018 and 03/15/2018” (see defendant’s exhibits E-J in support of cross motion, NF-10 forms, Explanations of Review, and affidavits of Douglas Taylor ¶ 12).

On March 28, 2018, defendant also allegedly mailed plaintiff denial of claim forms, denying all bills for the services rendered to Dorvllier (except bill #9, which was previously denied), on the ground that plaintiff failed to appear for EUOs “scheduled for 10/30/2017, 12/08/2017, 02/14/2018 and 03/15/2018” (see defendant’s exhibits K-L, N-O in support of cross motion, NF-10 forms, Explanations of Review, and affidavits of Douglas Taylor ¶ 12).

The chart below summarizes the claims, EUOs, IMEs and denials at issue:

The Instant Action

On December 29, 2017, plaintiff commenced this action to recover unpaid first-party no-fault benefits for the services rendered to Figueroa and Dorvllier, plus interest and attorneys’ fees (see plaintiff’s exhibit A in support of motion, summons and complaint). Defendant allegedly answered the complaint on February 7, 2018 (see defendant’s exhibit B in support of cross motion, affidavit of service of answer).

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 argues that, with the exception of bill # 9, it is entitled to summary judgment dismissing the action on the ground that plaintiff failed to appear for EUOs. As to bill # 9, defendant contends those claims should be dismissed because Dorvllier failed to appear for IMEs.

A. EUO no-show defense

“[A]n appearance at an EUO is a condition precedent to the insurer’s liability on the policy” (GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50194[U] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2011]).

“To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims”

(Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 63 Misc 3d 152[A], 2019 NY Slip Op 50760[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal citations omitted]). Defendant must demonstrate “that its initial and follow-up requests for verification were timely mailed” (Urban Radiology, P.C. v Clarendon Natl. Ins. Co., 31 Misc 3d 132[A], 2011 NY Slip Op 50601[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

1. EUO on October 30, 2017

It appears that the EUO scheduled on October 30, 2017 was mutually rescheduled to December 8, 2017, and thus would not be deemed a failure to appear (Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In any event, defendant did not submit any evidence that plaintiff failed to appear that day.

2. EUO on December 8, 2017

Defendant established that the letter dated October 31, 2017, which scheduled the EUO on December 8, 2017, was mailed to plaintiff and its counsel, among others, on the same date that the letter was created and dated, by submitting the affidavit of Allan S. Hollander (defendant’s exhibit Y, affidavit of Alan S. Hollander ¶¶ 6, 18-26), who attested to the mailing in accordance with a standard office procedure (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Royal Med. Supply, Inc. v Nationwide Gen. Ins. Co., 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

As a threshold matter, the parties disagree as to whether the EUO should have been conducted at the office of defendant’s counsel in Melville, New York, or at the office of plaintiff’s counsel in Brooklyn, New York. Plaintiff asserts that, contrary to the contentions of defendant’s counsel in its December 20, 2017 letter, a Google map indicates that the area around the office of plaintiff’s counsel is, in fact, one block from mass transit (i.e., the D, N, and R subway trains) and across the street from a large parking lot (affirmation of Zachary Albright Whiting, Esq. in opposition to cross motion ¶ 41; Whiting affirmation in opposition, exhibit A).

11 NYCRR 65-3.5 (e) states, in relevant part, “All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant. . . .” First, the regulations do not grant the applicant (or its counsel) the right to designate the location of the EUO. Thus, so long as the insurer designated a location that is “reasonably convenient” to the applicant, then the EUO must go forward at the location that the insurer designated.

Unfortunately, there is a dearth of precedent on the issue of whether a designated EUO or IME location is “reasonably convenient.” The Appellate Term, Second Department has held, [*5]“there is nothing in the No-Fault regulations prohibiting an insurer from scheduling an EUO outside the county in which the applicant is located; it only need be held at a place and time reasonably convenient to the applicant” (Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90, 93 [App Term, 2d Dept, 2d, 11th & 13th Dists 2012]). One court found that an EUO scheduled “approximately 30 miles from plaintiff’s home” was “not an unreasonable distance” (Nordstrom v Nationwide Mut. Fire Ins. Co., 2014 NY Slip Op 32914[U], *6 [Sup Ct, Suffolk County 2014]).

Here, the court finds that the scheduling letter designated an EUO location that was, on its face, “reasonably convenient” under Nordstrom. As defendant’s counsel pointed out in the dueling correspondence between counsel for plaintiff and defendant, the NF-3 forms indicated that the place of service for all of the claims at issue was “764 Elmont Road, Elmont NY 11003” (see defendant’s exhibits E-O, NF-3 Forms). The court takes judicial notice that, according to Google Maps, the distance from the location where plaintiff provided services to the assignors to the location at 445 Broadhollow Road in Melville, New York for the EUO on December 8, 2017 is about 25 miles.

Plaintiff fails to raise a triable issue of fact as to whether the location in Melville, New York was not “reasonably convenient” to plaintiff. That plaintiff preferred a location that was more convenient than the location designated by the insurer does not render the designated location not “reasonably convenient.”

Defendant established that plaintiff failed to appear at the EUO in Melville, New York on December 8, 2017, by submission of a certified transcript from the EUO and the affidavit of Brian Kaufman, an attorney who was present at the EUO at the scheduled time and would have conducted the EUO if plaintiff had appeared (Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

3. Follow-up EUO on February 14, 2018

Defendant established that the letter dated December 12, 2017, which scheduled the plaintiff’s EUO on February 14, 2018, and the letter dated January 26, 2018, which changed the EUO location to the office of defendant’s new counsel, were mailed to plaintiff and its counsel, among others, on the same date that the letters were created and dated, by submitting the affidavit of Allan S. Hollander (Hollander aff ¶¶ 8-9, 18-26), who attested to the mailings in accordance with a standard office procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Royal Med. Supply, Inc., 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U]). Moreover, plaintiff’s counsel acknowledged receipt of these scheduling letters in its own letters dated December 18, 2017 and February 6, 2018, which again objected to the EUO location in Melville, New York and asserted that plaintiff had already fulfilled its obligations by purportedly appearing previously for an EUO at the office of plaintiff’s counsel.

As discussed above, the scheduling letters designated EUO locations that were, on their face, “reasonably convenient” (see Nordstrom, 2014 NY Slip Op 32914[U]). The court takes judicial notice that, according to Google Maps, the distance from the location where the plaintiff provided services to the assignors to the EUO location at the office of defendant’s new counsel at 105 Maxess Road in Melville, New York is about 25 miles as well. Plaintiff failed to raise a triable issue of fact as to whether the location was not “reasonably convenient.”

Defendant established that plaintiff’s assignor failed to appear at the EUO in Melville, New York on February 14, 2018, by submission of a certified transcript from the EUO and the affidavit of Brian Kaufman, an attorney who was present at the EUO at the scheduled time and would have conducted the EUO if plaintiff had appeared (Active Chiropractic, P.C., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]).

4. Follow-up EUO on March 15, 2018

Defendant established that the letter dated February 15, 2018, which scheduled the plaintiff’s EUO on March 15, 2018, was mailed to plaintiff and its counsel, among others, on the same date that the letter was created and dated, by submitting the affidavit of Allan S. Hollander (defendant’s exhibit Y, affidavit of Alan S. Hollander ¶¶ 11, 18-26), who attested to the mailing in accordance with a standard office procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Royal Med. Supply, Inc., 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U]). The record does not contain any letter from plaintiff’s counsel objecting to the location of the EUO scheduled on March 15, 2018.

Defendant established that plaintiff’s assignor failed to appear at the EUO in Melville, New York on March 15, 2018, by submission of a certified transcript from the EUO and the affidavit of Brian Kaufman, an attorney who was present at the EUO at the scheduled time and would have conducted the EUO if plaintiff had appeared (Active Chiropractic, P.C., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]).

In sum, defendant demonstrated that plaintiff failed to appear at EUOs scheduled on December 8, 2017, February 14, 2018, and March 15, 2018. Contrary to plaintiff’s argument, “there is no requirement to establish willfulness” (Goldstar Equip., Inc. v Mercury Cas. Co., 59 Misc 3d 138[A], 2018 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “The doctrine of willfulness . . . applies in the context of liability policies, and has no application in the no-fault context” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 561 [1st Dept 2011]).

5. Timeliness of the Denial of Claim Forms

“[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]).

In order to toll the 30-day deadline, an initial EUO request must be sent within 15 business days of receipt of the completed verification forms (see 11 NYCRR 65-3.5 [b]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and no later than 30 calendar days after receipt of the bill (Tsatskis v State Farm Fire & Cas. Co., 36 Misc 3d 129[A], 2012 NY Slip Op 51268[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Follow-up EUO requests must be sent within 10 calendar days of the missed EUO (see 11 NYCRR 65-3.6 [b]; see Avicenna Medical Arts, PLLC v Unitrin Advantage Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50382[U] [App Term 2d, 11th & 13th Dists 2015]).

“[O]nce defendant served plaintiff with requests for EUOs, the resulting toll of defendant’s time to pay or deny plaintiff’s claims applied to each claim form which was submitted by the same plaintiff for the same assignor subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs”

(ARCO Med. New York, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U], *3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Stracar Med. Servs. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 150[A], 2018 NY Slip Op 51759[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Here, to establish proof of mailing of the timely denial of claim forms, defendant submitted the affidavits of two claims specialists, Jaime Coe and Marie Green, and affidavits from Douglas Taylor, a Vice President employed by Auto Injury Solutions, Inc. (AIS), an authorized agent for receiving bills and/or correspondence for defendant, and the business records of AIS. Coe processed the claims pertaining to Figueroa’s accident on July 14, 2017; Green processed the claims pertaining to Dorvllier’s accident on May 1, 2017 (defendant’s exhibit C in support of cross motion, Coe aff ¶ 22; defendant’s exhibit D in support of cross motion, Green aff ¶ 26).

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 and citations omitted]). “‘The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'” (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]). “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], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [citation omitted]). “However, for the presumption to arise, 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]).

a. Bill # 7

As to bill #7 (for services rendered to Dorvllier on 8/1/2017), the court agrees with plaintiff that defendant failed to establish that the denial was timely mailed. According to defendant, bill #7 was received on August 21, 2017, and the denial of claim form was issued on March 28, 2018, more than 30 days later (see defendant’s exhibit K in support of cross motion, Taylor aff ¶ 12). The court agrees with plaintiff that defendant failed to establish that the 30-day period had been tolled. As discussed above, defendant established that the first EUO scheduling letter was mailed October 4, 2017 (defendant’s exhibit Y in support of cross motion, affirmation of Alan S. Hollander, Esq. ¶ 5), which was more than 30 days after bill #7 was allegedly received, and therefore the denial is untimely (Tsatskis, 36 Misc 3d 129[A], 2012 NY Slip Op 51268[U]).

Although a claims specialist indicated on a chart that delay letters were sent on August 25, 2017 and September 25, 2017 (Green aff ¶ 30), neither the claims specialist nor AIS’s Vice President stated that any verification letters or delay letters were sent on those dates, and [*6]defendant did not submit copies of those letters (Green aff ¶ 18; see defendant’s exhibit K in support of cross motion, Taylor aff ¶ 12). In any event, “it is well settled that an insurer’s delay letters, which request no verification, do not toll the statutory time period within which a claim must be paid or denied” (Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Summary judgment dismissing the claims as to bill #7 based on the EUO no-show defense is therefore denied.

b. Bills # 1-6

With respect to bills #1-6, defendant established mailing of the denial of claim forms on March 28, 2018. Based on the affidavit of defendant’s claims specialist Jaime Coe, who prepared the denial of claim forms for bills #1-6, defendant established that the denial of claim forms were created on March 28, 2018, and AIS was notified electronically to generate and mail the forms, in accordance with claims processing procedures (Coe aff ¶¶ 17-19, 28, 30, 32, 34, 36, 38). Based on the AIS business records and the detailed affidavits of the AIS Vice President, defendant established that AIS printed and mailed the denial of claim forms on March 28, 2018, or the next business day (defendant’s exhibits F-J in support of cross motion, Taylor affs ¶¶ 6, 12-13),^[FN3] in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Compas Med., P.C. v Nationwide Ins., 46 Misc 3d 131[A], 2014 NY Slip Op 51826[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Defendant established that the mailing of the denial of claim forms on March 28, 2018 was timely. As discussed above, defendant established that the initial EUO scheduling letter had been timely mailed on October 4, 2017, which was either within 15 days of, or actually prior to, receipt of plaintiff’s NF-3 forms with respect to bills #2-6 (see 11 NYCRR 65-3.5 [b]). The follow-up EUO scheduling letters had been timely mailed within 10 calendar days of each missed EUO date (11 NYCRR 65-3.6 [b]).

With respect to bill # 1, the initial EUO scheduling letter was not mailed within 15 business days of the receipt of the NF-3 Forms, but rather was mailed five days beyond the deadline. However, an insurer’s mailing of an initial verification request beyond the 15 business day deadline does not render the request invalid but rather reduces the 30 days for it to pay or deny the claim once it receives the verification (11 NYCRR 65-3.8 [l]; see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300, [2007]; Stracar Med. Servs., 61 Misc 3d 150[A], 2018 NY Slip Op 51759[U]).

As discussed above, the denial of claim forms were mailed within 13 days of the missed EUO scheduled on March 15, 2018. Even when the 30-day determination period to pay or deny the claims for bill # 1 is reduced by five days due to the late initial EUO scheduling letter for that bill, the denial of claim form was still therefore timely mailed as to bill # 1.

c. Bills #8 and #10-11

With respect to bills #8 and #10-11, defendant established mailing of the denial of claim forms on March 28, 2018. Based on the affidavit of defendant’s claims specialist Marie Green, who prepared the denial of claim forms for those bills, defendant established that the denial of claim forms were created on March 28, 2018, and AIS was notified electronically to generate and mail the forms, in accordance with claims processing procedures (Green aff ¶¶ 19-22, 30, 35, 37). Based on the AIS business records and the detailed affidavits of the AIS Vice President, defendant established that AIS printed and mailed the denial of claim forms on March 28, 2018, or the next business day (defendant’s exhibits L, N-O in support of cross motion, Taylor affs ¶¶ 6, 12-13),^[FN4] in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Compas Med., P.C., 46 Misc 3d 131[A], 2014 NY Slip Op 51826[U]).

Defendant established that the mailing of the denial of claim forms on March 28, 2018 was timely. As discussed above, defendant established that the initial EUO scheduling letter had been timely mailed on October 4, 2017, which was either within 15 days of, or actually prior to, receipt of plaintiff’s NF-3 forms with respect to bills # 10-11 (see 11 NYCRR 65-3.5 [b]). The follow-up EUO scheduling letters had been timely mailed within 10 calendar days of each missed EUO date (11 NYCRR 65-3.6 [b]).

Like bill # 1, the initial EUO scheduling letter was not mailed within 15 business days of receipt of bill #8, but rather was mailed five days beyond the deadline. Like bill # 1, even when the 30-day determination period to pay or deny the claims for bill #8 is reduced by five days due to the late initial EUO scheduling letter for those bills (see 11 NYCRR 65-3.8 [l]; see Nyack Hosp., 8 NY3d at 300; Stracar Med. Servs., 61 Misc 3d 150[A], 2018 NY Slip Op 51759[U]), the denial of claim form was still timely mailed as to bill # 8. Like bill #1, the denial of claim form was mailed within 13 days of the missed EUO scheduled on March 15, 2018.

6. Whether the denial of claim forms are defective

Notwithstanding the above, plaintiff argues that the denial of claim forms are fatally defective. Plaintiff contends that they erroneously stated the claims were denied because plaintiff failed to appear for EUOs “scheduled for 10/30/2017, 12/08/2017, 02/14/2018 and 03/15/2018,” insofar as defendant failed to establish on its cross motion for summary judgment that plaintiff failed to appear at the EUO on October 30, 2017, citing Unitrin Advantage Insurance Company v All of NY, Inc. (158 AD3d 449, 449-50 [1st Dept 2018]).

There is a split between the First and Second Judicial Departments on the issue of whether a denial of claim form must specifically set forth the dates of the missed EUOs. In Unitrin Advantage Insurance Company, the Appellate Division, First Department ruled that, because the NF-10 form stated a missed EUO only on July 29, 2013, the denial of claim form did not sufficiently apprise the provider as to a missed EUO on August 12, 2013 (158 AD3d at 449-450). And yet, the Appellate Term, Second Department has consistently held that a denial of [*7]claim form based upon the failure to appear for scheduled EUOs “need not set forth the dates of the EUOs for which the plaintiff had failed to appear” (Aries Chiropractic, P.C. v Ameriprise Ins. Co., 66 Misc 3d 130[A], 2019 NY Slip Op 52064[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; JYW Med., P.C. v IDS Prop. Ins. Co., 58 Misc 3d 134[A], 2017 NY Slip Op 51800[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Plaintiff contends that this court must follow the Appellate Division, First Department instead of the Appellate Term, Second Department, because the Appellate Division, Second Department has not pronounced a contrary rule (see Fortune Med., P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 32, 34 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

Even assuming, for the sake of argument, that the denial of claim form must set forth the dates of the missed EUOs, plaintiff’s reliance upon Unitrin Advantage Insurance Company is misplaced. Unlike that case, defendant here is not relying upon a missed EUO date that was not set forth in the denial of claim forms. There is no surprise to the provider as to which EUO dates were missed. Defendant’s failure to substantiate that an EUO date was missed does not retroactively render a denial of claim form defective. Defendant merely failed to prove what it had set out to prove as to that EUO date. Following plaintiff’s logic, if a denial of claim form sets forth four missed EUO dates, and an insurer is unable to prove an applicant’s failure to appear at one of the four dates, then the insurer would not be entitled to summary judgment dismissing the claims, even in the face of overwhelming proof that the applicant failed to appear at three other scheduled EUOs. That is an absurd result.

Therefore, defendant is entitled to summary judgment dismissing plaintiffs’ claims as to bills # 1-6, 8, and 10-11, based on plaintiff’s failure to appear for EUOs scheduled on December 8, 2017, February 14, 2018, and March 15, 2018 in Melville, New York.

B. IME no-show defense

“The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]). “Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs ‘when, and as often as, the [insurer] may reasonably require'” (id. at 722, citing 11 NYCRR 65-1.1).

To meet its prima facie burden, the defendant-insurer must establish that it properly mailed scheduling letters for the IMEs to plaintiff’s assignor; that the IME was timely scheduled; that the assignor failed to appear at the initial IME and the rescheduled follow-up IME; and that defendant timely denied the claim on that ground (Motionpro Physical Therapy v Hereford Ins. Co., 58 Misc 3d 159[A], 2018 NY Slip Op 50251[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Longevity Med. Supply, Inc. v Citiwide Auto Leasing, 58 Misc 3d 142[A], 2017 NY Slip Op 51880[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Choice Health Chiropractic, P.C. v American Tr. Ins. Co., 58 Misc 3d 155[A], 2018 NY Slip Op 50185[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).

1. Proof of Mailing of IME scheduling letters

Here, to establish the timely and proper mailing of the IME scheduling letters, defendant submitted the affidavit of Jean Rony Pressoir, a Coordinating Supervisor for D & D Associates, which purportedly mailed the IME scheduling letters (see defendant’s exhibit Z in support of cross motion). However, the court agrees with plaintiff that the affidavit is insufficient to establish mailing.

To the extent that Pressoir claimed to have personal knowledge of the actual mailing of [*8]the IME scheduling letters, her affidavit lacked any factual basis to support an inference of personal knowledge of actual mailing (see A.B. Med. Services PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]). Pressoir did not claim that she had first-hand knowledge of the mailing either because she herself had mailed the IME scheduling letters or because she had seen someone else mailing the IME scheduling letters (see e.g. Lenox Hill Radiology, PC v Tri-State Consumer Ins. Co., 31 Misc 3d 13, 14 [App Term, 1st Dept 2010]). Indeed, her statements about the mailing of each notice are written in the passive voice (see Pressoir aff ¶¶ 11-12).

To the extent that proof of mailing is based on a standard office practice or procedure, Pressoir established that she had knowledge of the office procedure, but her description of the office procedure did not adequately establish when the IME scheduling letters would have been mailed in accordance with the procedure. To the extent that Pressoir’s knowledge of the dates of mailing of the IME scheduling letters is based on a review of electronic business records (see Pressoir aff ¶ 4),

“it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Accordingly, ‘[e]vidence of the contents of business records is admissible only where the records themselves are introduced.’ ‘Without their introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay'”

(Bank of New York Mellon v Gordon, 171 AD3d 197, 205-06 [2d Dept 2019] [internal citations omitted]). Here, defendant did not submit any of the electronic business records that Pressoir purportedly reviewed.

2. Proof of the plaintiff’s assignor’s failure to appear at IMEs

Even assuming that defendant established proof of mailing of the IME scheduling letters, defendant did not establish that Dorvllier failed to appear at the scheduled IMEs. The letters from John Johnson, Jr., a chiropractor, are insufficient evidence to establish that Dorvllier failed to appear because they are not properly sworn (see Saunders v Mian, 176 AD3d 994, 995 [2d Dept 2019]; CPLR 2106). Moreover, the letter dated September 13, 2017 incorrectly stated that the time of the IME was at 9:00 a.m., whereas the IME had been scheduled for 1 p.m. (compare defendant’s exhibit EE in support of cross motion with defendant’s exhibit DD in support of cross motion). Neither does Johnson’s affidavit constitute sufficient evidence of the failure to appear. To the extent that Johnson’s knowledge is based “from a review of the office’s computerized system for the dates of September 13, 2017 and September 27, 2018 [sic]” (defendant’s exhibit HH in support of cross motion, Johnson aff ¶ 2), defendant did not submit the business records that Johnson reviewed (see Bank of New York Mellon, 171 AD3d at 205-06).

The affidavit also states, “At no time did JASON DORVILIER appear” on September 13 and 27, 2017 for his scheduled IMEs (Johnson aff ¶¶ 5, 9). However, the court agrees with plaintiff’s counsel that the affidavit, which purports to be based on personal knowledge, is conclusory (see Bright Med. Supply Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). The affidavit does not state that no one appeared at all before Johnson during the times when Dorvllier’s IMEs were scheduled. Because Johnson swore that he was present in the office at the time each IME was to be conducted, he would have known, by the use of his own senses, [*9]whether a person appeared in front of him at the time the IMEs were scheduled. However, the affidavit is conclusory as to the basis for Johnson’s knowledge of the identity of Jason Dorvllier. There is nothing in the record to indicate that Johnson had an existing relationship with Dorvllier or had previously met Dorvllier so as to be able to recognize him. If Johnson had not previously met Dorvllier, then his knowledge of Dorvllier’s identity would not be based on personal knowledge.

3. Timeliness of the Denial of Claim Form

With respect to bill #9, defendant established proof of mailing of the denial of claim form on October 27, 2017. Based on the affidavit of defendant’s claims specialist Marie Green, who prepared the denial of claim form for bill #9, defendant established that the denial of claim form was created on October 27, 2017, and AIS was notified electronically to generate and mail the form, in accordance with claims processing procedures (see defendant’s exhibit D in support of cross motion, Green aff ¶¶ 19-22, 32). Based on the AIS business records and the detailed affidavit of the AIS Vice President, defendant established that AIS printed and mailed the denial of claim form on October 27, 2017, or the next business day (defendant’s exhibit M in support of cross motion, Taylor aff ¶¶ 6, 12-13), in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Compas Med., P.C., 46 Misc 3d 131[A], 2014 NY Slip Op 51826[U]).

According to defendant, it received bill #9 on September 21, 2017,^[FN5] but the denial of claim was mailed on October 27, 2017, more than 30 days later. The issue presented is whether the 30-day determination was tolled.

Defendant failed to establish that the 30-day determination period was tolled by the request for IMEs. First, as discussed above, defendant failed to establish when the IME scheduling letters had been mailed. Second, the IME scheduling letters were purportedly mailed to plaintiff’s assignor Dorvllier before defendant received bill # 9. Assuming, for the sake of argument, that the IME scheduling letters were properly mailed, the issue presented is whether a pre-claim IME request tolled the 30-day period to pay or deny a claim. The Appellate Term, Second Department has issued conflicting decisions on this issue.

In Vitality Chiropractic, P.C. v Kemper Insurance Company (14 Misc 3d 94, 96 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), the Appellate Term held, “the tolling provisions of the insurance regulations do not apply” to pre-claim verification requests. There, the defendant had scheduled IMEs of the plaintiff’s assignor by letters dated May 22 and 23, 2002, which pre-dated the receipt of the plaintiff’s claim on May 30, 2002. The Appellate Term ruled that the defendant’s denial of the claim on July 11, 2002 (which was more than 30 days after the receipt of the plaintiff’s bill) was untimely (id. at 96).

In Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc. (56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), the Appellate Term rejected the argument that pre-claim EUO scheduling letters did not toll the 30-day period for an insurer to pay or deny a claim. There, the defendant mailed a scheduling letter to plaintiff’s assignor on January 4, 2011, and the defendant received the plaintiff’s bill on January 21, 2011 (id. at *1). The Appellate Term ruled, “defendant’s time to pay or deny these claims, which [*10]defendant received on January 21, 2011, was tolled” (id.).

Vitality Chiropractic, P.C. and Doctor Goldshteyn Chiropractic, P.C. cannot be reconciled. The logic of Vitality Chiropractic, P.C. has straightforward appeal: the toll is based on outstanding verification requests made pursuant to 11 NYCRR 65-3.5 (see 11 NYCRR 65-3.8 [a][1], [b][3]; see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]). Given that the Appellate Term, Second Department has held that 11 NYCRR 65-3.5 does not apply to pre-claim requests at all, it logically follows that pre-claim requests cannot toll the 30-day period. Vitality Chiropractic, P.C. relied upon the Appellate Term’s prior decision in Stephen Fogel Psychological, P.C. v Progressive Casualty Insurance Company, which held that “the detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of the claim form” (7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]). Citing Stephen Fogel Psychological, P.C., lower courts therefore concluded that a denial based on a pre-claim IME was proper so long as the insurer mailed the denial within 30 days of its receipt of the claim (see e.g. Lender Med. Supply, Inc. v Hartford Ins. Co., 35 Misc 3d 1226[A], 2012 NY Slip Op 50903[U] [Civ Ct, Kings County 2012]; Prime Psychological Servs., PC v ELRAC, Inc., 25 Misc 3d 1244[A], 2009 NY Slip Op 52579[U] [Civ Ct, Richmond County 2009]; cf. All-Boro Medical Supplies, Inc. v Progressive Northeastern Ins. Co., 20 Misc 3d 554 [Civ Ct, Kings County 2008] [if defendant insisted upon conducting a pre-claim EUO before deciding whether to pay or deny the claim, it had no choice but to reschedule the EUO to a date within 30 calendar days from the date it received the claim]).

By comparison, Doctor Goldshteyn Chiropractic, P.C. did not explain why it ruled that a pre-claim EUO request tolled the defendant’s time to pay or deny the plaintiff’s claim. The court cited ARCO Medical NY, P.C. v Lancer Insurance Company (34 Misc 3d 134[A], 2011 NY Slip Op 52382[U], supra), which had different facts. In ARCO Medical NY, P.C., the EUO requests were sent within 15 days after the defendant received the plaintiff’s claims (id. at *2). Also, it is not clear that the plaintiff in Doctor Goldshteyn Chiropractic, P.C. had actually argued that pre-claim requests could toll the 30-day period. Rather, the plaintiff apparently argued that there was no toll because an issue of fact arose as to whether the scheduling letters were mailed, which the court rejected (Doctor Goldshteyn Chiropractic, P.C., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U]). No reported cases have followed Doctor Goldshteyn Chiropractic, P.C.

In deciding which case this court should follow, the Appellate Division, Second Department’s decision in Sound Shore Medical Center v New York Central Mutual Fire Insurance Company (106 AD3d 157 [2d Dept 2013]) is instructive. There, the defendant-insurer received a UB-04 form from the plaintiff-hospital, which prompted the insurer to send two “requests for verification” to the hospital (id. at 159). Thereafter, the insurer received a NF-5 form from the hospital, which prompted the insurer to send another verification request, but the insurer neither denied the claim nor sent another verification request (id. at 160).

The insurer argued that the hospital’s claim was premature because the hospital did not respond either to the insurer’s initial verification request following receipt of the UB-04 form, or to the verification request following receipt of the NF-5 form. However, the hospital argued that it was entitled to summary judgment in its favor because the UB-04 form was not the functional equivalent of a NF-5 form. Because the insurer did not send a follow-up verification request after sending an initial verification request when it received the NF-5 form, the hospital argued that the insurer’s time to pay the claim had not been tolled.

The Appellate Division agreed with the hospital, and it held that the hospital’s submission of a UB-04 form was not the functional equivalent of a NF-5 form, which would have triggered the 30-day period for the insurer to pay or deny a claim, or to seek verification of the claim (id. at 162, 163). The Appellate Division also ruled, “a request for verification that precedes a no-fault insurer’s receipt of the prescribed N-F 5 claim form does not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny such a claim” (id. at 164 [emphasis supplied]).

Given all the above, this court therefore follows Vitality Chiropractic, P.C. Although Doctor Goldshteyn Chiropractic, P.C. is a more recent decision, Vitality Chiropractic, P.C. is based on the Appellate Term’s rulings in Stephen Fogel Psychological, P.C., which was affirmed by the Appellate Division, Second Department (7 Misc 3d 18 at 21, affd 35 AD3d 72). Additionally, Vitality Chiropractic, P.C. is consistent with the Appellate Division’s ruling in Sound Shore Medical Center, that pre-claim verification requests involving a hospital claim did not toll the 30-day period.

Notwithstanding the above, defendant did establish that the 30-day period was tolled as to bill # 9 due to the EUO scheduling letter mailed on October 4, 2017, scheduling an EUO on October 30, 2017, which was mailed within 15 business days of defendant’s receipt of bill # 9 on September 21, 2017. Thus, at the time when defendant mailed the denial of claim form on October 27, 2017, a toll was still in effect.

However, in light of the court’s determination that defendant neither proved mailing of the IME scheduling letters nor Dorvllier’s failure to appear at the IMEs, summary judgment dismissing the claims for bill #9 (for services rendered to Dorvllier on 8/24 and 8/31/17) based on an IME no-show defense is denied.

II. Plaintiff’s Motion for Summary Judgment

“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, plaintiff submitted the affidavit of a billing representative, Yana Mironovich, to establish that it timely mailed all the bills at issue to defendant in accordance with a standard office practice or procedure (see plaintiff’s exhibit C in support of motion, Mironovich aff). However, this affidavit is insufficient. According to Mironovich, employees of Billing Services of NY, Inc. created and mailed the bills to defendant (see Mironovich aff ¶¶ 21-32). However, Mironovich does not state that she is either the owner or an employee of Billing Services of NY, Inc. At best, she states, “I am the billing representative of plaintiff” and that the procedures were “done in the ordinary course of business of my company” (see id. ¶¶ 1, 13). Thus, the affidavit [*11]did not adequately establish that Mironovich has any knowledge of the office practice or procedure of Billing Services of NY, Inc. (see Healthy Way Acupuncture, P.C. v Farmington Cas. Co., 49 Misc 3d 141[A], 2015 NY Slip Op 51595[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Nevertheless, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s cross motion papers, which admitted receipt of plaintiff’s bills (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]).

As discussed above, the court granted defendant’s cross motion for summary judgment in part, to the extent of dismissing claims for bills #1-6, 8, and 10-11, based on the failure of plaintiff to appear for EUOs scheduled on December 8, 2017, February 14, 2018, and March 15, 2018. Thus, the only remaining claims at issue in plaintiff’s motion for summary judgment in its favor are bills # 7 and #9.

As discussed above, the denial of claim form as to bill #7 was untimely, because it was purportedly mailed more than 30 days after bill #7 was allegedly received. Therefore, plaintiff is entitled to summary judgment in its favor against defendant as to bill # 7, in the amount of $48.89.

As to bill # 9, as discussed above, defendant failed to establish that it issued a timely denial and the evidence was insufficient to establish that plaintiff’s assignor Dorvllier failed to appear for IMEs scheduled on September 13 and 27, 2017. Therefore, plaintiff is entitled to summary judgment in its favor as to bill # 9, in the amount of $97.78.

Plaintiff is also entitled to prejudgment interest on bills #7 and # 9 at the rate of 2% per month from December 29, 2017, the date of the commencement of the action, because plaintiff did not commence a lawsuit within 30 days after those bills became overdue (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 205 [2d Dept 2009]).

Plaintiff is also entitled to attorneys’ fees (11 NYCRR § 65-4.6 [d]). The award of attorneys’ fees is calculated as 20% of the aggregate amount of bills #7 and #9, i.e. $146.67 ($48.89+$97.78) plus interest, subject to a maximum of $1,360 (id.; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]).

CONCLUSION

Upon the foregoing cited papers, it is hereby

ORDERED that plaintiff’s motion for summary judgment is GRANTED IN PART TO THE EXTENT that plaintiff is awarded summary judgment in its favor against defendant on a claim for a date of service on August 1, 2017 and on a claim for dates of service on August 24 and 31, 2017, for services rendered to Jason Dorvllier, and the Clerk of the Court is directed to enter judgment in plaintiff’s favor against defendant Nationwide Insurance Company of New York in the amount of $146.67, with prejudgment interest at the rate of 2% per month from December 29, 2017, plus attorneys’ fees to be calculated by the Clerk, with costs and disbursements to plaintiff as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further

ORDERED that the plaintiff’s motion for summary judgment is otherwise denied; and it is further

ORDERED that defendant’s cross motion for summary judgment is GRANTED IN [*12]PART TO THE EXTENT that so much of the complaint that seeks first-party no-fault benefits for claims for the dates of service on August 10, 11, 17, 18, 23, 24, 25, 29, 31, 2017 and September 1, 5, 7, 8, 12, 14, 15, 20, 21, and 26, 2017 for services rendered to Selena Figueroa, and claims for the dates of service on August 15, 16, and 23, 2017 and on September 13, 18, 25, 26, and 27, 2017 for services rendered to Jason Dorvllier, are severed and dismissed; and it is further

ORDERED that defendant’s cross motion for summary judgment dismissing the complaint is otherwise denied; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly

This constitutes the decision and order of the court.

Dated: June 1, 2020
New York, New York
ENTER:
_______________/s_________________
RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1:The record contains several spellings of this assignor’s last name. On the NF-2 form and Assignment of Benefits form, the assignor printed his last name by hand as “Dorvilier” (see defendant’s exhibit AA in support of cross motion; see plaintiff’s exhibit B in support of motion). This assignor’s counsel referred to him as “Jason Dorville” (see defendant’s exhibit AA in support of cross motion). The NF-3 forms and summons and complaint spell his name as “Dorvllier” (see plaintiff’s exhibits A-B in support of motion).

Footnote 2:Defendant submitted two affidavits from John Johnson, Jr. under exhibit HH. One was sworn to on October 10, 2018, and the other was sworn to on October 12, 2018. Otherwise, both appear substantively identical.

Footnote 3:According to AIS business records, the denial of claims forms were sent around 2 p.m. on March 28, 2018 (see defendant’s exhibits F-J in support of cross motion). According to Taylor, the letters to be mailed were picked up each business day by the United States Postal Service (see id., Taylor affs ¶ 13). Assuming, for the sake of argument, that the letters were not picked up on March 28, 2018, they would have therefore been picked up the next business day. Whether the letters were mailed on March 28 or March 29, 2018 is not a material issue of fact, given that the last EUO was scheduled on March 15, 2018.

Footnote 4:According to AIS business records, the denial of claims forms were sent around 2 p.m. on March 28, 2018 (see defendant’s exhibits L, N-O in support of cross motion). According to Taylor, the letters to be mailed were picked up each business day by the United States Postal Service (see id., Taylor affs ¶ 13). Assuming, for the sake of argument, that the letters were not picked up on March 28, 2018, they would have therefore been picked up the next business day. Whether the letters were mailed on March 28 or March 29, 2018 is not a material issue of fact, given that the last EUO was scheduled on March 15, 2018.

Footnote 5:Plaintiff did not dispute nor object to defendant’s proof that the bill #9 was received on September 21, 2017.

Index No. 161280/2018

The Law Office of Daniel J. Tucker, Brooklyn, NY (R. Jacob Lamar of counsel), for plaintiff.

The Rybak Law Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Acupuncture Now, P.C., Healthway Medical Care, P.C., Jules Francois Parisien, M.D., and SB Chiropractic, P.C.

This motion concerns plaintiff’s potential obligation to pay no-fault insurance benefits. Defendant Elvina Bookman was a passenger in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by plaintiff American Transit Insurance Company. Bookman applied for no-fault benefits, which American Transit denied.

In this action, American Transit seeks a declaratory judgment that it is not required to pay no-fault benefits to Bookman or to the other defendants (medical providers acting as Bookman’s assignees). American Transit now moves for summary judgment on this claim under CPLR 3212 as against those defendants who have appeared in the action, and moves for default judgment under CPLR 3215 as against the remaining, non-appearing defendants. The motion is denied.

A no-fault insurer seeking a declaration of no coverage due to asserted violations of the terms of the policy must first demonstrate that it complied with each of the procedural and timeliness requirements of 11 NYCRR § 65-3.5, governing the handling of no-fault claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) American Transit has not satisfied that requirement here.

Section 65-3.5 provides among other things that once an insurer receives a claim for benefits, the insurer has 10 business days to provide the claimant with the forms that it requires for verification of the claim. (See 11 NYCRR § 65-3.5 [a].) Once the insurer receives the completed verification forms, it then has 15 business days to request further verification, such as an examination under oath. (See id. § 65-3.5 [b].)

Here, the record reflects that American Transit received an NF-2 benefits application form from Bookman on August 2, 2018. And the record reflects that American Transit requested on August 28, 2018, that Bookman appear for an examination under oath. Yet nothing in the record (whether in the form of an affidavit or documentary evidence) might establish when American Transit sent the necessary verification forms to Bookman, or when American Transit received the completed verification forms back from Bookman. Absent that information, American Transit has failed to satisfy all the elements of its claim for declaratory relief.

American Transit thus is not entitled to summary judgment under CPLR 3212 against the answering defendants. Similarly, to obtain a default judgment against the non-appearing defendants American Transit is required to provide proof (such as an affidavit) of all the facts necessary to establish its prima facie entitlement to relief. (See CPLR 3215 [f]; Matter of Dyno v Rose, 260 AD2d 694, 698 [3d Dept 1999].) American Transit has not met that requirement here, and thus is not entitled to default judgment, either.

Accordingly, it is hereby

ORDERED that the branch of American Transit’s motion seeking summary judgment under CPLR 3212 against the answering defendants is denied; and it is further

ORDERED that the branch of American Transit’s motion seeking default judgment under CPLR 3215 against the non-appearing defendants is denied.

Date: 5/27/20

CV-702750/18

Counsel for Plaintiff: Law Offices of Olga Skyut

Counsel for Defendant: McDonnell, Adels & Klestzick, PLLC

In this action for the payment of no-fault benefits, defendant seeks an order pursuant to 22 NYCRR 2018.17 striking the Notice of Trial on grounds that, inter alia, plaintiff did not provide the information requested in its Demand for Verified Interrogatories (interrogatories) and failed to appear for a deposition. Defendant also seeks an order striking the complaint for failure to provide the discovery requested and/or an order compelling plaintiff to provide the foregoing discovery. Plaintiff opposes the instant motion asserting that it has responded to the foregoing demand.

For the reasons that follow hereinafter, defendant’s motion is granted, in part.

The instant action is for the payment of medical benefits pursuant to Article 51 of the New York State Insurance Law. It is alleged that secondary to a motor vehicle accident on August 26, 2017, plaintiff provided medical services to MARTIN PATERSON, who assigned his no-fault benefits under the Insurance Law and defendant’s policy to plaintiff. Plaintiff, upon presenting proof of the foregoing services, requested payment totaling $4,000. Defendant has failed to pay the foregoing amount and, thus, plaintiff seeks a judgment in the amount of $4,000.

Motion to Strike the Notice of Trial

Defendant’s motion seeking to strike the Notice of Trial is granted insofar as the instant motion is timely and the Notice of Trial misrepresents that discovery is complete.

22 NYCRR 208.17, inter alia, promulgates the circumstances under which the Civil Court can order vacatur of a Notice of Trial. 22 NYCRR 208.17(c), states that

[w]ithin 20 days after service of such notice of trial, any party may move to strike the action from the calendar or to keep it from being placed thereon. The affidavit in support of the application must specify the reason the action is not entitled to be on the calendar.

Additionally, 22 NYCRR 208.17(d) states that

[a]fter any action has been placed on the trial calendar pursuant to this rule, no pretrial examination or other preliminary proceedings may be had, except that if some unusual or unanticipated conditions subsequently develop which make it necessary that further pretrial examination or further preliminary proceedings be had, and if without them the moving party would be unduly prejudiced, the court may make an order granting permission to conduct such examination or proceedings and prescribing the time therefor. Such an order may be made only upon motion on notice showing in detail, by affidavit, the facts claimed to entitle the moving party to relief under this subdivision.

A review of the foregoing language evinces that it is virtually identical to the rule applicable to cases venued in the Supreme Court and promulgated by 22 NYCRR 202.21. Indeed, when discussing the substance of 202.17, the Appellate Term routinely refers to and applies Appellate Division case law related to 22 NYCRR 202.21. For example, in Tahir Med., P.C. v Cent. Mut. Fire Ins. Co. (42 Misc 3d 135[A][App Term 2014]), the court relied on Nielsen v New York State Dormitory Auth. (84 AD3d 519 [1st Dept 2011]), a case venued in Supreme Court to hold that “[d]efendant’s timely motion to strike the action from the trial calendar should have been granted, since plaintiff’s August 15, 2011 certificate of readiness falsely stated that there were no outstanding discovery requests” (Tahir Med., P.C. at *1; see Allstate Social Work and Psychological Services, P.L.L.C. v Autoone Ins. Co., 34 Misc 3d 128[A], *1 [App Term 2011] [Court relied on, inter alia, Fausto v City of New York (17 AD3d 520 [2d Dept 2005]), which discussed the need to timely move to vacate a Note of Issue.]). Similarly, in Galdi v Kaliya, (32 Misc 3d 128[A] [App Term 2011]), relying on (Schissler v Brookdale Hosp. Ctr. (289 AD2d 469, 470 [2d Dept 2001]), a case venued in the Supreme Court, the court held that “[t]he unanticipated death of defendants’ orthopedist after examining plaintiff constituted an unusual and unanticipated condition which warranted a further physical examination of plaintiff after the action had been placed on the trial calendar” (Galdi at *1 [internal quotation marks omitted]). Thus, because there is substantially more case law discussing 22 NYCRR 202.21 than 22 NYCRR 208.17 and for purposes of vacating a Note of Issue/Notice of Trial the law is the same, hereinafter, this Court shall discuss the law governing 202.21 and shall apply the same to the instant motion.

Pursuant to 22 NYCRR 202.21(e), the court can vacate a note of issue when it is based on a Certificate of Readiness which contains erroneous facts (Ortiz v Arias, 285 AD2d 390, 390 [1st Dept 2001]). Specifically, a note of issue premised upon a Certificate of Readiness which asserts that all discovery is complete when, in fact, it is not, should be vacated (Savino v Lewittes, 160 AD2d 176, 178 [1st Dept 1990]; Spilky v TRW, Inc., 225 AD2d 539, 540 [2d Dept 1996]; Levy v Schaefer, 160 AD2d 1182, 1183 [3d Dept 1990]). Additionally, a motion pursuant to 22 NYCRR 202.21(e) must be made within 20 days of the note’s service upon the party seeking to vacate it (22 NYCRR 202.21[e]; Tirado v Miller, 75 AD3d 153, 157 [2d Dept 2010]). A belated motion should be denied (Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794 [2d Dept 2006]; Rodriguez v Sau Wo Lau, 298 AD2d 376, 377 [2d Dept 2002]), and a defendant to whom discovery is owed then waives the right to such discovery (Manzo v City of New York, 62 AD3d 964, 965 [2d Dept 2009] [“The defendants waived their right to conduct an additional physical examination of the injured plaintiff when they failed to move to vacate the note of issue within [*2]20 days after service of the note of issue and the certificate of readiness.”]; James v New York City Transit Authority, 294 AD2d 471, 472 [2d Dept 2002]). Notably, when the party seeking to vacate a note of issue because discovery remains outstanding has had ample time to procure the discovery sought prior to the filing of the note, and made no effort to do so, the failure to procure discovery is deemed solely the fault of the party seeking vacatur, and the court, in the exercise of its discretion, can deny a motion to vacate the note (Torres v New York City Transit Authority, 192 AD2d 400, 400 [1st Dept 1993]). Under the foregoing circumstances, it is not an abuse of discretion to allow the note of issue to stand while concomitantly ordering that discovery be conducted to completion (id.).

As noted above, generally, a defendant to whom discovery is owed waives the right to such discovery when a plaintiff files his or her note of issue and the defendant fails to timely move to vacate it (Manzo at 965 [“The defendants waived their right to conduct an additional physical examination of the injured plaintiff when they failed to move to vacate the note of issue within 20 days after service of the note of issue and the certificate of readiness.”]; James at 472). However, “[w]here unusual or unanticipated circumstances develop subsequent to the filing of a note of issue, which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by an affidavit, may grant permission to conduct such necessary proceedings (22 NYCRR 202.21[d]). Thus, when it is demonstrated that unusual and unanticipated circumstances merit post-note discovery, the court has the discretion to order the same (Schroeder v IESI NY Corp., 24 AD3d 180, 181 [1st Dept 2005] [“The other method of obtaining post-note of issue disclosure is found in 22 NYCRR 202.21 (d). This section permits the court to authorize additional discovery ‘[w]here unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness’ that would otherwise cause ‘substantial prejudice.’ Because this section requires both unusual and unanticipated circumstances and substantial prejudice, it has been described as the ‘more stringent standard.'”]; Audiovox Corp. v Benyamini, 265 AD2d 135, 140 [2d Dept 2000] [“Applying the above rules to the facts of this case, it is undisputed that the defendant did not move to vacate the note of issue within 20 days of its filing. Accordingly, the defendant was required to demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness which required additional discovery to prevent substantial prejudice.”]). The foregoing is equally applicable to non-party discovery and can form the basis for the grant of a motion seeking to quash a subpoena on grounds that post-note of issue discovery is unwarranted (Maron v Magnetic Const. Group Corp., 128 AD3d 426, 427 [1st Dept 2015]; White v Bronx Lebanon Hosp. Ctr., 240 AD2d 212, 212 [1st Dept 1997]).

Notably, the mere need for further discovery (Price v Bloomingdale’s, a Div. of Federated Dept. Stores, Inc., 166 AD2d 151, 152 [1st Dept 1990] [“Notwithstanding that the physical examination sought by defendant might enhance the prospect of settlement without prejudice to plaintiff, we think it clear that such considerations do not fall within the ‘unusual and unanticipated circumstances’ rubric of the rule permitting post-note of issue pretrial proceeding.”]), or the absence of prejudice if post-note discovery is authorized, is not an unusual or unanticipated circumstance warranting further post-note discovery (Price v Brody, 7 AD2d 204, 205 [1st Dept 1959] [“In the case at bar, no claim of special, unusual or extraordinary circumstances was made by the defendant nor was there any such finding at Special Term. [*3]Absent any special, unusual or extraordinary circumstances, it was an inappropriate exercise of discretion to deny plaintiffs’ motion to vacate defendant’s notice of examination before trial. The oft-enunciated policy of encouraging pre-trial disclosure in most cases in and of itself is not sufficient to excuse a party’s failure to comply with the Special Rule Respecting Calendar Practice. The further fact, as stated here, that neither party will be prejudiced by allowing the examination, should not be a decisive factor in permitting departure from the general rule. Present special, unusual or extraordinary circumstances, spelled out factually, the court has discretion to depart from this interpretation of the rule. In all cases involving this rule, however, the judicial discretion to be exercised should be discreet, circumspect, prudent and cautious, and no party should be relieved of compliance with its provisions unless it clearly appears that the interests of justice require it” (internal citations omitted)]).

In support of the instant motion, which as per the affidavit of service was served upon plaintiff on September 4, 2018, defendant submits several discovery demands served upon plaintiff, only two of which are relevant to this decision. First, defendant submits its interrogatories dated May 23, 2018. Notably, the interrogatories contain 13 questions. Second, defendant submits a Notice of Examination Before Trial (demand for deposition), also dated May 23, 2018, which sought a deposition on July 9, 2018.

Defendant also submits plaintiff’s response to defendant’s interrogatories, which is dated May 29, 2018. Notably, the foregoing document is responsive to 42 questions. Defendant also submits Plaintiff’s Objection to Defendant’s Demand for Deposition, wherein plaintiff objects to the deposition sought. Significantly, plaintiff interposes two objections, namely that it is not required to attend a deposition until defendant establishes a timely denial of the claims made and that no depositions are required until defendant establishes that the information sought cannot be obtained via less burdensome discovery.

Defendant submits a letter, dated June 26, 2018, wherein it apprises plaintiff that its respons to defendant’s interrogatories are insufficient inasmuch as they appear to be responsive to other unrelated interrogatories and in any event are unverified

Lastly, defendant submits plaintiff’s Notice of Trial, dated August 6, 2018, wherein it is alleged that all discovery is complete.

In opposition to the instant motion, plaintiff submits a response to defendant’s interrogatories dated March 4, 2019. The response addresses 13 questions. However, plaintiff objects to five of the questions and articulates why ^[FN1] .

Defendant’s motion seeking to strike the Notice of Trial is granted. As noted above, 22 NYCRR 208.17, inter alia, promulgates the circumstances under which the court can order vacataur of a Notice of Trial. Such section is, virtually identical to the rule applicable to cases venued in the Supreme Court and promulgated by 22 NYCRR 202.21. As such when discussing the substance of 202.17, the Appellate Term routinely refers to Appellate Division case law [*4]related to 22 NYCRR 202.21 (Tahir Med., P.C. at *1; P.L.L.C. at *1; Galdi at *1). A note of issue premised upon a Certificate of Readiness which asserts that all discovery is complete when, in fact, it is not, should be vacated (Savino at 178; Spilky at 540; Levy at 1183). Additionally, a motion pursuant to 22 NYCRR 202.21(e) (or as relevant here, 22 NYCRR 208.17[c]) must be made within 20 days of the note’s service upon the party seeking to vacate it (Tirado at 157). Otherwise, the court should deny such motion (Utica Mut. Ins. Co. at 794; Rodriguez at 377), and a defendant to whom discovery is owed then waives the right to such discovery (Manzo at 965; James at 472).

Based on the foregoing, the instant motion is timely. CPLR § 2211 states that “[a] motion on notice is made when a notice of the motion or an order to show cause is served” (see Ageel v Tony Casale, Inc., 44 AD3d 572, 572, 845 [1st Dept 2007]; Gazes v Bennett, 38 AD3d 287, 288[1st Dept 2007]). Per the affidavit of service appended to defendant’s motion, the instant motion was made on September 4, 2018. As per the Court’s file, the Notice of Trial was served upon defendant on August 7, 2018. Applying CPLR § 2103(2), which states that “where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period, defendant had 25 days from August 7, 2018 to timely make the instant motion, or until Saturday, September 1, 2018. Applying General Construction Law §25-a ^[FN2] , defendant had until Tuesday, September 4, 2018 to make the instant motion because Monday, September 3, 2018, was Labor Day, a holiday.

Defendant correctly contends, that because the responses to the interrogatories were provided by counsel and were unsworn, in violation of CPLR 3133(b), they were defective. Moreover, defendant asserts that plaintiff never appeared for a duly requested deposition. Thus, defendant correctly argues that plaintiff misrepresented that discovery was complete when it filed its Notice of Trial, thereby warranting vacatur of the same.

Preliminarily, plaintiff concedes that its response to the interrogatories, dated May 29, 2018 was unresponsive to defendant’s demand. However, plaintiff’s response to defendant’s interrogatories, dated March 4, 2019 – which plaintiff claims is fully responsive – is also deficient because it is unsworn and the responses are provided by counsel. To be sure, CPLR § 3133(b) states that

[i]interrogatories shall be answered in writing under oath by the party served, if an individual, or, if the party served is a corporation, a partnership or a sole proprietorship, by an officer, director, member, agent or employee having the information.

While there is a dearth of case law regarding whether an attorney can respond to interrogatories, three cases make clear that generally an attorney may not interpose answers to [*5]interrogatories. In Lubell v Work Wear Corp. (82 Misc 2d 1000, 1001 [Civ Ct 1975], affd, 86 Misc 2d 1001 [App Term 1976]), the court rejected plaintiff’s claim that responses to interrogatories by counsel were proper and compliant with CPLR § 3134(a), which like CPLR § 3133(b), required that interrogatories

be answered in writing under oath by the party upon whom served, if an individual, or, if the party served is a corporation, a partnership, or sole proprietorship, by any officer, director, agent or employee having the information

(82 Misc 2d 1001). Instead, the court noted that pursuant to CPLR § 3131, answers to interrogatories may be used to the same extent as the depositions of a party, and are therefore, “a disclosure device, to seek evidence, under oath, from the [] defendant by individuals connected with it who have personal knowledge of the facts” (id. at 1002). Thus, the trial court ruled that answers to interrogatories are proper when given under oath by someone with personal knowledge (id. at 1002; see Corriel v Volkswagen of Am., Inc., 127 AD2d 729, 730 [2d Dept 1987] [“The appellant served interrogatories on the plaintiff simultaneously with its answer on September 30, 1985. No objection was made thereto (CPLR 3133) nor did the plaintiff move for a protective order (CPLR 3103). On or about December 18, 1985, unverified answers to the interrogatories were served by the plaintiff’s counsel. The answers did not comply with the requirements of CPLR 3134 which provides that such answers shall be ‘in writing under oath by the party upon whom served’ and ‘shall be preceded by the question to which it responds’. The plaintiff’s answers were in an incorrect form and lacked the requisite verification.”]). In MOPS Med. Supply v Geico Ins. Co. (4 Misc 3d 185 [Civ Ct 2004]), the court came to the same conclusion in rejecting answers to interrogatories that were unverified and provided by counsel (id. at 188-89 [“As an initial matter, the responses to the interrogatories were not verified, and they fail to identify the name and address of the individual responding to the interrogatories; rather, they state only that they were answered by the plaintiff’s attorney.”]). Despite the dearth of case law on this issue, the clear and express language of CPLR § 3133(b) when examined against the backdrop of well-settled principles of statutory construction support the position that counsel may not provide answers to interrogatories. To be sure, CPLR § 3133(b) states that interrogatories are to “be answered in writing under oath by the party upon whom served.” Pursuant to Statutes Law § 92, “[t]he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature.” Moreover, when interpreting statutes, it is well settled that the legislative intent is ascertained from “the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction” (Statutes Law § 94; Kuzmich v 50 Murray St. Acquisition LLC, 34 NY3d 84, 91 [2019], rearg denied, 33 NY3d 1135 [2019], cert denied, 140 S Ct 904 [2020] [“As we have repeatedly explained, courts should construe unambiguous language to give effect to its plain meaning. Absent ambiguity the courts may not resort to rules of construction to alter the scope and application of a statute because no such rule gives the court discretion to declare the intent of the law when the words are unequivocal” (internal citations and quotation marks omitted)]). Thus, the use of the word “party” as the person who must answer interrogatories rather than the words “attorney,” “counsel,” or “lawyer,” makes it clear that the intent of the statute is to have the individual party, [*6]in the case of an individual, provide responses to interrogatories.

Based on the foregoing, the instant interrogatories are deficient as a matter of law because they are unsworn and responded to by counsel. Accordingly, when plaintiff filed its Notice of Trial, certifying that discovery was complete, it misrepresented the same.

Insofar as despite defendant’s demand for a deposition plaintiff failed to appear, plaintiff further misrepresented the completion of discovery when it filed its Notice of Trial. Notably, plaintiff never addresses the portion of defendant’s motion, premised on plaintiff’s failure to appear for a deposition, which is akin to a concession. Significantly, however, plaintiff’s response to the demand for deposition – that defendant is not entitled a deposition unless it demonstrates that the responses provided to the interrogatories were insufficient – would have been availing had plaintiff provided a proper response to the interrogatories. Instead, this Court’s decision is in and of itself evidence that the response provided was insufficient.

It is well settled that

[a]lthough a party is generally free to choose the disclosure devices it wishes to use and the order in which it uses them, it is a generally accepted rule that one method of disclosure should be completed before resorting to another

(Samsung Am., Inc. v Yugoslav-Korean Consulting & Trading Co., Inc., 199 AD2d 48, 49 [1st Dept 1993] [“Further, the overly broad interrogatories which called for all bank accounts and information concerning tax filings must also await completion of Dizdarevic’s oral deposition so as to more particularly pinpoint the documents needed to prosecute this lawsuit or defend against the counterclaims.”]; Curran v Upjohn Co., 122 AD2d 929 [2d Dept 1986]; Giffords Oil Co. v Spinogatti, 96 AD2d 851, 851 [2d Dept 1983]; Katz v Posner, 23 AD2d 774, 775 [2d Dept 1965] [“With respect to the interrogatories, it is our opinion that although under the statute (CPLR 3101) a party may be entitled to an examination both orally and by written interrogatories, he should first invoke one or the other of these devices. If the device first chosen does not adequately disclose all evidence material and necessary to the prosecution or defense of the action (CPLR 3101), then the other available remedy may be utilized.”]).

Here, where, as noted above, defendant’s interrogatories were insufficiently answered, the information sought therein was not provided via defendant’s use of interrogatories. Thus, this Court holds, that defendant is entitled to a deposition because “the device first chosen does not adequately disclose all evidence material and necessary to the prosecution or defense of the action (Katz at 775).

Motion to Strike the Complaint

Defendants’ motion seeking to strike the complaint based on plaintiff’s failure to provide proper responses to defendant’s interrogatories and for plaintiff’s failure to appear at a deposition, is denied insofar as this Court holds that plaintiff’s conduct was neither willful nor contumacious a matter of law, thereby, precluding relief pursuant to CPLR § 3126

“The purpose of disclosure procedures is to advance the function of a trial, to ascertain truth and to accelerate the disposition of suits” (Rios v Donovan, 21 AD2d 409, 411 [1st Dept. 1964]). Accordingly, our courts possess wide discretion to decide whether information sought is “material and necessary” to the prosecution or defense of an action (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). The terms

material and necessary, are, in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. CPLR 3101 (subd. [a]) should be construed, as the leading text on practice puts it, to permit discovery of testimony which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable

(id. at 406 [internal quotation marks omitted]). Whether information is discoverable does not hinge on whether the information sought is admissible and information is therefore discoverable merely if it “may lead to the disclosure of admissible proof” (Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance, 226 AD2d 175, 175 [1st Dept 1996]). That said, however, “unlimited disclosure is not mandated, and the court may deny, limit, condition, or regulate the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (Diaz v City of New York, 117 AD3d 777, 777 [2d Dept 2014]). Thus, the trial court has broad discretion in determining the scope and breadth of discovery, must supervise disclosure and set reasonable terms and conditions therefor (id.). Absent an improvident exercise of discretion, the trial court’s determinations should not be disturbed on appeal (id.).

Pursuant to CPLR § 3126

[i]f any party, or a person . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them . . . an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or . . . an order striking out pleadings or parts thereof.

It is well settled that “[t]he nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court’s discretion” (Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 738 [2d Dept 2012]). Striking a party’s pleading for failure to provide discovery, however, is an extreme sanction, and warranted only when the failure to disclose is willful and contumacious (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1st Dept 1999]). Similarly, since the discovery sanction imposed must be commensurate with the disobedience it is designed to punish, the less drastic sanction of preclusion is also only appropriate when there is a clear showing that a party has willfully and contumaciously failed to comply with court-ordered discovery (Zakhido at 739; Assael v Metropolitan Transit Authority, 4 AD3d 443, 444 [2d Dept 2004]; Pryzant v City of New York, 300 AD2d 383, 383 [2d Dept 2002]). Willful and contumacious behavior can be readily inferred upon a party’s repeated non-compliance with court orders mandating discovery (Pryzant at 383). When a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez v Bernard, 267 AD2d 65, 66 [1st Dept 1999]) and repeatedly violates discovery orders, thereby delaying the discovery process, the striking of pleadings is warranted (Moog v City of New York, 30 AD3d 490, 491 [2d [*7]Dept 2006]; Helms v Gangemi, 265 AD2d 203, 204 [1st Dept 1999]). Stated differently, discovery sanctions should ensue when there is a willful failure to “disclose information that the court has found should have been disclosed” (Byam v City of New York, 68 AD3d 798, 801 [2d Dept 2009]).

Where the failure to disclose is neither willful nor contumacious, and instead constitutes a single instance of non-compliance for which a reasonable excuse is proffered, the extreme sanction of striking of a party’s pleading is unwarranted (Palmenta v. Columbia University, 266 AD2d 90, 91 [1st Dept 1999]). Nor is the striking of a party’s pleading warranted merely by virtue of “imperfect compliance with discovery demands” (Commerce & Industry Insurance Company v Lib-Com, Ltd, 266 AD2d 142, 144 [1st Dept 1999])

A review of the relevant evidence submitted by defendant and discussed above, establishes that with regard to the interrogatories, plaintiff provided a response in 2018, which apparently was provided in error. Plaintiff then provided responses responsive to the defendant’s interrogatories, which this Court holds were deficient insofar as they were not sworn and the responses were provided by counsel. With regard to the deposition, contrary to plaintiff’s contention, generally a defendant has the right to depose plaintiff (CPLR § 3109 [“A party desiring to take the deposition of any person upon written questions shall serve such questions upon each party together with a notice stating the name and address of the person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and the name or descriptive title and address of the officer before whom the deposition is to be taken.”]). Moreover, as discussed above, here, where defendant’s interrogatories have yielded incomplete information, nothing in our jurisprudence bars the deposition sought by defendant.

The foregoing, specifically, plaintiff’s refusal to submit to a deposition does not demonstrate that plaintiff’s noncompliance has been willful or contumacious. To be sure, here, there has been no transgression of a court order mandating the discovery sought. Indeed, the record is bereft of any repeated yet fruitless effort by defendant to obtain the discovery sought. Notably, when plaintiff became aware that it had erroneously responded to defendant’s demand, it provided a more appropriate response, albeit one which this Court deems defective. Again, it is well settled that “striking a party’s pleading for failure to provide discovery is an extreme sanction [and] it is only warranted when the failure to disclose is willful and contumacious” (Bako at 561). Generally, willful and contumacious behavior can be readily inferred upon a party’s repeated non-compliance with court orders mandating discovery (Pryzant at 383), and only when a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez at 66) and repeatedly violates discovery orders, thereby delaying the discovery process, is the striking of pleadings warranted (Moog at 491; Helms at 204). Nor is the striking of a party’s pleadings warranted merely by virtue of “imperfect compliance with discovery demands” (Commerce & Industry Insurance Company at 144).

Motion to Compel Discovery

Defendant’s motion to compel a further response to its interrogatories and to compel plaintiff to appear for a deposition is granted. As noted above, defendant has demonstrated that the response to its interrogatories is deficient and that it is entitled to a deposition.

CPLR § 3124 allows a court to compel disclosure “[i]f a person fails to respond to or [*8]comply with any request, notice, interrogatory, demand, question, or order.” Thus, when a party responds to discovery demands but provides inadequate responses, the proper remedy is a motion to compel pursuant to CPLR § 3124 as opposed to a motion to strike or preclude pursuant to CPLR § 3126 (Double Fortune Property Investors Corp. v Gordon, 55 AD3d 406, 407 [1st Dept 2008] [“Plaintiff having responded to defendant’s discovery requests, the proper course for defendant, rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compel further discovery pursuant to CPLR 3124.”]).

Here, contrary to plaintiff’s contention, it provided an inadequate response to defendant’s interrogatories and has failed to appear for a deposition to which defendant is entitled. Accordingly, this Court holds that pursuant to CPLR § 3124, plaintiff must provide the discovery sought. It is hereby

ORDERED that the Clerk vacate the Notice of Trial. It is further

ORDERED that plaintiff provide a further response to defendant’s Interrogatories consistent with this Court’s Decision and Order within 60 (sixty) days ^[FN3] of service of this Decision and Order upon it with Notice of Entry. It is further

ORDERED that plaintiff appear for a deposition at a date and time mutually convenient to all parties within 90 (ninety) days of service of this Decision and Order upon it with Notice of Entry. It is further

ORDERED that defendants serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof.

This constitutes this Court’s decision and Order.

Dated: May 25, 2020

Bronx, New York

______________________________

FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1:Notably, in its motion, defendant also asserts that plaintiff improperly objected to several questions within the interrogatories. However, defendant’s wholesale failure to articulate why the objections were improper precludes this Court from ruling on that portion of the motion.

Footnote 2:General construction Law § 25-a states that “[w]hen any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day and if the period ends at a specified hour, such act may be done at or before the same hour of such next succeeding business day”)

Footnote 3:Because we are in the midst of the Covid 19 Pandemic with all of the attendant disruptions to people’s lives and indeed the Court System, the time periods for compliance with this Court’s directives must necessarily be long.

Index No. 156945/2016

Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber and Timothy R. Bishop of counsel), for plaintiff.

Economou & Economou, P.C., Syosset, NY (Ralph C. Caio of counsel), for defendant.

This motion concerns whether plaintiff Unitrin Advantage Insurance Company must pay approximately $12,000 in no-fault insurance benefits to defendant Andrew J. Dowd, M.D. (plus interest and attorney fees), for two surgeries Dr. Dowd performed in 2011.

BACKGROUND

Several individuals (nonparties in this action) allegedly suffered a collision while in a vehicle covered by a no-fault insurance policy issued by Unitrin. One individual, Quente Wright, was treated by Dr. Dowd. In July 2011, Dr. Dowd operated on Wright. Dowd submitted a benefits claim to Unitrin for that surgery (for $5,943.59), which Unitrin received on August 1, [*2]2011. In September 2011, Dowd performed a second surgery on Wright, and submitted a second claim to Unitrin (for $6,106.56), which Unitrin received on October 7, 2011.

Unitrin was skeptical that Wright had been involved in a legitimate, rather than staged, collision. It was similarly skeptical that Wright had sustained any injuries requiring surgery. On September 22, 2011, Unitrin mailed to Dr. Dowd a request that he appear for an examination under oath (EUO) to answer questions about the medical necessity of the first surgery. The EUO was scheduled for October 6, 2011. Dr. Dowd did not appear for the EUO. Unitrin sent him a second letter, on October 11, 2011, requesting that he appear for a rescheduled EUO on October 25. Dowd again did not appear. Unitrin denied Dowd’s benefits claims for both surgeries based on his repeated failure to appear for an EUO.

Dr. Dowd disputed Unitrin’s denial of his claims for benefits. That dispute has a somewhat lengthy and involved procedural history that is not relevant here. What matters now is that in the current action, Unitrin is seeking a declaratory judgment that Dr. Dowd is not entitled to benefits. Dowd moves for summary judgment under CPLR 3212. He argues that he has established as a matter of law that he properly submitted claims for medical services rendered and that Unitrin failed to issue a timely denial of those claims. Unitrin cross-moves for summary judgment under CPLR 3212. According to Unitrin, Dr. Dowd failed to appear for a timely and properly scheduled EUO about the services that he claimed to have provided. Unitrin argues that it therefore properly denied the two claims

As to the benefits claim relating to the first surgery, Dr. Dowd’s motion is granted, and Unitrin’s cross-motion is denied. As to the benefits claim relating to the second surgery, Dr. Dowd’s motion is denied, and Unitrin’s cross-motion is granted.

DISCUSSION

A provider of medical services can establish a prima facie showing of entitlement to summary judgment by submitting admissible proof that the requisite claim forms were mailed and received by the carrier and that the payment is overdue. (See Insurance Law § 5106 [a]; New York & Presbyterian Hosp. v Countrywide Ins. Co., 44 AD3d 729, 843 [2d Dept 2007].) Here, Unitrin does not contest that it received the requisite claim forms from Dr. Dowd or that the claims remain unpaid. Unitrin argues instead that Dowd is not entitled to benefits because he, as Wright’s assignor, violated the terms of the applicable no-fault policy by failing to appear for an EUO upon request.

A no-fault insurer seeking a declaration of no coverage due to asserted violations of the terms of the policy must first demonstrate that it complied with each procedural and timeliness requirement of 11 NYCRR § 65-3.5, governing the handling of no-fault claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) Among other things, § 65-3.5 provides that once an insurer receives the verification forms for a pending claim for benefits, the insurer then has 15 business days to seek further verification—for example, through requesting a claimant to appear for an EUO. (See id. § 65-3.5 [b]; Unitrin Advantage Ins. Co. v All of NY, Inc., 158 AD3d 449, 449 [1st Dept 2018].) A claimant’s failure [*3]without reasonable cause to appear for a timely and properly scheduled EUO is grounds to deny coverage.

Here, Unitrin does not seriously contest that its EUO requests were untimely as to the first surgery: The first request was mailed out on September 22, 2011, well beyond the 15-day period following Unitrin’s August 1 receipt of the benefits claim for the first surgery. Unitrin argues, though, that the EUO requests were timely as to the second surgery—and that Dr. Dowd’s failure to appear for an EUO means that Unitrin is entitled to deny benefits for both surgeries. This court disagrees.

To be sure, Unitrin’s starting premise is correct: A no-fault insurer may properly request an individual covered by no-fault insurance to appear for an EUO prior to receiving that individual’s benefits claim; and the insurer may properly deny benefits if the individual does not appear as requested. (See Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 469 [1st Dept 2016].) But Unitrin’s conclusion does not follow. Where a claimant (such as a medical provider) submits multiple claims for benefits, and the insurer’s EUO request is timely as to some of those claims and untimely as to others, the insurer is entitled to deny coverage only as to those claims for which it timely requested verification—not as to all claims. (See All of NY, 158 AD3d at 449-450.)

This court is not persuaded by Unitrin’s contrary argument. Unitrin contends that in Hertz Vehicles, LLC v Alluri (171 AD3d 432 [1st Dept 2019]), the insurer had submitted one claim for which there was an untimely EUO request and one claim for which there was a timely request, which (assertedly) led both Supreme Court and the First Department to hold that the insurer could deny all claims retroactive to the date of loss. This contention has two key shortcomings.

First, neither the trial nor appellate decisions in Alluri actually say that where an EUO request is timely only as to one out of two claims (and then not complied with), the insurer can properly deny benefits as to both claims. Instead, each decision refers only to one claim for benefits, for which the insurer’s EUO request had been timely under Manoo. (See Hertz Vehs. v Alluri, 2017 NY Slip Op 32578 [U], at *3-*4 [Sup Ct, NY County Dec. 11, 2017]; Alluri, 171 AD3d at 432.)

Second, if the First Department had held in Alluri that one timely EUO request entitles an insurer to deny benefits even as to claims for which an untimely request had been made, that holding would have been inconsistent with the Court’s ruling the year before in All of NY Yet Alluri does not discuss, or even mention, All of NY Rather, Alluri relies on Manoo (see 171 AD3d at 432); and the holding in Manoo is premised on the Court’s conclusion that the insurer had “establish[ed] that it timely and properly mailed the notices for EUOs” to the covered individual. (140 AD3d at 469.)

Unitrin also points to the First Department’s statement in Unitrin Advantage Ins. Co. v Bayshore Phys. Therapy, LLC that “when defendants’ assignors failed to appear for the requested [medical examinations], plaintiff had the right to deny all claims retroactively to the date of loss.” ((82 AD3d 559, 560 [1st Dept 2011] [emphasis added]). But even Bayshore itself notes [*4]that the insurer there met its burden to “establish[] that it requested [medical examinations] in accordance with the procedures and time-frames set forth in the No—Fault implementing regulations.” (Id.; see also American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 842 [1st Dept 2015] [emphasizing this point].) And it would be odd to say, in effect, that an insurer can still deny a benefits claim due to a claimant or assignor’s failure to appear at an EUO despite failing to timely or properly request the EUO after receiving that claim. Regardless, to the extent that a contradiction does exist between the First Department’s holdings in Bayshore and in All of NY, this court must follow the First Department’s most recent holding on the subject. (See Vaughan v Leon, 94 AD3d 646, 649 n 2 [1st Dept 2012].)

Unitrin’s EUO request upon receipt of the first claim was untimely. This court concludes, therefore, that Unitrin may not deny Dr. Dowd’s otherwise-sufficient claim for benefits from the first surgery based on Dowd’s failure to appear for an EUO.

That still leaves the claim for benefits from the second surgery. Under Manoo and Alluri, Unitrin’s EUO request was timely as to the second benefits claim—particularly since a key subject for questions at the EUO, namely the medical necessity of surgery on Quente Wright, would have been the same for both benefits claims. Dr. Dowd asserts, though, that the EUO request was improper: It did not sufficiently identify from whom Unitrin was seeking an EUO. This court disagrees. Unitrin has produced two EUO request letters that plainly request the appearance for an EUO of a principal from Dr. Dowd’s medical practice (i.e., either Dr. Dowd himself or someone with comparable authority), and also specify the subjects to be discussed at the EUO and the EUO’s time and place. Dr. Dowd does not contest that these letters were properly mailed. Nor does he contest that he failed to appear as requested. That is sufficient to establish that Dr. Dowd failed to comply with a requirement of the applicable no-fault insurance policy in this case as to his second claim for benefits.

Accordingly, it is hereby

ORDERED that the branch of Dr. Dowd’s motion under CPLR 3212 seeking summary judgment as to his claim for benefits in the amount of $5,943.59 (received by Unitrin on August 1, 2011) is denied; and it is further

ORDERED that the branch of Unitrin’s cross-motion under CPLR 3212 seeking summary judgment as to Dr. Dowd’s claim for benefits in the amount of $5,943.59 (received by Unitrin on August 1, 2011) is granted; and it is further

ADJUDGED AND DECREED that Unitrin owes no duty to pay Dr. Dowd that claim for benefits; and it is further

ORDERED that the branch of Dr. Dowd’s motion under CPLR 3212 seeking summary judgment as to his claim for benefits in the amount of in the amount of $6,106.56 (received by Unitrin on October 7, 2011) is granted; and it is further

ORDERED that the branch of Unitrin’s cross-motion under CPLR 3212 seeking [*5]summary judgment as to Dr. Dowd’s claim for benefits in the amount of $6,106.56 (received by Unitrin on October 7, 2011) is denied; and it is further

ADJUDGED AND DECREED that Dr. Dowd shall have judgment against Unitrin in the amount of $6,106.56; plus interest on that sum at 2% per month, running from November 6, 2012, until the entry of judgment; plus attorney fees as provided for under Insurance Law § 5106 (a) and 11 NYCRR § 65-4.6; and it is further

ORDERED that Dr. Dowd shall serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly; and it is further

ORDERED that notice of entry may be served by mail or overnight delivery service, with Dr. Dowd to e-file a copy of notice of entry (and accompanying affidavit(s) of service) on NYSCEF once filing of notices of entry in pending nonessential matters is again permitted by order of Chief Administrative Judge Lawrence Marks.

Date: 5/21/20

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Bryan M. Rothenberg and Argyria A.N. Kettagias of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered December 11, 2018. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff Wave Medical Services, P.C. (Wave) moved for summary judgment and defendant Farmers New Century Insurance Co. (Farmers) cross-moved for summary judgment dismissing the complaint. In support of its cross motion, Farmers submitted an order that had been entered in a Supreme Court declaratory judgment action which granted a motion brought by, among others, Farmers seeking a default judgment against, among others, Wave. The order found specifically that the plaintiffs therein, including Farmers, were entitled to a default judgment on liability against Wave, but did not declare the rights of the parties. The Civil Court denied Wave’s motion for summary judgment and granted Farmers’ cross motion for summary judgment dismissing the complaint based upon the Supreme Court order. In response to Wave’s appeal, Farmers submits a judgment that was entered in the Supreme Court which declared, among other things, that Farmers has no duty to pay any no-fault [*2]benefits to Wave in any current or future proceeding because Wave is ineligible to collect no-fault benefits pursuant to 11 NYCRR 65-3.16 (a) (12).

A court “may in general take judicial notice of matters of public record” (Headley v New York City Tr. Auth., 100 AD3d 700, 701 [2012]; see Matter of Oak Tree Realty Co., LLC v Board of Assessors, 71 AD3d 1027 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]). In light of the Supreme Court’s declaration that Farmers has no obligation to pay no-fault benefits to Wave in any current proceeding, set forth in the Supreme Court judgment of which we take judicial notice, we find that the Civil Court properly denied Wave’s motion for summary judgment and granted Farmers’ cross motion for summary judgment dismissing the complaint (see Healing Art Acupuncture, P.C. v 21st Century Ins. Co.,59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the order is affirmed.

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

Paul Kenny

[*1]

Sobo & Sobo, LLP, Middletown (Mark P. Cambareri of counsel), for appellant.

Brand & Tapply, LLC, New York City (Courtney J. Lyons of counsel), for respondent.

Reynolds Fitzgerald, J. Appeal from an order of the Supreme Court (Burns, J.), entered February 19, 2019 in Chenango County, which, among other things, granted plaintiff’s motion for a default judgment.

On October 28, 2017, defendant Jonathan DiLorenzo (hereinafter defendant) was a passenger in a vehicle when the vehicle was involved in an accident. As a result of the accident, defendant sought medical treatment for lower back pain and injuries to his knees and teeth. Once defendant informed plaintiff, the vehicle owner’s insurer, of his intent to submit a claim for supplemental uninsured/underinsured motorist coverage, plaintiff commenced an investigation pursuant to the terms of its insurance policy. As part of the investigation, defendant participated in an examination under oath, wherein he admitted that, prior to the accident, he sought medical treatment for an injury to his right knee and chiropractic adjustment for back pain, and that he participated in mixed martial arts competitions. Despite numerous requests, defendant failed to produce medical records and to authorize plaintiff access to his preaccident medical and dental records. Ultimately, plaintiff denied defendant’s claim for no-fault benefits as a result of defendant’s breach of the duty to cooperate in the investigation and material misrepresentations regarding the nature and extent of defendant’s injuries, and because his injuries did not arise from the use or operation of the motor vehicle.

In October 2018, plaintiff commenced this action against, among others, defendant, asserting causes of action for breach of contract, fraud and a declaratory judgment, and seeking compensation for the costs involved in investigating the claim. Defendant was served, by way of CPLR 308 (2), on November 27, 2018 and plaintiff filed an affidavit of service on November 30, 2018. Shortly after filing the summons and complaint, plaintiff moved, by order to show cause, for a preliminary injunction and a temporary restraining order, enjoining all current or future litigation and arbitration proceedings concerning requests for no-fault benefits arising from the accident. In November 2018, Supreme Court granted plaintiff’s motion. In doing so, it declined to consider defendant’s opposition papers, on the ground that they were neither properly nor timely filed in the court electronic filing (hereinafter e-filing) system.

On January 4, 2019, plaintiff moved for a default judgment against all defendants. On January 17, 2019, one week past his 30-day allowance to do so,^[FN*] defendant filed his answer. Defendant opposed plaintiff’s motion and cross-moved to dismiss the complaint against him for lack of personal jurisdiction. He also sought leave to renew and vacate Supreme Court’s November 2018 order granting plaintiff’s motion for the preliminary injunction. Supreme Court granted plaintiff’s motion for a default judgment, finding that plaintiff effected proper service upon defendant, that defendant did not timely answer and defendant failed to demonstrate a valid reason for the late filing. The court also summarily denied defendant’s cross motion to renew and vacate the November 2018 order, finding that it was not made within 30 days of entry of that order. Defendant appeals.

Defendant contends that Supreme Court did not have personal jurisdiction over him to render a default judgment since plaintiff failed to sufficiently prove service of process. Service of process upon a natural person must be made in strict compliance with the methods set forth in CPLR 308. Failure to serve process leaves the court without personal jurisdiction over a defendant. “As a general proposition, a process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service” (Carver Fed. Sav. Bank v Shaker Gardens, Inc., 135 AD3d 1212, 1213 [2016] [internal quotations and citations omitted]). The affidavit of service reflects that the Orange County Sheriff left the summons and complaint with defendant’s grandmother at 16 Strack Road in the Town of Goshen, Orange County, followed by mailing, that same day, a copy of the summons to the same address. Defendant does not deny that his grandmother was served nor does he claim that the address was not proper or that he did in fact receive the pleadings. Instead, in a conclusory fashion, defendant states that he “currently resides in Middletown, NY” without specifying an address or providing any proof of his residence. Defendant “failed to adequately rebut the presumption of proper service created by the affidavit[ ] of service” (Christiana Bank & Trust Co. v Eichler, 94 AD3d 1170, 1170 [2012]), as this “bare claim . . . is not a detailed and specific contradiction of the allegations in the process server’s affidavit” (id. at 1171 [internal quotation marks and citations omitted]). We therefore agree with Supreme Court that service was proper, and the court acquired jurisdiction over defendant.

Next, defendant alleges that plaintiff’s motion for a default judgment should have been denied because plaintiff failed to provide the requisite notice pursuant to CPLR 3215 (g) (1) and (3), the delay in serving the answer was short and plaintiff did not suffer any prejudice. Initially, we find that plaintiff complied with the requisite notice pursuant to CPLR 3215 (g) (1). The statute requires that any defendant who has appeared is entitled to at least five days’ notice of the time and place of the application. Plaintiff served counsel with notice of the default judgment on January 4, 2019, 21 days prior to the application being heard. Further, defendant’s contention that additional notice was required pursuant to CPLR 3215 (g) (3) is without merit. As provided in the statute, notice is required if the “action [is] based upon nonpayment of a contractual obligation” (CPLR 3215 [g] [3]). The instant action is one for breach of contract, fraud and a declaratory judgment, and plaintiff seeks compensation for fees involved in investigating the claim. As this is not an action for nonpayment of a contractual obligation, such additional notice was not required (see Basile v Mulholland, 73 AD3d 597, 597 [2010]).

Plaintiff demonstrated entitlement to a default judgment by submitting proof of service upon defendant, the facts supporting its claim and defendant’s default (see Dayco Mech. Servs., Inc. v Toscani, 94 AD3d 1214, 1214 [2012]). However, under the circumstances, Supreme Court abused its discretion in granting plaintiff’s motion for a default judgment. Although defendant’s motion papers lacked specific details of the underlying circumstances for the delay, the delay herein was de minimis—one week—and should be excused (see Bank of N.Y. Mellon v Jinks, 127 AD3d 1367,1368-1369 [2015]; Heinrichs v City of Albany, 239 AD2d 639, 640 [1997]). Defendant timely opposed the motion, offering a meritorious defense. There is no indication that the default was willful or that plaintiff was prejudiced as a result of the late answer. Moreover, defendant appeared in the action when he opposed plaintiff’s motion for a preliminary injunction and temporary restraining order. Public policy favors the resolution of cases on the merits (see Watson v Pollacchi, 32 AD3d 565, 565 [2006]; BPS Mgt. Corp. v New York Tit. Ins. Co., 115 AD2d 921, 922 [1985]).

Lastly, defendant contends that Supreme Court erred in denying his cross motion to renew as untimely. We agree. Supreme Court confused the cross motion to renew with a motion to reargue and summarily denied it since it was not made within 30 days. This time period applies solely to motions to reargue (see CPLR 2221 [d] [3]; Redeye v Progressive Ins. Co., 158 AD3d 1208, 1208 [2018]). Defendant argues that his opposition papers to plaintiff’s order to show cause seeking the preliminary injunction should have been considered by the court as he had not consented to e-filing, he timely mailed the documents pursuant to the instructions set forth in the order to show cause and he recently obtained his medical records, which were not available at the time of the return date on the order to show cause. “A motion for leave to renew . . . shall be based upon new facts not offered on the prior motion that would change the prior determination . . . [and] shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [2], [3]; see Matter of Karnofsky [New York State Dept. of Corr. & Community Supervision], 125 AD3d 1198, 1200 [2015]). Pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 202.5-bb (a) (1), mandatory e-filing may only be imposed “in such classes of actions and such counties as shall be specified by [O]rder of the Chief Administrator of the Courts.” On October 12, 2017, the Chief Administrative Judge issued Administrative Order of the Chief Administrative Judge of the Courts AO/294/18, which stated that Chenango County—the county in which this action was commenced—was a “consensual or voluntary e-filing county only.” As such, it did not impose mandatory e-filing in any type of case.

Moreover, in all cases, “[a] clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the [C]hief [A]dministrator of the [C]ourts” (CPLR 2102 [c]). Under the consensual e-filing rules, which applied in this case, a party that has not consented to e-filing must serve their papers via a hard copy (see Rules of Chief Admin of Cts [22 NYCRR] § 202.5-b [b] [2] [i]). Defendant diligently attempted to file his opposition in a timely manner. However, those papers were not considered by Supreme Court. Additionally, counsel averred that defendant’s medical records were not available at the time of plaintiff’s order to show cause and, as they demonstrate evidence of defendant’s injuries, they were pertinent thereto. Defendant has provided reasonable justification for failing to submit the additional facts in his opposition to plaintiff’s order to show cause (see Mula v Mula, 151 AD3d 1326, 1327 [2017]; Premo v Rosa, 93 AD3d 919, 921 [2012]). In view of the foregoing, Supreme Court abused its discretion in granting plaintiff’s motion for default judgment and denying defendant’s cross motion to renew and vacate the November 28, 2018 order.

Egan Jr., J.P., Lynch and Aarons, JJ., concur. Ordered that the order is reversed, on the law, without costs, plaintiff’s motion for a default judgment denied, defendant Jonathan DiLorenzo’s cross motion to renew/vacate granted, the preliminary injunction stayed and matter remitted to the Supreme Court to consider said defendant’s opposition papers with respect to plaintiff’s motion for a preliminary injunction.

Footnotes

Footnote *:As defendant was served pursuant to CPLR 308 (2), service is not complete until 10 days after the filing of proof of service. As plaintiff filed the affidavit of service on November 30, 2018, service was complete on December 10, 2018, giving him 30 days after that date to answer.

Index No. 156465/2018

Law Office of Peter C. Merani, P.C., New York, NY (Adam Waknine of counsel), for plaintiff.

Law Offices of Dino R. Dirienzo, Syosset, NY (Ralph C. Caio of counsel), for defendants MII Supply, LLC,. Dynamic Surgery Center, LLC, Comprehensive Medical Assist, P.C., and Citimed Services, P.A.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65 were read on this motion for SUMMARY JUDGMENT

In this motion, plaintiff American Transit Insurance Company requests a declaratory judgment that it is not required to pay no-fault benefits to the various medical-provider defendants. American Transit seeks summary judgment under CPLR 3212 against certain answering defendants and default judgment under CPLR 3215 against the remaining defendants. This motion, however, is not properly before this court, because American Transit’s action has already been dismissed. The motion is denied.

This action was dismissed in May 2019 under 22 NYCRR § 202.27 due to American Transit’s failure twice to appear at scheduled preliminary conferences. American Transit never moved to vacate that default dismissal. Indeed, American Transit’s papers on the present motion do not even acknowledge that this action was previously dismissed, much less seek to offer a reasonable excuse for American Transit’s default. This court is disinclined to deem this motion to be somehow an implicit request for vacatur of the dismissal of the action.

This court’s reluctance is only heightened by the fact that American Transit’s motion is not based on admissible evidence. American Transit claims that it has good reason to believe that the underlying automobile collision in this case was staged, and therefore not an insurable [*2]incident. (See Central Gen. Hosp. v Chubb Grp. of Ins. Cos., 90 NY2d 195, 199 [1997].) But the evidence that American Transit identifies as the basis for this conclusion is a summary report that is neither sworn nor notarized, as required for it to qualify as a non-hearsay affidavit. (See NYSCEF No. 50 at 2-7.) As a result, this court could not rely on the report as a basis to vacate the dismissal of the action. (See Harris v Krauss, 87 AD3d 469, 469 [1st Dept 2011] [reversing grant of motion to vacate under CPLR 5015, where moving papers relied on evidence in a putative affidavit that had not been properly notarized].)

Thus, even if this court were to construe the present motion liberally as an application to vacate this court’s prior dismissal of this action on default—and this court declines to do so— American Transit would still fail to establish its entitlement to relief.

Accordingly, it is hereby

ORDERED that American Transit’s motion is denied.

Date: 5/13/20

[*1]

Kopelevich & Feldsherova, P.C., Brooklyn, NY (David Landfair of counsel), for appellants.

Hollander Legal Group, P.C. (Allan S. Hollander and Harris J. Zakarin, P.C., Melville, NY, of counsel), for respondent.

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits, the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C., appeal from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered July 11, 2017. The order granted the plaintiff’s motion for summary judgment, in effect, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C., on behalf of the defendants Andy Williams, Amanda Nixon, and Shaquille Swan.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C., on behalf of the defendants Andy Williams, Amanda Nixon, and Shaquille Swan.

The defendants Andy Williams, Amanda Nixon, and Shaquille Swan (hereinafter collectively the individual defendants) allegedly were injured in a motor vehicle accident and assigned their rights to recover for no-fault benefits under the vehicle owner’s insurance policy to the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C. (hereinafter collectively the medical provider defendants). The plaintiff commenced this action for a judgment declaring that it is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants on the ground that the individual defendants failed to appear for two scheduled examinations under oath (hereinafter EUOs). The plaintiff moved for summary judgment, in effect, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants. The medical provider defendants opposed the motion. In an order entered July 11, 2017, the Supreme Court granted the plaintiff’s motion. The medical provider defendants appeal.

“ ’The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath . . . is a material breach of the policy, precluding recovery of the policy proceeds’ ” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014], quoting Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 487-488 [1992]). An insurer may establish its prima facie entitlement to judgment as a matter of law based on the failure to submit to an EUO by establishing that the letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at two scheduled EUOs, and that the insurer issued a timely and proper denial of the claims (see IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2014]; Interboro Ins. Co. v Clennon, 113 AD3d at 597).

Here, the plaintiff established, prima facie, that the letters scheduling the EUOs were timely and properly mailed by submitting an affidavit from an individual who had personal knowledge of the standard office practice for ensuring that the letters are properly addressed and mailed (see Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2016]). In opposition, the medical provider defendants failed to raise a triable issue of fact because they did not submit any evidence that the letters were not properly mailed. The medical provider defendants’ mere denial of receipt was insufficient to rebut a presumption that the letters were received (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]).

The plaintiff also established, prima facie, that the individual defendants failed to appear at two scheduled EUOs by submitting the affidavits of individuals with personal knowledge that the individual defendants failed to appear at the location of the EUOs on the dates they were scheduled (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, the medical provider defendants failed to raise a triable issue of fact. They did not submit evidence to establish that the first EUO was mutually rescheduled (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Additionally, the plaintiff established, prima facie, that it issued a timely and proper denial of the claims by demonstrating that the denials were sent within 30 days of the second scheduled EUO, through affidavits from individuals who had personal knowledge as to the standard office practice for ensuring that denials are properly addressed and mailed (see 11 NYCRR 65-3.5 [b]; 65-3.8 [a] [1]; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d at 694). The affidavits submitted by the medical provider defendants in opposition failed to raise a triable issue of fact because they did not directly contradict the affidavits submitted by the plaintiff with regard to its standard office practices for addressing and mailing denial letters.

Furthermore, the medical provider defendants’ contention that the plaintiff’s motion for summary judgment should have been denied because the plaintiff failed to either pay or deny four of the medical provider defendants’ bills is without merit because the bills were sent more than 45 days after service was rendered (see 11 NYCRR 65-1.1 [d]).

Accordingly, we agree with the Supreme Court’s determination to grant the plaintiff’s motion for summary judgment, in effect, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants. Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of judgment, inter alia, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants (see Lanza v Wagner, 11 NY2d 317, 334 [1962]). Chambers, J.P., Roman, Cohen and Christopher, 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. (Melissa Betancourt and David Steigbigel of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 2, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that so much of the appeal as is from the portion of the order that denied defendant’s motion for summary judgment dismissing the complaint is dismissed as academic in light of this court’s determination of the remainder of the appeal; and it is further,

ORDERED that the order, insofar as reviewed, is reversed, with $30 costs, plaintiff’s cross motion for summary judgment is denied, and summary judgment dismissing the complaint is awarded to defendant pursuant to CPLR 3212 (b), in accordance with the decision herein.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for supplies provided to its assignor, who had purportedly been injured in a motor vehicle accident on March 9, 2015. Thereafter, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled examinations under oath and independent [*2]medical examinations, and plaintiff cross-moved for summary judgment. By order entered March 2, 2018, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

Defendant correctly argues that plaintiff’s cross motion for summary judgment should have been denied, as the proof submitted by plaintiff failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was 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]). Thus, the portion of the order which granted plaintiff’s cross motion for summary judgment must be reversed and plaintiff’s cross motion denied.

Ordinarily, a reversal of this portion of the Civil Court’s order, standing alone, would result in the matter being remitted to the Civil Court for all further proceedings. However, on appeal, defendant argues that the complaint should be dismissed based upon a Supreme Court, Bronx County, declaratory judgment action against plaintiff and plaintiff’s assignor, among others, seeking a declaration that the defendants therein are not entitled to no-fault coverage for the March 9, 2015 accident. For the reasons stated in K.O. Med., P.C. v Mercury Cas. Co. (57 Misc 3d 155[A], 2017 NY Slip Op 51614[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), in the interest of judicial economy, we take judicial notice of the judgment in that action which declares that plaintiff and its assignor “are not entitled to no-fault benefits as a result of a motor vehicle accident that occurred on 03/09/15” and that “any and all arbitrations or matters in a court of competent jurisdiction involving any of the Defendants as Assignee of Marie Vil . . . regarding a motor vehicle accident that occurred on 03/09/15, are permanently stayed and dismissed.” Upon taking such judicial notice, we award defendant summary judgment dismissing the complaint pursuant to CPLR 3212 (b) and dismiss as academic so much of the appeal as is from the portion of the Civil Court’s order that denied defendant’s motion for summary judgment (see id.; see also Maiga Prods. Corp. v Hertz Co., 61 Misc 3d 132[A], 2018 NY Slip Op 51448[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

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

Paul Kenny