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

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered April 5, 2019, as amended by order of that court dated June 19, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. After the parties stipulated to adjourn plaintiff’s motion, and two months after the deadline provided for in the stipulation, defendant served a cross motion for summary judgment dismissing the complaint. In an order entered June 2, 2017, the Civil Court (Robin Kelly Sheares, J.) declined to consider defendant’s cross motion, treated defendant’s submission as opposition to plaintiff’s motion, denied plaintiff’s motion for summary judgment, and stated that plaintiff “made out their prima facie case for all purposes in this matter” and that the “[c]ase shall proceed to trial on the defenses raised in NF-10s.”

Defendant thereafter moved for summary judgment dismissing the complaint. By order dated April 3, 2019 and entered April 5, 2019, the Civil Court (Odessa Kennedy, J.) denied defendant’s motion as moot on the ground that the June 2, 2017 order had denied its previous cross motion for summary judgment and that defendant “cannot move again for summary judgment.” By order dated June 19, 2019, the court “sua sponte supplement[ed] its April 3, 2019 order” and stated that “defendant’s attempt to submit a second motion for summary judgment . . . [*2]would effectively nullify [the] June 2, 2017 order.”

The Civil Court denied defendant’s motion based, in part, upon the rule against successive motions for summary judgment (see e.g. Williams v City of White Plains, 6 AD3d 609, 609 [2004]; Capuano v Platzner Intl. Group, 5 AD3d 620, 621 [2004]). However, that rule does not apply here because defendant’s initial cross motion for summary judgment was not considered by the court. The Civil Court also denied defendant’s motion based upon law of the case. However, the statement in the June 2, 2017 order that the “[c]ase shall proceed to trial on the defenses raised in the NF-10s” is not a directive that the matter proceed to trial. Rather, it is a directive as to what will happen at trial, as the court, in effect, made CPLR 3212 (g) findings in plaintiff’s favor limiting the trial to those defenses (see Maxford, Inc. v Erie Ins. Co. of NY, 60 Misc 3d 135[A], 2018 NY Slip Op 51057[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Moreover, the statement is not a judicial determination that decided an issue being litigated by the parties, and is therefore not the kind of determination that is binding law of the case (see generally People v Evans, 94 NY2d 499 [2000]). Thus, defendant’s instant motion, contrary to the Civil Court’s determination, is not moot.

Accordingly, the order is reversed and the matter is remitted to the Civil Court for a determination of defendant’s motion on the merits.

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered January 8, 2019. The order granted plaintiff’s motion for the entry of a default judgment.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion for the entry of a default judgment is denied.

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

The summons and complaint in this action were served by certified mail, return receipt requested, pursuant to CPLR 312-a. “Under CPLR 312-a, service is complete on the date the signed acknowledgment of receipt is mailed or delivered to the plaintiff. The signed acknowledgment of receipt constitutes proof of service” (New York Med. Rehab., P.C. v Travelers Ins. Co., 40 Misc 3d 76, 79 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [citation omitted]). Plaintiff’s papers did not contain an acknowledgment of service as required by CPLR 312-a, and plaintiff did not demonstrate that service was otherwise completed within 120 days of the filing of the summons and complaint in 2015 (see CCA 411). As plaintiff failed to establish that it had acquired personal jurisdiction over defendant (see CPLR 312-a [b]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; Great Health Care Chiropractic, [*2]P.C. v State Farm Mut. Auto. Ins. Co., 67 Misc 3d 142[A], 2020 NY Slip Op 50735[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), plaintiff’s motion should have been denied.

Accordingly, the order is reversed and plaintiff’s motion for the entry of a default judgment is denied.

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

Decided on July 2, 2021

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered January 7, 2019. The order granted plaintiff’s motion for the entry of a default judgment.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion for the entry of a default judgment is denied.

In this action by a provided to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for the entry of a default judgment.

For the reasons stated in Daily Med. Equip. Distrib. Ctr., Inc., as Assignee of Balderrna, David v American Ind. Ins. Co. (___ Misc 3d ___, 2021 NY Slip Op ______ [appeal No. 2019-341 K C], decided herewith), the order is reversed and plaintiff’s motion for the entry of a default judgment is denied.

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

Decided on July 2, 2021

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

Goldberg Miller & Rubin, P.C. (Timothy Bishop of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered November 8, 2018, deemed from a judgment of that court entered December 18, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 8, 2018 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $469.45.

ORDERED that the judgment is reversed, with $30 costs, the order entered November 8, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that there was no coverage for no-fault benefits as defendant had not issued an automobile insurance policy which would cover the underlying accident, and granting plaintiff’s cross motion for summary judgment. A judgment was subsequently entered on December 18, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

For the reasons stated in Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co. (69 Misc 3d 144[A], 2020 NY Slip Op 51379[U] [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2020]), the judgment is reversed, the order entered November 8, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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

Decided on July 2, 2021

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

Jacobson & Schwartz, LLP (Gary R. Schwartz of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered April 25, 2018. The order denied defendant’s motion to vacate a judgment of that court entered April 2, 2018 upon defendant’s failure to appear or answer the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion to vacate a judgment of that court entered upon defendant’s failure to appear or answer the complaint.

For the reasons stated in Daily Med. Equip. Distrib. Ctr., Inc., as Assignee of Balderrna, David v American Ind. Ins. Co. (___ Misc 3d ___, 2021 NY Slip Op ______ [appeal No. 2019-341 K C], decided herewith), the order is reversed and defendant’s motion to vacate the default judgment is granted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Submit judgment.

The foregoing constitutes the decision and order of this Court.

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

Footnotes

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

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

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

CV-740154-19/KI

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

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

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

CPLR 2219(a) Recitation

NOTICE OF MOTION & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION 3

EXHIBITS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The timely mailing of Plaintiff’s bills is established as Defendant acknowledged timely receipt of those bills. However, in its cross motion, Plaintiff failed to establish its full compliance with Defendant’s verification requests or that the requests themselves were improper. It is well settled that summary judgment is appropriate when sufficient evidence in admissible form is presented to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In support of its cross-motion, Plaintiff attaches the December 8, 2020 affidavit of John Nasrinpay, wherein he avers the following: “I personally responded and mailed on 01/18/2019, 03/07/2019, [*4]04/05/2019 and 05/07/2019 the verification response in issue in this case to the address designated by defendant on the verification requests, to the extent that such response was proper and in my possession.” The affiant provides no further details as to which documents constituted the “verification response in issue” that were “proper” and in his “possession.” Further, while the affidavit refers to the responses provided, there is no admissible documentation to that effect as Plaintiff fails to attach copies of the allegedly mailed responses to its motion. The arguments within Plaintiff’s motion objecting to the propriety of Defendant’s verification requests are equally vague and conclusory. Accordingly, Plaintiff’s request for summary judgment is denied.

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

Further, Defendant’s fraudulent incorporation defense is a non-precludable affirmative defense (State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]; 11 NYCRR 65-3.16[a]). An insurance carrier may, at any time, assert a non-precludable “Mallela defense” and deny payment based on the medical provider’s fraudulent incorporation (Matter of Acuhealth Acupuncture, P.C. v. Country-Wide Ins. Co., 149 AD3d 828 [2d Dept. 2017]; Lexington Acupuncture, P.C. v. General Assur. Co., 35 Misc 3d 42, 44, [App. Term, 2d, 11th & 13th Jud. Dists 2012]). “Inasmuch as the defense of ‘fraudulent incorporation’ is not subject to the preclusion rule, the defendant may raise this defense in its answer, even if not asserted in the claim denial” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 35 Misc 3d 1235[A] [Dist Ct, Suffolk County 2012]). Accordingly, Plaintiff failed to establish that dismissal of any of Defendant’s affirmative defenses, including its outstanding verification defense, is warranted under CPLR 3211 (b).

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

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

This constitutes the decision and order of this court.

ENTER.

June 30, 2021

Brooklyn, NY

Hon. Consuelo Mallafre Melendez

Judge, Civil Court

Footnotes

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

Index No. CV-716670-16/KI

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

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

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

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

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

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

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

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

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

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

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

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