[*1]

Supreme Court, New York County, February 4, 2021

APPEARANCES OF COUNSEL

[*2]Jaffe & Velazquez, LLP, New York City (Carl J. Gedeon of counsel), for plaintiff.

The Rybak Firm, PLLC, Brooklyn (Oleg Rybak of counsel), for Healthway Medical Care P.C. and others, defendants.

This motion concerns plaintiff Country-Wide Insurance Company’s potential obligation to pay no-fault insurance benefits. Defendant Jeffrey Delacruz was the driver of a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by Country-Wide. Delacruz assigned the right to collect no-fault benefits under that policy to various treating medical providers. Those providers applied for no-fault benefits from Country-Wide but were denied.

Country-Wide then brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Delacruz or to the other defendants (all medical-provider assignees of Delacruz). Country-Wide moved for, and was granted, a default judgment under CPLR 3215 against Delacruz and several non-appearing medical providers.

Country-Wide now moves for summary judgment under CPLR 3212 against the remaining medical-provider defendants: Healthway Medical Care P.C., Acupuncture Now P.C., SB Chiropractic, P.C., and Dr. Jules Francois Parisien. The motion is denied.

Discussion

Country-Wide argues that it is entitled to summary judgment because Delacruz’s failure to appear for scheduled examinations under oath (EUOs) defeats coverage under the no-fault policy, and thus forecloses the remaining medical providers’ claim to benefits.

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 Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) A no-fault-benefits claimant must appear for an EUO when reasonably requested to do so by the insurer. (See 11 NYCRR 65-1.1.) And a claimant’s failure without reasonable cause to appear for a timely and properly scheduled EUO is grounds to deny coverage. An EUO request, though, “must be based upon the application of objective standards so that there is specific{**71 Misc 3d at 249} objective justification supporting the use of such examination.” (Id. § 65-[*3]3.5 [e].) And the request must be made within 15 days of the insurer’s receipt of the forms that it requires to verify no-fault claims (such as the standard NF-3 form). (See id. § 65-3.5 [a]-[b].)

This court agrees that Country-Wide has demonstrated that its EUO request was timely made and properly transmitted to Delacruz, and that Delacruz nonetheless failed twice to appear for his EUO. Defendants have, however, questioned whether Country-Wide had sufficient justification to have made that EUO request in the first place. Defendants also have shown that they requested—but have not yet received—material discovery from Country-Wide on this issue. This court concludes, therefore, that Country-Wide’s motion for summary judgment must be denied as premature under CPLR 3212 (f).

I. Whether Country-Wide Has Established That it Timely Requested Delacruz’s Appearance at an EUO

Here, the documents submitted by Country-Wide in support of summary judgment do not include any NF-3 forms submitted by Dr. Parisien. Country-Wide thus has not shown that it satisfied section 65-3.5’s 15-business-day time frame with respect to defendant Dr. Parisien. The motion for summary judgment is denied as to Dr. Parisien.

The absence of evidence as to Dr. Parisien, however, does not alone foreclose Country-Wide from obtaining the requested declaratory judgment as to the other medical providers. (See Unitrin Advantage Ins. Co. v Dowd, 67 Misc 3d 1219[A], 2020 NY Slip Op 50594[U], *3 [Sup Ct, NY County, May 21, 2020] [holding that where an “insurer’s EUO request is timely as to some (benefits) claims and untimely as to others, the insurer is entitled to deny coverage . . . as to those claims for which it timely requested verification”].)

With respect to the remaining three providers, Country-Wide has met its prima facie burden to establish its compliance with sections 65-3.5 (b) and 65-3.6 (b). Country-Wide has provided documentary evidence that (i) Country-Wide received verification forms from the medical providers on May 8, 2018 (see generally NY St Cts Elec Filing [NYSCEF] Doc No. 61 [NF-3 forms with date stamps indicating receipt]); (ii) Country-Wide first mailed its EUO request to Delacruz on May 16, 2018 (see NYSCEF Doc No. 53); and (iii) Country-Wide mailed the request to the address appearing on Delacruz’s NF-2 benefits-application form (compare NYSCEF Doc No. 19 [NF-2 form], with NYSCEF{**71 Misc 3d at 250} Doc No. 53 [first EUO letter]).^[FN1] Country-Wide also has provided documentary evidence that after the EUO was initially rescheduled, Delacruz twice failed to appear for his EUO despite receiving proper advance notice of the rescheduled EUO dates. (See NYSCEF Doc Nos. 54-57, 59.)

In opposing summary judgment, defendants argue that Country-Wide’s submissions are [*4]insufficient because those submissions do not demonstrate that the NF-3 forms relied on by Country-Wide were the earliest such forms that Country-Wide received in this case. (See NYSCEF Doc No. 63 ¶ 27.) This court disagrees. The forms Country-Wide submitted reflect billing by each defendant for treatments provided within a week of the underlying collision, and in some cases as early as one or two days after the collision. (See e.g. NYSCEF Doc No. 61 at 3, 6, 10.) On the record before the court, therefore, it is difficult to see how defendants could have (i) provided earlier treatments that were (ii) included in separate earlier NF-3 forms submitted to Country-Wide, and which (iii) Country-Wide would have received more than 15 business days before it mailed its first EUO request. At the very least Country-Wide has submitted sufficient evidence to meet its initial prima facie burden to show that the first EUO request was timely.^[FN2]

II. Whether Country-Wide Still Owes Defendants Material Discovery on Whether Country-Wide’s EUO Request was Reasonable

Defendants’ opposition papers do not provide countervailing evidence that would create a dispute of fact about whether Country-Wide timely asked Delacruz to appear for an EUO; or whether Delacruz failed to appear despite timely notice having been properly mailed to him. Instead, defendants argue that material discovery remains outstanding, rendering Country-Wide’s summary-judgment motion premature. (See NYSCEF Doc No. 63 at 20-23.) This court agrees.{**71 Misc 3d at 251}

A. Whether Country-Wide Has Sufficiently Established That its EUO Request was Reasonable Even Absent Discovery

As noted above, an insurer’s request that a no-fault applicant appear for an EUO must be reasonable and have a specific objective justification. The EUO notices that Country-Wide provided here to Delacruz did not include that justification on their face—they stated only that Country-Wide “would like to clarify some of the facts and circumstances surrounding this claim.” (E.g. NYSCEF Doc No. 53 at 2.) The defendants served a request for Country-Wide’s investigative file in the case (among other discovery) to learn the basis for the EUO request made to Delacruz. That request undisputedly remained pending when Country-Wide moved for summary judgment. (See NYSCEF Doc No. 63 ¶ 81.) The motion is therefore premature under CPLR 3212 (f). (See Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671, 671 [1st Dept 2020] [affirming denial of summary judgment as premature because plaintiff insurer had not yet provided defendant providers with the justification for its EUO request]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015] [reversing grant of summary judgment because “(t)he reason for the EUO request is a fact essential to justify [*5]opposition to plaintiff’s summary judgment motion . . . and such fact is exclusively within the knowledge and control of the movant”].)

Country-Wide makes several arguments for why summary judgment may properly be granted even absent this discovery. None are persuasive.

Country-Wide suggests that the Mena-Sibrian affidavit included in its motion papers sufficiently explained the “factors that raised questions as to the legitimacy of the claim” (thereby prompting the underlying EUO request). (NYSCEF Doc No. 79 ¶ 28; see also id. ¶ 37.) Country-Wide does not, however, explain why it should be sufficient only to provide selected documents supporting the reasonableness of its EUO request at the time of the motion itself. Ordinarily, one would expect Country-Wide instead to have to turn over all relevant and responsive documents on the issue to defendants in discovery before moving for summary judgment.

Additionally, the Mena-Sibrian affidavit relied upon by Country-Wide states only that “material facts surrounding the accident required clarification.” (NYSCEF Doc No. 58 ¶ 10.) It does not identify what facts required clarification, or why. Although that paragraph of the affidavit refers also to “objective {**71 Misc 3d at 252}criteria stated herein” for making EUO requests (id.), no such criteria are in fact stated.^[FN3] Thus, even assuming Country-Wide could satisfy its burden to show a proper objective basis for its EUO request merely through its summary-judgment papers, Country-Wide has not done so here. (Cf. State Farm Mut. Auto. Ins. Co. v Sweetwater Chiropractic, P.C., 60 Misc 3d 1219[A], 2018 NY Slip Op 51177[U], *3 [Sup Ct, NY County, Aug. 6, 2018] [denying summary judgment as premature where an affidavit submitted by the insurer at summary judgment was not sufficiently specific about why the insurer requested an EUO in the case]; Unitrin Advantage Ins. Co. v Better Health Care Chiropractic, P.C., 2016 NY Slip Op 30837[U], *9 [Sup Ct, NY County, May 4, 2016] [adhering to denial of medical providers’ motion to compel discovery about the insurer’s EUO request in light of a detailed affidavit from the insurer’s claim representative about the basis to suspect that the collision was staged].)

B. Whether Any Challenge to the Justification for Country-Wide’s EUO Request Has Been Waived

Country-Wide also contends that defendants’ present challenge to the justification for the EUO request was waived because neither Delacruz nor his medical-provider assignees questioned the need for the EUO when it was first requested. (See NYSCEF Doc No. 79 ¶ 26, [*6]citing Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, July 28, 2014].) The cited Longevity Med. Supply decision, though—and indeed, nearly all of the cases that it cites in turn^[FN4]—was issued by the Appellate Term of Supreme Court, rather than by the Appellate Division. These cases are therefore at most persuasive authority.^[FN5] (See Kattan v 119 Christopher LLC, 69 Misc 3d 1223[A], 2020 NY Slip Op {**71 Misc 3d at 253}51469[U], *3-4 [Sup Ct, NY County, Dec. 11, 2020] [collecting cases].)

This court sees no basis to impose what would be in effect an exhaustion requirement on challenges to the basis for an insurer’s EUO request. The court reaches this conclusion for several reasons. The governing no-fault regulations give significant weight to the insurer’s obligation to limit EUO requests only to those cases where they are actually warranted. That is, the regulations require not merely that the insurer have a specific, objective justification for requesting an EUO in a given case, but also that the justification stems from applying preexisting objective standards prepared by the insurer, and that these standards be made “available for review by [Insurance Department] examiners.”^[FN6] (11 NYCRR 65-3.5 [e].) Imposing an exhaustion requirement on challenges to the basis for an EUO request would run contrary to the Insurance Department’s evident policy aim of policing insurers’ use of EUO requests.

Nor is there an offsetting policy interest here that favors exhaustion. Requiring a no-fault claimant to seek more information about the basis for an EUO request when made would not ward off disputes about whether a given EUO request was justified. Nor would it enable a specialist expert to resolve such disputes at the outset. Instead, it would simply mean that the issue of EUO justification could potentially arise twice—first at the time of the request itself, [*7]then later during any coverage{**71 Misc 3d at 254} litigation should the claimant not appear for the requested EUO.^[FN7]

Further, an exhaustion requirement would be particularly anomalous in the no-fault context. That is, the party required in the first instance to object to the lack of a basis for the EUO request would be no-fault claimants themselves. But the party foreclosed later from raising the challenge in litigation absent an objection often would be not claimants, but their medical-provider assignees. Those assignees likely would be unable to ensure that the claimant raised the issue at the time of the EUO request; yet they would be bound anyway by the absence of such a request. Such a result would be neither fair nor efficient.

This court therefore concludes that the provider defendants may still raise an argument that Country-Wide’s EUO request lacked the required specific and objective justification, and that defendants are entitled to obtain discovery from Country-Wide on that issue.

Accordingly, it is hereby ordered that the branch of Country-Wide’s motion under CPLR 3212 seeking summary judgment in its favor as to defendant Dr. Parisien is denied; and it is further ordered that the branch of Country-Wide’s motion under CPLR 3212 seeking summary judgment in its favor as to defendants Healthway Medical Care, Acupuncture Now, and SB Chiropractic is denied without prejudice as premature under CPLR 3212 (f); and it is further ordered that the parties shall appear for a telephonic status conference on February 17, 2021, to discuss an appropriate discovery schedule in this action going forward.

Footnotes

Footnote 1:The NF-2 form included in Country-Wide’s summary-judgment papers appears to have been taken inadvertently from a different, unrelated benefits claim. (See NYSCEF Doc No. 52.) But Country-Wide’s default-judgment motion papers attached the correct NF-2 form submitted by Delacruz. (See NYSCEF Doc No. 19.)

Footnote 2:To the extent defendants are arguing that even the forms submitted by Country-Wide do not “demonstrate the dates when Plaintiff received Provider Defendants’ verification forms” (see NYSCEF Doc No. 63 ¶¶ 40, 42), that argument is refuted not only by the affidavit of Jessica Mena-Sibrian (see NYSCEF Doc No. 58 ¶ 9), but also by date stamps evidencing receipt that appear on the forms themselves (see generally NYSCEF Doc No. 61).

Footnote 3:Similarly, Country-Wide’s reply references certain facts that might call into question the legitimacy of a no-fault claim—and suggests that those facts are set forth in the Mena-Sibrian affidavit submitted in support of summary judgment. (See NYSCEF Doc No. 79 ¶ 37.) They are not. (See NYSCEF Doc No. 58.) Nor does any other document submitted by Country-Wide establish that it believed the referenced facts to be present in this case, or that this belief prompted Country-Wide’s EUO request.

Footnote 4:The lone exception, Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., addresses a different issue not presented here—whether two demands by an insurer for further verification of a no-fault claim sufficed to toll the insurer’s time to pay or deny the claim. (See 262 AD2d 553, 555 [2d Dept 1999].)

Footnote 5:Additionally, Longevity Med. Supply v IDS Prop. & Cas., and the cases it cites, are decisions of the Appellate Term, Second Department, which in turn is bound by precedent of the Appellate Division, Second Department. And that precedent has imposed a greater burden on medical-provider assignees challenging the basis for an insurer’s EUO request than exists in the Appellate Division, First Department. (Compare Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014] [rejecting medical providers’ argument that the insurer’s summary-judgment motion was premature absent discovery into the specific justifications for the insurer’s EUO request], with Jaga Med. Servs., 128 AD3d at 441 [accepting this argument], and AB Med. Supply, 187 AD3d at 671 [same].)

Footnote 6:It also appears relevant, if perhaps not dispositive, that the requirement that an insurer have a specific justification for its EUO requests appears in section 65-3.5: With respect to several other requirements governing EUO requests in section 65-3.5, the First Department has held that an insurer moving for summary judgment must affirmatively establish its compliance with those requirements. (See e.g. Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 617-618 [1st Dept 2018].)

Footnote 7:Indeed, given the possibility of no-fault arbitration and ensuing de novo litigation (see Insurance Law § 5106), the issue might in fact come up three different times in a single case.

Decided on January 15, 2021

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

Law Offices of Moira Doherty, P.C. (Janice P. Rosen of counsel), for appellant. Law Office of Thomas Torto (Thomas Torto of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fischer, J.), entered February 22, 2013. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by an eligible injured person to recover first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing the complaint on that ground that, due to plaintiff’s failure to comply with a discovery order dated October 16, 2009, plaintiff was precluded from offering testimony at trial. Defendant appeals from so much of an order of the Civil Court (Pamela L. Fischer, J.) entered February 22, 2013 as denied defendant’s motion. Upon a review of the record, we agree with the Civil Court’s implicit determination that preclusion is not warranted under the circumstances presented.

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

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

656547/2017

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

Gottlieb Ostrager LLP, Hauppauge, NY (Aaron E. Meyer of counsel), for defendant.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 60 were read on this motion for SUMMARY JUDGMENT.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 52, 53, 54, 55, 56, 57, 58, 59 were read on this motion to EXTEND TIME.

In this action, plaintiff, Allstate Insurance Company, seeks a de novo adjudication of defendant DHD Medical, P.C.’s entitlement to no-fault insurance benefits, following an arbitration award in DHD Medical’s favor of $5,786.91.

DHD Medical’s assignor, Miraculeuse Alexis, was struck and injured by an automobile insured by Allstate. Alexis subsequently received medical treatment and physical therapy from doctors and staff at DHD Medical. She assigned her right to collect no-fault insurance benefits to DHD Medical. Allstate later denied DHD Medical’s claim for benefits on the ground that the treatment provided was not medically necessary.

DHD Medical challenged the denial of benefits in a no-fault arbitration proceeding under Insurance Law § 5106 (b). In the arbitration proceeding, Allstate relied on the report of a physician who conducted an independent medical examination (IME) of Alexis, and found no need for further treatment, prior to the treatments for which DHD Medical was seeking no-fault benefits. DHD Medical relied on several reports from its treating physicians and physical therapists who had diagnosed and treated Alexis. The first-level arbitrator found DHD Medical’s evidence more persuasive and held that DHD Medical was entitled to $5,786.91 in no-fault [*2]benefits. That decision was affirmed on administrative appeal to a master arbitrator.

Allstate then brought this action under Insurance Law § 5106 (c) seeking a de novo adjudication of whether Allstate is liable to pay any no-fault benefits. DHD Medical initially defaulted, and this court granted Allstate’s motion for default judgment. DHD Medical later moved to vacate its default, which this court granted. The answer that DHD Medical sought leave to serve included a counterclaim for the $5,786.91 in benefits. Allstate did not timely file a reply to the counterclaim.

In motion sequence 003, Allstate moves for summary judgment in its favor on its claim that it has no benefits liability to DHD Medical. DHD Medical cross-moves for summary judgment dismissing Allstate’s claim. Also in motion sequence 003, DHD Medical moves for default judgment under CPLR 3215 on its counterclaim for the $5,786.91. In motion sequence 004, Allstate seeks to compel DHD Medical to accept its late reply to counterclaims under CPLR 3012 (d).

The motions are consolidated here for disposition. Allstate’s motion under CPLR 3012 in motion sequence 004 is granted. The parties’ respective motion and cross-motion for summary judgment in motion sequence 003 are denied. DHD Medical’s cross-motion for default judgment in motion sequence 003 is denied.

DISCUSSION

Where a no-fault insurance arbitrator has issued a benefits award of more that $5,000 (exclusive of interest and attorney fees), either the insurer or the claimant may bring an action in court to adjudicate the benefits dispute de novo. (See Insurance Law § 5106 [c].) Here, each party contends that under CPLR 3212 it is entitled to judgment as a matter of law on Allstate’s de novo claim that it properly denied DHD Medical’s application for benefits. This court disagrees.

Both Allstate and DHD Medical rely essentially on the same medical evidence that they put before the arbitrators—i.e., the IME report of the physician who examined Alexis for Allstate, and the medical records of Alexis’s treatment by DHD Medical physicians and physical therapists (plus an accompanying explanatory physician’s affirmation). This conflicting medical evidence creates an obvious question of fact about whether DHD Medical provided Alexis necessary medical treatment. Summary judgment must therefore be denied.^[FN1] (See Lynch v Security Indemnity Ins. Co., 302 AD2d 295, 295-296 [1st Dept 2003].) The court declines DHD Medical’s invitation to assess at summary judgment whether Allstate’s IME report is credible and entitled to evidentiary weight. (See Wagner v Baird, 208 AD2d 1087, 1089 [3d Dept 1994] [reversing grant of summary judgment in de novo action under Insurance Law § 5106].)

DHD Medical also cross-moves for default judgment on its $5,786.91 counterclaim; and Allstate moves to compel DHD Medical to accept its untimely reply to that counterclaim. DHD Medical’s cross-motion is denied, and Allstate’s motion is granted. The affidavit of Allstate’s counsel establishes that Allstate’s failure to reply timely to the counterclaim was due essentially to law-office failure. This court concludes that in the circumstances of this case—including pandemic-related confusion and dislocation over the last 10 months—that law-office failure [*3]constitutes a reasonable excuse. Allstate also has a potentially meritorious defense based on the IME report (and underlying physician’s examination) discussed above.

Additionally, the central issue on DHD Medical’s counterclaim—whether Allstate properly denied DHD Medical’s no-fault benefits application—is identical to the issue presented by Allstate’s main claim. Granting DHD Medical’s motion for default judgment on its counterclaim would thus effectively terminate the entire action in DHD Medical’s favor. The court concludes that the action should instead be resolved on its merits.

Accordingly, it is hereby

ORDERED that Allstate’s motion for summary judgment under CPLR 3212, seeking judgment in Allstate’s favor on its liability to pay no-fault benefits to DHD Medical (motion sequence 003) is denied; and it is further

ORDERED that the branch of DHD Medical’s cross-motion seeking summary judgment in its favor on Allstate’s liability to pay no-fault benefits (motion sequence 003) is denied; and it is further

ORDERED that the branch of DHD Medical’s cross-motion seeking default judgment under CPLR 3215 on DHD Medical’s counterclaims for the disputed amount in no-fault benefits (motion sequence 003) is denied; and it is further

ORDERED that Allstate’s motion under CPLR 3012 to require DHD Medical to accept Allstate’s untimely reply to DHD Medical’s counterclaims is granted; and it is further

ORDERED that the parties shall inform the court how they intend to proceed with the action going forward at a status conference to be held telephonically on January 21, 2020.

Dated: January 8, 2021
Hon. Gerald Lebovits
J.S.C.

Footnotes

Footnote 1:To the extent that Allstate now seeks to rely on other grounds for denying DHD Medical’s benefits application (such as an asserted failure to prove that supporting medical bills were properly submitted), the court declines to reach that argument because those grounds were neither the proffered basis for the denial nor raised in arbitration.

Decided on December 23, 2020

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

Law Office of Aloy O. Ibuzor (Michael J. Rivers of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered May 11, 2018. The order granted plaintiff’s motion for summary judgment and denied 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, defendant appeals from an order of the Civil Court entered May 11, 2018 which, applying New York law, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. The written order states, in part, that “[e]ven though the underlying accident took place in New Jersey, defendant did not prove that New Jersey law should apply in this case and that [the] case should be tried in a New Jersey arbitration forum.” Defendant’s sole appellate contention is that the Civil Court should have found that the law of New Jersey controlled.

“This conflict of law, although arising in the context of a motor vehicle accident, must be resolved by the conflict of law rules relevant to contracts, not torts” (Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 58 [2000]; see Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 319 [1994]; Matter of Allstate Ins. Co. [Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 226 [1993]). In Auten v Auten (308 NY 155, 160-161 [1954]), the Court of Appeals developed a flexible “center of gravity” or “grouping of contacts” approach which gave controlling effect to the law of the state that has “the most significant relationship to the transaction and the parties” (Restatement [Second] of Conflict of Laws § 188 [1]; see also Matter of Allstate Ins. Co. [Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d at 226 [“spectrum of significant contacts”]).

It is uncontroverted that the automobile accident took place in New Jersey and that a [*2]conflict exists between the no-fault laws of New York and New Jersey. The record on appeal indicates that the assignor is a New York resident who received medical services in New York from a New York provider. Defendant’s insurance policy was a Massachusetts business automobile policy issued to a Massachusetts corporation which owned the vehicle involved in the accident and in which the assignor was a passenger. We find that the Civil Court properly determined that New York law controls, since New York has the most significant contacts (see Matter of Allstate Ins. Co. [Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d at 226; Auten v Auten, 308 NY at 160-161), as both the assignor and medical provider are located in New York. We note that defendant’s papers failed to establish that New Jersey has more significant contacts than New York. Defendant’s remaining contentions lack merit.

Accordingly, the order is affirmed.

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

Lower Court # 131906/09 The Rybak Firm, PLLC, (Damin J. Toell and Karina Barska of counsel), for appellant. Bruno, Gerbino. Soriano & Aitken, LLP, (Nathan M. Shapiro and Shaun Malone of counsel), for respondent.

Appeals from two judgments of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered December 5, 2017 and February 8, 2018, respectively. Each judgment, after a consolidated nonjury trial of the two above-captioned actions, dismissed the respective complaint.

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

ORDERED that the judgments are affirmed, with $25 costs on each appeal.

In these two actions by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from two judgments, each of which, after a consolidated nonjury trial, dismissed the respective complaint on the ground of lack of medical necessity.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

Here, as the court implicitly determined, defendant’s expert witness adequately provided a factual basis and medical rationale for his conclusion that there was no medical necessity for the services at issue in each case, manipulation under anesthesia (MUA). Contrary to plaintiff’s contentions, the court did not rely on any evidence provided by defendant’s expert that [*2]impermissibly went beyond the scope of the peer review report (see Radiology Today, P.C. v Geico Ins. Co., 58 Misc 3d 132[A], 2017 NY Slip Op 51768[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Defendant’s experts’s theory in both his peer review report and at trial was, essentially, that MUA is an “aggressive” and possibly dangerous treatment and should therefore be used very rarely, limited to cases where, among other things, there has first been improvement with a course of traditional chiropractic care, and that the records here were inconsistent and not clear enough to show that this was one of those cases. The court was entitled to credit that testimony. The court also implicitly found that plaintiff’s witness’s testimony was less credible and failed to sufficiently rebut defendant’s expert’s testimony.

To the extent plaintiff argues that the Civil Court erred in sustaining objections to questions regarding an MUA textbook that was not in evidence, “since [plaintiff] failed to identify any prejudice which resulted from such alleged error, we conclude that the error, if any, was harmless” (Edwards v Nemet Motors, LLC, 60 Misc 3d 28, 31 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; see CPLR 2002; Parris v New York City Tr. Auth., 140 AD3d 938 [2016]). Plaintiff’s remaining contentions were either not raised in the Civil Court or lack merit.

Accordingly, the judgments are affirmed.

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

Decided on December 18, 2020

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

Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maurice E. Muir, J.), entered December 12, 2018. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking to dismiss so much of the complaint as sought to recover no-fault statutory interest to the extent of tolling the accrual of that interest from September 28, 2005 to April 13, 2018.

ORDERED that the order, insofar as appealed from, is modified by providing that the accrual of no-fault statutory interest is tolled from November 26, 2005 to April 13, 2018; as so modified, the order is affirmed, with $25 costs.

Plaintiff commenced this action in 2002 to recover assigned first-party no-fault benefits for services allegedly rendered in 2001. The record demonstrates that issue was joined in December 2002. Thereafter, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered October 13, 2004, the Civil Court denied the motion and cross motion. By order entered November 26, 2005, the Civil Court, upon granting reargument to defendant, adhered to the court’s prior determination denying defendant’s cross motion for summary judgment dismissing the complaint. Plaintiff appeals from so much of an order entered December 12, 2018 as granted the branch of defendant’s motion seeking to dismiss so much of the complaint as sought to recover no-fault statutory interest to the extent of tolling the accrual of that interest from September 28, 2005 to April 13, 2018.

As plaintiff took no meaningful action to prosecute the case after the court decided defendant’s motion for leave to reargue its cross motion for summary judgment, for the reasons stated in A.M. Med. Servs., P.C., as Assignee of Boris Simanovsky v State Farm Mut. Ins. Co. (___ Misc 3d ___, 2020 NY Slip Op _____ [appeal No. 2018-2460 Q C], decided herewith), the order, insofar as appealed from, is modified by providing that the accrual of interest is tolled from November 26, 2005 to April 13, 2018.

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

Law Office of David O’Connor, LLC (David O’Connor of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maurice E. Muir, J.), entered April 20, 2018. The order, insofar as appealed from and as limited by the brief, granted the branch of defendant’s motion seeking to toll the accrual of no-fault statutory interest based upon plaintiff’s delay in the prosecution of the action to the extent of tolling that interest from January 1, 2005 to July 12, 2017.

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

Plaintiff commenced this action in 2002 to recover assigned first-party no-fault benefits for services allegedly rendered in 2001. The record demonstrates that issue was joined in July 2002, that a motion by plaintiff for summary judgment was denied in December of 2004, and that plaintiff served and filed a notice of trial in or about July 2017. Plaintiff appeals, as limited by the brief, from so much of an order entered April 20, 2018 as granted the branch of defendant’s motion seeking to toll the accrual of no-fault statutory interest to the extent of tolling that interest from January 1, 2005 to July 12, 2017.

Where a provider does not commence a no-fault action within 30 days of receipt of the insurer’s denial of claim form, the Insurance Department Regulations provide that statutory interest (see Insurance Law § 5106 [a]) does not begin to accumulate until an action is commenced (11 NYCRR 65-3.9 [c]). If an action has been commenced, statutory interest accumulates “unless the applicant unreasonably delays the . . . court proceeding” (former 11 NYCRR 65.15 [h] [now 11 NYCRR 65-3.9 (d)]). In this case, since plaintiff moved for [*2]summary judgment, but took no meaningful action to prosecute the case after that motion was denied until it filed a notice of trial on July 12, 2017, the Civil Court properly tolled the no-fault interest until that date. Plaintiff’s assertion on appeal, that defendant failed to serve responses to plaintiff’s discovery demands, even if true, is not a basis to find that it was defendant who had “unreasonably delay[ed]” the action (see Vitality Chiropractic, P.C. v Countrywide Ins., 59 Misc 3d 150[A], 2018 NY Slip Op 50838[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

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

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

Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt 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 3, 2019. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved in March 2018 to dismiss the complaint on the ground that defendant had not been served with a notice of trial within 90 days of defendant’s service upon plaintiff’s attorney’s office manager, on September 11, 2017, of a 90-day demand (see CPLR 3216). By order entered April 3, 2019, the Civil Court (Odessa Kennedy, J.), among other things, denied defendant’s motion, finding that defendant had not served the 90-day demand in compliance with CPLR 3216 (b) (3).

The Civil Court should not have denied defendant’s motion on the ground that the 90-day notice was not served in compliance with the statute. Plaintiff did not make that argument in opposition to defendant’s motion, did not dispute receipt of the 90-day demand and did not make the required showing of prejudice (see Balancio v American Opt. Corp., 66 NY2d 750 [1985]; Michaels v Sunrise Bldg. & Remodeling, Inc., 65 AD3d 1021 [2009]).

Upon receipt of a 90-day demand, a plaintiff must either comply with the demand by [*2]filing a notice of trial within 90 days thereafter (see CPLR 3216 [b] [3]; [c]) or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, since plaintiff did not file a notice of trial within 90 days after its receipt of the 90-day demand and had not moved prior thereto to vacate the demand or to extend the 90-day period, it was required, in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay and the existence of a meritorious cause of action (see CPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Lee v Rad, 132 AD3d 643 [2015]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43).

While a court, in its discretion, may accept a claim of law office failure as an excuse (see CPLR 2005), here, the affidavit submitted by plaintiff’s attorney’s office manager in opposition to defendant’s motion did not provide a detailed and credible explanation of the law office failure that had caused the delay (see Silver Acupuncture, P.C. v GEICO Indem. Co., 69 Misc 3d 128[A], 2020 NY Slip Op 51134[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Faith Acupuncture, P.C. v Government Empls. Ins. Co., 63 Misc 3d 156[A], 2019 NY Slip Op 50829[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Premier Surgical Servs., P.C. v Allstate Ins. Co., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). The office manager’s affidavit set forth her firm’s policy to the effect that, upon receipt of a 90-day demand, the demand is given to a paralegal to enter such receipt in the firm’s computer system. The office manager further stated that, in the instant case, there is no such entry in the computer system. However, there was no affidavit submitted by the paralegal and no explanation as to why there was none forthcoming. In any event, the office manager failed to explain what happened to the 90-day demand or why plaintiff did not respond to it. Consequently, plaintiff’s claim of law office failure did not rise to the level of a justifiable excuse. In view of the foregoing, it is unnecessary to consider whether plaintiff demonstrated the existence of a meritorious cause of action (see generally Levi v Levi, 46 AD3d 519 [2007]; Premier Surgical Servs., P.C., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

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

Decision Date: December 11, 2020

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Lisa Grey, J.), entered September 20, 2018. The order denied defendant’s 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 for injuries the assignor sustained in a motor vehicle accident in New York on June 5, 2015, defendant moved for summary judgment dismissing the complaint on the ground that the South Carolina automobile insurance policy was fraudulently procured by the assignor, who is also the insured, based on alleged misrepresentations which she had made on her application for insurance. By order entered September 20, 2018, the Civil Court, applying the substantive law of South Carolina (see Portfolio Recovery Assoc., LLC v King, 14 NY3d 410 [2010]), denied defendant’s motion. We note that no issue is raised on appeal regarding the applicability of South Carolina law.

South Carolina allows an insurance company to rescind an automobile insurance policy ab initio under certain circumstances (see Strickland v Prudential Ins. Co., 278 SC 82, 86-87, 292 SE2d 301, 304 [1982]). In order for an insurance company to be entitled to summary judgment dismissing the complaint based on a rescission, ab initio, of the policy issued in a sister state, the insurance company “has the burden of establishing that it complied with the law of the [*2]sister state which permits retroactive rescission” (Delta Diagnostic Radiology, P.C. v Infinity Group, 49 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see Parisien v Omni Indem. Co., 67 Misc 3d 141[A], 2020 NY Slip Op 50725[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Craigg v Infinity Select Ins. Co., 38 Misc 3d 56 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Upon a review of the record, we find that the papers defendant submitted in support of its motion for summary judgment dismissing the complaint failed to establish its prima facie entitlement to judgment as a matter of law, as it did not show that defendant had complied with the requirements of South Carolina Code Annotated § 38-75-730 (b).

Accordingly, the order is affirmed.

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