Decided on July 10, 2020

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

Law Offices of Buratti, Rothenberg & Burns (Bryan M. Rothenberg of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 15, 2018. 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 reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court entered October 15, 2018 as denied defendant’s motion, which had sought summary judgment dismissing the complaint on the ground that, pursuant to a declaratory judgment entered in the Supreme Court, New York County, defendant had no duty to provide coverage for the accident at issue in this case.

For the reasons stated in St. Mark’s Med. Health Care, PLLC as Assignee of Dejean, Ludmilla v 21st Century Ins. Co. (___ Misc 3d ___, 2020 NY Slip Op _____ [appeal No. 2019-361 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

Law Offices of Buratti, Rothenberg & Burns (Bryan M. Rothenberg of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 15, 2018. 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 reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

Plaintiff commenced this action against “21st Century Insurance Company” in the Civil Court on June 22, 2017 to recover assigned first-party no-fault benefits for services that had been provided to its assignor, who had allegedly been injured in an accident on June 7, 2011. Prior to the commencement of this action, 21st Century Advantage Insurance Company and 21st Century Security Insurance Company had brought a declaratory judgment action in the Supreme Court, New York County, against plaintiff and its assignor herein, among other parties, pertaining to the June 7, 2011 accident. By order dated June 3, 2014, the Supreme Court granted, on default, a motion by 21st Century Advantage Insurance Company and 21st Century Security Insurance Company for a default judgment against the provider and assignor herein and “ordered, adjudged and decreed” that 21st Century Advantage Insurance Company and 21st Century Security Insurance Company had “no duty to provide coverage” for the accident at issue (occurring on June 7, 2011); that the applicable insurance policy is null and void with respect to that accident; [*2]and that 21st Century Advantage Insurance Company and 21st Century Security Insurance Company are “not obligated to provide coverage for no-fault reimbursement based upon the failure of the defendants [in the Supreme Court action] to verify their claims.” A Supreme Court judgment, dated July 20, 2017, set forth the same declaration as stated in the June 3, 2014 order. Relying upon the Supreme Court’s order and judgment, defendant moved in the Civil Court for summary judgment dismissing the complaint. Plaintiff opposed the motion on the grounds that there is no collateral estoppel or res judicata effect from the Supreme Court’s order and judgment, and that defendant had failed to establish a prima facie case. Plaintiff also cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court, entered October 15, 2018, as denied defendant’s motion.

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). It is well settled that default judgments, which have not been vacated, can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the Supreme Court declaratory judgment, entered on default, the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY 304; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C., 38 Misc 3d 1).

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

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

Goldberg Miller & Rubin, P.C. (Timothy Bishop of counsel), for appellant. Law Office of Marina Josovich, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered November 8, 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 modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action is premature, as plaintiff had failed to respond to defendant’s timely requests for additional verification.

Defendant’s cross motion was properly denied, as defendant failed to establish, prima facie, that its requests for additional verification were proper or timely, since defendant’s letters, which were submitted in support of its cross motion, merely stated that defendant was waiting for specified documents without actually requesting such verification from the assignor (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), and that verification remains [*2]outstanding.

Plaintiff’s motion for summary judgment should have been denied, as the proof submitted by plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

WESTON, J., concurs in part and dissents in part, and votes to reverse the order, deny plaintiff’s motion for summary judgment, and grant defendant’s cross motion for summary judgment dismissing the complaint in the following memorandum:

While I agree with the majority that plaintiff’s motion should have been denied, I disagree with the majority’s conclusion that defendant’s cross motion was properly denied. Accordingly, I would reverse the order and grant summary judgment to defendant.

In this no-fault action, plaintiff Clear Water Psychological Services, P.C., as assignee of Nicole Mitchell, seeks payment for services rendered to Ms. Mitchell. Following receipt of plaintiff’s claims, defendant timely issued additional verification request letters seeking information to facilitate defendant’s ability to process the claims. The letters were sent to plaintiff and copied to Ms. Mitchell and her attorney. Plaintiff never responded to defendant’s letters.

After plaintiff moved for summary judgment, defendant cross-moved for summary judgment dismissing the complaint. Defendant argued that the action was premature since plaintiff had failed to respond to its requests for verification. Defendant argued that the time to either pay the claim or issue a denial was tolled indefinitely and this action was premature (see Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771 [2006]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2001]; see also Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2007] [when a no-fault medical service provider fails to respond to the requests for verification, the 30 days in which to pay or deny the claim are tolled and do not begin to run]).

It is undisputed that defendant’s additional verification letters were mailed timely.

“Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter . . . insurer, within 10 calendar days after the expiration of that 30-day period, must follow up with a second request for verification (see 11 NYCRR 65-3.6 [b]). If there is no response to the second, or follow-up, request for verification, the time in which the insurer must [*3]decide whether to pay or deny the claim is indefinitely tolled (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317; see also Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864-865 [2009])”

(Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 163 [2013]). Here, defendant’s initial and follow-up letters were all sent within the prescribed time frame.

Defendant’s letters were detailed, unambiguous, and exacting. They did more than merely advise of processing delays. The letters stated: “Be advised that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verifications under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply” (emphasis added). Plaintiff never supplied any information and failed to provide any explanation for the failure to comply.

These letters are more than mere processing delay letters. They were mailed to plaintiff, the insured, and the insured’s counselor, each specifically instructing the applicant to take action to prevent denial of the claim. Plaintiff took no action, even to state that the materials were not under its control or possession. While the majority may have a preference as to how the letters should be addressed, that preference does not equate to legal insufficiency. Indeed, plaintiff’s claim was supported by an assignment of benefit form executed by the insured. In accordance with this assignment, arguably plaintiff was in the position to request any additional documentation from the assignor to ensure its claims could be processed by defendant.

Accordingly, I would grant summary judgment to defendant.

[*1]

Goldberg, Miller & Rubin, P.C., New York (Timothy R. Bishop of counsel), for appellant.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered December 20, 2018, which denied plaintiff’s motion for summary judgment declaring that defendants JS Medical, P.C. and Wert Specialty Orthopedics, P.C. (together, defendants) have no right to collect no-fault benefits from plaintiff with respect to the subject accident, and granted defendants’ cross motion for summary judgment to the extent of dismissing the complaint as against JS, unanimously reversed, on the law, without costs, plaintiff’s motion granted and defendants’ motion denied, and it is declared that defendants have no right to collect said no-fault benefits.

The claimants’ failure to subscribe and return the transcripts of their examinations under oath (EUOs) violated a condition precedent to coverage and warranted denial of the claims (see Hereford Ins. Co. v Forest Hills Med., P.C., 172 AD3d 567 [1st Dept 2019]). This is so notwithstanding plaintiff’s failure to present proof of proper delivery of the denials (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Plaintiff is entitled to summary judgment on the additional ground that defendants failed to appear at two scheduled EUOs (see Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600 [1st Dept 2018]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468 [1st Dept 2016], appeal withdrawn 29 NY3d 995 [2017]). Considering the brevity of the delay and JS’s ultimate failure to appear, we find that plaintiff’s “one-day tardiness in issuing its follow-up request for the EUO scheduled for” JS was “a technical defect excusable under 11 NYCRR 65-3.5 (p)” (Z.M.S. & Y. Acupuncture, P.C. v Geico Gen. Ins. Co., 56 Misc 3d 926, 930 [Civ Ct, Kings County 2017]). Concur—Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City, NY (Shaakee Bhuiyan of counsel), for appellant.

Baker & Cantin, P.C., Rego Park, NY (Elyse Ulino of counsel), for respondent.

In an action to recover first-party no-fault benefits for medical services rendered, the defendant appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered June 20, 2019. The order denied that branch of the defendant’s motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff, a New Jersey medical provider, commenced this action to recover first-party no-fault benefits against the defendant, an insurance company, alleging it provided medical services to an individual (hereinafter the insured) who was injured in a motor vehicle accident and insured by the defendant. The plaintiff also alleged that the insured assigned first-party no fault benefits to it but that the defendant had failed to pay for the medical services provided by the plaintiff to the insured. The defendant moved, inter alia, for summary judgment dismissing the complaint, contending that the claimed expenses were not medically necessary and that the claim for one particular expense was not reimbursable under the applicable New Jersey medical fee schedule for Automobile Insurance Personal Injury Protection and Motor Bus Medical Expense Insurance Coverage (see NJ Admin Code § 11:3-29.5). The parties agree that because the medical services were provided in New Jersey, the New Jersey fee schedule applies. By order entered June 20, 2019, the Supreme Court denied the motion. The defendant appeals, and we affirm.

“[T]he 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 demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d at 324; see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

Here, the defendant made a prima facie showing that the services provided were not medically necessary and that the disputed surgical device was not reimburseable by submitting, inter alia, a peer review report, an independent medical examination report, and medical documentation (see AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d 722, 723 [2016]). In opposition, however, the plaintiff submitted an expert affidavit opining as to the medical necessity of the services based on, among other things, MRI results and findings made during the surgical procedure at issue. These submissions raised a triable issue of fact as to medical necessity (see AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d at 723; Excel Surgery Ctr., L.L.C. v Hertz Claim Mgt. Corp., 58 Misc 3d 145[A], 2017 NY Slip Op 51951[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). The plaintiff also raised a triable issue of fact as to whether the disputed device qualified for reimbursement under New Jersey Administrative Code § 11:3-29.4 (f) (8).

Accordingly, we agree with the Supreme Court’s determination denying the defendant’s motion for summary judgment dismissing the complaint. Rivera, J.P., Chambers, Duffy and Barros, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Daniel J. Tucker (Matteo G. Sandusky of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 15, 2017. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to, in effect, hold the proceeding in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is modified by deleting the provision thereof granting the branch of defendant’s cross motion seeking, in effect, to hold the fifth cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and the provision thereof denying plaintiff’s motion for summary judgment, and substituting, for the latter, a provision holding plaintiff’s motion in abeyance until it is ripe for determination; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination, following a framed issue hearing, of the branch of defendant’s cross motion seeking, in effect, to hold the fifth cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law, in accordance with this decision.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff asserted five causes of action based on five claims and moved for summary judgment thereon. Defendant cross-moved for an order staying the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and directing that, in the event plaintiff fails to file proof with the court of such an application to the Workers’ Compensation Board within 90 days of the date of the court’s order, defendant would be granted summary judgment dismissing the complaint. Defendant argued that plaintiff’s assignor had been [*2]injured during the course of his employment. By order entered February 15, 2017, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). “Since ‘primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board’ ” (Monteiro v Rasraj Foods & Catering, Inc., 79 AD3d 827, 829 [2010], quoting Botwinick v Ogden, 59 NY2d 909, 911 [1983]). This issue must be resolved in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219 [1976]; Siekkeli v Mark Mariani, Inc., 119 AD3d 766 [2014]; Dunn v American Tr. Ins. Co., 71 AD3d 629, 629-630 [2010]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]).

In light of the foregoing, the Civil Court properly granted the branches of defendant’s cross motion seeking, in effect, to hold the first through fourth causes of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law; however, instead of denying plaintiff’s motion for summary judgment, the court should have held that motion in abeyance until, if ever, it becomes ripe for determination. Moreover, with respect to the fifth cause of action, plaintiff correctly argues that there is a threshold issue to be decided—namely, whether defendant’s workers’ compensation defense is precluded as to that cause of action because defendant failed to timely deny the claim (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]; Friedman v Allstate Ins. Co., 51 Misc 3d 129[A], 2016 NY Slip Op 50390[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). On the record before us, the date on which defendant received the claim underlying the fifth cause of action cannot be determined; consequently, this issue of fact must first be resolved following a framed issue hearing. If, after that hearing, the Civil Court finds that defendant timely denied the claim, the branch of defendant’s cross motion seeking to hold this cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law should be granted, for the reasons stated above. If the Civil Court finds that defendant did not timely deny the claim, the branch of defendant’s cross motion seeking to hold that cause of action in abeyance should be denied, as defendant’s defense based on the Workers’ Compensation Law would be precluded; whereupon, the branch of plaintiff’s motion seeking summary judgment on that cause of action will become ripe for resolution by the Civil Court.

Accordingly, the order is modified by deleting the provision thereof granting the branch [*3]of defendant’s cross motion seeking, in effect, to hold the fifth cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and the provision thereof denying plaintiff’s motion for summary judgment, and substituting, for the latter, a provision holding plaintiff’s motion in abeyance until it is ripe for determination, and the matter is remitted to the Civil Court for a new determination, following a framed issue hearing, of the branch of defendant’s cross motion seeking, in effect, to hold the fifth cause of action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

WESTON and ALIOTTA, JJ., concur.

PESCE, P.J., taking no part.

Bruno, Gerbino, Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. Gabriel & Shapiro, LLC, for respondent (no brief filed).

Appeal from a judgment of the District Court of Suffolk County, Third District (James F. Matthews, J.), entered August 16, 2017. The judgment, entered pursuant to an order of that court dated April 12, 2017 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 $3,337.

ORDERED that the judgment is reversed, without costs, the order dated April 12, 2017 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 moved for summary judgment dismissing the complaint on the ground that it had timely denied the claims based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. In an order dated April 12, 2017, the District Court denied defendant’s motion, finding that the letters scheduling the EUOs of plaintiff were defective because they did not specify the claims to which the letters pertained, and the court granted plaintiff’s cross motion. A judgment awarding plaintiff the principal sum of $3,337 was entered on August 16, 2017 pursuant to the April 12, 2017 order.

Defendant established that the EUO scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

“Contrary to the finding by the District Court, the EUO scheduling letters were not ‘defective.’ We note that the initial EUO scheduling letter identified the assignor, the date of the accident and defendant’s file number. The initial EUO scheduling letter resulted in [*2]a toll of defendant’s time to pay or deny plaintiff’s claims as to each claim form which had been submitted by the same plaintiff for the same assignor and accident prior to the EUO request, as long as the request had been timely with respect to such claim, and to any claim form received subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also Tsatkis v State Farm Fire & Cas. Co., 36 Misc 3d 129[A], 2012 NY Slip Op 51268[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Defendant further established that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) its denial of claim forms denying the claims on that ground. In opposition, plaintiff failed to raise a triable issue of fact” (First Class Med., P.C. v Ameriprise Ins. Co., 63 Misc 3d 135[A], 2019 NY Slip Op 50477[U], *1-2 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]).

Accordingly, the judgment is reversed, the order dated April 12, 2017 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

ADAMS, P.J., TOLBERT and RUDERMAN, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, June 17, 2020

APPEARANCES OF COUNSEL

Law Offices of Rachel Perry, Lake Success (Marhall D. Arnett of counsel), for defendant.

The Rybak Firm, PLLC, Brooklyn (Oleg Rybak of counsel), for plaintiff.

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the first, second, and third causes of action, on the ground that plaintiff’s assignor failed to appear for an independent medical examination (IME) scheduled on [*2]August 28 and September 11, 2017. Plaintiff opposes the motion and cross-moves for summary judgment in its favor. Defendant opposes the cross motion.{**68 Misc 3d at 750}

Background

On June 16, 2017, plaintiff’s assignor, Saddiq Waiters, was allegedly injured in a motor vehicle accident (see defendant’s exhibit A, complaint ¶ 2).

At issue in this lawsuit are four bills that plaintiff submitted to defendant for medical equipment/supplies allegedly provided to plaintiff’s assignor on July 10, 2017, August 15, 2017, and August 23, 2017 (two bills were submitted for Aug. 23, 2017). Defendant allegedly received these bills on August 21, 2017, September 1, 2017, and September 12, 2017, respectively (see defendant’s exhibit C, NF-3 forms and denial of claim forms). Defendant “concedes the balance of $200.00” for the date of service on July 10, 2017 (affirmation of defendant’s counsel in support of mot ¶ 12).

IME on August 28, 2017

By a letter dated August 16, 2017, from Exam Works, Inc., plaintiff’s assignor was scheduled to appear for an IME on August 28, 2017, at 7:45 p.m. before Alan Handelsman, a licensed acupuncturist (see defendant’s exhibit D, scheduling letter). According to Handelsman, he was in the office from 7:35 p.m. to 8:10 p.m., and plaintiff’s assignor did not appear for the IME (see defendant’s exhibit E, aff of Alan Handelsman ¶ 5).^[FN1]

Follow-Up IME on September 11, 2017

By a letter dated August 30, 2017, from Exam Works, Inc., plaintiff’s assignor was scheduled to appear for an IME on September 11, 2017, at 2:30 p.m. before Jane Yiu, a licensed acupuncturist (see defendant’s exhibit D, scheduling letter). The record does not contain any affidavit from Jane Yiu. According to a litigation manager from Exam Works, Inc., “On 8/29/17 and 9/12/17, a representative from the above-named Examiner’s office informed my office that claimant did not appear for the scheduled MEs” (see defendant’s exhibit D, aff of Georgianna Michios).

Denial of Claim Forms

On September 13, 2017, defendant allegedly partially denied and partially paid $677.37 for the date of service on July 10, {**68 Misc 3d at 751}2017 (defendant’s exhibit C, mailing report). The explanation of benefits states, in relevant part, “In accordance to the New York No-Fault Law, Regulation 68, this base fee was calculated according to the New York Workers’ Compensation Board Schedule of fees, pursuant to Regulation 83 and/or Appendix 17-C of 11 NYCRR” (id., explanation of benefits).

On September 20, 2017, defendant allegedly mailed to plaintiff a denial of claim form for the date of service on August 15, 2017 (defendant’s exhibit C, proof of mailing report). On September 28, 2017, defendant allegedly mailed to plaintiff denial of claim forms for the two bills for the date of service on August 23, 2017 (id.). The explanation of benefits accompanying each denial of claim form identically states, “Failure to submit to multiple requests for Medical Examinations is a violation of both this policy’s contractual Duties and Conditions under Proof [*3]of Claim that precede coverage under Reg 68, Section 65-1. No fault benefits under this policy are denied” (id.).

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

The Instant Action

On May 11, 2018, plaintiff commenced this action asserting four causes of action to recover unpaid first-party no-fault benefits for the services rendered, plus interest, and a fifth cause of action for attorneys’ fees (see defendant’s exhibit A, summons and complaint). The first, second, and third causes of action relate to the dates of service on August 23, 2017, August{**68 Misc 3d at 752} 23, 2017, and August 15, 2017, respectively (id.). The fourth cause of action concerns the date of service on July 10, 2017 (id.).

Defendant allegedly answered the complaint on May 25, 2018 (see defendant’s exhibit A, aff of service of answer).

Discussion

“On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the [*4]required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action” (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [citations and internal quotation marks omitted]).

Defendant’s Motion for Summary Judgment

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

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

IME on August 28, 2017

According to defendant, plaintiff’s assignor was scheduled to appear for an IME on August 28, 2017, at 7:45 p.m. before Alan Handelsman, a licensed acupuncturist, by a letter dated{**68 Misc 3d at 753} August 16, 2017, from Exam Works, Inc. (see defendant’s exhibit D, scheduling letter). To establish proof of mailing, defendant submitted the affidavit of Georgianna Michios, a litigation manager at Exam Works, Inc. (see id., Michios aff).

[1] As plaintiff correctly indicates, the affidavit of the litigation manager was insufficient to show proof of mailing based on personal knowledge or in accordance with a standard office practice or procedure (Parisien v Maya Assur. Co., 59 Misc 3d 147[A], 2018 NY Slip Op 50771[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Ying E. Acupuncture, P.C. v Global Liberty Ins., 20 Misc 3d 144[A], 2008 NY Slip Op 51863[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). To the extent that proof of mailing is based on personal knowledge, the litigation manager does not state in her affidavit that she either mailed the scheduling letter herself or saw another person mailing the scheduling letter. Rather, the litigation manager stated that the appointment letter was stamped and delivered to the United States Post Office by the mail department, which appears not to be her office (Michios aff ¶ 4).

To the extent that proof of mailing is based upon a standard office practice or procedure, the affidavit of the litigation manager was not sufficient to establish when the scheduling letter was mailed. The affidavit states, in relevant part, “All requests printed out during any given day get placed in a U.S. Post Office Depository by a mail-room employee the same day that they are generated and stamped” (id.). However, the litigation manager does not state when the scheduling letter was generated in accordance with the office practice or procedure; the affidavit does not state that the date that appears on the scheduling letter is the date that the letter was generated.

Even if defendant had demonstrated timely mailing of the scheduling letter, defendant [*5]did not establish that plaintiff’s assignor failed to appear at the IME. Defendant submitted the affidavit of Alan Handelsman, a licensed acupuncturist (defendant’s exhibit E). The affidavit indicates that the basis of Handelsman’s knowledge is “based upon my review of electronic and physical files pertaining to the claimant” (defendant’s exhibit E, Handelsman aff ¶ 4). However,

“it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Accordingly, [e]vidence of the contents of business records is admissible only where the records themselves are introduced. Without their{**68 Misc 3d at 754} introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay” (Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205-206 [2d Dept 2019] [citations and internal quotation marks omitted]).

Here, Handelsman did not submit any business records.

The affidavit also states, “In addition, I was in the scheduled examining office on 8/28/17 from 7:35 PM to 8:10 PM and I have personal knowledge that Saddiq Waiters did not appear” (Handelsman aff ¶ 5). However, the court agrees with plaintiff’s counsel that the affidavit, which purports to be based on personal knowledge, is conclusory (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

The affidavit does not state that no one appeared at all before Handelsman from 7:35 p.m. until 8:10 p.m. Because Handelsman swore that he was present in the office at the time the IME was to be conducted, he would have known, by the use of his own senses, whether a person appeared in front of him at the time IME was scheduled. However, the affidavit is conclusory as to the basis for Handelsman’s knowledge of the identity of Saddiq Waiters (see Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [“While defendant submitted properly sworn statements by the chiropractor and doctor who had been scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations”]). There is nothing in the record to indicate that Handelsman had an existing relationship with Waiters or had previously met Waiters so as to be able to recognize that person. If Handelsman had not previously met Saddiq Waiters, then his knowledge of Waiters’s identity would not be based on personal knowledge.

Follow-up IME on September 11, 2017

By a letter dated August 30, 2017, from Exam Works, Inc., plaintiff’s assignor was scheduled to appear for an IME on September 11, 2017, at 2:30 p.m. before Jane Yiu, a licensed acupuncturist (see defendant’s exhibit D, scheduling letter). As discussed above, the affidavit of the litigation manager from{**68 Misc 3d at 755} Exam Works, Inc. was insufficient to establish proof of mailing of this scheduling letter based on personal knowledge or in accordance with an office practice or procedure (Parisien, 2018 NY Slip Op 50771[U]; Ying E. Acupuncture, P.C., 2008 NY Slip Op 51863[U]).

Defendant failed to establish that plaintiff’s assignor failed to appear at the IME on September 11, 2017. As plaintiff correctly points out, defendant did not submit an affidavit from someone with personal knowledge of the failure to appear (see affirmation of plaintiff’s counsel in support of cross mot ¶¶ 128, 146). Defendant did not submit an affidavit from Yiu, or anyone else from the examiner’s office who would have seen plaintiff’s assignor at the scheduled IME exam. As plaintiff’s counsel also indicates, the statement purportedly made by a [*6]representative from the examiner’s office to a litigation manager at Exam Works, Inc. of the failure to appear at the IME is hearsay (see id. ¶ 128; see Quality Psychological Servs., P.C. v Travelers Home & Mar. Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50750[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Timeliness of the Denial of Claim Forms

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim” (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009] [citations omitted]).

With respect to the bills for the dates of service on August 15, 2017, and August 23, 2017, defendant maintains that these bills were received on September 1 and September 12, 2017, respectively. According to defendant, the denial of claim forms for these bills were mailed on September 20 and 28, 2017, and thus within the 30-day period.

To establish proper mailing, defendant submits the affidavit of Lori Curtin, a litigation representative (see defendant’s exhibit B, aff of Lori Curtin) and business records of mailing reports of the denial of claim forms (see defendant’s exhibit C). According to Curtin, the denial of claim forms were printed and mailed from facilities in either Colorado Springs, Colorado or Highland Heights, Ohio (see Curtin aff ¶ 3). Curtin’s {**68 Misc 3d at 756}affidavit and the mailing reports established proof of mailing of the denial of claim forms on September 20 and September 28, 2017, in accordance with a standard office procedure (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Contrary to plaintiff’s arguments, Curtin demonstrated firsthand knowledge of the mailing procedures, because she averred that she has been trained in defendant’s claims handling and mailing procedures, and that she has personally observed the mailing procedures at the mailing facilities in both Colorado and Ohio (Curtin aff ¶ 2). Although plaintiff’s counsel points out that Curtin did not specify the mailing facility from which the denial of claim forms had been mailed, Curtin stated that she has personal knowledge of the mailing procedures at both facilities (id.). In any event, Curtin explained how one could ascertain which mailing facility sent the denial of claim forms.^[FN10] Curtin’s affidavit also properly laid the foundation for the admission of the mailing receipts of the denial of claim forms as business records (see id. ¶¶ 3, 3 [g]).

Plaintiff’s counsel also asserts that Curtin stated that she had “personal knowledge of the [*7]defendant’s file ‘maintained at that [Albany, NY] office’ ” (affirmation of plaintiff’s counsel in support of cross mot ¶ 70). However, plaintiff’s counsel does not reference any paragraph of Curtin’s affidavit, and the quoted words do not, in fact, appear anywhere in Curtin’s affidavit. Rather, Curtin states that her knowledge is based “on a complete review of the documents contained in the electronic claims file, which is maintained in the ordinary course of business of Defendant and which is Defendant’s duty to maintain said file” (Curtin aff ¶ 2). Nowhere in her affidavit does Curtin {**68 Misc 3d at 757}state that the electronic file which she reviewed pertained only to the records at the Albany, NY office (see id. ¶¶ 2, 5).^[FN11]

As plaintiff’s counsel points out, “the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]). Prior cases have ruled that the office procedure was inadequate where, for example, an employee has not checked that the names and addresses on envelopes matched the names and addresses of the intended recipients (see Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656 [2d Dept 1994] [“when reliance is placed on a mailing sheet, testimony that an employee normally checks the names and addresses on the envelopes with those on the mailing sheet is sufficient to constitute proof of mailing”]).

Here, Curtin states that “[t]he information appearing in the NF-10 and the EOB regarding the recipient, recipient address, patient, dates of service and the amount bill is obtained from the bill(s)/cover letter submitted by Plaintiff,” and that “the Progressive claims representative electronically creates the document(s) to be mailed” (Curtin aff ¶ 3 [i], [l], [n]). The printing/mailing system is automated, and it is reviewed, inspected, and monitored by Progressive employees (id. ¶ 3 [a], [q]). The name and address of the recipient and date of mailing are captured electronically by defendant’s computer onto mailing reports which cannot be altered once captured (id. ¶ 3 [b]). Given these procedures, the court is satisfied this office procedure is geared to ensure that the denial of claim forms were properly addressed and mailed. It is undisputed that the name and address on the mailing reports and on the denial of claims forms were correct.

Therefore, defendant timely issued denial of claims for the dates of service on August 15 and August 23, 2017.

Nevertheless, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs on August 28 and September 11, 2017. Accordingly, defendant’s motion for summary judgment dismissing the first through third causes of action is denied.{**68 Misc 3d at 758}

Plaintiff’s Cross Motion for Summary Judgment

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law” (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud [*8]Dists 2011]).

Once plaintiff meets its prima facie burden, the burden shifts to defendant to raise a triable issue fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Here, plaintiff established prima facie entitlement to summary judgment by submitting the affidavit of Eugene Nemets, the owner of plaintiff, who established that bills were timely submitted to defendant and that payment of no-fault benefits was overdue (see plaintiff’s exhibit 4 in support of cross mot; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2d Dept 2005]). Nemets stated the dates when each of the bills at issue were mailed to defendant, which were all within 45 days of the dates of the service (see plaintiff’s exhibit 4 in support of cross mot, Nemets aff ¶¶ 34-35, 40-41, 43-44). His affidavit also established that the bills were mailed in accordance with a standard office procedure (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Great Wall Acupuncture, P.C. v New York Cent. Mut. Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50224[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). According to Nemets, the bills were neither paid nor denied within 30 days (Nemets aff ¶¶ 36, 42, 45).

Assuming, for the sake of argument, that plaintiff’s submissions did not establish proof of mailing, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s motion papers, which admitted receipt of plaintiff’s bills (Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

{**68 Misc 3d at 759}As to the three bills for the dates of service on August 15 and August 23, 2017, defendant proved that it timely denied those claims. However, as discussed above, defendant did not establish that plaintiff’s assignor twice failed to appear for an IME. The issue presented is whether the timely denials warrant denial of plaintiff’s cross motion for summary judgment in its favor, even though the evidence of the grounds of the denials was insufficient.

The Appellate Term, Second Department has issued two decisions with conflicting results. In Rockaway Med. & Diagnostic, P.C. v Country-Wide Ins. Co. (29 Misc 3d 136[A], 2010 NY Slip Op 52012[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), the plaintiff moved for summary judgment in its favor against an insurer, and the insurer opposed the plaintiff’s motion on the ground of lack of medical necessity. The Appellate Term found that, contrary to the insurer’s argument, the plaintiff met its prima facie burden (2010 NY Slip Op 52012[U], *1). Although the Appellate Term found that the insurer had proved that it had timely denied the claim for lack of medical necessity, the Appellate Term awarded the plaintiff summary judgment because the peer review report was from a nurse, which was insufficient to raise a triable issue of fact as to medical necessity (id. at *2).

Three years later, the Appellate Term, Second Department reached the opposite result in Shara Acupuncture, P.C. v Allstate Ins. Co. (41 Misc 3d 129[A], 2013 NY Slip Op 51731[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). There, the plaintiff moved for summary judgment in its favor against the insurer on six causes of action, and the insurer raised the defense of a fee schedule. The court below denied the plaintiff’s motion for summary judgment and instead granted the defendant reverse summary judgment dismissing all six causes of action (2013 NY Slip Op 51731[U]). On appeal, the Appellate Term found that the insurer timely denied the claims, but it reinstated the second cause of action, because the insurer failed to address whether that claim had been paid in accordance with the fee schedule. Although the insurer submitted no evidence as to the fee schedule defense, the Appellate Term denied the plaintiff’s motion for [*9]summary judgment, reasoning, “As defendant established that the claim for $75.11 had been timely denied, and plaintiff failed to establish that defendant’s denial of claim form was conclusory, vague or without merit as a matter of law, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on that claim” (id. at *2).

{**68 Misc 3d at 760}Under Rockaway Med. & Diagnostic, P.C., once the plaintiff met its prima facie burden, the Appellate Term required the defendant not only to come forward with evidence that the denial was timely, but also to lay bare the evidence of the grounds of the denial, which had to be sufficient to establish the grounds (2010 NY Slip Op 52012[U]). Under Shara Acupuncture, P.C., once the plaintiff met its prima facie burden that the claims were neither paid nor denied within the 30-day period after defendant’s receipt of the bill, the Appellate Term required the insurer only to come forward with evidence that the denial was timely to defeat the plaintiff’s motion for summary judgment (2013 NY Slip Op 51731[U]). Put differently, once the insurer came forward with evidence that the denial was timely, the burden in Shara Acupuncture, P.C. appears to shift back to the plaintiff to establish the denial was conclusory, vague or without merit as a matter of law to be entitled to summary judgment (see id.).

Shara Acupuncture, P.C. controls here (id.). As discussed above, the plaintiff’s prima facie burden can be established in two ways: (1) proof that the defendant had failed to pay or deny the claim within the requisite 30-day period, or (2) proof that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (Ave T MPC Corp., 2011 NY Slip Op 51292[U]). If plaintiff cannot meet its prima facie burden under the first method because defendant submitted evidence of a timely denial (see e.g. Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2d Dept 2010] [defendant made a partial payment and partial denial within 30 days after receipt of the bill]), then the court should consider whether plaintiff met the prima facie burden under the second method (see Longevity Med. Supply, Inc. v Global Liberty Ins. Co., 67 Misc 3d 135[A], 2020 NY Slip Op 50527[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

[2] Here, the plaintiff’s prima facie burden was based solely on proof that the claims were neither paid nor denied within the 30-day period, and the defendant raised a triable issue of fact as to whether the claims were timely denied. Because plaintiff had not demonstrated that the denial was conclusory, vague, or without merit as a matter of law, plaintiff is not entitled to judgment in its favor as to the bills for the dates of service on August 15 and August 23, 2017. Plaintiff’s cross motion for summary judgment is therefore denied, in part, as to the first, second, and third causes of action.{**68 Misc 3d at 761}

As to the fourth cause of action, defendant conceded its liability for the bill for the date of service on July 10, 2017, which it had partially paid (affirmation of defendant’s counsel in support of mot ¶ 12). Although defendant conceded the balance of $200, the difference was, in fact, $240. Plaintiff had billed $917.37 and defendant paid $677.37 (see defendant’s exhibit C, denial of claim form). Therefore, plaintiff is entitled to summary judgment on the fourth cause of action against defendant, in the amount of $240.

Plaintiff is also entitled to prejudgment interest on the fourth cause of action at the rate of 2% per month, from May 11, 2018, the date of the commencement of the action, because plaintiff did not commence a lawsuit within 30 days after receipt of the denial of claim forms dated May 23, 2017 (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 205 [2d Dept 2009]).

Because plaintiff prevailed against defendant on the fourth cause of action, plaintiff is [*10]also entitled to recover attorneys’ fees from defendant (11 NYCRR 65-4.6 [d]). However, partial summary judgment is granted in plaintiff’s favor as to liability only on the fifth cause of action, because it remains to be seen whether plaintiff will be entitled to attorneys’ fees with respect to the other bills.^[FN12]

Conclusion

Upon the foregoing cited papers, it is hereby ordered that defendant’s motion for summary judgment dismissing the complaint is denied; and it is further ordered that plaintiff’s cross motion for summary judgment in its favor against defendant is granted in part to the extent that plaintiff is granted summary judgment in its favor and against defendant on the fourth cause of action in the amount of $240, plus prejudgment interest at the rate of 2% per month, from May 11, 2018; and plaintiff is granted partial summary judgment as to liability only on the fifth cause of action; and it is further ordered that{**68 Misc 3d at 762} the remainder of plaintiff’s cross motion for summary judgment is otherwise denied, and the action shall continue.

Footnotes

Footnote 1:Defendant’s counsel refers to the affidavits of John Johnson, DC, and Karen Thomas, DC, which were purportedly included in exhibit E (affirmation of defendant’s counsel in opp to cross mot ¶ 21). However, these affidavits were not included in the papers submitted to court, and in any event, the IME scheduling letters indicated that the IMEs were scheduled before Alan Handelsman and Jane Yiu.

Footnote 2:Defendant’s exhibit C, NF-3 forms.

Footnote 3:Id., denial of claim forms.

Footnote 4:Defendant’s exhibit D.

Footnote 5:Id.

Footnote 6:Id.

Footnote 7:Defendant’s exhibit C.

Footnote 8:Id., denial of claim forms.

Footnote 9:Id., mailing reports.

Footnote 10:According to Curtin, the mailing facility can be determined from the sixth and seventh digits of the envelope ID (Curtin aff ¶ 3 [m]). “If the sixth and seventh digits are 00 or 02, the document was mailed from Highland Heights, Ohio; if the sixth and seventh digits are 01, the document was mailed from Colorado Springs, Colorado” (id.). Here, the mailing reports indicate that the envelope IDs for the denial of claim forms for the dates of service on August 15, 2017, and August 23, 2017, were “CMBPI02H000540″ and “CMBPG00P00018,” respectively (defendant’s exhibit C in support of mot [emphasis added]).

Footnote 11:Plaintiff’s counsel also purports to quote extensively from Curtin’s affidavit (see affirmation of plaintiff’s counsel in support of cross mot ¶ 74), but the quoted statements do not appear in Curtin’s affidavit.

Footnote 12:In the prayer for relief in its cross motion, plaintiff’s counsel incorrectly asserted that plaintiff was entitled to a maximum of $850 in attorneys’ fees per cause of action. However, each bill was asserted as a separate cause of action. Following the opinion of the Superintendent of Insurance, the Court of Appeals expressly rejected the calculation of attorneys’ fees on a per bill basis; the award of attorneys’ fees is calculated as 20% of the aggregate amount of all bills in the action pertaining to a single insured, plus interest, subject to a maximum of $1,360 (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; 11 NYCRR 65-4.6 [d]).