[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY (Roman Kravchenko of counsel), for appellant.

Samandarov & Associates, P.C., Floral Park, NY (Eli Shmulik of counsel), for respondent.

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (George R. Peck, J.), entered January 18, 2018. The order granted the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate its default in answering the complaint.

Ordered that the order is affirmed, with costs.

In December 2016, the plaintiff, a no-fault insurance carrier, commenced this action pursuant to Insurance Law § 5106 (c) for a de novo adjudication of a dispute regarding its denial of the defendant’s claim for no-fault insurance benefits for medical services rendered to its assignor. Prior thereto, an arbitrator had determined that the defendant was entitled to no-fault compensation in the amount of $6,759.16, plus interest and attorney’s fees. The plaintiff appealed the award to a master arbitrator, who affirmed the award.

After the defendant failed to timely appear or answer the complaint in this action, the plaintiff moved for leave to enter a default judgment. In an order entered March 13, 2017, the Supreme Court granted the plaintiff’s unopposed motion for leave to enter a default judgment. The court subsequently issued a default judgment dated July 31, 2017.

Thereafter, in September 2017, the defendant moved pursuant to CPLR 5015 (a) (1) to vacate its default. The Supreme Court granted the motion, and the plaintiff appeals.

A defendant seeking to vacate its default pursuant to CPLR 5015 (a) (1) on the ground of excusable default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d 745, 746 [2018]). Here, the defendant demonstrated a reasonable excuse for its default (see Allstate Ins. Co. v North Shore Univ. Hosp., 163 AD3d at 746). Moreover, although certain of the evidence submitted by the defendant to demonstrate a potentially meritorious defense was not in admissible form (see generally OneWest Bank, FSB v Singer, 153 AD3d 714, 715-716 [2017]; King v King, 99 AD3d 672, 673 [2012]), the defendant demonstrated a potentially meritorious defense to the action by attaching to its moving papers copies of the arbitration award in which the arbitrator determined that the defendant was entitled to no-fault compensation in the amount of $6,759.16, plus interest and attorney’s fees, as well as copies of arbitration materials reflecting that the plaintiff had appealed the award to a master arbitrator, who affirmed the award. In light of the defendant setting forth evidence that it had previously prevailed before an arbitrator on the merits of its defense, the defendant demonstrated a potentially meritorious defense to the action (see Rosenzweig v Gubner, 2018 NY Slip Op 32393[U], *7-8 [Sup Ct, Kings County 2018]; Matter of Charny [Gliksman], 2002 NY Slip Op 40004[U], *11 [Sup Ct, Kings County 2002]; see generally Bevona v Blue Star Realty Corp., 264 AD2d 586, 587 [1999]; Lawyers Coop. Publ. v Scott, 255 AD2d 952, 952 [1998]; Simpson v Mal Serv. Corp., 205 AD2d 419, 419 [1994]). Accordingly, we agree with the Supreme Court’s determination to grant the defendant’s motion pursuant to CPLR 5015 (a) (1) to vacate its default in answering the complaint.

The plaintiff’s remaining contentions are without merit. Scheinkman, P.J., Dillon, Maltese and LaSalle, JJ., concur.

[*1]

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for appellant.

Thomas Torto, New York (Jason Levine of counsel), for respondent.

Order, Supreme Court, New York County (Erika M. Edwards, J.), entered June 22, 2017, which awarded attorneys’ fees in the amount of $749.38, unanimously reversed, on the law, without costs, the award vacated, and the matter remanded for a calculation of reasonable attorneys’ fees in accordance with 11 NYCRR 65-4.10 (j) (4).

The court failed to consider 11 NYCRR 65-4.10 (j) (4), which applies to this appeal of a master arbitration award. Instead, the court applied 11 NYCRR 65-4.6, the regulation applicable to attorneys’ fee awards at an initial arbitration, and calculated the award as 20% of the arbitration demand of $3,746, awarding $749.38.

Pursuant to Insurance Law § 5106 (a), if a valid claim or portion of a claim for no-fault benefits is overdue, “ ’the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations’ ” (Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Bus. v Professional Health Radiology, 143 AD3d 536, 537 [1st Dept 2016]). Here, in a proceeding for judicial review of an award by a master arbitrator, the attorneys’ fee award “shall be fixed by the court adjudicating the matter” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703, 705 [2d Dept 2017], citing Insurance Department Regulations [11 NYCRR] § 65-10 [j] [4]).

Because this is an appeal from a master arbitration award, we remand the matter for a calculation of fees in accordance with 11 NYCRR 65-4.10 (j) (4) (see Matter of Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C., 162 AD3d 407, 408 [1st Dept 2018]). We note that the fees would only apply to this appeal.

In addition, we reject as unpreserved appellant’s claims that it is entitled to further fees for the underlying arbitration under 11 NYCRR 65-4.6 (c) or (d). Concur—Friedman, J.P., Gische, Tom, Webber, Gesmer, JJ.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), dated February 7, 2017. 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.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on May 10, 2011. Defendant interposed an answer on June 29, 2011. On August 6, 2015, defendant served plaintiff’s attorney with a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received on August 10, 2015. By notice of motion dated March 11, 2016, defendant moved, pursuant to CPLR 3216, to dismiss the complaint on the ground that defendant had not been served with a notice of trial. In opposition to the motion, plaintiff stated that it had filed a notice of trial on November 23, 2016. It further argued that law office failure was the reason for the delay and that it had a meritorious cause of action. By order dated February 7, 2017, insofar as is relevant to this appeal, the Civil Court denied defendant’s motion, finding that plaintiff had established a “reasonable excuse” for its delay and a meritorious “defense” [sic].

Upon receiving a 90-day demand, a plaintiff must either comply with the demand by 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 filed a notice of trial more than 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]; 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 affirmation submitted by plaintiff’s attorney 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 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]; Bayshore Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 141[A], 2017 NY Slip Op 51121[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Comeau v McClacken, 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]). 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.

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

Law Offices of Buratti, Rothenberg & Burns (Leslie A. Emya, Jr. of counsel), for appellant. Gary Tsirelman, P.C., 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 27, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). In support of the motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule the IMEs, which affidavit sufficiently demonstrated that the scheduling letters had been timely mailed to plaintiff’s assignor on August 19, 2011 and September 1, 2011, at a Van Siclen Avenue address (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted affirmations and affidavits from medical providers who were to perform the IMEs, which sufficiently established that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel [*2]Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims representative demonstrated that the denial of claim forms, which denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).

In opposition, plaintiff’s counsel argued that the IME scheduling letters had been mailed to the wrong address because plaintiff’s bills, which were annexed to defendant’s moving papers, and the earliest of which was dated October 18, 2011, stated that plaintiff’s assignor’s address was on Chester Street. In reply, defendant submitted a copy of the NF-2 which was sworn to on July 29, 2011, and the police report from the July 17, 2011 accident. Both the police report and the sworn NF-2 stated that the assignor’s address was on Van Siclen Avenue. The Civil Court denied defendant’s motion for summary judgment dismissing the complaint, holding that plaintiff’s claims forms which were annexed to defendant’s moving papers raised an issue of fact as to the mailing of the IME scheduling letters and that defendant could not cure the defect in reply.

While a party moving for summary judgment generally cannot meet its prima facie burden by submitting evidence for the first time in reply, there is an exception to this general rule where, as here, the evidence is submitted in response to allegations raised for the first time in the opposition papers (see Central Mtge. Co. v Jahnsen, 150 AD3d 661 [2017]; Conte v Frelen Assoc., LLC, 51 AD3d 620 [2008]). As a result, the Civil Court erred when it held that the NF-2 and police report annexed to defendant’s reply papers could not be considered in support of defendant’s motion for summary judgment dismissing the complaint. Those documents established that, at the time the IME letters had been mailed to plaintiff’s assignor, the letters had been mailed to the assignor’s address as set forth in the sworn NF-2 and the police report, which was the only address known to defendant at that time.

Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim on that ground, the Civil Court should have granted defendant’s motion for summary judgment.

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

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

Decided on May 23, 2019

732771/17

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

Attorney for defendant
Lawrence N. Rogak, Esq.
Lawrence N. Rogak LLC
3355 Lawson Boulevard
Oceanside, New York 11572

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

Notice of Motion and Affirmation in Support 1,2

Notice of Cross-Motion and Affirmation in Support 3,4

Affirmation in Opposition to the Cross-Motion 5

The Court hereby sua sponte vacates its decision and order dated November 15, 2017, and substitutes the following:

In an action to recover assigned first-party no-fault insurance benefits arising from an accident which occurred on October 1, 2015, defendant moves for summary judgment based on plaintiff’s assignor’s alleged failure to appear for an examination under oath (“EUO”) and upon the defense of policy exhaustion. Plaintiff cross-moves for an order: 1) awarding summary judgment in favor of plaintiff pursuant to CPLR 3211(c) or CPLR 3212(a); 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits was overdue; and 3) dismissing defendant’s affirmative defenses pursuant to CPLR 3211(b).

It is well settled that summary judgment is a drastic remedy (See Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]), which should not be granted if there is any doubt as to the existence of a triable issue of fact. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978]). Hence, the court’s function in determining such a motion, is issue finding, not issue determination. (Id. Sillman supra at 404).

To prevail, the movant must establish entitlement to judgment as a matter of law, by submitting admissible evidentiary proof. (See Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (See Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]).

EUO NON

APPEARANCE DEFENSE

While plaintiff’s non-appearance at an EUO vitiates defendant’s obligation to provide coverage (see Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]), to show entitlement to summary judgement, defendant must prove that it properly mailed the EUO requests to the plaintiff, who failed to appear for the EUO, and that defendant mailed plaintiff a timely denial. (Interboro Ins. Co. v Clennon, 113 AD3d 596, 979 N.Y.S.2d 83, 2014 NY Slip Op 00092 [2d Dept 2014]).

Proof of mailing may be shown based on actual mailing or that the item was mailed pursuant to the affiant’s standard office practices and procedures designed to ensure proper mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 857 N.Y.S.2d 211, 2008 NY Slip Op 04072 [2d Dept 2008]). Defendant’s affidavit submitted in the case at bar, fails to establish that the described procedures was designed to ensure that the EUO letters were addressed to the correct recipient and properly mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 7 N.Y.S.3d 429, 2015 NY Slip Op 03340 [2d Dept [*2]2015]).

To establish the proper mailing of the EUO requests, defendant submits an affidavit from its claim representative, Christina Valentin. Ms. Valentin states that an EUO notice was sent to plaintiff’s assignor, on December 9, 2015, scheduling the EUO for January 6, 2016; and upon assignor’s non-appearance, a follow up notice was sent on January 7, 2016 re-scheduling the EUO for February 9, 2016. Ms. Valentin describes the documents which purport to the be the notices as ” true and accurate copies of the scheduling notices sent by the Law offices of Lawrence N. Rogak LLC” to plaintiff’s assignor.

Contrary to Ms. Valentin’s statement, however, the EUO notices which were attached to defendant’s motion are not generated by the Law Office of Lawrence N. Rogak LLC, but by the Law Firm of Milber Makris Plousadis & Beiden, LLP. Ms. Valentin’s assertions are further erroneous in that the notices seek an EUO of the plaintiff’s employee, Dr. Darren T. Mollo, DC, and not of plaintiff’s assigner, who notably is not even among the named claimants listed in the notices. Thus, defendant fails to establish that it requested an EUO of plaintiff’s assignor, and further, that it accurately addressed and mailed the request to him. Each of said deficiencies, warrants denial of defendant’s motion.

In addition, defendant fails to meet its burden of showing that plaintiff’s assignor failed to appear for the EUOs. (Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]). Generally, to establish burden of plaintiff’s failure to appear for a scheduled EUO, a statement from an attorney alleging that he or she was present in the office on the relevant dates and that he or she would have been the one to conduct the EUO is sufficient to demonstrate personal knowledge of the no-show (T & J Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op. 50406(U) [App Term, 2d Dept, 2d 11th & 13th Jud Dists, 2015]).

In the instant matter, the only indication of plaintiff’s assignor’s nonattendance at the EUO is defense counsel’s conclusory affirmation in support of the instant motion which is devoid of evidence of his personal knowledge of the alleged non-attendance. Counsel neither indicates whether he was assigned to conduct the EUO nor whether he was present at the EUO. Accordingly, defendant’s motion is further denied on the basis of failure to establish the assignor’s EUO non-appearance.

Moreover, defendant fails to show the timeliness of its denial. “A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) If plaintiff fails to provide the requested verification within 120 calendar days from the date of the initial request, the insurer may deny the claim. (11 NYCRR 65-3.5 [o]). No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, (11 NYCRR 65-3.8(a)(1)),

According to the denial, the “final verification” requested was on January 31, 2016. Yet, the moving papers contain no verification request, or any document dated January 31, 2016. As discussed above, the only verification requests annexed to defendant’s papers pertain to claimants whose treatment is not at issue in the instant action.

As defendant has failed to establish entitlement to judgment as a matter of law on the issues of proper mailing of the EUO request, the nonappearance of the plaintiff’s assignor at the EUOs and the timeliness of its denial, its motion for summary judgment, based on the EUO [*3]nonappearance is denied.

POLICY EXHAUSTION DEFENSE

Defendant also seeks to dismiss the complaint on the basis that its policy limits have been properly exhausted.An insurer is not required to pay a claim where the policy limits have been properly exhausted (Hospital for Joint Diseases v. State Farm Mut. Auto Ins. Co., 8 AD3d 533 [2nd Dept., 2004]). An insurer’s payment of full monetary limits set forth in the policy, terminates its duties under the contract (Presbyterian Hosp. in City of New York v. Liberty Mut. Ins. Co., 216 AD2d 448 [2nd Dept., 1995]).

Moreover, when an insurer receives claims for more than $50,000, payments for claims that are submitted prior to the exhaustion of the $50,000 shall be made in the order in which each service was rendered or each expense was incurred (11 NYCRR 65-3.15; Alleviation Medical Services, P.C. v. Allstate Ins. Co., 55 Misc 3d 44 [App. Term, 2nd Dept., 2d, 11th & 13th Jud. Dists., 2017]).

In the case at bar, to demonstrate the policy’s exhaustion based on priority of payment when defendant received the bill, defendant relies on a payment “ledger” which it contends is admissible based on its claim examiner’s statement that the document is “a true and accurate copy of the payment ledger maintained on this claimant.” Defendant, however does not satisfy the evidentiary requirements of CPLR §4518 absent information regarding who or by whom the ledger was created or maintained, or whether the data in the ledger was recorded contemporaneously or soon after the occurrence. As defendant must prove its defense in admissible form, the failure to establish the evidentiary foundation of the ledger, which is the essence of its policy exhaustion defense, warrants denial of its motion.

Aside from its inadmissibility, the ledger’s ambiguity, further prevents defendant from demonstrating the exhaustion defense. The ledger does not specify when defendant received any of the prior bills leading to the exhaustion of the policy, but contains vague headings such as ‘paid date,’ ‘service period start’ and ‘service period end’ without proof that any of the headings represent the date that defendant in fact received or paid the bill at issue.

Finally, defendant fails to establish that its exhaustion of policy defense was based on proper priority of payment of claims. The term “claims,” in the priority of payment regulation excludes claims that are incomplete because verification requests are outstanding (Nyack Hospital v. General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, while an insurer awaits verification of an unverified claim, it may pay subsequently received verified claims, even if that will result in exhaustion of the policy before the requested verification is finally received (Id.).

In the instant matter, defendant admits receipt of the bills at issue on December 16, 2015, when, as per the ledger, the entire $50,000 policy was still available to pay claims since no claims had been yet been paid. Since defendant has failed show that the 30-day period it had to pay the bill was tolled by a properly mailed verification request or by non-compliance with such verification, it failed to justify its nonpayment within the 30-days.

Defendant has failed to establish as a matter of law either the defense of EUO non-appearance or that of policy exhaustion. Thus, its motion for summary judgment is denied.

PLAINTIFF’S CROSS-MOTION

In opposition to the plaintiff’s cross-motion for summary judgment, defendant attaches a copy of a decision in Budget Truck Rental, LLC v. Mollo, Index No.: 150666/15 [Sup. Court, NY County, Lebovits, J.] which included a finding that the time that plaintiff in this case was not [*4]properly incorporated when it submitted its billing in that case which arose from a November 7, 2013 accident and therefore not entitled to payment for those bills.

If it is proven in this case that the plaintiff was ineligible to receive payment as of the date services were rendered, that would constitute a defense. (See, e.g., State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]) Although the defendant presents no denial of claim on this basis of improper or fraudulent incorporation of the plaintiff, it is nonwaivable and may be asserted at any time notwithstanding the absence of a timely denial. (Lexington Acupuncture, P.C. v. General Assur. Co., 35 Misc 3d 42 [App Term, 2d Dept 2012]). Accordingly, there are material issues of fact as to plaintiff’s corporate status at the time that services were rendered necessitating the denial of plaintiff’s cross-motion.

All of the motions before this court are denied with one exception. Plaintiff’s cross-motion pursuant to pursuant to CPLR 3212(g) is granted only to the extent that it has been established that the bills at issue were mailed to and received by the defendant.

Dated: May 17, 2019
______________________
ODESSA KENNEDY
Judge of the Civil Court

[*1]

Peter C. Merani, P.C., New York, NY (Eric M. Wahrburg of counsel), for appellant.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (Robert A. Bruno, J.), dated December 9, 2016. The order denied the plaintiff’s motion for summary judgment on the complaint and, upon searching the record, awarded summary judgment to the defendant.

Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the plaintiff’s motion which was for summary judgment on so much of the complaint as, in effect, sought a determination that the amount of no-fault insurance benefits sought by the defendant was not in accordance with the workers’ compensation fee schedule, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof searching the record and awarding summary judgment to the defendant; as so modified, the order is affirmed, with costs payable to the plaintiff.

This action pursuant to Insurance Law § 5106 (c) arises from a motor vehicle accident that occurred on February 6, 2013. Christopher Krull allegedly was injured in the accident, and he underwent spinal fusion surgery performed by P. Jeffrey Lewis of the defendant, Buffalo Neurosurgery Group. The defendant, as assignee of Krull, submitted a claim to the plaintiff insurer for no-fault insurance benefits for the surgery and related care. The plaintiff denied the claim. The defendant submitted the matter to arbitration. The arbitrator determined that the defendant was entitled to no-fault compensation in the principal sum of $11,352.46, plus interest and attorney’s fees. The plaintiff appealed the award to a master arbitrator, who affirmed the award.

On August 19, 2015, the plaintiff commenced this action pursuant to Insurance Law § 5106 (c) for a de novo determination of the defendant’s claims for no-fault insurance benefits. The plaintiff then moved for summary judgment on the complaint. In an order dated December 9, 2016, the Supreme Court denied the motion and, upon searching the record, awarded summary judgment to the defendant, concluding that the master arbitrator had properly affirmed the award of benefits to the defendant in the principal sum of $11,352.46, plus interest and attorney’s fees. The plaintiff appeals.

Insurance Law § 5106 (c) permits a de novo adjudication of a no-fault insurance claim where the master arbitrator’s award is $5,000 or greater, exclusive of interest and attorney’s fees (see 11 NYCRR 65-4.10 [h] [1] [ii]; Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 577 [1987]). Here, we agree with the Supreme Court’s denial of that branch of the plaintiff’s motion which was for summary judgment on so much of the complaint as, in effect, sought a determination that it was not obligated to pay the defendant no-fault benefits relating to Krull’s surgery, since the surgery was not medically necessary. The peer review reports submitted in support of that branch of the motion failed to demonstrate, prima facie, that the surgery performed on Krull was not medically necessary (see Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768 [2016]; Amherst Med. Supply, LLC v A. Cent. Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51800[U] [App Term, 1st Dept 2013]; cf. AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d 722 [2016]; Cortland Med. Supply, Inc. v 21st Century Centennial Ins. Co., 46 Misc 3d 136[A], 2014 NY Slip Op 51886[U] [App Term, 1st Dept 2014]). In light of the plaintiff’s failure to meet its prima facie burden, we need not consider the sufficiency of the opposing papers on that issue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d at 770).

We agree with the Supreme Court’s determination that the plaintiff established its prima facie entitlement to judgment as a matter of law on that branch of its motion which was for summary judgment on so much of the complaint, as, in effect, sought a determination that the amount of the benefits sought by the defendant was not in accordance with the workers’ compensation fee schedule (see Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept 2018]; Compas Med., P.C. v 21st Century Ins. Co., 57 Misc 3d 132[A], 2017 NY Slip Op 51228[U] [App Term, 2d Dept 2017]; Renelique v Allstate Ins. Co., 57 Misc 3d 126[A], 2017 NY Slip Op 51141[U] [App Term, 2d Dept 2017]; Dynasty Med. Care, P.C. v 21st Century Advantage Ins. Co., 55 Misc 3d 141[A], 2017 Slip Op 50597[U] [App Term, 2d Dept 2017]; Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A], 2015 NY Slip Op 50778[U] [App Term, 2d Dept 2015]). Contrary to the court’s determination, however, the defendant, in opposition to that prima facie showing, failed to raise a triable issue of fact (see Renelique v Allstate Ins. Co., 57 Misc 3d 126[A] [2017]; Dynasty Med. Care, P.C. v 21st Century Advantage Ins. Co., 55 Misc 3d 141[A] [2017]). Accordingly, that branch of the plaintiff’s motion should have been granted.

Since the defendant’s submissions were not sufficient to establish that the arbitrator and the master arbitrator were correct in awarding the defendant no-fault insurance benefits in the principal sum of $11,352.46, the Supreme Court should not have searched the record and awarded summary judgment to the defendant. Rivera, J.P., Austin, Cohen and Iannacci, JJ., concur.

706182/16

Attorney for Plaintiff: Olga Sklyut, Esq.

Attorney for Defendant: Law Office of Jason Tenenbaum, PC

In this action for the payment of no-fault benefits, defendant moves seeking an order, inter alia, granting it summary judgment and dismissal of this action. Saliently, and to the extent relevant to this Court’s decision, defendant avers that insofar as it timely denied plaintiff’s claims for medical services under the no-fault portion of the assignor ROBERT PEGUERO’s (Peguero) insurance policy, on grounds that Peguero failed to appear for two Independent Medical Examinations (IMEs), the instant action must be dismissed. Plaintiff opposes the foregoing portion of defendant’s motion asserting, inter alia, that insofar as the evidence presented by defendant with respect to whether Peguero appeared at the IMEs is conclusory. Thus, plaintiff contends that defendant fails to establish prima facie entitlement to summary judgment on this dispositve issue. Plaintiff also cross-moves seeking an order, inter alia, granting it summary judgment with respect to the IME defense raised by defendant. Specifically, plaintiff contends that the IME notices sent to the assignor were defective, null, and void as a matter of law. Defendant opposes plaintiff’s cross-motion for the same reasons it contends it is entitled to summary judgment, reiterating the timeliness of the IME notices and denials for Peguero’s failure to appear thereat.

For the reasons that follow hereinafter, defendant’s motion is granted, in part, and plaintiff’s cross-motion is denied.

The instant action is for payment of no-fault insurance benefits for medical treatment. The endorsed complaint alleges, in relevant part, the following: Between August and November 2013, plaintiff, as a result of a covered event occurring on August 5, 2013, provided medical treatment to Peguero. The value of said treatment was $4,004.11. Defendant, a no-fault ^[FN1] insurer, whose insurance policy issued to Peguero covered the foregoing treatment was presented with proof of the treatment and failed to pay plaintiff for the same. Thus, plaintiff seeks a judgment in the amount of $4,004.11.

Standard of Review

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence, when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not. As noted by the Court of Appeals,

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’ Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case

(Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]).

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),

[s]upreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial

(see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).

No-Fault Law

Pursuant to 11 NYCRR 65-2.4(a) entitlement to no-fault benefits requires compliance with all conditions precedent, one of which is that

the eligible injured person or that person’s assignee or legal representative shall submit [*2]written proof of claim to the self-insurer, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered

(11 NYCRR 65-2.4[c]). Because the No-Fault Law is a derogation of common law, it must be strictly construed (Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]; Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049, 1050 [3d Dept 1983]). Thus, compliance with the technical requirements of the no-fault law are preconditions for payment to a medical provider thereunder. Accordingly, a medical provider’s failure to tender a claim and requisite proof to an insurer within 45 days after medical services were rendered authorizes an insurer to deny the claim (Kane v Fiduciary Ins. Co. of Am., 114 AD3d 405, 405 [1st Dept 2014] [“The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated.”]; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2d Dept 2010]; Sunrise Acupuncture PC v ELRAC, Inc., 52 Misc 3d 126[A], *1 [App Term 2016]).

Generally, once an insurer receives a claim from a medical provider, it must pay or deny the same within 30 days thereof (11 NYCRR 65-3.8[c]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1168 [2d Dept 2010]; Nyack Hosp. v Gen. Motors Acceptance Corp., 27 AD3d 96, 100 [2d Dept 2005], affd as mod and remanded, 8 NY3d 294 [2007]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999]). When an insurer fails to timely deny or pay a claim, as required by the statutory schedule, it is precluded from interposing a statutory exclusion defense (Presbyt. Hosp. in the City of New York v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2d Dept 2002]; Mount Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11, 16 [2d Dept 1999]; Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]).

However, the foregoing period – within which to deny or pay a claim – can be extended by a proper request for verification (11 NYCRR 65-3.5[b] [“Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms.”]), and when such a request is made, “an insurer is not obligated to pay or deny a claim until all demanded verification is provided” (New York and Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2d Dept 2006]; see Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004]; Nyack Hosp. at 101; New York Hosp. Med. Ctr. of Queens at 584; New York & Presbyt. Hosp. v Am. Tr. Ins. Co., 287 AD2d 699, 700 [2d Dept 2001]). A request for verification submitted more than 15 days after a claim is received does not render the same invalid and merely serves to diminish the 30 day period within which to pay or deny a claim once verification is received; such time diminished by the number of days beyond the 15 days within which to request verification prescribed by the No-Fault Law (11 NYCRR 65-3.8[j]; Nyack Hosp. at 100-101 [“Therefore, inasmuch as the defendants mailed the request for additional verification two days beyond the 15-day period, the time within which the defendants had to either pay or deny the claim was reduced from 30 to 28 days.”]). A request for verification, thus, tolls the time within which to pay or deny a claim and such time does not begin to run until the documents requested are provided (New York & Presbyt. Hosp. at 700 [“Since the respondent did not supply the additional verification of the claim, the 30-day period in which the defendant had to either pay or deny the claim did not begin to run.”]; Westchester County Med. Ctr. at 555).

A medical provider seeking payments under the relevant no-fault policy establishes prima facie entitlement to summary judgment with proof that it submitted a timely claim form to the defendant, proof of the fact and the amount of the loss sustained, and “proof either that the defendant [] failed to pay or deny the claim within the requisite 30-day period, or that the defendant [] issued [*3]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] [App Term 2011]; see, New York and Presbyt. Hosp. at 513; Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742 [2d Dept 2004]; E. Coast Psychological, P.C. v Allstate Ins. Co., 13 Misc 3d 133[A)] *1 [App Term 2006]; Mollins v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 133[A], *1 [App Term 2007]). A provider can establish the foregoing with “evidentiary proof that the prescribed statutory billing forms were mailed and received [and] that payment of no-fault benefits [is] overdue” (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]). However, an insurer raises an issue of fact sufficient to preclude summary judgment when it tenders evidence establishing a timely denial (id. at 124 [“However, in opposition, the defendant submitted admissible evidence in the form of an affidavit of an employee with knowledge of the defendant’s standard office practices or procedures designed to ensure that items were properly addressed and mailed.”]; New York and Presbyt. Hosp. at 513 [“However, in opposition to the motion, the defendant established that it had made a timely request for additional information and that it timely denied the claim within 30 days of receipt of the hospital records it had requested to verify the claim. Accordingly, the Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action.”]), or that denial within the 30 day prescribed by law was not given because such period was extended by a request for verification (Nyack Hosp. at 100 [“Here, the defendants presented evidence in opposition to the motion and in support of their cross motion demonstrating that the request for the complete inpatient hospital records mailed to the plaintiff on September 12, 2003, resulted in an extension of the 30-day statutory period.”]; New York Hosp. Med. Ctr. of Queens at 585; New York & Presbyt. Hosp. at 700).

Conversely, once an insurer establishes a timely denial on grounds that a plaintiff failed to tender a claim within 45 days, the insurer establishes prima facie entitlement to summary judgment (St. Barnabas Hosp. v Penrac, Inc. at 734; Sunrise Acupuncture PC at *1). In addition, an insurer who demonstrates that despite proper requests for verification, verification was never received resulting in a denial of the claim also establishes prima facie entitlement to summary judgment (New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 649 [2d Dept 2014]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2d Dept 2006]; Nyack Hosp. at 99; Cent. Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2d Dept 2005]; Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2d Dept 2004]; Westchester County Med. Ctr. at 555). This is particularly true when a demand for verification remains unanswered for more than 120 days. To be sure, 11 NYCRR 65-3.5(o) states that

[a]n applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply. The insurer shall advise the applicant in the verification request 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 verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.

Additionally, 11 NYCRR 65-3.8(b)(3) states that

an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5(o) of this Subpart.

Thus, when the insurer establishes denial of a claim because a demand for verification went unanswered for 120 days or more, prima facie entitlement to summary judgment is established (Hosp. for Joint Diseases v Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004] [relying on 11 NYCRR 65.11[m][3] which is now 11 NYCRR 65-3.8[b][3], the court held that “[t]he defendant denied the claim on October 9, 2002, more than 180 days after NY & P Hospital first notified it of the claim. [*4]Under these circumstances, the claim was properly denied.”]; Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co., 232 AD2d 454, 454 [2d Dept 1996] [same]; TAM Med. Supply Corp. v Tri State Consumers Ins. Co., 57 Misc 3d 133[A], *1 [App Term 2017]). Significantly, in Hosp. for Joint Diseases the court held that defendant – the insurer – established prima facie entitlement to summary judgment with an affidavit from a claims representative, who based on his review of defendant’s business records established defendant’s defense – timely denial (id. at 433-434)^[FN2] .

It is well settled that a party’s burden to establish that forms were mailed and therefore, presumed to have been received by another is established upon the tender of proof in admissible form “of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (New York and Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001] [“Here, the deposition testimony of AIC’s president, a certificate of mailing, and a mailing ledger signed and date-stamped by a U.S. Postal Service employee established the actual mailing of the notice of cancellation to the plaintiff, giving rise to a rebuttable presumption of deliver.”]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term 2007] [the law does not “requir[e] that an affidavit of mailing must state either that it was the affiant’s duty to ensure compliance with the insurer’s standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed.”]).

With respect to denial of claims based on reasons other than a claimant’s belated submission, an insurer establishes prima facie entitlement to summary judgment on its defense for a denial when it both timely denies a claim and tenders substantive evidence supporting the reason for the denial (Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], *1 [App Term 2015] [“The evidentiary proof submitted by defendant established that, following the timely denial of plaintiff-provider’s claim on the ground of lack of medical necessity, the governing insurance policy’s coverage limits had been exhausted through payment of no-fault benefits in satisfaction of arbitration awards rendered in favor of other health care providers, and that such payments were made in compliance with the priority of payment regulation.”]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A], * 1 [App Term 2015] [“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the first-party no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation (“plaintiff”) in the aggregate sum of $2,220, by establishing that it timely denied the claims based on the independent medical examination (IME) report and follow-up report of its examining orthopedic doctor, which set forth a factual basis and medical rationale for her stated conclusion that the assignor’s injuries were resolved and that there was no need for further physical therapy treatment. In opposition, plaintiff failed to raise a triable [*5]issue.”]).

When requested by the insurer, submission by the claimant to an Independent Medical Examination (IME) is a condition precedent to the receipt of no-fault benefits. To be sure, the Comprehensive Motor Vehicle Insurance Reparations Act, with regard to first-party or no-fault benefits, states, in pertinent part, that

[n]o action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage [,] which includes, that] [t]he eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require

(11 NYCRR 65-1.1).

Accordingly, an insurer establishes prima facie entitlement to summary judgment on its defense that denial of benefits is warranted because the claimant failed to appear at an IME when it demonstrates that an IME was timely requested via and properly mailed the notices to the claimant and that the claimant failed to appear (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]; Coast Med. Diagnostic, PC v Praetorian Ins. Co., 38 Misc 3d 148[A], *1 [App Term 2013]; City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co., 39 Misc 3d 128[A], *1 [App Term 2013]; Shore Med. Diagnostic, P.C. v Praetorian Ins. Co., 34 Misc 3d 131[A], *1 [App Term 2011]). Notably, the failure to appear for an IME warrants denial of all claims made by the claimant, not just those arising after the date that claimant fails to appear for the IME, and regardless of whether prior denials were timely (Unitrin Advantage Ins. Co. at 560). Stated differently,

[t]he failure to appear for IMEs requested by the insurer when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the No—Fault policy, and therefore fits squarely within the exception to the preclusion doctrine, [such that], when defendants’ assignors fail[] to appear for the requested IMEs, plaintiff ha[s] the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued

(id. at 560).

A request that a claimant submit to an IME is a request for additional verification pursuant to 11 NYCRR 65-3.5(b) and upon failure of the claimant to appear any further request for an IME are follow-up verification requests governed by 11 NYCRR 65-3.6(b) (Celtic Med. P.C. v NY Cent. Mut. Fire Ins. Co., 15 Misc 3d 13, 14 [App Term 2007] [“Contrary to plaintiff’s contentions, the affidavits submitted by defendant were sufficient to establish that defendant’s requests and follow-up requests for IMEs were mailed in accordance with the time periods prescribed by the insurance regulations (11 NYCRR 65-3.5 [b]; 65-3.6 [b]).”]; A.B. Med. Services PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 54 [App Term 2005] [“All post-claim IME verification requests must be made within prescribed time frames, the initial request within 10 days of the claim’s filing (to be scheduled within 30 days of the claim’s receipt) and a “follow-up” request within 10 days of a subject’s non-appearance at the initially-scheduled IME (11 NYCRR 65—3.5 [a], [d]; 11 NYCRR 65—3.6[b].”]). Accordingly, the timeliness of the requests for and the denial of an IME are governed by the foregoing sections of the no-fault law (Celtic Med. P.C. at 14; A.B. Med. Services PLLC at 54).

Significantly, and again, an insurer meets the foregoing burden only if it tenders proof in admissible form from a person with personal knowledge of the mailings scheduling the IME, that the claimant failed to appear at the IME (LDE Med. Services, P.C. v Interboro Ins. Co., 31 Misc 3d 146[A]. *1 [App Term 2011]; Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2d Dept 2006]), and that a denial based on the non-appearance was timely mailed to the claimant (Longevity Med. Supply, Inc. v Praetorian Ins. Co., 47 Misc 3d 128[A], *1 [App Term 2015] [“In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim form, which denied this claim based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed.”]; Atl. Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 154[A], *1 [App Term 2012]). As to the latter, the evidence that claimant failed to appear [*6]must be from someone with personal knowledge (Fogel at *1). Thus, affirmations or affidavits from the medical providers who were to perform the IMEs, are sufficient, when they attest that claimant never appeared for the IME, to meet an insurer’s burden (Longevity Med. Supply, Inc. at *1; Atl. Radiology Imaging, P.C. at *1). Indeed, in Am. Tr. Ins. Co. v Lucas (111 AD3d 423 [1st Dept 2013]), the Appellate Division, in an action for declaratory judgment, reversed the trial court’s denial of the plaintiff/insurer’s motion for summary judgment, holding that the failure by the assignor to appear for an IME precluded entitlement to no-fault benefits under the relevant policy (id. at 423-424). Specifically, on the issue of the proof required to establish the failure to attend an IME, the court stated that

[p]laintiff submitted competent evidence that the notices scheduling the claimant’s medical examinations were mailed, as well as the failure to appear, based on the sworn affidavits of the scheduled examining physician and his employee. Contrary to defendants’ contention, the affidavits were not conclusory, as they established personal knowledge, the employee’s role in the physician’s no-fault department, and the physician’s personal knowledge of the office procedures when a claimant failed to appear for a medical exam

(id. at 423-424 [internal citations omitted and emphasis added]).

Defendant’s Motion

Defendant’s motion seeking summary judgment and dismissal of this action is granted, in part. Significantly, defendant establishes, beyond any factual dispute, that it properly and timely requested that Peguero appear for two IMEs, that Peguero failed to appear for the foregoing IMEs and that subsequently, defendant timely and properly denied payment of all no-fault claims related to medical treatment provided to Peguero because he failed to appear for two IMEs.

In support of its motion, and to the extent relevant to the Court’s decision, defendant submits:

An affidavit by Regina Abbatiello (Abbatiello), a No-fault Claims Adjuster employed by defendant who states, in relevant part, as follows: Abbatiello’s duties include the handling and management of no-fault claim files, the processing of all no-fault claims for defendant, and the payment and denial of such claims. Abbatiello states that she reviewed defendant’s records related to plaintiff’s claim and that her affidavit is based, in part on that review. Pursuant to defendant’s standard procedure, upon plaintiff’s claim for no-fault benefits arising from a motor vehicle accident occurring on August 5, 2013, and for which no-fault medical benefits were assigned by Pegeuero to plaintiff, claim no. NF13408803 was assigned to said claim. All documents generated and mailed by defendant in reference to plaintiff’s claim bore the foregoing claim number. On September 12, 2013, Omnimed Evaluation Services (Omnimed), on behalf of defendant, sent Peguero and his attorney a letter dated the previous day requesting that Peguero attend an IME on September 23, 2013. Peguero failed to attend the IME. Thereafter, on September 25, 2013, Omnimed sent Peguero and his attorney another letter dated the previous day requesting that Peguero attend an IME on October 2, 2013. Plaintiff failed to appear. As a result of Peguero’s failure to appear at the last scheduled IME, within 30 days thereof, all claims for no-fault medical benefits were denied. With regard to claim related correspondence received by defendant, when received via mail, it is stamped with the date when it is received, checked against a computerized system to identify with which claim number the correspondence is associated as well which adjuster is handling the respective claim. Thereafter, the correspondence is delivered to the appropriate adjuster’s incoming mail bin in that adjuster’s work area. With regard to forms denying claims or requesting additional verification, the date on the foregoing documents is the date the same are generated and placed in envelopes for mailing. The address on the envelopes in which those documents are placed and to which they are mailed is the address in defendant’s records as noted in claim documents received by defendant. When the foregoing documents are ready for mailing they are placed in an envelope by the adjuster assigned to the respective claim and then placed in a bin. Mail personnel then pick-up mail from the bins daily at 3:45PM. Claims personnel then affix appropriate postage to the envelopes and hand-deliver all outgoing mail to the United States Post Office in Melville, NY. The foregoing procedure is one to which defendant strictly adheres and it is Abbatiello’s responsibility to ensure compliance with the foregoing procedure. All documents annexed to Abbatiello’s affidavit, [*7]which relate to plaintiff’s no-fault claim were generated ^[FN3] in the regular course of defendant’s business and mailed on the date indicated on the document.

An affidavit by Karin Bruford (Bruford), Supervisor of the No-Fault Department at Omnimed, who states in relevant part, as follows: Bruford is respnsible for oversight and scheduling of IMEs by Omnimed on behalf of defendant. Upon receipt of a referral from defendant indicating that an assignor has to submit to an IME, Onmimed assigns a Claimant ID Number to the referral, which here was 21892-XB60 and all information forwarded to Omnimed regarding the claim is stored electronically in Omnimed’s computer program. Omnimed then determines the appropriate specialty and location of the doctor who will perform the IME. That doctor is then contacted via telephone to schedule the IME. Thereafter, Omnimed drafts a letter requesting that the assignor attend the IME. The letter bears all the relevant information, including the date, time, location and examining doctor’s information. The letter is then mailed to the assignor and his attorney at the address indicated in the no-fault claim records submitted to defendant by a provider and sent to Omnimed by defendant. Should an assignor fail to attend the IME, Omnimed is apprised by the physician and Omnimed then automatically reschedules the IME. If the physician apprises Omnimed that an assignor failed to attend a second IME, Omnimed generates a notice that is then mailed to defendant. Omnimed schedules an IME shortly after defendant sends it a referral. The letter scheduling the IME is placed in an envelope, addressed to an assignor and his attorney, appropriate postage is procured and Omnimed then places the envelope in the exclusive custody of the United States Postal Service. The foregoing is true for any letters rescheduling an IME. With relation to Peguero, defendant requested that Omnimed schedule an IME. On September 12, 2013, Omnimed sent Peguero and his attorney a letter dated the previous day requesting that Peguero attend an IME on September 23, 2013. Peguero failed to attend the IME. Thereafter, on September 25, 2013, Omnimed sent Peguero and his attorney another letter dated the previous day requesting that Peguero attend an IME on October 2, 2013. Plaintiff failed to appear. Bruford states that all the documents appended to her affidavit, including the letters requesting that Peguero attend an IME were created [*8]and maintained in the ordinary course of Omnimed’s business.

An affirmation by Ajendra Sohal (Sohal), a medical doctor, who states the following: Sohal’s office is located at 92-29 Queens Boulevard, No.CJ-17, Rego Park, NY 11374. Sohal was asked to perform an IME on Peguero on September 23, 2013. On the foregoing date, Sohal was at her office but Pegeuero never appeared for the IME. Sohal was again asked to perform an IME on Peguero on October 2, 2013. On the foregoing date, Sohal was again at her office but Peguero failed to appear. It was the practice of Sohal’s office to inform the IME vendor when a claimant fails to appear for an IME. Because Sohal, based on her personal knowledge was certain that Peguero never appeared for the IME, she informed Omnimed that Peguero failed to appear.

An application for no fault benefits dated October 7, 2013, wherein Peguero seeks no-fault benefits arising from a motor vehicle accident occurring on August 5, 2013. Peguero listed his address as 1233 Boston Road, Apt 4A, Bronx, NY 10456.

A legion of Verification of Treatment forms, the first of which is dated September 11, 2013 and within which plaintiff seeks payment from defendant for medical treatment provided to Peguero on August 15 and 16, 2013. A legion of Denial of Claim forms, wherein defendant denies payment on plaintiff’s claims within 30 days of the date on each of the Verification of Treatment forms. For example, with regard to the Verification of Treatment form just discussed, defendant’s Denial of Claim form, dated September 24, 2013, and the Explanation of Review form appended thereto, indicates that of the $267.50 billed, $51.44 would not be paid insofar as that portion exceeds the allowance in the fee schedule. Notably, defendant tenders a Denial of Claim form dated October 11, 2013, which indicates that plaintiff’s entire claim is denied because Peguero failed “to appear for two pain management independent medical examinations that were scheduled for 9-23-2013 and 10-02-2013.”

A Notice of Physical Examination form dated September 11, 2013. The form is from Omnimed and is addressed to Peguero at his address. The form apprises Peguero that Omnimed represents defendant and that he is scheduled to attend a medical examination as prescribed by the no-fault law. The form indicates that the examination is on September 23, 2013 at 5PM with Sohal. Peguero is provided with Sohal’s address and telephone number, told to confirm his appearance with Sohal, told to contact Omnimed if the date and time is not acceptable and apprised that he would be “reimbursed for any proven loss of earnings and reasonable transportation expenses incurred in complying with this request.”

A Re-scheduled No-fault Examination form dated September 24, 2013. The form contains substantially all of the information contained in the Notice of Physical Examination form dated September 11, 2013, except that Peguero is apprised that he did not appear for the first medical examination and is told to appear to be examined by Sohal at the same place and location but on October 2, 2013 at 6:15PM.

Based on the foregoing, defendant establishes prima facie entitlement to summary judgment on its defense predicated on Peguero’s failure to appear for and submit to an IME. As noted above, when requested by the insurer, submission by the claimant to an IME is a condition precedent to the receipt of no-fault benefits (11 NYCRR 65-1.1). Accordingly, an insurer establishes prima facie entitlement to summary judgment on its defense that denial of benefits is warranted because the claimant failed to appear at an IME when it demonstrates that an IME was timely requested via properly mailed notices to the claimant and that the claimant failed to appear (Unitrin Advantage Ins. Co. at 560; Coast Med. Diagnostic, PC at *1; City Care Acupuncture, PC at *1; Shore Med. Diagnostic, P.C. at *1). In addition, an insurer meets the foregoing burden if it tenders proof in admissible form from a person with personal knowledge of the mailings used to schedule the IME, claimant’s failure to appear at the IME (LDE Med. Services, P.C. at *1; Fogel Psychological, P.C. at 722), and that a denial based on claimant’s failure to appear was timely mailed to the claimant (Longevity Med. Supply, Inc. at *1; Atl. Radiology Imaging, P.C. at *1). Significantly, the evidence that claimant failed to appear must be from someone with personal knowledge (Fogel at *1), such as affirmations or affidavits from the medical providers who were to perform the IMEs (Am. Tr. Ins. Co. at 423-24; Longevity Med. Supply, Inc. at *1; Atl. Radiology Imaging, P.C. at *1).

Here, plaintiff, as per its first Verification of Treatment form, requested payment for medical services on September 11, 2013 and defendant then requested that Peguero appear for an IME that very day. Thus, the IME – which is a request for further verification – was timely requested.

To be sure, once an insurer receives a claim from a medical provider, it must pay or deny the same within 30 days thereof (11 NYCRR 65-3.8[c]; Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Westchester County Med. Ctr. at 554) or be precluded from interposing a statutory exclusion defense (Presbyt. Hosp. in the City of New York at 282; New York Hosp. Med. Ctr. of Queens at 584; Mount Sinai Hosp. at 16; Presbyt. Hosp. in City of New York at 211). However, the foregoing period – within which to deny or pay a claim – can be extended by a proper request for verification (11 NYCRR 65-3.5[b], and when such a request is made, “an insurer is not obligated to pay or deny a claim until all demanded verification is provided” (New York and Presbyt. Hosp. at 513; Hosp. for Joint Diseases at 434; Nyack Hosp. at 101; New York Hosp. Med. Ctr. of Queens at 584; New York & Presbyt. Hosp. at 700). A claim for verification tolls the time within which to deny a claim until 30 days after requested information is received if verification is requested within 15 days of receipt of claim or by the number of days beyond the 15 days that it took the insurer to request verification (11 NYCRR 65-3.8[j]; Nyack Hosp. at 100-101). Stated differently, generally, a request for verification tolls the time within which to pay or deny a claim and such time does not begin to run until the documents are provided (New York & Presbyt. Hosp. at 700; Westchester County Med. Ctr. at 555).

Notably, a request that a claimant submit to an IME is a request for additional verification pursuant to 11 NYCRR 65-3.5(b) and upon failure of the claimant to appear, a further request for an IME is a follow-up verification request governed by 11 NYCRR 65-3.6(b) (Celtic Med. P.C. at 14; A.B. Med. Services PLLC at 54).

Accordingly, because here, plaintiff submitted the foregoing claim on September 11, 2013, defendant had until October 11, 2013 to pay, deny it, or seek further verification. As indicated by the Notice of Physical Examination form sent to Peguero by Omnimed on defendant’s behalf, defendant timely requested (within 30 days) that Peguero attend an IME on the same day plaintiff’s claim form was dated. The IME was first scheduled for September 23, 2013, but as per Sohal’s affirmation, Peguero failed to appear for the IME and Omnimed was apprised. As a result, per Omnimed’s Re-scheduled No-fault Examination form dated September 24, 2013 (one day after Peguero’s failure to comply with the demand for verification – the IME request), Omnimed rescheduled the IME for October 2, 2013. Upon learning from Sohal that Peguero failed to appear for the second IME, Omnimed notified defendant, who then sent plaintiff a Denial of Claim form dated October 11, 2013 (nine days after Peguero failed to appear for the second IME), indicating that plaintiff’s entire claim would be denied because Peguero failed “to appear for two pain management independent medical examinations that were scheduled for 9-23-2013 and 10-02-2013.” Because defendant timely requested the initial IME within 15 days of receiving plaintiff’s claim form (11 NYCRR 65-3.5[b]), timely re-requested the IME within 10 days of Peguero’s failure to appear (11 NYCRR 65-3.6[b]), and timely denied the claim within nine of the 30 days it had to deny plaintiff’s claim for Peguero’s failure to appear at the IME, defendant establishes prima facie entitlement to summary judgment.

It bears noting, that while generally, pursuant to 11 NYCRR 65-3.5(o), denial of a claim for a plaintiff’s failure to tender information responsive to an insurer’s request for verification must occur no earlier 120 days after the failure by a provider to provide the information requested (Hosp. for Joint Diseases at 434; Hempstead Gen. Hosp. at 454; TAM Med. Supply Corp. at *1), no such requirement is imposed when a denial is one for an assignor’s failure to attend an IME. Specifically, 11 NYCRR 65-3.5(o) states that “[t]his subdivision shall not apply to a . . . medical examination request, or examination under oath request.”

It is well settled that proof of timely mailing of forms requesting verification (here, an IME), and forms denying claims are part of defendant’s burden for purposes of establishing prima facie entitlement to summary judgment (Unitrin Advantage Ins. Co. at 560; Coast Med. Diagnostic, PC at *1; City Care Acupuncture, PC at *1; Shore Med. Diagnostic, P.C. at *1). On this record, [*9]defendant meets the requisite burden. Indeed, a party’s burden to establish that forms were mailed and therefore, presumed to have been received by another is established upon the tender of proof in admissible form “of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (New York and Presbyt. Hosp. at 547; Residential Holding Corp. at 680; Delta Diagnostic Radiology, P.C. at 18).

On this record, defendant establishes timely mailing of the forms requesting that Peguero submit to an IME, which were mailed to Peguero by Omnimed on behalf of defendant with Bruford’s affidavit. With respect to the notices sent to Peguero scheduling his IMEs – here, the Notice of Physical Examination form and the Re-scheduled No-fault Examination form – Bruford states that they were mailed on the date indicated on the letters as per Omnimed’s mailing procedure, which was to place such letters in an envelope, addressed to an assignor and his attorney, to affix appropriate postage thereto and to place the envelope in the exclusive custody of the United States Postal Service.

Similarly, timely mailing of the Denial of Claim form dated October 11, 2013, denying plaintiff’s claims for Peguero’s failure to attend two IMEs is established by Abbatiello, who describes defendant’s mailing procedure with respect to such forms. Specifically, Abbatiello states that with regard to forms denying claims or requesting additional verification, the date on said forms is the date the same are generated and placed in envelopes for mailing, that the address on the envelopes in which those documents are placed and to which they are mailed is the same address in defendant’s records and derived from the claim documents sent to defendant by an assignor and/or insured. Abbatiello further states that when the foregoing documents are ready for mailing they are placed in an envelope by the adjuster assigned to the respective claim and then placed in a bin, where after proper postage is procured and affixed, the forms, in envelopes, are then hand-delivered to the United States Post Office in Melville, NY.

Nothing submitted by plaintiff in opposition to defendant’s motion raises an issue of fact sufficient to preclude summary judgment on the foregoing issue. Indeed, on this issue, plaintiff submits no evidence whatsoever and instead contends that defendant’s evidence is insufficient to establish defendant’s burden on summary judgment. Upon a review of all arguments asserted by plaintiff, the Court finds them to be bereft of merit.

Plaintiff’s salient argument is that Sohal’s affirmation, wherein he states that Peguero failed to attend the IMEs scheduled by Omnimed on behalf of defendant is insufficient to establish that Peguero failed to appear. Essentially, despite Sohal’s contention that the contents of her affirmation are based on her personal knowledge, plaintiff contends that Sohal’s affirmation lacks the personal knowledge Sohal contends she had. To that end, paradoxically, rather than support the foregoing contention with case law relevant to that issue, plaintiff goes off on an inapplicable tangent. Again, prevailing law indicates that all that is required to establish a claimant’s failure to appear at an IME is that such assertion be from someone with personal knowledge (Fogel at *1), such as the medical provider who would have performed the IME (Am. Tr. Ins. Co. at 423-24; Longevity Med. Supply, Inc. at *1; Atl. Radiology Imaging, P.C. at *1).

Despite the foregoing body of law, plaintiff seeks to limit the definition of personal knowledge, carving from it those instances, where as here, someone’s basis for an assertion is essentially an eyewitness account, by citing cases prescribing the elements required to establish the presumption that mail was received after it was mailed. To be sure, plaintiff, relying on, inter alia, Viktor Gribenko, M.D., P.C. v Allstate Ins. Co. (10 Misc 3d 139[A] [App Term 2005]), a case regarding the burden of proof to establish presumption of receipt upon mailing, contends that Sohal’s assertion, that she knew that Peguero never appeared for his IMEs because she was at her office and therefore in a position to know, is insufficient because she fails to describe the entirety of the practices at her office with respect to conducting IMEs.

This Court is not persuaded by plaintiff’s assertion and finds Sohal’s affirmation far from conclusory. This is especially true here since the appellate case law on this issue does not avail plaintiff. In Am. Tr. Ins. Co. v Lucas, the court, on the issue of whether the claimant appeared for an IME found that “affidavits [submitted] were not conclusory, as they established personal [*10]knowledge, the employee’s role in the physician’s no-fault department, and the physician’s personal knowledge of the office procedures when a claimant failed to appear for a medical exam” (id. at 423-424). Here, Sohal, in addition to describing her office’s procedures when a claimant fails to appear for an IME , unequivocally states that she “was personally at [her] office on the above date[s] and [] Peguero never appeared for the IME[s.]” She then goes on to state that she “could state with certainty that Robert Peguero never appeared for the above IME(s).” Accordingly, Sohal’s affirmation is far from conclusory, states the basis for her assertion, and unequivocally establishes that Peguero never appeared for either of his two IMEs.

Plaintiff’s remaining arguments are similarly bereft of merit. For example, plaintiff’s contention that the amount of time given to Peguero to appear for IMEs is unreasonable and violative of 11 NYCRR 65-3.5(e)(“All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant and medical examinations shall be conducted in a facility properly equipped for the performance of the medical examination.”), as a matter of law, is unpersuasive. Here, the first notice was mailed on September 11 or 12, 2013 for an IME to be held on September 23, 2013. Thus Peguero was given 10-11 days’ notice. With regard to the second IME, Peguero was notified on September 24 or 25, 2013 that he was to appear for an IME on October 2, 2013. Thus, he was given seven-eight days’ notice. Nevertheless, whether the length of time provided is unreasonable is an issue the Court need not reach since that element is not part of defendant’s prima facie burden.

Indeed, the relevant case law states that prima facie entitlement to summary judgment on the issue of a claimant’s failure to attend an IME is established upon evidence that an IME was, inter alia, timely requested pursuant to 11 NYCRR 65-3.5(b) (Unitrin Advantage Ins. Co. at 560; Coast Med. Diagnostic, PC at *1; City Care Acupuncture, PC at *1; Shore Med. Diagnostic, P.C. at *1). There is no basis then, as urged by plaintiff, to conclude, that an insurer must also establish that the time period between notice of an IME and the IME is reasonable and convenient. Quite frankly, in the absence of admissible evidence decrying, as relevant here, the time period, the time period must be presumed reasonable. Here, then evidence from Peguero would be required, from whom no affidavit is submitted.

Because the failure to appear for an IME warrants denial of all claims made by the claimant, not just those arising after the date that claimant fails to appear for the IME, and regardless of whether prior denials were timely (Unitrin Advantage Ins. Co. at 560), the remainder of defendant’s motion – seeking, inter alia, summary judgment on other defenses – is denied as moot.

Plaintiff’s Cross-Motion

For the reasons stated above – that on this record, it is clear that Peguero failed to appear for timely and properly requested IMEs which resulted in a timely and proper denial of all no-fault medical claims, plaintiff’s cross-motion for summary judgment must be denied. It is hereby

ORDERED that the complaint be dismissed, with prejudice. It is further

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

This constitutes this Court’s decision and Order.

Dated:
__________________
Hon.___________________________
FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1: The payment of no-fault benefits and claims made pursuant thereto are governed by, inter alia, 11 NYCRR 65-3.1 which states that “[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law.”

Footnote 2: It bears mentioning that the court’s reasoning in Hosp. for Joint Diseases – that “[p]ersonal knowledge of [defendant’s] documents, their history, or specific content are not necessarily required of a document custodian” (id. at 433), for purposes of laying a business record foundation sufficient to admit the documents in evidence, or in that case, for consideration on summary judgment – is merely a recognition of well settled law. Indeed, the business record foundation only requires proof that (1) the record at issue be made in the regular course of business; (2) it is the regular course of business to make said record; and (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 NY2d 569, 579 [1986]). Accordingly, “[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity’s files” (DeLeon v Port Auth. of New York and New Jersey, 306 AD2d 146 [1st Dept 2003]).

Footnote 3: Notably, Abbatiello’s foundation for the records appended to her affidavit would ordinarily only be sufficient to admit in evidence only those records generated by defendant. To be sure, records can generally be admitted for consideration at trial or on a motion upon a proper foundation that the same are business records – namely, that (1) the record be made in the regular course of business; (2) it is the regular course of business to make said record; and (3) the records were made contemporaneous with the events contained therein (CPLR § 4518; People v Kennedy, 68 NY2d 569, 579 [1986]). Here, the foregoing foundation was laid but there are a legion of records attached to the instant motion, namely the claim documents which defendant received from plaintiff which clearly were not generated by defendant and thus not their business records. Such records, therefore, are not generally admissible (Carothers v GEICO Indem. Co., 79 AD3d 864, 864-865 [2d Dept 2010], overruled on other grounds Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2d Dept 2013], affd, 25 NY3d 498 [2015]. To be sure, “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” (Std. Textile Co., Inc. v Natl. Equip. Rental, Ltd., 80 AD2d 911, 911 [2d Dept 1981]). Accordingly, the records of a third-party are not the admissible business records of another party unless such third-party’s records were used in the preparation of the proponent’s business records such that they are fully incorporated into the proponent’s business records (Andrew Carothers, M.D., P.C. at 864—65; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727, 728 [2d Dept 1986]; see also People v DiSalvo, 284 AD2d 547, 548 [2d Dept 2001]). Here, however, all records appended to Abbatiello’s affidavit are clearly admissible because as detailed by Abbatiello, none of defendant’s records, specifically the forms denying claims and those forms where further verification is requested would be generated but for the records received by defendant and which are appended to Abbatiello’s affidavit.

Decided on May 10, 2019

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

Decided on May 10, 2019

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