Pedro Torres-Jimenez, MD PC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50073(U))

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

Jessica Barros, plaintiff-assignor, was involved in a motor vehicle accident on July 2, 2020, and sought medical treatment from Pedro Torres-Jimenez, MD PC (plaintiff). Plaintiff commenced this action against Nationwide Affinity Insurance Company of America seeking to [*2]recover $3,228.78 representing the balance of alleged first-party no-fault benefits for medical services provided to plaintiff-assignor.

Upon the foregoing papers, plaintiff moves pursuant to CPLR 3211 (b) to dismiss defendant’s 36 affirmative defenses (motion sequence no. 001). Defendant opposes plaintiff’s motion and cross-moves for summary judgment (motion sequence no. 002).

Defendant’s Cross-Motion for Summary Judgment

Defendant seeks summary judgment on the grounds that plaintiff failed to provide verification of the claim within 120 days of the initial request pursuant to the no fault regulations.^[FN1] . In support of the cross-motion, defendant submits an attorney affirmation, the pleadings, affidavit of Claims Manager Lynn Ellis, EUO letter dated 10/9/2020, response dated 10/15/2020, amended EUO letter dated 10/16/2020, response dated 11/4/2020, EUO transcript dated 11/16/2020, post-EUO request for verification dated 11/23/2020, follow up request post-EUO for verification dated 12/29/2020, second follow up request post-EUO for verification dated 3/11/2021, attorney affidavit of merit, no-fault affidavit of merit, affidavit of merit by Linda Arnold, Claims Specialist III.

The movant on a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). CPLR 3212 provides that a summary judgment motion must be supported by an affidavit of a person with knowledge of the facts, as well as other admissible evidence (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384-386 [2005]).

Once such a showing is made, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986], citing Zuckerman, 49 NY2d at 562).

The no fault insurance scheme is designed to provide a quick resolution of the reimbursement of claims, avoid litigation, and incentivize an insurer to seek verification of a claim, deny it, or pay it in short order (see Viviane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498, 506-07 [2015]; Matter of Med. Socy. of State v Serio, 100 NY2d 854, 860 [2003]). The procedure to verify, deny, or pay claims is codified and governed by Insurance Law 5106 (a).

“[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” (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009]). If the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of receipt of the proof of claim (11 NYCRR 65—3.5[b]; see New York Univ. Hosp. Tisch Inst. v Govt. Employees Ins. Co., 117 AD3d 1012, 1014 [2d Dept 2014]).

“Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the [*3]expiration of that 30—day period, must follow up with a second request for verification (see 11 NYCRR 65—3.6 [b])” (Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 120 AD3d 561, 563 [2d Dept 2014]). The insurer may deny the claim if the applicant fails to provide the verification within 120 calendar days from the date of the initial request, unless the applicant provides written proof providing reasonable justification for the failure to comply (11 NYCRR 65-3.5 [o]).

To meet its prima facie burden, defendant must establish that “it had timely mailed initial and follow-up verification requests; that it had not received the requested verification; and that it had timely denied the claim on that ground” (Psychology YME, P.C. v Travelers Ins., 65 Misc 3d 146[A], 2019 NY Slip Op 51798[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Solution Bridge, Inc. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 152[A], 2018 NY Slip Op 51784[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Mailing and Follow Up for Verification Requests

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013], affd 25 NY3d 498 [2015] [internal quotation marks and citations omitted]). “‘The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]). “Actual mailing may be established by a proper ‘certificate [of mailing] or by [an] affidavit of one with personal knowledge'” (J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [citation omitted]). “However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]).

Here, the Court finds that defendant established its timely mailing of the initial and follow up verification requests for a provider EUO through the affidavit of Claims Manager Lynn Ellis, addressing defendant’s practices and procedures for processing no-fault claims, including verifications requests, letters and denials as well as her personal knowledge regarding this claim (NYSCEF Doc No. 15, Ellis aff). With respect to this particular claim, Ellis confirmed that the bill was received on September 21, 2020, defendant sent the initial verification within 15 business days on October 8, 2020, and a follow up was sent on November 10, 2020 — within 10 days from the 30th day after the initial verification request was mailed (id. at ¶ 31-33; NYSCEF Doc No 16).

The Ellis affidavit accordingly sufficiently establishes that the verification requests were mailed in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Blackman v Nationwide Ins., 66 Misc 3d 128[A], 2019 NY Slip Op 52038[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]) and in a timely manner as required by 11 NYCRR 65—3.6 (b).

Outstanding Verifications

Plaintiff-provider submitted to an examination under oath (EUO) on November 16, 2020.

Defendant claims that plaintiff’s testimony raised questions that could be relevant to a possible defense. Attorney Kaufman described that plaintiff’s principal could not answer or had [*4]difficulty answering questions regarding the formation of the professional corporation entity, its locations, whether it pays rent, where patients are seen, and the identity of medical providers and employees, affiliation with other entities and individuals and payment of taxes (NYSCEF Doc No. 12, Kaufman aff at ¶ 28). The affidavit of Linda Arnold, Claims Specialist III, who is responsible for investigating medical providers by verifying that they are licensed or ineligible to receive no-fault reimbursement, itemizes the specific additional verification sought from plaintiff post-EUO (NYSCEF Doc No. 28, Arnold aff at ¶ 7).

The post-EUO verification request was sent on November 23, 2020 and a follow up was sent on December 29, 2020 (NYSCEF Doc No. 12, Kaufman aff at ¶ 29-30). Plaintiff responded in part on March 3, 2021 and asserting its objection to the request for additional verification and scope of the discovery sought (NYSCEF Doc No. 12, Kaufman aff at ¶ 31 and NYSCEF Doc No. 24, exhibit L). Defendant followed up again noting deficiencies on March 11, 2021 (id. at ¶ 32 and NYSCEF Doc No. 25, exhibit M). Arnold specifies several items that remain outstanding to date in the verification request and references the corresponding portions of the EUO transcript (see NYSCEF Doc No. 28, Arnold aff, p. 4-10).

In opposition, plaintiff points to 11 NYCRR 65-3.8(a)(1), which states:

No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart. In the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day of the examination was performed.

Plaintiff argues that the verification was deemed “received” on the date of the EUO on November 16, 2020 and that the additional verification request sent post-EUO was untimely, as “11 NYCRR 65-3.5 (b) provides that “any additional verification . . . shall be requested within 15 business days of receipt of the prescribed verification forms” (Burke Physical Therapy, P.C. aao Rush v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024] [emphasis in original]; see also Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]; A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53 [2d Dept 2012]; Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

This Court agrees. Even when the time to pay or deny a claim has been tolled by a timely verification request, “the Regulations do not provide that such a toll grants an insurer additional opportunities to make requests for verification that would otherwise be untimely” (Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Defendant relies on Nationwide Affinity Ins. Co. v Gepp, 234 AD3d 1320 (4th Dept 2025), which permitted post-EUO verification requests that were otherwise untimely. In Gepp, the Fourth Department held that “[u]nder the specific facts of this case . . . post-EUO requests were proper” because the parties had “charted their own litigation course” — the court held the provider to the agreements they made at the EUO. Specifically, “[r]ather than continuing to request EUOs in the hope that defendants produced a knowledgeable representative,” counsel for the parties agreed that those issues would be best resolved by written demands and answers” (id. at 1323 [internal citation omitted]). Accordingly, Gepp was a very specific set of circumstances where the parties had agreed to conduct additional verification in writing rather than conduct an EUO of a different witness and the Gepp Court made clear that the post-EUO requests were [*5]proper “[u]nder the specific facts of this case” — it was not intending to expand the timeliness or scope of verifications otherwise mandated in the clearly written regulations.

Accordingly, based on these undisputed facts, the Court finds defendant failed to meet its prima facie burden on this defense and the “[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad, 64 NY2d at 853).

Plaintiff’s Motion to Dismiss Affirmative Defenses

In support, plaintiff submits an attorney affirmation, the pleadings, assignment of benefits, verification of treatment (NF-3), opinion of the NYS Department of Financial Services regarding billing codes and ICD diagnosis codes.

Upon a motion pursuant to CPLR 3211 (b), “the plaintiff bears the burden of demonstrating that the affirmative defense is ‘without merit as a matter of law'” (Greco v Christoffersen, 70 AD3d 769, 771 [2d Dept 2010], quoting Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]). “In reviewing a motion to dismiss an affirmative defense, this Court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference” (Greco, 70 AD3d at 771).

Defendant’s answer asserts 36 affirmative defenses that are pled in boilerplate fashion, which the Appellate Term has previously held is “not acceptable practice” (see Island Life Chiropractic Pain Care, PLLC v Zipcar, 72 Misc 3d 141[A], 2021 NY Slip Op 50844[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

At the same time, however, plaintiff’s motion, supported by a 53-page attorney affirmation “contained numerous misleading or erroneous statements of law,” which also should not be countenanced (see id.). For example, in seeking to dismiss the third affirmative defense, “[p]laintiff also ignored that ‘no motion by the plaintiff lies under CPLR 3211 (b) to strike the defense [of failure to state a cause of action], as this amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim'” (id., quoting Butler v Catinella, 58 AD3d 145 [2d Dept 2008]).

“This Court will not prune plaintiff’s motion and separate the potentially valid arguments from plaintiff’s numerous invalid or questionable arguments” (Island Life Chiropractic Pain Care, PLLC, 2021 NY Slip Op 50844[U], *2).

Finally, there is no basis to award attorneys’ fees as sanction under Rule 130-1.1. Therefore, plaintiff’s motion is denied in its entirety.

Accordingly, it is hereby ORDERED that plaintiff’s motion to dismiss defendant’s affirmative defenses and for sanctions (motion sequence no 001) is denied; and it is further

ORDERED that defendant’s cross-motion for summary judgment on its outstanding verification request (motion sequence no 002) is denied.

This constitutes the decision and order of the Court.