[*1]

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

Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for respondent.

Order, Supreme Court, Bronx County (Ruben Franco, J.), entered December 8, 2017, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment seeking a declaration of non-coverage for no-fault benefits as against defendant New Century Acupuncture, P.C., as assignor of defendant Heather Davis, unanimously affirmed, without costs.

Plaintiff seeks a declaration of non-coverage based on the failure of defendant Davis, the injured claimant, to appear for two scheduled independent medical examinations (IMEs), which is a condition precedent to coverage (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]; 11 NYCRR 65-1.1 [d]). Plaintiff sent an initial IME scheduling letter, and a re-scheduling letter, to both Davis and her attorney. After Davis failed to appear for the re-scheduled IME, plaintiff sent a third letter to the attorney, which indicated on its face that a copy had been sent to Davis. However, it is undisputed that the letter to Davis was sent to the wrong address. Thus, there was no reason for the attorney to know that Davis had not received notice of the re-scheduled IME and to tell her of the new IME date and location. Under these circumstances, the motion court properly found that plaintiff failed to demonstrate that it provided adequate notice, reasonably calculated to apprise Davis that her appearance at an IME at a specified date and location was required (see generally Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418, 423 [1983]; cf. American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [1st Dept 2013]). Concur—Richter, J.P., Manzanet-Daniels, Webber, Oing, Moulton, JJ.

[*1]

Rubin, Fiorella & Friedman LLP, New York (David F. Boucher, Jr. of counsel), for appellant.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 24, 2017, which denied plaintiff’s motion for summary judgment declaring that it has no obligation to pay the no-fault medical provider claims of defendants Lida’s Medical Supply, Inc. and American Kinetics Lab, Inc. with respect to the July 9, 2015 motor vehicle accident, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.

Plaintiff’s first cause of action is for a declaratory judgment that it did not owe a duty to pay no-fault claims because the underlying claimants failed to appear for independent medical examinations (IMEs). While plaintiff’s notice of motion did not specify that it was solely moving for summary judgment on its first cause of action, its attorney’s affirmation shows that they were limiting the relief sought to this claim.

When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it “constitutes a breach of a condition precedent vitiating coverage” (Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]; see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]; 11 NYCRR 65-1.1). Here, plaintiff established its entitlement to judgment as a matter of law by submitting the letters sent to each claimant notifying them about the date, time, and location of the initially scheduled IME and a second scheduled IME and affidavits of service for these letters. Plaintiff also submitted affidavits from each medical professional assigned to conduct the scheduled IME, with each stating that the medical professional was in his or her office at the date and time of the scheduled IME, the respective claimant failed to appear, the appointment was kept open until the end of the day, and at the end of the day, the medical professional filled out the affidavit acknowledging the nonappearance.

Because Hereford sent the notices scheduling the IMEs prior to the receipt of each of the claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply (see Mapfre at 469). Furthermore, plaintiff was not required “to demonstrate [*2]that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424-425 [1st Dept 2013]). Concur—Richter, J.P., Gesmer, Oing, Singh, Moulton, JJ.

[*1]

Sweetbaum & Sweetbaum, Lake Success, NY (Marshall D. Sweetbaum and John S. McDonnell of counsel), for appellant.

Farber Brocks & Zane LLP, Garden City, NY (Tracy L. Frankel and William R. Brocks, Jr., of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated June 9, 2015, the petitioner appeals from (1) an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated December 9, 2015, which denied the petition and granted the application of Travelers Companies, Inc., to confirm the award, and (2) a judgment of the same court entered March 24, 2016, which, upon the order, is in favor of Travelers Companies, Inc., and against the petitioner in the principal sum of $25,000.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to Travelers Companies, Inc.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

An individual insured by Allstate Insurance Company (hereinafter Allstate) and an individual insured by Travelers Companies, Inc. (hereinafter Travelers), were involved in a motor vehicle accident. In connection with that accident, Travelers paid its insured $75,000, representing coverage for basic economic loss and optional basic economic loss. Pursuant to Insurance Law § 5105 (a), Allstate reimbursed Travelers in the amount of $50,000 for the payment made to Travelers’ insured. Travelers then sought, through arbitration, to recover from Allstate the remainder of its payment to the insured. The matter was submitted to an arbitration panel. The arbitrators determined that Travelers was entitled to recoup the entire $75,000 payment to its insured and awarded Travelers $25,000.

Allstate filed a petition in the Supreme Court to vacate the arbitration award. [*2]Travelers opposed the petition, and requested that the award be confirmed. In an order dated December 9, 2015, the Supreme Court denied the petition and confirmed the award. The court then issued a judgment in favor of Travelers in the principal sum of $25,000. Allstate appeals.

To be upheld, an award in a compulsory arbitration proceeding such as this one (see Insurance Law § 5105 [b]) “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]; Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d 980 [2015]; Matter of Public Serv. Mut. Ins. Co. v Fiduciary Ins. Co. of Am., 123 AD3d 933 [2014]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]; see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 224).

Here, the arbitrators’ determination that Travelers was entitled to recoup the entire payment made to its insured pursuant to basic economic loss and optional basic economic loss coverage was not arbitrary and capricious. Rather, it was rationally based on the relevant statutes and regulations (see Insurance Law § 5102 [a], [b]; 11 NYCRR 65-1.1, 65-1.2).

Travelers’ remaining contentions either are without merit or need not be reached in light of our determination. Austin, J.P., Roman, Sgroi and Brathwaite Nelson, JJ., concur.

[*1]

Rubin, Fiorella & Friedman LLP, New York (Aaron F. Fishbein of counsel), for appellant.

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered July 18, 2016, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for a default judgment against certain defendants (defaulting defendants) on its first and/or second causes of action for a declaratory judgment, unanimously modified, on the law and the facts, to grant the motion as to defendants 21st Century Pharmacy a/k/a 21st Century Pharmacy Inc.; Advanced Orthopedics and Joint Preservation P.C.; Angelic Physical Therapy P.C.; BMJ Chiropractic, P.C.; Coney Island Medical Practice a/k/a Coney Island Medical Practice Plan, P.C.; Dana Woolfson LMT; Electrophysiologic Medical Diagnostics, P.C.; Excel Surgery Center, L.L.C.; Franklin Hospital; GC Chiropractic P.C.; Hamza Physical Therapy PLLC; LLJ Therapeutic Services, P.T. P.C.; Master Cheng Acupuncture P.C.; Metropolitan Medical & Surgical P.C.; Noel Blackman Physician, P.C.; North Shore LIJ Health System a/k/a North Shore LIJ Medical PC; Ortho-Med Equip Inc.; Patchogue Open MRI, P.C. d/b/a Southwest Radiology; Quality Health Family Medical Care a/k/a Quality Health Family Medical Care P.C.; Quality Medical & Surgical Supplies, L.L.C. a/k/a Quality Medical Surgical Supplies LLC; Ralph Innovative Medical, P.C.; RM Physical Therapy, P.C.; Total Psychiatric Medical Services, P.C.; Megastar Medical, P.C.; Michele Glispy, LAC; Layne Negrin, LMT; Ruby Galope, PT; and Patrick Masson, and to declare that such defendants have no right to no-fault benefits from plaintiff with respect to a September 19, 2014 motor vehicle accident, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

Plaintiff established its entitlement to a default judgment against the defaulting defendants (see CPLR 3215 [f]) except for defendant Anio Pierriseme, for whom no affidavit of nonmilitary service appears in the record (see Avgush v De La Cruz, 30 Misc 3d 133[A], 2011 NY Slip Op 50076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3215:16). Concur—Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.

[*1]

Law Offices of Economou & Economou, P.C., Syosset (Ralph C. Caio of counsel), for appellant.

Rubin, Fiorella & Friedman LLP, New York (Harlan R. Schreiber of counsel), for respondent.

Order and judgment (one paper) of the Supreme Court, New York County (Debra A. James, J.), entered January 5, 2016, which granted plaintiff Unitrin Advantage Insurance Company’s (Unitrin) motion for summary judgment and declared that it had no duty to pay no-fault benefits to defendant Andrew J. Dowd, M.D., in connection with the subject April 16, 2013 collision, unanimously modified, on the law, to deny summary judgment and vacate the declaration as to the May 15, 2013, May 22, 2013, and May 31, 2013 dates of medical services, and otherwise affirmed, without costs.

Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5 (b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin’s July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.

Although the EUO scheduling letters for the third and fourth dates of medical services, both of which reflected services rendered on May 31, 2013, were timely, the reasons for denial on the NF-10 denial of claim form were stated solely as a failure to appear for an EUO scheduled on July 29, 2013. The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2d Dept 2004]).

The final claim, for date of medical services June 12, 2013, bill received on July 10, 2013, was timely and properly denied. Concur—Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.

[*1]

Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Daisy Ford Paglia of counsel), for appellant.

Basch & Keegan, Kingston (Derek J. Spada of counsel), for respondent.

Devine, J. Appeal from an order of the Supreme Court (Gilpatric, J.), entered November 16, 2016 in Ulster County, which denied defendant’s motion for summary judgment dismissing the complaint.

After he was injured in a motor vehicle accident, plaintiff commenced this action to recover no-fault benefits for lost wages that he allegedly would have received from a new job that he had been offered but not yet started. Supreme Court denied defendant’s motion for summary judgment dismissing the complaint. This Court reversed, granted the motion and dismissed the complaint (152 AD3d 1145 [2017]). The Court of Appeals reversed, finding “[t]riable issues of fact . . . as to plaintiff’s claim for lost wages,” and remitted the matter so that this Court could address any issue “raised but not determined” on the initial appeal (30 NY3d 1044, 1045 [2017]).

The remaining issue is whether defendant was provided with proper verification of plaintiff’s claim for lost wages. “[A]n insurer must pay or deny only a verified claim” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]; see 11 NYCRR 65-3.8 [a] [1]), which ordinarily requires “its receipt of verification of all of the relevant information requested” (11 NYCRR 65-3.8 [b] [3]; see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d at 299). As is relevant here, the insurer must “accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed [*2]form” (11 NYCRR 65-3.5 [f]; see Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 162 [2013]). The regulations therefore ensure that the insurer is provided with the necessary information to verify a claim but do not, in most instances, require that the information be provided on a particular form (see 11 NYCRR 65-3.5 [f]).

Defendant complains, and the record indicates, that it did not receive a completed NF-6 form (employer’s wage verification report) from VW Parts, Inc., the intended employer. The principal of VW Parts testified, however, that he did not believe that he ever received an NF-6 form to complete. Counsel for plaintiff confirmed as much in a letter responding to defendant’s demand for the completed form, requesting a copy that he could provide to VW Parts. In any event, counsel for plaintiff had already provided defendant with plaintiff’s employment application to VW Parts and a signed employment offer providing details of the proffered work. To the extent that those documents did not provide all of the information contained on a completed NF-6 form, defendant further connected with the principal of VW Parts “for an interview and verification of employment” that could have been used to obtain the remainder. Thus, inasmuch as triable questions of fact exist as to whether plaintiff’s claim was properly verified, defendant is not entitled to summary judgment dismissing the complaint on that basis.

Egan Jr., Clark and Mulvey, JJ., concur; McCarthy, J.P., not taking part. Ordered that the order is affirmed, without costs.

[*1]

Bruno, Gerbino & Soriano, LLP, Melville (Nathan M. Shapiro of counsel), for defendant-appellant.

Cherundolo Law Firm, PLLC, Syracuse (John C. Cherundolo of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), dated February 15, 2017. The order, among other things, denied the motion of defendant Motor Vehicle Accident Indemnification Corporation seeking, in effect, a declaration that plaintiff is not entitled to no-fault insurance benefits from it.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking, inter alia, a declaration that Motor Vehicle Accident Indemnification Corporation (defendant) is required to provide him with no-fault insurance benefits. Defendant now appeals from an order that, inter alia, denied its motion for summary judgment seeking, in effect, a declaration that plaintiff is not entitled to such benefits from defendant (see e.g. Leo v New York Cent. Mut. Fire Ins. Co., 136 AD3d 1333, 1333 [4th Dept 2016], lv denied 28 NY3d 902 [2016]; Ward v County of Allegany, 34 AD3d 1288, 1289 [4th Dept 2006]). We affirm.

Contrary to defendant’s contention, it failed to meet its burden on the motion of establishing as a matter of law that plaintiff was not entitled to no-fault insurance benefits. Insofar as relevant here, the Insurance Law provides that no-fault benefits are to be given “to a qualified person for basic economic loss arising out of the use or operation . . . of an uninsured motor vehicle” (Insurance Law § 5221 [b] [1]) and, in pertinent part, the statute defines a qualified person as “a resident of this state, other than an insured or the owner of an uninsured motor vehicle” (§ 5202 [b] [i]). Vehicle and Traffic Law § 128 defines an owner as, inter alia, “[a] person . . . having the property in or title to a vehicle or vessel.” We have previously stated that, “[g]enerally, ‘ownership is in the registered owner of the vehicle or one holding the documents of title[,] but a party may rebut the inference that arises from these circumstances’ ” (Martin v Lancer Ins. Co., 133 AD3d 1219, 1220 [4th Dept 2015]).

Here, in support of its motion, defendant submitted plaintiff’s testimony that he was the co-owner of the vehicle, and that he and his fiancée paid for the vehicle, its maintenance, and a Florida insurance policy that did not cover plaintiff. Nevertheless, defendant also submitted the registration, title, and insurance documents for the vehicle, all of which list plaintiff’s father as the owner. Consequently, Supreme Court properly determined that, inasmuch as “there is conflicting evidence of ownership, the issue must be resolved by a trier of fact” (id.). Because defendant did not meet its initial burden on the motion for summary judgment, “the burden never shifted to [plaintiff], and denial of the motion was required ‘regardless of the sufficiency of the opposing papers’ ” (Scruton v Acro-Fab Ltd., 144 AD3d 1502, 1503 [4th Dept 2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Present—Smith, J.P., Carni, Curran and Winslow, JJ.

[*1]

E. Stewart Jones Hacker Murphy, LLP, Troy (Ryan M. Finn of counsel), for appellant.

Rivkin Radler LLP, Uniondale (Henry Mascia of counsel), for respondent.

Rumsey, J. Appeal from an order of the Supreme Court (Ferreira, J.), entered April 11, 2016 in Albany County, which partially granted defendant’s motion to partially dismiss the complaint.

Plaintiff alleged that she became permanently disabled as a result of injuries that she sustained in an automobile accident in March 2012. Following an independent medical examination (hereinafter IME), defendant denied no-fault insurance benefits on the basis that plaintiff’s injuries were preexisting and were not causally related to the accident. In December 2014, plaintiff commenced this action asserting causes of action for breach of contract, violation of General Business Law §§ 349 and 350 and intentional infliction of emotional distress, based on allegations that defendant pressured the physicians that it employed to conduct IMEs to attribute injuries to preexisting conditions and thereby facilitate the denial of claims, and seeking, among other relief, damages for emotional distress and punitive damages. In October 2015, defendant moved to dismiss the second and third causes of action—for violation of General Business Law §§ 349 and 350 and intentional infliction of emotional distress, respectively—and plaintiff’s claims for consequential damages, emotional distress damages and punitive damages. Supreme Court partially granted defendant’s motion by dismissing the second and third causes of action and plaintiff’s claims for emotional distress damages and punitive damages, but held that plaintiff had adequately stated a claim for consequential damages for economic loss and pain and [*2]suffering. Plaintiff now appeals.^[FN1]

“On a motion to dismiss for failure to state a claim, the court must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory” (Shebar v Metropolitan Life Ins. Co., 25 AD3d 858, 859 [2006] [internal quotation marks, brackets and citations omitted]). “A cause of action to recover damages pursuant to General Business Law § 349 has three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act” (Benetech, Inc. v Omni Fin. Group, Inc., 116 AD3d 1190, 1190 [2014] [internal quotation marks and citations omitted], lv denied 23 NY3d 909 [2014]). In that regard, allegations that an insurer engaged in a practice of failing to investigate claims in good faith, or of denying claims without regard to their viability, are sufficient to state a cognizable claim for deceptive practices pursuant to General Business Law § 349 (see Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 564-565 [2012]; Shebar v Metropolitan Life Ins. Co., 25 AD3d at 858-859; Joannou v Blue Ridge Ins. Co., 289 AD2d 531, 532 [2001]; Acquista v New York Life Ins. Co., 285 AD2d 73, 78, 82 [2001]). Moreover, “[t]he battle over whether [a] plaintiff can meet [his or] her obligation of a threshold showing that [his or] her claim was predicated upon a deceptive act or practice that was consumer oriented is best reserved for a motion for summary judgment after discovery” (Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004] [internal quotation marks and citations omitted]).

In her complaint, plaintiff alleged that defendant engaged in a consumer-oriented pattern and practice aimed at the public at large of wrongfully denying claims for no-fault benefits by pressuring the physicians it hired to perform IMEs to provide medical reports that would support the denial of benefits and, further, that she suffered injury as a result of that practice. Such allegations are sufficient to plead a cause of action pursuant to General Business Law § 349 “ ’at this early prediscovery phase’ ” (Shebar v Metropolitan Life Ins. Co., 25 AD3d at 859 [brackets omitted], quoting Skibinsky v State Farm Fire & Cas. Co., 6 AD3d at 976).^[FN2] Thus, Supreme Court erred in granting defendant’s motion to dismiss plaintiff’s General Business Law § 349 cause of action.

[*3] In her breach of contract claim, plaintiff seeks consequential damages, including damages for emotional distress. Supreme Court dismissed plaintiff’s claim for emotional distress damages and held that plaintiff had otherwise adequately pleaded a claim for consequential damages. We agree. It has long been the rule that “absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty” (Wehringer v Standard Sec. Life Ins. Co. of N.Y., 57 NY2d 757, 759 [1982]; accord Johnson v Jamaica Hosp., 62 NY2d 523, 528-529 [1984]; see Hess v Nationwide Mut. Ins. Co., 273 AD2d 689, 690-691 [2000]; Klein v Empire Blue Cross & Blue Shield, 173 AD2d 1006, 1008 [1991], lv denied 78 NY2d 863 [1991]; Sweazey v Merchants Mut. Ins. Co., 169 AD2d 43, 45 [1991], lv dismissed 78 NY2d 1072 [1991]). As Supreme Court noted, plaintiff failed to satisfy this standard because she did not allege the existence of any relationship or duty between the parties separate from the contractual obligation.

We reject plaintiff’s argument that she may seek damages for emotional distress in light of Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y. (10 NY3d 187 [2008]) and Panasia Estates, Inc. v Hudson Ins. Co. (10 NY3d 200 [2008]), in which the Court of Appeals held, for the first time, that “consequential damages resulting from a breach of the covenant of good faith and fair dealing may be asserted in an insurance contract context, so long as the damages were ‘within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting’ ” (Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d at 203, quoting Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d at 192 [internal quotation marks and citations omitted]). Although the Court of Appeals did not specifically consider the issue of whether damages were available for emotional distress when it decided Bi-Economy and Panasia, we conclude that it did not implicitly abandon the long-standing rule that damages for emotional distress for breach of contract are available only in certain limited circumstances, such as a willful breach accompanied by egregious and abusive behavior (see Johnson v Jamaica Hosp., 62 NY2d at 528-529).

In that regard, we note that the Second Department has continued to apply the rule of Wehringer v Standard Sec. Life Ins. Co. of N.Y. (supra) following Bi-Economy and Panasia (see Curtis-Shanley v Bank of Am., 109 AD3d 634, 635 [2013], appeal dismissed and lv denied 22 NY3d 1133 [2014]; Rakylar v Washington Mut. Bank, 51 AD3d 995, 996 [2008]). The Second Department has also held, based on a rule that existed prior to Bi-Economy and Panasia, that the scope of consequential damages permitted by Bi-Economy and Panasia does not include the expenses incurred when an insured commences affirmative litigation to enforce its rights under an insurance policy (see Santoro v GEICO, 117 AD3d 1026, 1028 [2014]; Stein, LLC v Lawyers Tit. Ins. Corp., 100 AD3d 622, 622-623 [2012]).^[FN3] We agree that nothing in Bi-Economy or Panasia implicitly altered or abrogated previous rules limiting recovery of damages for breach of a contract-related duty. Rather, Bi-Economy and Panasia announced a new rule that extended the ability to recover consequential damages for breach of the covenant of good faith and fair dealing in the context of an insurance contract—a circumstance where they had not previously been available—subject to the same rules that otherwise limit recovery of damages for any breach of contract. Thus, Supreme Court properly dismissed plaintiff’s claim seeking damages for [*4]emotional distress.^[FN4]

Plaintiff’s claim for punitive damages was likewise properly dismissed. Punitive damages may be recovered for breach of contract “only where a defendant’s conduct was (1) actionable as an independent tort, (2) egregious, (3) directed toward the plaintiff and (4) part of a pattern directed at the public” (Dinstber v Allstate Ins. Co., 110 AD3d 1410, 1411 [2013]). Plaintiff’s allegations that defendant engaged in unfair claim settlement practices do not allege a tort independent of the parties’ contract sufficient to state a claim for recovery of punitive damages (see id.; Cunningham v Security Mut. Ins. Co., 260 AD2d 983, 984-985 [1999], lv dismissed 94 NY2d 796 [1999]).

McCarthy, J.P., and Rose, J., concur.

Lynch, J. (concurring in part and dissenting in part). We concur in the majority statement, except insofar as the majority has determined that damages for emotional distress are not recoverable on plaintiff’s breach of contract claim. The majority correctly states the governing rule for consequential loss as defined by the Court of Appeals in Panasia Estates, Inc. v Hudson Ins. Co. (10 NY3d 200 [2008]) and Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y. (10 NY3d 187 [2008]). Those cases involved claims for consequential damages for breach of a commercial property insurance policy and in the context of business interruption insurance coverage (Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d at 202-203; Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d at 190-191). Neither case addressed damages for emotional distress, but confirmed that consequential damages are recoverable for a breach of the covenant of good faith and fair dealing “so long as the damages were within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting” (Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d at 203 [internal quotation marks and citations omitted]). Given the nature and purpose of no-fault coverage, it is our view that the insured bargains for not only the monetary benefits, but also the intangible peace of mind that prompt payment will be made for medical expenses and lost wages emanating from injuries sustained in an automobile accident (see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d at 193-194). Certainly, such a benefit is within the contemplation of the parties as an integral component of the contract (see Connolly v Peerless Ins. Co., 873 F Supp 2d 493, 506-507 [ED NY 2012]; Chernish v Massachusetts Mut. Life Ins. Co., 2009 WL 385418, *4, 2009 US Dist LEXIS 9617, *16-19 [ND NY, Feb. 10, 2009, No. 5:08-CV-0957 (GHL)]; Acquista v New York Life Ins. Co., 285 AD2d 73, 78-82 [2001]). For this reason, it is our view that plaintiff is entitled to seek damages for emotional distress on her breach of contract claim.

Egan Jr., J., concurs. Ordered that the order is modified, on the law, without costs, by reversing so much [*5]thereof as granted defendant’s motion to dismiss the General Business Law § 349 cause of action; motion denied to said extent; and, as so modified, affirmed.

Footnotes

Footnote 1:Plaintiff abandoned any arguments with respect to the General Business Law § 350 and intentional infliction of emotional distress claims by failing to address the dismissal of those claims in her brief on appeal (see McConnell v Wright, 151 AD3d 1525, 1526 n [2017]; Miller v Genoa AG Ctr., Inc., 124 AD3d 1113, 1114 n [2015]).

Footnote 2:Where, as here, the complaint asserts the material elements of a cause of action, the complaint may be amplified by allegations made in a bill of particulars (see ADC Chattels v Atlantic Dental Co., 169 AD2d 903, 903-904 [1991]; Lewis v Village of Deposit, 40 AD2d 730, 730 [1972], affd 33 NY2d 532 [1973]; see e.g. Ural v Encompass Ins. Co. of Am., 97 AD3d at 564). In her bill of particulars, plaintiff averred that defendant pressured IME physicians to issue medical reports that would wrongfully support the denial of claims specifically in instances where an insured had a preexisting injury.

Footnote 3:We decline to follow Acquista v New York Life Ins. Co. (285 AD2d 73 [2001]), which was decided prior to Bi-Economy and Panasia, to the extent that it suggests that damages for emotional distress are recoverable for breach of the covenant of good faith and fair dealing with respect to insurance contracts.

Footnote 4:In light of our determination that damages for emotional distress are not available in this action, as a matter of law, we need not consider whether such damages may have been foreseeable.

[*1]

Gary Tsirelman, P.C., Brooklyn, NY (Stefan Belinfanti and David M. Gottlieb of counsel), for appellants.

McCormack & Mattei, P.C., Garden City, NY (John E. McCormack, Kevin A. Mattei, and Nicole Holler of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the plaintiffs are not obligated to pay any past, pending, or future claims for no-fault benefits submitted to them by the defendants, the defendants appeal from an order of the Supreme Court, Nassau County (Bruno, J.), entered January 28, 2016, which granted the plaintiffs’ motion for summary judgment on the complaint.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs’ motion for summary judgment on the complaint is denied.

The plaintiffs, which issue automobile insurance policies that include coverage under the No-Fault Automobile Insurance Law (see Insurance Law § 5101 et seq.), commenced this action against the defendants, five professional medical service corporations. The complaint sought, inter alia, a judgment declaring that the plaintiffs are not obligated to pay any past, pending, or future claims for no-fault benefits submitted to them by the defendants on the basis that the defendants were fraudulently incorporated in the names of licensed medical professionals, while in fact they were owned, operated, and controlled by Andrey Anikeyev, a nonphysician. The plaintiffs moved for summary judgment on the complaint. The Supreme Court granted the motion, and the defendants appeal.

“Insurance Law § 5102 et seq. requires no-fault carriers to reimburse patients (or, as in this case, their medical provider assignees) for ‘basic economic loss’ ” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320 [2005]). However, “[a] provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York” (11 NYCRR 65-3.16 [a] [12]). “State law mandates that professional service corporations be owned and controlled only by licensed professionals” (One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2008]; see Business Corporation Law §§ 1503 [a]; 1507, 1508). Thus, an insurance carrier may withhold payment for medical services provided by a professional corporation which has been “fraudulently incorporated” to allow nonphysicians to share in its ownership and control (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d at 319, 321; see Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 150 AD3d 192, 194 [2017]; Liberty Mut. Ins. Co. v Raia Med. Health, P.C., 140 AD3d 1029, 1030-1032 [2016]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 [*2]AD3d at 739-740).

Here, the plaintiffs failed to meet their prima facie burden of demonstrating that the defendants were fraudulently incorporated in this manner. In support of their motion, the plaintiffs submitted nothing more than Anikeyev’s plea of guilty to a federal court Information that charged him generally with mail and health care fraud, and charged that substantial funds held in the defendants’ accounts were subject to forfeiture. The Information does not describe the manner in which the fraud was committed or how the funds came to be held in the defendants’ accounts. Thus, this evidence did not demonstrate, prima facie, that Anikeyev exercised dominion and control over the defendants and their assets and shared the risks, expenses, and interest in their profits and losses, or that he had a significant role in the guidance, management, and direction of their business (see Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 150 AD3d at 201). Moreover, even assuming, as the plaintiffs do, that the presence of the forfeited funds in the defendants’ bank accounts demonstrated some level of control by Anikeyev over the bank accounts, such control could not, on its own, support a finding that he owned and controlled the defendants (id. at 202).

Since the plaintiffs failed to demonstrate their prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied their motion for summary judgment without regard to the sufficiency of the defendants’ opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

In light of our determination, we need not reach the defendants’ remaining contentions. Dillon, J.P., Sgroi, Hinds-Radix and Iannacci, JJ., concur.

[*1]

The Russell Friedman Law Group, Lake Success (Charles Horn of counsel), for appellant.

Thomas Torto, New York, respondents.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered November 25, 2015, which, inter alia, granted plaintiffs’ motion for summary judgment declaring that defendant is not entitled to no-fault insurance benefits from them with respect to the 31 claims at issue, unanimously affirmed, with costs.

The refusal by defendant’s principal, Dr. Alexandre Scheer, to answer questions at an examination under oath (EUO) about his compliance with a consent agreement and order he had entered into with the Office of Professional Medical Conduct (OPMC) constituted a failure to comply with the request for an EUO, a condition precedent to coverage under the insurance policy (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]).

Defendant argues that plaintiffs’ questions about Scheer’s compliance with the OPMC order were improper because the order is confidential. Defendant relies on Public Health Law § 230 (17), which provides that where an investigation of suspected professional misconduct by a physician reveals evidence insufficient to constitute misconduct but reasonable cause exists to believe the physician is unable to practice medicine with reasonable skill and safety, the physician may be ordered to have his or her practice monitored by another physician approved by OPMC, and any such order shall be kept confidential. However, this provision is inapplicable. Scheer entered into a consent agreement and order in which he did not contest the charge of fraudulent practice of medicine brought against him and he agreed to a penalty of a 12-month suspension of his license to practice medicine, a stay of the suspension, and, pursuant to Public Health Law § 230-a (penalties for professional misconduct), a 60-month term of probation, of which a monitor of his practice was only one condition. Moreover, the consent agreement and order states expressly that it shall be a public document.

Defendant also argues that plaintiffs had no independent right to determine whether Scheer was in compliance with the consent agreement and order and that any determination by them of noncompliance would not render him “unlicensed” to practice medicine. This argument is unavailing. The consent agreement and order provides that any medical practice in violation of the term permitting Scheer to practice only when monitored “shall constitute the unauthorized practice of medicine.” An unlicensed health care provider is ineligible to receive no-fault reimbursement (11 NYCRR 65-3.16 [a] [12]), and an insurer may make a good faith determination that a medical provider assignee seeking no-fault benefits is ineligible to receive such benefits (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]).

Defendant waived the defenses of res judicata and award and arbitration (CPLR 3211 [e]; see Mayers v D’Agostino, 58 NY2d 696 [1982]). While the arbitral awards in its favor were not [*2]issued until after it had filed its answer in this action, there is no indication on the record before us that defendant ever moved to amend its answer to assert either of those defenses. Concur—Tom, J.P., Manzanet-Daniels, Mazzarelli, Oing and Singh, JJ. [Prior Case History: 50 Misc 3d 712.]