[*1]

Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about June 24, 2021, which denied plaintiff’s motion for a default judgment on its claims seeking a declaration of noncoverage against all defaulting defendants, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.

This declaratory judgment action concerns claims for no-fault insurance benefits made in connection with an automobile crash that occurred on February 5, 2019. Contrary to the court’s ruling, plaintiff established, as to the first cause of action, that the individual claimants, who assigned their claims for no-fault insurance benefits to the defaulting medical service provider defendants, failed to appear for properly-noticed examinations under oath. A review of the court’s order indicates that it based its decision on plaintiff’s receipt of a NF-2 form (application for no-fault benefits), rather than the verification forms (e.g., NF-3 or NF-4 forms). The 15-business day timeframe is not measured based on receipt of the NF-2 application, but on the receipt of the verification forms (11 NYCRR 65-3.5 [a], [b]; see Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617 [1st Dept 2018]). Accordingly, plaintiff’s notices were timely and the failure to appear was a breach of a condition precedent to coverage and voids the policy ab initio (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454, 455-456 [1st Dept 2021]; Unitrin Advantage Ins. Co. v Dowd, 194 AD3d 507 [1st Dept 2021]).

As to the second cause of action, seeking a declaration of noncoverage because the crash was intentional or staged, plaintiff submitted sufficient evidence warranting entry of a default judgment (see CPLR 3215 [f]; Surgicore, 195 AD3d at 455). Plaintiff’s submissions were sufficient to determine that a viable declaratory judgment cause of action of noncoverage exists and, by failing to answer, the defaulting defendants are deemed to have admitted the factual allegations in the complaint (see generally Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Surgicore, 195 AD3d at 455).

Finally, as to the third cause of action, seeking a declaration of noncoverage based on the named insured’s failure to cooperate with the investigation of the claim, plaintiff also submitted sufficient evidence warranting entry of a default (CPLR 3215 [f]; see generally Pryor v New York Prop. Ins. Underwriting Assn., 18 AD3d 361, 362 [1st Dept 2005]). Concur—Manzanet-Daniels, J.P., Oing, González, Scarpulla, Rodriguez, JJ.

[*1]

Thomas Torto, New York, for appellant.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for respondents.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about February 4, 2021, which denied plaintiff’s motion for summary judgment as against defendants Healthway Medical Care P.C., Acupuncture Now P.C., SB Chiropractic, P.C., and Jules Francois Parisien MD, unanimously affirmed, without costs.

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

Country-Wide then brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Delacruz or to the other defendants (all medical-provider assignees of Delacruz). Country-Wide moved for summary judgment on the ground that Delacruz’s failure to appear for scheduled examinations under oath (EUOs) defeats coverage under the no-fault policy, and thus forecloses the medical providers’ claim to benefits.

The court properly denied plaintiff’s motion for summary judgment as premature (see CPLR 3212 [f]). Plaintiff failed to provide a specific objective justification for requesting the examination under oath (EUO). Plaintiff’s reason for the EUO is essential for defendants to oppose plaintiff’s summary judgment motion and this fact is exclusively within the knowledge and control of the movant (11 NYCRR 65-3.5 [e]; see Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671, 671 [1st Dept 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]; cf. Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Further, plaintiff concedes that it provided no response to defendants’ discovery demands for the “specific objective justification” for its request that the injured claimant submit to an EUO.

We have considered and reject all of plaintiff’s arguments that it is not required to provide claimants with the reason it requested the EUO. An insurer must affirmatively establish that it complied with the strict no-fault insurance claim procedures set forth in 11 NYCRR 65-3.5 (see generally PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). In the absence of any justification for the EUO, plaintiff has failed to establish, as a matter of law, that it complied with the governing regulations (11 NYCRR 65-3.5 [e]; AB Med. Supply at 671; Jaga Med. Servs. at 441; see also American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup Ct, NY County 2013]).

The court properly rejected plaintiff’s contention that defendants waived any claim as to the reasonableness of the EUO notices by failing to object upon receipt. [*2]In its EUO notices, plaintiff provided no justification for these defendants to object to. In any event, the regulation does not require defendants to lodge any objection to the justification within a specific timeframe. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (262 AD2d 553, 555 [2d Dept 1999]) is inapposite. Concur—Renwick, J.P., Mazzarelli, Gesmer, González, JJ. [Prior Case History: 71 Misc 3d 247.]

[*1]

Law Office of Jonathan B. Seplowe, P.C., Malverne, NY (Alan M. Elis of counsel), for appellant.

Jaffe & Velazquez, LLP, New York, NY (Thomas Torto of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated April 10, 2018, which vacated an arbitration award in favor of the petitioner, and to confirm the arbitration award, the petitioner appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered October 2, 2018. The order denied the petition.

Ordered that the order is reversed, on the law, with costs, the petition to vacate the award of the master arbitrator dated April 10, 2018, is granted, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

“[A] master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator” (Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 577 [2002]). “If the master arbitrator vacates the arbitrator’s award based upon an alleged error of ‘a rule of substantive law,’ the determination of the master arbitrator must be upheld unless it is irrational” (id. at 576 [internal quotation marks omitted]; see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d 1168 [2019]).

The Supreme Court erred in denying the petition, inter alia, to vacate the award of the master arbitrator, as there was no rational basis to support the award. The master arbitrator’s determination that a denial of liability based upon a failure to appear at an examination under oath constitutes a defense of lack of coverage, which is not subject to preclusion, is irrational (see Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 170 AD3d at 1168; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-1047 [2009]). Further, the master arbitrator’s application of 11 NYCRR 65-3.5 (p) is irrational, as it effectively allows an insurer to avoid the statutory timeliness requirements set forth in 11 NYCRR 65-3.8 (a). Where, as here, the initial request for an examination under oath is sent more than 30 days after receipt of the claim, the request is a nullity (see Excel Prods., Inc. v Farmington Cas. Co., 71 Misc 3d 137[A], 2021 NY Slip Op 50441[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]), and the insurer’s failure to timely notice the examination under oath is not excused by 11 NYCRR 65-3.5 (p) (see American Tr. Ins. Co. v Foster, 2019 NY Slip Op 30746[U], *4 [Sup Ct, NY County 2019]; cf. Z.M.S. & Y. Acupuncture, P.C. v [*2]Geico Gen. Ins. Co., 56 Misc 3d 926, 930 [Civ Ct, Kings County 2017]). Barros, J.P., Chambers, Zayas and Dowling, JJ., concur.

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Order and judgment (one paper), Supreme Court, New York County (Melissa A. Crane, J.), entered on or about March 2, 2021, declaring that defendants Metro Pain Specialists, P.C. and Right Aid Medical Supply Corp. are not entitled to no-fault benefits, unanimously reversed, on the law, with costs, and the judgment vacated.

Plaintiff insurer failed to make a prima facie showing that it complied with the time frames in scheduling defendant Louis Melendez’s independent medical examination (IME) as set forth in the no-fault implementing regulations (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Martinez, 202 AD3d 526 [1st Dept 2022]). Plaintiff did not provide evidence as to when it received the claims from Metro and Right Aid, and thus failed to establish that it scheduled the IME within the prescribed time frame (see 11 NYCRR 65-3.5 [b], [d]). Concur—Manzanet-Daniels, J.P., Kapnick, Webber, Gesmer, Oing, JJ.

[*1]

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

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

In an action to recover no-fault benefits, the defendant appeals from an order of the Supreme Court, Queens County (Chereé A. Buggs, J.), entered October 31, 2019. The order denied the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof denying those branches of the defendant’s motion which were for summary judgment dismissing so much of the first cause of action as sought reimbursement greater than $1,724.22 and so much of the third cause of action as sought reimbursement greater than $12,924.78, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, with costs payable to the defendant.

The plaintiff, a medical provider, commenced this action to recover assigned first-party no-fault benefits for medical services rendered. The defendant moved for summary judgment dismissing the complaint, arguing that the services lacked medical necessity and the amount sought exceeded the amount permitted by the applicable fee schedule. The Supreme Court denied the motion, and the defendant appeals.

The defendant failed to establish, prima facie, that the services provided were not medically necessary (see Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768 [2016]). The peer review reports submitted by the defendant did not establish a factual basis and medical rationale for the determination that there was a lack of medical necessity for the services, as each doctor merely set forth a conclusory opinion that the alleged motor vehicle injuries were degenerative and chronic, and conservative treatment would suffice (see Eagle Surgical Supply, Inc. v Mercury Cas. Co., 36 Misc 3d 131[A], 2012 NY Slip Op 51286[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the defendant’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]; Allstate Ins. Co. v Buffalo Neurosurgery Group, 172 AD3d 967 [2019]).

The defendant nevertheless established, prima facie, that the bills for the services provided were in excess of the proper fee schedule (see Insurance Law § 5108 [a], [c]; 11 NYCRR 68.6 [a] [1]). The defendant’s expert stated in an affidavit that if the services were determined to be [*2]medically necessary, the plaintiff would be entitled to a reimbursement of only $1,724.22 of the $2,586.34 claimed in the first cause of action, and only $12,924.78 of the $25,849.56 claimed in the third cause of action. As the plaintiff failed to raise a triable issue of fact in opposition to this showing, the Supreme Court should have granted those branches of the defendant’s motion which were for summary judgment dismissing so much of the first cause of action as sought reimbursement greater than $1,724.22 and so much of the third cause of action as sought reimbursement greater than $12,924.78 (see Allstate Ins. Co. v Buffalo Neurosurgery Group, 172 AD3d 967 [2019]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2007]). Brathwaite Nelson, J.P., Chambers, Roman and Zayas, JJ., concur.

[*1]

Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about September 30, 2020, which, to the extent appealed from as limited by the brief, denied plaintiff insurer’s motion for a declaratory judgment on default, upon the first and second causes of action, against defendants Atlas PT PC, Bliss Acupuncture PC, Confident Medical Services, Harbor Medical Group, PC, M&D Elite Pharmacy LLC, MG Chiropractic PC, Red Oak Medical PC, RL Chiropractic Diagnostic PC, Seasoned Acupuncture PC (collectively, the Defaulting Medical Providers), Charles Guillaume, Jean Gedin, Orelien Huggins, John Doe, and Shenigthder Loiseau, unanimously modified, on the law, to grant the motion as to the Defaulting Medical Providers and defendant Huggins, and it is declared that plaintiff has no duty to pay these defendants’ claims arising out of an alleged October 17, 2018 automobile accident, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered April 2, 2021, which denied plaintiff’s motion to reargue, unanimously dismissed, without costs, as abandoned and as taken from a nonappealable order.

Plaintiff submitted proof of proper service pursuant to CPLR 308 (3) on the Defaulting Medical Providers and proof of proper service pursuant to CPLR 308 (1) on Huggins. Plaintiff failed to provide proof of proper service on defendants Guillaume, Gedin, and Loiseau. It provided affidavits of service on the latter three defendants pursuant to CPLR 308 (4), but, while the affidavits listed the dates and addresses of attempted service, they failed to specify the times of attempted service, as required by CPLR 306 (c).

In any event, plaintiff demonstrated that Guillaume, Gedin, and Huggins (collectively, the claimants) each breached a condition precedent to coverage by failing to appear for properly noticed Examinations Under Oath (EUOs) on two separate occasions (see Hertz Vehicles, LLC v Alluri, 171 AD3d 432, 432 [1st Dept 2019]). Documentary evidence shows that plaintiff sent the EUO scheduling letters to the claimants within 15 business days of receiving the prescribed verification forms (in this case, NF-3 forms), as required (see 11 NYCRR 65-3.5 [b]; Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617 [1st Dept 2018]). Contrary to the motion court’s calculation of the 15-day period as starting from plaintiff’s receipt of the claimants’ NYS Form NF-2s, the NYS Form NF-2 is not a “prescribed verification form[ ],” but an application for no-fault benefits (11 NYCRR 65-3.5 [b]). Plaintiff also submitted an affirmation by attorney Harlan R. Schreiber that demonstrated timely mailing of the EUO scheduling letters by describing the standard practices and procedures used by his office to ensure that such letters are properly addressed and mailed, as well as stating that he personally supervised the mailing of these particular letters (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411, 411 [1st Dept 2015]). Plaintiff further established [*2]that each claimant failed to appear for the duly scheduled EUOs by submitting the transcripts of the EUOs.

Plaintiff demonstrated that it has no duty to pay defendants’ claims in connection with the alleged accident, including the obligation to defend and indemnify Loiseau or John Doe, because it had a “founded belief” that the alleged injuries did not arise out of the subject insured accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Plaintiff did not have the benefit of discovery with respect to the claimants, but its complaint and supporting affidavits allege facts sufficient to state a viable cause of action, and, “[i]ndeed, defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71 [2003]). Plaintiff’s Claim Specialist, Danette Rodriguez submitted an affidavit stating that the policy was procured online to an Albany address 22 days before the collision, that the collision occurred late at night in Queens County, far from Albany, and that the adverse driver, Alister Brown, told the police he did not believe that the claimants were in the insured vehicle at the time of the collision. She stated further that the claimants began undergoing elaborate and mirror treatments the next day, although the police accident report showed no reported injuries at the scene and no damage to either car. Moreover, during an interview with plaintiff, the alleged driver of the insured vehicle, Oneil Pierrisaint, denied ever driving the vehicle, knowing any of the claimants, or knowing Loiseau’s name, which led plaintiff to conclude that Pierrisaint’s identity had been stolen by John Doe, the unknown driver. Finally, Evans Julce, a witness to the collision, stated in an affidavit that the insured vehicle seemed to have collided with Brown’s car intentionally. Concur—Kapnick, J.P., Mazzarelli, Friedman, Gesmer, Oing, JJ.

[*1] (March 17, 2022)

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for Metro Pain Specialists PC and Pro Edge Chiropractic PC, appellants.

Order, Supreme Court, New York County (Louis L. Nock, J.), entered on or about February 24, 2021, which granted plaintiff American Transit Insurance Company’s motion for summary judgment declaring that the insurance policy it had issued was void ab initio and that the medical provider defendants were not entitled to no-fault insurance benefits arising out of a motor vehicle accident involving defendant Ada Alcantara, unanimously reversed, on the law, without costs, the motion denied, and the matter remanded for further proceedings consistent with this decision.

Plaintiff insurer failed to establish prima facie that it was entitled to summary judgment based on the insured’s failure to appear for an independent medical examination (IME), as its motion papers did not demonstrate that it sustained its burden of showing that it complied with New York State no-fault regulations (11 NYCRR 65-3.5 [b], [d]) governing the timeframes for scheduling IMEs (see Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 618 [1st Dept 2018]; Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]). Specifically, plaintiff did not establish that it timely requested the IMEs under the applicable no-fault regulations, since plaintiff’s motion papers did not establish the dates of the verification forms that it received from the medical provider defendants; therefore, it is not possible to determine whether plaintiff sent the appropriate notices within 15 business days or 30 calendar days of receiving the forms, as required under 11 NYCRR 65-3.5 (b) and (d) (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Vance, 131 AD3d 849, 850 [1st Dept 2015]). Concur—Kapnick, J.P., Mazzarelli, Friedman, Gesmer, Oing, JJ.

[*1]

The Rybak Firm, PLLC, Brooklyn (Masksim Leyvi of counsel), for appellants.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 11, 2020, which granted plaintiff’s motion for summary judgment declaring that it need not honor or pay claims from defendants Northside Acupuncture, P.C., Seo Han Medical, P.C., and Straight Up Chiropractic, P.C. in connection with a November 23, 2017 accident, reversed, on the law, without costs, and the motion denied.

The failure to appear for a properly scheduled medical examination (ME) 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 vitiates coverage ab initio (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011] [internal quotation marks, brackets, and citation omitted], lv denied 17 NY3d 705 [2011]). However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient’s failure to appear for an ME, the insurer must establish that it requested MEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear (American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841-842 [1st Dept 2015]). As defendants argued in opposition to the summary judgment motion, because it is impossible to discern from the record whether plaintiff complied with the requisite time frames requiring it to request MEs within 15 days of receiving defendants’ claims and scheduling the MEs within 30 days of receiving their claims (11 NYCRR 65-3.5 [b], [d]), plaintiff failed to establish its prima facie entitlement to summary judgment (Longevity Med. Supply, 131 AD3d at 841-842; see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]). Concur—Gische, Mazzarelli, Friedman, Mendez, JJ.

Manzanet-Daniels, J.P., concurs in a memorandum as follows: Insofar as the majority opinion is premised on our precedent in Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]), I am constrained to concur; however, I favor the reasoning of our sister departments that the failure to appear for a medical examination (ME) constitutes a breach of policy term and not a failure of condition precedent that would entitle the insurer to void the policy ab initio. The defense of failure to appear for an ME is more akin to a policy exclusion than a lack of coverage in the first instance such as where the policy had terminated prior to the accident or the injuries were not caused by the covered accident (see e.g. Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [4th Dept 2018]).

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 11, 2020, in index No. 656140/18, which granted plaintiff’s motion for summary judgment declaring that it need not honor or pay any claims from defendants Burke Physical Therapy, P.C., Columbus Imaging Center, LLC, Metro Pain Specialists, P.C., and Right Aid Medical Supply Corp. in connection with a May 22, 2018 accident, unanimously reversed, on the law, without costs, and the motion denied.

Order, same court and Justice, entered on or about October 6, 2020, in index No. 656207/18, which granted plaintiff’s motion for summary judgment declaring that it need not honor or pay any claims from defendants Longevity Medical Supply, Inc., Sanford Chiropractic, P.C., and Verebrae Chiropractic Care, P.C. in connection with an accident that occurred on June 11, 2018, unanimously reversed, on the law, without costs, and the motion denied.

The failure to appear for a properly scheduled independent medical examination (IME) 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 vitiates coverage ab initio (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [internal quotations marks, brackets, and citation omitted]). However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient’s failure to appear for an IME, the insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear (American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841-842 [1st Dept 2015]). Because it is impossible to discern from the record in each case here whether plaintiff complied with the requisite time frames requiring it to request IMEs within 15 days of receiving appellants’ claims and scheduling the IMEs for within 30 days of receiving their claims (11 NYCRR 65-3.5 [b], [d]), plaintiff failed to establish its prima facie entitlement to summary judgment (Longevity Med. Supply, 131 AD3d at 841-842; see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]). Concur—Kern, J.P., Oing, Singh, Moulton, González, JJ.

[*1] (October 26, 2021)

Scahill Law Group P.C., Bethpage (Albert J. Galatan of counsel), for appellants.

The Stuttman Law Group, P.C., Purchase (Dennis D. Murphy of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about May 21, 2020, which, to the extent appealed from as limited by the briefs, denied defendants’ motion to dismiss this action, based on the execution of a release by the nonparty injured person covered by plaintiff’s no-fault additional personal injury protection (PIP) benefits, unanimously affirmed, with costs.

The notice dated September 7, 2017, advising defendants’ insurer of the payment of PIP benefits covering the medical bills of nonparty Damaris Ortiz and demanding reimbursement, establishes that plaintiff insurer’s “right to subrogation ‘accrue[d] upon payment of the loss’ ” on September 5, 2017 (Fasso v Doerr, 12 NY3d 80, 88 [2009], quoting Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366, 372 [1990]). Plaintiff’s subrogation examiner, who averred having personal knowledge of the facts, including the date of mailing of the PIP notices identifying her as plaintiff’s contact person, properly authenticated this and other notices as business records (see CPLR 4518 [a]). Before Supreme Court, defendants did not contest the affiant’s assertion that the September 7, 2017 notice was mailed the same day, three days before Ortiz signed the general release in question (see CPLR 2103 [b] [2] [service completed when mailed]). We disregard defendants’ references to purported evidence to the contrary, which was not submitted to Supreme Court on this motion and is not included in the record on appeal (see Bregman v 111 Tenants Corp., 97 AD3d 75, 85 [1st Dept 2012]).

Contrary to defendants’ contention, the notices were not required to be sent directly to them, instead of their insurer, which was their “agent acting within the scope of [its] agency” (Center v Hampton Affiliates, 66 NY2d 782, 784 [1985]), and from which plaintiff had already recovered payments it made for another injured individual’s medical bills due to defendants’ liability arising from the same automobile accident (see Insurance Law § 5105 [a]). The insurer’s “knowledge” of plaintiff’s subrogation right “is imputed to [its] principal[s],” who are “bound by such knowledge although the information is never actually communicated to [them]” (Center, 66 NY2d at 784 [citations omitted]). Notably, prior to plaintiff’s first payment of benefits covering Ortiz, the bill of particulars served by Ortiz upon defendants in her personal injury action advised of the expected PIP coverage by plaintiff. As such, defendants “kn[e]w[ ] or should have known that a right to subrogation exist[ed]” at the time Ortiz signed the general release (Fasso, 12 NY3d at 88; see Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37, 46 [1925] [tortfeasor “knew or possessed information which reasonably pursued would have given it knowledge of (the) plaintiff’s status as an insurer of (the injured party) against claims springing from (the) defendant’s fault and that it had become subrogated to various claims of such a character against [*2]the (defendant)]”).

We reject defendants’ contention that five days must be added to the date of service, since, here, there is no “period of time prescribed by law [that] is measured from the service of a paper” (CPLR 2103 [b] [2]; see also Allied Wholesale v Asia N. Am. Eastbound Rate Agreement, 212 AD2d 472, 473 [1st Dept 1995], citing Matter of Knickerbocker Ins. Co. [Gilbert], 28 NY2d 57, 65-66 [1971] [service of demand for arbitration is complete upon mailing and timeliness is measured by date of mailing]). Defendants’ reliance on similar provisions measuring periods of time to request hearings after receiving mailed unemployment decisions, under the Labor Law, and to cure lease violations after receiving a landlord’s mailed notice to cure, under the Loft Law, is likewise unavailing (see 12 NYCRR 461.2; Matter of Tartaglia [Aegis Capital Corp.—Commissioner of Labor], 128 AD3d 1304, 1305 [3d Dept 2015], citing Labor Law § 620 [2]; see also D&R Realty Corp. v Blakely, 9 Misc 3d 203, 205-209 [Civil Ct, NY County 2005]). Concur—Gische, J.P., Webber, Mazzarelli, Shulman, Pitt, JJ.