Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Office of Gabriel & Moroff, LLC (Matthew Sledzinski and Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated July 12, 2021. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without 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 failed to appear for duly scheduled examinations under oath (EUOs). In an order dated July 12, 2021, the District Court denied the motion, but implicitly found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The District Court further found that the only remaining issue for trial was the reasonableness of defendant’s EUO requests.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the provider, that the provider twice failed to [*2]appear, and that the insurer issued timely denials of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014])—all elements that the District Court found to have been established (see CPLR 3212 [g]).

Plaintiff does not argue that defendant did not demonstrate its prima facie entitlement to summary judgment. Rather, plaintiff argues that defendant did not have an objective basis for requesting the EUOs. However, contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2d Dept 2014]; NY Wellness Med., P.C. v Nationwide Mut. Ins. Co., 75 Misc 3d 126[A], 2022 NY Slip Op 50359[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; cf. Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671 [1st Dept 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept 2015]). As plaintiff failed to raise a triable issue of fact, defendant’s motion should have been granted.

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

DRISCOLL, J.P., GARGUILO and EMERSON, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered July 29, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.

Plaintiff correctly argues that defendant’s motion failed to establish that defendant had timely denied plaintiff’s claims after plaintiff’s assignor had allegedly failed to appear at both an initial and a follow-up EUO (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., — Misc 3d —, 2022 NY Slip Op 22383 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., — Misc 3d —, 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is [*2]not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint should have been denied.

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

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

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

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Tsai, J.), dated July 12, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and granting plaintiff’s cross motion for summary judgment.

Defendant’s motion failed to establish that it had timely denied plaintiff’s claims after plaintiff’s second failure to appear for an EUO (see Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am., — Misc 3d —, 2022 NY Slip Op 22383 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; FJL Med. Servs., P.C. v Nationwide Ins., — Misc 3d —, 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. [*2]v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

As to plaintiff’s cross motion, defendant does not challenge plaintiff’s prima facie case and so we do not pass upon the propriety of the Civil Court’s determination with respect thereto. Moreover, defendant’s papers were insufficient to demonstrate that there is a triable issue of fact as to its EUO no-show defense so as to warrant denial of plaintiff’s cross motion.

Accordingly, the order is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Jannine A. Gordineer of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), dated October 15, 2020. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking summary judgment dismissing the complaint on the alternate ground that the amounts sought to be recovered exceeded the amounts permitted by the workers’ compensation fee schedule.

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 fraudulently procured the insurance policy in question by making material misrepresentations as to the vehicle in question and on the alternate ground that the amounts sought to be recovered exceeded the amounts permitted by the workers’ compensation fee schedule, a defense that is not subject to preclusion as to the claims at issue (see 11 NYCRR 65-3.8 [g]). Plaintiff cross-moved [*2]for summary judgment. The Civil Court granted the branch of defendant’s motion based on fraudulent procurement and denied plaintiff’s cross motion. The court did not pass on the branch of defendant’s motion that was based upon the alternate fee schedule ground.

The defense that an insured made a material misrepresentation when obtaining the insurance policy is subject to preclusion (see Empire State Med. Supplies, Inc. v Sentry Ins., 55 Misc 3d 130[A], 2017 NY Slip Op 50403[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 42 Misc 3d 147[A], 2014 NY Slip Op 50359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Thus, as plaintiff argues, defendant is not entitled to summary judgment on this ground as to the first cause of action, as defendant failed to offer proof that it ever denied the claim underlying that cause of action (see Empire State Med. Supplies, Inc. v Sentry Ins., 2017 NY Slip Op 50403[U]; Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 2014 NY Slip Op 50359[U]), and so did not demonstrate that it is not precluded from raising this defense as to that claim.

Defendant did establish that it is not precluded from raising its material misrepresentation defense as to the claim underlying the second cause of action, as it demonstrated that it timely denied that claim on that ground (see Empire State Med. Supplies, Inc. v Sentry Ins., 2017 NY Slip Op 50403[U]; Great Health Care Chiropractic, P.C. v Hanover Ins. Co., 2014 NY Slip Op 50359[U]). However, a misrepresentation is only material “if the insurer would not have issued the policy had it known the facts misrepresented” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011]). Here, the alleged material misrepresentation was the failure to reveal that the vehicle being insured was a “for hire” livery vehicle, which defendant’s underwriting supervisor stated is an excluded operation, claiming that defendant does not issue livery policies in New York State. However, as plaintiff contends, defendant failed to “present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” (id. at 994 [internal quotation marks omitted]). “Conclusory statements by insurance company employees, unsupported by documentary evidence, are insufficient to establish materiality as a matter of law” (Schirmer v Penkert, 41 AD3d 688, 690-691 [2007]). Consequently, defendant did not demonstrate as a matter of law that the misrepresentation was material (see Interboro Ins. Co. v Fatmir, 89 AD3d 993; Schirmer v Penkert, 41 AD3d 688; cf. Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855 [2009]).

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

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking summary judgment dismissing the complaint on the [*3]alternate ground that the amounts sought to be recovered exceeded the amounts permitted by the workers’ compensation fee schedule.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

Thomas Torto, for appellant. Glinkenhouse Queen (Alan Queen of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Laurentina McKetney Butler, J.), dated November 15, 2021. The order denied defendant’s motion to, in effect, recalculate a judgment of that court entered May 20, 2021 so as to exclude all statutory no-fault interest therein, and granted plaintiff’s cross motion to recalculate the May 20, 2021 judgment to include interest for the period from June 28, 2019 to May 20, 2021.

ORDERED that the order is modified by providing that defendant’s motion is granted to the extent of tolling statutory no-fault interest from March 14, 2002 to June 27, 2019; as so modified, the order is affirmed, without costs.

In 2000, plaintiff commenced this action to recover assigned first-party no-fault benefits for medical equipment provided to its assignor in connection with injuries allegedly sustained in a motor vehicle accident in July 1999. Defendant appeared and answered. Plaintiff moved for summary judgment and defendant failed to submit opposition. By order dated March 14, 2002, the Civil Court (James J. Golia, J.) granted plaintiff’s motion on default and awarded plaintiff judgment in the sum of $1,057 with interest from January 24, 2000. Approximately 17 years later, on June 27, 2019, plaintiff applied for the entry of judgment upon the Civil Court’s March 14, 2002 order. On May 20, 2021, judgment was entered in the sum of $107,441.02, including [*2]$105,862.22 in statutory no-fault interest from January 24, 2000 to June 27, 2019. Defendant moved for an order “vacating, re-settling and recalculating” the judgment to exclude all statutory no-fault interest based upon plaintiff’s delay in entering judgment. Plaintiff cross-moved pursuant to CPLR 5019 (a) to recalculate the judgment to include interest for the period from June 28, 2019, the day after plaintiff applied for entry of judgment, to May 20, 2021, the date the clerk entered judgment. By order entered November 15, 2021, the Civil Court (Laurentina McKetney Butler, J.) denied defendant’s motion and granted plaintiff’s cross motion.

Statutory no-fault interest (see Insurance Law § 5106 [a]), which is 2 percent per month, is meant to be a penalty for an insurer’s failure to pay a valid claim, and it applies to both pre- and post-judgment interest (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 156 [2021]). However, the no-fault regulations provide that, “[i]f an applicant has submitted a dispute to arbitration or the courts, interest shall accumulate, unless the applicant unreasonably delays the arbitration or court proceeding” (former 11 NYCRR 65.15 [h] [now 11 NYCRR 65-3.9 (d)]). This court has rejected the argument that tolling should not apply simply “because [the] defendant could have attempted to move the case forward” (Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and held instead that a no-fault plaintiff “should not be rewarded for . . . years of inaction by receiving a windfall of interest” (id.). Similarly, here, plaintiff should not be rewarded with a huge sum of interest for inordinate delay in entering a judgment.

Contrary to plaintiff’s argument, this case is not analogous to the cases holding that interest should not be tolled between a settlement and the entry of a judgment upon that settlement agreement (see e.g. Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). A settlement is the resolution of a case to which both parties have agreed; accordingly, CPLR 5003-a requires a settling defendant to pay that mutually agreed-upon amount within three weeks (see CPLR 5003-a [a] [“any settling defendant . . . shall pay all sums due to any settling plaintiff within twenty-one days of tender” of the required paperwork] [emphasis added]; Herman v Country-Wide Ins. Co., 76 Misc 3d 132[A], 2022 NY Slip Op 50916[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). There is no such statutory mandate as to orders awarding summary judgment.

Therefore, the Civil Court should have granted defendant’s motion to the extent of tolling the accrual of statutory no-fault interest from March 14, 2002, the date of the order granting plaintiff summary judgment, to June 27, 2019, the date plaintiff applied to enter judgment based upon that order (see Herman, 2022 NY Slip Op 50916[U]). The Civil Court correctly declined to toll the accrual of interest from January 24, 2000 to March 13, 2002, which interest was awarded by the March 14, 2002 order, as there has been no finding that plaintiff unreasonably delayed this case during that period. For the same reason, the Civil Court correctly granted plaintiff’s cross motion to recalculate the judgment to include interest from June 28, 2019 to May 20, 2021, the time between plaintiff’s application for judgment and the clerk’s entry of judgment.

Accordingly, the order is modified by providing that defendant’s motion is granted to the extent of tolling statutory no-fault interest from March 14, 2002 to June 27, 2019.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

Decided on December 9, 2022

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

Decided on December 9, 2022

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered August 3, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment. Plaintiff argues on appeal that defendant failed to establish that it timely denied the claim at issue.

After receipt of the claim, defendant scheduled EUOs to be held on January 8, 2018, March 20, 2018, May 23, 2018 and July 12, 2018; plaintiff did not appear on any of those dates. Shortly before each scheduled date, plaintiff sent defendant a letter, essentially stating that plaintiff would not be able to attend until an unspecified time months later and, among other [*2]things, improperly demanding $3,500 as up-front reimbursement for its travel expenses and time (see MSB Physical Therapy, P.C. v Nationwide Ins., 76 Misc 3d 131[A], 2022 NY Slip Op 50902[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Parisien v Travelers Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50622[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Defendant sent letters back to plaintiff stating, among other things, that defendant would or had placed a statement on the record documenting plaintiff’s “default” in appearing on each scheduled date.

In a letter to defendant’s attorney dated June 28, 2018, plaintiff’s attorney claimed that there were “no EUO ‘no-show’ dates” because it had “duly request[ed]” adjournments. On July 17, 2018, defendant’s attorney sent a letter in response that stated that plaintiff had “failed to appear for EUOs on January 8, 2018, March 20, 2018, May 23, 2018 and July 12, 2018.” On July 19, 2018, defendant denied the claim on the ground, among others, that plaintiff had failed “to submit to the [EUO] scheduled for 01/08/2018, 03/20/2018, 05/23/2018 and 07/12/2018.”

Although defendant’s July 19, 2018 denial was issued well after 30 days had passed from plaintiff’s second nonappearance on March 20, 2018 (see Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), defendant’s position is that its denial was nonetheless timely. Defendant notes in its brief that, under the no-fault regulations, insurers are not to treat their insureds in an adversarial fashion (see 11 NYCRR 65-3.2 [b]), and argues that it was abiding by that principle in accommodating plaintiff by offering “additional opportunities to appear in accordance with plaintiff’s own requests” (emphasis in original). Thus, defendant contends, the facts herein are distinguishable from Quality Health Supply Corp. (2020 NY Slip Op 51226[U]) and defendant should not be “penalized” for attempting to work with plaintiff. Moreover, defendant argues, the regulations do not restrict the number of EUOs an insurer may seek.

While we agree that there is nothing in the no-fault regulations preventing an insurer from offering a claimant more than two opportunities to appear for an EUO, that issue is distinct from whether an insurer has properly continued a toll of its time to pay or deny a particular claim (see 11 NYCRR 65-3.6 [b]). Although plaintiff had informed defendant before each scheduled EUO date that it would not appear, defendant does not claim that it had agreed to reschedule any of the EUOs, which rescheduling would not constitute a failure to appear (see Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Instead, defendant placed a statement on the record for each date documenting the nonappearance, told plaintiff by letter that it had “failed to appear for EUOs on January 8, 2018, March 20, 2018, May 23, 2018 and July 12, 2018,” and based its denial on plaintiff’s failure “to submit to the [EUO] scheduled for 01/08/2018, 03/20/2018, 05/23/2018 and 07/12/2018.” Indeed, in its brief, defendant states that it is not arguing “that one or more of the EUO no-shows should ‘not count.’ ” While defendant characterizes this as seeking to accommodate plaintiff, an insurer cannot indefinitely extend its toll of the time to pay or deny a claim after a second nonappearance at a scheduled EUO by scheduling successive additional EUOs until the insurer unilaterally decides that it has offered enough opportunities to appear and [*3]end its toll.

Thus, plaintiff correctly argues that defendant’s motion should have been denied, as defendant failed to establish that it timely denied the claim at issue (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp., 2020 NY Slip Op 51226[U]) and, therefore, defendant has not established that it is not precluded from raising plaintiff’s nonappearance at duly scheduled EUOs as a defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

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

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

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 9, 2022

Law Office of Marina Josovich, P.C. (Marina Josovich of counsel), for appellant. Law Office of Tina Newsome-Lee (Janice A. Robinson and Albert Galatan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), dated August 25, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification, and plaintiff cross-moved for summary judgment. By order dated August 25, 2020, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

Plaintiff correctly argues that defendant’s motion for summary judgment should have been denied, as defendant failed to establish, prima facie, that it properly requested any additional verification from plaintiff. The only request in the purported verification request letters, which defendant sent to plaintiff, is for an explanation as to how the medical supplies furnished by plaintiff affected the treatment plan. That information was specifically being sought from the [*2]prescribing doctor, not from plaintiff, as follows:

“By copy of this letter, we request the following information from the prescribing doctor, Albert Cianmino MD of AC Medical PC:

– Please advise as to how the use of the medical supplies prescribed for the patient above effected [sic] their treatment plan.”

Therefore, as plaintiff argues, these were delay letters, not verification requests (see 11 NYCRR 65-3.6 [b]; see JOA Chiropractic, P.C. v Hereford Ins. Co., 75 Misc 3d 140[A], 2022 NY Slip Op 50598[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Clear Water Psychological Servs., P.C. v Hereford Ins. Co., 68 Misc 3d 127[A], 2020 NY Slip Op 50847[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). While defendant correctly argues in its brief that it was entitled to seek verification directly from the prescribing doctor (see Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]), defendant’s claim that it actually “sought information from Dr. Albert Cianmino” is not supported by the record. Indeed, despite the statement in the first letter that defendant was, by copy of the letter, requesting information directly from the prescribing doctor, the doctor was not carbon copied on the letter and defendant did not allege, much less prove, that the letter was, in fact, mailed to the prescribing doctor.^[FN1] This is not a situation where plaintiff was even obligated to respond to the letter, if only to state that it does not possess the requested information or documents or to seek clarification (cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). On its face, the letter does not require a response from plaintiff.

Consequently, defendant did not demonstrate that this action is premature based on outstanding verification requests, and so its motion for summary judgment dismissing the complaint on that ground should have been denied.

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

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

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

ENTER:

Paul Kenny

Chief Clerk

Decision Date: December 9, 2022

Footnotes

Footnote 1: Defendant relies on a “cover letter to the verification request” which defendant claims in its brief “lists the address of Dr. Cianmino as the primary recipient of the letter.” While such a letter would not constitute proof that the letter was mailed to Dr. Cianmino, it is noted, in any event, that there is no such cover letter in the record on appeal.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 9, 2022

APPEARANCES OF COUNSEL

Hollander Legal Group, P.C. (Allan S. Hollander and Jennifer B. Ettenger of counsel) for appellant.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel) for respondent.

Ordered that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to defendant’s contention on appeal, defendant’s motion failed to establish that defendant had timely denied plaintiff’s claims after plaintiff’s assignor failed to appear at both an initial and a follow-up EUO (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Upon receipt of the claim forms at issue on March 18, [*2]2018, the first EUO was scheduled, by letter sent to assignor’s counsel on March 26, 2018, for April 9, 2018. Neither the assignor nor her counsel appeared on April 9, 2018. On April 12, 2018, defendant sent a letter scheduling the “final date” for the EUO for May 8, 2018. Neither the assignor nor her counsel appeared on May 8, 2018. On May 10, 2018, defendant sent a letter scheduling an EUO for June 6, 2018. The assignor did not appear, but apparently on that day, defendant received a call from the assignor’s counsel, asking for the EUO to be scheduled for June 13, 2018. On June 7, 2018, defendant sent a letter scheduling an EUO for June 13, 2018. On June{**77 Misc 3d at 17} 13, 2018, the assignor again did not appear. For each of these four scheduled dates, defendant’s counsel put a statement on the record documenting the nonappearance. On June 23, 2018, defendant issued a denial of the relevant claims, which denial states, “The claimant failed to attend an [EUO] scheduled on 4/9/18, 5/8/18, 6/6/18 and 6/13/18, which is a breach of the above policy condition . . . .” Defendant argues on appeal that this denial was timely because it was issued within 30 days of the June 13, 2018 failure to appear.

A no-fault claim must be paid or denied “within 30 calendar days after the insurer receives proof of claim” (11 NYCRR 65-3.8 [a] [1]; see e.g. New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]), which period may be tolled by timely and proper requests for verification, including an EUO request. Here, defendant properly commenced a toll of its time to pay or deny these claims by sending an EUO scheduling letter within 15 business days of its receipt of the claim forms (see 11 NYCRR 65-3.5 [b]).^[FN*] Defendant also properly continued the toll by sending a follow-up letter within 10 days of the April 9, 2018 failure to appear, giving the assignor a second opportunity to provide the requested EUO on May 8, 2018 (see 11 NYCRR 65-3.6 [b]). The assignor did not appear on May 8, 2018. As we have held before,

“[w]here, as here, no other verification request is outstanding, the 30-day period for an insurer to pay or deny a claim (see 11 NYCRR 65-3.8 [a] [1]) based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance, when an insurer is permitted to conclude that there was a failure to comply with a condition precedent to coverage” (Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020] [citation omitted][*3][Quality]).

In view of the foregoing, once the assignor failed to appear on{**77 Misc 3d at 18} May 8, 2018, defendant’s 30-day time period to pay or deny the claims at issue began to run, making defendant’s deadline to pay or deny those claims June 7, 2018.

In spite of the rule set forth in Quality, defendant argues that its June 23, 2018 denial was timely. Defendant notes that, under the no-fault regulations, insurers are not to treat their insureds in an adversarial fashion (see 11 NYCRR 65-3.2 [b]). Defendant asserts that it was acting in good faith in scheduling a third EUO due to confusion as to the date of the first EUO and that the fourth EUO was scheduled at the request of the assignor’s counsel. Thus, defendant contends, the facts herein are distinguishable from Quality. In any event, defendant argues, it should not be limited to offering a claimant only two opportunities to appear for an EUO.

While we agree that there is nothing in the no-fault regulations preventing an insurer from offering a claimant more than two opportunities to appear for an EUO, that issue is distinct from whether an insurer has properly continued a toll of its time to pay or deny a particular claim (see 11 NYCRR 65-3.6 [b]). For example, had the assignor appeared on June 6, 2018, the third scheduled date, or June 13, 2018, the fourth scheduled date, defendant could have properly conducted the EUO. However, the toll of defendant’s time to pay or deny the claims at issue ended on May 8, 2018, when the assignor failed to appear for the second scheduled EUO, and any denial based upon a precludable defense—like the defense that the assignor failed to appear for duly scheduled EUOs—would have had to have been issued by June 7, 2018, in order to be timely.

Neither the May 10, 2018 letter scheduling the EUO for June 6, 2018, nor the June 7, 2018 letter scheduling the EUO for June 13, 2018, continued the toll because the no-fault regulations only contemplate one follow-up request for verification (see 11 NYCRR 65-3.6 [b]) and that follow-up request was made on April 12, 2018, in a letter that scheduled a “final date” for the EUO for May 8, 2018. Once the assignor’s second and “final” opportunity to appear for an EUO was scheduled for May 8, 2018, to further toll defendant’s time to pay or deny the claims past June 7, 2018, the parties could have rescheduled that examination for a later date (see Progressive Health Chiropractic, P.C. v American Tr. Ins. Co., 55 Misc 3d 142[A], 2017 NY Slip Op 50603[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] [App{**77 Misc 3d at 19} Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see also Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 [2020]). However, rather than claiming that there was a rescheduling of a scheduled EUO that would have continued the toll past June 7, 2018, defendant clearly treated each of the four scheduled EUOs as a nonappearance, choosing to deny the claim after the fourth one. The no-fault regulations do not permit an insurer to indefinitely extend the toll to pay or deny a claim beyond a second nonappearance by scheduling successive additional EUOs and then arbitrarily choosing when to end its toll.

As defendant has not demonstrated that its June 23, 2018 denial was timely, it has not established that it is not precluded from raising the assignor’s nonappearance at duly scheduled EUOs as a defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). [*4]Thus, its motion for summary judgment dismissing the complaint was properly denied.

Accordingly, the order, insofar as appealed from, is affirmed.

Aliotta, P.J., Weston and Buggs, JJ., concur.

Footnotes

Footnote *:Indeed, here defendant had initially sent a letter on March 12, 2018, prior to receiving the claims at issue, which letter scheduled an EUO for April 8, 2018. Upon realizing that April 8, 2018, was a Sunday, defendant sent the March 26, 2018 letter changing the date of the EUO to April 9, 2018. It is noted that the March 12, 2018 pre-claim EUO scheduling letter was also sufficient to commence a toll for the bills subsequently received on March 18, 2018 (see ARCO Med. N.Y., P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).