CV-705866-17
John A. Howard-Algarin, J.

A bench trial was held before this Court on March 23, 2021, in this action to recover first party no-fault benefits related to claims made by Assignee, New York Center for Specialty Surgery (hereafter “Specialty Surgery” or “Provider”), for manipulation under anesthesia (“MUA”) procedures performed on Assignor, Jennifer Barrera (“Barrera”). Specifically, Specialty Surgery seeks payment in the amount of: $5,113.01 for an MUA performed on February 12, 2017 (as to Index No. 705866-17); $3,821.76 for an MUA performed on February 25, 2017 (as to Index No. 705867-17); and, $5,113.01 for an MUA on March 4, 2017 (as to Index No. 705884-17). Defendant, State Farm Insurance Company (“State Farm”), has declined to pay for the procedures deeming them medically unnecessary. A prior court order disposed of all other matters save for the question of payment for the aforementioned procedures.

Prior to commencement of the trial, the parties stipulated to the timeliness of both the plaintiff’s claims for payment for the procedures and the defendant’s denials thereof. The parties also stipulated into evidence: a peer review and addendum by State Farm’s sole witness herein, Daniel Spostas, D.C., (Defendant’s Exhibits A and B); the relevant treatment records (Defendant’s Exhibit C); and a series of bills and denials related to the three procedures (Defendant’s Exhibits D through I). Finally, the parties stipulated to Chiropractor Sposta’s expertise in the field of chiropractic medicine. Having satisfied its prima facie burden by way of the evidentiary stipulations, and after bilateral waivers of opening statements, the plaintiff rested. As is well settled in no-fault insurance law, State Farm bore the burden of establishing that the MUA procedures were not medically necessary (See e.g., Tremont Medical Diagnostic, P.C., v. GEICO Ins. Co., 13 Misc 3d 131(A) [App Term, 2nd & 11th Jud Dists 2006]).

State Farm’s case in chief consisted solely of Dr. Spostas’ testimony. As anticipated, Spostas testified on direct examination that the MUA procedures performed on Barrera were not medically necessary. Following the arguments set forth in his peer review of April 4, 2017, and addendum of May 3, 2017 — both documents virtually identical in substance — Spostas testified concerning the general protocols for chiropractors considering use of MUA procedures. In this [*2]regard, he deemed those promulgated by the National Academy of Manipulation Under Anesthesia Physicians (“NAMUA”) to be authoritative.

Relying primarily on the NAMUA protocols and the scope of chiropractic treatment as defined in Education Law § 6551(1), Spostas opined that Barrera was not a proper MUA candidate given the absence of evidence in the medical record reflecting: (1) a second medical opinion or interdisciplinary advice concerning use of the procedure; (2) blood tests and other screening for the patient’s tolerance of anesthesia; (3) a history of severe pain, spinal adhesions, voluntary muscle contracture, apprehensive muscle splinting or severe spasms; or (4) a failure to improve after a period of conventional chiropractic treatment. He also opined that anesthetized manipulation of Barrera’s hip and shoulder regions exceeded the scope of medical treatment contemplated within the discipline of chiropractic medicine.

Notably, Spostas proffered most of these very same pre-MUA standards in Kraft v. State Farm Mutual Automobile Ins Co., 34 Mic. 376 [Civ Ct, Queens Cty, 2011]. His purported standards were generally found to be lacking merit in that case. They gain no traction in this one. Here, as in Kraft, Dr. Spostas cited to no authority to support his contention that a second medical opinion or interdisciplinary advice was required prior to performance of a MUA procedure on a chiropractic patient. To be sure, the NAMUA protocols appear to be silent on the matter, as they are respecting his suggestion that a patient’s blood must be screened as part of NAMUA’s preoperative procedures under the protocols. Hence, what remains to be considered is whether, in view of Barrera’s medical and treatment history and the protocols, implementation of the MUA procedures was justified. Upon review of the record in evidence here, this Court finds justification for each procedure.

Among other considerations, the NAMUA protocols suggest, in relevant part, that MUA procedures are clinically justifiable when a patient has responded favorably to conservative, non- invasive chiropractic treatment but continues to experience intractable (i.e., hard to control) pain that interferes with his or her lifestyle. NAMUA protocols further recommend that manipulative procedures be utilized in a clinical setting for 2 to 6 weeks prior to recommending the procedure. Finally, as correctly noted by Spostas, the protocols also consider the MUA candidate’s history of severe pain, spinal adhesions, voluntary muscle contracture or muscle spasms, among other symptoms.

In his peer review dated April 4, 2017, Spostas noted that Barrera received her initial chiropractic examination on September 8, 2016, approximately 9 days after the underlying August 30, 2016 vehicular accident that is believed to have caused her injuries.1 She was examined, at that time, by chiropractor Arthur Schoenfeld, who recorded complaints of headache, dizziness, upper middle and lower back pain, and left sided neck pain radiating to the left shoulder. Range of motion in her cervical and thoracolumbar spine was found to have decreased with pain, and positive findings were noted in the cervical compression, heel walk, SLR (straight leg raise) and Kemp’s tests. On November 2, 2016, approximately 8 weeks after the vehicular incident and 2 weeks beyond the 2 to 6 week preliminary chiropractic period contemplated by the NAMUA protocols, Schoenfeld wrote a Letter of Medical Necessity to State Farm indicating that, while Barrera had demonstrated some responses to physiotherapy, she was still experiencing pain and difficulty performing many daily activities. The letter was used to justify Schoenfeld’s prescription of various medical supplies including a cervical pillow and collar, a car seat support, and a bed board, among other items. The record also reflects that, up to that date, she participated in regular chiropractic adjustments and continued to receive such treatment until just before January 25, 2017, when she first presented at Pro Align Chiropractic, P.C. (“Pro Align”), for evaluation as a candidate for MUA.

At her January 25, 2017 evaluation at Pro Align, Barrera was diagnosed with various pathologies including: displacement of both cervical and lumbar intervertebral discs; cervical, [*3]thoracic, lumbar and sacroiliac segmental dysfunction; cervicobrachial syndrome; cervical radiculitis; and other symptoms related to her shoulder and hip joints. The evaluation also depicted her as experiencing a significant loss of range of motion in all areas, and having reached a “plateau” in her recovery efforts considerably below her maximum medical improvement. Her prognosis was guarded. From this, her first MUA was scheduled for February 12, 2017. The target treatment areas included her cervical, thoracic, lumbar, pelvic, hip and shoulder regions.^[FN1]

The first MUA procedure involved manipulation of all parts of her spine and its supporting musculature, and included her shoulders and left hip. Post procedure, she was found to have increased range of motion without significant muscle guarding. In his report, Dipti Patel, D.C. (“Patel”), the chiropractor who performed the MUA, noted that Barrera’s fibro-adhesive conditions were significantly impacted increasing the potential for appropriate neuromuscular re-education and healing. She was instructed to follow up at the surgery center to determine if a second MUA procedure was indicated. In the interim, passive manipulation to the treated areas was prescribed to prevent the reformation of muscular adhesions.

This Court finds that Barrera’s treatment record leading up to January 25, 2017 satisfies the NAMUA considerations justifying the procedure. By the initial MUA date, Barrera had participated in frequent conservative chiropractic sessions and, while experiencing some improvement, was still hampered by pain in her activities daily living. This was true beyond the initial 2 to 6 week conservative manipulation period contemplated by the NAMUA protocols, and the numerous positive findings during her pre-MUA evaluation at Pro Align confirm as much. Furthermore, in keeping with the protocols, Dr. Patel prescribed post-MUA series therapy to prevent the reformation of muscular adhesions, suggesting that adhesions — another justifying factor under the NAMUA protocols — were a complicating factor prior to the procedure. Although further analysis of the treatment record would more robustly justify the initial MUA procedure, it is hardly necessary. In this Court’s view, the procedure was justified. This leaves the question of whether Specialty Surgery’s MUA exceeded the scope of chiropractic practice by including, and billing for, the anesthetized manipulation of Barrera’s left hip and shoulders during the initial MUA. It is this Court’s conclusion that the issue need not be decided here.

New York Education Law § 6551(1) defines the scope of chiropractic practice as follows:

The practice of the profession of chiropractic is defined as detecting and correcting by manual or mechanical means structural imbalance, distortion, or subluxations in the human body for the purpose of removing nerve interference and the effects thereof, where such interference is the result of or related to distortion, misalignment or subluxation of or in the vertebral column.

NY Educ. Law § 6551(1). From this it would appear that the general purpose of chiropractic practice is to correct structural or biomechanical problems within the human body by providing manual or mechanical treatment to the spine. Pertinent here, however, given Specialty Surgery’s failure to call any witnesses, the court is without a medical basis upon which to determine whether the anesthetized manipulation of Barrera’s shoulders and left hip could somehow could have been justifiably brought within the scope of providing treatment to her spine for the purpose of correcting some biomechanical malfunction. Notwithstanding this hurdle, there is ample basis in the record upon which to find that Specialty Surgery should be compensated for the portion of the MUA applied directly to her spine.

An examination of the February 12, 2017 bill submitted by Specialty Surgery to State Farm for the first MUA shows the carrier as being billed $25,000 for the manipulation of Barrera’s spine (Code No. 22505), with additional amounts totaling $44,060 billed for all MUA [*4]treatment provided that day. Given that Specialty Surgery has demanded a total of $5,113.01 for the February 12, 2017 MUA (Index No. 705866-17), upon the medical record in evidence, this court finds ample basis for such compensation for the manipulation of the patient’s cervical, thoracic and lumbosacral spinal regions. Accordingly, justification of the February 25, 2017 (Index No. 705867- 17), and March 4, 2017 (Index No. 705884-17), remains. This court finds that those procedures were also medically justified.

The NAMUA protocols set forth general patient recovery benchmarks to consider prior to performing serial MUA procedures. Generally, the protocols contemplate that a second (or serial) MUA procedure is usually unnecessary when a patient regains and retains 80% or more of normal biomechanical function as a result of the first procedure and post-MUA therapy. However, if the patient regains only 50-70% or less of normal biomechanical function as a result of the first procedure and post-MUA follow up therapy, then a second (or serial) MUA procedure is recommended. While the NAMUA scheme appears to leave biomechanical recovery in the 70- 80% range out of consideration for additional MUA procedures, the protocols ultimately recommend serial MUAs until the patient achieves the 80% or greater biomechanical recovery threshold. With that in view, we turn to the second and third MUA procedures.

On February 25, 2017, the day of Barrera’s second MUA procedure, Barrera presented at Pro Align for a pre-MUA evaluation and was found to have experienced approximately 51%-79% improvement from the first procedure. The evaluation report also noted that she continued to experience chronic pain, adhesions and myofascial pain syndrome. This scenario repeated itself again when she presented at Pro Align for the third and final MUA procedure on March 4, 2017. Hence, according to the NAMUA protocols, as of February 25, 2017, and again on March 4, 2017, Barrera’s recovery fell within the range of justification for the second and third MUA procedures.

As with the February 12, 2017 bill from Specialty Surgery to State Farm, the February 25, 2017, and March 4, 2017 bills each charged $25,000 for the manipulation of Barrera’s spine (Code Nos. 225059 and 22505), with bills totaling $44,060 and $48,030, respectively, for all MUA related services provided on those dates. Given that Specialty Surgery has demanded only $3,821.76 (for February 25, 2017) and $5,113.01 (for March 4, 2017) for the MUA services provided, this Court finds that compensation is warranted in each case.

Accordingly, the clerk is directed to enter judgment in favor of the plaintiff, New York Center for Specialty Surgery, in each of the following matters herein: CV-70566-17; CV-705867- 17; and, CV-705884-17.

This constitutes the Decision and Order of the Court.

Dated: April 14, 2021
Hon. John A. Howard-Algarin, J.C.C.

Footnotes

Footnote 1:All references to the record would have included citations to specific pages therein had counsel complied with the court’s trial part rules and submitted documentary evidence with Bates stamped identifiers.

CV-707605/17-BX

Eppinger, Reingold & Korder (Ronald M. Eppinger of counsel), for plaintiff

Law Offices of Rubin & Nazarian (Tasnim Hassanali of counsel), for defendant

In this action to recover assigned first-party benefits for medical services rendered (see Insurance Law § 5101, et seq.), defendant Hereford Insurance Company (defendant) moves, pursuant to CPLR 3212, for an order of summary judgment dismissing the complaint of plaintiff Doctors United Inc., as assignee of Keith Davis (plaintiff). In opposition, plaintiff argues that the court should dismiss defendant’s motion as untimely and that the court should grant plaintiff summary judgment for defendant’s failure to either pay or deny the subject claims.

The court now dismisses defendant’s motion as untimely without good cause shown and declines to grant plaintiff’s request for the same relief, as also belatedly asserted without satisfactory excuse.

BACKGROUND

Plaintiff filed a summons and complaint against defendant, seeking overdue no-fault benefits plus interest thereon and attorneys’ fees. Annexed to the summons and complaint is an incomplete copy of a spreadsheet, entitled “Details of Disputed Claim” (summons and complaint). Said document includes, among other things, a column identified as “Date Bill Mailed” with numerous rows of noted dates (id.). The “Details of Disputed Claim” does not indicate what services, if any, were billed to defendant and does not chronicle where defendant allegedly “mailed” the bills (id.).

Defendant filed an answer, demand for verified written interrogatories and various demands. In response, plaintiff alleges that it provided defendant with discovery, including “a complete set of all of the bills at issue in this action” (affirmation in opposition, ¶ 6). However, no proof of mailing for those bills and no copies of the bills exist in the record.

Plaintiff filed a notice of trial, dated July 3, 2018.^[FN1] On November 16, 2018, defendant served plaintiff, by mail, with this motion for an order of summary judgment, dismissing the complaint on the ground that plaintiff never billed defendant (affidavit of service, dated Nov. 16, 2018). Plaintiff opposes the motion arguing that the motion should be dismissed as untimely, pursuant to CPLR 3212 (a).^[FN2] Plaintiff also seeks an order of summary judgment, contending that defendant neither paid nor denied any of the subject bills (see CPLR 3212 [b] [governing the grounds and supporting proof for a summary judgment motion]).

DISCUSSION

A motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (CPLR 3212 [a]; see also Uniform Rules for New York State Trial Courts [22 NYCRR] § 208.7 [b] [providing that “(a)ll formal pleadings in this court and verifications thereof shall be in conformity with CPLR article 30”]). The Court of Appeals defined “good cause” as requiring “a satisfactory explanation for the untimeliness” of the motion, and the Court interpreted Rule 3212 as otherwise prohibiting tardy, but “meritorious, nonprejudicial filings” (Brill v City of New York, 2 NY3d 648, 652 [2004, Kaye, Ch. J.] [construing rule 3212 (a) in the context of a Civil Court proceeding]; see also Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2006 mem] [citing Brill for the proposition that “statutory time frames . . . are not options, they are requirements”]; Rivera v State of New York, 34 NY3d 383, 402, n 12 [2019, Rivera, J., dissenting] [providing, in dicta, “that trial courts may only permit late summary judgment where the movant gives ‘a satisfactory explanation for the untimeliness'”]).

In refusing to countenance violations of the statutory deadline — absent good cause [*2]shown — the Court of Appeals emphasized with hope that “movants will develop a habit of compliance with [CPLR 3212 (a)] . . . rather than delay [motions for summary judgment] until trial looms” (id., at 653). The Court was firm that “not considering the merits of an unexcused, untimely motion” is both (1) “the correct remedy under the law” and (2) the result best calculated to “bring an undesirable practice to an end” (id., n 4).

Applying these principles here, defendant’s motion for summary judgment must be dismissed. Defendant concedes that it served this motion on plaintiff after the conclusion of the 120-day time period set forth in CPLR 3212 (a) (see CPLR 2103 [b] [2] [providing that, where the law prescribes a time period for service, the time “is measured from the service of a paper”]; see also CPLR 2211 [providing that “[a] motion on notice is made when a notice of the motion . . . is served”]; Esdaille v Whitehall Realty Co., 61 AD3d 435, 435-436 [1st Dept 2009] [applying the same]).^[FN3] Moreover, defendant merely contends that the belatedly filed motion does not prejudice plaintiff, appearing to overlook the need to establish a proper excuse for its tardiness. “No excuse at all . . . cannot be ‘good cause'” (Brill, 2 NY3d at 652).

Similarly, plaintiff’s request for summary judgement fails as asserted late without any proffered excuse. Plaintiff seeks summary judgment for the first time in opposition to defendant’s motion, and plaintiff served its affirmation in opposition well beyond 120 days after service of the notice of trial (affidavit of service, dated March 6, 2019).

Accordingly, it is

ORDERED that defendant’s motion for an order of summary judgment, dismissing plaintiff’s cause of action, is dismissed as untimely.

The constitutes the decision and order of the court.

DATE: August 11, 2020
Emily Morales-Minerva, J.

Footnotes

Footnote 1:Neither party indicates when plaintiff served the notice of trial on defendant, although there is no dispute that plaintiff served the notice of trial over 120 days prior to defendant serving this motion for summary judgment.

Footnote 2: Rule 3212 (a) of the CPLR provides, among other things, that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.”

Footnote 3: Defendant states: “The motion was drafted, signed and dated November 13, 2018 — which is within 120 days of the notice of trial. While the motion was not served until a few days later, Plaintiff is not prejudiced by the late motion” (affirmation in reply, ¶ 4).

[*1]

Civil Court of the City of New York, Bronx County, August 7, 2020

APPEARANCES OF COUNSEL

McDonnell Adels & Klestzick, PLLC, Garden City (Joseph A. Schwarzenberg of counsel), for defendant.

Sanders Barshay Grossman, PLLC, Garden City (Edward A. Cespedes of counsel), for plaintiff.

The plaintiff filed the instant action against the defendant seeking to recover assigned no-fault insurance benefits. The defendant now moves the court pursuant to 22 NYCRR 208.17 (c) and CPLR 3126 to strike plaintiff’s notice of trial and dismiss the complaint on the ground that further pretrial discovery is warranted on its Mallela defense (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), or in the alternative to strike plaintiff’s notice of trial and direct plaintiff to appear for a deposition and to provide responses to defendant’s written discovery demands pertaining to Mallela material.

Plaintiff filed a notice of trial and certificate of readiness for trial on August 9, 2019, which stated that discovery proceedings were complete and no outstanding requests for discovery remained. On August 26, 2019, defendant objected to plaintiff’s discovery responses by letter. In its motion, defendant argues that the responses received by the plaintiff are nonresponsive, because the plaintiff objected to all of the defendant’s demands requesting documents and/or information intended to shed light on plaintiff’s ownership, corporate structure, and operations. The plaintiff argues that the defendant’s motion is moot as it served responses and documents on the defendant.

Plaintiff also contends that defendant’s defenses are confined to the four corners of its denial, which was based on the fee schedule, such that Mallela material is irrelevant. The court notes that responses to the interrogatories, combined demands, and notice to preserve attached to defendant’s motion were objections with respect to Mallela material. However, plaintiff [*2]provided medical records, NYS Forms NF-3 and NF-10, and an assignment of benefits form pertaining to the medical services at issue.

Standard of Review

Pursuant to 22 NYCRR 208.17 (c), a party may move within 20 days after service of a notice of trial to strike the action from the calendar. CPLR 3126 permits the court to dismiss the{**68 Misc 3d at 881} action where a party “wilfully fails to disclose information which the court finds ought to have been disclosed.” Dismissal of a complaint pursuant to CPLR 3126 is a drastic remedy that is only appropriate where a party’s conduct is shown to be willful, contumacious or in bad faith. (Henderson-Jones v City of New York, 87 AD3d 498, 503-504 [1st Dept 2011]; see also Sigma Psychological, P.C. v Chubb Indem. Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51107[U] [App Term, 2d Dept, 2d, 11th &13th Jud Dists 2013].) Willful and contumacious behavior can be inferred by a failure to comply with court orders without adequate excuse. (Henderson, 87 AD3d at 503-505.) The court finds that plaintiff did not engage in willful, contumacious or bad faith conduct. Thus, the court denies defendant’s motion to dismiss the complaint pursuant to CPLR 3126.

The court may vacate a notice of trial where the certificate of readiness falsely states that there are no outstanding discovery requests. (Tahir Med., P.C. v Central Mut. Fire Ins. Co., 42 Misc 3d 135[A], 2014 NY Slip Op 50092[U] [App Term, 1st Dept 2014]; 22 NYCRR 208.17 [c].) As the court explains below, defendant is entitled to further discovery. Thus, the court grants defendant’s motion to strike plaintiff’s notice of trial.

Pursuant to CPLR 3124, defendant moves to compel compliance with its outstanding discovery requests for Mallela material. Contrary to plaintiff’s assertion, a Mallela defense is not precludable. (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]; Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012].) A motion to compel responses to discovery demands and interrogatories is properly denied where the demands and interrogatories seek information that is irrelevant, overly broad, or burdensome. (See Pesce v Fernandez, 144 AD3d 653 [2d Dept 2016].) The moving party bears the burden of demonstrating that the method of discovery sought would result in the disclosure of relevant evidence or was reasonably calculated to lead to the discovery of information bearing on the claims. (See id.; CPLR 3101 [a].)

Where an insurer requests discovery concerning a Mallela defense, the request should be granted as long as there are sufficient allegations supporting such a defense. (Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012].) Courts have {**68 Misc 3d at 882}permitted extensive discovery where the movant alleges that an unlicensed individual receives a disproportionate share of the corporation’s revenue. (See One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2d Dept 2008].) But where a party does not set forth case-specific allegations in support of its defense of fraudulent incorporation, discovery is not justified. (Pomona Med. Diagnostic P.C. v Adirondack Ins. Co., 36 Misc 3d 127[A], 2012 NY Slip Op 51165[U] [App Term, 1st Dept 2012].)

Defendant’s motion relies on the affidavit of Michelle Whalen, who works at defendant’s Special Investigative Unit. Whalen affirms that plaintiff consistently billed identical units of pf-NCS testing for the cervical and lumbar spine. Whalen affirms that this suggests a pattern of billing designed by profit-motivated, unlicensed laypersons. Whalen also affirms that according to an expert retained by defendant, this testing was medically unnecessary. Such allegations have been found sufficient to warrant discovery pertaining to a Mallela defense. (See Statewide Med. Servs., P.C. v Travelers Ins. Co., 16 Misc 3d 127[A], 2007 NY Slip Op 51253[U] [App Term, 1st Dept 2007], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005].) In light of the case-specific allegations set forth by defendant about the pattern of treatment provided by plaintiff, the court now grants defendant’s motion to compel in part as to matters that are material and necessary to the prosecution of this action.

The court finds that the defendant’s interrogatories are not fully or meaningfully responded to. (See Total Chiropractic, P.C. v USAA Cas. Ins. Co., 56 Misc 3d 1213[A], 2017 NY Slip Op 50977[U] [Suffolk Dist Ct 2017], citing Kihl v Pfeffer, 94 NY2d 118, 121, 123 [1999] [affirming trial court’s striking of complaint where plaintiff failed to correct initial interrogatory responses that were “not responsive” and “lack(ed) any reasonable detail”].) Moreover, plaintiff’s responses were untimely. (CPLR 3133 [a] [“Within twenty days after service of interrogatories, the party upon whom they are served shall serve upon each of the parties a copy of the answer to each interrogatory, except one to which the party objects . . . .”].) When a party fails to object to interrogatories in the time and manner prescribed by CPLR 3133, the court’s inquiry is limited to whether the demands call for disclosure of privileged information or whether the demands are palpably improper. ({**68 Misc 3d at 883}Reichmann v Pro Performance Sports, LLC, 2009 NY Slip Op 33059[U] [Sup Ct, NY County 2009], citing Cooper v Drobenko Bros. Realty, 200 AD2d 415 [1st Dept 1994]; see also Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10, 12 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].) The defendant is entitled to further responses to their interrogatories where they are not palpably improper, privileged, or adequately responded to.

The plaintiff is directed to fully and adequately respond to the following interrogatories: Nos. 2, 3, 4, 5, 6, 8, 9, 10 and 11. The plaintiff must fully respond to the questions asked with a written response, verified by a person with knowledge. (See CPLR 3133 [b].)

The plaintiff is directed to answer the following combined demands: Nos. 2, 3, 6, 7, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21. The court denies defendant’s application as to the remaining demands.

Defendant’s application for an order directing plaintiff to appear for a deposition is granted, as defendant is entitled to discovery on its Mallela defense. (See Bonsai Med. Acupuncture, P.C. v Chubb Group of Ins., 22 Misc 3d 140[A], 2009 NY Slip Op 50430[U] [App Term, 1st Dept 2009]; New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009].)

Conclusion

Accordingly, it is ordered that the clerk of the court vacate the notice of trial. It is further ordered that the defendant’s motion to compel discovery is granted in accordance with this order. And it is further ordered that within 60 days from the date of service of a copy of this order with notice of entry upon the parties, the plaintiff shall serve supplemental responses in accordance with this order. And it is further ordered in light of the ongoing COVID-19 pandemic, that plaintiff appear for a telephonic or videoconference deposition at a date and time mutually convenient to all parties, using audio-video technology mutually agreed upon by all parties, within 45 days of receipt of all responses to discovery. And it is further ordered that the plaintiff may be precluded upon motion from offering any evidence at trial as to items it fails to provide or respond to per this order.

[*1]

Civil Court of the City of New York, Bronx County, June 15, 2020

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

Law Offices of Chris McCollum P.C., Brooklyn, for plaintiff.

The plaintiff filed the instant action against the defendant seeking to recover assigned no-fault insurance benefits. The amount in dispute is $5,503.90.

The defendant now moves pursuant to CPLR 3212 for an order granting summary judgment in favor of the defendant on the grounds that (1) the plaintiff lacks standing to receive no-fault reimbursement because it is not properly owned and controlled by licensed medical professionals as required by 11 NYCRR 65-3.16 (a) (12) and State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]); (2) the defendant timely and properly denied the claim as the medical treatment was not medically necessary; and (3) the defendant properly paid and denied the remainder of the claims pursuant to the New York State Workers’ Compensation Fee Schedule.

The plaintiff opposes and cross-moves for an order of summary judgment in favor of the plaintiff. The plaintiff also moves for an order deeming certain facts established pursuant to [*2]CPLR 3212 (g), as to its prima facie case.

Standard of Review

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law by advancing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact. (See Zuckerman v City of New York, 49 NY2d 557 [1980].) Summary judgment is inappropriate where there are material issues of fact in dispute or where more than one conclusion may be drawn from the facts. (See Friends of Thayer Lake LLC v Brown, 27 NY3d 1039 [2016].) In considering a motion for summary judgment, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. (See Negri v Stop & Shop, 65 NY2d 625 [1985].)

{**68 Misc 3d at 559}Once a movant meets its burden, the burden is shifted to the opposing party to come forward with proof, again in evidentiary form, to show the existence of genuine triable issues of fact. (See Piccolo v De Carlo, 90 AD2d 609 [3d Dept 1982].)

Discussion

Defendant’s Motion for Summary Judgment as to a Mallela Defense

Pursuant to 11 NYCRR 65-3.16 (a) (12), an insurer may withhold payment for medical services that a professional corporation provides, where there is a “willful and material failure to abide by” licensing and incorporation statutes, even if the services were provided by licensed health care providers. (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005].) A party may support a finding that a provider is not eligible for reimbursement under 11 NYCRR 65-3.16 (a) (12) without meeting the traditional elements of common-law fraud. (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 405 [2019].) But in order to withhold payment, the violations of incorporation and licensing statutes must be “more than merely technical and ‘rise to the level of’ a grave violation such as fraud.” (Id. at 405-406, citing Mallela at 322.)

Although Mallela is typically a defense mounted at trial, the defendant is free to use Mallela as a mechanism to keep claims open. (High Definition MRI, P.C. v Countrywide Ins. Co., 2019 NY Slip Op 32009[U] [Sup Ct, NY County 2019].) In deciding a motion for summary judgment, the court must draw all reasonable inferences in favor of the nonmoving party and deny summary judgment if there is any doubt as to the existence of a material issue of fact. (Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007].) Where different conclusions may be reasonably drawn from the evidence, the motion should be denied. (Sommer v Federal Signal Corp., 79 NY2d 540, 555 [1992].)

Defendant argues that plaintiff is not properly owned and controlled by licensed medical professionals, which is required by 11 NYCRR 65-3.16 (a) (12). In support of its argument, defendant offers the affidavit of James Glampe, a special investigator in its SIU department. Glampe contends that in the examinations under oath on March 3, 2015, and August 16, 2016, Dr. Harvey “admitted” that he owns 97% of Harvey Family Chiro PT & Acup, PLLC, with a physical therapist owning 2% and an acupuncturist owning the remaining 1% of the{**68 Misc 3d at 560} PLLC. Dr. [*3]Harvey testified in March 2015 that “he was responsible for the day to day management of the company, and that the physical therapists and acupuncturist do not have general management responsibilities.” Dr. Harvey testified in August 2016 that profits are distributed in accordance with the ownership shares. Defendant argues that this allows Dr. Harvey to receive a disproportionate share of the income from professions he is not licensed to perform. Dr. Harvey testified in August 2016 that 70% of the practice is chiropractic treatment, 20-25% is physical therapy, and 10% is acupuncture.

Plaintiff argues that the conduct at issue in Mallela and Carothers is easily distinguishable from the ownership structure and services provided at Harvey Family. Plaintiff argues that defendant merely objects to the ownership split at Harvey Family, but that fee splitting alone is not sufficient to mount a Mallela defense. In addition, plaintiff contends that such a fee split is permissible under article 15 of the Business Corporation Law.

[1] The court now denies defendant’s motion on the Mallela defense. Although Dr. Harvey owns a sizeable majority of plaintiff and receives income from services provided by professionals operating under different licenses, impermissible fee splitting alone is not a violation of a licensing requirement as required by Mallela. (See H & H Chiropractic Servs., P.C. v Metropolitan Prop. & Cas. Ins. Co., 47 Misc 3d 1075, 1079 [Civ Ct, Queens County 2015].) In Mallela and Carothers, the Court was deeply concerned with the corporate practice of medicine by nonphysicians. Both cases involve physicians that essentially rented out their license to nonphysicians, who ran the day-to-day operations of the medical practices and received the bulk of the profits. Here, all owners are licensed to provide medical care. Nor does it appear that Dr. Harvey provides, supervises, or otherwise interferes with services that he is not licensed to render. However, the extreme equity distribution in the PLLC raises issues of fact for trial as to the level of control exerted by Dr. Harvey over services outside the scope of his license.

Defendant’s Motion for Summary Judgment as to Lack of Medical Necessity

The claim form itself gives rise to a presumption of medical necessity. (See Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d Dept, 2d & 11th Jud Dists 2004].) The insurer may rebut the inference of medical{**68 Misc 3d at 561} necessity by proof in admissible form establishing that the health benefits were not medically necessary. (See A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007].) The proof must provide a factual basis and medical rationale that the services were not medically necessary. (See Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009].) Once a defendant submits evidence establishing a lack of medical necessity for the services rendered, the burden shifts to the plaintiff to rebut the defendant’s evidence. (See Foster Diagnostic Imaging, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 138[A], 2011 NY Slip Op 52074[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011].)

The court finds that the defendant proved that it timely mailed the denial through the affidavit of its litigation examiner, Tara Piontek. Ms. Piontek’s affidavit established that the defendant timely mailed its denial of claim form based upon standard office practice or procedure, designed to ensure that items are properly addressed and mailed. (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001].)

The court finds that the defendant met its burden in establishing that the treatment was not medically necessary through the affidavits and reports of Daniel Sposta, D.C., L.Ac., and Sathish Modugu, M.D., CIME. Dr. Sposta’s affidavit and affirmed report state that he is a licensed chiropractor and acupuncturist, and that he conducted an independent chiropractic and acupuncture examination of the assignor. Dr. Sposta’s report states that he reviewed various medical records, including records from plaintiff, Jacobi Medical Center, and Stand-Up MRI of Yonkers. These records were annexed to defendant’s motion. Dr. Sposta determined that continued chiropractic and acupuncture services in relation to assignor’s motor vehicle accident were not medically justified and that treatment should have been discontinued. Dr. Sposta reported the assignor’s complaints of pain, but noted that several test results were negative for pain. Dr. Modugu’s affidavit and report state that he is a licensed physician and that he conducted an independent medical examination of the assignor. Dr. Modugu’s report states that he reviewed various medical records and diagnostic studies, including records from plaintiff, claim forms, and Dr. Sposta’s independent medical{**68 Misc 3d at 562} evaluation. These records were annexed to defendant’s motion. Dr. Modugu determined that continued physical therapy in relation to the accident was not necessary, as the assignor had received extensive treatment already. However, Dr. Modugu’s physical examination noted that the assignor’s range of motion was lower than normal. Dr. Modugu also reported the assignor’s complaints of pain and suggested that follow up with pain management may be appropriate.

[2] The court finds that the plaintiff met its burden rebutting the defendant’s evidence through the affidavit of Richard Harvey, D.C., a licensed chiropractor and majority owner of plaintiff. Dr. Harvey’s affidavit reviews the assignor’s medical records, detailing the assignor’s complaints of neck, back, shoulder, and knee pain, as well as headaches, muscle spasms, and spinal subluxations. These records were annexed to plaintiff’s cross motion. The assignor’s medical records reflect abnormal moderate pain, muscle spasms, and significant myalgia in the lumbar region of the back. Dr. Harvey contends that based off these complaints and medical issues, “conservative care was continued.” Dr. Harvey also notes that “there are no specific guidelines delineating the absolute structured path for treatment to be universally prescribed to all patients,” such that “[g]reat deference should be given to the treating provider charged with the responsibility to examine, diagnose and treat” patients. Dr. Harvey’s affidavit puts into question whether assignor’s condition had been resolved, such that continued medical services were not necessary.

Based on a reading of the affidavits and reports submitted by both parties, the court finds that a material issue of fact exists as to the medical necessity of assignor’s treatment. Therefore, the defendant’s motion for summary judgment is denied.

Defendant’s Motion for Summary Judgment as to Proper Payment under the Fee Schedule

Where the insurer determines that a medical bill contravenes the applicable fee schedule, the burden then shifts to the insurer to assert a defense that the provider billed in excess of the fee schedule. (See 11 NYCRR 65-3.8 [g] [1].) Once an insurer makes a prima facie showing that the amount charged by a medical provider is in excess of the fee schedule, the burden then shifts to the provider to show that the charges involved a different interpretation of such schedules or an inadvertent miscalculation or error. (SeeCornell Med., P.C. v Mercury Cas. {**68 Misc 3d at 563}Co., 24 Misc 3d [*4]58 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009].)

[3] The defendant argues that it properly and timely paid the claims pursuant to the New York State Workers’ Compensation Fee Schedule, and that it denied the remainder as billed in excess of the fee schedule. Defendant contends that the applicable fee schedule is the New York Workers’ Compensation Medical Fee Schedule effective June 1, 2012, and that the amounts paid under the fee schedule were calculated by multiplying the relative value unit for the CPT code by the conversion factor for the region in which the provider is located. Notably, defendant did not submit an affidavit from an individual who is familiar with coding and fee schedules. The court cannot accept the attorney’s affirmation as proof that the bills were improperly coded as it is not based on personal knowledge and has no probative value in a motion for summary judgment. (See W. W. Norton & Co. v Roslyn Targ Literary Agency, 81 AD2d 798 [1st Dept 1981]; Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 133[A], 2004 NY Slip Op 50447[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]; see also Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U] [App Term, 1st Dept 2011].) The court finds that the defendant has not met its prima facie burden of proof showing the absence of a material issue of fact as to the amount that it paid.

Plaintiff’s Cross Motion for Summary Judgment

A medical provider seeking reimbursement from a no-fault insurer demonstrates prima facie entitlement to reimbursement by submitting evidence that payment of no-fault benefits is overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer. (See Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015].) To establish entitlement to summary judgment on overdue no-fault benefits, the medical provider is required to submit proof of mailing through evidence in admissible form. Such proof may include an affidavit from a person or entity with knowledge of the claim and how it was sent to the insurer. (See id.) The claim form itself gives rise to a presumption of medical necessity. (See Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d Dept, 2d & 11th Jud Dists 2004].)

[4] The court denies the plaintiff’s cross motion for summary judgment. Plaintiff attached some documentation of its claim,{**68 Misc 3d at 564} but did not attach documentation from one of its billers stating that a bill was generated and mailed. In addition, plaintiff did not state when the bill was mailed and failed to attach proof of said mailing.

Conclusion

Accordingly, the defendant’s motion is denied in its entirety. The plaintiff’s cross motion is also denied in its entirety.

CV-702750/18

Counsel for Plaintiff: Law Offices of Olga Skyut

Counsel for Defendant: McDonnell, Adels & Klestzick, PLLC

In this action for the payment of no-fault benefits, defendant seeks an order pursuant to 22 NYCRR 2018.17 striking the Notice of Trial on grounds that, inter alia, plaintiff did not provide the information requested in its Demand for Verified Interrogatories (interrogatories) and failed to appear for a deposition. Defendant also seeks an order striking the complaint for failure to provide the discovery requested and/or an order compelling plaintiff to provide the foregoing discovery. Plaintiff opposes the instant motion asserting that it has responded to the foregoing demand.

For the reasons that follow hereinafter, defendant’s motion is granted, in part.

The instant action is for the payment of medical benefits pursuant to Article 51 of the New York State Insurance Law. It is alleged that secondary to a motor vehicle accident on August 26, 2017, plaintiff provided medical services to MARTIN PATERSON, who assigned his no-fault benefits under the Insurance Law and defendant’s policy to plaintiff. Plaintiff, upon presenting proof of the foregoing services, requested payment totaling $4,000. Defendant has failed to pay the foregoing amount and, thus, plaintiff seeks a judgment in the amount of $4,000.

Motion to Strike the Notice of Trial

Defendant’s motion seeking to strike the Notice of Trial is granted insofar as the instant motion is timely and the Notice of Trial misrepresents that discovery is complete.

22 NYCRR 208.17, inter alia, promulgates the circumstances under which the Civil Court can order vacatur of a Notice of Trial. 22 NYCRR 208.17(c), states that

[w]ithin 20 days after service of such notice of trial, any party may move to strike the action from the calendar or to keep it from being placed thereon. The affidavit in support of the application must specify the reason the action is not entitled to be on the calendar.

Additionally, 22 NYCRR 208.17(d) states that

[a]fter any action has been placed on the trial calendar pursuant to this rule, no pretrial examination or other preliminary proceedings may be had, except that if some unusual or unanticipated conditions subsequently develop which make it necessary that further pretrial examination or further preliminary proceedings be had, and if without them the moving party would be unduly prejudiced, the court may make an order granting permission to conduct such examination or proceedings and prescribing the time therefor. Such an order may be made only upon motion on notice showing in detail, by affidavit, the facts claimed to entitle the moving party to relief under this subdivision.

A review of the foregoing language evinces that it is virtually identical to the rule applicable to cases venued in the Supreme Court and promulgated by 22 NYCRR 202.21. Indeed, when discussing the substance of 202.17, the Appellate Term routinely refers to and applies Appellate Division case law related to 22 NYCRR 202.21. For example, in Tahir Med., P.C. v Cent. Mut. Fire Ins. Co. (42 Misc 3d 135[A][App Term 2014]), the court relied on Nielsen v New York State Dormitory Auth. (84 AD3d 519 [1st Dept 2011]), a case venued in Supreme Court to hold that “[d]efendant’s timely motion to strike the action from the trial calendar should have been granted, since plaintiff’s August 15, 2011 certificate of readiness falsely stated that there were no outstanding discovery requests” (Tahir Med., P.C. at *1; see Allstate Social Work and Psychological Services, P.L.L.C. v Autoone Ins. Co., 34 Misc 3d 128[A], *1 [App Term 2011] [Court relied on, inter alia, Fausto v City of New York (17 AD3d 520 [2d Dept 2005]), which discussed the need to timely move to vacate a Note of Issue.]). Similarly, in Galdi v Kaliya, (32 Misc 3d 128[A] [App Term 2011]), relying on (Schissler v Brookdale Hosp. Ctr. (289 AD2d 469, 470 [2d Dept 2001]), a case venued in the Supreme Court, the court held that “[t]he unanticipated death of defendants’ orthopedist after examining plaintiff constituted an unusual and unanticipated condition which warranted a further physical examination of plaintiff after the action had been placed on the trial calendar” (Galdi at *1 [internal quotation marks omitted]). Thus, because there is substantially more case law discussing 22 NYCRR 202.21 than 22 NYCRR 208.17 and for purposes of vacating a Note of Issue/Notice of Trial the law is the same, hereinafter, this Court shall discuss the law governing 202.21 and shall apply the same to the instant motion.

Pursuant to 22 NYCRR 202.21(e), the court can vacate a note of issue when it is based on a Certificate of Readiness which contains erroneous facts (Ortiz v Arias, 285 AD2d 390, 390 [1st Dept 2001]). Specifically, a note of issue premised upon a Certificate of Readiness which asserts that all discovery is complete when, in fact, it is not, should be vacated (Savino v Lewittes, 160 AD2d 176, 178 [1st Dept 1990]; Spilky v TRW, Inc., 225 AD2d 539, 540 [2d Dept 1996]; Levy v Schaefer, 160 AD2d 1182, 1183 [3d Dept 1990]). Additionally, a motion pursuant to 22 NYCRR 202.21(e) must be made within 20 days of the note’s service upon the party seeking to vacate it (22 NYCRR 202.21[e]; Tirado v Miller, 75 AD3d 153, 157 [2d Dept 2010]). A belated motion should be denied (Utica Mut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794 [2d Dept 2006]; Rodriguez v Sau Wo Lau, 298 AD2d 376, 377 [2d Dept 2002]), and a defendant to whom discovery is owed then waives the right to such discovery (Manzo v City of New York, 62 AD3d 964, 965 [2d Dept 2009] [“The defendants waived their right to conduct an additional physical examination of the injured plaintiff when they failed to move to vacate the note of issue within [*2]20 days after service of the note of issue and the certificate of readiness.”]; James v New York City Transit Authority, 294 AD2d 471, 472 [2d Dept 2002]). Notably, when the party seeking to vacate a note of issue because discovery remains outstanding has had ample time to procure the discovery sought prior to the filing of the note, and made no effort to do so, the failure to procure discovery is deemed solely the fault of the party seeking vacatur, and the court, in the exercise of its discretion, can deny a motion to vacate the note (Torres v New York City Transit Authority, 192 AD2d 400, 400 [1st Dept 1993]). Under the foregoing circumstances, it is not an abuse of discretion to allow the note of issue to stand while concomitantly ordering that discovery be conducted to completion (id.).

As noted above, generally, a defendant to whom discovery is owed waives the right to such discovery when a plaintiff files his or her note of issue and the defendant fails to timely move to vacate it (Manzo at 965 [“The defendants waived their right to conduct an additional physical examination of the injured plaintiff when they failed to move to vacate the note of issue within 20 days after service of the note of issue and the certificate of readiness.”]; James at 472). However, “[w]here unusual or unanticipated circumstances develop subsequent to the filing of a note of issue, which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by an affidavit, may grant permission to conduct such necessary proceedings (22 NYCRR 202.21[d]). Thus, when it is demonstrated that unusual and unanticipated circumstances merit post-note discovery, the court has the discretion to order the same (Schroeder v IESI NY Corp., 24 AD3d 180, 181 [1st Dept 2005] [“The other method of obtaining post-note of issue disclosure is found in 22 NYCRR 202.21 (d). This section permits the court to authorize additional discovery ‘[w]here unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness’ that would otherwise cause ‘substantial prejudice.’ Because this section requires both unusual and unanticipated circumstances and substantial prejudice, it has been described as the ‘more stringent standard.'”]; Audiovox Corp. v Benyamini, 265 AD2d 135, 140 [2d Dept 2000] [“Applying the above rules to the facts of this case, it is undisputed that the defendant did not move to vacate the note of issue within 20 days of its filing. Accordingly, the defendant was required to demonstrate that unusual or unanticipated circumstances developed subsequent to the filing of the note of issue and certificate of readiness which required additional discovery to prevent substantial prejudice.”]). The foregoing is equally applicable to non-party discovery and can form the basis for the grant of a motion seeking to quash a subpoena on grounds that post-note of issue discovery is unwarranted (Maron v Magnetic Const. Group Corp., 128 AD3d 426, 427 [1st Dept 2015]; White v Bronx Lebanon Hosp. Ctr., 240 AD2d 212, 212 [1st Dept 1997]).

Notably, the mere need for further discovery (Price v Bloomingdale’s, a Div. of Federated Dept. Stores, Inc., 166 AD2d 151, 152 [1st Dept 1990] [“Notwithstanding that the physical examination sought by defendant might enhance the prospect of settlement without prejudice to plaintiff, we think it clear that such considerations do not fall within the ‘unusual and unanticipated circumstances’ rubric of the rule permitting post-note of issue pretrial proceeding.”]), or the absence of prejudice if post-note discovery is authorized, is not an unusual or unanticipated circumstance warranting further post-note discovery (Price v Brody, 7 AD2d 204, 205 [1st Dept 1959] [“In the case at bar, no claim of special, unusual or extraordinary circumstances was made by the defendant nor was there any such finding at Special Term. [*3]Absent any special, unusual or extraordinary circumstances, it was an inappropriate exercise of discretion to deny plaintiffs’ motion to vacate defendant’s notice of examination before trial. The oft-enunciated policy of encouraging pre-trial disclosure in most cases in and of itself is not sufficient to excuse a party’s failure to comply with the Special Rule Respecting Calendar Practice. The further fact, as stated here, that neither party will be prejudiced by allowing the examination, should not be a decisive factor in permitting departure from the general rule. Present special, unusual or extraordinary circumstances, spelled out factually, the court has discretion to depart from this interpretation of the rule. In all cases involving this rule, however, the judicial discretion to be exercised should be discreet, circumspect, prudent and cautious, and no party should be relieved of compliance with its provisions unless it clearly appears that the interests of justice require it” (internal citations omitted)]).

In support of the instant motion, which as per the affidavit of service was served upon plaintiff on September 4, 2018, defendant submits several discovery demands served upon plaintiff, only two of which are relevant to this decision. First, defendant submits its interrogatories dated May 23, 2018. Notably, the interrogatories contain 13 questions. Second, defendant submits a Notice of Examination Before Trial (demand for deposition), also dated May 23, 2018, which sought a deposition on July 9, 2018.

Defendant also submits plaintiff’s response to defendant’s interrogatories, which is dated May 29, 2018. Notably, the foregoing document is responsive to 42 questions. Defendant also submits Plaintiff’s Objection to Defendant’s Demand for Deposition, wherein plaintiff objects to the deposition sought. Significantly, plaintiff interposes two objections, namely that it is not required to attend a deposition until defendant establishes a timely denial of the claims made and that no depositions are required until defendant establishes that the information sought cannot be obtained via less burdensome discovery.

Defendant submits a letter, dated June 26, 2018, wherein it apprises plaintiff that its respons to defendant’s interrogatories are insufficient inasmuch as they appear to be responsive to other unrelated interrogatories and in any event are unverified

Lastly, defendant submits plaintiff’s Notice of Trial, dated August 6, 2018, wherein it is alleged that all discovery is complete.

In opposition to the instant motion, plaintiff submits a response to defendant’s interrogatories dated March 4, 2019. The response addresses 13 questions. However, plaintiff objects to five of the questions and articulates why ^[FN1] .

Defendant’s motion seeking to strike the Notice of Trial is granted. As noted above, 22 NYCRR 208.17, inter alia, promulgates the circumstances under which the court can order vacataur of a Notice of Trial. Such section is, virtually identical to the rule applicable to cases venued in the Supreme Court and promulgated by 22 NYCRR 202.21. As such when discussing the substance of 202.17, the Appellate Term routinely refers to Appellate Division case law [*4]related to 22 NYCRR 202.21 (Tahir Med., P.C. at *1; P.L.L.C. at *1; Galdi at *1). A note of issue premised upon a Certificate of Readiness which asserts that all discovery is complete when, in fact, it is not, should be vacated (Savino at 178; Spilky at 540; Levy at 1183). Additionally, a motion pursuant to 22 NYCRR 202.21(e) (or as relevant here, 22 NYCRR 208.17[c]) must be made within 20 days of the note’s service upon the party seeking to vacate it (Tirado at 157). Otherwise, the court should deny such motion (Utica Mut. Ins. Co. at 794; Rodriguez at 377), and a defendant to whom discovery is owed then waives the right to such discovery (Manzo at 965; James at 472).

Based on the foregoing, the instant motion is timely. CPLR § 2211 states that “[a] motion on notice is made when a notice of the motion or an order to show cause is served” (see Ageel v Tony Casale, Inc., 44 AD3d 572, 572, 845 [1st Dept 2007]; Gazes v Bennett, 38 AD3d 287, 288[1st Dept 2007]). Per the affidavit of service appended to defendant’s motion, the instant motion was made on September 4, 2018. As per the Court’s file, the Notice of Trial was served upon defendant on August 7, 2018. Applying CPLR § 2103(2), which states that “where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period, defendant had 25 days from August 7, 2018 to timely make the instant motion, or until Saturday, September 1, 2018. Applying General Construction Law §25-a ^[FN2] , defendant had until Tuesday, September 4, 2018 to make the instant motion because Monday, September 3, 2018, was Labor Day, a holiday.

Defendant correctly contends, that because the responses to the interrogatories were provided by counsel and were unsworn, in violation of CPLR 3133(b), they were defective. Moreover, defendant asserts that plaintiff never appeared for a duly requested deposition. Thus, defendant correctly argues that plaintiff misrepresented that discovery was complete when it filed its Notice of Trial, thereby warranting vacatur of the same.

Preliminarily, plaintiff concedes that its response to the interrogatories, dated May 29, 2018 was unresponsive to defendant’s demand. However, plaintiff’s response to defendant’s interrogatories, dated March 4, 2019 – which plaintiff claims is fully responsive – is also deficient because it is unsworn and the responses are provided by counsel. To be sure, CPLR § 3133(b) states that

[i]interrogatories shall be answered in writing under oath by the party served, if an individual, or, if the party served is a corporation, a partnership or a sole proprietorship, by an officer, director, member, agent or employee having the information.

While there is a dearth of case law regarding whether an attorney can respond to interrogatories, three cases make clear that generally an attorney may not interpose answers to [*5]interrogatories. In Lubell v Work Wear Corp. (82 Misc 2d 1000, 1001 [Civ Ct 1975], affd, 86 Misc 2d 1001 [App Term 1976]), the court rejected plaintiff’s claim that responses to interrogatories by counsel were proper and compliant with CPLR § 3134(a), which like CPLR § 3133(b), required that interrogatories

be answered in writing under oath by the party upon whom served, if an individual, or, if the party served is a corporation, a partnership, or sole proprietorship, by any officer, director, agent or employee having the information

(82 Misc 2d 1001). Instead, the court noted that pursuant to CPLR § 3131, answers to interrogatories may be used to the same extent as the depositions of a party, and are therefore, “a disclosure device, to seek evidence, under oath, from the [] defendant by individuals connected with it who have personal knowledge of the facts” (id. at 1002). Thus, the trial court ruled that answers to interrogatories are proper when given under oath by someone with personal knowledge (id. at 1002; see Corriel v Volkswagen of Am., Inc., 127 AD2d 729, 730 [2d Dept 1987] [“The appellant served interrogatories on the plaintiff simultaneously with its answer on September 30, 1985. No objection was made thereto (CPLR 3133) nor did the plaintiff move for a protective order (CPLR 3103). On or about December 18, 1985, unverified answers to the interrogatories were served by the plaintiff’s counsel. The answers did not comply with the requirements of CPLR 3134 which provides that such answers shall be ‘in writing under oath by the party upon whom served’ and ‘shall be preceded by the question to which it responds’. The plaintiff’s answers were in an incorrect form and lacked the requisite verification.”]). In MOPS Med. Supply v Geico Ins. Co. (4 Misc 3d 185 [Civ Ct 2004]), the court came to the same conclusion in rejecting answers to interrogatories that were unverified and provided by counsel (id. at 188-89 [“As an initial matter, the responses to the interrogatories were not verified, and they fail to identify the name and address of the individual responding to the interrogatories; rather, they state only that they were answered by the plaintiff’s attorney.”]). Despite the dearth of case law on this issue, the clear and express language of CPLR § 3133(b) when examined against the backdrop of well-settled principles of statutory construction support the position that counsel may not provide answers to interrogatories. To be sure, CPLR § 3133(b) states that interrogatories are to “be answered in writing under oath by the party upon whom served.” Pursuant to Statutes Law § 92, “[t]he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature.” Moreover, when interpreting statutes, it is well settled that the legislative intent is ascertained from “the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction” (Statutes Law § 94; Kuzmich v 50 Murray St. Acquisition LLC, 34 NY3d 84, 91 [2019], rearg denied, 33 NY3d 1135 [2019], cert denied, 140 S Ct 904 [2020] [“As we have repeatedly explained, courts should construe unambiguous language to give effect to its plain meaning. Absent ambiguity the courts may not resort to rules of construction to alter the scope and application of a statute because no such rule gives the court discretion to declare the intent of the law when the words are unequivocal” (internal citations and quotation marks omitted)]). Thus, the use of the word “party” as the person who must answer interrogatories rather than the words “attorney,” “counsel,” or “lawyer,” makes it clear that the intent of the statute is to have the individual party, [*6]in the case of an individual, provide responses to interrogatories.

Based on the foregoing, the instant interrogatories are deficient as a matter of law because they are unsworn and responded to by counsel. Accordingly, when plaintiff filed its Notice of Trial, certifying that discovery was complete, it misrepresented the same.

Insofar as despite defendant’s demand for a deposition plaintiff failed to appear, plaintiff further misrepresented the completion of discovery when it filed its Notice of Trial. Notably, plaintiff never addresses the portion of defendant’s motion, premised on plaintiff’s failure to appear for a deposition, which is akin to a concession. Significantly, however, plaintiff’s response to the demand for deposition – that defendant is not entitled a deposition unless it demonstrates that the responses provided to the interrogatories were insufficient – would have been availing had plaintiff provided a proper response to the interrogatories. Instead, this Court’s decision is in and of itself evidence that the response provided was insufficient.

It is well settled that

[a]lthough a party is generally free to choose the disclosure devices it wishes to use and the order in which it uses them, it is a generally accepted rule that one method of disclosure should be completed before resorting to another

(Samsung Am., Inc. v Yugoslav-Korean Consulting & Trading Co., Inc., 199 AD2d 48, 49 [1st Dept 1993] [“Further, the overly broad interrogatories which called for all bank accounts and information concerning tax filings must also await completion of Dizdarevic’s oral deposition so as to more particularly pinpoint the documents needed to prosecute this lawsuit or defend against the counterclaims.”]; Curran v Upjohn Co., 122 AD2d 929 [2d Dept 1986]; Giffords Oil Co. v Spinogatti, 96 AD2d 851, 851 [2d Dept 1983]; Katz v Posner, 23 AD2d 774, 775 [2d Dept 1965] [“With respect to the interrogatories, it is our opinion that although under the statute (CPLR 3101) a party may be entitled to an examination both orally and by written interrogatories, he should first invoke one or the other of these devices. If the device first chosen does not adequately disclose all evidence material and necessary to the prosecution or defense of the action (CPLR 3101), then the other available remedy may be utilized.”]).

Here, where, as noted above, defendant’s interrogatories were insufficiently answered, the information sought therein was not provided via defendant’s use of interrogatories. Thus, this Court holds, that defendant is entitled to a deposition because “the device first chosen does not adequately disclose all evidence material and necessary to the prosecution or defense of the action (Katz at 775).

Motion to Strike the Complaint

Defendants’ motion seeking to strike the complaint based on plaintiff’s failure to provide proper responses to defendant’s interrogatories and for plaintiff’s failure to appear at a deposition, is denied insofar as this Court holds that plaintiff’s conduct was neither willful nor contumacious a matter of law, thereby, precluding relief pursuant to CPLR § 3126

“The purpose of disclosure procedures is to advance the function of a trial, to ascertain truth and to accelerate the disposition of suits” (Rios v Donovan, 21 AD2d 409, 411 [1st Dept. 1964]). Accordingly, our courts possess wide discretion to decide whether information sought is “material and necessary” to the prosecution or defense of an action (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). The terms

material and necessary, are, in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. CPLR 3101 (subd. [a]) should be construed, as the leading text on practice puts it, to permit discovery of testimony which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable

(id. at 406 [internal quotation marks omitted]). Whether information is discoverable does not hinge on whether the information sought is admissible and information is therefore discoverable merely if it “may lead to the disclosure of admissible proof” (Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance, 226 AD2d 175, 175 [1st Dept 1996]). That said, however, “unlimited disclosure is not mandated, and the court may deny, limit, condition, or regulate the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (Diaz v City of New York, 117 AD3d 777, 777 [2d Dept 2014]). Thus, the trial court has broad discretion in determining the scope and breadth of discovery, must supervise disclosure and set reasonable terms and conditions therefor (id.). Absent an improvident exercise of discretion, the trial court’s determinations should not be disturbed on appeal (id.).

Pursuant to CPLR § 3126

[i]f any party, or a person . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them . . . an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or . . . an order striking out pleadings or parts thereof.

It is well settled that “[t]he nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court’s discretion” (Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 738 [2d Dept 2012]). Striking a party’s pleading for failure to provide discovery, however, is an extreme sanction, and warranted only when the failure to disclose is willful and contumacious (Bako v V.T. Trucking Co., 143 AD2d 561, 561 [1st Dept 1999]). Similarly, since the discovery sanction imposed must be commensurate with the disobedience it is designed to punish, the less drastic sanction of preclusion is also only appropriate when there is a clear showing that a party has willfully and contumaciously failed to comply with court-ordered discovery (Zakhido at 739; Assael v Metropolitan Transit Authority, 4 AD3d 443, 444 [2d Dept 2004]; Pryzant v City of New York, 300 AD2d 383, 383 [2d Dept 2002]). Willful and contumacious behavior can be readily inferred upon a party’s repeated non-compliance with court orders mandating discovery (Pryzant at 383). When a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez v Bernard, 267 AD2d 65, 66 [1st Dept 1999]) and repeatedly violates discovery orders, thereby delaying the discovery process, the striking of pleadings is warranted (Moog v City of New York, 30 AD3d 490, 491 [2d [*7]Dept 2006]; Helms v Gangemi, 265 AD2d 203, 204 [1st Dept 1999]). Stated differently, discovery sanctions should ensue when there is a willful failure to “disclose information that the court has found should have been disclosed” (Byam v City of New York, 68 AD3d 798, 801 [2d Dept 2009]).

Where the failure to disclose is neither willful nor contumacious, and instead constitutes a single instance of non-compliance for which a reasonable excuse is proffered, the extreme sanction of striking of a party’s pleading is unwarranted (Palmenta v. Columbia University, 266 AD2d 90, 91 [1st Dept 1999]). Nor is the striking of a party’s pleading warranted merely by virtue of “imperfect compliance with discovery demands” (Commerce & Industry Insurance Company v Lib-Com, Ltd, 266 AD2d 142, 144 [1st Dept 1999])

A review of the relevant evidence submitted by defendant and discussed above, establishes that with regard to the interrogatories, plaintiff provided a response in 2018, which apparently was provided in error. Plaintiff then provided responses responsive to the defendant’s interrogatories, which this Court holds were deficient insofar as they were not sworn and the responses were provided by counsel. With regard to the deposition, contrary to plaintiff’s contention, generally a defendant has the right to depose plaintiff (CPLR § 3109 [“A party desiring to take the deposition of any person upon written questions shall serve such questions upon each party together with a notice stating the name and address of the person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and the name or descriptive title and address of the officer before whom the deposition is to be taken.”]). Moreover, as discussed above, here, where defendant’s interrogatories have yielded incomplete information, nothing in our jurisprudence bars the deposition sought by defendant.

The foregoing, specifically, plaintiff’s refusal to submit to a deposition does not demonstrate that plaintiff’s noncompliance has been willful or contumacious. To be sure, here, there has been no transgression of a court order mandating the discovery sought. Indeed, the record is bereft of any repeated yet fruitless effort by defendant to obtain the discovery sought. Notably, when plaintiff became aware that it had erroneously responded to defendant’s demand, it provided a more appropriate response, albeit one which this Court deems defective. Again, it is well settled that “striking a party’s pleading for failure to provide discovery is an extreme sanction [and] it is only warranted when the failure to disclose is willful and contumacious” (Bako at 561). Generally, willful and contumacious behavior can be readily inferred upon a party’s repeated non-compliance with court orders mandating discovery (Pryzant at 383), and only when a party adopts a pattern of willful non-compliance with discovery demands (Gutierrez at 66) and repeatedly violates discovery orders, thereby delaying the discovery process, is the striking of pleadings warranted (Moog at 491; Helms at 204). Nor is the striking of a party’s pleadings warranted merely by virtue of “imperfect compliance with discovery demands” (Commerce & Industry Insurance Company at 144).

Motion to Compel Discovery

Defendant’s motion to compel a further response to its interrogatories and to compel plaintiff to appear for a deposition is granted. As noted above, defendant has demonstrated that the response to its interrogatories is deficient and that it is entitled to a deposition.

CPLR § 3124 allows a court to compel disclosure “[i]f a person fails to respond to or [*8]comply with any request, notice, interrogatory, demand, question, or order.” Thus, when a party responds to discovery demands but provides inadequate responses, the proper remedy is a motion to compel pursuant to CPLR § 3124 as opposed to a motion to strike or preclude pursuant to CPLR § 3126 (Double Fortune Property Investors Corp. v Gordon, 55 AD3d 406, 407 [1st Dept 2008] [“Plaintiff having responded to defendant’s discovery requests, the proper course for defendant, rather than moving to strike the complaint pursuant to CPLR 3126, was first to move to compel further discovery pursuant to CPLR 3124.”]).

Here, contrary to plaintiff’s contention, it provided an inadequate response to defendant’s interrogatories and has failed to appear for a deposition to which defendant is entitled. Accordingly, this Court holds that pursuant to CPLR § 3124, plaintiff must provide the discovery sought. It is hereby

ORDERED that the Clerk vacate the Notice of Trial. It is further

ORDERED that plaintiff provide a further response to defendant’s Interrogatories consistent with this Court’s Decision and Order within 60 (sixty) days ^[FN3] of service of this Decision and Order upon it with Notice of Entry. It is further

ORDERED that plaintiff appear for a deposition at a date and time mutually convenient to all parties within 90 (ninety) days of service of this Decision and Order upon it with Notice of Entry. It is further

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

This constitutes this Court’s decision and Order.

Dated: May 25, 2020

Bronx, New York

______________________________

FIDEL E. GOMEZ, JCC

Footnotes

Footnote 1:Notably, in its motion, defendant also asserts that plaintiff improperly objected to several questions within the interrogatories. However, defendant’s wholesale failure to articulate why the objections were improper precludes this Court from ruling on that portion of the motion.

Footnote 2:General construction Law § 25-a states that “[w]hen any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day and if the period ends at a specified hour, such act may be done at or before the same hour of such next succeeding business day”)

Footnote 3:Because we are in the midst of the Covid 19 Pandemic with all of the attendant disruptions to people’s lives and indeed the Court System, the time periods for compliance with this Court’s directives must necessarily be long.

706182/16

Attorney for Plaintiff: Olga Sklyut, Esq.

Attorney for Defendant: Law Office of Jason Tenenbaum, PC

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

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

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

Standard of Review

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

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

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

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

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

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

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

No-Fault Law

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

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

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

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

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

A medical provider seeking payments under the relevant no-fault policy establishes prima facie entitlement to summary judgment with proof that it submitted a timely claim form to the defendant, proof of the fact and the amount of the loss sustained, and “proof either that the defendant [] failed to pay or deny the claim within the requisite 30-day period, or that the defendant [] issued [*3]a timely denial of claim that was conclusory, vague or without merit as a matter of law” (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A] [App Term 2011]; see, New York and Presbyt. Hosp. at 513; Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742 [2d Dept 2004]; E. Coast Psychological, P.C. v Allstate Ins. Co., 13 Misc 3d 133[A)] *1 [App Term 2006]; Mollins v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 133[A], *1 [App Term 2007]). A provider can establish the foregoing with “evidentiary proof that the prescribed statutory billing forms were mailed and received [and] that payment of no-fault benefits [is] overdue” (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]). However, an insurer raises an issue of fact sufficient to preclude summary judgment when it tenders evidence establishing a timely denial (id. at 124 [“However, in opposition, the defendant submitted admissible evidence in the form of an affidavit of an employee with knowledge of the defendant’s standard office practices or procedures designed to ensure that items were properly addressed and mailed.”]; New York and Presbyt. Hosp. at 513 [“However, in opposition to the motion, the defendant established that it had made a timely request for additional information and that it timely denied the claim within 30 days of receipt of the hospital records it had requested to verify the claim. Accordingly, the Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action.”]), or that denial within the 30 day prescribed by law was not given because such period was extended by a request for verification (Nyack Hosp. at 100 [“Here, the defendants presented evidence in opposition to the motion and in support of their cross motion demonstrating that the request for the complete inpatient hospital records mailed to the plaintiff on September 12, 2003, resulted in an extension of the 30-day statutory period.”]; New York Hosp. Med. Ctr. of Queens at 585; New York & Presbyt. Hosp. at 700).

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

[a]n applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply. The insurer shall advise the applicant in the verification request that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.

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

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

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

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

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

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

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

(11 NYCRR 65-1.1).

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

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

(id. at 560).

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

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

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

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

Defendant’s Motion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Plaintiff’s Cross-Motion

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

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

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

This constitutes this Court’s decision and Order.

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

Footnotes

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

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

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

[*1]

Civil Court of the City of New York, Bronx County, October 31, 2018

APPEARANCES OF COUNSEL

Gullo & Associates, LLC. for defendant.

Gary Tsirelman, PC for plaintiff.

Upon the testimony and evidence proffered at trial, the court hereby finds in favor of defendant and dismisses the complaint.

The instant action is for the payment of no-fault insurance benefits for medical treatment. The complaint alleges, in relevant part, the following: On May 16, 2008, assignor Sharise Davis (Davis) was involved in an automobile accident. At the time of the instant accident, Davis was covered under an automobile insurance policy issued by defendant, which provided benefits under the New York State No-Fault Law.^[FN*] Davis sought treatment from plaintiff Sunrise Acupuncture, P.C., the assignee of Davis’ no-fault benefits under defendant’s policy. Plaintiff submitted claims for medical treatment provided to Davis and defendant denied them. Based on the foregoing, pursuant to the New York State No-Fault Law and the policy, plaintiff seeks judgment in the amount of $425 plus interest.

On July 28, 2013, this court (Taylor, J.) denied defendant’s motion for summary judgment and dismissal of the complaint. The court held that defendant failed to submit admissible evidence in support of its claim that Davis was not an insured under the policy issued to the Albanos. Defendant appealed and the Appellate Term affirmed (Sunrise Acupuncture P.C. v Kemper Independence Ins. Co., 50 Misc 3d 133[A], 2016 NY Slip Op 50025[U], *1 [App Term, 1st Dept 2016] [“We sustain the denial of defendant-insurer’s motion for summary judgment. Although defendant asserted that the underlying no-fault claim is precluded by a provision of the subject insurance policy limiting coverage, upon the death of the insured, to the ‘legal representative of the deceased,’ defendant failed to tender evidentiary proof in admissible form establishing that the policy contained such a provision”]).

At trial, the parties stipulated to the admission of several documents in evidence, some of which will be discussed hereinafter. More importantly, the parties limited the court’s inquiry to one issue, namely, whether under the instant facts defendant’s insurance policy afforded coverage to Davis.

The parties submitted the insurance policy at issue (exhibit B). Said policy was issued to Ronald and America Albano. According{**62 Misc 3d at 309} to the policy, the term began on July 24, [*2]2007, and ended a year later. Per the declarations, the policy covered a 1998 Mercury and a 1980 Plymouth automobile. Section III of the policy governed coverage with respect to the foregoing vehicles. Specifically, the policy defined a “your covered auto” as “[a]ny vehicle shown in the Declaration,” and “[a]ny of the following types of vehicles on the date you become the owner . . . [including] [a] private passenger auto.” The policy further defined a “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household.” Per the policy, “ '[b]odily injury,’ means bodily harm, sickness or disease, including death that result.” “ ’Occupying’ means in, upon, getting in, on out or off.” Part B or the Medical Payments Coverage portion of the policy defined “insured” as “[y]ou or any ‘family member’ . . . [w]hile ‘occupying’ . . . a motor vehicle designed for use mainly on public roads.” Part B of the policy further stated that defendant “will pay reasonable expenses incurred for necessary medical . . . services because of ‘bodily injury’ . . . [c]aused by accident and . . . [s]ustained by an ‘insured.’ ” Section IV of the policy, titled General Policy Conditions, stated that

“[y]our rights and duties under this policy may not be assigned without our written consent. However, if a named insured shown in the Declarations dies, coverage will be provided for . . . [t]he surviving spouse if a resident in the same household at the time of death . . . [and] [t]he legal representative of the deceased person as if a named insured shown in the Declarations . . . only with respect to . . . [t]he representative’s responsibility to maintain or use ‘your covered auto.’ ”

The parties submitted two death certificates (exhibit D), which indicate that the Albanos died in June 2007, and letters testamentary (exhibit C), which establish that on January 7, 2008, Raquel Davis (Raquel) was appointed as the executor of Ronald Albano’s will. The parties submitted a notice of intention to make claim (exhibit F), which indicates that Davis made a claim to defendant for no-fault benefits arising from an accident on May 16, 2008, in which she was involved while operating the 1998 Mercury. Lastly, the parties submitted a letter dated July 14, 2008 (exhibit E) sent by defendant to Davis, wherein defendant denies coverage to Davis under the policy because the accident occurred after the Albanos died and the policy “issued to the Albanos contains a provision that {**62 Misc 3d at 310}limits coverage upon the death of the named insured to the surviving spouse or legal representative of the deceased person, but only with respect to the representative’s legal responsibility to maintain or use the vehicle scheduled on the policy.” The letter further stated that “[s]ince you are neither the legal representative nor surviving spouse of Ronald Albano, the policy will not provide you with coverage as an insured.”

Principles of contract interpretation apply equally to insurance policies (Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 143 AD3d 146, 151 [1st Dept 2016], affd 31 NY3d 131 [2018]; State of New York v American Mfrs. Mut. Ins. Co., 188 AD2d 152, 154 [3d Dept 1993]). Thus, in interpreting an insurance policy, the court must determine the rights and obligations of the parties, using the specific language of the policy itself (Gilbane Bldg. Co./TDX Constr. Corp. at 150-151 [“In this action for a judgment declaring the parties’ rights under an insurance policy, this Court must be guided by the rules of contract interpretation because (a)n insurance policy is a contract between the insurer and the insured. As a result, the extent of coverage is controlled by the relevant policy terms, not by the terms of the underlying trade contract that required the named insured to purchase coverage” (internal quotation marks and citation omitted)]; Sanabria v American Home Assur. Co., 68 NY2d 866, 868 [1986]; State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Stasack v Capital Dist. Physicians’ Health Plan, 290 AD2d 866, 866 [3d Dept 2002]; Stainless, Inc. v Employers Fire Ins. Co., 69 AD2d 27, 32-33 [1st Dept 1979]).

When the language in an insurance policy is clear and unambiguous, the interpretation of said document and the determination of the rights and obligations of the parties is a question of law to be adjudicated by the court (Kenyon v Knights Templar & Masonic Mut. Aid Assn., 122 NY 247, 254 [1890]; Stainless, Inc. v Employers Fire Ins. Co., 69 [*3]AD2d 27, 32 [1st Dept 1979], affd 49 NY2d 924 [1980]; Stasack v Capital Dist. Physicians’ Health Plan, 290 AD2d 866, 866 [3d Dept 2002]). However, if the language in the policy is ambiguous, the court can use extrinsic evidence to determine the intent of the parties to the policy and resolution of the rights and obligations of the parties is a question of fact, to be determined by the trier of fact (State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 173 [1973]; Stainless, Inc. at 32). If the extrinsic evidence{**62 Misc 3d at 311} is conclusory, failing to equivocally resolve the ambiguity in a policy, interpretation of the policy remains a question of law for the court to decide, deciding any ambiguities against the insurer (State of New York at 669; Stainless, Inc. at 32).

In interpreting an insurance policy, the language of the policy, when clear and unambiguous, must be given its plain and ordinary meaning (United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232 [1986]; Sanabria at 868). In such a case, the policy should be construed in a way “that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 5 NY3d 157, 162 [2005]; American Express Bank v Uniroyal, Inc., 164 AD2d 275, 277 [1st Dept 1990]; Fifth Ave. Exec. Staffing v Virtual Communities, Inc., 2002 NY Slip Op 50082[U], *1 [App Term, 1st Dept 2002]).

Based on the foregoing, the court finds that at the time of the accident, Davis was not an insured as defined by the policy issued by defendant to the Albanos. As such, Davis was never entitled to no-fault benefits under the instant policy.

As noted above, when interpreting coverage pursuant to an insurance policy, we do so using contract law (Gilbane Bldg. Co./TDX Constr. Corp. at 151; State at 154). Thus, when the language in an insurance policy is clear and unambiguous, the interpretation of said document and the determination of the rights and obligations of the parties thereunder is a question of law for the court (Kenyon at 254; Stainless, Inc. at 32; Stasack at 866). In interpreting an insurance policy, the language of the policy, when clear and unambiguous, must be given its plain and ordinary meaning (United States Fid. & Guar. Co. at 232; Sanabria at 868), and the policy must be construed in a way “that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Raymond Corp. at 162; American Express Bank at 277; Fifth Ave. Exec. Staffing, 2002 NY Slip Op 50082[U], *1).

Here, because it is undisputed that Davis’ accident occurred nine months after the death of the Albanos, it is clear that the demise of the Albanos triggered section IV of the policy, rendering section III of the policy inapplicable and limiting coverage to those persons listed under section IV of the policy. Specifically, upon the Albanos’ death, per the policy the only insureds were a surviving spouse and generally, the Albanos’ legal representative.{**62 Misc 3d at 312} Given that Raquel was appointed as executor of Ronald Albano’s will, Raquel was the only insured under the instant policy and the only person entitled to coverage. Thus, Davis, which as per Kemper’s letter was Raquel’s daughter, was neither a surviving spouse as defined by the policy or a legal representative of the Albanos. Thus, Davis was not an insured under the instant policy. Accordingly, defendant had no obligation to provide no-fault benefits to Davis and properly denied those claims.

Plaintiff’s reliance on section III of the instant policy to extend coverage to Davis is unavailing. While it is true that section III of the policy defines “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household,” and part B of the policy states that defendant “will pay reasonable expenses incurred for necessary medical . . . services because of ‘bodily injury’ . . . [c]aused by accident and . . . [s]ustained by an ‘insured,’ ” section III is simply inapplicable here since it clearly only applies while the Albanos were alive. Any other interpretation would render the limiting language in section IV of the policy meaningless, which would violate a central tenet of contract law—that a policy must be construed in a way “that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Raymond Corp. at 162; American Express Bank [*4]at 277; Fifth Ave. Exec. Staffing, 2002 NY Slip Op 50082[U], *1).

Moreover, even if section III were dispositive, here, the record is bereft of any evidence that Davis was an insured thereunder. To be sure, part B of the policy provided coverage for “ ’bodily injury’ . . . [c]aused by accident and . . . [s]ustained by an ‘insured.’ ” However, as noted above, an insured is, inter alia, a “family member,” meaning “a person related to you by blood, marriage or adoption who is a resident of your household.” Here, the record is bereft of any evidence establishing that Davis was related to the Albanos and that if so, she resided in their household. It is hereby ordered that the complaint be dismissed, with prejudice.

Footnotes

Footnote *:Comprehensive Motor Vehicle Insurance Reparations Act (Insurance Law § 5101 et seq.) and its implementing regulations (11 NYCRR 65-3.1 et seq.).

CV-023737-10

For Plaintiff: Marcote & Associates, P.C.

For Defendant: Freiberg, Peck & Kang, LLP

After conducting a no-fault bench trial on the above captioned matter, this Court makes the following findings and conclusions:

At the commencement of the above captioned trial, the attorneys for the respective parties entered into a Stipulation that contained documents to be relied upon by the defendant’s witness, to wit: letters, correspondence, statements, denials and an insurance policy application. Respective counsels acknowledged having examined all documents contained in the Stipulation and agreed that foundation for their introduction had been established and put into evidence, which was marked as Court Exhibit I, which contained documents marked as Exhibits A through J.

In his opening statement, plaintiff’s counsel stated that the above captioned matter involved a rescission of an automobile policy with regard to no-fault law benefits. Plaintiff’s counsel essentially was contesting whether defendant’s witness’ testimony as to the basis for the rescission of the automobile policy and the documentation contained within Court Exhibit I would be sufficient to establish a foundation for the rescission. Plaintiff’s counsel final representation was that the parties would further stipulate that the plaintiff’s claims for medical services rendered had been mailed to the defendant’s insurance company and as such, that the plaintiff established its prima facie case.

Defendant’s counsel stated that the automobile insurance policy referenced by plaintiff’s counsel was a South Carolina policy which resulted in a conflict of laws between South Carolina and New York State with respect to the rescission of the policy. Defendant’s counsel acknowledged that in establishing an automobile insurance policy rescission issued for another state, New York case law placed the burden on the defendant/insurer to establish that the rescission was actually executed, by establishing that the rescission letter was mailed and that the policy premiums were refunded to the insured.

Defendant’s counsel further argued that New York case law did not impose a burden to [*2]establish that any underlying fraud had occurred before establishing a sister state rescission. Defendant’s counsel nonetheless represented that Court Exhibit I provided some proof of the underlying fraud to which defendant’s witness, Barbara Terry, would testify to. Defendant counsel, in his opening statement, also stated that if the automobile insurance policy rescission was found to be proper then the injured party and even the third party, the plaintiff in the above captioned matter, would be precluded from obtaining any insurance benefits. Finally, counsel for the respective parties further stipulated that on November 7, 2007, the defendant insurer had mailed out a rescission letter with two (2) premium refund checks in the amounts of $16,762.76 and $1,562.00, respectively, sent to the policyholder, which the latter cashed. See Exhibit J contained in Court Exhibit I.

This Court’s review of Exhibit A attached to Court Exhibit I, reveals that the November 15, 1999, application for automobile insurance, purportedly submitted by the insured, Jerome McDowell, only lists his name as the motorist. Furthermore, in the “Applicant’s Statement-Read Before Signing” of Exhibit A, Jerome McDowell, certified that, in relevant part, “(a) all operators of my vehicle have been reported to the company and (b) my principal residence/place of vehicle garaging is in South Carolina, ten (10) or more months each year “

Further contained in the Applicant’s Statement is a representation by the insured, Jerome McDowell, that he has applied to the company ” for a policy of insurance as set forth in this application on the basis of the statements contained herein. I agree that such policy of insurance shall be null and void if such information is false, or misleading, or could materially affect acceptance of the risk by the company ” Exhibit A furthermore contains the November 15, 2006, Renewal Declarations which then added the 2000 Dodge Intrepid to the insurance policy. Exhibit A also contains as an attachment the Personal Automobile Policy- South Carolina. In Part F- General Provisions of the policy, there is a termination clause, paragraph 1, that provides that “this policy may be cancelled during the policy period as follows: iii. If the policy was obtained through willful misrepresentation, or concealment of any material fact or circumstances, or fraud.”

The policy’s termination clause in the insurance policy furthermore states in relevant part, “the statements made by you in the application are deemed to be representations. If any representation is false, misleading or materially affects the acceptance of this risk by us, by either willful misrepresentation, omission, concealment of facts or incorrect statements, this policy may be null and void from its inception, whether before or after the loss. We do not provide coverage for any insured who has made fraudulent statements or engaged in fraudulent conduct in connection with any accident or loss for which coverage is sought under this policy.”

Also contained within the insurance policy are declarations stating, in relevant part, that by accepting this policy you agree that this policy is issued upon the truth of the information provided by you. Exhibit C of Court Exhibit I contains the March 12, 2007, police accident report listing as the driver of the 2000 Dodge Intrepid, Ngozichakwuu Amadi, residing at 772 Jefferson Avenue, Brooklyn, New York, and listing the vehicle’s owner as Jerome Wallace McDowell, residing at 110 Madison Street, Olanta, South Carolina.

This Court also reviewed Exhibit G of Court Exhibit I, the May 7, 2007, tape recorded telephone interview of Garis McDowell. In said interview, Garis McDowell stated, in relevant part, the following: that he resided at 772 Jefferson Avenue, Brooklyn, New York, for the past approximately seven to eight years; that Ngozichakwuu Amadi, the operator of the 2000 Dodge Intrepid involved in the March 12, 2007, automobile accident has resided together with him for [*3]approximately twelve years and who he considers his common-law wife; that although his brother, Jerome McDowell, the insured and the documented owner of the 2000 Dodge Intrepid, gave him permission to use said vehicle, that the vehicle was kept in Brooklyn, New York, and which he used on and off for years, and that in turn, he had given Ms. Amadi permission on March 12, 2007, to drive the automobile. Garis McDowell further stated that his brother, Jerome McDowell, was aware that he, Garis McDowell, had given Ms. Amadi permission to drive the subject vehicle. Garis McDowell further stated that motor vehicles have been shared by the family. At the conclusion of the interview, Garis McDowell stated that he truthfully answered all questions asked of him and that he understood all questions asked of him.

This Court has reviewed Exhibit H, the September 26, 2007, examination under oath of the insured, Jerome McDowell. In relevant part, Jerome McDowell acknowledged that although he maintained automobile insurance, he denied ever owning the 2000 Dodge Intrepid, although it was insured on his insurance policy, that Mary McFadden, the sister of both himself and Garis McDowell, made all the arrangements to insure the motor vehicles, Jerome could not even state with certainty that he himself was the signatory on the insurance application and that his sister, Mary McFadden had his authorization to sign his name to obtain insurance. Jerome McDowell furthermore stated that as far as the 1960’s all motor vehicle purchases by various family members were placed in his mother’s name and all vehicles were placed on the same insurance policy. Jerome McDowell further stated that Garis McDowell drove the 2000 Dodge Intrepid back and forth from New York to South Carolina, never leaving it for more than three months at a time in South Carolina. Jerome McDowell also stated that he himself never gave permission to his brother Garis McDowell’s “common-law wife”, Ms. Amadi, to drive the subject vehicle as he does not even know her.

This Court then reviewed Exhibit I and Exhibit J, respectively, contained in Court Exhibit I. Exhibit I is the November 7, 2007, rescission letter by the insurer’s Senior Special Investigator, Robert Dwy. Said letter informed the insured, Jerome McDowell, in relevant part, that upon completion of the investigation into the claims, it had been determined that material misrepresentations in the procurement of the automobile insurance policy had been made by Jerome McDowell; that the insurer had issued the insurance policy based upon those misrepresentations in the application for issuance; it appearing that the insured, Jerome McDowell, insured his vehicles for other family members that were never listed on the policy and that the listed vehicles were not garaged in the State of South Carolina.

Senior Special Investigator Robert Dwy concluded his November 7, 2007, letter by stating that “in accordance with the policy terms and as a result of [the] investigation, [the] policy has been voided back to the inception. All moneys paid on [the] policy are being refunded to you. Furthermore, coverage for all claims resultant from the accident of March 12, 2007, is being denied.” Exhibit J documents the payments made to the insured, Jerome McDowell, and received by his attesting to the return of all moneys paid by him on the policy.

On November 17, 2017, a non-jury trial in the above captioned no-fault proceeding was conducted by this Court, wherein in addition to the joint submission into evidence of Court Exhibit I, the defendant insurer called New York Personal Insurance Protection Specialist Barbara Terry as a witness. Ms. Terry testified that her duties for the insurer was to handle any claims that originate for the State of New York pertaining to accidents occurring within New York State. Ms. Terry testified she was familiar with the claim having read the file and that the claim decision was to rescind the policy based on material misrepresentations and fraud. Said [*4]decision was based on the vehicle involved in the accident was not garaged in South Carolina where the policy originated from as it was garaged in New York. This information as to where the subject vehicle was garaged was obtained from statements made by the insured, Jerome McDowell (Exhibit H), and his brother, Garis McDowell (Exhibit G).

Ms. Terry furthermore testified that the insurance policy application never made any indication of Garis McDowell nor Ms. Amadi as additional drivers. Ms. Terry furthermore testified that the failure to list either Garis McDowell or Ms. Amadi as additional drivers was a misrepresentation constituting a material risk to what was insured. As such, Ms. Terry stated that the insurer would not have underwritten the particular policy or insured Jerome McDowell. Ms. Terry also testified that the information provided in the application and for which the insurer relied were misrepresentations made to defraud the insurer.

As to the involvement, if any, of Ms. Amadi pertaining to the misrepresentations made to the insurer, Ms. Terry testified that although the former was not listed as a driver on the policy, that she must have been aware of the misrepresentations on the basis of having resided for twelve years with the insured’s brother, Garis McDowell. This Court rejects Ms. Amadi’s alleged awareness as to the misrepresentation as being based on speculation.

On cross examination, Ms. Terry acknowledged that the insurer received plaintiff’s bills for acupuncture treatments rendered to Ms. Amadi. When questioned as to the insurer issuing delay and/or denial letters until the investigation was completed, Ms. Terry stated that they were sent but other than the November 7, 2007, rescission letter no such letters were introduced into evidence and defendant insurer’s attorney stipulated on the record hat no specific claim denials of any of the bills in dispute were in evidence. Ms. Terry furthermore testified that none of the claims in connection with the March 12, 2007, accident were ever paid. At the conclusion of her testimony, Ms. Terry acknowledged that no statements were made or taken of the driver, Ms. Amadi, nor was there any request that she submit to an examination under oath.

In order for this Court to render a decision, it would in the first instance have to resolve the conflict of laws between New York law and South Carolina Law. According to plaintiff’s counsel, under New York law there is no preclusion of defenses if a claim is not paid or denied within thirty days. And as stipulated by the parties on the record that once the claims in dispute were mailed to the insurance company, the plaintiff has established its prima faie case and is entitled to payment as no payment nor denial of payment was made by the insurer. In effect, the plaintiff is arguing that by mailing out the claim and with the failure of the insurer to pay the claim or dispute payment of the claim within thirty days of receipt of the claim, the insurer is strictly liable for payment under New York’s No-Fault Law.

According to the defendant’s counsel, the argument is that the applicable law to decide the case is not New York law but South Carolina law. Defense counsel argues that South Carolina law allows the rescission of the insurance policy and also allows the rescission to be made retroactively, including after the occurrence of the accident.

The case of Careplus Medical Supply, Inc., as Assignee of Luis Gomez v Selective Insurance Company of America, 25 Misc 3d 48 [App Term 2009], is instructive as it pertains to a conflict of law, the very issue presented in the case at bar relating to an insurance policy which must be resolved by the conflict of laws relevant to contracts. (see Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 319 [1994]; Matter of Allstate Ins. Co. [Stolarz—New Jersey Mftrs. Ins. Co.], 81 NY2d 219, 226 [1993). The Court of Appeals has adopted a “center of gravity” or “grouping of contacts” approach (Auten v Auten, 308 NY 155, 160 [1954]), which [*5]gives controlling effect to the law of the state that has “the most significant relationship to the transaction and the parties” (Restatement [Second] of Conflict of Laws § 188 [1]). In addition to the traditional determinative factor of the place of contracting, which should be given “heavy weight” in a grouping of contacts analysis (see Haag v Barnes, 9 NY2d 554, 560 [1961]), the places of negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties are also to be considered (see Zurich Ins. Co., 84 NY2d at 319; Restatement [Second] of Conflict of Laws § 188 [2]). The accident herein occurred in New York. The relevant insurance policy was negotiated and entered into in South Carolina by the insured who lived in South Carolina, for a vehicle which was to be garaged and registered in South Carolina. The assignor, who was driving the insured’s vehicle at the time of the accident, resided in New York.

While “strong governmental interests . . . [may] be considered” (Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d at 226), I find that governmental policy is not an overriding factor under the circumstances presented herein (see e.g. Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]). Therefore, upon the application of a “center of gravity” or “grouping of contacts” analysis, I find that the dispositive factors weigh in South Carolina’s favor and, therefore, its law should control (see e.g. Scotland v Allstate Ins. Co., 35 AD3d 584 [2006]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d at 56).

I do not see how any reasonable inference can be drawn from the record, other than it was the intent of the insured, Jerome McDowell, with the knowledge and cooperation of his brother, Garis McDowell, in making false and untrue answers to the questions asked in the insurance policy application to deliberately deceive the insurer and thereby procure the liability insurance. The intent with which misrepresentations of fact are made in the application for automobile liability insurance, may be deduced from the facts and circumstances surrounding the making of the misrepresentations. The 2000 Dodge Intrepid

This Court further credits the testimony of Ms. Terry that the insurer that had Jerome McDowell answered the questions on the insurance application truthfully the insurer would not have accepted the risk and issued the policy of insurance in question. Clearly there is a higher probability of accidents occurring in a congested metropolitan area than in a small rural area which would impact the premiums charged in the respective areas. The subject motor vehicle was never garaged in South Carolina for at least 10-months out of the calendar year and was not driven by the only listed driver, Jerome McDowell.

Defendant established, prima facie, that the underlying Florida automobile insurance policy had been properly rescinded ab initio, in accordance with Florida law, and that there was therefore no coverage available to plaintiff’s assignor. Defendant’s evidence at trial included the submission of Court Exhibit I which contained attached documents labelled Exhibits A through J and the testimony of its litigation specialist and other proof demonstrating that a rescission notice was sent to the assignor-insured and that defendant had returned all premiums paid within a reasonable time after discovery of the grounds for rescinding the policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire & Cas. Co., 675 So 2d 176, 179 [Fla 1996]; see also Hu-Nam-Nam v Infinity Ins. Co., 51 Misc 3d 130 [A], 2016 NY Slip Op 50391[U] [App Term, 2d, 11th & 13th Jud Dists 2016]).

Although the insurer neither paid nor denied the claims within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), and failed to request verification within [*6]the prescribed time frames (see, 11 NYCRR 65.15 [d] [1], [2]) resulting in the plaintiff then commencing the within action, pursuant to Insurance Law § 5106 (a), to recover its assigned no-fault billing charges the insurer’s untimely disclaimer does not preclude it from denying liability on a strict lack of coverage ground.

I am persuaded that an insurer, despite its failure to reject a claim within the 30-day period prescribed by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), may assert a lack of coverage defense premised on the fact or founded belief that the automobile policy was void ab initio for fraudulent misrepresentations made in the application for the policy. The denial of liability based upon lack of coverage within the insurance agreement, as framed in part by the litigation strategy and nature of the instant dispute, is distinguishable from disclaimer attempts based on a breach of a policy condition (see, Zappone v Home Ins. Co., supra, 55 NY2d, at 136-137; contrast, Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [decided today]). Precedent and logical analysis support the extension of the Zappone exception here. Strict compliance with the time requirements of both the statute and regulations may be obviated and the preclusion remedy rendered unavailable when denial of claims is premised on a lack of coverage.

As held by the Supreme Court of South Carolina in Government Employess Insurance Company v Chavis, 254 S.C. 507, the insurer did not have any duty or obligation to investigate the truthfulness of the insured’s statements made in his insurance application and having no prior knowledge that the insured’s statements were untruthful did not constitute a waiver and did not estop the insurer from rescinding the policy for fraudulent misrepresentation. The insurer met its burden to not only show that the insured’s statements were untrue, but that their falsity was known to him, that they were material to the risk and relied upon by the insurer, and that they were made with intent to mislead and defraud the insurer.

Rescission is not merely a termination of a contractual obligation but is the abrogation or undoing of it from the beginning which seeks to create a situation the same as if no contract ever existed. It was also established that prior to the institution of this lawsuit the insured, Jerome MsDowell, accepted a full refund of the policy premium that he had paid to the insurer.

Therefore, the above captioned lawsuit is dismissed with prejudice.

Dated: July 12, 2018
Hon. Armando Montano
Justice, Supreme Court

21843/2017E

Counsel for Plaintiff: Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.)

Counsel for Defendant: Kopelevich & Feldsherova, P.C. (David Landfair, Esq.)

The following papers numbered 1 to 6 ere read on this motion (Seq. No. __ )

Answering Affidavit and Exhibits No(s). 3, 4

Replying Affidavit and Exhibits No(s). 5, 6

Upon the foregoing papers, the plaintiff Global Liberty Insurance Company of New York (“Plaintiff”) moves for an order (1) granting Plaintiff summary judgment pursuant to CPLR 3212 against Prompt Medical Supply, Inc. (“Prompt”), ordering, adjudging, and decreeing that Prompt is not entitled to no-fault coverage for the motor vehicle accident that occurred on August 24, 2015, since defendant Rosalee Otero (“Otero”) failed to attend properly scheduled IME’s, and (2) permanently staying all Civil Court matters and no-fault arbitrations. Prompt opposes the motion.

Plaintiff provided a policy of insurance to its insured which included a no-fault endorsement providing coverage to an insured, or an eligible injured person, in an amount of at least $50,000 for all necessary expenses resulting from a motor vehicle accident. This policy was in effect on August 24, 2015. On that date, Otero was allegedly involved in a motor vehicle accident and she thereafter made claims as an eligible person under the above-referenced insurance policy. Otero specifically sought no-fault benefits from the named provider defendants, including Prompt. Otero assigned her rights to collect no-fault benefits to the provider defendants, who thereafter submitted no-fault billing to Plaintiff for the services they rendered to Otero.

On October 13, 2015, OmniMed Evaluation Services (“OmniMed”), on behalf of Plaintiff, sent Otero a letter requesting that she attend a chiropractor/acupuncture independent medical examination (“IME”) scheduled for October 26, 2015. Otero failed to appear for the duly scheduled IME. On October 26, 2015, OmniMed sent Otero a second letter requesting that she attend a chiropractor/acupuncture IME on November 9, 2015. Again, Otero failed to attend the duly scheduled IME. Plaintiff states that the first no-fault billing on this case was received from the answering defendant on October 13, 2015. Plaintiff thereafter commenced this declaratory judgment action and now moves for summary judgment.

Under New York Code of Rules and Regulations 11 (“NYCRR”), §65-1.1, the failure to appear for IMEs requested by the insurer “when, and as often as, [it] may reasonable require” is a breach of a condition precedent to coverage under a No-Fault policy. Accordingly, when the [*2]defendants’ assignor Otero failed to appear for the requested IMEs, Plaintiff had the right to deny all claims retroactively to the date of loss (see 11 NYCRR §65-3.8[c]). Otero’s non-appearance at the IMEs constitutes a failure of a condition precedent to receipt of insurance benefits for the motor vehicle accident, to any parties potentially entitled to benefits under Insurance Law §5103 or their assignees (11 NYCRR §65-1.1(a). See NY Ins. Law §5103[d] and [h]; Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept. 2011], lv. den., 17 NY3d 705 [2011]; Mapfire Ins. Co. of NY v. Manoo, 140 AD3d 468 [1st Dept. 2016]). Plaintiff’s submissions established its entitlement to summary judgment, as it provided evidence that it sent notices scheduling Otero’s IME examination on two occasions, and Otero failed to appear. Plaintiff also provided sufficient evidence that it complied with the procedures and time frames set forth in the no-fault implementing regulations (Unitrin, 82 AD3d at 560]). Plaintiff has therefore demonstrated that it is entitled to disclaim coverage to an eligible insured and to his or her assignees, retroactive to the date of loss.

In opposition to the motion, Prompt first asserts that the affidavits from Regina Abbatiello and Karin Bruford are not in admissible form. Prompt alleges that the affidavits failed to adequately show that the affiants proved their identities to the notary. However, the notary on both affidavits contains the language “sworn to before me” on a date certain. A notary public is “presumed to have acted within his or her jurisdiction and carried out his or her duties as required by law” where, as here, there is no showing to the contrary (see Collins v. AA Truck Renting Corp., 209 AD2d 363 [1st Dept. 1994]). Prompt also asserts that the captions on two of the affidavits are incorrect. However Prompt does not claim to have sustained any prejudice as a result of this error, and it was able to provide substantive opposition to this motion. “Defects, mistakes, and irregularities” may be ignored where, as here, there is no showing of prejudice (see First Wisconsin Trust Co. v. Hakiman, 237 AD2d 249, 249 [2nd Dept. 1997]).

Prompt next argues that Plaintiff failed to demonstrate that it properly scheduled the IME within 30 days of receipt of billing in accordance with 11 NYCRR §65-3.5(d). This contention is unavailing. Plaintiff has supplied an affidavit from Regina Abbatiello, a no-fault claims examiner, who stated that she has personal knowledge of Plaintiff’s office procedures and processing of no-fault claims. She asserts that, in this case, the first no-fault billing was received from the answering defendant on October 13, 2015. The first IME was scheduled for October 26, 2015, within 30 days of receipt of that billing. Contrary to Prompt’s contentions, these sworn assertions are sufficient to demonstrate Plaintiff’s compliance with the statute (compare American Transit Inc. Co. v. Longevity Med. Supply, Inc., 131 AD3d 841, 842 [1st Dept. 2015][plaintiff failed to establish that it complied with 30-day requirement where it provided “no evidence in affidavit form or any other form” indicating the date upon which plaintiff received the prescribed verification form from defendant]). Prompt failed to submit any admissible evidence refuting the allegations in the Abbatiello affidavit.

Prompt contends that Plaintiff has failed to establish the proper mailing of the IME scheduling letters. Prompt alleges that the affidavit from Karin Bruford of OmniMed is insufficient because she fails to allege that she had personal knowledge of the standard used to mail scheduling letters, and she fails to provide substantive information regarding how mailing addresses are verified or how postage is affixed to mailings, or how Plaintiff delivers mail into the custody of USPS.

After review of the challenged affidavit and accompanying submissions, this Court finds that Plaintiff has sufficiently carried its burden of proof. It order to raise the presumption of proper mailing, a movant may either provide “proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (see American Transit Ins. Co. v. Lucas, 111 AD3d 423, 424 [1st Dept. 2013], citing Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 [2nd Dept. 2001]). In this case, the Bruford affidavit competently explains the office procedure for affixing postage and states that clerical staff in her office transfer mail to the exclusive possession of the United States Postal [*3]Service. She affirms that the IME letters in this case were sent to Otero’s address, which was 230 New Lots Ave., 6D, Brooklyn, New York 11207. Plaintiff has also supplied mailing ledgers date-stamped and signed by a United States Postal Service employee. Each of these ledgers indicates that mailings were sent to Otero and her attorney’s office. This evidence, when considered alongside the Bruford affidavit, sufficiently carried Plaintiff’s burden of demonstrating that the IME letters were properly mailed (see American Transit Ins. Co. v. Lucas, 111 AD3d 423, 424; Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 [testimony, certificate of mailing, and signed and stamped mailing ledger provided proof of actual mailing]). Furthermore, the foregoing evidence establishes that the mailings were sent to Otero’s proper address. While Plaintiff’s counsel and Abbattiello state that Otero’s address was “230 Lotts Avenue, Apt. 4D, Brooklyn, NY 11207,” Otero’s application for no-fault benefits sent to Plaintiff lists her address as “230 New Lots Avenue, Apt. 6D, Brooklyn, NY 11207” which is the address the mailings were sent to. There is no evidence that Plaintiff was ever made aware of the different address that Otero provided to Prompt in her assignment of benefits form, which post-dates the date of the two mailings.

Finally, Prompt contends that the affidavit from Plaintiff’s IME physician is insufficient to establish that Otero failed to appear for duly-scheduled appointments. This Court disagrees. Plaintiff’s physician Dr. Antionette Perrie states that she was personally present at her office on the IME dates, but the claimant failed to appear. The doctor notes that it was her office’s practice to note a claimant’s non-appearance, and she can say with certainty that claimant failed to appear on the appointment dates. The foregoing contentions are sufficient to establish the basis for the doctor’s personal knowledge that claimant-Otero failed to appear for duly-scheduled IME appointments (see American Transit Ins. Co. v. Lucas, 111 AD3d 423, 424 [1st Dept. 2013]). The physician affidavit is substantially similar to the one presented in support of a motion for summary judgment in American Transit Ins. Co. v. Clark, New York County Index No. 152876/2012 (see Ronald G. Lafranchi Affidavit dated April 7, 2013; Exhibit 4 to plaintiff’s motion for a default judgment/summary judgment). On appeal, while the First Department determined that the plaintiff’s motion should have been denied on other grounds, the Court did find that the plaintiff had adequately established that the claimant failed to appear for duly-scheduled IME’s (131 AD3d 840 [1st Dept. 2015]). Furthermore, in American Tr. Ins. Co. v. Solorzano, the plaintiff’s IME doctor submitted an affidavit that only stated, in pertinent part, “[claimant] was scheduled to appear for a Medical Examination on Monday, February 28, 2011 and Monday, March 14, 2011 pursuant to requests made by Independent Physical Exam Referrals, Inc. The claimant failed to comply with the requests and did not appear on those dates” (see Dr. Cirino G. Sesto Affidavit, dated May 9, 2011; Exhibit 4 to plaintiff’s motion for a default judgment/summary judgment; Bronx County Index No. 307769/2011). The First Department found that this affidavit, along with plaintiff’s other submissions, was sufficient to demonstrate that the claimant failed to appear for duly scheduled IME’s (108 AD3d 449 [1st Dept. 2013). In this case, this Court similarly finds that the affidavits of Plaintiff’s IME physician and from Ms. Bruford are sufficient to demonstrate that claimant Otero failed to appear for her scheduled IMEs.

Accordingly, it is hereby,

ORDERED, that Plaintiff’s motion for summary judgment against defendant Prompt is granted, and it is further,

ORDERED and DECLARED, that Prompt is not entitled to no-fault coverage for the subject motor vehicle accident that occurred on August 24, 2015, since claimant Otero failed to attend properly scheduled IMEs, and it is further,

ORDERED, that any related Civil Court matters and no-fault arbitrations are permanently stayed.

This constitutes the Decision and Order of this Court.

Dated: June 15, 2018

[*4]Hon.___________

J.S.C.

27526/2017E

Counsel for Petitioner: Jason Tenenbaum, Esq.

The following papers numbered 1 to _2_ Read on this motion, VACATE ARBITRATION AWARD Noticed on September 14, 2017 and duly submitted on the Motion Calendar of September 14, 2017:

PAPERS NUMBERED

Notice of Motion- Exhibits and Affidavits Annexed 1,2

Upon the foregoing papers, the petitioner Maidstone Insurance Company (“Petitioner”) seeks an order (1) pursuant to CPLR 7511, vacating the award of the master arbitrator that affirmed an award of the lower arbitrator finding that the respondent Medical Records Retrieval Inc., d/b/a Kamara Medical Supplies, a/a/o Sandra Pereira (“Respondent”) was entitled to compensation for services performed (a) from March 12, 2016 through April 22, 2016, in the sum of $3,750.00; (b) from March 12, 2016 until April 1, 2016, in the sum of $1,323.00; and (c) from March 12, 2016 in the sum of $19.50 and $34.22, and entering judgment in favor of Petitioner vacating the award, and remanding the matter to a different arbitrator to compute the amount due and owing under the Medicaid fee schedule, which would be 1/6 times the wholesale price of the CPM and CTU, divided by 30, times the amount of days the items were rented, or $1031.27; (2) such other and further relief as this Court may deem just, proper, and equitable, and (3) costs and disbursements as taxed by the clerk, including Petitioner’s $325 master arbitration fee. The petition is unopposed.

In cases of compulsory arbitration, judicial review of a master arbitrator’s award is restricted to the grounds set forth in Article 75 of the CPLR (see Matter of Petrofsky, 54 NY2d [*2]207, 210-11 [1981]). The “governing consideration is ‘whether the decision was rational or had a plausible basis'” (Curley v. State Farm Ins. Co., 269 AD2d 240, 242 [1st Dept. 2000], citing Petrofsky at 211). “Vacatur of an arbitrator’s award is statutorily limited to occasions involving fraud, corruption or bias… or occasions where the arbitrator exceeded his or her power, or so imperfectly executed it so that a final and definite award was not made” (id., citing CPLR 7511[b]; Lopez 375 v. New York City Health and Hospitals Corp., 257 AD2d 530 [1st Dept. 1999]). The party seeking vacatur must prove that the award was irrational, in violation of public policy, or in excess of the arbitrator’s powers (id., citing In re Travelers Insurance Company v. Job, 239 AD2d 289 [1st Dept. 1997]). Furthermore, “‘an arbitrator’s award will not be set side even though the arbitrator misconstrues or disregards [the proof] or misapplies substantive rules of law, unless it violates strong public policy or is totally irrational'” (id., quoting Sims v. Siegelson, 246 AD2d 374, 376 [1st Dept. 1998]). While an arbitration award may be deemed arbitrary and capricious where it does not follow “clear precedent,” (Matter of State Ins. Fund [Country-Wide Ins. Co.], 276 AD2d 432, [1st Dept. 2000]), vacatur should not be granted if the decision had a reasonable hypothesis and the controlling issue is “unsettled and subject to conflicting court decisions” (see Motor Vehicle Accident Indemnification Corp. v. Aetna Casualty and Surety Co., 89 NY2d 214, 224 [1996]).

In this matter, although the petition is unopposed, it must be denied because Petitioner has failed to carry its initial burden of demonstrating that vacatur of the arbitration awards is warranted. Petitioner received billing for a CPM knee machine (Code E0935) in the sum of $3,570.00, representing 42 days of usage (March 12, 2016 – April 22, 2016), at the billed rate of $85.00 per day, and billing for a water circulating pump (Code E0236) in the sum of $1,323.00, representing 21 days of usage (March 12, 2016 – April 1, 2016), billed at a rate of $125.00 per day. Petitioner was billed for other services as well, but it only disputes the billing rate for the aforementioned two items. Petitioner asserted that this billing was in excess of the applicable fee schedule. At the arbitration hearing, and in the instant petition, Petitioner argued that the applicable fee schedule for the above-referenced durable medical equipment (DME) is limited to 1/6th of the acquisition cost of the equipment on a monthly basis. In support of this position, Petitioner relied primarily on what it characterizes are “opinion letters” from the New York State Department of Health (“DOH”) and the Workers’ Compensation Board (“WCB”), as well as a 2016 Queens County Supreme Court decision. Petitioner also submits “frequently asked questions” the were published on the WCB website which states that the reimbursement rate of CPM (E0935) rental shall not exceed the amount specified in the Durable Medical Equipment Manual – Policy Guidelines – see section on “Rental of Durable Medical Equipment.” Those policy guidelines state – “for DME items that have been assigned a Maximum Reimbursement Amount (MRA), the rental fee is 10%^[FN1] of the listed MRA. For DME items that do not have a MRA, the rental fee is calculated at 10% of the equipment provider’s acquisition cost.” Petitioner argued that its documentation established that where, as here, the DME items have not been assigned a Maximum Reimbursement Amount (“MRA”), the rental fee is calculated at 1/6th of the equipment provider’s acquisition cost.

The lower arbitrator considered these arguments, and specifically found that the DME at issue – the CPM and the CTU – were not listed in the Medicaid DME fee schedule, and no specific amount had been set by the DOH for the monthly rental of those items. While the arbitrator understood the calculations made by Petitioners’ professional coder, he noted that coder’s methodology was flawed because the DOH had indicated in a letter dated June 8, 2016, that according to 12 NYCRR section 442.2(g), the Medicaid Policy Guidelines and Medical Policy Manual are not to be included in the Medicaid DME fee schedule except to the extent that such documents contain the Medicaid DME fee schedule. The lower arbitrator thus rejected Petitioner’s fee schedule defense, and found that the billing was proper in accordance with 12 NYCRR 442.2. The master arbitrator affirmed these findings, holding that the arbitration interpretation of the evidence and applicable law pertaining to this fee schedule dispute was not arbitrary, capricious, or contrary to law.

After review of the instant petition, this Court finds that the arbitration awards were supported by a rational and plausible basis and were not contrary to clear precedent. 12 NYCRR 442.2(b) provides that “[t]he maximum permissible monthly charge for such equipment, supplies and services provided on a rental basis shall not exceed the lower of the monthly rental charge to the general public or the price determined by the New York State Department of Health area office. The total accumulated monthly rental charges shall not exceed the fee amount allowed under the Medicaid fee schedule” (emphasis added). Petitioner’s submissions fail to establish that the New York DOH area office has set or determined a price for the DME at issue. The June 8, 2016 letter from the DOH senior attorney established that the earlier July 2014 letter was clearly not an instance where DOH made such a determination. Furthermore, the correspondence from the WCB employee did not constitute an official “interpretation of a regulation” or an “informal opinion” of the agency’s regulations (compare Matter of Elcor Health Servs. v. Novello, 100 NY2d 273, 280 [2003]; A.M. Medical Services, P.C. v. Progressive Cas. Ins. Co., 101 AD3d 53, 64 [2nd Dept. 2012]). Contrary to Petitioners’ contentions, the arbitrator also had a rational basis for determining that the Medicaid policy guidelines are inapplicable to these facts (see 12 NYCRR 442.2[g]). Even if the Medicaid guidelines are applicable here, as noted in the WCB “FAQ,” they only state that the “1/6th” (10% as of July 1, 2016) calculation of rental fee applies where the DME items “do not have a MRA.” It is rational to conclude that this calculation only applies to DME items that are listed in the fee schedule but are not assigned a MRA value. Where, as here, the DME items are not listed at all on the Medicaid fee schedule, the Department of Health has not determined a monthly rental charge. Under these circumstances, the applicable monthly rental charge will be the rate charged to the general public (12 NYCRR §442.2[b]). Petitioner argues that its contentions further the cost containment policies behind the no-fault system, however, engaging in such an analysis goes beyond the narrow issue that is before this Court (see Curley v. State Farm Ins. Co., 269 AD2d 240, 242).

Accordingly, it is hereby

ORDERED, that the petition is denied, and the Master Arbitration Award is confirmed (CPLR 7511[e]).

This constitutes the Decision and Order of this Court.

Dated: April 4, 2018
Hon. Mary Ann Brigantti, J.S.C.

Footnotes

Footnote 1:According to Petitioners’ professional coder, the Medicaid Policy Guidelines changed the reimbursement formula from 1/6th to 10% of the acquisition cost on July 1, 2016.