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

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

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

Defendant’s Cross-Motion for Summary Judgment

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

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

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

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

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received” (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009]). If the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of receipt of the proof of claim (11 NYCRR 65—3.5[b]; see New York Univ. Hosp. Tisch Inst. v Govt. Employees Ins. Co., 117 AD3d 1012, 1014 [2d Dept 2014]).

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

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

Mailing and Follow Up for Verification Requests

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

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

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

Outstanding Verifications

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

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

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

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

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

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

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

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

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

Plaintiff’s Motion to Dismiss Affirmative Defenses

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

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

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

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

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

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

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

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

This constitutes the decision and order of the Court.

This Honorable Court, upon due deliberation at Trial held on September 15, 2025, Decides and Orders as follows:

Defendant abandoned its medical necessity defense at the commencement of trial and opted to proceed on a fee schedule defense. Court order sending instant case to trial, did not address fee schedule as a defense for trial. Rather, court order addressed medical necessity and outstanding verifications as issues of fact for trial. Further, Defendant’s denied motion for summary judgment papers failed to make arguments as to a fee schedule defense. Nevertheless, at trial, Defendant argued that it is unnecessary since fee schedule is a non-precludable defense which can be brought up at anytime up to and including at trial, without issuing denial pursuant to the 30-Day Denial Rule (11 NYCRR § 65-3.8). Defendant relied on a specific case in the application of the effective April 1, 2013 11 NYCRR § 65-3.8 (g) (1) amendment (E. Coast Acupuncture, P.C. v Hereford Ins. Co., 51 Misc 3d 441, 442 [Civ Ct, Kings County 2016]). By a lower limited trial court of concurrent jurisdiction, East Coast held, in an unopposed motion for summary judgment, 11 NYCRR § 65-3.8 (g) (1) amendment rendered fee schedule as a non-precludable defense not required to comply with the 30-Day Denial Rule, citing several other cases likewise by courts of concurrent jurisdiction.

“Although the amendment does not change plaintiff’s prima facie burden, I find that the new language establishes that a fee schedule defense, for services after April 1, 2013, is not precluded if it is not asserted within 30 days of receipt of the claim. The regulation appears to be a carve-out from 11 NYCRR 65-3.8 (a) (1), which states that HN5 ‘[n]o-[*2]fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart.’ Conversely, 11 NYCRR 65-3.8 (g) (1) imposes no deadline on the insurance company’s determination. At least two courts in the First Department concur with this court’s interpretation of 11 NYCRR 65-3.8 (g) (1) (see Saddle Brook Surgicenter, LLC v All State Ins. Co., 48 Misc 3d 336, 344-345, 8 NYS3d 875 [Civ Ct, Bronx County 2015]; Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85, 87, 25 NYS3d 521, 2015 NY Misc. LEXIS 3636, 2015 WL 5894683, at *2 [App Term, 1st Dept 2015]).

“Based on this interpretation of HN6 11 NYCRR 65-3.8 (g) (1), defendant may assert in this action a defense that plaintiff’s claim exceeds the applicable fee schedule” (E. Coast Acupuncture, P.C. v Hereford Ins. Co., 51 Misc 3d 441, 443 [Civ Ct, Kings County 2016]).

This Court agrees in part with the holding that the amendment did not change plaintiff’s well established prima facie burden citing Viviane Etienne Med. Care v Country-Wide Ins. Co. (25 NY3d 498, 510 [2015]). This Court however holds contrary interpretation of 11 NYCRR 65-3.8 (g) (1), that it does not render fee schedule defense as a non-precludable defense not required to comply with the 30-Day Denial Rule.

“(1) Proof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances:

“(i) when the claimed medical services were not provided to an injured party; or

“(ii) for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated thereunder for services rendered by medical providers” (11 NYCRR § 65-3.8).

It is quite well established, the court as the third branch of government should not be engaged in judicial activism by legislating from the Bench in encroaching upon the first branch of government, the legislature. Rather, judicial restraint is to be applied in statutory interpretation. Particularly, where interpretation not previously ruled upon by appellate court, notwithstanding varying statutory interpretations by lower limited courts of concurrent of jurisdiction, which are not binding.^[FN1] The court is to interpret the natural plain language of the law, as well as legislative intent deduced from the legislative history and consider the comprehensive context of the totality [*3]of the entire text of the statute in tandem with the amendment at issue and if any related predated case law precedents (Am. Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 239 AD3d 1 [2d Dept 2025]). The legislative intent and history of the 2013 amendment codified as 11 NYCRR § 65-3.8 (g) (1) is quite very clear as to its cost management goal balancing the equities of both the medical providers as plaintiffs and the defendant insurers: “To combat no-fault fraud while also accelerating the resolution of no-fault claims.”^[FN2] .

This Court in interpreting the natural plain language of the law, which may be open to contrary interpretations, bolstered by its legislative history and comprehensive analysis of the entire statute in relation to the amendment does not hold that fee schedule is a non-precludable defense. Although the word “precluded” was used in the comments as a concern, it appears in context to the balancing of the equities of both the medical providers and insurers by mandating that only the disputed portion of the fee schedule is to be withheld by the insurer. ^[FN3] Moreover, if legislature intended with this amendment to render fee schedule defense as non-precludable, as had been done previously for the coverage defense, it would have in plain language stated so specifically. The legislature did not do so.

“(e) If an insurer has determined that benefits are not payable for any of the following reasons:

(1) no coverage on the date of accident;

(2) circumstances of the accident not covered by no-fault; or

(3) statutory exclusions pursuant to section 5103(b) of the Insurance Law; it shall notify the applicant within 10 business days after such determination on a prescribed denial of claim form, specifying the reasons for the denial. Failure by an insurer to notify the applicant of its denial of the claim within the 10-business-day period after its determination shall not preclude the insurer from asserting a defense to the claim which is based upon the reasons for such denial” (11 NYCRR § 65-3.8).

For the foregoing reasons, Defendant conceded no denial for fee schedule defense was provided pursuant to 11 NYCRR § 65-3.8 and therefore failed to put on any defense whatsoever, upon which, Plaintiff moved for Directed Verdict, which was Granted. Ordered, Judgment in favor of Plaintiff in the amount of $2,600.00 plus statutory interest, attorney’s fees costs and disbursements.

This constitutes the decision and order of This Honorable Court.

“Based on case law, two central issues have arisen in situations where an applicant for benefits bills for services in excess of the mandated fee schedule or for services that were never provided. In both instances, courts have ruled that an insurer that fails to timely deny a claim is precluded from asserting as a defense the fact that the provider overbilled or fraudulently billed for services never rendered. As a result, consumers have their benefits unjustly reduced.

“Insurers support the Superintendent’s attempt to remedy instances when services are overcharged or not provided, and several also believe such a remedy should extend to other reasons for denial of claim. Attorneys representing applicants for benefits do not object to the Superintendent’s attempt to remedy overcharges and phantom billing, but some are concerned that the draft amendment would result in the denial of a claim in its entirety when the applicant has billed in excess of the mandated fee schedule, not just to the extent of the excess.

“In order to protect consumers from unjust depletion of benefits, the proposed amendment provides that proof of the fact and amount of loss sustained shall not be deemed to be received by an insurer when the applicant for benefits has billed in excess of the mandated fee schedule and/or for services not rendered. This provision will protect consumers from these fraudulent or abusive practices. Additionally, to absolve the fears of plaintiff attorneys, only the excess portion of an excessive bill is not due, not the entire bill.”]

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

Upon review of the foregoing cited papers and after oral argument, Defendant’s Summary Judgment Motion (“motion sequence #3”) is DENIED.

In this action, Plaintiff 21st Century Pharmacy, Inc. (hereinafter “21st Century” or “Plaintiff”) seeks reimbursement of No-Fault benefits from Defendant State Farm Mutual Automobile Ins. Co. (hereinafter “State Farm” or “Defendant”) in the total amount of $1,529.00 for services rendered to its assignor, Aquiles Nunez. Defendant filed a timely answer to the complaint. Pursuant to CPLR § 3212, Defendant now moves for an order granting summary judgment. Defendant argues that Plaintiff’s complaint must be dismissed because Plaintiff’s [*2]assignor failed to appear for noticed Examinations Under Oath (“EUO’s”). Plaintiff opposes and argues that Defendant’s motion is untimely without “good cause” shown and must be denied regardless of the issues being raised.

Plaintiff states that they filed their Notice of Trial on August 4, 2020 and under CPLR § 3212(a), Defendant was required to move for summary judgment within 120-days. Defendant filed the motion on September 21, 2022, approximately 778-days later. Moreover, Plaintiff argues that Defendant has failed to make a showing of “good cause” for the delay that would allow the Court to consider an extension. In further opposition, Plaintiff proffers that the Court should not consider Defendant’s “good cause” rationale, as it was only raised for the first time in their reply papers.

Defendant, in their reply, claims that they were unaware that a Notice of Trial had been filed as there was no indication in the Court System ^[FN1] . Defendant argues that “good cause” is shown where there is a reasonable excuse for the delay, there is merit to the action and there is the absence of prejudice. Defendant maintains that they have satisfied all three elements and therefore, the Court should grant the extension, allow the summary judgment to be considered and ultimately granted.

The Court will address the merits of Plaintiff’s opposition and Defendant’s reply as it pertains to the timeliness of the instant motion. A determination on this issue must be resolved before addressing the merits of the summary judgment motion, as the Court will first need to grant an extension for the motion to be considered. Pursuant to CPLR § 3212:

“Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion 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][emphasis added]). In Brill v City of New York, the Court of Appeals established that “good cause in CPLR 3212(a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy” (Brill v City of New York, 2 NY3d 648, 652, 814 NE2d 431, 781 NYS2d 261 [2004]).

Defendant filed the instant motion on or about September 21, 2022. Based on the court records, Plaintiff filed their Notice of Trial on or about August 4, 2020. Defendant argues that they have established good cause for the delay and relies on the ruling in Adika v Dramatinos, 74 AD3d 848, 904 NYS2d 461 (2d Dept 2010). However, there are significant distinguishing facts. In Adika, the summary judgment motion was filed five days after the 120-day deadline. Here, Defendant filed their motion for summary judgment motion more than two years after the Notice of Trial was filed. Additionally, in Adika, “the New York State Unified Court System’s public [*3]Web site ^[FN2] incorrectly stated that the note of issue was filed five days after it was in fact filed” (Adika, 74 AD3d at 849). In the instant case, Defendant relies on the Court system website and eLaw. It should be noted that the Defendant submitted a case summary from October 2, 2021 that allegedly did not reflect that Plaintiff filed a Notice of Trial. In any event, the instant motion was filed almost a year after this review of the Court System’s website. In Defendant’s more recent review of the case (March 22, 2022), Counsel only relied on eLaw ^[FN3] and failed to refer to the Court System website. The Court concludes that Defendant did not use due diligence in reviewing the status of the case prior to filing their summary judgment motion.

In addition, the substantive body of Defendant’s motion failed to include the request for an extension or explain their “good cause” arguments for their delay. Defendant’s summary judgment motion only addressed the merits of the Plaintiff’s failure to appear for EUO’s. The “good cause” arguments were raised for the first time in Defendant’s reply. As such, Plaintiff did not have an opportunity to adequately oppose the new arguments and relief requested in a sur-reply (see Matter of Harleysville Ins. v Rosario, 17 AD3d 677, 792 N.Y.S.2d 912 [2d Dept 2005]).

Defendant’s motion for summary judgment (motion sequence #3) is DENIED. This matter is set down for a bench trial on November 14, 2025, at 9:30AM in Part 15.

Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:

Upon the foregoing cited papers, pursuant to CPLR §3212 (g), the Decision and Order on Defendant’s Motion for Summary Judgment is as follows:

Plaintiff proffered an affidavit, hereinafter referred to as Kuperman Affidavit, as a corroborating exhibit in opposition to Defendant’s Motion for Summary Judgment in a No-Fault case. The Kuperman Affidavit was offered to attest that all verification requests were timely responded to in rebuttal upon the shifting of the burden to Plaintiff to establish a triable issue of fact defeating Defendant’s judgment as a matter of law. Defendant did not object to the admissibility of the Kuperman Affidavit in its Reply to Plaintiff’s opposition. Rather, Defendant exhaustively and substantively argued against the contents and statements contained therein as sworn under oath truths. Defendant exhaustively availed itself of its full and fair opportunity to challenge the Kuperman Affidavit. However, it was at oral argument where Defendant first objected to the Kuperman Affidavit as being defective in form and thus inadmissible. The notarial acknowledgment contained the proper statutory stamp and statutory language dated 4th Day of February 2021 (CPLR 2106 pre — 1/1/2024 Amendment). Defendant argued however, [*2]that the signature line above “Notary Public” written in script clearly and unequivocally failed to bear the notary’s signature and rather upon which was written the word “February” (Kuperman Affidavit, Plaintiff’s Exhibit A NYSCEF #14). Defendant therefore argued that the Kuperman Affidavit was inadmissible and could not be considered in the decision-making analysis since it was not duly signed with the name of the notary. Plaintiff counsel conducting its oral argument was the named notary public on the notarial stamp. Plaintiff did not argue that Defendant had waived its right to object to the form of the Kuperman Affidavit pursuant to CPLR 2001. Nor did Plaintiff argue that it was a Scrivener’s error to be disregarded as a mere technical defect or curable upon application for leave of Court to correct (CPLR 2001; KSP Constr., LLC v LV Prop. Two, LLC, 224 AD3d 58, 60 [1st Dept 2024]). Rather, Plaintiff’s counsel countered that the written “February” in and of itself is his written signature. Plaintiff’s counsel further stated that he is the attorney at law notary public who signed the Kuperman Affidavit as “February”, which is his signature.^[FN1] Succinctly, Plaintiff’s counsel as the notary public argues that his signature is whatever he says it is and he is stating that he handwrote in script “February” above the notary public line and it is his signature thereby rendering the Kuperman Affidavit not defective and therefore admissible. This Court therefore ordered memoranda of law, inter alia, on the Question: What is a signature?

The quite ordinary task of signing with a uniquely scripted flourish of an individualized signature ^[FN2] , whether for the pleasantries of a thank you note, the solemnity of a Will, or the gravitas of legally binding documents in commerce, is generally taken for granted until consequences of its unlawful reproduction. From its ancient beginnings, methods of individualized personal identification and authentication had taken many forms.^[FN3] However, archeologically the oldest first known signature in the form of a stamped name on a clay tablet [*3]by the signatory ^[FN4] was in 3000BC. Although the scripted signature had been in use for centuries, it was legally codified into English law in 1677 by the enactment of the Statute of Frauds, which was also adopted by the American colonies at the time. Thereby mandating enforceable contracts shall be in writing and bear the signature ^[FN5] of the party to be legally bound as validation of the obligations contained therein. The signature has been defined as: “1a: the act of signing one’s name to something; 1b: the name of a person written with his or her own hand;”^[FN6] “The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.” (NY CLS Gen Const § 46). “A signature is made by use of any name, including any trade or assumed name, upon an instrument, or by any word or mark used in lieu of a written signature” (NY CLS UCC § 3-401[2]). Although having its origins in ancient times and still recognized for the untrained, ill, or disabled is the signature by mark, “an indication usually in the presence of witnesses by a distinctive sign or mark (such as an X) of acquiescence in or assent to the content of a document by one unable to write”^[FN7] “The most important feature of a signature is that it reflect the intent of the signatory (People v Rodriguez, 50 Misc 3d 1223[A], 2016 NY Slip Op 50248[U] [Crim Ct, Queens County 2016], citing People v Lo Pinto, 27 AD2d 63 [3d Dept 1966]). To that end, courts have routinely upheld various forms of markings as a valid signature” (id. citing In re Mack’s Will, 21 AD2d 205 [3d Dept 1964] [it is immaterial how a person signs his name or adopts his signature); Mohawk Airlines, Inc. v Peach, 81 Misc 2d 211 [Sup Ct, Oneida County 1974] [typewritten initials qualify as a signature]; Brooklyn City R.R. Co. v City of New York, 139 Misc. 691, 248 NYS 196 [1930] [printed, typewritten or lithographed signature held valid so long as adopted as such).

Although the intent of the principal signatory to the substance of the document may be an element as to whether an adopted marking is indeed the signature of the principal signatory, not [*4]so for the notary public. The probing into the intent of the notary public’s signature in authenticating the signature of the principal signatory is antithetical to the legislative purpose of the notary public laws. The Notary public laws’ legislative purpose is to provide certitude of authentication by a governmental official licensed notary public. Although New York Law states that the notary stamp as the official statement of authority is required to include the name in black ink, it does not specifically state that a notary’s signature must be the name of the notary public, nor shall it be as affixed upon its oath of office as filed in the county clerk’s office. However, the “American Association of Notaries always recommends using your official, handwritten signature, exactly as it appears on your oath of office.”^[FN8] Thus for certitude of authentication as well as for an enhanced fraud deterrent, the notary public’s signature, whatever form it may take should be consistent with the signature as affixed upon the oath of office filed with the licensing county clerk’s office as an industry standard.^[FN9]

“In all the courts within this state the certificate of a notary public, over the signature of the notary public, shall be received as presumptive evidence of the facts contained in such certificate; provided, that any person interested as a party to a suit may contradict, by other evidence, the certificate of a notary public” (NY CLS Exec § 137). “A notary public who is duly licensed as an attorney and counsellor at law in this state may substitute the words ‘Attorney and Counsellor at Law’ for the words ‘Notary Public'”^[FN10] (id.; see NY CLS Exec § 135). Further,

“The notary public’s electronic signature is deemed to be reliable if the standards which have been approved through regulation by the secretary of state have been met. Such regulations shall include, but not be limited to, the requirements that such electronic signature be: (i) unique to the notary public; (ii) capable of independent verification; (iii) retained under the notary public’s sole control; (iv) attached to the electronic record; and (v) linked to the data in such a manner that any subsequent alterations to the underlying document are detectable and may invalidate the electronic notarial act. ”

(NY CLS Exec § 135-c 5 [b]). Although not specifically defined within the statutory language, it may be deduced that the notary’s signature is required to be unique, capable of independent [*5]verification and not an easily alterable nor reproducible representation yet consistent with the signature affixed upon the oath of office provided to the licensing County Clerk in which “notary public’s certificate of official character is filed” (NY CLS Exec § 137).

In this instant matter, Plaintiff counsel’s argument that his signature is whatever he says it is, is indeed consistent with statutory and case law for the lay person principal signatory, although such inconsistency may be problematic in personal transactions. Not so, for Plaintiff counsel’s signature as the notary public of the Kuperman Affidavit. His notary public signature cannot be fungible from one moment in time to another nor from one document to another. Rather, it must be reliably consistent with his unique, capable of independent verification and not easily alterable nor reproducible signature as affixed to his notarial oath of office filed in the Richmond County Clerk’s Office, pursuant to the legislative intent, purpose and the industry standards (Plaintiff’s Exhibit A, NYSCEF document #14). Of note, Plaintiff counsel as the notary public is also the attorney signatory to the Statement of Authorization for Electronic Filing of which his signature affixed thereto is not “February” (NYSCEF document #15). Nevertheless, Plaintiff counsel’s claim at oral argument that “February” as affixed in the Kuperman Affidavit is his signature is herein credited.^[FN11] Nevertheless, based upon the totality of the circumstances herein, This Court irrefutably finds that “February” is not his non-fungible notarial signature affixed to his notarial oath of office filed in the Richmond County Clerk’s Office. Therefore, This Court finds that the Kuperman Affidavit is defective in form for the failure of the notary public to have affixed his signature consistent with his signature that is affixed to his oath of office filed in the Richmond County Clerk’s Office.

Nevertheless, such a defect in form is not fatal and may be rehabilitated within the discretion of the court. It has been held that where the notarial signature was omitted from a document it is considered a technical defect, where the defect is not jurisdictional in nature and where there is no undue nor substantial prejudice to a substantial right, then said defect may be disregarded or curable by subsequent affidavit: “Contrary to the defendants’ contention, the Supreme Court properly considered the expert affidavit submitted by the plaintiffs on that issue, since the notary’s failure to sign the jurat was a technical defect which could be disregarded in the absence of substantial prejudice to the defendants” (see CPLR 2001; Carter v Grenadier Realty, 83 AD3d 640, 642 [2d Dept 2011]) citing Baluchinsky v General Motors Corp., 248 AD2d 574, 575, 670 NYS2d 536 [1998]; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700, 700, 468 NYS2d 125 [1983]). “[T]he court disregarded Ms. Kim’s affidavit because of two technical defects: (1) the notary’s signature on the affidavit was illegible; and (2) there is no indication what date in April 1998 the document was notarized” (Seoulbank, NY Agency v D&J Export & Import Corp., 270 AD2d 193, 194 [1st Dept 2000]) citing Baluchinsky v GMC, 248 AD2d 574, 575 [2d Dept 1998]; Supreme Auto. Mfg. Corp. v Cont. Cas. Co., 97 AD2d 700 [1st Dept 1983]; see also, Pasqualini v Tedesco, 248 AD2d 604 [2d Dept 1998]; Lane Crawford Jewelry Ctr. v Han, 222 AD2d 214 [1st Dept 1995]). “Given the lack of prejudice to a substantial right of the defendant, the Supreme Court should have disregarded the defect in the affidavit of the plaintiff’s expert and should have considered the affidavit in opposition to the defendant’s motion (see, CPLR 2001; Baluchinsky at 575, citing Supreme Automotive; see also, [*6]Lauer v Rapp, 190 AD2d 778 [2d Dept 1993]). “[T]he single defect in the search warrant application is that the jurat was not signed. The jurat is, however, ‘simply evidence of the fact that the oath was properly taken before a duly authorized officer. It is no part of the oath’, and its absence is a defect curable by subsequent affidavits or testimony” (People v Zimmer, 112 AD2d 500, 501 [3d Dept 1985], citing People ex rel. Fifth Ave. & 37th St. Corp. v Miller, 261 AD 550 [1st Dept 1941]; see, Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700). “We reject plaintiff’s contention that Supreme Court erred in permitting defendant owners to correct, in reply, the defects in Kellam’s original affidavit neither signed nor notarized; however, defendant owners submitted a signed and notarized affidavit from Kellam in reply” (KSP Constr., LLC v LV Prop. Two, LLC, 224 AD3d 58, 66-67 [1st Dept 2024]). “The notary’s failure to sign the investigator’s affidavit is the type of defect which a court may permit to be corrected upon such terms as are just or, if a substantial right of a party is not prejudiced, disregard” (CPLR 2001; Supreme Automotive at 700 citing People ex rel. Fifth Ave. & 37th St. Corp. at 553-554). Herein, Defendant duly availed itself of the opportunity to full and fair exhaustive challenge to the Kuperman Affidavit in its Reply yet failed to object as to its inadmissibility in its form of notarization and therefore it cannot be found that Defendant is unduly prejudiced by its consideration. Moreover, it is found that Defendant has not been deprived of a substantial right and therefore further not prejudiced, such that this defect in the notarial signature is held as disregarded. Further, Defendant waived its right to object to the defect in form pursuant to CPLR § 2001. The Kuperman Affidavit is hereby ruled admissible and is being considered. Defendants have satisfied its burden for judgment as a matter of law. However, upon the shifting of the burden, Plaintiff has satisfied its burden in rebuttal establishing a scintilla of a triable issue of fact as to the Outstanding Verification Requests.

For the foregoing reasons, the answer to the Question as to what is a signature? A signature is whatever the signatory says it is. However, a notarial signature must be consistent with the signature affixed upon the oath of office filed with the licensing county clerk’s office.

Defendant’s Motion for Summary Judgment is Granted to the extent that Defendant has been found to have timely issued its Denials and the triable issue of fact is the Outstanding Verification Requests.

This Constitutes the Decision and Order of This Honorable Court.

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:

Upon the foregoing cited papers, the decision on Defendant’s Motion for Summary Judgment is as follows:

Plaintiff, FIRST STOP P.T., P.C. (hereafter “Plaintiff” or “First Stop”), as assignee of Sandy Molina (hereafter “Assignor”), commenced this action against the defendant, GEICO INSURANCE COMPANY (hereinafter, “Defendant”), to recover assigned first-party No-Fault insurance benefits for medical treatment provided to the Assignor pursuant to an automobile insurance policy issued by the Defendant.

Currently before the Court is Defendant’s motion seeking (i) an order pursuant to CPLR §3212 to grant summary judgment to the Defendant on the grounds that Plaintiff failed to provide GEICO with response to written demands for verification requested pursuant to the N.YS. Insurance Department regulation. (11 N.Y.C.R.R. §65-3.5).

The Court finds the following facts relevant to the decision in this matter.

The Defendant received a bill on May 23, 2023 for treatment rendered by the Plaintiff to [*2]the Assignor on April 14, 2023 in the amount of $614.00. On June 6, 2023 the Defendant requested the Plaintiff to appear for an “examination under oath (hereafter referred to as “EUO”) to take place on July 18, 2023, which was eventually rescheduled to August 29, 2023.

In the same letter making the EUO request dated June 6, 2023, the Defendant asked the Plaintiff to produce the following documents no later than seven days prior to the EUO:

1. “Sign in sheets, treatment notes, evaluation and reevaluation reports, and referrals from other healthcare providers to the extent not already provided;

2. Documents evidencing ownership of First Stop at the time of treatment for which you seek payment, by one or more licensed professionals, including but not limited to a copy of the certificate of incorporation, receipts for filing, stock certificates and the stock ledger for the professional corporation;

3. A list of the individuals who provide health care services on behalf of First Stop, licensing documentation for those individuals, and documents identifying the relationship between each individual and First Stop (i.e. W2s, 1099s, and/or K-1s);

4. Documents relating to the income and expenses of First Stop, including but not limited to payroll tax returns, corporate tax returns, financial statements, general ledgers, and bank statements for the past 12 months; and

5. Documents, contracts and agreements (including proofs of payments thereunder) relating to the relationship between First Stop and any entity or individual that (i) leases space and/or equipment to or First Stop or (ii) provides management, marketing, consulting, administrative, mailing, billing or collection services to First Stop.” (June 6, 2023 letter from Anuj Kundnani from GEICO to First Stop PT PV, including any typographical errors.)

Both sides agree that the Plaintiff appeared for the EUO on August 29, 2024. Then on September 1, 2023 the Defendant’s attorney sent a follow-up letter to the Plaintiff demanding the following documentation:

1. “Copies of all leases between First Stop and primary leaseholders, as well as proof of payment made thereunder the time period of January 1, 2023 to present regarding the following locations (14 addresses listed)… If there are no written leases, rent amounts at each location and names of doctors or clinics who serves as primary lease holder for First Stop;

2. A complete list of employees and individuals who provide or have provided services on behalf of First Stop, documents identifying the relationship between each individual and First Stop, including all W-2s, W-4s, W-9s, 1099s, K-a forms; and documentation identifying the compensation for these individuals, including quarterly payroll returns;

3. All licenses and certificates for each and every healthcare professional, including physical therapists, and technicians, who provide or have provided services on behalf of First Stop, including, but not limited to: (i) Mohamed Afify; (ii) Waleed Abdelrohman, (iii) “Dennis”;

4. All Billing agreements and paperwork, and proof of payment thereunder relating to billing (copies of the front and back of checks), between First Stop and (i) RMA Billing and Consulting; and (ii) Billing Experts Inc.;

5. All Functional Capacity Evaluation referral forms from treating providers for patients listed in Exhibit ‘A’;

6. All documentation relating to the employment status for patients listed in exhibit ‘A’; and

7. Copies of any materials disseminated by First Stop on behalf of its practice, including Flyers or business cards.”

The Defendant issued a second letter dated September 18, 2023 requesting verification of the same information requested in the September 1, 2023 letter. Then a follow-up letter was issued requesting the same information again on October 24, 2023.

The Plaintiff responded by a letter from their attorney dated December 28, 2023 in which the attorney raised objections to the requests, and then allegedly provided responses to the requests as follows:

1. In response to Defendant’s verification request #1 in the September 1, 2023 letter the Plaintiff responded:

“Please see Exhibit I and Exhibit 2” (The Court notes, Exhibit I attached to the September 1, 2023 letter included with the motion contains only three (3) leases for 160-59 Rockway Blvd., Jamaica, NY 11434; 1251 Ralph Avenue, Brooklyn NY, 11236; and 146 Empire Blvd., Brooklyn NY 11225, which were attached to the motion. Exhibit 2 contains the front and back of checks from First Stop PT PC made payable to different vendors some of which are labeled as “rent.”)

2. In response to Defendant’s verification request #2 in the September 1, 2023 letter the Plaintiff responded:

“Please see Exhibit 3.” (The Court notes, Exhibit 3, attached to the September 1, 2023 letter included with the motion, contains a document labeled “Payroll Register Report.”)

3. In response to Defendant’s verification request #3 in the September 1, 2023 letter the Plaintiff responded: “Please see Exhibit 4.” (The Court notes, Exhibit 4, attached to the September 1, 2023 letter included with the motion, contains documents labeled as licensing and registration certificates from the NYS Department of Education Department, and an attendance certificate from a medical company.)

4. In response to Defendant’s verification request #4 in the September 1, 2023 letter the Plaintiff responded:

“Please see Exhibit 5 and Exhibit 2.” (The Court notes, Exhibit 5, attached to the September 1, 2023 letter included with the motion, contains marketing material and Exhibit 2 is the cancelled checks referred to above.)

5. In response to Defendant’s verification request #5 in the September 1, 2023 letter the Plaintiff responded:

“Overbroad and irrelevant…” (The Court notes that no Exhibits were attached or referred to in response to this verification request.)

6. In response to Defendant’s verification request #6 in the September 1, 2023 letter the Plaintiff responded:

“Objection: Vague, overbroad and irrelevant….” (The Court notes that no Exhibits were attached or referred to in response to this verification request.)

7. In response to Defendant’s verification request #7 in the September 1, 2023 letter the Plaintiff responded:

“Please see Exhibit 6.” (The Court notes that Exhibit 6 was not included in the documents attached to the motion with the December 28, 2023 letter from the Plaintiff’s attorney.)

By a NF-IO Form dated January 25, 2024, the Defendant denied payment of the bill giving the reason for denial as “Payment is denied. You have failed to comply without verification request of 9/18/2023 within 120 days of such request or provide us with written proof providing reasonable justification for your failure to comply with the verification request.”

The Plaintiff instituted this action by a summons and complaint filed June 20, 2024. The Defendant filed an answer with the Court on July 30, 2024. The Defendant filed this motion for summary judgment on September 11, 2024. The Plaintiff filed opposition to the motion on November 11, 2024, and a reply was filed on December 5, 2024. The parties argued the motion on December 19, 2024 along with motions for summary judgment in actions between the same parties in NYC Civil Court Index Numbers CV-734903-24/RI, CV-734948-24/RI, CV-735025-24/RI. The Court reserved decision on all of these motions.

The claim procedure for payments pursuant to a New York automobile insurance policy (hereafter referred to as a “No-Fault” policy) are set forth in detail by the regulations of the NYS Insurance Department in the New York Codes, Rules and Regulations (NYCRR) Title 11, Chapter III, Subchapter B, Part 65, Subpart 65-3 (hereafter referred to as 11 NYCRR §65-3 et. seq.). Section 65-3.5 sets forth the particulars of the claim procedure. Paragraphs (a) and (b) of that section provide:

“(a) Within 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS form NF-2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed the verification forms it will require prior to payment of the initial claim.

(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 form. Requests by an insurer for additional verification need not be made on any prescribed or particular form… 11 NYCRR §65-3.5(a-b).

Pursuant to this section, the “initial verification request” made by the insurance carrier is to direct an applicant, who notifies the carrier of a claim, to file the specifics of the claim on the designated form. The Superintendent provides the forms for the claim (NF-2 and NF-3). (11 NYCRR §65-3.5 [a]) The “subsequent” verification request must be made in 15 business days for any additional information required, however, the response to this request does not have to be on any particular form. (11 NYCRR §65-3.5[b]) The regulations require a “follow-up” verification request if there is no response to the subsequent verification request within thirty days. (11 NYCRR §65-3.6[b]) However, the follow-up request does not toll the time to issue the denial. The claim need not be denied until timely verification is provided. (11 NYCRR §65-3.8)

The regulations do not provide for a fourth or “supplemental” verification request after the response to the “subsequent” verification request is received. While the regulations do not preclude such a request, the time to file any denial of claim is not tolled by such a fourth request. If it did, this verification process would be endless, contrary to the public policy of swiftly addressing the payment of the bills. (LMK Psychological Services, PC, v. State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]).

However, the regulations are clear that the insurance carrier is entitled to receive proper proof of claim made in the initial and subsequent verification requests. (11 NYCRR §65-3.8). Likewise, the Court of Appeals is clear that the insurance carrier is entitled to delay or deny payments to an unlicensed or fraudulently licensed health care provider. (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). The Courts have permitted the insurance carrier to delay payments of invoices to investigate such unlicensed or fraudulent behavior within the time constraints provided by the regulations.

In this instance, the “subsequent” verification request was made by the letter of June 6, 2023 which outlined the items the Defendant sought to be produced at, or seven days before, the EUO. The EUO was held on August 29, 2023 and by the letter dated September 1, 2023 the Defendant’s attorney notified the Plaintiff that two of the items requested in the June 6, 2023 letter were not supplied by the responses in the EUO, namely:

(3) A list of the individuals who provide health care services on behalf of First Stop, licensing documentation for those individuals, and documents identifying the relationship between each individual and First Stop (i.e. W-2s, 1099s, and/or K-1s);

(5) Documents, contracts and agreements (including proofs of payments thereunder) relating to the relationship between First Stop and any entity or individual that (i) leases space and/or equipment to or First Stop or (ii) provides management, marketing, consulting, administrative, mailing, billing or collection services to First Stop.”

(1) “Copies of all leases between First Stop and primary leaseholders. . .”

(2) “All licenses and certificates for each and every healthcare professional, including physical therapists, and technicians, who provide or have provided services on behalf of First Stop, . . . . .”

The Plaintiff submitted a response to the verification request by a letter dated December 28, 2023 that included three leases, copies of checks to vendors, and licensing certificates for the medical providers. The Defendant issued a denial of the claim (NF-10) on January 25, 2024 alleging the Defendant failed to comply with the verification request. The Plaintiff contends that it did comply by its response on December 28, 2023.

The issue raised is whether the Plaintiff’s response to the verification request made by its December 28, 2023 letter with attachments satisfied the demand of the “subsequent” verification request issued June 6, 2023.

In this instance, the subsequent verification request was timely made and issued simultaneously with the request for the EUO. The Defendant’s time to pay or deny the claims was tolled by the EUO scheduling letter. 11 NYCRR §65-3.5(b).

However, that toll does not apply to the time to request the verification. In Burke Physical Therapy, P.C. v State Farm Mutual Automobile Ins. Co. 209 N.Y.S.3d 712 [Second Dept, 2nd, 11th & 13th J.D, 2024]) the Court opined that:

” . . . the regulations do not provide that a toll of the time to pay or deny a claim created by timely additional verification request also grants an insurer additional opportunities to make requests for verification that would otherwise be untimely. (Neptune Med. Care, P.C. v. Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 N.Y Slip op 51220[U]; see O & M Med. P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U], indeed, an original request for additional verification made more than 30 days after receipt of a prescribed verification form i.e., an NF-3 form or NF-4 form, is a nullity as to that claim, regardless of any toll of the time to pay or deny the claim that might be in effect. ” Burke Physical Therapy, P.C. v State Farm Mutual Auto. Ins. Co., 209 N.Y.S.3d 712, at 714-715, [App. Term, Second Dept., 2nd, 11th, 13th J.D. [2024].)

By the letter of September 1, 2024 the Defendant notified the Plaintiff that some of the verification information that was originally requested in the June 6, 2023 letter was still outstanding. That same September 1, 2023 letter also asked for new verification information that was not previously requested in the June 6, 2023 verification request. The new information requested is made more than 15 business days after the receipt of the prescribed initial verification form and therefore is a nullity. (Burke Physical Therapy, P.C v State Farm Mutual Automobile Ins. Co., 209 N.Y.S.3d 712). The Plaintiff is not required to respond to the request for the new information requested in the September 1, 2023 letter, but was still responsible for those items requested in the Defendant’s June 6, 2023 letter that were not provided at the EUO as identified by Defendant’s September 1, 2023 letter.

The Plaintiff’s December 28, 2023 response provided documents allegedly in response to the June verification request. The regulations only require the response provide all the information under the Plaintiff’s “control or possession or written proof providing reasonable justification for the failure to comply.” (11 NYCRR 65-3.5[o]) The issue of whether the Plaintiff’s verification response satisfies the June 6, 2023 demand is a material issue of fact for trial. If it is determined that the December 28, 2023 letter was responsive to the verification request, then the January 24, 2024 denial would be in error. Therefore, a trial is necessary in this matter.

Accordingly, the Court rules the summary judgment motion is DENIED and the matter is referred to trial on the issue of whether the December 28, 2023 response to the June 6, 2023 subsequent verification request satisfied the request.

This is the decision and order of the Court.

Upon the foregoing cited papers and after oral argument, Plaintiff’s Motion to Dismiss Affirmative Defenses and Advanced Motion to Compel Discovery; and Defendant’s Cross-Motion for Summary Judgment are Decided hereby as follows:

Defendant’s Cross-Motion for Summary Judgment is GRANTED; and Plaintiff’s Motions to Dismiss Affirmative Defenses and to Compel Discovery are DENIED as moot.

This Court finds that Defendant demonstrated Plaintiff failed to comply with the timely verification requests issued pursuant to 11 NYCRR §65-3.5(o) within 120 days, and that Plaintiff failed to demonstrate that it provided the requested verification or set forth a reasonable justification for its failure to comply with Defendant’s verification requests, as required pursuant to 11 NYCRR §65-3.5(o). Defendant submitted admissible evidence that it had not received the requested documentary verification. In Plaintiff’s first affirmation in opposition submitted, Doc. 10 on NYSCEF, the affidavit of Plaintiff’s owner merely states he mailed the requested verification on 5/16/19 to the address designated by the Defendant on the verification requests “to the extent such response was proper and, in [his] possession,” and without any corroborating documentary proof of compliance with the verification requests. Rendering, the affidavit insufficient to meet its burden (see NYSCEF Doc. 20 paragraph 6). This language has been found by Appellate Term 2nd Department to be “insufficient to raise a triable issue of fact.” In paragraph 8 of that same affidavit, Plaintiff attests that he “responded to and mailed all requested documentation that was “proper and which Plaintiff had access to” (see Doc. 20 paragraph 8). Furthering the insufficiency of this affidavit to raise a triable issue of fact pursuant to the Appellate Term 2nd Department. Therefore, Plaintiff failed to demonstrate that it had provided responses to the requested verifications or alternatively, failed to set forth a reasonable justification for its failure to comply with Defendant’s verification requests (see Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143 [A] [App. Term 2nd Dept. July 1, 2022]).

In Plaintiff’s Amended Opposition filed fifteen (15) months after Defendant served its Reply [*2]affirmation, Doc. 27 on NYSCEF, the amended affidavit of Plaintiff’s owner merely states that he mailed the requested verification responses on 5/16/19 to the address designated by Defendant on its verification requests. Yet, in paragraph 8 of that same affidavit, Plaintiff’s affiant still qualifies his response in attesting that he “responded to and mailed all requested documentation that was ‘proper and which Plaintiff had access to'”, and yet still without corroborating documentary proof of compliance with the verification requests. Once again, rendering the amended affidavit insufficient to meet its burden (see Doc. 27 paragraph 8). And yet again, furthering the insufficiency of this amended affidavit to raise a triable issue of fact pursuant to the Appellate Term 2nd Department. Therefore again, Plaintiff failed to demonstrate that it had provided responses to the requested verifications or alternatively, failed to set forth a reasonable justification for its failure to comply with Defendant’s verification requests (see Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143 [A] [App. Term 2nd Dept. July 1, 2022]; Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 77 Misc 3d 129 [A] [App. Term 2nd Dept. December 9, 2022]; Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 2023 NY Slip Op. 50794 [U] [App. Term 2nd Dept. July 21, 2023]).

Plaintiff submits 197 pages of correspondences from Plaintiff to Defendant objecting to the verification requests stating that State Farm was not entitled to the information requested and unilaterally determined the verification requests to be a nullity (see Doc. 37 of Plaintiff’s Amended Opposition). This issue was specifically addressed in a recent Appellate Term 2nd decision dated February 14, 2025. In Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 2025 NY Slip Op 50195(U) (App. Term 2nd Dept.), The Court held, “Contrary to plaintiff’s further contention, it was not improper for defendant to seek, during the claim verification stage, information – such as management agreements, W-2 forms, business-related bank records and lease agreements — for the purpose of determining whether plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16[2] [12]; State Farm Mut. Aut. Ins. Co. v. Mallela, 4NY3d 313, 827 NE2d 758, 794 NYS 2d 700 [2005]).” Moreover, the Court further held, “[a]s plaintiff objected to the verification requests claiming they were nullities, the record establishes that plaintiff did not “provide within 120 calendar days from the date of the initial request either all such verification under [plaintiff’s] control or possession or written proof providing reasonable justification for the failure to comply’ (11 NYCRR 65-3.5 [o]). Consequently, the arguments raised on appeal lack merit” (id. at [*3] [*4], 2025 NY Slip Op 50195 [U] [App. Term 2nd]).

Further, This Court rejects Plaintiff’s alternative argument that the voluminous correspondences of objections rendering Defendant’s verification requests as nullities, nevertheless sets forth a reasonable justification for its failure to respond thereby establishing a triable issue of fact (see Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 2025 NY Slip Op 50195 [U] [App Term 2nd Feb. 14, 2025]; City Care Acupuncture, P.C. & Jamaica Wellness Med., P.C., a/a/o Sergheiciuc v. Allstate Prop. & Cas. Ins. Co., No. 2015-1846 Q C, 2017 WL 6543604, at *[1] [App. Term, 2d, 11th, & 13th Jud. Dists. 2017]; Remedy Chiropractic, P.C. v Nationwide Ins. 2022 NY Slip Op 50935 [U] [App. Term 2nd Dept September 23, 2022]). Defendant has met its burden for summary judgment as a matter of law. Plaintiff fails to establish a scintilla of a triable issue of fact in rebuttal upon the shifting of the burden.JL.

Therefore, Plaintiff’s Complaint is hereby DISMISSED with PREJUDICE.

This Constitutes the Decision and Order of The Court.

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

Defendant moves pursuant to CPLR 3212 for an Order granting summary judgment based on the Assignor, Ismael Sejour’s failure to attend an examination under oath. On a motion for summary judgment, the moving party must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. CPLR § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039 (2016); Kershaw v. Hosp. for Special Surgery, 114 AD3d 75 (1st Dept. 2013). Thus, on this summary judgment motion, Defendant has the burden of demonstrating that there are no issues of fact regarding whether proper notices of the examination under oath were mailed to the Assignor, and that the Assignor failed to appear for the examination under oath. Bath Ortho Supply Inc. v New York Central Mut. Fire Ins. Co., 2012 NY Slip Op 50271(U), (App Term, 1st Dept 2002).

In order to meet this burden, the movant may submit an affidavit by someone with personal knowledge of the facts establishing that the Assignor was properly noticed and failed to appear. CPLR 3212(b). In 2024, the Legislature eased the affidavit requirement by permitting the submission of an affirmation instead. CPLR 2106. In support of the motion, Defendant submits the affirmation and affidavits of its attorney Mr. Allan S. Hollander, President of Hollander Legal Group, PC (Attorney) to establish that the notices directing the Assignor to appear were properly mailed and that the Assignor failed to appear. The Attorney’s affirmation and affidavits use many of the boilerplate language tailored to meet the statutory requirements such as: that the mailings were created and maintained in the ordinary course of business, that Defendant has the duty to create and mail the documents in the ordinary course of business, that [*2]the affidavit is made from personal knowledge, that the record is made at or near the time of the alleged transaction, and/or that the affiant has personal knowledge of the facts because they oversee the department or the office procedures. However, it is not sufficient to merely recite buzz words or boilerplate language tailored to meet evidentiary requirements. The affiant must demonstrate that the information alleged is obtained by personal knowledge of the facts from the affiant’s personal observation, personal experience, or personal involvement in the process. See: 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:18; and John H. Wigmore, Evidence in Trials at Common Law § 657 (Chadbourn rev. 1979)(personal knowledge is the impression derived through the exercise of one’s senses, not from the report of others).

Although the Attorney states that he oversees all the office procedures, he does not establish personal knowledge from observation or involvement with the procedures. The Attorney also states that his knowledge is “based upon a review of the file maintained by this office,” and that “counsel for” Defendant or “an individual with personal knowledge of the information therein” created and mailed the notices. Thus, contradicting the allegation of personal knowledge. Moreover, the Attorney states that the notices were mailed via the United States Post Office by certified mail, return receipt requested and first-class mail. However, the notices attached to the motion indicate that the notices were only sent via first-class mail. The Attorney also fails to attach proof of certified mail, which would have met the burden. The contradictory affidavit and notices raise issues of fact as to whether the notices were properly mailed and whether the Attorney has personal knowledge.

Alternatively, the movant may also meet its burden by providing proof of the actual mailings, such as affidavits/affirmations of mailing or post office receipts with attendant signatures, or by establishing the presumption of mailing and receipt by providing proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. U.S. Bank N.A. v Pickering-Robinson, 197 AD3d 757 (2021) quoting Citibank, N.A. v Conti-Scheurer, 172 AD3d 17 (2019); see Caliber Home Loans, Inc. v Weinstein, 197 AD3d 1232 (2021). In order for the presumption of mailing and receipt to arise, the standard mailing procedures followed by insurers in the regular course of business must be geared so as to ensure the likelihood that a notice is always properly addressed and mailed. Nassau Insurance Company v Diane M. Murray et al., 46 NY2d 828 (1978). This is the standard of proof that is often misapplied as Defendant insurers often recite boiler plate language describing their office procedures but do not establish that the office procedures ensure that the notices are always properly addressed and mailed.

As proof of its standard office procedure, Defendant submits the affidavit of Lenny H. LaFace, (LaFace) a Senior No-Fault Examiner located in Long Beach, New York. LaFace states that he is the custodian of the records, that the records were created by a person with knowledge of the facts or were made from information transmitted by a person with knowledge of the facts, that the records were made near the time of the transaction, that the records were created and kept in the regular course of business, and that he has personal knowledge of Defendant’s regular business practices relating to the handling of No-Fault claims. LaFace also describes the procedures for mailing notices which involves a chain of custody of at least two employees and coordination with separate offices when examinations under oath, verification requests, or independent examinations are requested. However, LaFace’s affidavit merely recites hearsay information and boilerplate language tailored to meet mailing requirements, and while the procedures described may increase the likelihood that notices are properly addressed and mailed, [*3]the procedures described fall short of the required standard to “ensure the likelihood that a notice is always properly addressed and mailed.” Thus, the mere recitation of boiler plate language describing standard office procedures is not sufficient where the office procedures do not ensure the likelihood that a notice is always properly addressed and mailed, particularly where the affiant is not personally involved in the process and the notices are handled by more than one person. One way to meet the burden and to establish that the office procedures “ensure the likelihood that the notice is always properly addressed and mailed” is to have each employee electronically log or document the chain of custody of the notice with their name, date and time each notice is handled along with a copy of the log. The affirmation/affidavit submitted on the motion should include said information, instead of generically reciting that an employee followed the office procedures. While this appears to add extra steps to the process, it is a necessary step as the grant of summary judgment deprives a litigant of their day in court and the burden to eliminate all triable issues is a very high burden which may not be based upon hearsay information, generic or boilerplate language.

Therefore, the court finds that Defendant failed to meet the burden of demonstrating the absence of any material issues of fact with respect to whether the Defendant mailed to the Assignor the notices to appear for the examination under oath. However, Defendant met its burden in establishing that the Assignor failed to appear at the examination under oath by submitting a certified transcript by a non-interested reporter and the Attorney’s affidavit of personal knowledge establishing the Assignor’s nonappearance.

Accordingly, Defendant’s motion is granted only to the extent of granting that portion of the motion finding that the Assignor failed to appear at an examination under oath and leaving the issue of the proper mailing of the notice to appear to be determined at trial.

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

Defendant moves pursuant to CPLR 3212 for an Order granting summary judgment based on the Assignor, Ismael Sejour’s failure to attend an examination under oath. On a motion for summary judgment, the moving party must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. CPLR § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039 (2016); Kershaw v. Hosp. for Special Surgery, 114 AD3d 75 (1st Dept. 2013). Thus, on this summary judgment motion, Defendant has the burden of demonstrating that there are no issues of fact regarding whether proper notices of the examination under oath were mailed to the Assignor, and that the Assignor failed to appear for the examination under oath. Bath Ortho Supply Inc. v New York Central Mut. Fire Ins. Co., 2012 NY Slip Op 50271(U), (App Term, 1st Dept 2002).

In order to meet this burden, the movant may submit an affidavit by someone with personal knowledge of the facts establishing that the Assignor was properly noticed and failed to appear. CPLR 3212(b). In 2024, the Legislature eased the affidavit requirement by permitting the submission of an affirmation instead. CPLR 2106. In support of the motion, Defendant submits the affirmation and affidavits of its attorney Mr. Allan S. Hollander, President of Hollander Legal Group, PC (Attorney) to establish that the notices directing the Assignor to appear were properly mailed and that the Assignor failed to appear. The Attorney’s affirmation and affidavits use many of the boilerplate language tailored to meet the statutory requirements such as: that the mailings were created and maintained in the ordinary course of business, that Defendant has the duty to create and mail the documents in the ordinary course of business, that [*2]the affidavit is made from personal knowledge, that the record is made at or near the time of the alleged transaction, and/or that the affiant has personal knowledge of the facts because they oversee the department or the office procedures. However, it is not sufficient to merely recite buzz words or boilerplate language tailored to meet evidentiary requirements. The affiant must demonstrate that the information alleged is obtained by personal knowledge of the facts from the affiant’s personal observation, personal experience, or personal involvement in the process. See: 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:18; and John H. Wigmore, Evidence in Trials at Common Law § 657 (Chadbourn rev. 1979)(personal knowledge is the impression derived through the exercise of one’s senses, not from the report of others).

Although the Attorney states that he oversees all the office procedures, he does not establish personal knowledge from observation or involvement with the procedures. The Attorney also states that his knowledge is “based upon a review of the file maintained by this office,” and that “counsel for” Defendant or “an individual with personal knowledge of the information therein” created and mailed the notices. Thus, contradicting the allegation of personal knowledge. Moreover, the Attorney states that the notices were mailed via the United States Post Office by certified mail, return receipt requested and first-class mail. However, the notices attached to the motion indicate that the notices were only sent via first-class mail. The Attorney also fails to attach proof of certified mail, which would have met the burden. The contradictory affidavit and notices raise issues of fact as to whether the notices were properly mailed and whether the Attorney has personal knowledge.

Alternatively, the movant may also meet its burden by providing proof of the actual mailings, such as affidavits/affirmations of mailing or post office receipts with attendant signatures, or by establishing the presumption of mailing and receipt by providing proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. U.S. Bank N.A. v Pickering-Robinson, 197 AD3d 757 (2021) quoting Citibank, N.A. v Conti-Scheurer, 172 AD3d 17 (2019); see Caliber Home Loans, Inc. v Weinstein, 197 AD3d 1232 (2021). In order for the presumption of mailing and receipt to arise, the standard mailing procedures followed by insurers in the regular course of business must be geared so as to ensure the likelihood that a notice is always properly addressed and mailed. Nassau Insurance Company v Diane M. Murray et al., 46 NY2d 828 (1978). This is the standard of proof that is often misapplied as Defendant insurers often recite boiler plate language describing their office procedures but do not establish that the office procedures ensure that the notices are always properly addressed and mailed.

As proof of its standard office procedure, Defendant submits the affidavit of Lenny H. LaFace, (LaFace) a Senior No-Fault Examiner located in Long Beach, New York. LaFace states that he is the custodian of the records, that the records were created by a person with knowledge of the facts or were made from information transmitted by a person with knowledge of the facts, that the records were made near the time of the transaction, that the records were created and kept in the regular course of business, and that he has personal knowledge of Defendant’s regular business practices relating to the handling of No-Fault claims. LaFace also describes the procedures for mailing notices which involves a chain of custody of at least two employees and coordination with separate offices when examinations under oath, verification requests, or independent examinations are requested. However, LaFace’s affidavit merely recites hearsay information and boilerplate language tailored to meet mailing requirements, and while the procedures described may increase the likelihood that notices are properly addressed and mailed, [*3]the procedures described fall short of the required standard to “ensure the likelihood that a notice is always properly addressed and mailed.” Thus, the mere recitation of boiler plate language describing standard office procedures is not sufficient where the office procedures do not ensure the likelihood that a notice is always properly addressed and mailed, particularly where the affiant is not personally involved in the process and the notices are handled by more than one person. One way to meet the burden and to establish that the office procedures “ensure the likelihood that the notice is always properly addressed and mailed” is to have each employee electronically log or document the chain of custody of the notice with their name, date and time each notice is handled along with a copy of the log. The affirmation/affidavit submitted on the motion should include said information, instead of generically reciting that an employee followed the office procedures. While this appears to add extra steps to the process, it is a necessary step as the grant of summary judgment deprives a litigant of their day in court and the burden to eliminate all triable issues is a very high burden which may not be based upon hearsay information, generic or boilerplate language.

Therefore, the court finds that Defendant failed to meet the burden of demonstrating the absence of any material issues of fact with respect to whether the Defendant mailed to the Assignor the notices to appear for the examination under oath. However, Defendant met its burden in establishing that the Assignor failed to appear at the examination under oath by submitting a certified transcript by a non-interested reporter and the Attorney’s affidavit of personal knowledge establishing the Assignor’s nonappearance.

Accordingly, Defendant’s motion is granted only to the extent of granting that portion of the motion finding that the Assignor failed to appear at an examination under oath and leaving the issue of the proper mailing of the notice to appear to be determined at trial.

The Decision//Order on the Defendant’s Motion to reargue the motion for summary Judgment is as follows:

The plaintiff, MEDICAL SUPPLY OF NY SERVICES, INC. (the “Plaintiff”), as assignee of FELIX JUMA DIAZ (the “Assignor”) commenced this action against STATE FARM MUTUAL AUTO INS. CO. (the “Defendant”) to recover assigned first-party No-Fault benefits for medical treatment provided to the Assignor on May 17, 2023. The Defendant moved for summary judgment based upon Assignor’s failure to attend two duly scheduled Examinations Under Oath (“EUOs”) on September 8, 2023. On March 27, 2024, this Court denied the Defendant’s motion, finding there was an issue of fact regarding the Assignor’s failure to attend the EUOs. The Notice of Entry for the decision and order was filed April 2, 2024.

The Defendant filed the instant motion on May 2, 2024, for leave to reargue the motion for summary judgment on the basis that the Court overlooked or misapprehended matters of fact or law in its prior decision. Plaintiff filed opposition on October 21, 2024. Arguments were heard on December 19, 2024, and decision was reserved.

This Court held in the March 27, 2024 decision that the Defendant did not meet its burden of proof to establish that the Assignor failed to appear for the two scheduled EUOs. This Court held that the Defendant did not submit an affidavit or affirmation from an attorney present to conduct the EUO, only transcripts of the EUO.

Here, Defendant alleges that this Court misapprehended facts or law when issuing the Order dated March 27, 2024, because the Court overlooked the affidavit of Richard Aitken, Esq. In his affidavit, Mr. Aitken states that “[o]n December 7, 2022, FELIX JUMA DIAZ failed to appear for the examination under oath. Accordingly, I, a partner with the law firm of Bruno, Gerbino & Soriano, LLP placed a default statement on the record.”

A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include [*2]any matters of fact not offered on the prior motion. CPLR §2221.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” (Midfirst Bank v. Agho, 121 AD3d 343, (Sup. Ct., App Div., 2nd Dept., August 13, 2014), citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]) “The submitted evidence in support of summary judgment must be in a form admissible at trial.” (Midfirst Bank v. Agho, 121 AD3d 343, [2014]) emphasis added.

An affidavit/affirmation from an attorney attesting the nonappearance of a plaintiff at an examination under oath (EUO) is of no probative value if it lacks personal knowledge of the plaintiff’s nonappearance. (Alrof, Inc. v. Safeco Nat. Ins. Co., 39 Misc 3d 130[A] [App. Term 2013].) In Alrof, the Court opined the affidavit submitted by defense counsel was of no probative value because his “personal knowledge” came from a review of the file. An affirmation submitted by an attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, is sufficient to establish that plaintiff had failed to appear. (Nat. Therapy Acupuncture, P.C. v. State Farm Mut. Auto. Ins. Co., 42 Misc 3d 137[A], 986 N.Y.S.2d 866 [App. Term 2014].)

The Court in New Capital Supply, Inc. v. State Farm Mut. Auto. Ins. Co., (45 Misc 3d 758 [NY County, 2014]) superbly explained the Appellate Term’s rulings in Alrof and its progeny. The elements of the proper attorney affidavit include a statement of personal knowledge that the attorney was present in the office to conduct the EUO of the witnesses on the schedule dates; that no one affiliated with the witness appeared for the EUO on those dates; that had the witness appeared for the scheduled EUO the affirmant, or an attorney the affirmant assigned that day, would have conducted the EUO of the witness. New Capital Supply, Inc. v. State Farm Mut. Auto. Ins. Co., 45 Misc 3d 758, 760-762.

In this matter, the affidavit of Richard C. Aitken Esq., the Defendant’s attorney, does not state that he was present at the time the EUO was scheduled to take place. Paragraph’s 4 and 6 of the affirmation state:

“On (relevant date) Felix Juma Diaz failed to appear for the examination under oath. Accordingly, I, a partner with the law firm of Bruno, Gerbino & Soriano, LLP, placed a default statement on the record. A certified copy of the default statement is annexed hereto as Exhibit G”.

The affidavit only states that the attorney placed a default statement on the record. Such a statement could have been made virtually, and therefore the deponent may not personally observe whether the witness attended. The act of placing the statement on the record does not mean the deponent was present at the scheduled time and location for the EUO. Without stating the attorney was present to observe the non-appearance, the declaration that the witness failed to appear is nothing more than a hearsay conclusory statement. The defense attorney’s statement did not meet the criteria described in New Capital Supply, Inc., et. al. above.

Furthermore, the transcript of EUO statement itself is not admissible evidence to be considered for a summary judgment motion. Charles Deng Acupuncture P.C. v. Titan Insurance Co., 74 Misc 3d 137(A) (Sup. Ct., App. Term, 2,11,13 Jud. Dist., April 1, 2022). While a deposition may be introduced as evidence provided the provisions of CPLR §3116 & §3117, the deponent did not submit a foundation for consideration of the transcript. Without such a [*3]foundation the document is hearsay, and therefore not admissible evidence to be considered regarding the summary judgment motion. Therefore, the Court cannot rely on the statements made within the default statement transcript as evidence or proof that the attorney was present in the office at the time the EUO was scheduled to take place.

For these reasons, the Court finds that the affidavit of Mr. Aitken was not overlooked when determining the prior motion because, as stated in the decision, the attorney affidavit did not establish the attorney was present at the time scheduled for the EUO.

Accordingly, Defendant’s motion to reargue is DENIED. The Court’s decision dated March 27, 2024 denying the Defendant’s motion for summary judgment stands.

This is the Decision and Order of the Court.