Primavera Physical Therapy, P.C. v State Farm Ins. Co. (2024 NY Slip Op 50276(U))

Reported in New York Official Reports at Primavera Physical Therapy, P.C. v State Farm Ins. Co. (2024 NY Slip Op 50276(U))

[*1]
Primavera Physical Therapy, P.C. v State Farm Ins. Co.
2024 NY Slip Op 50276(U)
Decided on March 5, 2024
Civil Court Of The City Of New York, Kings County
Roper, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 5, 2024
Civil Court of the City of New York, Kings County


Primavera Physical Therapy, P.C., As Assignee of Alejandro, Luis, Plaintiff(s),

against

State Farm Insurance Company, Defendant(s).




Index No. 753048/18



The Rybak Firm PLLC., New York, for Plaintiff

McDonnell Adels & Klestzick PLLC, New York, for Defendant Sandra E. Roper, J.

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


Papers
Notice of Motion and Affidavits Annexed 1-2
Answering Affidavits
Replying Affidavits
Exhibits
Other

Upon the foregoing cited papers after oral arguments made on the record, the Decision and Order for Plaintiff’s motion to compel discovery pursuant to CPLR 3124 is hereby deemed MOOT, and Defendant’s Cross-Motion to dismiss and for summary judgment pursuant to CPLR 3211(a)(5) and 3212 is hereby GRANTED as follows:

This Court dismisses Plaintiff’s complaint as the instant action is barred under the doctrines of res judicata and collateral estoppel by Declaratory Judgment granted on default in the Supreme Court, County of Nassau, by The Honorable R. Bruce Cozzens, Jr., State Farm Fire and Casualty Insurance Company v. Luis Alejandro, et. al., under Index No. 615595/18. This Court takes judicial notice of this Declaratory Judgment which declared, inter alia, Plaintiff/Provider has no right to payment for No-Fault claims for the underlying accident of September 5, 2017, as the underlying loss was an intentional act, staged accident, for which there is no coverage. There are identical parties and date of accident with this instant matter. It is of no moment that there is no specific claim number included in the DJ, as Plaintiff/Provider argues as a dispositive omission. Further, Plaintiff/Provider’s argument of prejudice by ambush of the untimeliness of the DJ as procedurally improper is not compelling and thereby rejected for the [*2]purposes of Plaintiff’s application for an adjournment. Plaintiff/Provider and individual EIP/assignor had full, ample, and unfettered opportunity to engage in the defense in the DJ action but chose not to so do and therefore may not do so in this forum, which is a court of limited jurisdiction that does not sit as a Court of Equity. This Court is mandated and shall take judicial notice Sua Sponte of any DJ actions duly entered in courts of superior jurisdiction, as is herein, that may be attendant or relevant to the instant action before it, from any source during its deliberation, whether neither party brings it to This Court’s attention. For the foregoing reasons, this case is dismissed pursuant to the Doctrines of Res Judicata and Collateral Estoppel.

This constitutes the Decision and Order of This Court.

Dated: March 5, 2024
Brooklyn, New York
Judge Sandra Elena Roper, Civil Court

Country-Wide Ins. Co. v Yao Jian Ping (2024 NY Slip Op 24033)

Reported in New York Official Reports at Country-Wide Ins. Co. v Yao Jian Ping (2024 NY Slip Op 24033)

[*1]
Country-Wide Ins. Co. v Yao Jian Ping
2024 NY Slip Op 24033
Decided on January 22, 2024
Civil Court Of The City Of New York, New York County
Tsai, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.


Decided on January 22, 2024
Civil Court of the City of New York, New York County


Country-Wide Insurance Company, Plaintiff,

against

Yao Jian Ping, Defendant.




Index No. CV-022995-17/NY



Jaffe & Velasquez, LLP, New York City, Kim Rasin and Margaret Nolan, of counsel), for plaintiff.

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum, of counsel), for defendant.
Richard Tsai, J.

On October 11, 2017, plaintiff Country-Wide Insurance commenced this action against defendant Yao Jian Ping, seeking an adjudication de novo of a no-fault insurance claim pursuant to Insurance Law § 5106 (c), following a master arbitrator’s award in defendant’s favor in excess of $5,000.

PRIOR PROCEDURAL HISTORY

Defendant made a pre-answer motion to dismiss the action, arguing that the “trial de novo” was another form of a declaratory judgment action for which the Civil Court lacked subject matter jurisdiction (Seq. No. 001). By a decision and order dated June 13, 2018, another judge of the Civil Court denied defendant’s motion (see Court Exhibit I), which was affirmed on appeal (Country-Wide Ins. Co. v Yao Jian Ping, 62 Misc 3d 144[A], 2019 NY Slip Op 50160[U] [App Term, 1st Dept 2019]).

Issued was joined on or about July 13, 2018.[FN1] A notice of trial was filed on December 13, 2019.

By a decision and order dated March 2, 2020, another judge of the Civil Court granted [*2]defendant’s motion to strike the notice of trial (Seq. No. 3), only to the extent of directing further discovery and adjourning the trial.

By a decision and order dated August 17, 2020, another judge of the Civil Court granted defendant’s motion to strike the notice of trial (Seq. No. 4), only to the extent of directing further discovery.

By a decision and order dated March 26, 2021, another judge of the Civil Court denied defendant’s motion to amend the answer to assert a counterclaim against plaintiff for $24,938.59 (Seq. No. 005) and denied defendant’s motion to strike the complaint (Seq. No. 006) (see Court Exhibit I), which was affirmed on appeal (Country-Wide Ins. Co. v Ping, 73 Misc 3d 132[A], 2021 NY Slip Op 50997[U] [App Term, 1st Dept 2021]). The Appellate Term reasoned, in relevant part, “the proposed amendment would prejudice plaintiff at this stage of the proceedings, where discovery had been completed, a notice of trial had been filed and defendant previously limited his recovery to $15,251.76 based upon the fee schedule” (id. at *2).

By a decision and order dated March 15, 2022, another judge of the Civil Court denied defendant’s “Motion in Limine for a Directed Verdict” (Seq. No. 007), reasoning, “[a]s trial in this matter has not yet commenced a motion upon these grounds is premature and must be denied” (see Court Exhibit I).

By a so-ordered stipulation dated May 19, 2022, the parties resolved plaintiff’s order to show cause to quash defendant’s trial subpoenas (Seq. No. 008), which was withdrawn (Defendant’s Exhibit B). The so-ordered stipulation provided, in relevant part, “Plaintiff acknowledges that the subject no-fault bill of NY Spine Specialists, LLP, for medical services rendered to defendant on April 20, 2010, in the sum of $63,800.00 that was included with defendant’s arbitration submission to the AAA file on January 20, 2016.”

On June 8, 2022, this court held a nonjury trial of this action on the stenographic record (Robin Lindner, court reporter) in courtroom 419 at 111 Centre Street, New York, New York.

On behalf of plaintiff, Jessica Mena was sworn and testified at the trial. Plaintiff submitted two exhibits which were received in evidence on consent, marked as Plaintiff’s Exhibits 1 and 2 (Tr. 4, lines 6-14).

Defendant did not call any witnesses at trial. Defendant submitted three exhibits that were accepted into evidence, marked as Defendant’s Exhibits A, B, and C.[FN2] Defendant’s Exhibits A and B were received in evidence on consent (Tr. 4, lines 15-21). Defendant’s Exhibit C was received in evidence over plaintiff’s objection, solely for the purpose of establishing that they were certified business records of non-party New York Spine Specialist (Tr. 8, lines 15-18).

The court also marked, as Court Exhibit I, the prior decision and orders issued in this case, the notices of appeal thereof, and the decisions from the Appellate Term, with notice of entry.

After defendant rested, both plaintiff and defendant moved for directed verdict in their favor, and this court reserved decision (see Vera v Knolls Ambulance Serv. Inc., 160 AD2d 494, 496 [1st Dept 1990] [“it is far better practice to withhold any ruling on an application to dismiss until after the jury has returned a verdict”]).

The matter was adjourned to July 20, 2022, for the parties to submit proposed findings of fact. On December 1, 2022, this court heard post-trial arguments on the digital record (FTR, courtroom 421, 10:12 am-11:15 a.m.). Following the post-trial arguments, this court directed the parties to submit supplemental post-trial memos of law and adjourned the matter to February 17, 2023 for submission of papers only.

On February 17, 2023, the matter was fully submitted.


FINDINGS OF FACT

Recitation, as required by CPLR 4213 (b), of the findings of essential facts relied upon by the court:

Jessica Mena credibly testified as follows: she has worked for plaintiff since March 2007, and that she is familiar with the practices and procedures of how no-fault claims are received and processed at Country Wide Insurance Company (Tr. 16, lines 1-9). She started as a claims examiner, responsible for handling and processing all no-fault claims that are assigned to her, including sending out verification request letters to providers and denials (Tr. 18, lines 14-25). She became a litigation arbitration analyst, handling anything litigation/arbitration-related, including preparing documents for court (Tr. 19, lines 1-5). She was then the operations supervisor for two years, overseeing the operations department, which is the mailing room department and scanning department, and the data entry clerk (Tr. 19, lines 6-12). Her current position is Litigation Arbitration Supervisor, overseeing the litigation/arbitration analyst (Tr. 15, lines 24-25, id. at 19 lines 16-17).

Mena admitted on cross examination that plaintiff had received notice that defendant was involved in a motor vehicle accident on October 5, 2006 (Tr. 26, lines 5-8). According to plaintiff’s answer to defendant’s interrogatories, plaintiff learned of the motor vehicle accident “on October 12, 2006 via a letter from the Insurance Broker” (see Defendant’s Exhibit A [answer to interrogatory no. 5]). It is undisputed that plaintiff offered no-fault coverage for the motor vehicle accident (see plaintiff’s proposed findings of fact ¶ 2; see defendant’s proposed findings of fact ¶ 2).

Mena also credibly testified that plaintiff scheduled a medical examination of defendant (Tr. 26, lines 9-11). Mena credibly testified that, based on an orthopedic medical examination, plaintiff issued a denial (NF-10) (Tr. 43, lines 16-19). The NF-10 global denial dated November 29, 2006 states, in relevant part, “Based on the results of the orthopedic independent medical exam you attended on 11/28/06, which indicated that no further medical treatment or other related services are necessary, all no-fault benefits are denied as of 12/04/06” (see Defendant’s Exhibit A).

Mena credibly testified that the claim at issue in this action was not submitted to plaintiff through its standardized procedures (Tr. 16, lines 13-25, id. at 17, lines 11-17). She credibly stated that plaintiff’s first notice that defendant had any involvement with New York Spine Specialist was the statement of account (see Defendant’s Exhibit C), which was received during the arbitration process, as part of the AR-1 demand for arbitration (Tr. 29, lines 4-16).

Mena credibly stated that, when plaintiff received that statement of account, plaintiff then prepared a defense package for arbitration (Tr. 30, lines 14-17). She credibly testified that no verification request was sent to defendant or the provider after plaintiff had received the [*3]statement of account (Tr. 33, lines 21-24; id. at 34, lines 1-3), because the statement of account was not received from the provider through the no-fault department, and was not received by the no-fault examiner (Tr. 36, lines 19-22).

According to Mena, receipt of the AR-1 marks the commencement of arbitration, so

“They [bills] are not reviewed for payment the same way a claims examiner would review it. If we determine to settle the case at arbitration, that our—we see if we are going to settle or going to choose a defense. So it’s not a payment like a claims examiner would issue payment. . . .So it’s not the same process as a claim’s examiner receiving a bill through the no-fault”
(Tr. 37, lines 6-15).

Mena credibly testified that, for a claim to be considered for reimbursement, a claimant would need to submit certain documents, including proof of payment of the services, and a reversal of the assignment of benefits to the provider who performed the service, and an actual bill (Tr. 48, lines 13-23). Mena admitted that there was a reversal of the assignment of benefits in the AR-1 which plaintiff received (Tr. 48, lines 24-25; id. at 49, line 1).

Mena credibly testified that plaintiff did not receive any proof that defendant had paid the amount reflected on the statement of account (Tr. 49, line 1).

According to Mena, plaintiff did not consider the statement of account to be a no-fault bill because it was not on an NF-3, NF-4 or NF-5 no-fault form (Tr. 49, lines 20-22). Unlike the statement of account, Mena credibly testified that the no-fault form would be signed and dated, have the provider’s information, claimant’s information, the date of loss, who rendered the services, the owner of the facility, CPT codes and modifiers, the total amount, and the tax ID of the provider, among other things (Tr. 50, lines 20-25; id. at 51, lines 1-3).

By an arbitration award dated May 18, 2017, the no-fault arbitrator Phillip Wolf awarded defendant $15,251.75, with prejudgment interest as of January 2, 2016, for a lumbar spine laminectomy, spinal fusion, and pedicle fixation which non-party Sebastian Lattuga, M.D., performed on defendant on April 20, 2010 (see Defendant’s Exhibit A).

Arbitrator Wolf rejected plaintiff’s argument that defendant’s claim was not ripe for arbitration because plaintiff had never received a bill for the April 20, 20210 operative procedure, reasoning,

“Based upon the holding set forth in Domotor [Matter of State Farm Ins. Co. v Domotor, 266 AD2d 219 (2d Dept 1999)], I agree with counsel for Applicant’s argument that Applicant [defendant] was no longer required to submit bills to Respondent [plaintiff] effective December 4, 2006. As the service in dispute took place after December 4, 2006, Applicant [defendant] was not required to submit the subject bill to Respondent prior to commencing arbitration. . . . Accordingly, I find the subject bill ripe for arbitration”
(see id., at Page 3/6).

By a master arbitrator award dated August 25, 2016 [sic],[FN3] Master Arbitrator Robert Trestman affirmed the no-fault arbitration award, stating, “I find that the arbitrator’s application of the Domotor holding was not an error of law” (see Defendant’s Exhibit A, Master Arbitration Award at 2).


CONCLUSIONS OF LAW
“The standard of proof applicable in a civil case is generally that of proving the case by a fair preponderance of the evidence. . . . The evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted; mere proof of a possibility is insufficient to establish a fact by a preponderance of the evidence”
(8 Carmody-Wait 2d § 56:14).
“The preponderance of the evidence means the greater part of the evidence. It does not mean the greater number of witnesses or the greater length of time taken by any party.
The phrase refers to the quality of the evidence, that is, its convincing quality, the weight and effect it has on [the mind of the trier of fact], not to the quantity. The law requires that for [plaintiff] to prevail on a claim, the evidence that supports [plaintiff’s] claim must appeal to [the trier of fact] as more nearly representing what took place than the evidence opposed to [plaintiff’s] claim. If it does not, or if it weighs so evenly that [the trier of fact is] unable to say there is a preponderance on any side, then [the trier of fact] must decide the question against [plaintiff]”
(PJI 1:23).

As plaintiff points out, a de novo adjudication pursuant to CPLR 5106 (c) is “something very different from judicial review of some other entity’s determination” (Matter of Greenberg [Ryder Truck Rental, Inc.], 70 NY2d 573, 577 [1987]). De novo adjudication of the liability issue is not barred, under an estoppel-like theory, by the prior determinations of the arbitrator (id.).

Plaintiff’s Prima Facie Case

As a threshold matter, this court must address the issue of the insurer’s prima facie burden at trial in a de novo adjudication of a no-fault insurance claim, where the insurer is the plaintiff. At trial, the plaintiff bears the burden of proof.

“Generally, the claims process for health service bills for No-Fault compensation begins with the submission by a health service provider of a claim form (usually, but not always, a Form NF-3 verification of treatment by attending physician or other provider of health service). Besides providing information regarding the injured person, diagnoses, [*4]projected treatment, etc., the claim form includes a bill for services performed. The claim form can be submitted directly by the injured person to the No-Fault insurer but over many decades a practice developed by which the health service providers submit the claim forms. . . . The insurer must then either pay or deny the bill within 30 days, or seek additional verification within 15 business days. If it denies payment, it must issue a Form NF-10 denial of claim explaining why the bill was not paid”
(Matter of American Tr. Ins. Co. v Nexray Med. Imaging PC, 79 Misc 3d 1206[A], 2023 NY Slip Op 50538[U] [Sup Ct, NY County 2023] [internal footnotes omitted]).

In actions seeking the recovery of first-party no-fault benefits, the no-fault plaintiff is generally the provider who rendered services to an eligible injured person, and the defendant is the insurer. There, it is well-settled that “[a]t a trial, a no-fault plaintiff’s prima facie burden is to demonstrate that the claim forms at issue were received by the defendant insurer and that the claims were not paid” (Wave Med. Services, P.C. v Hertz Vehicles, LLC, 76 Misc 3d 131[A], 2022 NY Slip Op 50908[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Here, however, the parties are reversed—plaintiff is the insurer who sought de novo adjudication, whereas the defendant is the eligible injured person. It therefore follows that the insurer’s prima facie burden at trial would be to disprove what the provider would have established at trial to be entitled to payment. That is, at trial in a de novo adjudication of a no-fault claim, the prima facie burden of the insurer, as plaintiff, is to establish either that (1) the claim forms were not received by the insurer, or (2) that the claim was paid. For if the insurer’s proof could negate either of those two elements, then the insurer would have defeated the provider/eligible injured person’s entitlement to recovery.

Alternatively, as the plaintiff in a de novo adjudication, the insurer could also meet its prima facie burden by submitting proof of the elements of a valid legal defense to the insurer’s obligation to pay all or part of the submitted claim.

Once the plaintiff-insurer has met its prima facie burden at trial, the burden would then shift to the defendant-provider to prove (1) that the insurer received the claim form, and (2) that the claim was either (a) not paid at all, or (b) not paid in full. If the plaintiff-insurer had proven the elements of a valid legal defense to payment of the claim as part of its case-in-chief, then the defendant-provider would also have the burden of proving that the insurer’s proffered defense was either precluded or without merit in order to obtain a verdict in the provider’s favor (i.e., a money judgment against the insurer for the unpaid or partially paid claim).

Here, it is undisputed that the claim at issue was not paid. The evidence at trial also established that plaintiff did not receive any claim forms from defendant.

The no-fault regulations require that,

“In the case of a claim for health service expenses, the eligible injured person or that person’s assignee or representative shall submit written proof of claim to the Company [the 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 65-1.1 [d] [mandatory personal injury protection endorsement]). Here, the claim at issue was not submitted on the no-fault forms prescribed by the Department of Financial Services (i.e., NF-3, NF-4, NF-5 Forms). However, “[a]n insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form” (11 NYCRR 65-3.5 [f]).

Here, Mena credibly testified that plaintiff’s first notice that defendant had any involvement with New York Spine Specialist was the statement of account included in the AR-1 demand for arbitration which plaintiff had received. Mena credibly testified that the statement of account does not contain substantially the same information as the prescribed forms. Notably, the statement of account does not contain the claimant’s information (i.e., information of the policyholder, policy number, date of accident, claim number) or the treating provider’s name, which the insurer would need to determine whether the particular claim received should be paid.

Because the statement of account was not submitted on a form that contained substantially the same information as the prescribed forms, plaintiff was therefore not required to accept the statement of account as a proof of claim. Because the statement of account was not the functional equivalent of a prescribed form, its receipt by the insurer did not trigger the 30-day period in which the no-fault insurer must pay or deny the claim, or seek additional verification (see Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 164 [2d Dept 2013] [UB-04 form, which did not include the policy number, a description of the accident, or the admitting and discharge diagnosis, did not trigger 30-day period]).

Thus, the insurer met its prima facie burden.

Defendant’s Case in Chief

Citing Matter of State Farm Insurance Company v Domotor (266 AD2d 219, 220 [2d Dept 1999]), defendant argues that, in light of plaintiff’s global denial of no-fault benefits for all future orthopedic treatment, defendant was not required to submit any claims forms to defendant in advance of the arbitration. Rather, defendant contends that the statement of account which plaintiff admittedly received in the AR-1 demand for arbitration was sufficient to trigger plaintiff’s obligation to pay or deny the claim.

Plaintiff argues that Domotor is distinguishable and would not excuse defendant from a submitting a claim to plaintiff, which is required under the no-fault regulations, and which plaintiff contends is a condition precedent to coverage. Plaintiff counters that, following defendant’s logic, “a claimant can write up a bill on a napkin, doesn’t have to submit it to a claim rep and can wait years and can then commence lawsuits based on that napkin written bill and they’re entitled to payment” (Tr. at 63, lines 13-17).

As defendant pointed out at trial, if a prescribed claim form was missing any information, the insurer could seek additional verification within 15 business days of receipt of the prescribed forms, pursuant to 11 NYCRR 65-3.5 (b). Indeed, the Appellate Term rejected the argument that an illegible claim form was a valid ground for the insurer’s failure to process the claim, noting, “defendant did not timely deny this claim, seek verification or otherwise notify plaintiff of why defendant believed it could not process the claim” (New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 147[A], 2015 NY Slip Op 51678[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Defendant correctly points out that the facts of this case are almost identical to the facts in Domotor. However, this court is persuaded that Domotor does not apply here.

“An insured’s failure to comply with its obligations under an insurance policy is generally a defense to an action on the policy. However, ‘an insurer cannot insist upon cooperation or adherence to the terms of its policy after it has repudiated liability on the claim … by sending a letter denying liability.’ Thus, ‘[o]nce an insurer repudiates liability … the [in]sured is excused from any of its obligations under the policy'”


(American Ref-Fuel Co. of Hempstead v Resource Recycling, Inc., 281 AD2d 573, 574 [2d Dept 2001] [internal citations omitted]). “Such a repudiation excuses the filing of proofs of loss, the production of books and documents, the submission to examination, and the taking of any other preliminary steps by the insured” (Beckley v Otsego County Farmers Co-op. Fire Ins. Co., 3 AD2d 190, 194 [3d Dept 1957]).

In Domotor, the insurer had notified the appellant that it was denying all no-fault benefits, based upon the opinion of its medical expert that the appellant no longer required treatment (266 AD2d at 220). “The appellant nevertheless continued under medical care although she submitted no further claims to the petitioner” (id.). Like defendant in this case, the appellant then demanded arbitration to resolve the issue of the insurer’s liability (id.). The no-fault arbitrator denied the appellant’s claim for failure to file timely proof of loss, but the master arbitrator vacated the award (id.). Supreme Court vacated the master arbitrator’s award, and the Appellate Division, Second Department reversed and reinstated the master arbitrator’s award.

The Appellate Division reasoned,

“This disclaimer of coverage excused the appellant from further compliance with conditions precedent regarding time limitations for submitting medical proofs of loss for the treatments she nevertheless continued to undergo. An insurance carrier may not, after repudiating liability, create grounds for its refusal to pay by demanding compliance with proof of loss provisions of the policy. Rather, the insurance carrier must stand or fall upon the defense upon which it based its refusal to pay … i.e., because no treatment [was] necessary. Accordingly, inasmuch as the master arbitrator possessed the authority to vacate the initial arbitrator’s legally incorrect award denying the appellant’s claims for failure to file timely proof of loss, the Supreme Court erred in vacating the master arbitrator’s award”
(Domotor, 266 AD2d at 220-21 [internal citations omitted]).

Plaintiff points out that, after Domotor was decided on November 1, 1999, proposed Insurance Department regulations, which required submission of a claim to the insurer within 45 days after the date when services were rendered, became effective February 1, 2000 (see Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 862 [2003] [discussing amended Regulation 68]). Plaintiff reads Domotor to hold that, once the insurer disclaimed coverage, the eligible injured person was no longer required to comply with policy obligations of coverage, but is still required to comply with statutory obligations. Plaintiff cites an opinion from the Department of Insurance dated September 2, 2004, which concluded that a no-fault applicant [*5]must timely submit claims for no-fault benefits even when the insurance carrier has previously denied future benefits based upon a negative medical exam (Ops Gen Counsel NY Ins Dept No. 04-09-03 [Sept 2004]), available at https://www.dfs.ny.gov/insurance/ogco2004/rg040903.htm [last accessed Jan. 22, 2024]).

In this court’s view, the Department of Insurance’s opinion is of limited value, because it does not discuss or even mention Domotor. Neither is this court required to defer to the agency’s interpretation of case law.

There appears to be only two reported cases involving the failure to submit claims which applied Domotor after the regulations became effective (Greater Forest Hills Physical Therapy, PC v State Farm Mut. Auto. Ins. Co., 45 Misc 3d 1215[A], 2014 NY Slip Op 51594[U] [Nassau Dist Ct 2014]; Matter of NY Med. Health, P.C. v New York City Tr. Auth., 24 Misc 3d 1219[A], 2009 NY Slip Op 51526[U] [Civ Ct, King County 2009]). Both cases ruled in favor of the provider/eligible injured person.

In Matter of NY Medical Health P.C., the New York City Transit Authority (TA) notified the provider’s assignor that it was denying all no-fault benefits based upon its contention that the accident did not arise out of the use and operation of a TA bus (Matter of NY Med. Health, P.C. v New York City Tr. Auth., 24 Misc 3d 1219[A], 2009 NY Slip Op 51526[U]). The provider’s assignor continued treatment, and the provider demanded no-fault arbitration. As part of its arbitration submission, the provider had annexed the medical bills for which it was seeking payment, which had never been submitted to the TA beforehand (id.). The no-fault arbitrator found that the provider had established that the accident was due to the use or operation of a TA motor vehicle and issued an award in the provider’s favor (id.). Citing Domotor, Supreme Court denied vacatur of the master arbitrator’s award affirming the no-fault arbitration award.

In Greater Forest Hills Physical Therapy, PC, the court ruled, “this court is constrained to follow the Second Department that plaintiffs are not obligated to timely submit claims for no-fault benefits once an insurance carrier denies coverage” (45 Misc 3d 1215[A], 2014 NY Slip Op 51594[U] [Nassau Dist Ct 2014]).

However, Equilibrium of Life Acupuncture, P.C. v MVAIC (74 Misc 3d 129[A], 2022 NY Slip Op 50113[U] [App Term, 1st Dept 2022]) appears to support plaintiff’s reading of Domotor. There, the defendant moved for summary judgment on the ground that, among other things, plaintiff had not timely filed a notice of intention to make claim with defendant, as required by Insurance Law § 5208(a), so as to be entitled to no-fault benefits. Relying upon Domotor, the Civil Court denied the defendant’s motion. The Appellate Term ruled that the Civil Court erred in relying upon Domotor, stating, “Matter of State Farm Ins. Co. v Domotor, 266 AD2d 219 (1999), relied upon by Civil Court, involved a waiver of a condition precedent to payment of claims as required under an insurance policy, not a condition precedent to coverage under Insurance Law § 5208″ (id.).

Thus, based on the Appellate Term’s decision in Equilibrium of Life Acupuncture, P.C., the court agrees with plaintiff’s reading of Domotor—that the insurer’s repudiation of liability does not excuse the provider/eligible injured person from compliance with regulatory or statutory requirements of notice of the loss.

In this court’s view, the regulatory requirement of submission of a claim to a no-fault insurer on a prescribed claim form (or its substantial equivalent) is not identical to the policy [*6]requirement of submission of a proof of loss.[FN4] If no claim form is submitted to the insurer, the insurer has no notice of the loss at all.

Accepting defendant’s reading of Domotor would lead to absurd results, as illustrated by the facts of this case.

Defendant acknowledges that, under defendant’s own reading of Domotor, plaintiff would not have any right to seek additional verification from defendant for any information missing from the statement of account which would have been required on the claim forms prescribed by the Department of Financial Services. To accept defendant’s argument would, in effect, expand 11 NYCRR 65-3.5 (f) to require the insurer to accept any form that did not contain substantially the same information as the prescribed forms, even if the information was illegibly scribbled on a crumpled cocktail napkin, as plaintiff illustrated. This would be fundamentally unfair to the insurer, which would be left almost completely in the dark as to whether or not such a claim ought to be paid or denied.

Accepting defendant’s expansive reading of Domotor would up-end the processing of no-fault claims, and undermine the aims of no-fault, which includes reducing the burden on the courts (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 504-05 [2015]). Following defendant’s logic, where Domotor would apply (i.e., where the insurer had repudiated coverage), a provider could commence action to recover no-fault benefits without ever having to submit any claim form in advance to the insurer, so long as something less than substantially similar to the information on a prescribed claim form was attached as an exhibit to the complaint. Because the insurer has received such a claim, the insurer would then have to start and finish claims processing by the time the answer to the complaint was due. Every no-fault claim that would have been submitted in advance to the insurer could now be filed with the courts instead, because the provider would not be required to submit the claim to the insurer before the lawsuit.

For all the reasons above, Domotor does not apply.

Because defendant has not successfully challenged any part of plaintiff’s prima facie case, the verdict, after trial, is granted in plaintiff’s favor.

Plaintiff’s and Defendant’s Motions for Directed Verdict

Plaintiff’s motion for a directed verdict in its favor is denied as academic.

Defendant’s motion for a directed verdict in defendant’s favor is denied. Affording plaintiff every inference which may properly be drawn from the facts presented and considering the facts in a light most favorable to plaintiff—that no claim form or its substantial equivalent was ever submitted to plaintiff—this court cannot conclude that “there is no rational process by which the fact trier could base a finding in favor of plaintiff” (Szczerbiak v Pilat, 90 NY2d 553, [*7]556 [1997]). As discussed above, Domotor does not apply.

The Appropriate Relief to Be Granted to the Prevailing Party

The relief to be granted to plaintiff presents a novel issue.

Had a provider or eligible injured person been the plaintiff, the answer would be simple—a money judgment would be granted in the provider’s or eligible injured person’s favor against the insurer for the amount of the claim, plus statutory interest (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 205 [2d Dept 2009]), and attorneys’ fees (11 NYCRR § 65-4.10 [j]). However, where the insurer is the plaintiff in an adjudication de novo and did not pay the submitted claim, there would be no money judgment to grant to plaintiff.[FN5] As defendant did not assert a formal counterclaim,[FN6] there is no counterclaim to be dismissed.

Plaintiff argues that this court should issue a declaration in plaintiff’s favor that it has no obligation to pay the claim at issue (see Matter of Gersten v American Tr. Ins. Co., 161 Misc 2d 57, 60 [Sup Ct, NY County 1994] [“There is some authority which suggests that the insurer commences a declaratory judgment action seeking a declaration that the insured is not entitled to no-fault benefits”]; see also Liberty Mut. Ins. Co. v Bayside Pain & Rehabilitation Medicine, P.C., 39 Misc 3d 148[A], 2013 NY Slip Op 50906[U][App Term, 2d Dept, 9th & 10th Jud Dists 2013] [action for de novo adjudication commenced by an insurer “seeks, in essence, a declaratory judgment and not monetary damages”]).

However, the Civil Court has jurisdiction to issue a declaratory judgment in only two instances:

“(a) any controversy involving the obligation of an insurer to indemnify or defend a defendant in an action in which the amount sought to be recovered does not exceed $50,000; and
(b) actions commenced by a party aggrieved by an arbitration award rendered pursuant to part 137 of the rules of the chief administrator in which the amount in dispute does not exceed $50,000″
(Civil Court Act § 212-a). Neither applies here. An adjudication de novo is not a controversy [*8]involving the obligation of an insurer to indemnify or defend someone in another action.

As defendant points out, another judge of the Civil Court denied defendant’s motion to dismiss the action for an adjudication de novo on the grounds that plaintiff was seeking, in essence, a declaratory judgment action, which the Appellate Term had affirmed. Thus, defendant argues that the Appellate Term implicitly affirmed that the Civil Court could issue a declaratory judgment in a de novo adjudication pursuant to Insurance Law § 5106 (c).

Contrary to defendant’s contention, the Appellate Term, First Department ruled only that that action was within the monetary jurisdiction of the Civil Court, and ruled that “defendant’s remaining argument has been rendered academic” (Ping, 62 Misc 3d 144[A], 2019 NY Slip Op 50160[U] [App Term 2019]).

The Civil Court has jurisdiction to confirm or vacate an arbitration award that is within the $50,000 monetary jurisdiction of the Civil Court, which appears to be the only non-monetary relief that the Civil Court can grant to plaintiff. Although the complaint did not seek vacatur of the master arbitration, the court here “may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just,” so long as the judgment to be awarded is not a default judgment (CPLR 3017 [a]).

Thus, in an adjudication de novo commenced in Civil Court, where the insurer is the plaintiff and the prevailing party, and defendant has not asserted a counterclaim, the appropriate relief to be granted is vacatur of the underlying master arbitrator’s award for which de novo adjudication was sought.

VERDICT

The court finds in favor of plaintiff.


ORDER

Accordingly, it is hereby ORDERED that plaintiff’s and defendant’s motions for directed verdict are denied; and it is further

ORDERED and ADJUDGED that, after trial, the award of Master Arbitrator Robert Trestman dated August 25, 2016 [sic], which affirmed the no-fault arbitration award of Arbitrator Phillip Wolf dated May 18, 2017, is vacated.

This constitutes the decision, verdict, order, and judgment of the court.

Dated: January 22, 2024
New York, New York
ENTER:
RICHARD TSAI, J.
Judge of the Civil Court
Footnotes


Footnote 1: Defendant’s answer did not assert a counterclaim, but the prayer for relief asked for entry of a money judgment in defendant’s favor in the amount of $15,251.75, along with attorneys’ fees and costs and disbursements.

Footnote 2: This court indicated that if there was a particular document among those documents that contained hearsay, other than the fact that it was a business record, then plaintiff was permitted to object those documents being offered for that purpose (Tr. 8, lines 19-25).

Footnote 3: The date of the master arbitrator award is typed as “August 25, 2016,” whereas the date of mailing is date-stamped “Aug 29, 2017” (see Defendant’s Exhibit A).

Footnote 4: “For practical purposes, courts have applied the same rules to notices of loss, injury, damage or claim and to proofs of loss. However, the two are different in their requirements and purpose. A notice, whether of loss, injury, damage, claim, or disability, serves the purpose of first advising the insurer of the occurrence or event which triggers coverage under the policy. A proof of loss, on the other hand, operates to substantiate the claim that has been made” (Joseph Wilson & Anne M. Payne, New York Insurance Law § 30:1 [West’s NY Prac Series 2023-2024 ed.]).

Footnote 5: In its prayer for relief in the complaint, plaintiff did not seek attorney’s fees.

Footnote 6: A prayer for affirmative relief which is not specifically described as a counterclaim is without effect (People v Sound View Land & Imp. Co., 239 App Div 201, 202 [1st Dept 1933]). “The rule is well settled that where a defendant insists upon a counterclaim, it must be pleaded as such, and unless that is done it can be resorted to and used only as a defense” (New York Trust Co. v American Realty Co., 213 App Div 272, 275 [1st Dept 1925]). This is not a case where defendant pleaded facts entitling defendant to affirmative relief but merely omitted to designate the matter as a counterclaim, “in which event the courts will regard the pleading as what it obviously was intended to be” (New York Trust Co., 213 App Div at 275).

In a supplemental brief, defendant indicates that defendant only seeks confirmation of the underlying master arbitration award and attorneys’ fees if defendant prevails (see defendant’s supplemental brief at 3, 5-6).



Stark Med. Supply Inc. v Foremost Prop. & Cas. Ins. (2024 NY Slip Op 50002(U))

Reported in New York Official Reports at Stark Med. Supply Inc. v Foremost Prop. & Cas. Ins. (2024 NY Slip Op 50002(U))

[*1]
Stark Med. Supply Inc. v Foremost Prop. & Cas. Ins.
2024 NY Slip Op 50002(U)
Decided on January 8, 2024
Civil Court Of The City Of New York, Kings County
Epstein, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 8, 2024
Civil Court of the City of New York, Kings County


Stark Medical Supply Inc. AAO a/a/o Emmanuel Dorvil, Plaintiff,

against

Foremost Property & Casualty Insurance, Defendant.




Index No. CV-732769-18



Plaintiff: Mikhail Kopelevich
Kopelevich & Feldsherova, P.C.
241 37th Street, Suite B439
Brooklyn, New York 11232

Defendant: Kenneth Popper
Law Offices of Buratti Rothenberg & Burns
90 Merrick Avenue Suite 300
East Meadow, New York 11554 Jill R. Epstein, J.

Plaintiff, medical provider, Stark Medical Supply Inc. (hereinafter “Plaintiff”), as assignee of Emmanuel Dorvil (hereinafter “Assignor”), commenced this action to recover assigned first-party no fault benefits from Foremost Property and Casualty Insurance (hereinafter “Defendant”), for a medical service performed to the assignor following a motor vehicle accident, which occurred May 29, 2017.

A Summary Judgement order signed by this Court on December 2, 2020 found that the subject bills were received and timely and properly denied. The Order limits the trial to the sole issue of whether the policy was exhausted at the time of the claim.

At trial, held November 29, 2023, defendant called its witness, Megan Scorben, a claims specialist who is employed by for defendant. Ms. Scorben testified that she reviewed the claim log, there was a previous medical payment on this accident, and that at full value there was $1,000 on the policy plus an additional $500 if the motorcycle rider was wearing a helmet. Upon voir dire, plaintiff questioned whether Ms. Scorben personally added in data herself and she replied that she did not. Ms. Scorben also testified that she was not working for the defendant when the payment logs that she was relying upon were created, however she did state that she reviewed and maintained the records in the regular course of her employment responsibilities.

During cross-examination of Ms. Scorben, plaintiff questioned the dates that were input into the log that Ms. Scorben relied upon in her determination that the policy was exhausted. She stated that there was in fact a “typo” and the date should read June, 15, 2017 and that the dates reads June 15, 2018. Plaintiff also questioned the witness’ reliance on information in the log that shows that payment was made prior to the incorrect/typo service dates of the bill and Ms. Scorben replied affirmatively.

For a policy exhaustion defense to bar plaintiff from recovery in a no-fault matter, the defendant must ” demonstrate that the policy had been exhausted at the time the claims at issue were deemed complete.” Ortho Passive Motion, Inc. v Allstate Ins. Co., NY Slip Op 50771 [Application Term 2d 2017]. The Second Department further clarifies that “defendant has not argued, let alone demonstrated, that there was a technical defect or ministerial mistake in the judgment “not affecting a substantial right of a party.” Id.

The Court finds that in the matter sub judice, defendant has failed to prove policy exhausted. Firstly, despite the contentions of the defendant and its witness, the incorrect dates in the log is not merely “ministerial mistakes” as the errors “do substantially affect the rights of plaintiff.” Id.

Secondly, the log entries do not prove that the policy was exhausted when the “claims at issue were deemed complete.” Id. Defendant has failed to provide this court with any evidence, documentary or testimony to successfully establish that the policy was exhausted when the claims were completed. There is nothing beyond the testimony of the witness to show that the date in the log was in error, thus there is nothing to show that the payment preceded the bill herein.

WHEREFORE it is hereby

ORDERED AND ADJUDGED that judgement be entered in favor of plaintiffs in the sum of $1, 281.32 plus filing fees, and interest from July 24, 2018.

Dated: January 8, 2024
Brooklyn, New York
HON. JILL R. EPSTEIN, JCC

Renelique v Foremost Signature Ins. Co. (2023 NY Slip Op 51226(U))

Reported in New York Official Reports at Renelique v Foremost Signature Ins. Co. (2023 NY Slip Op 51226(U))



Renelique A/A/O Forbes, Plaintiff(s),

against

Foremost Signature Insurance Company, Defendant(s).

Index No. CV-710546-12/QU

Plaintiff’s counsel:
The Rybak Firm, PLLC
1506 Kings Highway, 2nd Floor
Brooklyn, NY 11229

Defendant’s counsel:
Law Offices of Rothenberg & Burns
PO Box 258829
Oklahoma City, OK 73125

Wendy Changyong Li, J.

I. Papers

The following papers were read on Defendant’s motion to dismiss and Plaintiff’s cross-motion for it’s claims against Defendant:

Numbered

Defendant’s Notice of Motion to Dismiss and Affirmation in Support, dated March 30, 2022 and electronically filed on March 31, 2022 (“Motion”), together with all supporting exhibits. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support of Cross-Motion for Summary Judgement and in Opposition to Motion, undated but electronically filed on May 27, 2022 (“Cross-Motion“), together with all supporting exhibits. 2

Defendant Affirmation in Opposition and in Reply (“Opp and Reply“) dated May 26, 2022 and electronically filed on May 31, 2022, together with all supporting exhibits. 3


II. Background

In a summons and complaint filed with the court on April 3, 2012, Plaintiff sued Defendant insurance company to recover unpaid No-Fault benefits for medical services provided to Plaintiff’s assignor Forbes, plus attorneys’ fees and statutory interest. This “action [arose] out of an automobile ‘accident,’ which allegedly occurred on December 3, 2011. . .[and] claim number 1020274500-1-5 was assigned to this” claim by Defendant insurance company (Motion, Tsirkas aff, paragraph 3). Issue was joined when Defendant filed its an Answer on April 27, 2012. After motion practice (i.e., motion seq. #1 and seq. #2), Plaintiff filed the Notice of Trial on July 24, 2014. This matter was placed on the Part 15N trial calendar on November 7, 2014 and was adjourned to October 17, 2019, which was further adjourned to March 4, 2020. This matter was referred to the inquest clerk after Defendant insurance company failed to appear for trial scheduled on March 4, 2020. By Order to Show Cause (“OSC“) (motion Seq. #3), Defendant moved to vacate its default (CPLR 5015[a][1]) and moved for summary judgment dismissing Plaintiff’s complaint (CPLR 3212[b]). The OSC was scheduled to be heard in Part 40 Calendar on October 1, 2020, but was adjourned to November 4, 2020 before other courts, at which time, other court took the OSC on submission. The OSC was subsequently assigned to this Court for a determination pursuant to the then motion assignment policy under which all motions were submitted to a pool for re-distribution. This Court granted Defendant’ motion to vacate the inquest marking and denied Defendant’s motion for summary judgment dismissing Plaintiff’s complaint.

In January 2022, Queens Civil Court new Supervising Judge (“New SJ“) effectuated a new policy via email pursuant to which “judges assigned to the part [was] responsible for the fully submitted motions.” On March 31, 2022, Defendant filed the instant Motion (i.e., motion seq. #4) seeking an order granting Defendant summary judgement and dismissing Plaintiff’s complaint with prejudice. In May 2022, the New SJ issued another motion assignment policy via email pursuant to which a “judge assigned for the term [was] responsible for all submitted motions, including those that were submitted while the judge was away on vacation that was approved prior to the term assignments.” On May 27, 2022, Plaintiff filed the instant Cross-Motion (i.e., motion seq. #5) seeking an order “pursuant to CPLR . . . 3211(c) and 3212(a), granting summary judgement in favor of Plaintiff, denying Defendant’s motion to dismiss and for summary judgement; limiting the issues of fact for trial pursuant to CPLR 3212(g) that the prescribed statutory billing forms were mailed to and received by the insurance carrier, and that payment of no-fault benefits were overdue; and dismissal of Defendant’s Affirmative Defense pursuant to CPLR 3211(b). . . ” (Cross-Motion at 1). The Motion and Cross-Motion were before other courts on Part 41 calendar on May 16, 2022 and was adjourned to July 18, 2022. Other court took the Motion and the Cross-Motion on submission and subsequently referred the motions to this Court for a determination. This referred matter was one of the approximately one hundred eleven (111) motions referred to this Court as of August 2022, while this Court did not preside over those calendar parts when motions were submitted, pursuant to the New SJ’s everchanging motion policy.


III. Discussion

A. Standard for Summary Judgement

“A [party] moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions…” (CPLR 3212 [b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).


B. Defendant’s Motion to Dismiss

In its Motion, Defendant presented a copy of New York County Supreme Court Justice Lucy Billings’ order (“Billings Order“) of August 22, 2019 granting Defendant’s motion for default judgment pursuant to which Hon. Billings declared that Defendant, among other entities, a) was “not obligated to provide any coverage, reimbursements, or pay any monies, sums, or funds to. . . [the Plaintiff]. . .for any and all No-Fault related services for which claims/bills have been, or may in the future be, submitted by [Plaintiff, among other parties,] to [Defendant]; b). . .[Plaintiff and other named entities] lack[ed] standing seeking No-Fault reimbursements; c) [Plaintiff and other named entities] were fraudulently incorporated within the meaning of 11 NYCRR 65-3.16(a)(12) and State Farm v. Mallela, 4 NY3d 313 (NY 2005), in violation of the applicable law; and d) [Plaintiff and other named entities] participated in a scheme to defraud [Defendant, among other entities,] by submitting claims for No-Fault services allegedly rendered by [Plaintiff and other named entities], which they knew were fraudulently incorporated within the meaning of State Farm v. Mallela, 4 NY3d 313 (NY 2005), and 11NYCRR 65-3.16(a)(12).” (Motion, Ex B.) Defendant further argued that “Plaintiff herein [was] barred. . .pursuant to the doctrine of res judicata” and “under the doctrine of collateral estoppel” (Motion, Tsirkas Aff). This Court notes that Billings Order was rendered on default and such order was signed based on a proposed order submitted by the moving parties. This Court also notes that the cover page of the decision indicated that Billings Order was not a final disposition by checking the box of “Non-Final Disposition” (Motion, Ex B).

In its Cross-Motion, Plaintiff cross-moved for summary judgement for its claim and opposed to Defendant’s motion to dismiss. Plaintiff argued that 1) the underlying action (“Prior Declaratory Judgement Action“) in Billings Order “involve[d] ‘additional [parties]’, and thus there [was] ‘no identity of parties'”; 2) “the causes of action [were] not the same”; 3) the relief sough in the instant action was different from the ones in the Prior Declaratory Judgement [*2]Action; 4) Plaintiff’s motion to dismiss was untimely; 5) the prior Declaratory Judgement Action “fail[ed] to state a relation to the instant case as it fail[ed] to state the date of accident, the assignor, and any claim number”; 6) Billings Order was issued on default; 7) “there [was] no identity of the issues. . .[because] here Plaintiff [brought] an action for unpaid no-fault claims based on a breach of contract theory; [while] in the declaratory judgement action, Defendant commenced an action for breach of the insurance policy terms and conditions and asked the court to give it an advisory opinion as to whether Defendant [was] obligated to pay under the policy if some of the individuals breached the policy terms and conditions;” 8) “Plaintiff in this action [was] still within the CPLR time limits for moving to vacate a default judgment.” (Cross-Motion, Rybak Aff.) Plaintiff further argued that Defendant’s motion to dismiss must be denied because (1) Defendant failed to establish collateral estoppel or res judicata; and (2) Defendant’s motion to dismiss was untimely.

In its Opp and Reply, Defendant counter argued that i) Queens Civil Court had issued orders based on Billings Order; ii) Defendant was one of the plaintiff parties in the Prior Declaratory Judgement Action, iii) Plaintiff’s argument of Defendant having untimely filed its motion to dismiss was without merit.


C. Defendant’s Motion to Dismiss is untimely

Contrary to Defendant’s arguments, Plaintiff correctly contended, however, that Defendant’s second request for summary judgment dismissing Plaintiff’s complaint based on the Billings Order issued on August 22, 2019, is untimely given that Plaintiff filed the Notice of Trial on July 24, 2014 (CPLR 3212[a]; Michael Palmeri, M.D., PLLC v Allstate Ins. Co., 48 Misc 3d 136[A], 2015 NY Slip Op 51130[U] *1 [App Term 2d Dept 2015]; Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75, 76 [App Term 2d Dept 2014] ; Tong Li v Citywide Auto Leasing, Inc., 43 Misc 3d 128[A], 2014 NY Slip Op 50481[U] *1 [App Term 2d Dept 2014]). While a party may file an untimely summary judgment motion upon good cause shown (CPLR 3212[a]; Miceli v. State Farm Mut. Auto Ins. Co., 3 NY3d 725, 727 [2004]; Brill v. City of New York, 2 NY3d 648, 652 [2004]), here, Defendant failed to explain the reason its first summary judgment motion filed in September of 2020 (“Defendant’s First Motion to Dismiss” or the OSC), was made more than six (6) years after Plaintiff filed the Notice of Trial, and more than a year after the Billings Order. This Court denied, in March 2021, Defendant’s First Motion to Dismiss. Defendant now filed the instant Motion asking the court to dismiss Plaintiff’s complaint for the second time in March 2022. Here, Defendant once again failed to explain the reason its second summary judgment motion filed in March 2022, was made almost seven (7) years after Plaintiff filed the Notice of Trial, almost two (2) years after the Billings Order, and one (1) year after this Court’s denial of Defendant’s First Motion to Dismiss. This Court must deny Defendant’s untimely summary judgment motion seeking an order dismiss the action (Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d at 392; Michael Palmeri, M.D., PLLC v Allstate Ins. Co., 2015 NY Slip Op 51130[U] *1; Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d at 77; Tong Li v Citywide Auto Leasing, Inc., 2014 NY Slip Op 50481[U] *1).


D. Collateral estoppel and res judicata

Defendant’s Motion seeking an order dismissing Plaintiff’s complaint is denied as [*3]untimely. Alternatively, this Court finds that neither collateral estoppel nor res judicata bars this action.


First, Collateral Estoppel

It is well established that “collateral estoppel precludes a party from relitigating an issue previously resolved against that party in a prior proceeding in which that party had a full and fair opportunity to contest the decision now said to be controlling. The party seeking to apply collateral estoppel bears the initial burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action.” (Kuznitz v Funk, 187 AD3d 1006 [App Division 2d Dept 2020].) Court in Parisien v. Kemper Ins. Co. also stated that “while an issue is not actually litigated if, for example, there has been a default, collateral estoppel may be properly applied to default judgments where the party against whom preclusion is sought appears in the prior action, yet willfully and deliberately refuses to participate in those litigation proceedings, or abandons them, despite a full and fair opportunity to do so. The party seeking to rely on collateral estoppel has the burden of establishing that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought. The party attempting to defeat the application of collateral estoppel has the burden of establishing the absence of a full and fair opportunity to litigate.” (Parisien v. Kemper Ins. Co., 76 Misc 3d 18 [App Term 2d Dept 2022].)

Here, in our instant matter, the Billings Order was issued on default. However, Defendant failed to establish that Plaintiff “willfully and deliberately refuse[d] to participate” in the Prior Declaratory Judgement Action or “abandon[ed]” such action (Parisien v. Kemper Ins. Co., 76 Misc 3d 18 [App Term 2d Dept 2022]). In addition, Defendant failed to establish that Billings Order had addressed the alleged car accident at hand supported by insurance company claim number. Equally, Plaintiff failed to explain why it did not participate in the Prior Declaratory Judgement Action, although, it did argue that “Plaintiff in this action [was] still within the CPLR time limits for moving to vacate a default judgment” (Cross-Motion, Rybak Aff). However, Plaintiff failed to explain whether it has taken necessary steps in seeking a vacatur of the Billings Order. Here factual issues exist. This Courts also notes that the cover page of the Justice Billings’ decision indicated that Billings Order was not a final disposition by checking the box of “Non-Final Disposition” (Motion, Ex B). Accordingly, this Court is not convinced that Billings Order, which was issued on default, is a final and “decisive” disposition of the issues between the parties and this Court declines to entertain Defendant’s argument based on collateral estoppel based on submission (Kuznitz v Funk, 187 AD3d 1006 [App Division 2d Dept 2020]).


Second, Res Judicata

The Court of Appeals in Simmons v. Trans Express Inc. explained that “under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action. One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously brought to a final conclusion. Importantly, the claim preclusion rule extends beyond attempts to relitigate identical claims. Courts have consistently applied a transactional analysis approach in determining whether an earlier judgment has claim preclusive effect, such that once a claim is brought to a conclusion, all other claims arising out of the same [*4]transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.” (Simmons v. Trans Express Inc., 37 NY3d 107 [Court of Appeals, 2021].) Here, similar to the analysis of the doctrine of collateral estoppel above, it appears that Justice Billings’ default decision was not a “final conclusion” of the Prior Declaratory Judgement Action (id.), although based on submission, it is unclear to this Court why Plaintiff was defaulted in the Prior Declaratory Judgement Action and whether Plaintiff has taken necessary steps seeking an order vacating Billings Order which was issued on default. Those factual issues must be resolved during trial. Here, this Courts denies Plaintiff’s Motion based on the doctrine of res judicata.


Third, Queens Civil Court’s Prior Decisions

In its Opp and Reply, Defendant presented copies of two decisions rendered by judges in Queens Civil Court (Opp and Reply, Ex A), arguing that Queens Civil Court had “multiple orders based on” the Billings Order (Opp and Reply, Tsirkas Aff). Defendant’s above arguments were improperly raised for the first time in its Opp and Reply (Grocery Leasing Corp. v P & C Merrick Realty Co., LLC, 197 AD3d 628, 2021 NY Slip Op 04701*2 [2d Dept Aug. 18, 2021]; Deutsche Bank Natl. Trust Co. v March, 191 AD3d 762, 763 [2d Dept 2021]). In any event, decisions rendered by Queens Civil Court do not have binding effect on this Court. One of the sample decisions provided by Defendant in its Opp and Reply was this Court’s decision on Renelique vs 21 Century Insurance Company with index number CV-738509-12QU issued on March 25, 2021 pursuant to which this Court granted defendant’s motion for summary judgement dismissing plaintiff’s complaint without opposition. It is noted that matter CV-738509-12QU was dismissed without prejudice, based on a proposed order on consent. This Court did not disturb parties’ agreement then and declines to reverse litigants’ dealing now.


E. Plaintiff’s Cross-Motion

Plaintiff sought an order 1) granting summary judgement in favor of Plaintiff, denying Defendant’s motion to dismiss and for summary judgement; 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the prescribed statutory billing forms were mailed to and received by the insurance carrier, and that payment of no-fault benefits were overdue; and 3) dismissal of Defendant’s Affirmative Defense pursuant to CPLR 3211(b).

As to Plaintiff’s prayer for summary judgement for its claims, Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and that payment of no-fault benefits was overdue (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]).

In support of its Cross-Motion for its claims, Plaintiff presented an affidavit of Renelique sworn to on May 23, 2022 (“Renelique Affidavit“) stating that he had “requisite first-hand detailed knowledge of the facts pertaining to this action”; that he “or persons acting under [his] personal direction, supervision and control, provided the necessary medical services in the amount of $4,504.07 to [the assignor] for injuries sustained”; that statutory billing forms were mailed to the Defendant; and that payment of no-fault benefits were overdue (Cross Motion, Ex 3). Here, Plaintiff provided copies of the bills to support its claims, while Defendant did not address nor deny receipt of the Plaintiff’s statutory billing forms in its Motion or in its Opp and [*5]Reply. Accordingly, Plaintiff has established the fact that the prescribed statutory billing forms were mailed to and received by the insurance carrier, and that payment of no-fault benefits were overdue pursuant to CPLR 3212(g).

It is well established that insurers must pay or deny No-Fault benefit claims “within thirty (30) calendar days after receipt of the proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). “New York Law prohibits unlicensed individuals from organizing a professional service corporation for profit or exercising control over such entities” (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 404 [2019], see Business Corporation Law §§ 1507; 1508; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886 [2d Dept 2017]; Liberty Mut. Ins. Co. v Raia Med. Health, P.C., 140 AD3d 1029, 1031 [2d Dept 2016]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). “A provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York . . .” (11 NYCRR § 65-3.16[a][12]; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d at 886; Liberty Mut. Ins. Co. v Raia Med. Health, P.C., 140 AD3d at 1031; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d at 740). In the No Fault context, corporate practices evincing a willful, material noncompliance with licensing and incorporation statutes may establish a medical provider’s ineligibility to receive reimbursement (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405, see State Farm v Mallela, 4 NY3d 313, 321 [2005]; Radiology Today, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d 4, 7 [App Term 2d Dept 2011]). The elements of common law fraud need not be shown (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405) if noncompliance with the above-described licensing requirement is established through admissible evidence.

Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). However, the defense that a health care provider is ineligible to receive No Fault insurance benefit payments is not subject to preclusion (All Boro Psychological Servs., P.C. v Auto One Ins. Co., 35 Misc 3d 136[A], 2012 NY Slip Op 50777[U] *2 [App Term 2d Dept 2012]; Radiology Today, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d at 6; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58, 59 [App Term 2d Dept 2006]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term 2006]).

In our instant matter, Billings Order, which was issued on default, addressed Plaintiff’s alleged fraudulent incorporation and participation “in a scheme to defraud” Defendant “within the meaning of State Farm v. Mallela, 4 NY3d 313 (NY 2005), and 11NYCRR 65-3.16(a)(12)” (Motion, Ex B). Here, although Plaintiff has established the fact that the prescribed statutory billing forms were mailed to and received by the insurance carrier, and that payment of no-fault benefits were overdue pursuant to CPLR 3212(g), an ineligibility of receiving No Fault [*6]insurance benefit due to non-compliance with licensing statutes defeats such prima facie showing. Plaintiff’s motion for summary judgment for its claims is denied.

As discussed above, factual issues exist in the instant action. Plaintiff’s prayer for a summary judgment order dismissing Defendant’s affirmative defense pursuant to CPLR 3211(b) is denied without prejudice pending trial.


IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment seeking an order dismissing Plaintiff’s complaint (Motion Seq. #4) is denied in its entirety, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgement for its claims (Motion Seq. #5) is denied, and it is further

ORDERED that Plaintiff has established the fact that the prescribed statutory billing forms were mailed to and received by the insurance carrier, and that payment of no-fault benefits were overdue pursuant to CPLR 3212(g), and it is further

ORDERED that Plaintiff’s prayer for a summary judgment order dismissing Defendant’s affirmative defense pursuant to CPLR 3211(b) is denied without prejudice pending trial, and it is further

ORDERED that this matter is scheduled for an immediate trial at Part 15N on Monday April 8, 2024 at 10:00am at Queens Civil Court, and the part clerk is directed to notify both parties and to mark the calendar accordingly.

Plaintiff is on notice that if it fails to take concrete steps to vacate the Billings Order “within the CPLR time limits for moving to vacate a default judgment” (Cross-Motion, Rybak Aff) as Plaintiff argued, Billings Order will become a final disposition and conclusion of the Prior Declaratory Judgement Action.

This constitutes the DECISION and ORDER of the Court.

Dated: November 20, 2023
Civil Court of the City of New York

_____________________________________
Honorable Wendy Changyong Li, J.C.C.

NYRX Pharm. Inc. v Mid-Century Ins. Co. (2023 NY Slip Op51094(U))

Reported in New York Official Reports at NYRX Pharm. Inc. v Mid-Century Ins. Co. (2023 NY Slip Op 51094(U))

[*1]
NYRX Pharm. Inc. v Mid-Century Ins. Co.
2023 NY Slip Op 51094(U) [80 Misc 3d 1225(A)]
Decided on October 11, 2023
Civil Court Of The City Of New York, Kings County
Roper, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 11, 2023
Civil Court of the City of New York, Kings County


NYRX Pharmacy Inc., A/A/O Danferlin Ortiz, Plaintiff,

against

Mid-Century Insurance Company S/H/A Farmers Insurance Company, Defendants.




Index No. CV-704328-20/KI


Constance F. Roland, Esq.
Gary Tsirelman, P.C.
129 Livingston Street
Brooklyn, NY 11201
(718) 438-1200
Counsel for Plaintiff

Konstantinos Tsirkas, Esq.
Law Offices of Rothenberg and Romanek
1133 Westchester Ave., Suite N228
White Plains, NY 10604
(516) 688-1600
Counsel for Defendant


Sandra E. Roper, J.

RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION

NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2
AFFIRMATION IN SUPPORT & EXH. ANNEXED 3-4
AFFIRMATION IN OPPOSITION 5
AFFIRMATION IN REPLY 6

[*2]INTRODUCTION

Defendant moves This Honorable Court by Notice of Motion for Summary Judgment pursuant to CPLR 3212 to Dismiss Action in its entirety, and for such other and further relief deemed just and proper. For the reasons set forth below, it is hereby DENIED.


PROCEDURAL AND FACTUAL HISTORY

Plaintiff NYRX Pharmacy Inc. commenced this No-Fault action January 17, 2020, for the amount of $3,880.30 in payment of medical services rendered to assignor, Danferlin Ortiz, for injuries allegedly sustained as result of motor vehicle accident (hereinafter referred to as MVA) as against insured Joshua Guzman Lorenzo’s purported insurer, Farmers Insurance Company, policy number XXXXX. Issue was joined on or about March 3, 2020. The alleged subject MVA occurred on or about November 29, 2018, 2:27 p.m. as insured Joshua Guzman Lorenzo in his vehicle was stopped at a traffic light at the intersection of East 150 Street and Prospect Avenue in Bronx, New York, when his vehicle was rear-ended by Edwin S Baez driving a U-Haul truck, insured by Repwest Insurance Company. The assignor herein, Danferlin Ortiz was a passenger along with another passenger, Gaderlin Ortiz, in Joshua Guzman Lorenzo’s vehicle. It has been alleged that all parties herein this MVA are related by consanguinity or affinity. As a result of alleged injuries thereto, all three occupants of the insured’s vehicle, including assignor Danferlin Ortiz were rendered medical services, of which Farmers Insurance Company designated its claim number as 5006678777. Plaintiff sued upon amount of $3,880.30, consists of two bills, date of service December 27, 2018, for $2,951.00 which Defendant conceded as received on or about February 25, 2019, and date of service January 12, 2019 for $929.30 which Defendant also conceded as received on or about February 28, 2019. Defendant generated verification requests by a delay letter dated March 11, 2019, pending the Examination Under Oath (hereinafter referred to as EUO) of the claimants.

EUO was scheduled by Buratti, Rothenberg & Burns, staff counsel to Mid-Century Insurance Company for February 14, 2019 at 12:00 p.m. with notice mailed January 29, 2019 to be held at US Legal Court Reporting Concourse Plaza West Shopping Center, 206 East 161st Street, Bronx, NY 10451. Second EUO was scheduled for March 12, 2019 at 12:00 p.m. with notice mailed February 19, 2019 at same location. Konstantinos Tsirkas, counsel for Defendant Mid-Century Insurance Company states in an affirmation “On 2/14/19 AND 3/12/19, I was present at US Legal Court Reporting, Concourse Plaza West Shopping Center, 206 East 161st Street Bronx, NY 10451, in order to conduct an Examination Under Oath of Danferlin Ortiz, in regard to claim no: 5006678777 and date of loss November 29, 2018. The EUO was scheduled for 12:00 p.m. The witness failed to appear for the scheduled EUO. After waiting one hour beyond the time of the scheduled EUO, counsel placed a statement on the record in the presence of a notary public of the State of New York” (Tsirkas aff, exhibit J, ¶3-4).

It is unclear exactly what was the chain of custody for the alleged two affidavits/criminal confessions that were allegedly provided to Defendant by Repwest Insurance Company. There is merely a statement by affiant Defendant claims representative, Richard Tirino:

“The Defendant was alerted by Repwest Insurance Company, the insurance carrier of the UHaul truck, that the two drivers of the subject vehicles, JOSHUA GUZMAN LORENZO and EDWIN BAEZ, admitted to staging the accident after being promised $500.00 for their participation. It was also revealed that the two drivers JOSHUA GUZMAN LORENZO and EDWIN BAEZ are related. The signed and notarized affidavits of claimants/drivers JOSHUA GUZMAN LORENZO and EDWIN BAEZ [*3]admitting to staging the accident are annexed to the within motion” (Tsirkas aff, exhibit D, ¶ 17).


Affiant Torino states that both affidavits/criminal confessions by the allegedly related by consanguinity or affinity Guzman-Lorenzo and Baez were notarized. On the contrary, the insured Guzman-Lorenzo’s, dated January 17, 2019 was not notarized. Of note, his affidavit/criminal confession was entered into seven days after his counsel declined further representation (Tsirkas aff, exhibit F). Most notably, the purported affidavit/criminal confession attributed to Guzman-Lorenzo is a fillable form captioned Repwest Insurance and at the notarial region of the form the word “witness” was circled and not “notary public” (Tsirkas aff, exhibit G). Thereat affixed is a signature with no line for printing of the name of the putative signatory to be able to identify such alleged witness and her interest or disinterest in the matters contained therein this fillable form alleged affidavit/criminal confession, whereas there is a line for printing the affiant’s name. Further, the alleged affiant’s name was misspelled as “Josha Emanuel Lorenzo-Guzman” twice, whereas his legal name as indicated at the bottom right hand of the form in his alleged New York State Driver License is “Joshua Emanuel Guzman-Lorenzo” (Tsirkas aff, exhibit G). Within this fillable form alleged as affidavit/criminal confession is visibly contained at least two different hand writings in designated spaces with typed in text:

“The Collision was intentionally caused and was in no way accidental in nature. I have personal knowledge that the Collision was intentionally caused because I participated in it as a (driver/passenger) of the (UH/adverse) vehicle with the expectation that I would profit monetarily as a result. I Joshua E. Guzman Lorenzo was promised $500.00. I hereby acknowledge that on Jan. 17, 2019 I gave a verbal confession to Investigator Bernard E Moran, in which I admitted to participating in this intentionally staged Collision, and provided the details concerning same to the investigator. Investigator Bernard E Moran advised me prior to the interview that he would be recording my verbal statement, and I gave him my consent to do so. I submit this affidavit voluntarily. I was not threatened, intimated, or otherwise forced to or coerced into giving the verbal statement or executing this affidavit” (id. at 1, ¶ 3-6).

Unlike Guzman-Lorenzo’s affidavit/criminal confession, Edwin Baez’s dated January 12, 2019 was notarized and all spaces in the fillable form were typed in text and not handwritten in. Baez is the driver/lessee of the rear-ending colliding U-Haul, insured by Repwest Insurance bearing claim number 01308341-2018. The language contained within the affidavit/criminal confession is similar with same substance and general fact import:

“The Collision was intentionally caused and was in no way accidental in nature. I was not injured and no one from the adverse Vehicle said they were injured. I was directed by a person not known to me to crash into the 2009 Honda Sedan owned by Mr. [sic] Guzman, Lorenzo, Joshua Emanuel a family member of my family. I have personal knowledge that the Collision was intentionally caused because I participated in it as a (driver Lessee) of the (U-Haul) vehicle Equipment with the expectation that I would profit, or a party involved would profit monetarily as a result. I was not informed about the details of any money amounts. I hereby acknowledge that on January 9th, 2019, I gave a verbal confession to Investigator Bernard E Moran, in which I admitted to participating in this intentionally staged Collision, and provided the details concerning same to the Investigator. Investigator Bernard E Moran advised me prior to the interview that he would be recording my verbal statement, and I gave him my consent to do so. This [*4]recorded statement was taken over my cell number to my mother’s cell phone while investigator Bernard E Moran recorded the interview onto his cell phone in the presence of my Mother inside my family apartment at I submit this affidavit voluntarily, I was not threatened, intimidated, or otherwise forced to or coerced into giving the verbal statement of executing this affidavit” (id. at 2, ¶ 3-6).

Defendant filed the instant Motion for Summary Judgment and to Amend the Caption on May 4, 2021, seeking an order pursuant to CPLR § 3025 (b) for leave to amend the caption to change Defendant’s name from Farmers Insurance Company to their underwriting company, Mid-Century Insurance Company and an order pursuant to CPLR §3212 granting summary judgment in favor of Defendant on grounds that Plaintiff’s assignor allegedly failed to appear for Examinations Under Oath and that material and false representations were made in the presentation of the claim. The motion was adjourned to July 19, 2021, November 16, 2022, March 6, 2023, and oral arguments heard on September 19, 2023, with decision reserved.


DISCUSSION

It is well-established law that summary judgment is a drastic remedy in that it deprives the non-movant party of her day in court and should only be granted if there is no material and triable issue of fact (Sillman v Twentieth Centurv-Fox Film Corp., 3 NY2d 395 [1957]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The burden is upon movant to make its prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to demonstrate the absence of any material issue of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; see also Giuffrida v Citibank, 100 NY2d 72 [2003]). It must clearly appear to the court that unequivocally there is no material and triable issue of fact presented from the motion papers (Di Menna & Sons v City of New York, 301 NY 118 [1950]). Where the court finds an existence of such an issue or where the issue may be so deemed “arguable” requires denial of summary judgment (Braun v Carey, 280 App Div 1019 [3d Dept 1952]; Barrett v Jacobs, 255 NY 520, 522 [1931]). “Issue-finding, rather than issue-determination, is the key to the procedure” for the court (Esteve v Avad, 271 App Div 725, 727 [1st Dept 1947]; Gravenhorst v Zimmerman, 236 NY 22, 38-39 [1923]). In evaluating a motion for summary judgment, a court is not to engage in determining credibility of an issue, but rather whether there exists an issue that requires determination of credibility (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). Moreover, where the court finds that there is even one material relevant issue that requires determination of credibility, in and of itself is sufficient for denial of motion (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404-05 [1957]). Where the court finds but a scintilla of doubt as to the existence of a triable issue of fact in dispute, summary judgment must be denied (Moskowitz v Garlock, 23 AD2d 943 [3d Dept 1965]). When reviewing the motion, the papers must be strictly scrutinized in the light most favorable to the opposing party and inferences that may be drawn therefrom must be accepted as true (Dykeman v Heht, 52 AD3d 767, 769, 861 NYS 2d 732 [2d Dept 2008]; see Pearson v Dix McBride, 63 AD3d 895, 883 [2nd Dept 2009]; Robinson v Strong Mem. Hosp., 98 AD2d 976 [4th Dept 1983]). Movant has the initial burden of coming forward with admissible evidence to support the finding of a prima facie entitlement as to warrant the court’s directing judgement in movant’s favor as a matter of law notwithstanding sufficiency of opposition or lack thereof (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once movant’s burden has been met, burden to rebut then shifts to the opposition to demonstrate, by admissible [*5]evidence, the existence of a material factual issue in dispute requiring a factfinder’s determination at trial (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v Citv of New York, 49 NY2d 557 [1980]). Opposition must “produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he [or she] rests his [or her] claim or must demonstrate an acceptable excuse” for failure to so do (id. at 560; Pride Acquisitions LLC v Benson, 2012 NY Misc LEXIS 5839, 2012 NY Slip Op 33065 [U] [Sup Ct 2012]). Conclusory vague contrived protestations not relevant nor material to overcome the burden to defeat judgement as a matter of law cannot be relied upon. Nor may opposition papers to rebut rely upon general overbroad allegations or mere immaterial non-relevant facts or law, unsupported by competent admissible evidence sufficient to require a trial (Fileccia v Massapequa Gen. Hosp., 63 NY2d 639 [1984]; Bustamonte v Koval, 98 AD2d 739 [2d Dept 1983]; Pan v Coburn, 95 AD2d 670 [1st Dept 1983]; Himber v Pfizer Labs., 82 AD2d 776 [1st Dept 1981]; Baldwin v Gretz, 65 AD2d 876 [3d Dept 1978]; Century Ctr. Ltd. v Davis, 100 AD2d 564 [2d Dept 1984]). Thus, where non-movant provides such admissible proof as to the existence of any material issue of fact that lends itself to doubt, equivocation, or credibility then this issue of fact must be determined by the factfinder either by judge or jury precluding summary judgement (Moskowitz v Garlock, 23 AD2d 943, 259 NYS 2d 1003 [3d Dept 1965]).

STAGED INTENTIONAL ACCIDENT

It is well established precedential case law, a staged or intentional vehicular collision is not a covered accident under New York State Insurance Law, thus a bar to vehicular insurance coverage (Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905-906 [2d Dept 2023], citing National Gen. Ins. Online, Inc. v Blasco, 210 AD3d 786 [2d Dept 2022]). In a most extreme example of an intentional albeit not per se staged vehicular collision which resulted in the operator being convicted of depraved indifference murder, the Appellate Division Second Department held:

“Under the automobile insurance policy issued to Eugene Wright, Allstate agreed to provide coverage for ‘accidents arising out of the ownership, maintenance or use . . . of an insured auto’. Hazel Wright’s actions of turning her vehicle around, accelerating, and striking the decedent with enough force to crush his skull, cannot be deemed ‘an accident’ within the meaning of the policy. Thus, the incident which led to the death of Robert Bostick did not fall within the scope of coverage provided by Eugene Wright’s automobile insurance policy” (Allstate Ins. Co. v Bostic, 228 AD2d 628, 628-629 [2d Dept 1996], citing People v Wright, 198 AD2d 249 [2d Dept 1993] and John Hancock Prop. & Cas. Ins. Co. v Warmuth, 205 AD2d 587 [2d Dept 1994]).


An accident is defined as an unforeseen unplanned happenstance lacking in intentionality.[FN1] Staged by its very definition is deliberately arranged for a desired outcome thus steeped in intentionality.[FN2] Notwithstanding that the homicide victim was an innocent third-party, the court held that the operator committed an intentional vehicular collision which was not an “accident” [*6]and thus not an insurable event and denied coverage to the third-party innocent in a wrongful death action. Indeed, it has been consistently upheld, innocent third parties injured by staged intentional vehicular collisions shall not be afforded insurance coverage (Adirondack Ins. Exch. v Rodriguez at 905-906, citing Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040 [2d Dept 2014]).[FN3] The Insurer bears the initial burden to establish that the vehicular collision at issue is a staged intentional vehicular collision as a matter of law by the lower standard of proof, preponderance of evidence, as opposed to the higher standard of proof, clear and convincing evidence (Repwest Ins. Co. v Sasan Family Chiropractic, P.C., 2016 NY Slip Op 31413 [U] *9-11 [Sup Ct, NY County 2016], citing V.S. Med. Servs., P.C. v Allstate Ins. Co., 25 Misc 3d 39 [App Term 2009]). It is a matter of the admissible evidence proffered by the Insurer to so meet that standard of proof. Alone, alleged vehicular staged accident conspirators’[FN4] affidavits are insufficient to meet this burden:

“Although by itself, Baptiste’s affidavit would not be sufficient, when his affidavit is considered together with the transcript of his recorded conversation detailing his role in underlying scheme as the driver of the U-Haul vehicle, as well as the affidavit of investigator Moran who personally interviewed Baptiste, recorded the conversation and certifies as to the truth of the transcription, plaintiff has made a sufficient prima facie showing that the collision was intentional and staged, and as such, is not a covered accident under plaintiff’s policy” (Repwest Ins. Co. v Sasan Family Chiropractic, P.C. at 7, citing Matter of Liberty Mut. Ins. Co. v Young, 124 AD3d 663 [2d Dept 2015], Emanvilova v Pallotta, 49 AD3d 413 [1st Dept 2008]; Matter of Travelers Indem. Co. v Cruz, 40 AD3d 362 [1st Dept 2007]; Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [2d Dept 2006]; Matter of Eagle Ins. Co. v Gueye, 26 AD3d 192 [1st Dept 2006]; State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2d Dept 2003]).


The court found that it was not the conspirator’s affidavit in and of itself that was sufficiently persuasive to meet the prima facie burden. Rather, the insurer investigator’s affidavit in which he swore under penalties of perjury that the alleged conspirator “told him that he intentionally struck the cab” was deemed “an admission and as such, properly considered as competent evidence in support of plaintiff’s prima facie case for the purpose of showing that the collision was staged” (id. at 5-6, Tower Ins. Co. of NY v Hossain, 134 AD3d 644 [1st Dept 2015]; Tower Ins. Co. of NY v Brown, 130 AD3d 545 [1st Dept 2015]; Castlepoint Ins. Co. v Jaipersaud, 127 AD3d 401 [1st Dept 2015]). The court noted that the investigator had personal knowledge as he directly spoke with the alleged conspirator, recorded the conversation, reduced the conversation to a written transcript which the investigator certified as to its accuracy and veracity of the conspirator’s verbal admission against his own interest of criminal conduct. Therefore, insurer’s admissible proffered proof by a preponderance of the evidence established that the vehicular collision was intentional and staged and thus insurer met its initial prima facie burden for summary judgment. The burden then shifted to provider seeking insurance coverage to rebut insurer’s prima facie case, which the court found it failed to do (id.). Rejected by court were the following: provider attorney’s affirmation without corroborating affidavit by affiant with personal knowledge; provider’s conclusory attack on the admissibility and veracity of the affidavits and the police accident report; and provider’s argument for time for discovery where “it has failed to show that facts essential to oppose the motion are in plaintiff’s exclusive knowledge, or that discovery may lead to facts relevant to a viable defense” in mere hope that further discovery may lead to any evidence which would support provider’s rebuttal of insurer’s prima facie case (id. at 11, see Adirondack Ins. Exch. v Rodriguez, 215 AD3d 904, 905-906 [2d Dept 2023], citing Santiago v City of NY, 191 AD3d 715 [2d Dept 2021]; Blake v City of NY, 148 AD3d 1101 [2d Dept 2017]).

In this instant matter, insurer fails to meet its burden to establish prima facie entitlement for summary judgment as a matter of law. Here, the insurer relies wholly on the affidavits of drivers related by consanguinity or affinity as alleged co-conspirators to attempt to prove material misrepresentation of a staged intentional accident, which has been held as insufficient. Rather, these are not merely affidavits, but alleged co-conspirators criminal confessions.[FN5] Here, insurer does not provide affidavit of an affiant with personal knowledge as to the veracity, [*7]accuracy, reliability nor the making of these notarized criminal confessions. Insurer woefully fails in its attempt to do so by merely adding to its claim representative affidavit that Repwest Insurance alerted Defendant Insurer as to the alleged fraud and impliedly of its own volition provided both confessions to Defendant. However, where Repwest Insurance has used such fillable affidavits/criminal confessions to establish summary judgment in staged intentional accidents, corroboration by an investigator with personal knowledge engaged in recorded, formally transcribed and certified conversations with alleged conspirators eliciting admissions against own interest. Herein, these fillable affidavits/criminal confessions are rejected out of hand. The mere presence of these fillable affidavits/criminal confessions are unreliable at best. Notably, both alleged conspirators are Latinos. Are they fluent in English? Did they understand what they were signing? The alleged fillable affidavits/criminal confessions are typed and handwritten in. Who actually typed them? Who handwrote the fillable areas? Who provided the specific typed or handwritten text? Did the alleged conspirators understand that they were signing admissions to a crime that may be used against them in a criminal court of law with exposure to prison time?[FN6] Were they given notification of their right against self-incrimination?[FN7] Most notably, the alleged conspirators executed fillable affidavit/criminal confessions were notarized two (2) days, on January 12, 2019, and seven (7) days, on January 17, 2019, after their attorney terminated representation. Thereby not represented by counsel.

ORDERED Amendment of caption is GRANTED. The Police accident report states insurance code as 762, which is designated as Mid-Century Insurance Company.[FN8]

There is a triable issue of fact as to alleged EUO no shows, where there is inconsistent names of proper insurer, Farmers Insurance Company or Mid-Century Insurance Company.

For the foregoing reasons, This Court finds as a matter of law that Defendant Insurer failed to satisfy its prima facie burden by a preponderance of the evidence for entitlement to summary judgment. Consequently, Defendant Insurer motion to dismiss pursuant to CPLR 3212 is hereby DENIED.

This constitutes the opinion, decision, and order of This Honorable Court.

Dated: October 11, 2023
Brooklyn, New York
SANDRA E. ROPER
Judge of the Civil Court

Footnotes

Footnote 1:Merriam-Webster, https://www.merriam-webster.com/dictionary/accident (accessed Oct. 5, 2023); Vocabulary.com, https://www.vocabulary.com/di ctionary/accident (accessed Oct. 5, 2023).

Footnote 2:Vocabulary.com, https://www.vocabulary.com/dict ionary/staged (accessed Oct. 5, 2023).

Footnote 3:“[I]f GEICO can prove that the collision was staged by Robinson, its insured, it would not be obligated to provide coverage under the policy regardless of whether Pontoon was an innocent third party (Nationwide Gen. Ins. Co. v Pontoon at 1041, citing Matter of Travelers Indem. Co. v Richards-Campbell, 73 AD3d 1076 [2d Dept 2010]; Govt. Emples. Ins. Co. v Shaulskaya, 302 AD2d 522 [2d Dept 2003]; Morris v Allstate Ins. Co., 261 AD2d 457 [2d Dept 1999]; Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [2d Dept 2006]; State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2d Dept 2003]).

Footnote 4:Although these matters are civil as to insurance coverage in perpetration of staged vehicular collisions, it is a New York criminal Class D and E felony pursuant to Alice’s Law effective 11/1/2019: Sections NY CLS Penal § 176.75 and NY CLS Penal § 176.80:

§ 176.75 Staging a motor vehicle accident in the second degree.
• A person is guilty of staging a motor vehicle accident in the second degree when, with intent to commit and in furtherance of a fraudulent insurance act, he or she operates a motor vehicle and intentionally causes a collision involving a motor vehicle.
• Staging a motor vehicle accident in the second degree is a class E felony.
§ 176.80 Staging a motor vehicle accident in the first degree.

A person is guilty of staging a motor vehicle accident in the first degree when he or she commits the offense of staging a motor vehicle accident in the second degree and thereby causes serious physical injury or death to another person, other than a participant in such offense.

• Staging a motor vehicle accident in the first degree is a class D felony.

(2019 NY ALS 151, 2019 NY Laws 151, 2019 NY Ch. 151, 2019 NY AB 3985). Further, there is also Federal criminal exposure to alleged conspirators: “‘As alleged, these defendants played bumper cars with the lives of unsuspecting New Yorkers, all to enrich themselves through insurance fraud. Insurance fraud through staged accidents presents a danger not only to the public health but also exacts a high cost to the public in the cost of insurance,’ stated United States Attorney Lynch. ‘We and our law enforcement partners will vigorously pursue and prosecute those who seek to profit by such fraud'” (Eight Indicted In Two Million Dollar Staged Accident Conspiracy, United States Attorney’s Office Eastern District Press Release, available at https://www.justice.gov/usao-edny/pr/eight-indicted-two-million-doll ar-staged-accident-conspiracy [May 8, 2013]).

Footnote 5:See n 4, supra.

Footnote 6:Although the Fifth Amendment of the U.S. Constitution guarantees the right against personal criminal self-incrimination by government, the NYS Constitution Article 1 Section 6, CPLR 4501 allows a version of same right in the civil context (see Flushing Natl. Bank v Transamerica Ins. Co., 135 AD2d 486 , 487 [2d Dept 1987], citing Slater v Slater, 78 Misc 2d 13, 16 [Sup Ct, Queens County 1974]; see also Lieb v Henry, 99 AD2d 757 [2d Dept 1984]; State v Carey Resources, Inc., 97 AD2d 508 [2d Dept 1983]).

Footnote 7:See n 6, supra.

Footnote 8:New York State Department of Financial Services, https://www.dfs.ny.gov/consumers/auto_insurance/dmv_insurance_codes_and_c ontacts [last accessed Oct. 5, 2023].

Jiang Acupuncture PC v State Farm Ins. Co. (2023 NY Slip Op 50961(U))

Reported in New York Official Reports at Jiang Acupuncture PC v State Farm Ins. Co. (2023 NY Slip Op 50961(U))



Jiang Acupuncture PC As Assignee of Soto, Plaintiff(s),

against

State Farm Insurance Company, Defendant(s).

Index No. CV-726719-19QU

Plaintiff’s Counsel:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302
Rockville Centre, NY 11570

Defendant’s Counsel:
McDonnell Adels Klestzick, P.L.L.C.
401 Franklin Avenue
Garden City, NY 11530


Wendy Changyong Li, J.

I. Papers

The following papers were read on Defendant’s motion for summary judgment seeking dismissal of Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment seeking judgment on its claims against Defendant:

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated April 21, 2021 (“Motion“) and electronically filed with the court on April 23, 2021. 1

Plaintiff’s Notice of Cross-Motion seeking summary judgment and Affirmation in Support dated and electronically filed with the court on August 30, 2021 (“Cross-Motion“). 2

Defendant’s Affirmation in Opposition to Cross-Motion and Reply dated as of January 10, 2022 (“Opposition to Cross-Motion“) and electronically filed with the court on January 11, 2022. 3


II. Background

In a summons and complaint filed November 15, 2019, Plaintiff sued Defendant insurance company to recover a total of $2,114.99 in unpaid No-Fault benefits for medical services provided to Plaintiff’s assignor Soto from January 29, 2019 to May 8, 2019 resulting from an automobile accident on September 11, 2018, plus attorneys’ fees and statutory interest. Defendant moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to provide additional documentary verification within one-hundred twenty (120) days (11 NYCRR § 65-3.8[b][3]). Plaintiff cross-moved for summary judgment on its claims against Defendant.


III. Discussion and Decision

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

Insurers must pay or deny No-Fault benefit claims “within thirty (30) calendar days after receipt of the proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). “New York Law prohibits unlicensed individuals from organizing a professional service corporation for profit or exercising control over such entities” (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 404 [2019], see Business Corporation Law §§ 1507; 1508; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886 [2d Dept 2017]; Liberty Mut. Ins. Co. v Raia Med. Health, P.C., 140 AD3d 1029, 1031 [2d Dept 2016]; One Beacon Ins. Group, LLC v [*2]Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). “A provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York . . .” (11 NYCRR § 65-3.16[a][12]; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d at 886; Liberty Mut. Ins. Co. v Raia Med. Health, P.C., 140 AD3d at 1031; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d at 740). In the No Fault context, corporate practices evincing a willful, material noncompliance with licensing and incorporation statutes may establish a medical provider’s ineligibility to receive reimbursement (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405, see State Farm v Mallela, 4 NY3d 313, 321 [2005]; Radiology Today, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d 4, 7 [App Term 2d Dept 2011]). The elements of common law fraud need not be shown (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405) if noncompliance with the above-described licensing requirement is established through admissible evidence.

Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). However, the defense that a health care provider is ineligible to receive No Fault insurance benefit payments is not subject to preclusion (All Boro Psychological Servs., P.C. v Auto One Ins. Co., 35 Misc 3d 136[A], 2012 NY Slip Op 50777[U] *2 [App Term 2d Dept 2012]; Radiology Today, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d at 6; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58, 59 [App Term 2d Dept 2006]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term 2006]).

In the instant matter, Defendant received Plaintiff’s eight (8) bills from February 26, 2019 to May 31, 2019 for services rendered from January 29, 2019 to May 8, 2019 respectively and denied those claims from July 18, 2019 to October 16, 2019 respectively. Defendant denied the claims for Plaintiff’s failure to provide requested verification. While Defendant denied Plaintiff’s claims well after the thirty (30) days required for timely payment or denial, Defendant may delay payment pending an investigation of Plaintiff’s alleged noncompliance with licensing and incorporation statutes, but only upon showing good cause to pursue the investigation (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405; State Farm v Mallela, 4 NY3d at 322).

A. Defendant’s Requests for Verification

“An 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” (11 NYCRR § 65-3.5[o]).

In the instant matter, Defendant acknowledged receiving the bills and mailed to Plaintiff a request (“First Verification Request“) for additional verification, in letters dated March 13, 2019, March 21, 2019, April 5, 2019, April 29, 2019, May 7, 2019, May 21, 2019 and June 11, 2019 (see Motion, Linwood Aff). Here, Plaintiff had one-hundred twenty (120) days to provide Defendant with requested verification under Plaintiff’s control or possession or a written [*3]explanation supporting Plaintiff’s failure to comply. In the First Verification Request, Defendant requested “1. all written agreements between Jiang Acupuncture and Jiang and Top One Medical Billing ; 2.montly statements sent by Top One Medical Billing to Jiang Acupuncture detailing amounts billed and collected by Top One Medical Billing on behalf of Jiang Acupuncture for the past 12 months; 3. all documents reflecting payments to or from Top One Medical Billing during the past 12 months, including endorsed payment drafts issued by Jiang Acupuncture to Top One Medical Billing for the period of September 2016-August 2017; 4. All documents reflecting or relating to gifts given by Jiang Acupuncture and/or Jiang… to… Davis, Graham Wellness Medical PC., or any person who worked at [XXX] Graham Avenue during the past 12 months, including but not limited to credit or debit card statements, credit or debit card receipts, purchase receipts, or documents reflecting cash withdrawals; 5. General ledger of Jiang Acupuncture for the past 12 months; 6. W-2/1099 issued by Jiang Acupuncture to… Jiang for most recent tax year available; 7. All schedule K-1s issued by Jiang Acupuncture for most recent tax year available; 8. Jiang Acupuncture’s complete copy of corporate tax returns for most recent tax year available; and 9. Jiang Acupuncture’s corporate bank records for the past 12 months” (id.). Defendant made follow up requests (“Second Verification Request,” together with the First Verification Request, the “Verification Request“) for the documents in letters dated April 17, 2019, April 25, 2019, May 8, 2019, June 4, 2019, June 11, 2019, June 27, 2019 and July 18, 2019 respectively (id.). Plaintiff did not dispute that Plaintiff did not provide the requested documents to Defendant.

B. Good Cause for Requested Verification

Defendant argued that the requested documents were necessary to verify the medical necessity of the billed services, and whether the ownership, control, and operation of Plaintiff complied with New York State licensing requirements. Plaintiff countered that the verification was improper, that Defendant failed to establish “that the verification requests were necessary”; and that “EUO transcripts [were] inadmissible hearsay, as the transcripts [were] not signed by the Plaintiff.” Plaintiff further argued that “CPLR 3116(a) provides that an EUO transcript must be submitted to the witness so that the witness can read it and make any changes.” (Cross-Motion, Fagan Aff.) The Court notes that Defendant’s supporting documents indicates that Plaintiff in the instant matter had various claims resulting from different assignors, including Plaintiff assignor in the matter before this Court, pending with the Defendant.

Contrary to Plaintiff’s contention, tax returns and bank statements were probative on whether a medical service provider complied with licensing laws (see All Boro Psychological Servs., P.C. v Auto One Ins. Co., 2012 NY Slip Op 50777[U] *1-2; Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 33 Misc 3d 64, 66 [App Term 2d Dept 2011], see Dore v Allstate Indem. Co., 264 AD2d 804, 804-05 [2d Dept 1999]). While mere allegations of fraud would be sufficient to sustain a motion to compel discovery of evidence of noncompliance with licensing laws (see Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 43 [App Term 2d Dept 2012]; Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d 153[A], 2012 NY Slip Op 50342[U] *2 [App Term 2d Dept 2012]), here, Defendant sought summary judgment, which requires admissible evidence (see Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3ed at 886; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d at 740; Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co., 22 Misc 3d [*4]142[A], 2009 NY Slip Op 50493[U] *2 [App Term 2d Dept 2009]; Oleg Barshay, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 78 [App Term 2d Dept 2006]). In our instant matter, Defendant failed to support its good cause with admissible evidence for investigating Plaintiff’s alleged noncompliance with the licensing statutes as explained below.

Defendant presented an affidavit sworn December 22, 2020, in which Baines, an investigator in Defendant’s Special Investigative Unit, detailed Defendant’s investigation of Plaintiff, as part of an alleged broader scheme of non-compliance with licensing laws, leading to the Verification Request at issue. In her affidavit, Baines stated that Defendant concerned that “whether (i) the services billed by the providers operating from 150 Graham Avenue (including Jiang Acupuncture) were medically necessary; (ii) whether the services billed were actually provided; and (iii) whether the ownership control and operation of Jiang Acupuncture and the other professional corporations (“PCs”) operating from [XXX] Graham Avenue complied with New York State licensing requirements.” As a result, an examination under oath (“EUO“) was requested and conducted. In her affidavit, Baines quoted Jiang Acupuncture’s listed owner, Jiang, L.Ac.’s testimony at the EUO to demonstrate that Jiang’s “testimony did not resolve State Farm’s questions[; and that, t]o the contrary, her testimony only raised additional questions as to whether Jiang Acupuncture’s services were reimbursable”. (see Motion, Baines Aff.) To support its Motion, Defendant presented the transcript of Jiang’s EUO, however, the transcript was not subscribed by Jiang. CPLR 3116 requires that the transcript “shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them [; that i]f the witness fails to sign and return the [transcript] within sixty days, it may be used as fully as though signed.” (CPLR 3116[a].) Here, it is unclear based on the Motion if the transcript was ever presented to Jiang for signature. Since Defendant failed to present a signed transcript of Jiang to support its Motion, Baines’ account of Jiang’s EUO testimony is hearsay. (see Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934, 935 [2d Dept 2021]; United Specialty Ins. v Columbia Cas. Co., 186 AD3d 650, 651 [2d Dept 2020]; Wells Fargo Bank, N.A. v Sesey, 183 AD3d 780, 783 [2d Dept 2020]; Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc 3d 147[A], 2015 NY Slip Op 50756[U] *1 [App Term 2d Dept 2015]; Apazidis, M.D., P.C. v State Farm Mut. Auto. Ins. Co., 71 Misc 3d 1225[A].)

In Defendant’s Opposition to Cross-Motion, Defendant did not address the issue of unassigned transcripts, however, simply relied on the truth of Jiang’s EUO testimony to establish good cause for requesting verification from Plaintiff which in the context of a summary judgment motion requires admissible evidence. Since Defendant failed to demonstrate its prima facie entitlement to a judgment as a matter of law, the court must deny Defendant’s motion for summary judgment (Pullman v Silverman, 28 NY3d 1060, 1063 [2016]; United Specialty Ins. v Columbia Cas. Co., 186 AD3d at 651-52; Matter of Long Is. Power Auth. Hurricane Sandy Litig., 165 AD3d 1138, 1140 [2d Dept 2018]; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d at 887).

Defendant’s motion for summary judgment dismissing Plaintiff’s complaint is denied.

C. Plaintiff’s Cross-Motion

Regarding the Cross-Motion, Plaintiff bore the burden to show it submitted the statutory [*5]claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits was overdue” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 501; New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 648 [2d Dept 2014]; NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Here, Defendant’s denial of claim forms acknowledging receipt of Plaintiff’s claims constituted prima facie evidence that Defendant received Plaintiff’s claims and that the denial was overdue (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). However, an ineligibility of receiving No Fault insurance benefit due to non-compliance with licensing statutes defeats such prima facie showing.

Based on foregoing discussion, Defendant had identified the existence of evidence in Plaintiff’s exclusive control which raised the issue of Plaintiff’ ineligibility to receive No Fault benefit payments. Because the requested verification are still outstanding, factual issues exist as to Plaintiff’ eligibility to receive No Fault benefit payments. Since Defendant’s defense of Plaintiff’s ineligibility to receive No Fault benefit payments is not precluded by Defendant’s untimely denial of Plaintiff’s claims and Plaintiff still has not provided the requested verification, this Court also must deny Plaintiff’s Cross-Motion (CPLR 3212[f]; RLC Med., P.C. v Allstate Ins. Co., 29 Misc 3d 134[A], 2010 NY Slip Op 51962[U] *1 [App Term 2d Dept 2010]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *3 [App Term 2d Dept 2010]; Five Boro Psychological Servs., P.C. v AutoOne Ins. Co., 27 Misc 3d 89, 90 [App Term 2d Dept 2010]).


IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment (Motion Seq. #1) is denied, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgement for it’s claim (Motion Seq. #3) is denied.

This constitutes the DECISION and ORDER of the Court.

Dated: September 11, 2023
Civil Court of the City of New York
_____________________________________
Honorable Wendy Changyong Li, J.C.C.

MLG Med. P.C. v Nationwide Mut. Ins. Co. (2023 NY Slip Op 23199)

Reported in New York Official Reports at MLG Med. P.C. v Nationwide Mut. Ins. Co. (2023 NY Slip Op 23199)

MLG Med. P.C. v Nationwide Mut. Ins. Co. (2023 NY Slip Op 23199)
MLG Med. P.C. v Nationwide Mut. Ins. Co.
2023 NY Slip Op 23199 [80 Misc 3d 651]
June 30, 2023
Lanzetta, J.
Civil Court of the City of New York, Queens County
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, November 1, 2023

[*1]

MLG Medical P.C., as Assignee of Tracy Thomas, Plaintiff,
v
Nationwide Mutual Insurance Company, Defendant.

Civil Court of the City of New York, Queens County, June 30, 2023

APPEARANCES OF COUNSEL

Hollander Legal Group, P.C., Melville (Justin A. Calabrese of counsel), for defendant.

Law Offices of Gabriel & Moroff, P.C., Rockville Centre (John E. Fagan of counsel), for plaintiff.

{**80 Misc 3d at 652} OPINION OF THE COURT

Claudia Lanzetta, J.

Defendant’s motion for summary judgment and to dismiss plaintiff’s complaint on the grounds that plaintiff assignor failed to appear for four duly and timely scheduled examinations under oath (EUO) is granted in its entirety, and plaintiff’s cross-motion is denied. Plaintiff’s argument that defendant failed to establish timely denial, in that denial exceeded the 30-day time period from the second EUO no-show, is unpersuasive and outmoded in light of the Appellate Division’s recent decision in Quality Health Supply Corp. v Nationwide Ins. (216 AD3d 1013 [2d Dept 2023]), reversing a decision of the Appellate Term (see Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

This court has struggled with this issue in the past. Despite that the earlier Quality Health held that “the 30-day period for an insurer to pay or deny a claim based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance” (2020 NY Slip Op 51226[U], *1 [citation omitted]), this court found that a timely denial issued after a fourth missed EUO was sufficient to support defendant’s request for summary judgment (see NGM Acupuncture, P.C. v Nationwide Ins. Co., Civ Ct, Queens County, June 15, 2021, index No. 706015/2019). This court reasoned that to hold otherwise puts defendants at a disadvantage for offering plaintiffs additional opportunities to appear for an EUO, and disincentivizes diligent and thorough investigations. Even more so, it gave plaintiffs an advantage if they did appear at a third or fourth scheduled EUO.

Following the earlier Quality Health, the Appellate Term issued a decision in FJL Med. Servs., P.C. v Nationwide Ins. (77 Misc 3d 129[A], 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]) that addressed this issue in a more comprehensive fashion. FJL essentially confirmed the finding of the Appellate Term in Quality Health. It reasoned that “an insurer cannot indefinitely extend its toll of the time to pay or deny a claim after a second nonappearance at a scheduled EUO by scheduling successive additional EUOs until the insurer unilaterally decides that it has offered enough opportunities{**80 Misc 3d at 653} to appear and end its toll” (2022 NY Slip Op 51213[U], *2-3). Disregarding defendant’s arguments based upon the regulations and rooted in fairness principles, the court framed the issue as whether an insurer properly continued its toll period to pay or deny a claim, instead of whether a provider or insured appeared for a duly scheduled and/or rescheduled EUO.

Although this court continued to disagree with the premise expressed in Quality Health and expounded upon in FJL, in light of that later decision, this [*2]court capitulated and denied a defendant’s motion contemplating the same issue discussed here (see Access Care PT, P.C. v Palisades Ins. Co., 2023 NY Slip Op 32567[U] [Civ Ct, Queens County, Mar. 7, 2023]).

Having to contend with its prior decisions, this court is being asked to, again, consider this issue. However, now it has the Appellate Division’s decision in Quality Health which, arguably, endorses this court’s earlier opinion in NGM Acupuncture. In reversing the Appellate Term, the Appellate Division found that a denial for nonappearance issued after the last scheduled EUO, and in that case there were three, was timely and proper (see Quality Health Supply Corp., 216 AD3d at 1013). With this in mind, the court finds here that defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing plaintiff’s complaint by showing that its scheduling letters were timely and properly mailed, that the assignor failed to appear on each of the four scheduled dates, and that it ultimately issued a timely and proper denial following a failure to appear on the last scheduled date (see e.g. Quality Health Supply Corp., 216 AD3d 1013).

It is noteworthy that plaintiff did not deny receipt of the scheduling letters or that the assignor failed to appear on all four occasions. Actually, plaintiff highlighted that it responded to defendant’s scheduling letters by objecting to the location of the EUO but, also, expressing its assignor’s willingness to attend. Despite these responses, plaintiff seeks to penalize defendant for extending multiple opportunities to its assignor to appear. The contradictory nature of this argument and its effect of placing insurers in a problematic position is evident.

Most importantly, and what this court believes was previously overlooked, is that appearance for an EUO is a condition precedent to coverage (see generally Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020];Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35{**80 Misc 3d at 654} AD3d 720, 722 [2d Dept 2006]; Excel Imaging, P.C. v Infinity Select Ins. Co., 46 Misc 3d 128[A], 2014 NY Slip Op 51796[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). By circumventing this principle, and virtually ignoring the EUO nonappearances, form prevailed over substance. The most recent Quality Health rectifies this imbalance and, also, promotes the mandate of the no-fault regulations prohibiting insurers from treating their insureds in an adversarial fashion (see 11 NYCRR 65-3.2 [b]; see also NGM Acupuncture, P.C. v Nationwide Ins. Co.). Ultimately, a plaintiff’s failure to appear for a duly scheduled EUO, barring any issues of timeliness, should be the predominate consideration in disputes such as the one before this court.

Plaintiff’s complaint is hereby dismissed.

Pak Hong Sik MD Med. Care, P.C. v Omni Ins. Co. (2023 NY Slip Op 50431(U))

Reported in New York Official Reports at Pak Hong Sik MD Med. Care, P.C. v Omni Ins. Co. (2023 NY Slip Op 50431(U))



Pak Hong Sik MD Medical Care, P.C. AAO JOSE FELICIANO, Plaintiff,

against

Omni Insurance Company, Defendant.

Index No. CV-714236-22/RI

Kopelevich & Feldsherova PC for Plaintiff

Gallo Vitucci Klar LLP for Defendant

Robert J. Helbock Jr., J.

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

Papers NYSCEF Numbered
Notice of Motion and Affirmation/Affidavit annexed 21-28
Notice of Cross-Motion and Affirmation in Opposition 29-33
Interim Order of the Court 34
Defendant’s Affirmation in Further Support 35

After argument and upon the foregoing cited papers, the decision on Defendant’s motion and Plaintiff’s cross-motion is as follows:

Plaintiff, PAK HONG SIK MD MEDICAL CARE, P.C. (hereinafter, “Plaintiff”), as assignee of JOSE FELICIANO (hereinafter, “Assignor”), commenced this action against the defendant, OMNI INSURANCE COMPANY (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion (i) to dismiss for lack of personal jurisdiction and failure to state a cause of action and (ii) for summary judgment pursuant to CPLR 3212. Plaintiff cross-moved for a motion finding the Defendant in default for failing to interpose an Answer in this matter. The Defendant filed an affirmation in further support of its motion and in opposition to the cross-motion. The parties argued the motion before the undersigned on May 4, 2023, and the motion was marked submitted.

The Defendant moves to dismiss the matter on the grounds that this Court lacks personal jurisdiction over the Defendant. The Defendant argues that it is not licensed to issue insurance [*2]policies in New York or transact any business in New York. In support of its motion, Defendant presented an affidavit of Kim Blankenship, the Assistant Vice President of Operations of American Independent Companies Inc., (“AICI”) the alleged parent company of the Defendant. The Court notes that the affidavit was notarized in 2020 in Cobb County, Georgia and contains an unsigned certificate of conformity. While the lack of a certificate of conformity may be excused under CPLR 2001, the Court finds that the affidavit still predates the accident at issue by more than six months. Considering the Defendant’s motion is made more than 2 years after the affidavit was executed, the Defendant does not offer any reasonable explanation for failing to produce a contemporaneous affidavit.

The Defendant also submits a screenshot of a website entitled “NAIC.” The Court finds the screenshot of the NAIC website inadmissible for several reasons. The screenshot is not dated, does not have an accompanying affidavit explaining its origin, and does not list the website’s URL. While this website may be useful to the Defendant’s investigation, it is not offered in admissible form.

Also annexed to the Defendant’s motion is a NYS DMV MV-104 accident report (incorrectly labeled and referred to as a “Police Accident Report”). The Court takes judicial notice this is not a report issued or completed by the New York City Police Department. The accident report was allegedly completed and signed by Mr. Feliciano reporting the accident to the DMV listing the Defendant as his carrier. However, the state issuing the driver’s license and vehicle registration, along with the insurance code, are all missing from the document.

Defendant cites to Matter of Eagle Ins. Co. v Gutierrez-Guzman, a matter decided in 2005 by the Appellate Division, Second Department, in support of its motion (21 AD3d 489, 491 [2d Dept 2005]). In this case, the court found that the Supreme Court, Nassau County did not have personal jurisdiction over an insurance company named “American Independent Insurance Company” (“AIIC”). Defendant infers that AIIC and AICI are one in the same. However, there has been no evidence presented to demonstrate that the two companies are in fact the same entity or even the parent company of the Defendant. Assuming for a moment that AIIC and AICI are the same corporate entity, and the Defendant’s parent company, the Court does not find this decision binding since it was related to an accident that occurred over twenty years ago, and that the Defendant’s business practices in New York might have changed since the Appellate Division’s decision.

It should be noted that the Defendant brought a prior motion for identical relief that was denied by the undersigned in a decision and order dated January 30, 2023. In the prior order, the Court found Defendant’s unsigned affidavit of Ms. Blankenship to be defective and inadmissible. Inasmuch as the Defendant states that it disagrees with the Court’s prior order, there is no request before the Court to vacate the prior order.

In opposition, the Plaintiff argues that the Defendant is barred from bringing the instant motion due to the “single motion rule.” The Plaintiff also cites the “accident report” to support a finding of jurisdiction. The Court finds this to be a self-serving document signed by Mr. Feliciano in which any information relevant to jurisdiction is missing. In support of its cross-motion for a default judgment, the Plaintiff argues that the Defendant is in default for failing to file an answer within 30 days from the Court’s prior order, as it was directed to do.

DISCUSSION

Turning first to the branch of Defendant’s motion which is for summary judgment, that request must be denied. Since the Defendant has yet to file an answer, issue has not been joined, and any motion for summary judgment is improper. The joinder of issue is a prerequisite that is “strictly adhered to” (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). This does not bar the Defendant from bringing a motion for summary judgment once issue has been joined.

As to the Defendant’s motion to dismiss, this Court finds the Defendant is barred from seeking such relief in successive motions. CPLR 3211(e) states that “At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) of this rule, and no more than one such motion shall be permitted” (emphasis added). Courts have consistently held this “single motion rule” to bar successive motions to dismiss (See Ramos v City of New York, 51 AD3d 753, 754 [2d Dept 2008]). The purpose of the single-motion rule is “not only to prevent delay before answer, but also to protect the pleader from being harassed by repeated CPLR 3211(a) motions and to conserve judicial resources” (Oakley v County of Nassau, 127 AD3d 946, 947 [2d Dept 2015] [internal quotation marks and citations omitted]). While the Defendant is barred from seeking pre-answer dismissal, the single motion rule will not prohibit the Defendant from seeking that relief in another form, such as a motion for summary judgment (See Id; Tapps of Nassau Supermarkets, Inc. v Linden Blvd., L.P., 269 AD2d 306, 307 [1st Dept 2000]).

The Court notes that if the Defendant’s motion was not barred by the “single motion rule,” the Defendant still failed to meet its entitlement to dismissal, based upon the defects and inadmissible evidence explained above.

As to the Plaintiff’s cross-motion, the Court finds that while the Defendant did not file an answer as directed by the Court, the Defendant did file this motion within 30 days of the Court’s prior order. Therefore, the Defendant is now placed on notice that this Court will not entertain any further pre-answer motions to dismiss and must interpose an answer in this matter.

Accordingly, it is hereby

ORDERED that Defendant’s motion is DENIED in its entirety; and it is further

ORDERED that the Defendant shall file and serve its Answer within 14 days from the date of this Order; and it is further

ORDERED that the Plaintiff’s cross-motion is DENIED, with leave to renew should Defendant fail to timely file its Answer as directed herein by the Court.

The foregoing constitutes the Decision and Order of the Court.

Date: May 10, 2023
Staten Island, New York
Hon. Robert J. Helbock, Jr.
Judge, Civil Court
Glispy v Ameriprise Ins. Co. (2023 NY Slip Op 50338(U))

Reported in New York Official Reports at Glispy v Ameriprise Ins. Co. (2023 NY Slip Op 50338(U))



Michele B. Glispy AAO RODRIGUEZ, MARIA, Plaintiff,

against

Ameriprise Insurance Company, Defendant.

MICHELE B. GLISPY AAO RODRIGUEZ, MARIA, Plaintiff,

against

AMERIPRISE INSURANCE COMPANY, Defendant.

MICHELE B. GLISPY AAO RODRIGUEZ, MARIA, Plaintiff,

against

AMERIPRISE INSURANCE COMPANY, Defendant.

Index No. CV-721025-20-KI

Plaintiff: Oleg Rybak
The Rybak Firm PLLC
1810 Voorhies Ave, Suite 7
Brooklyn, NY 11235-3313
(718) 975-2035
orybak@rybakfirm.com

Defendant: Steven Levy
Callinan and Smith LLP
3361 Park Avenue-Suite 104
Wantagh, NY 11793
(516)-784-5148
slevy@callinansmith.com

Jill R. Epstein, J.

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this Motion for Summary Judgment submitted on February 1, 2023,

Papers/Numbered
Notice of Motion and Affirmations/Affidavits Annexed 1-6
Affidavits/Affirmations in Opposition 7-13
Reply 14-16

Upon the foregoing cited papers, and oral argument, the Decision/Order on the Defendant’s Motions for Summary Judgement and Plaintiff’s Cross-Motions for Summary Judgement is as follows:

Defendant, Ameriprise Insurance Company, (hereinafter “Defendant”) moves by Notices of Motion dated November 2, 2020, for Orders pursuant to CPLR § 3212 (b) granting Defendant summary judgment as a matter of law and dismissing Plaintiff’s Summons and Complaint, in its entirety, with prejudice, based upon Plaintiff’s failure to attend duly scheduled Examinations Under Oath (“EUOs”). These matters are consolidated for the purposes of oral argument and this motion. Plaintiff, Michele B. Glispy, (hereinafter “Plaintiff” or “Assignee”), cross moves by Notices of Cross-Motion dated, July 9, 2021, July 12, 2021, and July 6, 2021, respectively, pursuant to CPLR § 3211 (c), CPLR § 3212 (a) seeking summary judgment in favor of plaintiff, denying defendant’s Motion for Summary Judgement, or limiting the issues of fact for trial pursuant to CPLR § 3212 (g), and seeking dismissal of defendant’s affirmative defenses pursuant to CPLR § 3211 (b).

This matter involves a claim for assigned first-party no fault benefits, which resulted from plaintiff providing medical treatment to Assignor, Maria Rodriguez (hereinafter “Assignor”), following a motor vehicle accident, which occurred on October 25, 2018. Defendant acknowledges receipt of specified bills in its denials, however, at oral argument both defendant and plaintiff agreed that bills one, two, and three were not received. After the receipt of the bills specified, defendant sent two Examinations Under Oath (hereinafter “EUO”) scheduling letters for each matter, CV-721025-20-KI letters are dated January 23, 2019, and February 19, 2019, CV-721026-20-KI and CV- 721033-20-KI letters are both dated January 4, 2019 and January, 23, 2019, respectively, to the assignor’s home address listed on the NF-3’s and Verification of Treatment forms and to the provider’s billing address. Defendant annexed affidavits in all three instant matters of Michael A. Callinan, Esq. (hereinafter the “Callinan Affidavits”) all dated October 19, 2020, in order to establish the mailing of the scheduling letters and the non-appearance of the assignor for the scheduled EUO’s. Defendant states that the [*2]assignor did not attend the two scheduled EUO’s for each of the three matters sub judice, and therefore, the defendant asserts that they are entitled to summary judgement dismissing the complaints.

At oral argument, defendant confirmed that it properly mailed EUO scheduling letters to the assignor for all three scheduled EUO’s. Defendant contends that the EUO scheduling letters sent to the assignor, the Callinan affidavits establishing both mailing of the letters and the non-appearance of assignor, in conjunction with a statement on the record, are sufficient under the current no-fault laws, to warrant dismissal of plaintiff’s case for the assignor’s failure to appear. The Court notes that the Callinan affidavits were identical in sum and substance as to the instant matters, but for the dates of the scheduling letters. As set forth below, defendant put forth numerous cases in which the Second Department has held that affidavits similar to Mr. Callinan’s were sufficient to establish the proper mailing of EUO scheduling letters and EUO non-appearance.

Plaintiff argues that the Callinan affidavits were conclusory and insufficient to establish proper mailing as required under CPLR. Plaintiff asserted that defendant did not annex copies of the envelopes in which the scheduling letters were sent as was required according to plaintiff. In the Cross-Motions for Summary Judgement and at oral argument, plaintiff drew the Court’s attention to the matter of Carle Place Chiropractic v. New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 1139A, 866 NYS2d 90 [1st Dist. Nassau Co. 2008]. Plaintiff argues that the Court’s rationale in Carle Place should be applied to the matters sub judice for failure to establish proper mailing procedure. The case is not an appellate case and has no precedential authority herein.

Plaintiff seeks to create new law by using this Court to impose more rigorous requirements on defendants to prove EUO non-appearance and the mailing of scheduling EUO letters. There is no legal requirement of such additional proof along with personal knowledge of mailing procedures to prove mailing of scheduling notices. Additionally, there is no requirement of that which plaintiff urged at oral arguments, to wit: annexing proof of first class mailing and/or envelopes in which the scheduling letters were sent, in addition to affidavits by an attorney with personal knowledge of the mailing of the specific scheduling letters at issue.

All three of plaintiff’s Cross-Motions acknowledge receipt of the scheduling letters by stating that plaintiff responded to the EUO scheduling letters in March of 2019. Though not annexed in plaintiff’s cross-motions, defendant’s motion papers contain, three letters from plaintiff’s counsel, all dated March 5, 2019, after the two scheduled EUO dates had already passed in each instant matter.

In this matter the Callinan affidavits describe in detail that he created the mailing procedure at the legal office handling these matters for defendant, as he was partner and oversaw the mailing of EUO scheduling letters, explicitly outlining his personal knowledge of mailing procedure. The Callinan affidavits state Mr. Callinan was personally responsible for handling these instant matters and these files “on a day-to-day basis.” His “personal knowledge” was not limited to file review and office mailing procedure. It was based upon his personal involvement on these matters in conjunction with review of the file, his creation and over-sight of office mailing procedure, and his knowledge of office mailing procedure.

Defendant argues that the Callinan affidavits established both mailing and the EUO non-appearances. There was no contradictory evidence provided by plaintiff in their motion papers aside from a blanket assertion that defendant did not have enough personal knowledge to establish proper mailing and EUO non-appearance and letters allegedly sent to defendant in [*3]March 2019 attempting to reschedule the EUO’s that were not actually annexed. Plaintiff did not provide any affidavit from its assignor to contradict the assertions made by the Callinan affidavits. Defendant cited to multiple cases in which the Second Department upheld both the sufficiency of similar affidavits to establish EUO no-shows and mailing of scheduling letters, to those of the Callinan affidavits in the matters sub judice as set forth below. Though plaintiff’s Cross-Motion asserts that there was no statement on the record to prove EUO non-appearance, in each of the three instant matters, defendant attached Mr. Callinan’s statements (Defendant’s Motions for Summary Judgement Exhibit “F”) on the record reflecting the non-appearances of plaintiff’s assignor for the scheduled EUO’s in contradiction to plaintiff’s assertions.

In Adelaida Physical Therapy, P.C. v Ameriprise Auto & Home, 58 Misc 3d 130(A), 92 NYS3d 702 (2nd Dept., 2017), the Second Department held that, “contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs” (see, Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 827 NYS2d 217 [2006]). Adelaida Physical Therapy, P.C. v Ameriprise Auto & Home, 58 Misc 3d 130(A), 92 NYS3d 702 (2nd Dept., 2017). Adelaida represents one of many examples proffered by defendant in which the Second Department has held that attorney affirmations alone can establish both mailing of EUO scheduling letters and non-appearance for an EUO. The Court in Adelaida did not require defendant to provide envelopes in which the scheduling letters were sent out in, nor did it as plaintiff requested in its Cross-Motion, ask defendant to provide a log of other people scheduled for EUO’s the same day as the assignor in question. Id. The affirmation of the attorney was relied upon in Adelaida to prove both sufficient mailing and failure of the assignor to appear for an EUO and therefore, affirmed the dismissal of plaintiff’s case. Id.

The Second Department applied similar logic in Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins., 1, 69 Misc 3d 143(A), 133 NYS3d 384, (2nd Dept. 2020) and wrote “defendant established that initial and follow-up letters scheduling an examination under oath had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 857 NYS2d 211 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 827 NYS2d 217 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123, 857 NYS2d 211). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing the complaint. Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins., 1, 69 Misc 3d 143(A), 133 NYS3d 384, (2nd Dept. 2020). Similarly, to Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins., this Court finds that in the three matters sub judice that defendant has established timely mailing of EUO scheduling letters and the non-appearance of the assignor at scheduled EUO’s by the Callinan affidavits and Mr. Callinan’s three statements on the record. Additionally, plaintiff has failed to raise an issue of fact for trial.

Summary Judgment is a drastic remedy and should be granted only in the absence of any triable issue of material fact. See, Rotuba Extruders, Inc. v Ceppos, 46 NY2d 141 [1978]; Andre v Pomeroy, 35 NY2d 361 [1974]. In order to prevail, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]. The appearance of the eligible injured person, or its assignor, at an EUO is a condition precedent [*4]to coverage. See W&Z Acupuncture, P.C. v. Amex Assur. Co., 24 Misc 3d 142(A) (NY App. Term July 31, 2009). The Second Department holds that, “[a]n insurer may establish its prima facie entitlement to judgment as a matter of law based on the failure to submit to an EUO by establishing that the letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at two scheduled EUOs, and that the insurer issued a timely and proper denial of the claims.” Nationwide Affinity Ins. Co. of Am. v. George, 183 AD3d 755, 756 (2nd Dept. 2020).

The Court finds that though other arguments were raised by both plaintiff and defendant in their Motion papers, the sole issues at oral argument were the mailing of the scheduling letters and the veracity of the Callinan affidavits to prove non-appearance of the assignor at the scheduled the EUO’s. The Court found no need to explore those additional written arguments as they are rendered moot by the issues determined in this decision.

Thus, the defendant’s Motion for Summary Judgement must be granted as plaintiff has failed to rebut the presumption of the mailing of the EUO scheduling letters and non-appearance at the EUO’s. Plaintiff has failed to raise an issue of fact for trial. Therefore, Plaintiff’s motion must be denied by the Court as it is moot.

WHEREFORE it is hereby

ORDERED AND ADJUDGED that defendant’s motions for summary judgement dismissing the complaint is granted pursuant to CPLR § 3212 and the matter is dismissed. Plaintiff’s cross-motions for Summary Judgement are denied in all respects.

Dated: Brooklyn, New York
April 13, 2023

_______________s/_____________________
HON. JILL R. EPSTEIN, JCC

Integrated Pain Mgt., PLLC v Empire Fire & Mar. Ins. Co. (2023 NY Slip Op 50219(U))

Reported in New York Official Reports at Integrated Pain Mgt., PLLC v Empire Fire & Mar. Ins. Co. (2023 NY Slip Op 50219(U))



Integrated Pain Management, PLLC, as assignee of Mikwam Murphy, Plaintiff,

against

Empire Fire & Marine Insurance Company, Defendant.

Index No. CV-712234-21/BX

Law Offices of Gabriel & Moroff, P.C., by Joseph Padrucco, Esq., for Plaintiff

McDonnell Adels & Klestzick, PLLC, by Christopher Stevens, Esq., for Defendant

Ashlee Crawford, J.

Recitation as Required by CPLR §2219(a), the following papers were read on this motion:

Papers Numbered
Defendant’s Notice of Motion, Affirmation, and Exhibits in Support 1

Plaintiff Integrated Pain Management, PLLC, seeks $366.64 in no-fault insurance benefits for medical services it rendered to assignor Mikwam Murphy on August 16, 2018. The services consisted of treatment for injuries Murphy allegedly sustained in an automobile accident on July 22, 2018. Defendant Empire Fire & Marine Insurance Company moves pursuant to CPLR § 3212 for summary judgment dismissing the complaint, contending that plaintiff is barred by the doctrines of res judicata, collateral estoppel, and law of the case from relitigating the issue of coverage for this claim (Stevens Affirm. ¶ 18). Plaintiff does not oppose the motion.


Prior Action

In 2019, Empire Fire commenced a declaratory judgment action in Kings County Supreme Court against Integrated Pain Management and Murphy, among others (see Empire Fire & Marine Ins. Co. v. Adams, Index No. 512686/19 [Sup. Ct., Kings Co.] [the “Brooklyn Action”]). In that case, Empire Fire alleged that Integrated Pain Management and Murphy participated in an insurance fraud scheme in which rented vehicles would intentionally get into “accidents” with unsuspecting third-party drivers (id. at NYSCEF No. 1). The drivers and passengers in the rented vehicles would receive payments of up to $1,500, and in exchange for those payments would seek medical treatment from certain designated medical providers, who would seek reimbursement under Empire Fire’s no-fault insurance policy (id.).

Empire Fire sought a declaration that it was not obligated to pay for the medical treatments provided by Integrated Pain Management to Murphy arising out of a July 22, 2018 automobile accident, the same accident at issue in the instant case. Neither Integrated Pain Management nor Murphy appeared in the Brooklyn Action.

By decision and order dated April 8, 2021, Supreme Court granted default judgment for [*2]Empire Fire, ruling in relevant part that Empire Fire was not contractually obligated to reimburse Integrated Pain Management for the services it rendered to Murphy arising from the July 22, 2018 accident, because the alleged losses were not the result of an “accident” as contemplated by the insurance policy (id. at NYSCEF 129).


Discussion

In support of summary judgment in this action, defendant argues that plaintiff’s claim is barred as a matter of law under the doctrines of res judicata, collateral estoppel, and law of the case, given Supreme Court’s ruling that contractually there is no no-fault coverage for the July 22, 2018 “accident.” It emphasizes that plaintiff Integrated Pain Management and Murphy were both parties to the Brooklyn Action and the claim here arises out of the very same accident at issue in that case.

A party seeking summary judgment “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” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat summary judgment (id.). Summary judgment is a drastic remedy and must be denied if there is any doubt as to the existence of a triable issue of material fact (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). The evidence must be viewed in the light most favorable to the party opposing summary judgment (Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007]).

“Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). “As a general rule, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (id. [internal quotation marks and citation omitted]). “Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party , whether or not the tribunals or causes of action are the same” (id. at 349 [internal quotation marks and citation omitted]). “The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (id.; see also Rojas v Romanoff, 186 AD3d 103, 107-09 [1st Dept 2020][comparing claim preclusion and issue preclusion]).

The Court finds that defendant has met its prima facie burden on summary judgment under the doctrine of collateral estoppel. Plaintiff seeks in this action to relitigate the identical issue raised and decided against it in the Brooklyn Action; that is, plaintiff’s right to payment under defendant’s no-fault insurance policy for medical services it rendered to Murphy related to the July 22, 2018 “accident.” Both parties had a full and fair opportunity to litigate this question in the Brooklyn Action, and Supreme Court clearly decided it against plaintiff. Plaintiff has failed to raise an issue of fact sufficient to defeat summary judgment.

Accordingly, it is hereby

ORDERED that Defendant’s motion for summary judgment seeking dismissal of the complaint is GRANTED and the case is dismissed with prejudice.

This constitutes the decision and order of the Court.


_________________________________
HON. ASHLEE CRAWFORD, J.C.C.
Dated: Bronx, New York
March 22, 2023