CV-707232-16/QU

LAW OFFICES OF GABRIEL & SHAPIRO, L.L.C.

Counsel for Plaintiff

Andrew J. Dowd, M.D.

As Assignee of Audra Fulton

3361 Park Avenue, Suite 1000

Wantagh, New York 11793

Joseph J. Padrucco, Esq.

LAW OFFICES OF KAREN L. LAWRENCE

Counsel for Defendant

Allstate Insurance Company

1225 Franklin Avenue, Suite 100

Garden City, New York 11530

Marie-Ann Inguanti, Esq.

I.Background

Andrew Dowd, M.D. (the “Plaintiff”), as assignee of Audra Fulton (the “Assignor”), commenced this action based on Assignor’s automobile accident that allegedly occurred on or about February 6, 2012. Plaintiff served a summons and complaint on defendant Allstate Insurance Company (the “Defendant”) on or about October 12, 2016. Defendant joined issue by service of its answer on or about October 28, 2016.

On or about April 18, 2012, a letter purportedly addressed to Assignor’s alleged attorney, Richard Gershman & Associates, was sent on behalf of Defendant by Defendant’s contractor to [*2]schedule an independent medical examination (“IME”). A copy of the letter was also allegedly mailed to Assignor. The April 18, 2012 IME letter stated that Assignor’s IME was scheduled for May 5, 2012 at 1:30 p.m. and notably indicated that the IME was prompted by an accident that took place on February 5, 2012—not February 6, 2012, which is the alleged date of the accident in the current matter’s complaint. Assignor failed to appear for the scheduled IME on May 5, 2012.

On or about May 9, 2012, a second letter was allegedly mailed to Richard Gershman & Associates and Assignor that rescheduled Assignor’s IME to May 19, 2012 at 2:00 p.m., and the May 9, 2012 letter also indicated that the IME was prompted by an accident that took place on February 5, 2012. Assignor failed to appear for the rescheduled IME on May 19, 2012.

On or about June 19, 2012, Defendant received a bill in the amount of $1,186.42 for medical services provided by Plaintiff to Assignor on May 18, 2012. On or about July 10, 2012, a denial of claim form and explanation of medical benefits for date of service May 18, 2012, was allegedly sent to Richard Gershman & Associates and Assignor. Defendant’s sole basis for denying Plaintiff’s claim was Assignor’s failure to appear at the above IME appointments.

Defendant now moves for summary judgment, dismissing Plaintiff’s complaint or, in the alternative, granting the instant motion to the extent of finding that Defendant has established a prima facie case as to the mailing of its denial forms, setting this matter down for a hearing on the issue of IME no show and tolling the interest together with such other and further relief as the Court deems proper.

In accordance with rule 2219 of New York’s Civil Practice Law and Rules (“CPLR”), the Court considered herein the following: (1) Defendant’s notice of motion for summary judgment and motion to dismiss, affirmation in support of said motions and corresponding exhibits; (2) Plaintiff’s affirmation in opposition and corresponding exhibits; and (3) Defendant’s reply affirmation. As explain below, Defendant’s motion for summary judgment and motion to dismiss are denied.

II.Discussion

Summary judgment pursuant to CPLR 3212 provides a mechanism for the prompt disposition, prior to trial, of civil actions which can be decided as a matter of law (see generally Brill v City of New York, 2 NY3d 648, 651 [2004]). Since summary judgment deprives the non-moving parties of their day in court and has res judicata effects, it is therefore only appropriate “if no genuine, triable issue of fact is presented” (see Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]). On a motion for summary judgment, the moving party must make out its prima facie case by submitting evidence in admissible form which establishes its entitlement to judgment as a matter of law (see Marshall v Arias, 12 AD3d 423, 424 [2d Dept 2004]). Upon such a showing, the burden shifts to the non-moving party to present admissible evidence which demonstrates the necessity of a trial as to an issue of fact (see Zolin v Roslyn Synagogue, 154 AD2d 369, 370 [2d Dept 1989]). The non-moving party must be afforded every favorable inference that can be drawn from the evidentiary facts established (see McArdly v M & M Farms of New City, Inc., 90 AD2d 538, 538 [2d Dept 1982]). However, conclusory, unsupported allegations or general denials are insufficient to defeat a motion for summary judgment (see William Iselin & Co., Inc. v Landau, 71 NY2d 420, 427 [1988]; Stern v Stern, 87 AD2d 887, 887 [2d Dept 1982]).

In support of Defendant’s motion for summary judgment, Defendant was required to establish, prima facie, that the April 18, 2012 and May 9, 2012 IME letters were mailed to [*3]Assignor and that Assignor failed to appear for the IMEs (see generally Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2d Dept 2006]). Defendant has not met its burden because Defendant submits conclusory allegations that fail to establish that Defendant’s practices and procedures for mailing IME letters was designed to ensure that the IME letters were addressed to the proper party and properly mailed (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676-677 [2d Dept 2007]; Orthotech Express Corp. v. MVAIC, 2012 NY Slip Op 51913[U], *1 [App Term, 1st Dept 2012] (“The affiant, however, had no personal knowledge of the dates the IME notices were actually mailed, and described in only the most general terms her offices mailing practices and procedures. In the absence of any recitation of such matters as how the names and addresses on the IME notices were checked for accuracy and how the notices were picked up for mailing, we cannot say, on this record, that the office practice and procedure followed by Defendant’s contractor was designed to ensure that the [IME notices] were addressed to the proper parties and properly mailed.”) (internal quotation marks and citation omitted)).

Specifically, in discussing Defendant’s general practices and procedures associated with mailing IME letters, the affidavit of Defendant’s contractor merely states that “[t]he IME scheduling letter is generated with the name and address of the attorney representing the person to be examined, as provided by the insurance carrier, placed at the top of the scheduling letter” (aff of Jean Rony Pressoir at 2) (emphasis added). Defendant fails to provide any evidence detailing the practices and procedures implemented by Defendant, as the insurance carrier, or Defendant’s contractor to ensure that the correct address was used (see Westchester, 45 AD3d at 676-677).

Although Defendant’s contractor further states that “[i]t is [Defendant’s contractor’s] regular office business and policies and procedures that the letters are mailed to the claimants address on the bill” (aff of Jean Rony Pressoir at 3) (emphasis added), this practice and procedure is inapplicable to the current matter because the IME letters at issue were mailed before any claims were submitted by Plaintiff. Accordingly, Defendant has failed to make out a prima facie case establishing that it is entitled to summary judgment.

Moreover, the Court finds no basis to grant Defendant’s motion to dismiss Plaintiff’s complaint pursuant to CPLR 3211 [a] [1], CPLR 3211 [a] [7] and CPLR 3211 [a] [5]. Indeed, the documentary evidence submitted by Defendant fails to conclusively establish a defense as a matter of law (see Carlson v Am. Intern. Grp., Inc., 30 NY3d 288, 298 [2017] (“Under CPLR 3211 [a] [1], a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claim as a matter of law.”). Plaintiff has adequately pled causes of action pursuant to New York’s no-fault regulations (see Shebar v Metro. Life Ins. Co., 25 AD3d 858, 859 [3d Dept 2006] (“[O]n a motion to dismiss for failure to state a claim, the court must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable theory”) (internal quotation marks and citation omitted)).

Furthermore, although Defendant did not specifically state the grounds for its motion to dismiss pursuant to CPLR 3211 [a] [5], the Court presumes that Defendant’s motion is based on a prior arbitration award referred to by Defendant that was issued against a different Plaintiff in a separate matter. Plaintiff in the current matter has not agreed to be bound by an arbitration award, Plaintiff has not waived any remedies at law and this Court is not bound by an arbitration award against a different Plaintiff in a separate matter (see Zupan v. Firestone, 91 AD2d 561, 562 [1st Dept 1982] (dismissing plaintiff’s complaint pursuant to CPLR 3211 [a] [5] where an arbitration award was issued after plaintiff consented to arbitration and agreed to be bound by any determination and waived her rights to pursue any remedies at law against the defendant); Tenenbaum v Setton, 18 NYS3d 498, 500 [App Term, 2d Dept, 11th & 13th Jud Dists 2015]).

[*4]III.Conclusion

Accordingly, it is hereby ordered that Defendant’s motion for summary judgment and motion to dismiss are denied.

This constitutes the decision and order of the Court.

Dated:March 11, 2019

Jamaica, New York

Hon. John C.V. Katsanos

Judge, Civil Court

[*1]

Civil Court of the City of New York, New York County, March 8, 2019

APPEARANCES OF COUNSEL

Johnnie Gordon, plaintiff pro se.

After an inquest held on December 1, 2017, upon defendant Geico Insurance Company’s failure to appear for a conference,{**63 Misc 3d at 622} the court dismissed plaintiff Johnnie Gordon’s complaint for failure to meet the burden of proof (22 NYCRR 208.14 [b] [1] [“At any scheduled call of a calendar or at a pretrial conference . . . (i)f the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest”]; 22 NYCRR 208.32).^[FN*] Plaintiff then filed a notice of appeal and sought settlement of the transcript. Because the proposed changes did not accurately transcribe what occurred at the inquest, the court declined to sign the Clerk’s return on appeal (see CIV-GP-44 [2000]).

Plaintiff has now submitted a second errata sheet dated January 10, 2019, again proposing changes to the transcript which would not reflect statements made at inquest and, in some instances, alter the meaning of what was said on the record. For the reasons below, the court memorializes its first denial and denies the second set of proposed amendments.

CPLR 5525 (c) (1) provides that

“[w]ithin fifteen days after receiving the transcript from the court reporter . . . , the appellant shall make any proposed amendments and serve them and a copy of the transcript upon the respondent. Within fifteen days after such service the respondent shall make any proposed amendments or objections to the proposed amendments of the appellant and serve them upon the appellant. At any time thereafter and on at least four days’ notice to the adverse party, the transcript and the proposed amendments and objections thereto shall be submitted for settlement to the judge or referee before whom the proceedings were had if the parties cannot agree on the amendments to the transcript. The original of the transcript shall be corrected by the appellant in accordance with the agreement of the parties or the direction of the court and its correctness shall be certified to thereon by the parties or the judge or referee before whom the proceedings were had. When he [*2]serves his brief upon the respondent the appellant shall also serve a conformed copy of the transcript or deposit it in the office of the clerk of the court of original instance who shall make it available to respondent.”

CPLR 5525 (c) (3) provides that an appellant{**63 Misc 3d at 623}

“shall serve on respondent together with a copy of the transcript and the proposed amendments, a notice of settlement containing a specific reference to subdivision (c) of this rule, and stating that if respondent fails to propose amendments or objections within [15 days of service], the provisions of [CPLR 5525 (c) (2)] shall apply.”

CPLR 5525 (c) (2), in turn, provides that

“[i]f the appellant has timely proposed amendments and served them with a copy of the transcript on respondent, and no amendments or objections are proposed by the respondent within the time limited by paragraph 1, the transcript, certified as correct by the court reporter, together with appellant’s proposed amendments, shall be deemed correct without the necessity of a stipulation by the parties certifying to its correctness or the settlement of the transcript by the judge or referee. The appellant shall affix to such transcript an affirmation, certifying to his compliance with the time limitation, the service of the notice provided by paragraph 3 and the respondent’s failure to propose amendments or objections within the time prescribed.”

With respect to both the first and second errata sheets, the court is unable to discern the reason for defendant having failed to object. It may be because defendant did not receive a copy of the transcript; that is, plaintiff sent a copy of the transcript to defendant; that is, plaintiff’s affiant Robert Wilson, in affidavits dated December 14, 2018, and January 22, 2019, only testifies to actually serving the transcript on the earlier date. Moreover, both list defense counsel’s service address as 2 Huntington Quadrangle, Suite 2N01, Melville, New York 11747, not the address of record, 170 Froehlich Farm Boulevard, Woodbury, New York 11797. Finally, it is unclear what defendant would be able to object to—indeed, the very reason that the inquest went forward was defendant’s absence.

In any event, however, even if plaintiff complied with all of CPLR 5525 (c)’s technical requirements, the court would nevertheless be compelled to deny the proposed amendments. CPLR 5525 (c) invokes, at multiple junctures, the “correctness” of the record—in the context of a stenographic record, the accuracy for the purposes of appellate review (see e.g. Ayton v Bean, 92 AD2d 577, 578 [2d Dept 1983] [“by permitting the affidavit of service and the acknowledgement of service to be included in{**63 Misc 3d at 624} the record, Special Term was not correcting or reforming an old record in order to indicate the true facts appearing before it at the time of its original determination but it was, in fact, making an entirely new record. To allow this type of amendment at this stage of the proceeding ‘would be setting a precedent which would lead to great embarrassment in our practice and injustice to parties’ ”]; Yaretsky v Blum, 629 F2d 817, 822-823 [2d Cir 1980] [“The chief purpose of the state statutory requirement that a complete electronic or stenographic record of the hearing be kept appears to be to allow judicial review in a proceeding under (CPLR article 78)”], revd on other grounds 457 US 991 [1982]; cf. Van Valkenburgh v Bourne, 26 AD2d 727, 727 [3d Dept 1966] [permitting addition of statement made in unrecorded summation to the effect that plaintiff had “flunked his driver’s test” where defendant’s counsel conceded that the summation language was “similar in import to the quoted words”]). The very purpose of appellate review is the correction of any errors based on the record; to that end, CPLR 5525 must ensure that the appellate court is reviewing the record as it actually occurred, not as a party believes it should have.

When plaintiff first proposed amendments on or about December 17, 2018, plaintiff’s “Notice of Settlement of Transcript,” apparently sent to respondent/appellee Geico, was accompanied by a five-page errata sheet listing numerous proposed amendments. Numerous amendments materially changed not only plaintiff’s testimony, but the court’s statements and conclusions on the record. For example:

“Transcript (2:1): You have an order to show cause that was granted on default. You wanted to amend the complaint to include some medical service and alleged days out of work. So, this is an inquest.

“(Plaintiff) Okay.

“(Court) Apparently, this case was on for a conference and now I’m told it’s an inquest. During an inquest you can present your evidence as you would like the court to hear it.

“Proposed change: A Conference is on the calendar. The Defendant is a No show. The court will proceed instead on an Inquest. Later a default judgment is granted in favor of Plaintiff . . .

“Transcript (5:17-23): (Plaintiff) This is based on—initially, I was paid for during the time I was{**63 Misc 3d at 625} injured for medical treatment up until May 4th of 2013. This is being submitted because I continued treatment, it was necessary to have further treatment up until December 29th, I mean, December 29th of 2015.

“Proposed change: (Gordon) I was not paid for Medical Treatments during the time I was injured in an auto accident. My medical treatments were not paid for at all by my No-Fault auto insurer, Geico (not paid from date of accident to the date of last treatments which is 12/01/2012 through 12/29/2015).”

The second errata sheet proposed similar amendments (proposed change underlined):

“Transcript (6:24): (Plaintiff) This document [from the social security administration] shows that they’re demanding income to be reimbursed from Geico for the treatment periods that I was—it does establish the times that I was treated and had loss of income.

“Proposed change: (Plaintiff) This document [from the social security administration] shows that they’re demanding medical costs to be reimbursed from Geico for the treatment periods that I was—it does establish the times that I was treated and had loss of income . . .

“Transcript (6:24): (Court) You can appeal my decision once you get a decision from me based on this inquest.

“Proposed change: (Court) You can appeal my decision once you get a decision from me based on this conference.”

In the case of both the first and second errata sheets, the other proposed amendments are similar. Even if they do not, as in the examples above, profoundly alter the meaning of the statements made on the record, the proposed changes nevertheless fail to accurately reflect what was said. Accordingly it is hereby ordered that amendment of the transcript of the December 1, 2017 court proceedings (Vanessa M. Castillo, Court Reporter) pursuant to plaintiff’s November 24, 2018, and January 10, 2019, errata sheets is hereby denied; and it is further ordered that said transcript shall be settled as currently transcribed.

Footnotes

Footnote *:The court also denied several subsequent orders to show cause to reargue and/or renew.

714648/16

For Plaintiff: The Rybak Firm, PLLC, 1810 Voorhies Ave.-3rd Floor-Suite 7, Brooklyn, NY 11235 (718) 569-7040

For Defendant: Abrams, Cohen & Associates, 5 Hanover Square, Suite 1601, New York, NY 10004, (646) 449-7490

Plaintiff’s motion and defendant’s cross-motion for summary judgment pursuant to CPLR 3212 came before the court on October 18, 2018. In addition to the oral arguments of counsel, the court has considered the following listed submissions of the parties, pursuant to CPLR 2219(a):

Title Number

Plaintiff’s Notice of Motion undated; Attorney Affirmation of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on October 13, 2017 (Exhibit 2); and Exhibits 1-5 (inclusive of the foregoing affidavit) 1

Defendant’s Notice of Cross-Motion dated June 27, 2018; Attorney Affirmation of Jeff Winston, Esq., affirmed on June 28, 2018; Affidavit of Yamile Souffrant, sworn to on June 18, 2018 (Exhibit B); Affidavit of John Niles, sworn to on May 1, 2018 (Exhibit B); and Exhibits A-K (inclusive of the foregoing affidavits) 2

Plaintiff’s Attorney Affirmation in Opposition of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 2); Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 3); and Exhibits 1-3

In this action by a provider to recover assigned first party no-fault benefits, plaintiff moves for summary judgment arguing that it established its prima facie entitlement to recovery of its unpaid no-fault bills. Defendant cross-moves for summary judgment based upon plaintiff’s [*2]purported failure to appear for four Examinations Under Oath (“EUO”) or alternatively, based upon defendant’s founded belief that the alleged accident was an intentional loss and therefore, the alleged accident is not a covered event.

Plaintiff argues, inter alia, that the affidavits proffered by defendant are conclusory and insufficient to establish that the EUO letters and denials were timely and properly mailed. Specifically, plaintiff argues that the address on the EUO letters and denials are different and defendant failed to establish that the letters were sent to the correct address. Plaintiff further argues that the non-appearances at the scheduled EUOs were not established as the transcripts proffered did not sufficiently provide personal knowledge of plaintiff’s assignor’s purported non-appearances.

Where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [App. Div. 2nd Dept 2014]; see also 11 NYCRR § 65.15(d); Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 50928[U][App Term 2nd Dept 2016]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51653[U][App. Term 2nd Dept. 2015]; Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc 3d 134(A), 2011 NY Slip Op. 50622[U][App Term 9th & 10th Jud. Dists. 2011]; Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept. 2006]).

Moreover, it is well settled and established that an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [App. Div. 2nd Dept 2006]; Eagle Ins. Co. v. Davis, 22 AD3d 846 [App. Div. 2nd Dept. 2005]). An insurer asserting a lack of coverage defense must set forth admissible evidence of “the fact or [a] founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195 [1997]; St. Luke’s Roosevelt Hosp. v. Allstate Ins. Co., 303 AD2d 743 [App. Div. 2nd Dept. 2003]; Ocean Diagnostic Imaging P.C. v. Allstate Ins. Co., 6 Misc 3d 134[A], 134A [App. Term 2nd Dept. 2005]; Amaze Med. Supply, Inc. v. Utica Mut. Ins. Co., 26 Misc 3d 129(A), 129A [App. Term 2nd Dept. 2009]). “[A]n insurer’s evidence of a purposeful collision will often be circumstantial. This is to be expected; in the absence of a mea culpa from one of the participants, the insurer—and ultimately the court—must examine the facts and circumstances of the incident to determine whether they give rise to an inference of lack of coverage. Circumstantial evidence is sufficient if a party’s conduct ‘may be reasonably inferred based upon logical inferences to be drawn from the evidence. (internal citation omitted)'” (V.S. Medical Services, P.C. v Allstate Ins. Co., 11 Misc 3d 334 [Civ. Ct. Kings Cty. 2006], aff’d, 25 Misc 3d 39 [App. Term 2nd Dept. 2009]).

Upon review of defendant’s EUO no-show defense, the court finds that the denials issued in this matter were untimely as they were issued on February 2, 2016 and the last EUO was scheduled on December 7, 2015. Defendant had 30 days from the last EUO in which defendant was required to pay or deny the claims (see 11 NYCRR § 65—3.8[a][1]) and as defendant did not do so in this case, the defense is precluded.

Defendant proffers the EUO transcripts of the passengers and assignor, Bernetta Green, [*3]Craig Alexander and Tara Thomas, and as to the date of loss of August 14, 2015 ^[FN1] , to demonstrate that the incident was a caused loss and defendant contends that the same established its founded belief that there was a material misrepresentation of the claims; namely, that the accident was in fact, not an accident, but a purposeful collision. Specifically, defendant’s founded belief is based upon the inconsistent testimonies between the parties.

Upon a review of the EUO transcript, the court notes that while their testimonies were vague and at times, inconsistent, their recollections are not sufficient to demonstrate that a purposeful collision occurred. Even in considering whether circumstantial evidence exists to demonstrate that there may have been a purposeful collision, the vague testimonies of the parties are not sufficient. Moreover, defendant did not proffer any affidavit from an investigator who can elaborate on why the inconsistencies demonstrate intentional losses. Without a cogent and detailed investigative summary of this type of alleged intentional loss and solely relying on the transcripts alone in this matter, the testimonies given do not rise to the level of a founded belief that the accident was staged. As such, defendant’s proofs are insufficient to raise a triable issue of fact.

Plaintiff established its prima facie case through the affidavit of Ciffy Chelle, plaintiff’s employee and the bills annexed to the motion (see Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787 [2015]).

Therefore, based upon the foregoing, defendant’s motion for summary judgment is denied. Plaintiff’s cross-motion for summary judgment is granted and plaintiff may enter judgment in the amount of $534.32, together with applicable statutory interest, attorneys’ fees and costs.

This constitutes the Decision and Order of the court.

Dated: January 2, 2019
Richard J. Montelione, J.C.C./A.J.S.C.

Footnotes

Footnote 1:Defendant demonstrated its compliance with CPLR 3116 through the affidavits of service of Darryl Pierre, an employee of Abrams, Cohen & Associates, who was retained by defendant to schedule and conduct Examinations Under Oath.

718659/17

For plaintiff:
David Landfair Esq.
Kopelevich & Feldsherova PC
241 37th Street, Suite B439
Brooklyn, NY 11232

For defendant:
Allan Hollander, Esq.
Bruno, Gerbino & Soriano, LLP
445 Broad Hollow Road, Suite 220
Melville, NY 11747

RECITATION, AS REQUIRED BY CPLR2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion

Answering Affidavit 2

Reply Affidavit

In this action to recover first party no fault benefits, defendant moves for an order granting summary judgment and dismissing the complaint based on plaintiff’s failure to respond within 120 days to defendant’s initial request for verification.

In support of the motion, defendant submits the affidavits of its claim examiner in New York, Ms. McAndrews, and an employee of Auto Injury Solutions “AIS,” in Alabama, Ms. Ulmer. AIS is retained by defendant to receive and disseminate incoming mail related to no fault claims made against defendant, and, to mail medical providers or their assignees, verification requests which claims adjusters in New York electronically transmit to AIS. Ms. Ulmer submits two different affidavits, both dated August 4, 2017, which set forth AIS’s procedure for mailing verification requests, and procedure for documenting its receipt of incoming mail. Ms. McAndrews’ affidavit describes defendant’s procedures for electronically preparing and transmitting to AIS, defendant’s requests for verifications and denials.

Summary judgment is a drastic remedy (See Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [957]), which should not be granted if there is any doubt as to the existence of a triable issue of fact. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 [1978]). Hence, the court’s function in determining such a motion, is issue finding, not issue determination. (Id. Sillman at 395).

To prevail, the movant must establish entitlement to judgment as a matter of law, by submitting admissible evidentiary proof. (See Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 [1979]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (See Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]).

“A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570, 774 NYS2d 72 [2d Dept 2004]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) If plaintiff fails to provide the requested verification within 120 calendar days from the date of the initial request, the insurer may deny the claim. (11 NYCRR 65-3.5 [o]).

In the instant action, the basis of defendant’s motion, to wit, plaintiff’s failure to provide requested verifications, requires defendant to unequivocally prove by admissible evidence that it did not receive the requested verification. Defendant’s conclusory denial of receipt, is insufficient to make out prima facie showing of defendant’s entitlement to summary judgment. (See Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 36 N.Y.S.3d 46 [App Term, 2nd Dept 2016]).

While any mail containing plaintiff’s response to verification request would have been received by AIS in Alabama, Ms. McAndrews, defendant’s adjuster in New York, is the only affiant who states that AIS did not receive response to the verification requests, absent any evidence of her personal knowledge of AIS’s incoming mail procedures. Without demonstrating her personal knowledge of AIS’s internal mailing practices, Ms. McAndrew’s assertion that AIS did not receive verification responses lacks probative value. (see J.O.V. Acupuncture, P.C. v Amex Assur. Co., 55 Misc 3d 127[A], 55 N.Y.S.3d 692 [App Term, 1st Dept 2017]).

Ms. Ulmer, the affiant purportedly knowledgeable of AIS’s mailing procedures, states that she conducted a diligent search of the records in possession of AIS regarding the instant matter. She then lists the records, which she states are “annexed hereto,” but does not identify any exhibit, to which the described records are attached. Rather, there are some exhibits to the motion that contain records, which only defense counsel references in his affirmation. Defense counsel does not submit proof however, that the records annexed to those exhibits, are the records referenced in Ms. Ulmer’s affidavit, and that those records are all the documents Ms. Ulmer’s search had yielded.

Absent admissible evidence that the documents contained in the exhibits represent the totality of all documents obtained by Ms. Ulmer, defendant fails to establish, through any exhibit, the nature and the extend of the records that are in AIS’s possession.

Furthermore, Ms. Ulmer’s affidavit, describing the records she had obtained through her search, is ambiguous and insufficient to establish defendant’s burden that AIS has not received response to the verification requests.

Ms. Ulmer’s states that her “investigation revealed the following:” which she then attempts to numerically describe. Yet, Ms. Ulmer’s numeric description refers only to events, not the essence of the document necessary for its identification. Immediately appearing after the number one, the affidavit states: “document was received by AIS on 1/18/2017,” after number two, that “the document was indexed,” following numbers four and the five that “copies of EOR and NF10 were sent to the provider” and “to the assignor.”

As to item number three, Ms. Ulmer states that “the charges listed on the bill totaled $1039.69″ without providing any further details.

The inherent vagueness of Ms. Ulmer’s affidavit in her description of the records she had obtained, undermines defendants’ attempt to prove that AIS has not received response to the verification requests.

Moreover, while Ms. Ulmer could have avoided the ambiguity by unequivocally stating that her search did not reveal any response to verification requests, Ms. Ulmer, in contrast to Ms. McAndrews, does not make any such statement. Nor does she state that the records she attempted to describe, are the only records in AIS’s possession.

Furthermore, the ambiguous affidavit becomes evidently inaccurate, when Ms. Ulmer incorrectly states “all the documents” (including the bill prepared by plaintiff in the sum of $1039.69) were “prepared” in the regular course of” business of AIS, underscoring the unreliability the affidavit.

The Court further notes that Ms. Ulmer submits two distinct affidavits that are both executed in Alabama on August 4, 2017. CPLR 2309(c) states that an oath taken outside of New York State must be accompanied by a certificate, commonly referred to as “certificate of conformity” attesting that the oath that was taken in the foreign state was done so in accordance with the laws of that jurisdiction or of New York.

Defendant fails to produce an original “certificate of conformity” for either affidavit. Instead, defendant annexes to both affidavits identical copies a single certificate of conformity. Even, should the court decide to accept copies of the certificate of conformity in lieu of the original, defendant’s failure to provide copies of two separate certificates of conformity for each affidavit, renders the affidavits inadmissible as a matter of law.

Based on the foregoing, defendant failed to establish its entitlement to summary judgement by admissible evidence. Defendant’s motion for summary judgement is therefore denied.

Dated: November 21, 2018
ODESSA KENNEDY
JUDGE OF THE CIVIL COURT

[*1]

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

APPEARANCES OF COUNSEL

Gullo & Associates, LLC. for defendant.

Gary Tsirelman, PC for plaintiff.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Footnotes

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

[*1]

Civil Court of the City of New York, Kings County, October 18, 2018

APPEARANCES OF COUNSEL

Law Offices of Daniel J. Tucker, Brooklyn (John Reinus of counsel), for defendant.

Zara Javakov PC, Brooklyn (Adam Waknine of counsel), for plaintiff.

Defendant moves to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that the action is barred by the doctrine of res judicata, or in the alternative, for an order granting defendant summary judgment pursuant to CPLR 3212.

Plaintiff Kerisli Chiropractic, P.C. commenced the instant action to recover assigned first-party no-fault benefits for medical services provided to its assignor as a result of injuries sustained in an August 23, 2010 automobile incident.

Defendant insurer commenced a declaratory judgment action in Supreme Court against Kerisli Chiropractic, P.C. and moved for summary judgment for an order “adjudging and [*2]decreeing that” Kerisli Chiropractic, P.C. “is not entitled to no fault benefits” for the August 23, 2010 collision.

Kerisli Chiropractic, P.C. did not answer or oppose the motion. The Supreme Court issued an order, reciting the specific declaratory relief requested by the insurer and granting the motion on default.

In the instant no-fault action, defendant insurer moves to dismiss the complaint claiming that the Supreme Court’s order in the declaratory judgment action is a conclusive final determination, which pursuant to res judicata, bars the instant action.

In opposition, plaintiff contends defendant insurer failed to establish its entitlement to res judicata or collateral estoppel, arguing that orders granted on default are not preclusive, and that res judicata only applies to those issues that have been litigated and determined in a prior action, not to actions where an issue due to a party’s default is not litigated. Citing federal cases, plaintiff asserts that Supreme Court’s order granted on default has thus no preclusive effect. (See In re Adler, Coleman Clearing Corp., 205 Fed Appx 856, 857 [2d Cir 2006], citing Abrams v Interco Inc., 719 F2d 23, 34 n 9 [2d Cir 1983].){**61 Misc 3d at 1006}

Pursuant to res judicata, a disposition on the merits bars litigation between the same parties of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior action (see Abraham v Hermitage Ins. Co., 47 AD3d 855 [2d Dept 2008], affg 2005 WL 6205455 [Sup Ct, Queens County 2005]).

This court notes plaintiff relies on federal cases in its assertion that default judgments lack preclusive effect. However, under New York state law, default judgments which have not been vacated are final orders, thus preclusive. (See Lazides v P & G Enters., 58 AD3d 607 [2d Dept 2009], revg 2007 WL 6861118 [Sup Ct, Kings County 2007].) The courts have reasoned that to hold otherwise would destroy or impair the rights or interests established by default judgment. (See Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Great Health Care Chiropractic, P.C. v Progressive Ins. Co., 48 Misc 3d 134[A], 2015 NY Slip Op 51077[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

As the Supreme Court’s declaratory default judgment order against Kerisli Chiropractic, P.C. has not been vacated, the order hence constitutes a final determination, which precludes the instant no-fault action.

Plaintiff also cites cases holding that a mere entry of default judgment in a declaratory judgment action “cannot be considered a conclusive final determination and, thus, can have no preclusive effect in the action at bar.” (See Active Chiropractic, P.C. v 21st Century Ins. Co., 58 Misc 3d 156[A], 2018 NY Slip Op 50200[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co., 50 Misc 3d 128[A], 2015 NY Slip Op 51886[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

The above cases are distinguished from the case at bar, as there is no declaration made by the default judgment orders in the declaratory judgment action at issue in each case. This court takes judicial notice respectively of the default judgment orders in the declaratory judgment actions in Active Chiropractic, P.C., from Supreme Court, New York County dated December 8, 2014, and in Promed Orthocare Supply, Inc., from Supreme Court, Nassau County dated March 15, 2010. (See Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 [*3]AD3d 121 [2d Dept 2018].){**61 Misc 3d at 1007}

In Active Chiropractic, P.C. (2018 NY Slip Op 50200[U], *1), the Supreme Court’s order in the declaratory judgment action merely states that an unrelated relief requested by insurer is granted, and that “the remainder of the motion [is] granted without opposition.” The order does not indicate that a judicial declaration was made by the court, or that a declaration was a relief sought by movant. As the Supreme Court’s order merely grants the entry of default judgment, and is devoid of a judicial declaration, the Appellate Term, Second Department found that the order could not be considered a final order. Absent a judicial declaration, in a declaratory judgment action, it would be impossible to deem or enforce the order as preclusive.

Similarly, in Promed Orthocare Supply, Inc., the Supreme Court’s order in the declaratory judgment action merely states that “plaintiff’s unopposed motion for a judgment on default as against” various defendants “is granted.” The order makes no reference to a judicial declaration or indicates that a declaration was sought in the motion. As with the Supreme Court order at Active Chiropractic, P.C., the Appellate Term, Second Department in Promed Orthocare Supply, Inc. held that the order could not be considered a conclusive final determination, absent declaration of the issues litigated on default. (See Promed Orthocare Supply, Inc., 2015 NY Slip Op 51886[U], *1; Active Chiropractic, P.C., 2018 NY Slip Op 50200[U]; see also Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].) To have res judicata effect in a declaratory judgment action, the order must specify the issues that were determined so that those issues could be identified as barred in future litigations.

In the instant no-fault action, contrary to Active Chiropractic, P.C. and Promed Orthocare Supply, Inc., the Supreme Court’s declaratory judgment order determines the rights of the parties and is thus preclusive as a final order. The Supreme Court’s order recites the specific declaratory relief requested by the insurer, and grants the motion on default, leaving no ambiguity as to the substance of the court’s declaration.

An order specifying the court’s declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default. (See Lazides v P & G Enters. at 607; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

As the Supreme Court order pertaining to the instant no-fault action is a conclusive final determination of the rights of{**61 Misc 3d at 1008} the parties herein, plaintiff is barred from relitigating the claim pursuant to the doctrine of res judicata.

Lastly, plaintiff cites Metro Health Prods., Inc., which is distinguished from the facts of the instant action. Contrary to the case at bar, the order in the declaratory judgment action at issue in Metro Health Prods., Inc. directed the insurer to settle judgment on notice. The insurer failed to settle judgment on notice, and the Appellate Term, Second Department held that an order to settle judgment on notice is not a conclusive final determination and is thus not preclusive. (See Metro Health Prods., Inc., 48 Misc 3d 85.)

As the Supreme Court’s declaratory judgment pertaining to the instant action is a final conclusive determination, hence with preclusive effect, defendant’s motion is granted. It is hereby ordered that the action is dismissed.

CV-023737-10

For Plaintiff: Marcote & Associates, P.C.

For Defendant: Freiberg, Peck & Kang, LLP

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Therefore, the above captioned lawsuit is dismissed with prejudice.

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

722422/16

For Plaintiff:
Emilia I. Rutigliano Esq.
Law Offices of Emilia I. Rutigliano, PC.
1733 Sheepshead Bay Rd., Suite 11
Brooklyn, NY 11235

For Defendant:
Robyn Brilliant Esq.
333 W. 39th St, Suite 400
New York NY 10018-1410

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion 2

Affirmation in Opposition 3

In an action to recover assigned first-party no-fault insurance benefits, plaintiff moves for summary judgment pursuant to CPLR 3212. Defendant cross-moves for summary judgment seeking dismissal of the complaint. After oral argument, the Court sua sponte vacates order dated November 17, 2017, in place of the following.

To prevail on its motion, plaintiff has the burden to demonstrate by admissible proof that the no-fault claim forms underlying the action were submitted to the defendant, and that either that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials of the claims that were conclusory, vague or without merit as a matter of law (see Insurance Law section 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168, 911 N.Y.S.2d 907 [2d Dept., 2010]).

In the case at bar, plaintiff did not establish that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law. Plaintiff’s motion is accordingly denied.

The basis of Defendant’s cross motion is the failure of plaintiff’s assignor to attend IMES, which constitutes violation of a condition precedent to coverage. (See Stephen Fogel Psychological P.C. v Progressive Casualty Ins. Co., 35 AD3d 720 [2d Dept 2006], affg 7 Misc 3d 18 [App. Term, 2d Dept 2004]). However, to establish proper denial, the insurer must inform the applicant at the time the IME is scheduled, that the applicant will be reimbursed for any lost earnings and reasonable transportation expenditure incurred in attending the IME (11 NYCRR 65-3.5 (e)). Thus, the insurer has the burden to demonstrate that the IME notice contained the requisite reimbursement language. (See Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Business v Professional Health Radiology, 143 AD3d 536, 39 N.Y.S.3d 428 [1st Dept 2016]).

In the case at bar, defendant failed to establish that the IME notice sufficiently apprised the assignor of such reimbursement. The reimbursement language merely recites the governing statute which states ” the insurer shall inform the applicant” of the right to reimbursement. The notice is devoid of a plain, affirmative statement, that the applicant has the right to receive such reimbursement.

The reimbursement language is further obscured in very fine italicized print, which is inexplicably, smaller than the print used in the remainder of the letter, and potentially unreadable, thus facially deficient.

Moreover, the presentation of the language in the notice, potentially creates ambiguity and confusion regarding the origin of the language. There is no explanation in the notice, that the reimbursement language is recitation of statute or a legal requirement. The only reference to the governing statute, is that the letter ‘e’, immediately appears before the reimbursement language, presumably signifying the end of the citation, 11 NYCRR 65-3.5 (e). However, said letter would be meaningless, if not perplexing, to applicants who lack the requisite legal training to decode its meaning.

For the foregoing reasons, plaintiff’s motion and defendant’s cross motion are denied as both parties failed to establish entitlement as a matter of law.

Dated: July 6, 2018
ODESSA KENNEDY
Judge of the Civil Court

43537/15

For plaintiff:
Oleg Rybak, Esq.
The Rybak Firm PLLC
1810 Voorhies Ave., 3rd Fl, Suite 7
Brooklyn NY 11235

For defendant:
Matteo G. Sandusky, Esq.
Law Offices of Daniel J. Tucker
One Metro Tech Center, 7th Fl
Brooklyn, NY 11201

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion 2

Answering Affidavit 3

Reply Affidavit 4

In an action to recover assigned first-party no-fault insurance benefits, plaintiff moves for an order: 1) awarding summary judgment in favor of plaintiff pursuant to CPLR 3211(c) or CPLR 3212(a); 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits was overdue; and 3) dismissing defendant’s affirmative defenses pursuant to CPLR 3211(b). Defendant cross-moves for summary judgment, seeking dismissal on the basis that the plaintiff’s assignor failed to appear for an EUO.

To prevail on its motion, plaintiff has the burden to demonstrate by admissible proof that [*2]the no-fault claim forms underlying the action were submitted to the defendant and that either that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials of the claims that were conclusory, vague or without merit as a matter of law (see Insurance Law section 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168, 2010 NY Slip Op. 08933 [App. Div., 2d Dept., 2010]).

In the case at bar, plaintiff did not establish that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law. Plaintiff’s motion is accordingly, denied.

Defendant, in support of the cross-motion for summary judgement, submits affirmation of Netanel Bencheim, Esq. dated November 20, 2017 which states that the assignor did not appear for an EUO.

Failure to appear for an EUO violates a condition precedent to coverage, and the burden is on defendant to show that the requested party failed to appear (Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]). Generally, a statement from an attorney alleging that he or she was present in the office on the relevant dates and that he or she would have been the one to conduct the EUO is sufficient to demonstrate personal knowledge of the no-show (T & J Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op. 50406(U) [App Term, 2d Dept, 2d 11th & 13th Jud Dists, 2015]).

In the case at bar, defendant failed to submit competent proof of assignor’s nonappearance. Mr. Bencheim, a shareholder of Bencheim and Associates states that defendant retained his law firm to conduct plaintiff’s EUO which was scheduled to be held on November 30, 2010, and rescheduled to December 29, 2010 due to plaintiff’s nonappearance. Mr. Bencheim states that he has personal knowledge that “the plaintiff did not attend the examination under oath on December 30, 2010″ which is a day after the scheduled date of the examination. As such, defendant failed to establish that plaintiff failed to appear for the examination on the scheduled date of December 29, 2010.

Moreover, Mr. Bencheim states that he has personal knowledge of plaintiff’s non-appearance for the EUO based on his review of the file. The affirmant does not specify or provide the documents he reviewed, or identify the creator(s) of the unspecified documents. Nor does Mr. Bencheim explain the basis of his detailed recollection of assignor’s non-appearance approximately seven years prior to his November 20, 2017 affirmation.

Accordingly, Mr. Bencheim’s affirmation is conclusory and lacks probative value (Utica Acupuncture P.C. v. Amica Mut. Ins. Co., 55 Misc 3d 126(A), 2017 NY Slip Op. 50331(U) [App. Term., 1st Dept., 2017]).

For the foregoing reasons, plaintiff’s motion and defendant’s cross motion are denied as both parties failed to establish entitlement as a matter of law.

Dated: May 17, 2018
ODESSA KENNEDY
Judge of the Civil Court

702062/16

Counsel for Plaintiff: Law Offices of Gabriel & Shapiro, LLC

Counsel for Defendant: Rossillo & Licata, PC

In this action for the payment of no-fault benefits, defendant moves seeking an order granting it summary judgment and dismissal of this action. Saliently, defendant avers that insofar as it paid the claims submitted by plaintiff in accordance with the relevant fee schedule for such services, it has established its fee schedule defense thereby warranting summary judgment in defendant’s favor. Plaintiff opposes the instant motion asserting that insofar as defendant’s coder misapplies the relevant fee schedule, the amounts paid to plaintiff were insufficient. Thus, plaintiff contends that questions of fact preclude summary judgment.

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

The instant action is for payment of no-fault insurance benefits for medical treatment. The complaint alleges, in relevant part, the following: On August 9, 2015, CHARLES ROBINSON (Robinson) was involved in a motor vehicle accident and thereafter, sought medical treatment from plaintiff for injuries sustained therein. Robinson was covered by an insurance policy issued by defendant, which pursuant to Article 51 of the Insurance Law, required payment of health related expenses and whose benefits Robinson assigned to plaintiff. On September 21, 2015 plaintiff provided treatment to Robinson totaling $3,900, said treatment was covered by defendant’s policy, was billed to defendant, but was nevertheless not paid. Based on the foregoing, plaintiff seeks payment of the aforementioned sums pursuant to the Comprehensive Motor Vehicle Insurance Reparations Act ^[FN1] (11 NYCRR 65-3.1 et seq.).

Standard of Review

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

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

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’ Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly and generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit it in inadmissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]).

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

[s]upreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).

No-Fault Law

Pursuant to 11 NYCRR 65-2.4(a) entitlement to no-fault benefits requires compliance with all conditions precedent, one of which is that the eligible injured person or that person’s assignee or legal representative shall submit written proof of claim to the self-insurer, including full particulars of the nature and [*3]extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered (11 NYCRR 65-2.4[c]). Because the No-Fault Law is a derogation of common law, it must be strictly construed (Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]; Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049, 1050 [3d Dept 1983]), and thus, when an insurer fails to timely deny or pay a claim, as required by the statutory schedule, it is precluded from interposing a statutory exclusion defense (id.; Presbyt. Hosp. in the City of New York v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2d Dept 2002]; Mount Sinai Hosp. v Triboro Coach Inc., 263 AD2d 11, 16 [2d Dept 1999]; Presbyt. Hosp. in City of New York v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]).

Similarly, and for the same reasons, compliance with the technical requirements of the no-fault law are preconditions for payment to a medical provider thereunder. Accordingly, a medical provider’s failure to tender a claim and requisite proof to an insurer within 45 days after medical services were rendered authorizes an insurer to deny the claim (Kane v Fiduciary Ins. Co. of Am., 114 AD3d 405, 405 [1st Dept 2014] [“The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated.”]; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2d Dept 2010]; Sunrise Acupuncture PC v ELRAC, Inc., 52 Misc 3d 126[A], *1 [App Term 2016]). Generally, once an insured receives a claim from a medical provider, it must pay or deny the same within 30 days thereof (11 NYCRR 65-3.8[c]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1168 [2d Dept 2010]; Nyack Hosp. v Gen. Motors Acceptance Corp., 27 AD3d 96, 100 [2d Dept 2005], affd as mod and remanded, 8 NY3d 294 [2007]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999]).

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

A medical provider seeking payments under the relevant no-fault policy establishes prima facie entitlement to summary judgment with proof that it submitted a timely claim form to the defendant, proof of the fact and the amount of the loss sustained, and “proof either that the defendant [] failed to pay or deny the claim within the requisite 30-day period, or that the defendant [] issued a timely denial of claim that was conclusory, vague or without merit as a [*4]matter of law” (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A] [App Term 2011]; see, New York and Presbyt. Hosp. at 513; Westchester Med. Ctr. at 1168; Nyack Hosp. at 100; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742 [2d Dept 2004]; E. Coast Psychological, P.C. v Allstate Ins. Co., 13 Misc 3d 133(A), *1 [App Term 2006]; Mollins v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 133(A), *1 [App Term 2007]). A provider can establish the foregoing with “evidentiary proof that the prescribed statutory billing forms were mailed and received [and] that payment of no-fault benefits [is] overdue” (St. Vincent’s Hosp. of Richmond v Govt. Employees Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]). However, an insurer raises an issue of fact sufficient to preclude summary judgment when it tenders evidence evincing a timely denial (id. at 124 [“However, in opposition, the defendant submitted admissible evidence in the form of an affidavit of an employee with knowledge of the defendant’s standard office practices or procedures designed to ensure that items were properly addressed and mailed.”]; New York and Presbyt. Hosp. at 513 [“However, in opposition to the motion, the defendant established that it had made a timely request for additional information and that it timely denied the claim within 30 days of receipt of the hospital records it had requested to verify the claim. Accordingly, the Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action.”]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 17—18 [App Term 2007] [“In the instant case, defendant sufficiently demonstrated that it timely mailed the denial of claim forms at issue based upon its standard office practice or procedure designed to ensure that 18 items are properly addressed and mailed. We note that our prior holding in Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co. (6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists 2005]) should not be interpreted as requiring that an affidavit of mailing must state either that it was the affiant’s duty to ensure compliance with the insurer’s standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed.”]), or that denial within the 30 day prescribed by law wasn’t given because such period was extended by a request for verification (Nyack Hosp. at 100 [“Here, the defendants presented evidence in opposition to the motion and in support of their cross motion demonstrating that the request for the complete inpatient hospital records mailed to the plaintiff on September 12, 2003, resulted in an extension of the 30-day statutory period.”]; New York Hosp. Med. Ctr. of Queens at 585; New York & Presbyt. Hosp. at 700).

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

[a]n applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply. The insurer shall advise the applicant in the verification request that the insurer may deny the claim if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant’s control [*5]or possession or written proof providing reasonable justification for the failure to comply.

Additionally, 11 NYCRR 65-3.8(b)(3) states that an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5(o) of this Subpart.

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

With respect to the value of medical services rendered, 11 NYCRR 65-3.8(g) limits the amounts payable to those promulgated by the chairman of the worker’s compensation board for industrial accidents. To be sure, Insurance Law § 5108(a) states that

[t]he charges for services specified in paragraph one of subsection (a) of section five thousand one hundred two of this article and any further health service charges which are incurred as a result of the injury and which are in excess of basic economic loss, shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge.

Thus, Insurance Law § 5108(a) limits a medical provider’s recovery under the no-fault portion of an insurance policy, and said limitation is further reiterated within 11 NYCRR 65-3.8(g)(ii), which obviates an insurer’s obligation to pay for services exceeding the amounts allowed under Insurance Law § 5108(a) (see 11 NYCRR 65-3.8[g][ii][“Proof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated [*6]thereunder for services rendered by medical providers.”]).

Thus, an insurer is only required to pay for claimed medical services in the amounts prescribed by the relevant fee schedule and such defense is available even if payment or denial are not tendered within 30 days of the submission (Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], *1 [App Term 2018] [“Thus, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense, as the services at issue had been provided between May 7, 2014 and July 16, 2014.”]; Z.M.S. & Y Acupuncture, P.C. v GEICO Gen. Ins. Co., 58 Misc 3d 143(A), *1 [App Term 2017] [“Since the services here were rendered after April 1, 2013, the defense that the amounts sought to be recovered exceed the amount permitted by the workers’ compensation fee schedule is not subject to preclusion.”]; Surgicare Surgical Assoc. v Natl. Interstate Ins. Co., 50 Misc 3d 85, 87 [App Term 2015]). Accordingly, a defendant establishes entitlement to summary judgment when it establishes that all sums paid to a medical provided were in accordance to the prevailing fee schedule, even if less than the amount billed (Z.M.S. & Y Acupuncture, P.C. at *1 [“Defendant demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractor.”]; Surgicare Surgical Assoc. at 86 [“Plaintiff billed $10,800 for the services (associated with arthroscopic knee surgery), but defendant-insurer paid only $5,996.67 on the claim, an amount in accordance with the New Jersey Fee Schedule.”]). Thus, an insured establishes its fee schedule defense when it tenders an affidavit from a professional coder who opines that the amounts paid for medical services were in accordance with and pursuant to the relevant fee schedule (Jaga Med. Services, P.C. v Am. Tr. Ins. Co., 56 Misc 3d 134(A), *1 [App Term 2017]; Compas Med., P.C. v Am. Tr. Ins. Co., 56 Misc 3d 133(A), *1 [App Term 2017]; Sama Physical Therapy, P.C. v Am. Tr. Ins. Co., 53 Misc 3d 129(A), *1 [App Term 2016]; GBI Acupuncture, P.C. v 21st Century Ins. Co., 48 Misc 3d 140(A), *1 [App Term 2015]; Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127(A), *2 [App Term 2010]; Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23, 25 [App Term 2009]).

Defendant’s motion for summary judgment is granted insofar as the evidence tendered in support thereof establishes that defendant timely paid plaintiff’s claim in accordance with the relevant fee schedule. While the amount paid was less than the amount billed, defendant establishes that the amount billed was in excess of the amount allowed for the procedure actually performed under the relevant fee schedule.

In support of its motion, defendant submits an affidavit by Peg Kohle (Kohle), defendant’s Claim Specialist, who states, in pertinent part, as follows: Since January 2015, Kohle has been employed by defendant as a Claims Specialist in defendant’s no-fault department. Kohle is personally familiar with defendant’s business practice as it relates to the processing New York Personal Injury Claims (PIP), including defendant’s Enterprise Claims System (ECS) and the creation of all documents related to defendant’s decisions concerning PIP claims. After detailing defendant’s custom and practice with respect to receipt, processing, paying and/or denying PIP claims submitted to it by medical providers, Kohle describes documents relevant to this action, appended to her affidavit, and which she incorporates by reference. Specifically, Kohle states that on November 2, 2015, defendant received a bill from plaintiff for medical treatment it provided to Robinson on September 21, 2015. As per the form, plaintiff sought no-fault reimbursement from defendant in the amount of $3,900. A review of defendant’s claim file indicates that Robinson had been involved in an accident on August 9, 2015 and made a no-fault claim from defendant in connection therewith. Kohle states that upon defendant’s review of the bill, defendant paid the claim pursuant to the New York State Workers Compensation Fee Schedule. Specifically, on December 1, 2015, defendant denied a portion of the claim while concomitantly paying $291.32 to plaintiff. Defendant’s denial of the claim was memorialized in a denial form sent to plaintiff and within an explanation of review form appended thereto. Kohle asserts that the foregoing forms are defendant’s business records, generated in the regular course of defendant’s business records.

Defendant also submits an affidavit by Charles Campanelli (Campanelli), Operations Manager for Signet Claim Solutions, LLC (Signet), who states, in pertinent part, as follows: Signet’s business includes the retention, upon request, of fee schedule and medical coding experts to perform reviews of medical records and bills for purposes of determining whether services were billed in accordance with the relevant fee schedule. Defendant is Signet’s client and was retained to hire an expert to review a plaintiff’s bill for medical services provided to Robinson. In connection with defendant’s retention of Signet, defendant provided relevant records to Signet, including plaintiff’s bill and the records provided by plaintiff with the same. Signet then retained Mercy Acuna (Acuna), an expert, to review the foregoing records, and who then provided Signet with a report memorializing her opinion. Acuna’s report was created and retained in the regular course of Signet’s business and said report was appended to Campanelli’s affidavit.

Defendant submits an affidavit by Acuna, wherein she incorporates by reference, her report within which she proffers her opinion regarding plaintiff’s bill for services rendered to Robinson. Acuna states that her report is accurate, that the opinion in her report is based on her education, training and experience as well as a review of plaintiff’s bill, the records appended thereto and the relevant New York State Workers Compensation Chiropractic Fee Schedule.

Defendant submits the bill referenced by Kohle, which indicates that on September 21, 2015, it treated Robinson. Specifically, the bill indicates that it performed Pain Fiber Nerve Conduction Studies (PFNCS) upon Robinson’s upper and lower extremities, that 9599 was the corresponding Fee Schedule Treatment Code and that the value of said services was $3,900. The reports appended to the bill indicate upon which what parts of the body the procedures were performed and the results thereof. Defendant also submits the denial of claim form and explanation of review form referenced by Kohle, which indicate that on December 1, 2015, it paid plaintiff $291.32 for the services rendered to Robinson. The explanation of review form indicates that $291.32 represents payment for the tests performed at $145.66 for the upper extremities and $145.66 for the lower extremities. Per defendant’s form, the foregoing rates are in accordance with the relevant fee schedule.

Defendant submits Acuna’s report and the documents upon which she relied (plaintiff’s reports regarding the tests performed upon Robinson, AMA CPT Assistant, New York Workers’ Compensation Chiropractic Fee Schedule, information regarding the AXON II Neural Scanner). Acuna states that she is a Registered Nurse and also a member of the American Academy of Professional Coders (AAPC), a national coding certification organization. Acuna has also worked as a coding reimbursement specialist since 1997 and in order to join AAPC took classes in coding and compliance. Based on Acuna’s review of the foregoing documents, she states that because PFNCS testing only measures amplitude and not velocity/latency, the test performed by plaintiff on Robinson was a quantitative sensory test. As per the AMA CPT Assistant, Acuna states that the appropriate treatment/billing code for the test performed is 0110T. According to the New York Workers’ Compensation Chiropractic Fee Schedule, the foregoing treatment code has no fixed Relative Value and instead, contains a “BR” under the Relative Value column which means the billing physician has to “establish a unit value consistent in relativity with other unit values shown in the schedule.” Acuna opines that the closest corresponding treatment code for the testing performed is 95904 which has a Relative Value of $12.60. Since the Conversion Factor in the schedule applicable to plaintiff is $5.78 (Region 4), the allowable fee for the testing performed is $72.83 per extremity (Relative Value x Conversion Factor), for a total of $145.66 for the lower extremity and an additional $145.66 for the upper extremity. Thus, as per the fee schedule, plaintiff was entitled to receive and, did in fact, receive $291.42 for the tests performed.

Based on the foregoing, defendant establishes prima facie entitlement to summary judgment insofar as the foregoing evidence establishes that defendant timely paid the instant claim in accordance with the relevant fee schedule.

Again, as noted above, an insurer is only required to pay for claimed medical services in the amounts prescribed by the relevant fee schedule (Oleg’s Acupuncture, P.C. at *1; Z.M.S. & [*7]Y Acupuncture, P.C. at *1; Surgicare Surgical Assoc. at 87). Thus, a defendant establishes entitlement to summary judgment when it establishes that all sums paid to a medical provided were in accordance to the prevailing fee schedule, even if less than the amount billed (Z.M.S. & Y Acupuncture, P.C. at *1; Surgicare Surgical Assoc. at 86). An insured establishes its fee schedule defense by tendering an affidavit from a professional coder who opines that the amounts paid for medical services were in accordance with and pursuant to the relevant fee schedule (Jaga Med. Services, P.C. at *1; Compas Med., P.C. at *1; Sama Physical Therapy, P.C. at *1; GBI Acupuncture, P.C. at *1; Raz Acupuncture, P.C. at *2; Great Wall Acupuncture, P.C. at 25).

Here, Acuna, an expert coder opines, based on a review of plaintiff’s bills, the reports of treatment rendered to Robinson, and ample reference material, including the applicable fee schedule, that the amounts billed by plaintiff are at variance and in excess of the relevant fee schedule such that the amounts paid by defendant were appropriate and in accordance to the fee schedule. As such, defendant establishes prima facie entitlement to summary judgment.

Nothing submitted by plaintiff raises an issue of fact sufficient to preclude summary judgment. Significantly, plaintiff’s submission is bereft of any evidence and it proffers no countervailing expert opinion. Instead, plaintiff, by counsel, actually agrees with the bulk of Acuna’s opinion – conceding that its initial treatment code was improper, that 0110T is the appropriate code for the tests performed, but that 95864 is the most appropriate code under the relevant fee schedule. As such, plaintiff urges that it is entitled to compensation for each nerve tested rather than for just the lower and upper extremities.

Plaintiff’s opposition, bereft of any evidence to support its assertion is insufficient to raise an issue of fact (LMS Acupuncture, P.C. v Geico Ins. Co., 42 Misc 3d 150(A), *1 [App Term 2014] [“With respect to plaintiff’s remaining claims, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. In opposition, plaintiff relied upon an affirmation from plaintiff’s counsel which failed to establish the existence of a triable issue of fact.” (internal citations omitted).]). In light of Acuna’s affidavit and a review of the literature upon which she relies, it is clear that medical billing in accordance with the relevant fee schedule requires an expertise beyond the ken of the layman (De Long v Erie County, 60 NY2d 296, 307 [1983] [“The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror.”]). Thus, this Court holds that an issue of fact with regard to her determination – dispositive in this case – can only be raised by the divergent opinion of another expert.

Indeed, assuming arguendo, that here, plaintiff’s attorney affirmation could, by itself, controvert Acuna’s opinion, plaintiff’s scant and conclusory attack on her opinion would nevertheless fall woefully short. For example, counsel makes no effort to reference any relevant documentation for his position that 95864 is the more appropriate billing code. Instead, citing to nothing, he merely asserts the same. Nor does plaintiff’s assertion that Acuna’s opinion is not premised on facts in the record avail it. It is true that expert testimony must be based on facts in the record or personally known to the witness, and that an expert cannot reach a conclusion by assuming material facts not supported by record evidence (Cassano v. Hagstrom, 5 NY2d 643, 646 [1959]; Gomez v New York City Hous. Auth., 217 AD2d 110, 117 [1995]; Matter of Aetna Cas. & Sur. Co. v Barile, 86 AD2d 362, 364-365 [1982]), and here, as discussed in detail, Acuna’s opinion is firmly grounded on facts in the record. Moreover, the documents from which those facts were extrapolated were properly before the Court. Thus, defendant’s motion is granted. It is hereby

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

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

This constitutes this Court’s decision and Order.

Fidel E. Gomez, JCC

Footnotes

Footnote 1: 11 NYCRR 65-3.1 states that “[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law.”

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